Rehabilitating the Nuisance Injunction to Protect the Environment

Washington and Lee Law Review, Feb 2019

The Trump Administration has reversed the federal government’s role of protecting the environment. The reversal focuses attention on states’ environmental capacity. This Article advocates more vigorous state environmental tort remedies for nuisance and trespass. An injunction is the superior remedy in most successful environmental litigation because it orders correction and improvement. Two anachronistic barriers to an environmental injunction are the New York Court of Appeals’ decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s early and iconic law-and-economics article, One View of the Cathedral. This Article examines and criticizes both because, by subordinating the injunction to money damages, they undervalue public health and environmental protection and militate against effective private-law remedies for environmental torts. This Article advocates flexible and pragmatic common-law techniques instead of law-and-economics analysis. Moreover, behavioral economists’ studies have undermined and qualified many law-and-economics theories. In addition to arguing for more and better injunctions, this Article criticizes the law-and-economics mindset that nuisance-trespass parties’ post-injunction negotiation will convert an injunction into an excessive money settlement. It also shows that the Cathedral article’s vocabulary and four-rule organization are both too long and too short as well as confusing and misleading.

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https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=4626&context=wlulr

Rehabilitating the Nuisance Injunction to Protect the Environment

Rehabilitating the Nuisance Injunction to Protect the Environment Doug Rendleman 0 1 2 0 Washington and Lee University School of Law , USA 1 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA 2 Part of the Administrative Law Commons, Environmental Law Commons, Law and Economics Commons, Legal Remedies Commons , Litigation Commons, and the Torts Commons Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Recommended Citation - Article 4 Rehabilitating the Nuisance Injunction to Protect the Environment Doug Rendleman* The Trump Administration has reversed the federal government?s role of protecting the environment. The reversal focuses attention on states? environmental capacity. This Article advocates more vigorous state environmental tort remedies for nuisance and trespass. An injunction is the superior remedy in most successful environmental litigation because it orders correction and improvement. Two anachronistic barriers to an environmental * E.R. Huntley Professor of Law, Washington and Lee University School of Law. Thanks for close collegial readings and candid comments to professors Daniel Farber, John Golden, Alexandria Klass, Douglas Laycock, and Henry Smith. Thanks to student research assistants Martha Vazquez, Trista BishopWatt, Jenna Fierstein, Ernest Hammond, Sills O?Keefe, Ryan Starks, and Scott Weingart for their help with the citations and footnotes. Thanks also to the Frances Lewis Law Center for support. This paper benefitted from comments at presentations at the Remedies Discussion Forum at Prato, Italy, the Association of Law, Property, and Society at the University of Minnesota, the Faculty Enclave at Washington and Lee, and the Property Remedies Discussion Forum at Universite Paul Cezanne, Aix Marseille, France. This Article?s genesis was years of developing and teaching law school casebooks that included Boomer v. Atlantic Cement as a principal decision. Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y. 1970); DOUG RENDLEMAN, COMPLEX LITIGATION: INJUNCTIONS, STRUCTURAL REMEDIES, AND CONTEMPT 178?94 (2010); DOUG RENDLEMAN & CAPRICE L. ROBERTS, REMEDIES 1208?14 (9th ed. 2018) and earlier editions. The casebooks comprise a rough ?first draft? of this Article. A later draft was published in Europe as a book chapter with a different title; its emphasis and conclusions foreshadow this revision. Doug Rendleman, Rejecting Property Rules-Liability Rules for Boomer?s Nuisance Remedy: The Last Tour You Need of Calabresi and Melamed?s Cathedral, in REMEDIES AND PROPERTY 43 (Presses Universitaires d?Aix-Marseille, Russell Weaver & Francois Lichere eds. 2013) . This draft was also posted on SSRN in 2013, Number 2212384. From the beginning, understanding and reacting to the New York decisions and the Cathedral article?s treatment of remedies influenced my teaching and casebooks. Over the years, qualifications and refinements surfaced, prompted by developing thought and scholarship. injunction are the New York Court of Appeals? decision, Boomer v. Atlantic Cement, and Calabresi and Melamed?s early and iconic law-and-economics article, One View of the Cathedral. This Article examines and criticizes both because, by subordinating the injunction to money damages, they undervalue public health and environmental protection and militate against effective private-law remedies for environmental torts. This Article advocates flexible and pragmatic common-law techniques instead of law-and-economics analysis. Moreover, behavioral economists? studies have undermined and qualified many law-and-economics theories. In addition to arguing for more and better injunctions, this Article criticizes the law-and-economics mindset that nuisance-trespass parties? post-injunction negotiation will convert an injunction into an excessive money settlement. It also shows that the Cathedral article?s vocabulary and four-rule organization are both too long and too short as well as confusing and misleading. I. Introduction As the first half of the Trump Administration ends, the federal government?s environmental goal is deregulation.1 The EPA and the Departments of Energy and Interior are unraveling long-standing environmental policies through executive and administrative measures.2 The Harvard Law School Environmental and Energy Law Program sends regular emails updating the Administration?s deregulatory trajectory. Setbacks for environmental protection include rescission of or weakened federal government support for the Paris Climate accord, the Clean Power Plan, the Clean Water Rule, and national 1. See Nadja Popovich et al., 76 Environmental Rules on the Way Out Under Trump, N.Y. TIMES, https://www.nytimes.com/interactive/2017/10/05/ climate/trump- environment-rules-reversed.html (last updated July 6, 2018) (last visited Dec. 3, 2018) (stating that ?the Trump Administration has sought to reverse more than 70 environmental regulations? in accordance with its priority of eliminating federal regulations) (on file with the Washington and Lee Law Review). 2. See id. (tracking policies that have been overturned, or which are in the process of being overturned, through the administrative, executive, legislative, and judicial processes). monuments.3 One of the most serious retreats is the proposal to freeze fuel efficiency standards for cars and trucks through 2026.4 The federal government?s retreat focuses attention on state, local, and private initiatives.5 As part of the complex legal environment, this Article examines remedies for private nuisances. With an eye to augmented private-law nuisance and related trespass remedies, it argues for more and more-detailed injunctions as environmental remedies. The injunction is the remedy that a court can use to forbid misconduct and order positive conduct. In public-law regulatory litigation, the court?s choice is between an injunction and nothing.6 But in the private-law litigation this Article examines, the court?s choice is between an injunction and damages.7 Two barriers to a more robust environmental injunction have passed their fortieth birthdays and are primed for mid-life crises 3. See Regulatory Rollback Tracker, ENVTL. L. AT HARV., http://environment.law.harvard.edu/policy-initiative/regulatory-rollback-tracker/ (last updated Sept. 25, 2018) (last visited Dec. 3, 2018) (tracking key regulatory rollbacks of the Trump Administration, including rollbacks having to do with the Paris Climate Agreement, Clean Power Plan, Clean Water Rule, and reduced size of national monument land) (on file with the Washington and Lee Law Review). See also Richard L. Revesz, Opinion, On Climate, the Facts and Law are Against Trump, N.Y. TIMES (Dec. 4, 2018) , https://www.nytimes.com/2018 /12/04/opinion/climate-report-trump.html (last visited Dec. 10, 2018) (on file with the Washington and Lee Law Review). 