Category Archives: Land use and Environment

Bunn and Douglas, ‘Breaking New Ground? Nuisance, Negligence and Pure Economic Loss in Marsh v Baxter

Abstract In Marsh v Baxter the WA Supreme Court resolved a dispute between organic farmers, the Marshes, and their genetically-modified-crop-growing neighbour, Mr Baxter. Causes of action in negligence and nuisance each failed. The court denied that Baxter owed the Marshes a duty to prevent swathes of GM material entering their property, and denied that Baxter […]

John Lovett, ‘Good Faith in Louisiana Property Law’

Abstract Good faith plays a pivotal role in four core areas of Louisiana property law that were the subject of an intense burst of law reform activity between 1977 and 1982. This article addresses the function of good faith in those areas: (1) as a prerequisite to the establishment of a predial servitude benefiting the […]

Tracy Hester, ‘Climate Tort Federalism’

Introduction … This essay begins with a brisk look at the fate of prior federal common law climate tort actions, and sketches out the basic tenets and prior analyses of judicial federalism and its role in mass-party litigation. It then closely examines how climate tort claims under state law will pose fundamental challenges to the […]

Babie, Burdon and da Rimini, ‘The Idea of Property: An Introductory Empirical Assessment’

Abstract The idea of property refers to the social imaginary of property, the informal or everyday ideas that people hold when they use or interact with resources, things, or items of social wealth. This article advances scholarship in property theory by studying this idea which, we argue, constitutes a set of norms and practices and […]

Jill Fraley, ‘Liability for Unintentional Nuisances’

Abstract The Second Restatement of Torts aligned private nuisance law squarely with the law of torts by altering the elements of liability to require 1) intent, 2) negligence, or 3) abnormally dangerous activities. The Restatement then concluded: ‘an actor is no longer liable for accidental interferences with the use and enjoyment of land’. Nearly forty […]

‘Nuisance by Knotweed’

“Hancock’s curse, monkey fungus, elephant ears, pea shooters, donkey rhubarb are all (bizarre) English names for Fallopia japonica or Japanese knotweed. Although initially lauded for its beauty (it was so celebrated that in 1847 it was named by one Horticultural society as the ‘most interesting new ornamental plant of the year’) it is now well […]

‘Now published – The Tragedy of the Commons at 50: Context, Precedents, and Afterlife’

“Last June we held a conference at TAU Law to explore the history of commons thought: The Tragedy of the Commons at 50: Context, Precedents, and Afterlife. I’m happy to report that the papers have now been published in the latest issue of Theoretical Inquiries in Law, edited by Carol Rose and myself, available here […]

Weaver and Kysar, ‘Tort law and normative rupture’

Abstract Do we court disaster by stretching the bounds of judicial authority to address problems of massive scale and complexity? Or does disaster lie in refusing to engage the jurisgenerative potential of courts in a domain of such vast significance? This chapter examines global climate change tort adjudication to shed light on these questions, focusing […]

Margaret Rosso Grossman, ‘Climate Change and the Individual’

Introduction … This Report, guided by a questionnaire prepared for the Twentieth General Congress of the International Academy of Comparative Law, addresses the topic of climate change lawsuits and the individual. The questionnaire focuses on lawsuits filed by individual plaintiffs against public and private actors to achieve mitigation of climate change or adaptation to its […]

Regalia and Hall, ‘Waters of the State’

Abstract The Southern Nevada Water Authority, the agency that provides Las Vegas with water, is in the process of building a massive water pipeline from the eastern-central part of Nevada to Las Vegas. This pipeline is a nearly-unprecedented feat of engineering and water distribution, and stands to move over 27 million gallons of water a […]