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Public Nuisance for Private Persons

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View the page of Avihay Dorfman

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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.

X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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If we understand tort law in the common law world,

00:04.275 --> 00:07.095
has this kind of bottom up structure, right?

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

00:11.475 --> 00:15.375
and each tort, features a victim, a cause

00:15.375 --> 00:19.535
of action in which a victim asserts implicitly a kind

00:19.615 --> 00:22.775
of a right against a wrong doer, right?

00:23.195 --> 00:27.015
Um, now for each sort, we have a different kind of right,

00:27.155 --> 00:29.375
and it is protected by different needs.

00:29.755 --> 00:34.015
Now, public nuisance is a bit of a puzzle,

00:34.015 --> 00:37.095
because the question then is with respect

00:37.095 --> 00:41.335
to public nuisance, what is the kind of a primary, primary

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or substantive right, that the victim asserts

00:45.835 --> 00:47.205
against the wrong doer?

00:47.795 --> 00:51.605
Usually the answer, the kind of ready-made answer is,

00:51.695 --> 00:53.125
those are public rights.

00:53.665 --> 00:57.325
But then the question precisely, what do we mean

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by a public, right?

00:59.025 --> 01:03.445
It seems like a very kind of a puzzling creature, something

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

01:08.145 --> 01:11.565
And so that was a kind of a, the motivations

01:11.865 --> 01:16.365
behind this, this, this, project public rights,

01:16.705 --> 01:20.925
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.

01:29.945 --> 01:33.125
So in order to maintain the boundaries

01:33.155 --> 01:34.605
between the public sphere

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

01:38.415 --> 01:43.045
legal causes of actions, and public nuisance is one of them.

01:43.545 --> 01:46.005
It maintains that distinction.

01:46.465 --> 01:50.845
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

01:55.105 --> 01:59.245
of Berkeley, is that, the problem

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

02:04.265 --> 02:07.885
and nly mistaken boundaries between the public

02:07.945 --> 02:12.245
and the private, there is an assumption that private,

02:12.705 --> 02:14.645
the private is about exclusion.

02:15.035 --> 02:18.885
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.

02:42.825 --> 02:47.605
And there are many public areas, arenas, spheres, in which

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we could exclude other people for good reasons.

02:51.345 --> 02:55.765
So I think, so this is one view, one approach to,

02:55.905 --> 02:58.765
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.

03:13.205 --> 03:16.465
It looks like a private law, a tort law code of action,

03:16.485 --> 03:20.025
but in fact, it is a tool in the hands

03:20.045 --> 03:21.145
of the Attorney general

03:21.525 --> 03:25.545
or some public official, that is used

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as a work around

03:27.605 --> 03:31.545
or an end run, in order to kind of bypass

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legislator, regulators.

03:35.125 --> 03:39.265
Um, it allows attorney generalized,

03:39.405 --> 03:41.905
to do something to vindicate certain rights

03:41.965 --> 03:45.585
or to change some social policies without going

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

03:49.645 --> 03:52.625
by suing some, companies, some industries.

03:53.085 --> 03:56.265
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.

03:59.725 --> 04:02.465
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.

04:09.365 --> 04:12.385
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,

04:19.105 --> 04:20.705
that kind of, I would assume

04:20.705 --> 04:23.905
that we will see jurisdictions going all over the place

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trying to figure out,

04:26.325 --> 04:30.145
on their own without having any kind of a,

04:30.255 --> 04:34.465
well established, view or doctrine of public nuisance.

04:34.485 --> 04:36.345
And indeed, in reality, you could see

04:36.375 --> 04:39.865
that in a common law world, we have a huge spectrum

04:40.725 --> 04:43.265
of different views about

04:43.615 --> 04:45.705
what public nuisance is and how to use it.

04:45.765 --> 04:49.985
So for example, on one opposite,

04:50.245 --> 04:53.465
and I would put for, for example, England

04:53.485 --> 04:57.065
and certain other commonwealth jurisdictions in which public

04:57.125 --> 05:00.345
use is a quite conservative piece

05:00.345 --> 05:04.025
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,

05:11.325 --> 05:13.825
and some of those kind of public roads.

05:14.525 --> 05:19.385
Um, and only them, whereas in, let's say in the US

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that would be on the opposite extreme.

05:22.325 --> 05:25.785
Um, it became somewhat of a super tort in which

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attorney generals could use public nuisance in order to,

05:30.645 --> 05:34.065
as I said before, address many different social ills.

05:34.445 --> 05:38.385
So part of the tobacco litigation then,

05:38.685 --> 05:42.425
opioid litigation, even COVID-19 litigation.

05:42.445 --> 05:46.865
And today, climate change litigation,

05:47.295 --> 05:49.025
some courts would invoke,

05:49.085 --> 05:52.625
or some litigants would invoke public nuisance as one

05:52.625 --> 05:56.625
of the key major causes of action in those areas.

05:57.225 --> 05:59.365
And so that represents the opposite

05:59.585 --> 06:01.325
to the English view, right?

06:01.435 --> 06:04.885
It's much more generous, much more liberal understanding

06:05.025 --> 06:06.165
of public nuisance.

06:06.545 --> 06:09.085
Um, so that was the common world.

06:09.345 --> 06:11.205
As you see, there is a u and,

06:11.205 --> 06:13.365
and of course there are many jurisdictions in

06:13.395 --> 06:16.605
between England and us, Canada

06:16.625 --> 06:18.845
and New Zealand may be somewhere in between.