4. See Brady Dennis & Michael Laris, California Blasts Trump Proposal to Freeze Fuel-efficiency Standards as ?Flawed? and ?Illegal?, WASH. POST (Oct. 26, 2018), https://www.washingtonpost.com/national/health-science/californiablasts-trump-proposal-to-freeze-fuel-efficiency-standards-as-nihilistic-andillegal/2018/10/25/86fedb76-d8a6-11e8-83a2d1c3da28d6b6_story.html?utm_term=.eec49c826e9f (last visited Dec. 3, 2018) (discussing California?s resistance to this measure) (on file with the Washington and Lee Law Review). 5. See Karen Sloan, NYU Law Center to Help State AGs Protect Environment, LAW.COM (Aug. 21, 2017, 2:30 PM), https://www.law.com/sites/almstaff/2017/08/21/nyu-law-center-to-help-state-agsprotect-environment/ (last visited Dec. 3, 2018) (?New York University initiated a State Energy & Environmental Impact Center for state governments to turn to as a resource in developing state and local efforts.?) (on file with the Washington and Lee Law Review). See generally Mark Nevitt & Robert V. Percival, Could Official Climate Denial Revive the Common Law as a Regulatory Backstop?, 96 WASH. U. L. REV. 441 (2018). and reconsideration. These are the New York Court of Appeals? decision in Boomer v. Atlantic Cement8 and Calabresi and Melamed?s nearly contemporaneous Cathedral article.9 This Article will re-examine both to bring some perspective to their remarkable longevity and their influence in favoring damages over injunctions, to express skepticism about each, and to develop qualifications and refinements. Major among other pressing environmental problems, global warming and climate change defy a single solution.10 Ameliorative techniques range from altering individual habits to local, regional, national, and international measures.11 Both private-law approaches, like nuisance, and public-law regulation, litigation and regulation are available legal techniques against global warming and climate change.12 Sympathetic with augmented protection for the environment, I wrote this Article from my perspective in the remedies branch of process-oriented legal realism. By arguing for more and more-detailed injunctions, I hope to strike a small blow against environmental deterioration, including, in the long run, global warming and climate change. After short introductions, this Article turns in Part II to the example of a neighboring property owner?s particulate-pollution private-nuisance lawsuit based on Boomer. The Article moves in Part III to the Cathedral article?s four options for a nuisance court?s solution to the pollution problem. It discusses each of the options and the choices between them. In brief, Boomer and the Cathedral article favor damages over injunctions and militate against optimal pollution remedies.13 Part IV adds some further considerations and suggestions under a new general head of ?Rule 5.? The final Part V before the Conclusion, Part VI, explains procedural considerations related to the plaintiff?s injunction remedy. A. Remedy A remedy, as this Article uses the term, is what a court can do for a successful plaintiff. The antecedent issue of the defendant?s substantive liability is distinct from, but not divorced from, the later question of the plaintiff?s remedy.14 ?[T]he creation of a right,? Justice Thomas wrote in eBay v. MercExchange, L.L.C.,15 ?is distinct from the provision of remedies for violations of that right.?16 The successful plaintiff?s remedy should advance, at least it should not retard, the substantive law?s policy. Except in one segment, this Article assumes that the defendant is liable to the plaintiff under the substantive law and examines what the court can do as a remedy for the successful plaintiff. The court?s remedial inquiry invokes its judgment on two general issues. First, the court must choose the plaintiff?s remedy. In this Article, the court?s principal choice is how to deploy two remedies, compensatory damages and an injunction.17 The court?s ancillary remedial choices concern punitive damages and restitution.18 Second, after choosing the plaintiff?s remedy, the court must measure or define it.19 If the court, judge or jury, awards the plaintiff compensatory damages, what amount should they be?20 If the court grants the plaintiff an injunction, what of the defendant?s conduct should it require or forbid?21 B. Regulation Versus Litigation But, someone will ask, isn?t environmental administrative law top-down regulation based on federal statutes instead of litigation-based, state common law trespass and nuisance? Federal regulation is necessary and has been successful for many national problems. Decentralized private tort litigation, in addition to compensating individuals, complements public regulation.22 As Professor Klass has shown, state common law is an important part of environmental protection.23 Mr. Abelkop has added: [E]nvironmental and public health problems call for multiple policy instruments, and tort law and public regulatory rules usually operate as complements, not substitutes . . . . Ultimately, the choice of policy instruments will turn on contextual factors including the nature of the problem, the attributes of the parties involved, the political climate, the available data, and some manifestation of the evaluative criteria.24 The Trump Administration?s retreat increases private law?s role.25 Lawyers seeking to protect the environment have numerous reasons to turn to state common law nuisance and trespass. State and federal regulation may be absent, lax, or difficult to enforce.26 Government regulation may move at a snail?s pace.27 An agency may be captured by the industry it is charged to regulate.28 Legislators may be in thrall to campaign contributors.29 The plaintiffs may be powerless minorities who lack representation in the legislature or a voice in the agency.30 Regulation has gaps; examples are gasoline storage tanks and fracking.31 The regulatory scheme may lack important remedies, compensatory damages, punitive damages, restitution, and injunctions. ?Regulation? through common law courts? civil injunctions may be flexible enough to allow innovative solutions.32 In 2017, California coastal communities filed climate-control actions for damages against energy companies because of expected costs from rising sea levels.33 In 2017 and 2018, Boulder, Colorado, New York City, and other municipal governments prepared and filed climate-change public nuisance, private nuisance, and trespass lawsuits against 27. See Stuart Shapiro, Why does it Take so Long to Issue a Regulation?, HILL (May 19, 2015, 7:30 AM), http://thehill.com/blogs/pundits-blog/theadministration/242468-why-does-it-take-so-long-to-issue-a-regulation (last visited Dec. 3, 2018) (on file with the Washington and Lee Law Review). 28. See Scott Hempling, ?Regulatory Capture?: Sources and Solutions, 1 EMORY CORP. GOVERNANCE ACCOUNTABILITY & REV. 23, 24?25 (2014) (defining regulatory capture as a situation in which the regulated entity ?has more influence than what the public interest requires?). energy companies.34 As Professor Sharkey wrote, common law courts should ?effectively incorporate input from federal agencies, while at the same time ensuring that such agencies do not overreach.?35 C. Rational Choices, Behavioral Economics, and Positive Law This Article presents two perspectives for analyzing legal and economic decision-making. On the one hand, a theory-driven economic-analysis approach bases human decisions on economic motives and often finds clear-cut answers.36 On the other hand, a pragmatic and empirical view recognizes that human nature is variable and that law is ambiguous and process driven.37 The rise of behavioral economic scholarship has strengthened this 34. Eric Waeckerlin & Christopher Chrisman, Coming to Colorado?Climate Change Nuisance Suits, HOLLAND & HART LLP (Jan. 29, 2018), https://www.hollandhart.com/coming-to-colorado-climate-change-nuisance-suits (last visited Dec. 3, 2018) (on file with the Washington and Lee Law Review). These lawsuits raise complex defensive, proof, and procedural issues that this Article does not examine. Among them are standing, class action certification, causation, public versus private nuisance, federal preemption and displacement. See Good v. American Water Works Co., No. 2:14-01374, 2015 WL 3540509, at *3, *8?10 (S.D. W. Va. June 4, 2015) (discussing economic loss rule and public-private nuisance); Smith v. ConocoPhillips Pipe Line Co., 801 F.3d 921, 927 (8th Cir. 2015) (refusing a nuisance class action); Price v. Martin, 79 So. 3d 960, 977 (La. 2011) (refusing to certify state-court plaintiff class); Merrick v. Diageo Americas Supply, 805 F.3d 685, 695 (6th Cir. 2015) (finding that the federal Clean Air Act does not preempt state common law tort claims); Bell v. Cheswick Generating Station, 734 F.3d 188, 197 (3d Cir. 2013) (finding that federal Clean Air Act did not preempt state common law tort claims), cert. denied, 134 S. Ct. 2696 (2014); Freeman v. Grain Processing Corp., 848 N.W.2d 58, 94 (Iowa 2014) (finding that federal Clean Air Act does not preempt state common law tort claims); American Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410, 422?23 (2011) (stating that the Clean Air Act displaces federal common law emissions-abatement lawsuit and putting into question state lawsuits against pollution that originated outside its borders); Anderson v. Teck Metals, Ltd., No. CV-13-420-LRS, 2015 WL 59100, at *10 (E.D. Wash. Jan. 5, 2015) (finding that in a pollution lawsuit against a Canadian defendant, CERCLA displaces federal common law public nuisance, and that state public nuisance law was inapplicable outside the state). 