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Public Nuisance for Private Persons

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Barry Cushman | University of Notre Dame

The public nuisance tort is now in a critical stage of development, mostly in the U.S. but also in other jurisdictions, including civil law systems. It is becoming ever more consequential in practice and, at the same time, widely misunderstood by courts and scholars. Avihay Dorfman defends a private-law theory of public nuisance.

Image courtesy of interviewee. May 14, 2024

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This video video discusses the concept of public nuisance within tort law, particularly in the common law context. It begins by outlining the structure of tort law, characterized by discrete torts where victims assert rights against wrongdoers. Public nuisance is highlighted as a complex area, often tied to public rights, but the meaning of these rights is debated among legal scholars.

The author suggests that traditional views of public nuisance maintain a strict boundary between public and private spheres, with public rights defined as collective interests. However, the author critiques this perspective, arguing that the concepts of exclusion and inclusion do not cleanly divide public and private realms. They propose that public rights should be viewed as the rights of individuals to use and enjoy public spaces.

Two main interpretations of public nuisance are presented: one sees it as a private law action, while the opposing view considers it a tool for public officials to address social issues. The author notes significant jurisdictional differences, citing the conservative view in England versus the broader application seen in the US, where public nuisance has been invoked in various social issues, including tobacco and climate litigation.

Furthermore, the author concludes with three main points: individuals have rights to public spaces independent of citizenship; they possess responsibilities and entitlements that transcend ownership; and public nuisance can serve as a mechanism for ensuring a safe and healthy environment without requiring ownership claims. The paper seeks to clarify and justify the notion of public rights and their implications for public nuisance as a legal instrument.

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Here are five key points from the video:

1. **Understanding Public Nuisance**: The video explores the concept of public nuisance and questions what substantive rights victims assert against wrongdoers. It identifies the traditional notion of public rights as an ambiguous concept that requires deeper examination.

2. **Distinction Between Public and Private Rights**: The speaker argues that the strict distinction between public (inclusion) and private (exclusion) rights is conceptually flawed. There are private spaces where exclusion is not appropriate, and public spaces that may allow for exclusion under certain conditions.

3. **Public Nuisance as a Tool for Social Change**: The video contrasts views on public nuisance, suggesting that in some jurisdictions, it functions as a tool for public officials to address social issues (e.g., public health crises, environmental concerns) rather than purely a private law action.

4. **Variability Across Jurisdictions**: Different jurisdictions exhibit diverse interpretations of public nuisance, ranging from conservative views (e.g., limited to obstructing public highways) to broader applications invoked in matters like climate change, tobacco, and opioid litigation.

5. **Rights and Responsibilities of Private Persons**: The paper posits that private individuals have entitlements and responsibilities concerning public spaces that exist independently of ownership claims. This concept is crucial for advocating for a safe and healthy environment, particularly regarding climate change, without necessitating ownership to assert rights.

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Here are some key quotes from the video on public nuisance and tort law:

1. **Understanding Tort Law**:
- "If we understand tort law in the common law world, um, has this kind of bottom up structure, right?"

2. **Public Nuisance Question**:
- "What is the kind of a primary, primary or substantive right, that the victim asserts against the wrong doer?"

3. **Nature of Public Rights**:
- "Usually the answer, the kind of ready-made answer is, uh, those are public rights. But then the question precisely, what do we mean by a public right?"

4. **Boundaries Between Public and Private**:
- "In order to maintain the boundaries between the public sphere and the private sphere, we had a set of legal rules, legal causes of actions, and public nuisance is one of them."

5. **Mistaken Boundaries**:
- "The problem with this view is that it defends, I think, um, conceptually and nly mistaken boundaries between the public and the private."

6. **Freedom of Exclusion vs. Inclusion**:
- "The private is about exclusion... whereas the public is about full inclusion."

7. **Public Nuisance as a Public Law Action**:
- "It looks like a private law, a tort law code of action, but in fact, it is a tool in the hands of the Attorney general or some public official, uh, that is used... to change some social policies without going for the legislator for this change."

8. **Diverse Perspectives on Public Nuisance**:
- "We have a huge spectrum of different views about what public nuisance is and how to use it."

