This draft article analyzes and criticizes the New York court’s tort remedies in its nuisance decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s famous law-and-economics article, One View of the Cathedral. From the Remedies branch of Legal Realism, this draft finds both wanting because both subordinate the winning plaintiffs’ injunction remedy to money damages. Both the Boomer decision and the Cathedral article undervalue public health and environmental protection. This mindset militates against robust and effective private-law remedies for defendants’ environmental torts. In addition, the Cathedral article’s four-rule organization and vocabulary are confusing and misleading. In particular its Rule 1) over-emphasizes the effect of an injunction, which, if the defendant breaches, will usually lead to compensatory contempt and a money award that converts a so-called “property right” into a so-called “liability right.” Behavioral economists’ studies and recent events have undermined and qualified many of the market-economics theories in the Cathedral article. This draft favors a flexible and pragmatic common-law technique instead of the law-and-economics analysis that favors awarding a nuisance-trespass plaintiff damages over an injunction. Moreover, the draft maintains that the economists’ presumption of nuisance-trespass parties’ post-injunction negotiation leading to an excessive coerced money settlement is overstated and should yield to more particularized and contextual analysis. This draft maintains that the Cathedral article’s four point array of remedies solutions is both too long and too short. Rule 3) is the liability decision that doesn't belong in a remedies analysis at all. Rule 4)’s plaintiff-pays solution destabilizes property rights and should be abandoned in private litigation. Rule 2)’s preference for damages over an injunction should be a rare remedy. Analysis of the trespass and nuisance injunction should study structural litigation’s injunctions and emphasize flexibility and equitable discretion, in short a broadened Rule 1). Other remedies, punitive damages and restitution, should also be considered as viable options. Taking earlier Legal Realists cue, this article seeks to replace theory with a more functional approach. By arguing in this draft for more and more detailed injunctions, the author hopes for augmented environmental protection and private-law remedies against global warming and climate change.
Available at: http://works.bepress.com/doug_rendleman/67/