37. See SCOTT J. SHAPIRO, LEGALITY 256 (2011). approach. Differing basic ways of looking at the law emerge below. How does human decision-making work? Taking my cue from behavioral economic scholarship and earlier Legal Realists, Felix Cohen38 and Leon Green,39 I argue that the pragmatic and functional approach should supplement or replace theory. The Cathedral article, which emphasized that it takes only ?one? view of the Cathedral, left room for other views.40 Judge Calabresi?s 2016 book assimilates behavioral economics, another view, and rejects dogmatic economic theory that elevates micro-theory over law; his book favors economics that are flexible enough to accept positive-law developments.41 Professor Hackney maintains that then-professor Ca labresi?s scholarship in the 1970 s was a precursor for behavioral economics.42 The Cathedral article is more tentative and nuanced than many later more theory-driven and dogmatic economic-analysis scholars.43 This Article follows Judge Calabresi?s later work and refers to the theory-driven view as economic analysis. Although they have been supplemented by professionally trained economists, the Cathedral article and other early law and economics studies were written by economic autodidacts.44 Early law-and-economics scholars emphasized a rational-choice perspective.45 The rational-choice model holds that people make planned and controlled decisions to advance their personal economic utility.46 Economic-analysis scholarship seeks the most efficient way to resolve a dispute.47 In contrast to most remedies scholarship, it looks to the future through deterrence by signaling economic incentives to a potential defendant to prevent future casualties and to identify the lowest cost avoider.48 Deterrence is prospective not retrospective. The seeker for deterrence may view the plaintiff?s receipt of compensatory damages as almost incidental. Deterrence is less connected to either the parties? present litigation or to the plaintiff?s actual or potential loss. It is more of a reason to take money from the defendant than it is a reason to give the defendant?s money to the plaintiff. Court decisions, legal reasoning based on values, policies, and legal rules, in contrast, usually examine money transfers from the defendant to the plaintiff under the heading of compensation in addition to lower-priority deterrence and punishment.49 Economic analysis? vocabulary is difficult even for a specialist to decode, what?s more a merely educated lawyer.50 It is too abstruse for most lawyers and judges.51 And it is inaccessible, and sometimes imperfectly applied.52 Written for a scholarly audience, it may cloak a conservative political agenda that favors business defendants over tort plaintiffs and de-emphasizes environmental protection. Contemporary behavioral economics, based on empirical research, qualifies and rejects rational-choice theory: Standard economics assumes that we are rational?that we know all the pertinent information about our decisions, that we can calculate the value of the different options we face, and that we are cognitively unhindered in weighing the ramifications of each potential choice. The result is that we are presumed to be making logical and sensible decisions . . . . On the basis of these assumptions, economists draw far-reaching conclusions about everything from shopping trends to law to public policy. But, . . . we are all far less rational in our decision making than standard economic theory assumes . . . . So wouldn?t it make sense to modify standard economics and move away from naive psychology, which often fails the tests of reason, introspection, and?most importantly?empirical scrutiny? Wouldn?t economics make a lot more sense if it were based on how people actually behave, instead of how they should behave?53 People are not always rational maximizing machines. They are emotional and error-prone cusses who often act contrary to their own pecuniary self-interest.54 ?Our species is not Homo economicus. At the end of the day, it emerges as something more complicated and interesting. We are Homo sapiens, imperfect beings, soldiering on with conflicting impulses through an unpredictable, implacably threatening world, doing our best with what we have.?55 The behavioral limits on rational choice comprise bounded rationality, bounded willpower, and bounded self-interest.56 One behavioral legal economist insisted that ?[t]he battle to separate the economic analysis of legal rules and institutions from the straightjacket of strict rational choice assumptions has been won by the proponents of ?behavioral law and economics.??57 However, some readers? reactions to a draft of this Article showcased the durability of rational-choice sentiment. ?The purpose of studying economics[,]? English economist Joan Robinson wrote, ?is not to acquire a set of ready-made answers to economic questions, but to learn how to avoid being 53. DAN ARIELY, PREDICTABLY IRRATIONAL: REVISED AND EXPANDED EDITION: THE HIDDEN FORCES THAT SHAPE OUR DECISIONS 317 (2009). 54. See DANIEL KAHNEMAN, THINKING, FAST AND SLOW 4 (2011). 55. EDWARD O. WILSON, THE SOCIAL CONQUEST OF EARTH 251 (2012). 56. See RICHARD H. THALER, MISBEHAVING: THE MAKING OF BEHAVIORAL ECONOMICS 258 (2015). 57. Russel Korobkin, What Comes After Victory for Behavioral Law and Economics?, 2011 U. ILL. L. REV. 1653, 1653 (2011). deceived by economists.?58 I am not a stranger to economic analysis.59 Nevertheless, I agree with Professor Sterk?s observation that ?any attempt to justify legal rules exclusively in efficiency terms is fatally flawed.?60 The major part of my analysis is common law, usually what has happened in the courts throughout the land. One impediment the legal scholar encounters is the vacuum that he must fill with research. Theory-driven approaches, on the other hand, can state the problem, turn the theory?s crank, and announce the result that emerges. As Professor Douglas Laycock observed, ?many law-and-economics scholars,? who follow economic theory, exhibit disinterest ?in reading cases or mastering doctrine.?61 Research in primary sources can be dull and frustrating, but it is indispensable to responsible scholarship. The United States has no single private-law court. Each state and the District of Columbia has its own procedure, legal culture, economy, and legal system with final appellate last-word in its own supreme or other final court. Restatements, national treatises, and scholarship in law reviews supply some uniformity. Terminology varies within and between systems. By the time many of the decisions under study reach appeal, the legal questions are close enough to be decided either way. Moreover, judges write decisions that support the result they reach. Courts, the researcher finds, muddle through, often reaching contrasting and inconsistent 58. JOAN ROBINSON, MARX, MARSHALL AND KEYNES 30 (1955). 59. I co-authored one of the first law school applications of Tom Schelling?s game theory; see Chapter 13 of OWEN M. FISS & DOUG RENDLEMAN, INJUNCTIONS (2d ed. 1984), now Chapter 9 of DOUG RENDLEMAN, COMPLEX LITIGATION: INJUNCTIONS, STRUCTURAL REMEDIES, AND CONTEMPT (2010 ) (discussing the injunction and its relation to game theory). Additional economic analysis can be found in DOUG RENDLEMAN & CAPRICE L. ROBERTS, REMEDIES 46?48 (discussing lost earning capacity), 46?48 (discussing wrongful death damages), 68?69 (discussing pain and suffering damages), 116 (discussing the collateral source rule), 360 (discussing the preliminary injunction standard), 722?25 (discussing expectancy damages for breach of contract), 786?809 (discussing ?efficient? opportunistic breach of contract), 842?43 (discussing special-consequential damages), 876?84 (discussing lost-volume sellers), 884?900 (discussing liquidated damages) (9th ed. 2018). 60. Stewart E. Sterk, Neighbors in American Land Law, 87 COLUM. L. REV. 55, 104 (1987). 