9. **Public Rights and Responsibilities**:
- "Public rights are the rights of private individuals... to use and enjoy public spaces."

10. **Entitlements Beyond Ownership**:
- "It gives us rights, some entitlements, but also some responsibilities that are independent of any claim of ownership."

11. **Vindicator of Environmental Claims**:
- "We do have a claim against other people, other enterprises... that they should respect our claim to enjoy, to use public spaces in a safe and healthy way."

12. **Conclusion on Public Nuisance**:
- "Public nuisance may help vindicate that entitlement vis-a-vis not just governments, but other private entities, corporations that might put our right to use and enjoy public spaces in danger."

These quotes capture the main themes of public rights, the complexities of defining public nuisance, and the relationship between private individuals and public spaces.

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Here are some articles that discuss topics similar to the video you , which primarily addresses public nuisance, tort law, the distinction between public and private rights, and their implications for legal actions:

1. **"Public Nuisance and the Evolving Nature of Tort Law"**
This article explores the historical development of tort law concerning public nuisance claims and how these claims have evolved in the face of societal changes, particularly regarding environmental issues.

2. **"The Intersection of Public and Private Rights in Environmental Law"**
This piece analyzes how public and private rights are defined within the realm of environmental legislation, discussing cases where public nuisance has been utilized to address environmental harm caused by private entities.

3. **"Revisiting Public Nuisance: Rights, Remedies, and the Role of the State"**
This article discusses the role of public nuisance as a legal remedy and how it interacts with state powers, looking at recent litigation involving public nuisance claims regarding public health issues and climate change.

4. **"Tort Law's Role in Protecting Common Spaces: Public Rights and Responsibilities"**
This article delves into how tort law can be used to protect public spaces and the rights of individuals to enjoy these spaces without interference, and it examines recent cases where public nuisance claims were prominent.

5. **"Environmental Justice and Public Nuisance: Legal Perspectives"**
This research paper explores how public nuisance claims can serve as a tool for environmental justice, particularly for communities affected by pollution and other negative externalities caused by industries.

6. **"Public Rights vs. Private Interests: A Legal Perspective"**
This article discusses the tension between public rights and private ownership, looking into case studies that illustrate how courts navigate these issues and the resulting implications for tort law.

7. **"The Role of Public Nuisance in Climate Change Litigation"**
This article examines the use of public nuisance claims in recent climate change lawsuits, analyzing how plaintiffs have sought to hold corporations accountable for environmental damages that affect public health and safety.

8. **"Legal Constructs of Public vs. Private: Analyzing Rights and Responsibilities"**
This article discusses the legal distinctions between public and private spaces, and how these distinctions affect the enforcement of rights and responsibilities in various legal convideos, including tort law.

Each of these articles examines different aspects of the themes present in your video, focusing on how legal frameworks interpret and apply concepts of public and private rights in relation to tort law and public nuisance.

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If we understand tort law in the common law world,

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has this kind of bottom up structure, right?

00:07.275 --> 00:11.015
We have, different discrete torts,

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and each tort, features a victim, a cause

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of action in which a victim asserts implicitly a kind

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of a right against a wrong doer, right?

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Um, now for each sort, we have a different kind of right,

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and it is protected by different needs.

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Now, public nuisance is a bit of a puzzle,

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because the question then is with respect

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to public nuisance, what is the kind of a primary, primary

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or substantive right, that the victim asserts

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against the wrong doer?

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Usually the answer, the kind of ready-made answer is,

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those are public rights.

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But then the question precisely, what do we mean

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by a public, right?

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It seems like a very kind of a puzzling creature, something

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that many talk lawyers, don't really understand, right?

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And so that was a kind of a, the motivations

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behind this, this, this, project public rights,

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should be understood as something like,

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part of the legal construction of the contrast

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or the divide between the public and big private.

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So in order to maintain the boundaries

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between the public sphere

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and the private sphere, we had a set of legal rules,

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legal causes of actions, and public nuisance is one of them.

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It maintains that distinction.

