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2022 Jotwell: J. Things We Like 1 (2022)

handle is hein.journals/jotwell2022 and id is 1 raw text is: Torts The Journal of Things We Like (Lots) https://torts.jotwell .com Law's Duct Tape? Using Public Nuisance to Fix the Holes in Administrative Law Author :Anthony Sebok Date :January 3, 2022 David A. Dana, Public Nuisance Law: When Politics Fail (May 26, 2021), available at SSRN. Public nuisance is in the news again. Three important opioid cases have been recently decided. In November plaintiffs lost a bench trial in California state court, and eight days later, the Oklahoma Supreme Court reversed a $465 million trial verdict, holding that, as a matter of law, public nuisance does not extend to the manufacturing or marketing of prescription drugs. About a week later, a jury in a bellwether, the Ohio federal MDL, held that pharmacies caused a public nuisance by failing to respond to curb medically unnecessary prescriptions. David Dana's article offers a bold prescription to courts about how to approach public nuisance, including the opioid litigation. Dana's argument should, in theory, make sense of November's mixed bag of decisions. His argument operates at two levels, first about the relationship between public nuisance and democracy, and second about the specific wrongful conduct which the tort of public nuisance should address. Dana begins his analysis at a familiar place: that the meaning of public nuisance is contestable, (P. 9). This is, perhaps, the only thing on which there is wide-spread agreement among scholars and courts. Not only has caselaw expanded to include conduct that earlier courts would have excluded, but there have also been episodes of genuine conflict over the best account of that caselaw, as when, in 1970, the American Law Institute refused to adopt Prosser's more restrictive definition of public nuisance as arising from conduct that was criminal. In light of this familiar challenge, Dana adopts a familiar strategy. He asks, when have courts actually been willing to find a public nuisance and order relief? (P. 9.) The three categories he identifies are (1) quasi-crime cases, (2) environmental cases and (3) product-based cases. (P. 9.) From this empirical observation, he draws the following conclusion: the three categories are united in that they all do the work of what a well-functioning administrative state should do. (P. 10, emphasis in original.) Dana's next analytic move is unexpected and clever. He observes that modern public nuisance - as defined as the universe of the three categories above - is in tension with the ideal of the administrative state (P. 11), because every public nuisance claim implies that the administrative state has failed. The function of public nuisance is to make actionable unreasonable interferences with public rights. (P. 11, paraphrasing Restatement (Second) of Torts § 821 B.) This being the case, Dana acknowledges that the criticism of public nuisance as lacking democratic legitimacy-made, for example, by Donald Gifford-has some superficial appeal, and his project is to defend public nuisance against it. I say that this move is unexpected because by assuming that modern public nuisance properly understood appears to function like administrative law, Dana seems to be conceding Gifford et. al.'s chief objection. The move is clever because if he can pull off this defense, then the doctrinal scope of modern public nuisance law will be as broad as that of the modern administrative state. Dana argues that when critics of modern public nuisance law claim that courts cannot hear claims concerning public rights because doing so oversteps the power of the democratically elected branches, they treat public and private rights differently without offering an argument other than stipulating that the former cannot be enforced by the courts. (P. 13.) Turning the tables on the critics, Dana argues that it would be odd-in fact, positively undemocratic-for courts to retreat from their traditional role of remedying all rights violations, including public rights. (P. 14.) 1/5

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