61. Douglas Laycock, The Neglected Defense of Undue Hardship (And the Doctrinal Train Wreck in Boomer v. Atlantic Cement), 4 J. TORT L. 1, 20 (2012). decisions on similar facts.62 Research in appellate and some trial-court decisions is imperfect and messy. The positive-law writer must discover what the courts decide in actual disputes. This requires him to find and read court decisions, mostly appellate, which reflect the universe of disputes. This research is difficult and imprecise. Its conclusions are often tentative. The late Christopher Lasch observed that: [W]e have writing in which theory, so-called, is allowed to set the questions and determine the answers in advance. Theory, so-called, has become the latest panacea, the latest source of ready-made answers, the latest substitute for thought. Thinking is hard work and often very frustrating, since it only seems to yield provisional conclusions and to leave one in a greater muddle than ever, and so intellectuals yearn to be released from that burden, to find some secret formula that will give them definitive, comforting answers and make it unnecessary for them to go through this terrible labor of thought.63 I have tried to find and analyze factually similar nuisance and encroachment decisions. Several related bodies of tort, property, environmental, and remedies law compete for the researcher?s attention?mistaken improver, adverse possession, easements, pollution control, and, if a government agency is involved, eminent domain. I summarize decisions to illustrate and support my points. II. Boomer v. Atlantic Cement This Article turns to the archetype land-use dispute, Boomer v. Atlantic Cement.64 Atlantic Cement?s factory was emitting particulate pollution that distressed surrounding property owners.65 What is neighbor Boomer to do? Although there were multiple plaintiffs, for clarity and simplification, this Article sometimes uses the singular for the plaintiff side of the lawsuit. How should the court respond? An environmental tort is major complex litigation with several substantive theories: nuisance, trespass, negligence, strict liability, and violation of environmental statutes, such as CERCLA.66 For clarity and simplification, this Article focuses on nuisance and trespass. The Boomer court accepted Atlantic Cement?s substantive tort liability for a private nuisance.67 It focused on plaintiff Boomer?s remedy.68 The court considered the utility of Atlantic Cement?s development and the plant?s harm to plaintiff?s use and decided that the plant had greater ?value? than Boomer?s use of his property.69 The court granted the ?winning? plaintiff compensatory damages instead of an injunction.70 ?From the attempt to maintain the sanctity of rights in property against social encroachment came a de facto, but not de jure, damage remedy for injuries to rights in land otherwise abatable by injunction,? my late colleague Professor Louise Halper concluded.71 The court was influenced by the negative impact that shuttering the factory would have on the local economy.72 As the dissent points out, however, an injunction wouldn?t necessarily have ended the defendant?s operation.73 The dissent also emphasized the cement company?s power to take now and pay later as well as the pollution?s deleterious effect on public health.74 The New York Court of Appeals? Boomer decision has held its law school audience for generations.75 First-year Property and Torts casebooks feature Boomer as a principal case along with Spur Industries, which is discussed below.76 Because of the court?s choice between damages and an injunction in environmental litigation, Boomer is also a natural teaching case for upper-level 76. For property casebooks with Boomer and Spur as principal cases, see JOHN E. CRIBBET, ROGER W. FINDLEY, ERNEST E. SMITH & JOHN S. DZIENKOWSKI, PROPERTY: CASES AND MATERIALS 679?88 (9th ed. 2008) (presenting Boomer and Spur); JESSE DUKEMINIER, JAMES E. KRIER, GREGORY S. ALEXANDER, MICHAEL H. SCHILL & LIOR JACOB STRAHILEVITZ, PROPERTY 742?58 (9th ed. 2018) (presenting the cases in what is probably the most widely used casebook); THOMAS W. MERRILL & HENRY E. SMITH, PROPERTY: PRINCIPLES AND POLICIES 965?83 (3rd ed. 2012) (presenting Boomer and Spur). However, one casebook summarizes Boomer and Spur in Notes and names the injunction and damages as possible remedies. See DAVID L. CALLIES, DANIEL R. MANDELKER, & J. GORDON HYLTON, PROPERTY LAW AND THE PUBLIC INTEREST: CASES AND MATERIALS 153?54 (4th ed. 2016). For torts casebooks containing either case, see GEORGE C. CHRISTIE, JOSEPH SANDERS & W. JONATHAN CARDI, CASES AND MATERIALS ON THE LAW OF TORTS 1230?40 (5th ed. 2012) (presenting Boomer as a principal case, with Spur in the notes); RICHARD A. EPSTEIN & CATHERINE M. SHARKEY, CASES AND MATERIALS ON TORTS 612 (11th ed. 2016) (presenting Boomer as a principal case); MARC A. FRANKLIN, ROBERT L. RABIN, MICHAEL D. GREEN & MARK A. GEISTFELD, TORT LAW AND ALTERNATIVES 688?702 (10th ed. 2016) (presenting Boomer as a principal case, with Spur in the notes); JOHN C. P. GOLDBERG, ANTHONY J. SEBOK & BENJAMIN C. ZIPURSKY, TORT LAW: RESPONSIBILITIES AND REDRESS 866 (4th ed. 2016) (beginning presentation of Boomer); VICTOR E. SCHWARTZ, KATHRYN KELLY & DAVID F. PARTLETT, PROSSER, WADE AND SCHWARTZ?S TORTS: CASES AND MATERIALS 867?77 (13th ed. 2015) (presenting Boomer and Spur as principal cases). courses in Remedies77 and Environmental Law.78 Scholars have written important chapters and leading articles about the remedies issues in Boomer.79 77. See Candace S. KOVACIC-FLEISCHER, JEAN C. LOVE & GRANT S. NELSON, EQUITABLE REMEDIES, RESTITUTION AND DAMAGES: CASES AND MATERIALS 803?23 (8th ed. 2011) (presenting Boomer and Spur as principal cases); GEORGE KUNEY, EXPERIENCING REMEDIES 482?88 (2015) (presenting Boomer); DOUGLAS LAYCOCK & RICHARD L. HASEN, MODERN AMERICAN REMEDIES: CASES AND MATERIALS 419?22 (5th ed. 2019) (presenting Boomer and Spur in note discussions); DOUG RENDLEMAN & CAPRICE L. ROBERTS, REMEDIES: CASES AND MATERIALS 1208?15 (9th ed. 2018) (presenting Boomer as a principal case, referencing Spur in the notes); EMILY SHERWIN & SAMUEL L. BRAY, AMES, CHAFEE, AND RE ON REMEDIES: CASES AND MATERIALS 478?87 (2nd ed. 2018) (Boomer and Spur presented as principal cases); ELAINE W. SHOBEN, WILLIAM MURRAY TABB, RACHEL M. JANUTIS & THOMAS ORIN MAIN, REMEDIES: CASES AND PROBLEMS 88?94, 410?11 (6th ed. 2016) (presenting Boomer, with Spur in the notes); TRACY A. THOMAS, DAVID I. LEVINE & DAVID J. JUNG, REMEDIES: PUBLIC AND PRIVATE 137?38 (6th ed. 2017) (referencing Boomer within Walgreen Co. v. Sara Creek Property Co., 966 F.2d 273 (7th Cir. 1992)); RUSSELL L. WEAVER, DAVID F. PARTLETT, MICHAEL B. KELLY & W. JONATHAN CARDI, REMEDIES: A CONTEMPORARY APPROACH 330?40 (4th ed. 2016) (presenting Boomer and Spur in section on experimental and conditional injunctions); see also DOUG RENDLEMAN, COMPLEX LITIGATION: INJUNCTIONS, STRUCTURAL REMEDIES, AND CONTEMPT 178?94 (2010) (presenting Boomer, with Spur in the notes). The Torts and Property courses at Washington and Lee and many other law schools have been attenuated to four credit hours each. I have sometimes found in my upper-level Remedies class that none of the students have covered Boomer in their first year of law school, a pity. 78. ROBERT PERCIVAL, CHRISTOPHER H. SCHROEDER, ALAN S. MILLER & JAMES P. LEAPE, ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 79?80 (8th ed. 2018) (including Boomer as part of a discussion on private nuisance written to maintain that private nuisance is ?grossly inadequate? for addressing modern industrial pollution). This Article, on the other hand, maintains that private nuisance has a role in dealing with pollution. 79. See, e.g., Daniel Farber, Reassessing Boomer: Justice, Efficiency, and Nuisance Law, in PROPERTY LAW AND LEGAL EDUCATION: ESSAYS IN HONOR OF JOHN E. CRIBBET 7, 17 (Peter Hay & Michael H. Hoeflich eds., 1988) ; Daniel A. Farber, The Story of Boomer: Pollution and the Common Law, in ENVIRONMENTAL LAW STORIES 7, 20, 22, 23 (Oliver A. Houck & Richard J. Lazarus eds., 2005) ; W. Page Keeton & Clarence Morris, Notes on ?Balancing the Equities?, 18 TEX. L. REV. 412, 412?25 (1940); Alexandra B. Klass, Common Law and Federalism in the Age of the Regulatory State, 92 IOWA L. REV. 545, 571?76 (2007); Laycock, supra note 61, at 1?2; John P. S. McLaren, The Common Law Nuisance Actions and the Environmental Battle?Well-Tempered Swords or Broken Reeds?, 10 OSGOODE HALL L.J. 505, 547 (1972); A. Mitchell Polinsky, Resolving Nuisance Disputes: The Simple Economics of Injunctive and Damage Remedies, 32 STAN. L. REV. 1075, 1075 (1980); Henry E. Smith, Property and Property Rules, 79 N.Y.U. L. REV. 1719, 1719?21 (2004); Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 VA. L. REV. 965, 974?75 (2004) (discussing information-cost theory, compensatory damages, compensated injunctions, and Boomer, Professor Farber concludes, lives on in law school because it is ?a great teaching tool . . . . Generations of law students have wondered