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Um, as, as I, as I, argue in this paper, a paper

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by the way, which was co-authored with my colleague GaN

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of Berkeley, is that, the problem

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with this view is that it defense, I think, conceptually

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and nly mistaken boundaries between the public

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and the private, there is an assumption that private,

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the private is about exclusion.

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It's about the right to exclude, the kind

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of complete freedom to do whatever I wanna do,

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whereas the public is about full inclusion.

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Now, I think the distinction between exclusion

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and inclusion cuts across the distinction

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between the public and the private.

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I think we have many different private spheres

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in which we cannot exclude other people,

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and we should not exclude other people.

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And there are many public areas, arenas, spheres, in which

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we could exclude other people for good reasons.

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So I think, so this is one view, one approach to,

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the question, the peddling question that I've, mentioned

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Before.

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What, what counts as public rights in the opposing camp,

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suggests that public nuisance is

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actually a public law action in disguise.

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It looks like a private law, a tort law code of action,

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but in fact, it is a tool in the hands

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of the Attorney general

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or some public official, that is used

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as a work around

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or an end run, in order to kind of bypass

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legislator, regulators.

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Um, it allows attorney generalized,

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to do something to vindicate certain rights

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or to change some social policies without going

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for the legislator for this change, we can win this change

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by suing some, companies, some industries.

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Uh, and so that's the opposing view of

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what public nuisance is.

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It's not really about private rights.

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It is about actually a cause of action given

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to attorney generals to, address

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or tackle certain social ills, if you like.

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You could imagine that once we don't have secure

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a well-established definition, an idea

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or a theory of public rights, then you would, you know,

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that kind of, I would assume

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that we will see jurisdictions going all over the place

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trying to figure out,

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on their own without having any kind of a,

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well established, view or doctrine of public nuisance.

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And indeed, in reality, you could see

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that in a common law world, we have a huge spectrum

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of different views about

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what public nuisance is and how to use it.

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So for example, on one opposite,

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and I would put for, for example, England

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and certain other commonwealth jurisdictions in which public

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use is a quite conservative piece

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of doctrine in which we use it only to,

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address instances of obstructing public

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highways, navigable waters,

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and some of those kind of public roads.

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Um, and only them, whereas in, let's say in the US

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that would be on the opposite extreme.

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Um, it became somewhat of a super tort in which

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attorney generals could use public nuisance in order to,

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as I said before, address many different social ills.

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So part of the tobacco litigation then,

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opioid litigation, even COVID-19 litigation.

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And today, climate change litigation,

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some courts would invoke,

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or some litigants would invoke public nuisance as one

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of the key major causes of action in those areas.

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And so that represents the opposite

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to the English view, right?

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It's much more generous, much more liberal understanding

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of public nuisance.

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Um, so that was the common world.

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As you see, there is a u and,

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and of course there are many jurisdictions in

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between England and us, Canada

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and New Zealand may be somewhere in between.

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When we, step to, the civil law world, then,

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we don't have any exact, replication of the public

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nuisance code of action, right?

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But we do have certain functional equivalences,

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some other ways, some other causes

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of actions in which litigants could address some

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of the same issues, questions that,

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plaintiffs in the commonwealth world,

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would be addressing.

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But they don't have the civil countries,

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they don't have any kind of freestanding cause of action

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that we call public nuisance.

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We, we have to address the question

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what public right is, right.

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Once we get that, once we understand what public right is,

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and the main ambition of our paper is exactly to pin down

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how we should think about public, right?

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It's not just a definitional issue, right?

07:17.355 --> 07:20.025
It's a normative enterprise to try

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to justify an appealing idea of what public right is.

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And so that would be the first

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and foremost, thing that we have to establish.

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Uh, once we have, a clear idea of,

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of public rights, that is also justifiable

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and desirable, then all the other moving parts

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can be organized in a, a quite coherent

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and consistent way, right?

07:47.665 --> 07:50.605
And so, and, and, and by the way, the answer that we give is

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that public rights are the rights of private individuals,

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not necessarily citizens, but individuals to use

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and enjoy public spaces.

07:58.505 --> 08:01.805
Let me lay out, I think three basic conclusions.