06:19.195 --> 06:24.165
When we, step to, the civil law world, then,

06:24.385 --> 06:28.965
we don't have any exact, replication of the public

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nuisance code of action, right?

06:31.745 --> 06:36.325
But we do have certain functional equivalences,

06:36.595 --> 06:39.085
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,

06:50.205 --> 06:51.245
would be addressing.

06:51.385 --> 06:53.925
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.

06:59.825 --> 07:01.365
We, we have to address the question

07:01.475 --> 07:03.805
what public right is, right.

07:04.155 --> 07:07.525
Once we get that, once we understand what public right is,

07:07.585 --> 07:11.805
and the main ambition of our paper is exactly to pin down

07:12.665 --> 07:14.925
how we should think about public, right?

07:15.155 --> 07:17.325
It's not just a definitional issue, right?

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

07:20.025 --> 07:24.745
to justify an appealing idea of what public right is.

07:24.885 --> 07:26.025
And so that would be the first

07:26.025 --> 07:28.705
and foremost, thing that we have to establish.

07:29.165 --> 07:33.105
Uh, once we have, a clear idea of,

07:33.205 --> 07:36.665
of public rights, that is also justifiable

07:36.685 --> 07:40.185
and desirable, then all the other moving parts

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can be organized in a, a quite coherent

07:44.965 --> 07:47.365
and consistent way, right?

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

07:50.605 --> 07:53.645
that public rights are the rights of private individuals,

07:53.905 --> 07:56.565
not necessarily citizens, but individuals to use

07:56.565 --> 07:58.165
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

08:07.365 --> 08:09.865
as, what I mean by we as private persons,

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

08:11.445 --> 08:15.705
or members of any, any specific pol that we

08:15.725 --> 08:17.585
as private persons hold

08:18.005 --> 08:20.745
and we hold it separately, not necessarily collectively,

08:21.165 --> 08:24.795
rights to use and enjoy public spaces, right?

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

08:29.925 --> 08:32.525
conclusion, but on other cases it could be

08:32.525 --> 08:33.765
quite radical, right?

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

08:37.865 --> 08:41.165
may not be excluded from certain private,

08:41.235 --> 08:42.965
from certain public spaces.

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

08:45.605 --> 08:49.925
a case in which private persons have entitlements

08:50.025 --> 08:54.765
and responsibilities that, arise beyond

08:54.865 --> 08:58.715
The private sphere and even beyond ownership of land.

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

09:02.495 --> 09:06.315
and our responsibilities to use certain spaces, land

09:07.275 --> 09:09.795
premises, usually we invoke ownership

09:10.135 --> 09:13.915
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

09:20.475 --> 09:23.755
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.

09:30.615 --> 09:34.035
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

09:38.935 --> 09:41.835
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

09:45.985 --> 09:50.395
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,

10:03.725 --> 10:07.795
other enterprises, factories, other pollutants,

10:08.315 --> 10:12.875
emitters, that they should respect our claim

10:13.695 --> 10:17.235
to enjoy, to use public spaces in a safe

10:17.235 --> 10:19.155
and healthy way against.

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

10:22.665 --> 10:24.475
It's not ours. But nevertheless,

10:24.535 --> 10:26.235
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,

10:33.015 --> 10:35.875
but other private entities, corporations

10:36.185 --> 10:38.955
that might put our right to use

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

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?

00:23 - 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, because the question then is with respect 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

00:57 - by a public, right? It seems like a very kind of a puzzling creature, something that many talk lawyers, don't really understand, right? And so that was a kind of a, the motivations 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

01:34 - and the private sphere, we had a set of legal rules, legal causes of actions, and public nuisance is one of them. 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, the private is about exclusion.

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

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. 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

03:21 - 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 for the legislator for this change, we can win this change by suing some, companies, some industries. and so that's the opposing view of

03:56 - 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 or a theory of public rights, then you would, you know, that kind of, I would assume that we will see jurisdictions going all over the place

04:24 - 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, and I would put for, for example, England and certain other commonwealth jurisdictions in which public

04:57 - 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. it became somewhat of a super tort in which attorney generals could use public nuisance in order to, as I said before, address many different social ills.

05:34 - 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 of the key major causes of action in those areas. And so that represents the opposite to the English view, right? It's much more generous, much more liberal understanding of public nuisance.

06:06 - 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, we don't have any exact, replication of the public nuisance code of action, right? But we do have certain functional equivalences, some other ways, some other causes

06:39 - 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 that we call public nuisance. We, we have to address the question what public right is, right. Once we get that, once we understand what public right is,

07:07 - 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. once we have, a clear idea of, of public rights, that is also justifiable and desirable, then all the other moving parts

07:41 - 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. the first one is that, we as, what I mean by we as private persons, not necessarily citizens of,

08:11 - 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 quite radical, right? Think about, instances in which, people, may not be excluded from certain private, from certain public spaces.

08:43 - 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 premises, usually we invoke ownership or some, some version of property rights. What public nuisance offers, or at least this is our conclusion in this project, is

09:20 - 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 to those spaces and also certain responsibility with respect to them. The third one is that therefore, we have another way to vindicate

09:51 - 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 to enjoy, to use public spaces in a safe and healthy way against. We don't need to invoke any claim of ownership on our side. It's not ours. But nevertheless,

10:24 - 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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