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

Witt & Tani, TCPI 9. Liability without Fault?
3. The empirics of bargaining around injunctions. Do parties in the real world behave as the
Calabresi / Melamed model suggests? Dean Ward Farnsworth at the University of Texas at
Austin studied twenty cases litigated to judgment and resulting in injunctions. Professor
Farnsworth found that parties in private nuisance cases are often acrimonious and do not prefer
money damages; thus, these parties were unwilling to bargain around the injunction. Crucially,
they were perfectly able to bargain. There were no transaction costs preventing them from doing
so. But they declined to do so. Ward Farnsworth, Do Parties to Nuisance Cases Bargain After
Judgment? A Glimpse Inside The Cathedral, 66 U. CHI. L. REV. 1, 30 (1999).
Does Dean Farnsworth’s study suggest that parties to suits are not bargainers as the
Cathedral model posits? One response is to observe that Farnsworth examined cases that were
litigated to judgment—not cases that were settled. But almost all cases are settled. Recall our
discussion of settlement back in Chapter 1. Who doesn’t settle? Parties peculiarly committed, or
just mistakenly committed, to idiosyncratic values in the underlying dispute. So it should hardly
be surprising that the cases in Farnsworth’s sample didn’t reach deals after injunctions issued.
They had ample opportunity to reach such deals long before the final stage of the litigation, and
those few who had been unwilling to make a deal in the run-up to the final judgment should
hardly have been expected to enter into one thereafter.
2. Public Nuisance
The Restatement (Second) of Torts defines public nuisance as “an unreasonable
interference with a right common to the general public.” Whether an interference with a “right
common to the public” is unreasonable depends on whether it significantly interferes with “the
public health, the public safety, the public peace, the public comfort or the public convenience”;
whether it is “proscribed by a statute, ordinance or administrative regulation”; and whether it is
“of a continuing nature or has produced a permanent or long-lasting effect.” RESTATEMENT
(SECOND) OF TORTS § 821B (1979).
Both government entities and private individuals may bring claims for public nuisance. A
government entity bringing a claim must have “authority as a public official or public agency to
represent the state or a political subdivision in the matter.” RESTATEMENT (SECOND) OF TORTS §
821C (1979).
Private individuals bringing public nuisance claims must make a further showing. They
must show that they “suffered harm of a kind different from that suffered by other members of
the public. . . .” RESTATEMENT (SECOND) OF TORTS § 821C (1979). How do courts determine
whether a private plaintiff’s harm is different in kind? Consider the following two cases:
Leo v. General Electric Co., 538 N.Y.S.2d 844 (N.Y. App. Div. 1989)
HARWOOD, J.
We are called upon to determine whether commercial fishermen and their representative
associations are aggrieved by the discharge of pollutants into public waters, resulting, for reasons
519