08:02.425 --> 08:06.465
Uh, the first one is that, we

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as, what I mean by we as private persons,

08:09.965 --> 08:11.425
not necessarily citizens of,

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or members of any, any specific pol that we

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as private persons hold

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and we hold it separately, not necessarily collectively,

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rights to use and enjoy public spaces, right?

08:25.135 --> 08:29.925
Um, that may sound sometimes as a trivial,

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conclusion, but on other cases it could be

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quite radical, right?

08:33.765 --> 08:37.605
Think about, instances in which, people,

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may not be excluded from certain private,

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from certain public spaces.

08:43.665 --> 08:45.125
Uh, the second conclusion,

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a case in which private persons have entitlements

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and responsibilities that, arise beyond

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The private sphere and even beyond ownership of land.

08:59.055 --> 09:02.275
So usually when we think about our entitlements

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and our responsibilities to use certain spaces, land

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premises, usually we invoke ownership

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or some, some version of property rights.

09:14.465 --> 09:16.435
What public nuisance offers,

09:16.975 --> 09:20.475
or at least this is our conclusion in this project, is

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that it gives us rights, some entitlements,

09:23.775 --> 09:27.835
but also some responsibilities that are independent

09:28.255 --> 09:30.315
of any claim of ownership.

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We don't own, I mean, we as private persons,

09:34.035 --> 09:35.795
we don't own public spaces,

09:36.095 --> 09:38.915
but nevertheless, we do have certain entitlements

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to those spaces and also certain responsibility

09:42.105 --> 09:43.115
with respect to them.

09:44.135 --> 09:45.955
The third one is that

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therefore, we have another way to vindicate

09:51.055 --> 09:53.075
our interest in a safe

09:53.335 --> 09:57.275
and healthy environment, which is especially important,

09:57.465 --> 10:00.475
when we want to address climate change, right?

10:00.815 --> 10:03.595
Uh, we do have a claim against other people,

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other enterprises, factories, other pollutants,

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emitters, that they should respect our claim

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to enjoy, to use public spaces in a safe

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and healthy way against.

10:19.215 --> 10:22.595
We don't need to invoke any claim of ownership on our side.

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It's not ours. But nevertheless,

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we do have an entitlement here.

10:26.655 --> 10:30.635
And public nuisance may help vindicate that entitlement

10:31.155 --> 10:32.875
vis-a-vis not just governments,

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but other private entities, corporations

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that might put our right to use

10:38.955 --> 10:40.915
and enjoy public spaces in danger.

Understanding Public Rights in Tort Law

00:00:00 - If we understand tort law in the common law world, has this kind of bottom up structure, right? We have, different discrete torts, and each tort, features a victim, a cause of action in which a victim asserts implicitly a kind of a right against a wrong doer, right? now for each sort, we have a different kind of right, and it is protected by different needs. Now, public nuisance is a bit of a puzzle,
00:00:37 - to public nuisance, what is the kind of a primary, primary or substantive right, that the victim asserts against the wrong doer? Usually the answer, the kind of ready-made answer is, those are public rights. But then the question precisely, what do we mean by a public, right? It seems like a very kind of a puzzling creature, something that many talk lawyers, don't really understand, right?
00:01:11 - behind this, this, this, project public rights, should be understood as something like, part of the legal construction of the contrast or the divide between the public and big private. So in order to maintain the boundaries between the public sphere and the private sphere, we had a set of legal rules,
00:01:43 - It maintains that distinction. as, as I, as I, argue in this paper, a paper by the way, which was co-authored with my colleague GaN of Berkeley, is that, the problem with this view is that it defense, I think, conceptually and nly mistaken boundaries between the public and the private, there is an assumption that private,
00:02:15 - It's about the right to exclude, the kind of complete freedom to do whatever I wanna do, whereas the public is about full inclusion. Now, I think the distinction between exclusion and inclusion cuts across the distinction between the public and the private. I think we have many different private spheres in which we cannot exclude other people, and we should not exclude other people.
00:02:48 - we could exclude other people for good reasons. So I think, so this is one view, one approach to, the question, the peddling question that I've, mentioned Before. What, what counts as public rights in the opposing camp, suggests that public nuisance is actually a public law action in disguise.