whether, in this battle between David and Goliath, Goliath should walk away so apparently unscathed, leaving a battered David with nothing but a few coins for his trouble.?80 However, many scholars, law teachers, and other observers, including many Washington and Lee law students, favor the Boomer court?s damages-only remedy, a position that this Article reprobates.81 For my pedagogical purposes, however, the Boomer decision performs an important service because the teaching value of a simple, but faulty, decision is clear.82 The reason Professor Laycock refers to the Boomer decision as a ?train wreck? is that the Court of Appeals rewrote doctrinal history without acknowledging that it had.83 The court started with the inaccurate premise that the New York common law of nuisance remedies required a judge to grant a nuisance plaintiff an injunction when the plaintiff?s loss from the defendant?s activity was ?substantial.?84 Thus, if the plaintiff?s loss surmounted that minimum threshold, the judge would grant an injunction without considering what it cost the defendant to abate the nuisance.85 The Boomer court claimed an innovation for its decision to compare plaintiffs? benefit from an injunction, which it stated as permanent the exclusion regime); Henry E. Smith, Intellectual Property as Property: Delineating Entitlements in Information, 116 YALE L.J. 1742, 1742 (2007) (employing information-cost theory to compare ?the more tort-like copyright regime and the more property-like patent law?); Stewart E. Sterk, Property Rules, Liability Rules, and Uncertainty About Property Rights, 106 MICH. L. REV. 1285, 1285 (2008); John W. Wade, Environmental Protection, The Common Law of Nuisance and the Restatement of Torts, 8 F., ABA SECT. INSURANCE, NEGLIGENCE, & COMPENSATION L. 165, 174 (1972); Barton H. Thompson, Jr., Note, Injunction Negotiations: An Economic, Moral, and Legal Analysis, 27 STAN. L. REV. 1563, 1563 (1975) (discussing negotiations regarding property right enforcement in the form of injunctions and the contempt proceedings that may follow); Comment, Internalizing Externalities: Nuisance Law and Economic Efficiency, 53 N.Y.U. L. REV. 219, 219?20 (1978) (discussing economic efficiency and nuisance law with reference to Boomer). 80. Farber, supra note 75, at 42. 81. See id. 82. See id. 83. Laycock, supra note 61, at 7?8. 84. Boomer v. Atlantic Cement Co., 257 N.E.2d 870, 872 (N.Y. 1970). 85. See id. damages of $185,000 with defendant?s cost to comply with a shutdown injunction, closing a $45,000,000 plant and dismissing over 300 workers.86 As Pr ofessor Halper demonstrated in 1990 , however, the Boomer decision was really nothing new for New York.87 The Boomer court had overlooked a ?large body of [New York] law on undue hardship.?88 ?Boomer was no innovation,? Laycock also concluded in 2012 after he ?independently reviewed? Halper?s research and ?further confirmed her general account.?89 This Article will, in addition, criticize the Boomer decision below as badly reasoned and incorrectly decided. A. Pollution, Nuisance, and Trespass Should a property owner like Boomer, who lives on the edge of an industrial site, be subjected to the health hazards and uncompensated property depreciation caused by a cement factory?s particulate pollution? The factory?s operation interferes with the owner?s enjoyment, indeed his possession, of his land. In economists? parlance, an industrial proprietor?s negative externality is the incidental harmful effect that its activity has on others, an effect that the proprietor is not legally responsible for and may ignore.90 A negative externality means that the proprietor has captured the benefits of its operation while distributing some of its costs to others.91 A court may create legal responsibility for the proprietor?s activity and define remedial consequences that force it to consider the affected property owners.92 The court?s remedial decision will structure the proprietor?s incentives to ?internalize the with one another)??400 Courts exist to resolve bitter disputes that the parties cannot. In a civilized society, the court cannot let the lawbreaker?s enmity and obduracy, even mutual enmity, hold the plaintiff?s rights prisoner. Laycock commented that ?small-scale studies cast doubt on [the] assumption [of the parties? post-injunction negotiation].?401 I invite empirical study, though designing an experiment to study prolonged and bitter interpersonal conflict in the real or experimental world will be, to say the least, difficult. One approach, game theory, is based on rational adversaries, which many disputants are not.402 The economic-analysis picture of nuisance builds on the parties? post-injunction negotiation that may not happen in real life. In other words, it is based on an over-simplified theory-based view of human nature that exaggerates litigants? ?rational? economic behavior and decision-making based on economic motives of self-interest and de-emphasizes real litigants? emotional and cultural responses to actual conflict.403 Humans are quirky and unpredictable critters often blown off a rational course by emotional whims and crosscurrents. A court deciding whether to grant a nuisance or trespass plaintiff an injunction or to award damages should de-emphasize, sometimes ignore, the scholars? rational-choice theory that the parties? self-interest will lead them to post-injunction negotiation. There should be no presumption, no blanket rule, about negotiation. Many ?more mundane? nuisance lawsuits like neighborhood conflicts ?display claims in which feelings and a sense of right and wrong predominate over economic concerns . . . . The time has not yet arrived when the idiosyncratic, emotional side of the law can be ignored . . . .?404 The judge should decide whether to predict negotiation anew in the factual context of each discrete dispute. Post-injunction negotiation between opponents in commercial litigation, patent disputes for example, seems more likely. Although some patent litigation is between ?strangers,? most serious patent disputes start with negotiation for a license and, if parley founders, proceed to a cease-and-desist or demand letter before suit is filed.405 Since the parties are usually business entities that have been negotiating all along, no-one should be too surprised to learn that negotiation continues after preliminary injunctions, permanent injunctions, and while an appeal is pending or after it is decided. In eBay v. MercExchange, L.L.C.,406 the parties? negotiation continued after the trial judge, on remand from the Supreme Court, denied eBay?s motion for an injunction.407 The parties settled this bitter and protracted lawsuit.408 F. Rule 4: Winner Pays We have examined three of the Cathedral article?s solutions: Rule 3 no-liability, holding for the defendant; Rule 1 granting the plaintiff an injunction; and Rule 2 awarding the plaintiff damages. The Cathedral article?s fourth solution is Rule 4, a hybrid remedy: the court grants the plaintiff an injunction, but it orders the ?winning? plaintiff to pay the defendant, hence a ?compensated injunction.?409 In the universal example of Rule 4, the Arizona Supreme Court employed a compensated injunction in Spur Industries, Inc. v. Del E. Webb Development Co.410 Del Webb developed and built Sun City, which catered to retired people in what was then a sparsely populated area near defendant?s cattle feedlot.411 The developer expanded its residential development toward defendant?s feedlot.412 Litigation followed in the advance?s wake.413 Although the retired homeowners had ?moved to the nuisance,? because of flies, insects, or disease, the feedlot was a nuisance.414 The homeowners were, the court held, entitled to an injunction.415 However, the homeowners? position tempered the remedy.416 The court required the developer, who was more at fault than the homeowners, to pay defendant?s expenses of shutting down its feedlot and moving it.417 Although the court held that defendant?s feedlot was an enjoinable nuisance, it used defendant?s ?coming-to-the-nuisance? defense at the remedy stage to require the developer-plaintiff to pay the cost of moving defendant?s feedlot away from residential areas.418 Law school casebooks often include Spur after Boomer as a principal nuisance case.419 However, not even in a classroom hypothetical could we expect the homeowners in Boomer to be able to pay to move Atlantic Cement?s plant.420 Del Webb, the developer, was the source of the funds, not the homeowners; given time for a transition, if no new calves were added and finished steers were sold, it wouldn?t be too complex and expensive for the feedlot to leave vacant lots where new lawns would be greener.421 Spur ?has not been followed by other courts.?422 The possibility of a plaintiff-pays solution would repel possible plaintiffs.423 Because so far as a legal researcher can learn, no other court has ever followed it in private nuisance or trespass litigation, the attention scholars and casebook editors pay to Spur needs to be explained. Spur, if not a one-off solution, is an outlier.424 Is casebook coverage misplaced, even odd?425 Boomer and Spur, even if the instructor criticizes both, are beneficial teaching cases because they show students courts? flexibility in choosing between damages and an injunction followed by developing the injunction?s terms.426 In my opinion, the Spur approach also fails in private trespass and nuisance litigation because it doesn?t consider proportion, fairness, and the utility of the parties? activity. Spur deserves to be isolated in private nuisance and trespass litigation because the notion that the winning plaintiff should pay the losing defendant destabilizes owners? private property rights.427 Professor Richard Epstein called Rule 4 ?