Public Nuisance Remedies
Document Type
Article
Publication Date
7-22-2025
Abstract
Public nuisance plaintiffs can seek limited remedies. Generally, plaintiffs can sue to abate a public nuisance, with the available monetary relief limited to the funds necessary to do so. Because public nuisance law limits plaintiffs’ monetary award to forward-looking abatement relief, there can be a large disparity between the profit a defendant earns by creating a public nuisance, or its total social cost, and the costs the defendant incurs when liable. This Article argues that the financial consequences defendants face in public nuisance litigation are too small to effectively deter potential tortfeasors from creating public nuisances. Liability will deter potential tortfeasors from engaging in tortious conduct if the expected penalties exceed the tortfeasor’s benefit from engaging in that conduct. An optimal remedial regime would therefore levy financial penalties that incentivize the defendant to take more care, or limit its activity, by making it unprofitable to unreasonably interfere with public rights. But under current law, a firm can profitably create a public nuisance whenever the profits the firm generates prior to legal intervention exceed abatement costs, which is generally true. And so, the incentives that public nuisance law establishes are insufficient to deter defendants from creating a public nuisance.
Efficient deterrence of public nuisance requires a more forceful remedy than the law currently provides. This Article argues that courts should disgorge tortfeasors of the profits gained from a public nuisance.
Publication Title
University of Richmond Law Review
First Page
551
Last Page
589
Recommended Citation
Clayton J. Masterman,
Public Nuisance Remedies,
59
U. Richmond L. Rev.
551
(2025).
Available at:
https://digitalcommons.law.buffalo.edu/journal_articles/1270
Comments
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