Public Nuisance as Attorney General's Tool

00:03:16 - but in fact, it is a tool in the hands of the Attorney general or some public official, that is used as a work around or an end run, in order to kind of bypass legislator, regulators. it allows attorney generalized, to do something to vindicate certain rights or to change some social policies without going
00:03:49 - by suing some, companies, some industries. and so that's the opposing view of what public nuisance is. It's not really about private rights. It is about actually a cause of action given to attorney generals to, address or tackle certain social ills, if you like. You could imagine that once we don't have secure a well-established definition, an idea
00:04:19 - that kind of, I would assume that we will see jurisdictions going all over the place trying to figure out, on their own without having any kind of a, well established, view or doctrine of public nuisance. And indeed, in reality, you could see that in a common law world, we have a huge spectrum of different views about what public nuisance is and how to use it. So for example, on one opposite,
00:04:53 - and certain other commonwealth jurisdictions in which public use is a quite conservative piece of doctrine in which we use it only to, address instances of obstructing public highways, navigable waters, and some of those kind of public roads. and only them, whereas in, let's say in the US that would be on the opposite extreme.
00:05:26 - attorney generals could use public nuisance in order to, as I said before, address many different social ills. So part of the tobacco litigation then, opioid litigation, even COVID-19 litigation. And today, climate change litigation, some courts would invoke, or some litigants would invoke public nuisance as one
00:05:57 - And so that represents the opposite to the English view, right? It's much more generous, much more liberal understanding of public nuisance. so that was the common world. As you see, there is a u and, and of course there are many jurisdictions in between England and us, Canada and New Zealand may be somewhere in between. When we, step to, the civil law world, then,

Understanding Public Rights and Nuisance Law

00:06:29 - nuisance code of action, right? But we do have certain functional equivalences, some other ways, some other causes of actions in which litigants could address some of the same issues, questions that, plaintiffs in the commonwealth world, would be addressing. But they don't have the civil countries, they don't have any kind of freestanding cause of action
00:06:59 - We, we have to address the question what public right is, right. Once we get that, once we understand what public right is, and the main ambition of our paper is exactly to pin down how we should think about public, right? It's not just a definitional issue, right? It's a normative enterprise to try to justify an appealing idea of what public right is. And so that would be the first and foremost, thing that we have to establish.
00:07:33 - of public rights, that is also justifiable and desirable, then all the other moving parts can be organized in a, a quite coherent and consistent way, right? And so, and, and, and by the way, the answer that we give is that public rights are the rights of private individuals, not necessarily citizens, but individuals to use and enjoy public spaces. Let me lay out, I think three basic conclusions.
00:08:07 - as, what I mean by we as private persons, not necessarily citizens of, or members of any, any specific pol that we as private persons hold and we hold it separately, not necessarily collectively, rights to use and enjoy public spaces, right? that may sound sometimes as a trivial, conclusion, but on other cases it could be
00:08:33 - Think about, instances in which, people, may not be excluded from certain private, from certain public spaces. the second conclusion, a case in which private persons have entitlements and responsibilities that, arise beyond The private sphere and even beyond ownership of land. So usually when we think about our entitlements and our responsibilities to use certain spaces, land
00:09:10 - or some, some version of property rights. What public nuisance offers, or at least this is our conclusion in this project, is that it gives us rights, some entitlements, but also some responsibilities that are independent of any claim of ownership. We don't own, I mean, we as private persons, we don't own public spaces, but nevertheless, we do have certain entitlements

Vindicating Rights to Public Spaces

00:09:42 - with respect to them. The third one is that therefore, we have another way to vindicate our interest in a safe and healthy environment, which is especially important, when we want to address climate change, right? we do have a claim against other people, other enterprises, factories, other pollutants, emitters, that they should respect our claim
00:10:38 - and healthy way against. We don't need to invoke any claim of ownership on our side. It's not ours. But nevertheless, we do have an entitlement here. And public nuisance may help vindicate that entitlement vis-a-vis not just governments, but other private entities, corporations that might put our right to use and enjoy public spaces in danger.

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