[an] enormous risk,? ?grotesque,? ?misguided,? and ?wholly subversive of any account of ordinary property rights.?428 421. See Spur Indus., Inc. v. Del E. Webb Dev. Co., 494 P.2d 700, 704 (Ariz. 1972). 422. JOHN G. SPRANKLING, UNDERSTANDING PROPERTY LAW 514 (4th ed. 2017) ; see also FARNSWORTH, supra note 181, at 195 (noting that Rule (4) is ?rarely? used in litigation); DOBBS & ROBERTS, supra note 119, at 538 (?So far, however, other courts have not had occasion to employ the compensated injunction, much less to extend it.?). Professor Bray, however, finds an analogy to the compensated injunction in the Maxim ?those who seek equity must do equity.? Bray, supra note 49, at 78. 423. See CALABRESI, supra note 41, at n.51 (explaining that reverse damages create a ?free-rider? problem where many potential plaintiffs in a nuisance action would not join in litigation in hopes that others would bear the cost). 424. See SPRANKLING, supra note 422, at 514. 425. See Smith, supra note 252, at 1007?10. 426. See Spur, 494 P.2d at 707. 427. See Smith, supra note 252, at 1010, 1044. 428. Epstein, supra note 259, at 2103?05. Spur Industries? compensated-nuisance injunction has joined nuisance parties? post-injunction negotiation in law school classroom hypotheticals. But does it otherwise rest idly on the economists? shelf? Rule 4, however, isn?t dead.429 A comprehensive, accurate view of legal reality includes settlements, other private remedies, and public regulation.430 The parties in a land-use dispute could negotiate a Spur-type compensated injunction as a private settlement. Before mutual enmity develops, they might consider a plaintiff-pays-defendant solution when anticipated litigation costs will be high and the plaintiff?s gain from ending the defendant?s tort exceeds the defendant?s loss from ceasing its challenged activity. Another possible plaintiff-pays solution occurs in employment litigation about a former employee?s covenant not to disclose or compete. Requiring an employer who is enforcing a covenant against a former employee to pay the former employee?s salary and benefits during her period of unemployment, Ms. Passi uses the Rule 4 compensated injunction as an analogy to the United Kingdom doctrine of garden leave.431 Finally, the Cathedral?s co-architect, Mr. Melamed, cites examples based on his experience in the Antitrust Division of the Department of Justice, in the inner-beltway?s world of government regulation.432 These examples, he says, demonstrate that ?Rule 4 is alive and well?at least in Washington.?433 Rule 4, however, should not qualify as a viable solution in assessing positive-law remedies for trespass and nuisance in private litigation. IV. Rule 5: Does the Cathedral Have Too Many or Too Few Rooms? The Cathedral article?s four approaches are both too many and too few. A. Too Many Rooms The Cathedral article?s four approaches to remedies are too many because, as noted above, Rule 3, a court?s no-liability decision, isn?t a remedy.434 Also common law courts? decisions that implement Rule 2, find a nuisance exists, decline to enjoin, and grant the plaintiff damages are scarce.435 Moreover, since the single example of Spur, Rule 4, the winner-pays, compensated injunction, is rare indeed today, perhaps extinct in private trespass and nuisance litigation.436 B. Too Few Rooms The Cathedral doesn?t have enough rooms to house the court?s possible remedies for a defendant?s trespass or nuisance. In litigation that sheds light on the question of the defendant?s liability, as well as the choice of remedy, in 2007 in Fancher v. Fagella,437 the Virginia Supreme Court dealt with a next-door neighbor?s lawsuit about the defendant?s sweet-gum tree?s encroaching roots.438 The existing Virginia precedent for a neighbor?s tree-root invasion was a no-nuisance, Rule 3, approach that limited the encroached-upon landowner to self-help at the property line.439 The Virginia court, after concluding that the earlier precedent was obsolete in an urban setting,440 adopted a trespass-based substantive rule leading to the defendant?s liability 434. See supra notes 199?222 and accompanying text. 435. See supra notes 227?230 and accompanying text. 436. See supra notes 409?433 and accompanying text. 437. 650 S.E.2d 519 (Va. 2007). 438. See id. at 520. 439. See id. at 521. 440. See id. at 522. for an encroachment and to a possible injunctive remedy that hinged on the judge?s equitable discretion, exercised in the particular context.441 After appearing to balance the hardships, the Boomer court had moved from an injunction remedy to a no-injunction remedy.442 The Fancher court abandoned a no-remedy, no-injunction rule and adopted an opening for an injunction remedy.443 In the view taken here, Fancher?s liability decision and its broadened remedies present a superior approach for modern-day nuisance and trespass disputes as compared to Boomer v. Atlantic Cement?s move from an injunctive to a damages approach for a nuisance. We don?t know how later litigation and the Virginia trial judge?s equitable discretion might have resolved the choice of remedy because, shortly before the Virginia Supreme Court?s decision, Fagella, with a damages trial pending, cut down the aggressive sweet-gum, which effectively mooted Fancher?s prayer for an injunction.444 This bemused observer speculates that if the dispute had continued to an injunction, Fancher and Fagella would have been less than effusive to negotiate a settlement. Between amiable neighbors, however, a negotiated settlement would eliminate the time and expense of litigation and, if the non-tree owner agreed to split the cost of removal, might include a ?winner-pays? Rule 4 feature.445 1. The Standards Injunction The Boomer court?s bipolar choice between a shutdown injunction and damages is oversimplified. After selecting the plaintiff?s remedy, the second part of the court?s remedial analysis is to measure and define that remedy.446 The judge?s choice of remedy is broader than either a shutdown injunction or permanent damages.447 Positing a court?s choice of remedy as one between a shuttering injunction and awarding permanent diminution damages overlooks the refinements that grow out of the distinction between a defendant?s permanent trespass or encroachment and its temporary continuing tort. The court?s injunction may take many forms. Both the Boomer court and the Cathedral article neglect an important intermediate possibility between the defendant?s continuation and its shut-down. A court may deal with the defendant?s nuisance by allowing it to continue operation after minimizing its harmful or offensive activity, a ?standards? injunction.448 In 1927, Judge Learned Hand demonstrated this method of accommodating the conflicting interests of landowner and manufacturer in Smith v. Staso Milling Co.449 As Farber observed, the Boomer court?s majority opinion fails to consider the possibility of an injunction ?that would mitigate the harm to the plaintiffs, such as a lower level of operation, changes in the scheduling of blasting, [or] construction of barriers between the plaintiff?s land and the plant.?450 The judge has equitable discretion to employ a pragmatic experimental-conditional standards injunction that orders the defendant to add technology to control or reduce undesirable or unhealthy features as well as to limit the times and magnitude of operations and types of activity.451 The order may set time, place, and manner limits on pollution.452 The judge may require periodic reports and set timetables and goals.453 The judge?s standards-injunction script may read something like this: call for the parties to negotiate a consent decree, to come 446. See Fancher, 650 S.E.2d at 523. 447. See id. 448. See RESTATEMENT (SECOND) OF TORTS ? 