Category Archives: Land use
Hanri Mostert, ‘Nuisance’
Abstract: Does a constitutional order, one supporting human rights, change the way nuisance law works? In Scotland and South Africa nuisance law historically developed in very similar ways, and in both jurisdictions, the introduction of justiciable human rights has an impact on the general understanding of legal rules and principles. This essay focuses on the [...]
Gilo, Guttel and Yuval, ‘Negligence, Strict Liability and Collective Action’
Abstract: An injurer’s activity often exposes multiple victims to the risk of harm. We show that under negligence, the tort system’s dominant regime, such victims face a collective-action problem in choosing their activity levels. An increase in one victim’s activity level confers a positive externality on the other victims because it requires the injurer to [...]
Symposium: ‘Tort Law And Social Policy’
‘Introduction’, Stephan Landsman ‘ Reflections on Tort and the Administrative State’, Robert L Rabin ‘Strict Liability in Negligence’, Kenneth S Abraham ‘An Alternative Explanation for No-Fault’s “Demise”’, Nora Freeman Engstrom ‘The Coherence of Compensation-Deterrence Theory in Tort Law’, Mark A Geistfeld ‘Public-Private Approaches To Mass Tort Victim Compensation: Some Thoughts On The Gulf Coast Claims [...]
Jonathan Adler, ‘Is the Common Law the Free Market Solution to Pollution?’
Abstract: Free market environmentalism (FME) analyzes environmental problems as property rights problems. Whereas conventional analyses characterize environmental problems as examples of ‘market failure,’ FME diagnoses point to the lack of markets, and in particular a lack of enforceable and exchangeable property rights. This approach works well with many, if not most natural resources. The case [...]
Smith and Saunig, ‘Re-Conceptualizing the Law of Nuisance Through a Theory of Economic Captivity’
Abstract: Generally, the fact that a plaintiff comes to a nuisance is not a per se defense to a nuisance action. This defense is viewed in many jurisdictions as but a factor in determining whether a defendant’s conduct is an unreasonable interference with use and enjoyment of a neighbor’s property. In principle, two other affirmative [...]
Ashira Ostrow, ‘Land Law Federalism’
Abstract: In modern society, capital, information and resources pass seamlessly across increasingly porous jurisdictional boundaries; land does not. Perhaps because of its immobility, the dominant descriptive and normative account of land use law is premised upon local control. Yet, land exhibits a unique duality. Each parcel is at once absolutely fixed in location but inextricably [...]
Richard Wright, ‘Private Nuisance Law: A Window on Substantive Justice’
Abstract: More than any other tort action, the private nuisance action reveals the proper nature and full scope of tort law as an implementation of the classical principles of justice and their underlying moral norm of equal freedom. The private wrong addressed by the private nuisance action is one of the few wrongs that it [...]
George Christie, ‘A Comment on Restatement Third of Torts’ Proposed Treatment of the Liability of Possessors of Land’
Abstract: In 51 and 52 of the forthcoming second volume of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, the reporters have sought to accommodate the trend to extend the liability of possessors of land to trespassers. The courts that have led the way in this legal transformation of the traditional common [...]
Gregory Keating, ‘Nuisance as a Strict Liability Wrong’
Abstract: Nuisance law offers unrivaled instruction about the formal structure and substantive morality of strict liability in tort, and by so doing challenges the dominant theories of tort. On the one hand, the structure and substance of nuisance law do not conform to the economic thesis that tort is a law concerned with the efficient [...]
Gregory Keating, ‘Recovering Rylands: An Essay for Bob Rabin’
Abstract: This paper, written for a Clifford Symposium Festschrift for Robert Rabin, comments on his lovely, widely admired, and yet still underappreciated paper The Historical Development of the Fault Principle: A Reinterpretation. Rabin’s paper teaches us something essential about the character and structure of modern tort law at the moment of its genesis, and it [...]
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