BASD505 Reading Summary- Tort Law as Deterrance Against Pollution

BASD505 Reading Summary- Tort Law as Deterrance Against Pollution

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The 'environmental' problems considered here include injuries to persons, property or the environment caused by the discharge of air and water pollution and by the discharge and disposal of solid and liquid wastes. This paper will focus on four classic environmental tort actions: private nuisance, trespass, public nuisance and negligence. Law and economics scholars, drawing on concepts of economic efficiency, stress deterrence and assess the creation of appropriate incentives to take cost-justified precautions. The analysis of inputs determines the theoretical assumptions that are required for the tort system to provide optimal deterrence, and examines whether those assumptions are satisfied by legal doctrines and empirical facts. This is followed by an analysis of outputs which ex-amines actual performance in a number of specific pollution problems, attempting to identify the changes in behaviour that the tort system has induced, and examining whether these changes are significant, and if so whether they are optimal. Because the victims are not in a market relationship with the polluter, payment by the polluter will arise only if the tort system compels it, or if a government agency imposes liability US and Britain: Private Nuisance Unreasonable conduct is determined by 'balancing the equities' which allows the court to consider, among other things, the social utility of the polluting activity. Under this flexible doc-trine, which emerged during the 19th century, nuisance law in the United States (as in Britain) posed little threat to industrialization, eventually allowing terrible environmental damage (Brenner, 1974). In the US there is a defence for 'coming to the nuisance' which often bars actions by plain-tiffs arriving after the discharge was established. Trespass: Unlike private nuisance, there is no defence associated with the reasonable con-duct of the defendant, or with the plaintiffs having arrived after the defendant. Thus trespass may be available in some cases when private nuisance is not. Public Nuisance The law of public nuisance may be used to address violations of a general interest in environmental quality through an action brought by the government rather than by a private individual. Individual must demonstrate that their losses differ in kind, not quality, from those of the rest of the community. Public nuisance is broader than private nuisance and can be applied to interference with public health, public com-fort, and public convenience. The harm must be widespread and substantial. However private individuals may sue only if they suffer damages different in kind from those of the general public, and governments rarely sue, so this doc-trine is of little effect Negligence Negligence actions may be applied regardless of proprietary interest, requiring only that the defendant owed a duty of care to the plaintiff, that he or she failed to meet the legal standard of care, and that this failure caused injury to
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BASD505 Reading Summary- Tort Law as Deterrance Against Pollution

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