941 cmt. e (AM. LAW. INST. 1979) ; DOBBS & ROBERTS, supra note 119, at 540?41. 449. See Smith v. Staso Milling Co., 18 F.2d 736, 738 (2d Cir. 1927). 450. Farber, supra note 75, at 20. 451. See Payne v. Skaar, 900 P.2d 1352, 1354 (Idaho 1995); Goeke v. Nat?l Farms, 512 N.W. 2d 626, 632 (Neb. 1994). 452. See Payne, 900 P.2d at 1354. 453. See Goeke, 512 N.W.2d at 632. back to the courtroom with plans to abate and coordinate. Conduct a hearing on the parties? plans or their proposed consent decree. Based on the best features of the plans, order the defendant to change the way it operates to end offensive features. Limit times, limit type of activity, require ameliorative devices. Call for a later periodic report. Set goals. Schedule another cycle of plans and hearings. The injunction will reserve the judge?s ability to modify the order in light of changed circumstances.454 Because of defendant?s improvements, the Iowa court, citing changed factual conditions, vacated an injunction that shut a cement plant down.455 The Supreme Court in 1907 granted the state of Georgia a ?standards? injunction,456 which several years later became a stop-unless-standards-are-met injunction.457 The standards injunction resembles a structural injunction in constitutional litigation. The structural injunction is a judicial technique to bring a large and complex institution into compliance with the law.458 Courts have used structural injunctions to end school segregation where it was required or permitted.459 Another branch of the structural injunction, developed by courts in Arkansas in the 1970s, brought prisons and jails into compliance with the law.460 Industrial pollution is another large and complex legal problem that is amenable to the structural injunction process. Courts? experience with structural injunctions against government defendants should convince judges that concern about supervision, about becoming managers rather than judges, is exaggerated.461 In the 1970s, courts didn?t have as much experience managing institutions as they do today. Federal school-desegregation litigation in the South was emerging from freedom-of-choice;462 courts had not begun to grant complex prison injunctions.463 Perhaps in the ear ly 1970 s, the New York Court of Appeals wasn?t ready to transfer judicial experience in operating institutions to industrial management and pollution control. That time has passed; the time is ripe for courts to grant structural-standards injunctions to ameliorate and control pollution. 2. Damages A nuisance plaintiff?s damages aren?t a set amount, diminution, or value before less value after. In 2016, Judge Calabresi rejected the idea that the nuisance plaintiff?s damages ?should mimic or approach the negotiated price that would obtain in a free market.?464 Instead damages might vary according to ?collective? judgments, sometimes below, sometimes equaling, sometimes above compensatory damages levels.465 The court can consider a plaintiff?s special damages, her personal injury damages, and damages based on buffer-zone value.466 The Iowa court, after first balancing the hardships to refuse plaintiffs an injunction,467 then added special damages to their permanent diminution damages: the plaintiffs? temporary damages may be rent-based and include their discomfort.468 Farber wrote that a judge who denies a nuisance plaintiff an injunction should measure his money recovery by the market value for buffer-zone rights instead of by value before less value after.469 On remand, Atlantic Cement, perhaps prodded by the trial court?s apparent buffer-zone measure of damages, bought out most of the plaintiffs to create the buffer zone that some observers think it should have purchased before it built its cement plant.470 Courts have flexible injunction-damages options for nuisance and trespass remedies. Consider, for example, the spectrum of options that the trial judge in Harrison, discussed above, had for defendant?s automobile shredder after the Court of Appeals remanded.471 The options included: (a) The judge could find that no nuisance exists; (b) The judge could change the earlier permanent nuisance decision to a temporary nuisance with temporary damages dating from its beginning to the date of trial and a shut-down injunction stopping the shredder?s hammers in the future; (c) The judge could find a temporary nuisance, award the homeowners damages down to the date of trial, and let plaintiffs sue for damages in the future if defendant?s nuisance continued; or (d) The judge could find a permanent nuisance and refuse to grant plaintiffs an injunction, but award plaintiffs permanent damages for the diminished value of their property, the solution in Boomer.472 The Court of Appeals seemed to favor (e) an experimental-conditional standards injunction as discussed above.473 The court?s possible remedial solutions for a defendant?s trespass or nuisance aren?t limited to the injunctions and compensatory damages that this Article has considered above. Two other money remedies for a successful plaintiff are punitive damages and restitution. 3. Punitive Damages A nuisance or trespass plaintiff may recover punitive damages.474 Punitive damages add complex recalculation to our topic.475 Judge Calabresi wrote in 2016 that punitive damages deter short of a criminal sanction and approach inalienability.476 Professor Henry Smith wrote that ?supra-compensatory? punitive damages convert a ?liability? or damages rule into a ?property? or injunction rule.477 ?Inalienability? and ?supra-compensatory? aren?t accurate ways to describe punitive damages.478 A court will impose punitive damages after, perhaps long after, the defendant?s tort.479 Courts base punitive damages on an entirely different policy foundation than compensatory damages. A court awards a plaintiff punitive damages to punish the defendant?s completed, aggravated wrong, nuisance or trespass, and to deter that defendant and others from similar misconduct in the future.480 Punitive damages don?t affect alienability. On the other hand, the judge grants the plaintiff an injunction to forbid the defendant?s future misconduct.481 Considering several ways to measure a nuisance plaintiff?s compensatory damages helps us to understand that punitive damages don?t prevent alienation and aren?t an injunction. In Boomer, the lowest compensatory general damages measure was value before less value after, apparently the trial judge?s initial three trials included punitive damages of $23 million, $25 million, and $450 million. Because of a tort-reform cap on punitive damages in North Carolina, the trial judges reduced the punitive damages to $250,000 for each plaintiff. Greg Blount, William Droze & Kathryn Warihay, Punitive Damages in North Carolina Hog Farm Cases Reduced, ENVTL. L. & POL?Y MONITOR (Aug. 7, 2018), https://www.environmentallawandpolicy.com/2018/08/punitive-damages-northcarolina-hog-farm-cases-reduced/#page=1 (last visited Dec. 3, 2018) (on file with the Washington and Lee Law Review). See also DOBBS ET. AL., supra note 131, ? 404, at 644. The Constitution and tort-reform statutes limit the amount of punitive damages. Id. ? 485, at 48, ? 486, at 57. 475. See Calabresi & Melamed, supra note 9, at 1126 n.71; DOBBS ET. AL., supra note 131, ? 56, at 152, ? 404, at 644. See CALABRESI, supra note 41, at 120. 477. Smith, supra note 252, at 983, 1008. This common idea may have originated with Calabresi and Melamed: ?[P]unitive damages provide an extra compensation for the victim.? Calabresi & Melamed, supra note 9, at 1126 n.71; see also Golden, supra note 335, at 1415 n.70 (citing economic-analysis scholars who view punitive damages as property rules). See Laycock, supra note 61, at 35. See Tuttle v. Raymond, 494 A.2d 1353, 1354 (Me. 1985). See id. at 1355. 481. See Okla. Pub. Emp. Ass?n v. Okla. Dep?t. of Cent. Servs., 55 P.3d 1072, 1081 (2002). $185,000.482 The damages measure based on the defendant?s cost to secure a buffer zone was $710,000, which was result on remand.483 A defendant like Atlantic Cement with a $45 million investment would clearly prefer to pay either measure of compensatory damages instead of an injunction.484 A court would have to add a gigantic punitive damages verdict to the compensatory damages to take the plaintiff?s money recovery out of the realm of damages and into the realm of an injunction. 