Nuisance Law: Corrective Justice and Its Utilitarian Constraints
![handle is hein.journals/legstud8 and id is 79 raw text is: NUISANCE LAW: CORRECTIVE JUSTICE AND
ITS UTILITARIAN CONSTRAINTS
RICHARD A. EPSTEIN*
I. INTRODUCTION: Two MODES OF THOUGHT
THERE is in both judicial opinions and academic literature an undercur-
rent of despair about the present state of the law of nuisance.I It is not
uncommon for commentators to describe it as the least systematic area of the
tort law or to note that all too often it serves as the dumping ground for many
disparate wrongs that do not neatly fit into any recognized doctrinal niche.2
However untidy the law of nuisance, there is no suggestion that it be dis-
pensed with in its entirety. Nuisance is a very old branch of the tort law,
dating back to the early assizes, and at its core it protects the quiet possession
and enjoyment of land.3 The important question is whether it is possible to
reexamine and refine the law of nuisance in order, first, to reconcile it in
some measure with the general principles of tort law and, second, admittedly
with some tugging and hauling, to make it internally coherent.
To approach these general questions I adopt the following course of ac-
tion. In the first part of the paper I will seek, while working up from the
cases, to develop a substantive law of nuisance on the assumption that all
* Professor of Law, University of Chicago. The research of the paper was supported in part by a
grant from the Law and Economics Program of the University of Chicago, and the writing of the
palier was done while a Fellow at the Center for Advanced Study in the Behavioral Sciences,
1977-78, where the work was supported by grants from the National Science Foundation (BNS
76-22943), the Andrew W. Mellon Foundation, and the Rockefeller Foundation.
I should like also to thank Yaron Ezrahi, A. Mitchell Polinsky, Joseph Sax, and Donald
Wittman for their helpful comments on earlier drafts of this paper. I have also benefited from
having presented this paper at faculty workshops at the University of Chicago Law School and
the Stanford Law School.
I See, Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as
Land Use Controls, 40 U. Chi. L. Rev. 681(1973); F. H. Newark, The Boundaries of Nuisance, 65
Law Q. Rev. 480 (1949); William L. Prosser, The Law of Torts 571(4th ed. 1971) [hereinafter cited
without cross-reference as Prosser, Torts].
2 See, on the classification problem, Newark, supra note 1, at 480-81.
3 See, for the early historical materials, Cecil Herbert Stuart Fifoot, History and Sources of the
Common Law, chs. 1 & 5, at 3-23, 93-102 (1949). Fifoot notes that with nuisance its very
name-nocumentum-suggests the damage which he [i. e. the landowner] had suffered by conduct
which nevertheless fell short of an actual dispossession, id. at 3, or it might be added, short of an
actual entry as well.](ViewImageLocal?handle=hein.journals/legstud8&div=8&collection=&method=preview&ext=.png&size=3)
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Nuisance Law: Corrective Justice and Its Utilitarian Constraints
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