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Public Nuisance at the Crossroads: Policing the Intersection Between Statutory Primacy and Common Law

Richard O. Faulk, Gardere Wynne Sewell LLP
John S. Gray, Gardere Wynne Sewell LLP

Abstract

Public nuisance is at the “crossroads” in California. The California lead paint litigation may be the end – or a new beginning – of mass tort proceedings against product manufacturers based upon public nuisance, as opposed to traditional strict product liability. The controversy lies squarely at the intersection of statutory and common law – an interchange that has grown increasingly more complex since California’s laws were codified in 1850, and since public nuisance was codified as a tort in 1872. The dispute is framed by this singular legal history and the complex jurisprudence the state has developed to simultaneously empower and restrain the creativity of common law courts in such cases. As a result, those historical perspectives and contexts must be appreciated and studied before honest prognostications can be made.

Suggested Citation

Richard O. Faulk and John S. Gray. "Public Nuisance at the Crossroads: Policing the Intersection Between Statutory Primacy and Common Law" Chapman Law Review 15 (2011): 495-535.
Available at: http://works.bepress.com/richard_faulk/56