Ben Zipursky has posted to SSRN Pragmatic Conceptualism, Public Nuisance, and the American Opioid Litigation. The abstract provides:
Public nuisance as a part of American tort law has been as high profile in the first decades of this century as products liability law was in the last several decades of the 20th century. The American opioid litigation over the past decades is a spectacular example, filling headlines and generating billions of dollars of settlements. There is a plausible argument, however, that the doctrinal core of the opioid litigation is meritless because there simply is no “interference with public right” as required by public nuisance law. The first aim of the article is to articulate and assess that argument. However, the article simultaneously operates at a theoretical level by depicting three different perspectives that judges may occupy: an internal, “pragmatic conceptualist” perspective that illuminates the law in terms of the concepts and principles that constitute it; an external perspective examining the impact of various possible changes in the law and the relative merits of such changes; and an intermediate perspective that combines the internal and external perspectives and yields guidance on the ultimate judicial resolution. After arguing that the plaintiffs’ claims in the opioids litigation are fundamentally unsound as a matter of public nuisance doctrine, the article asks the question of whether courts should mold the doctrine to reach a result that would allow plaintiffs to prevail. Utilizing the intermediate perspective, it concludes that courts should not do so. This is so even if there are strong reasons for thinking – from an external point of view — that the opioids defendants should indeed face liability for the public health crisis they played a role in spawning. While appellate courts crafting tort law do have a substantial amount of power to craft and recraft the law within their proper institutional role, that power does not extend to the creation of post-hoc regulatory schemes and the selective transfer of broad public health expenditures.