Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
Note further that even if the Cathedral’s liability rules reflect economic inequality in this
way, they do so no more than ordinary tort law does. As we will see in Chapter 10, ordinary tort
law takes correction of the status quo ante as its goal, without regard to the distributive justice or
lack thereof of the regime requiring repair.
Moreover, one should ask what the alternatives are. The alternative to compulsory
transactions is not that pollution will magically be allocated fairly among all members of society.
The alternative is that pollution siting will be a product of the political process – a process that
tends to privilege the wealthy and powerful. Looking around America’s cities today, who can say
that the pollution-causing facilities have been sited fairly as between poor and wealthy
neighborhoods? At the very least, the Cathedral approach would provide compensation to those
living in the affected areas—something the political process can rarely say for itself.
5. A long history for the Cathedral? Although Boomer treats the doctrine of undue hardship
as an innovation in New York tort law, Professor Douglas Laycock notes that the nuisance
defense of undue hardship was “long established in New York and elsewhere.” Douglas Laycock,
The Neglected Defense of Undue Hardship (and the Doctrinal Train Wreck in Boomer v. Atlantic
Cement) 1 (Univ. of Va. Law Sch. Pub. Law & Legal Theory Research Paper Series No. 2012-27,
2012), https://perma.cc/2LZS-YMEY; see also Louise A. Halper, Nuisance, Courts and Markets
in the New York Court of Appeals, 1850-1915, 54 ALB. L. REV. 301 (1990) (noting that several
New York cases that were not recognized in Boomer balanced remedies at the hardship stage).
The undue hardship doctrine allowed a nuisance defendant to convert an injunction against its
activities into a damages obligation to the victims of pollution or other nuisance effects. In New
York in particular, the defense of undue hardship had been considered at the remedy stage in other
cases. E.g., Squaw Island Freight Terminal Co. v. City of Buffalo, 7 N.E.2d 10, 14 (N.Y.1937)
(allowing the City of Buffalo to continue dumping sewage on the condition that it pay plaintiffs
permanent damages for the injury caused by the sewage).
6. The Calabresi / Melamed 2x2 Matrix. The three cases we have read so far in this section
can be summarized on the matrix below, with entitlements running down the left column and
remedies running across the top row:
Injunction (Property Rule)
Damages (Liability
Rule)
Entitlement to Plaintiff Ensign v. Walls Boomer
Entitlement to Defendant Fontainebleau Hotel Corp. Box 4
Source: Adapted from James E. Krier & Stewart J. Schwab, Property Rules and Liability Rules:
The Cathedral in Another Light, 70 N.Y.U. L. REV. 440, 444 (1995).
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