4. Restitution In addition to an injunction, compensatory damages, and punitive damages, a court?s major remedy is restitution to reverse or prevent the defendant?s unjust enrichment, a remedy that the Cathedral article does not discuss. Courts have based several important restitution decisions on defendants? property torts, conversions and trespasses.485 When a court discusses a plaintiff?s nuisance remedies, however, the traditional answer has been that that the nuisance plaintiff?s money recovery comprises only compensatory damages and perhaps punitive damages, but does not include restitution.486 Should a contemporary court expand its nuisance-remedies options to include awarding the plaintiff restitution? A positive answer follows. Taking a fresh look in 1997, Professor Andrew Kull wrote that ?restitution for the economic benefits [defendant] derived from a private nuisance makes a perfectly intelligible claim in any case where the nuisance could have been enjoined, so long as the defendant can be shown to have acted willfully in invading the plaintiff?s property.?487 A few years later, after Kull became Reporter for the Third Restatement of Restitution, the Restatement included an Illustration based on Boomer?s facts.488 The Illustration concludes that for the defendant?s nuisance, ?the court might award [plaintiffs] restitution . . . measured by the reasonable value of a license . . . to continue the [defendant?s] challenged operations.?489 Professor Farber also formulated a restitution remedy for the Boomer nuisance plaintiffs: if the trial court had measured plaintiff?s money recovery by the amount an ordinary buyer would have had to pay, that measure would have been a bargain for a buyer like Atlantic Cement that was assembling a large tract.490 [Atlantic] would be unjustly enriched in the amount of the premium it would otherwise have had to pay for the buffer zone. Thus the [plaintiffs? buffer-zone] damage award can be considered a form of restitution, putting the parties in the same position that they would have been in if Atlantic had done the right thing in the first place and purchased a buffer zone.491 Farber?s formulation isn?t easy to fit into technical restitution learning.492 Perhaps a better way to articulate a restitution measure for nuisance or trespass that reaches the same result is the Restatement?s: to measure the plaintiff?s restitution by the reasonable value of a license.493 Both punitive damages and restitution are potential remedies for a defendant?s trespass or nuisance, opening a new wing on the Cathedral. V. Procedure, the Jury, and Equitable Cleanup Whether the judge ought to grant the plaintiff an injunction or award him damages and how to combine and measure the remedies follows a tricky procedural path that complicates the judge?s remedial decisions in nuisance and trespass litigation. Avoiding a jury may explain the form of relief. To begin with, a dispute where the plaintiff sought both an injunction and damages was complex to try earlier because of separate courts of Chancery or Equity and Common Law.494 Before the separate courts of Chancery-Equity and Common Law were merged, two trials might have been necessary, one in Chancery for an injunction and another at Common Law for damages.495 The federal and almost all state court systems have merged the Chancery and Common Law courts.496 Merger of Chancery and Common Law means only one potential plenary trial on the plaintiff?s nuisance or trespass claims because the merged court has power to award a successful plaintiff damages and to enter an injunction.497 The litigants? constitutional right to a jury trial for damages adds procedural and remedial complexity.498 In a merged court, if the plaintiff moves for interlocutory equitable relief, a temporary restraining order or a preliminary 493. See DOUG RENDLEMAN & CAPRICE L. ROBERTS, REMEDIES 1216?17 (9th ed. 2018). 494. See GEOFFREY C. HAZARD, JR., JOHN LEUBSDORF & DEBRA LYN BASSETT, CIVIL PROCEDURE 532?33 (6th ed. 2011). 495. See id. at 552?53. 496. See id. at 543 (?Unification came about in many of the states through adoption of the Field Code in the nineteenth century. Unification came about in the federal court system through adoption of the Federal Rules in 1938.?). 497. See id. 498. See id. at 543?47. injunction, the judge will conduct a juryless pre-trial hearing, then grant or deny the plaintiff?s motion.499 At the plenary trial where the plaintiff seeks both damages and an injunction, either party would be entitled to a constitutional jury trial on the plaintiff?s claim for money damages, but neither party has a jury-trial right for the plaintiff?s demand for an injunction or other equitable relief.500 The judge may, however, empanel an advisory jury to evaluate the equitable claims.501 Professor Klass?s experience supported the idea that a carefully instructed jury could sort out complex multiple substantive claims.502 Suppose a jury trial ends with a plaintiff?s jury verdict that a nuisance exists and the amount of the plaintiff?s past damages. Then the judge alone would decide whether to grant the plaintiff?s motion for a permanent injunction.503 If there had been an advisory jury, the judge would decide whether to accept the jury?s advisory findings.504 Under federal and some state precedents, the judge?s permanent-injunction decision must be consistent with the jury?s findings of fact.505 If the judge were to refuse to grant the plaintiff a permanent injunction, the jury could be recalled to set the plaintiff?s permanent or future damages. 499. See id. at 556?59. 500. See Tamalunis v. City of Georgetown, 542 N.E.2d 402, 413 (Ill. App. Ct. 1989) (?The granting of an injunction is a matter of discretion for a circuit court.?); Weinhold v. Wolff, 555 N.W.2d 454, 458, 462 (Iowa 1996) (noting that the parties elected for a bench trial); Goeke v. Nat?l Farms, 512 N.W.2d 626, 632 (Neb. 1994) (noting that an action for an injunction is equitable). But see Payne v. Skaar, 900 P.2d 1352, 1354 n.1 (Idaho 1995) (noting that an advisory jury was employed because public and private nuisance claims are equitable). 501. See Klass, supra note 23, at 715. 502. See id. at 680. 503. See eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); Tamalunis, 542 N.E.2d at 413; Weinhold, 555 N.W.2d at 458 (?Weinholds sued at law and asked for damages and injunctive relief. The case was therefore triable at law, but the appropriateness of injunctive relief was solely for the district court to decide.?). 504. See Payne, 900 P.2d at 1354 n.1. 505. See Beacon Theatres v. Westover, 359 U.S. 500, 510?11 (1959); HAZARD ET. AL., supra note 494, at 565; Eric J. Hamilton, Note, Federalism and the State Civil Jury Rights, 65 STAN. L. REV. 851, 868 (2013) (explaining that twenty-two states follow the federal rule created by Beacon Theatres, while eighteen follow the traditional approach). Equitable cleanup is a second one-trial possibility which many state courts would follow.506 The judge hears the parties? evidence in Chancery without a jury and decides the defendant?s substantive liability and whether to grant the plaintiff a permanent injunction.507 Then the judge will ?clean the case up,? that is decide the damages issues also without a jury.508 The skeptics? question about equitable cleanup is whether, in aid of consistency and judicial economy, it undervalues the litigants? constitutional rights to a jury trial.509 The Boomer majority quoted the Indiana court?s Vesey equitable-cleanup decision: When the trial court refused injunctive relief to the [plaintiff] upon the ground of public interest in the continuance of the gas plant, it properly retained jurisdiction of the case and awarded full compensation to the [plaintiff]. This is upon the general equitable principle that equity will give full relief in one action and prevent a multiplicity [of suits].510 Approving a conditional injunction as part of equitable cleanup, the Alabama court observed that ?a court of equity has power to mold its relief to meet the equities developed in the trial.?511 The form of relief in Boomer has puzzled observers.512 As mentioned above, the court granted plaintiffs an injunction but stayed its effect as long as the defendant paid plaintiffs? damages.513 Laycock questioned the court?s ?circumlocution? for refusing an injunction.514 He speculated that the conditional 506. See Hamilton, supra note 505, at 856. 507. See id. 508. See, e.g., Goeke, 512 N.W.2d at 632?633 (upholding the trial judge?s assessment of damages); see also DOBBS, supra note 119, at 169 (2d ed. 1993) ; HAZARD, LEUBSDORF & BASSETT, supra note 494, ? 12.2, at 533?55. 509. See Ziebarth v. Kalenze, 238 N.W.2d 261, 266?268 (N.D. 1976); DOBBS, supra note 119, at 169; HAZARD, LEUBSDORF & BASSETT, supra note 494, ? 12.2, at 533?39. 510. Boomer v. Atlantic Cement Co., Inc., 257 N.E.2d 870, 874 (N.Y. 1970) (quoting N. Ind. Pub. Serv. Co. v. Vesey, 200 N.E. 620, 627 (1936)). 511. Baldwin v. McClendon, 288 So.2d 761, 766 (Ala. 1974). 512. See, e.g., Daniel A. Farber, The Story of Boomer: Pollution and the Common Law, 32 ECOLOGY L.Q. 113, 121, 133 (2005). 513. See Boomer, 257 N.E.2d at 877. 514. See Laycock, supra note 61, at 17?19. injunction may have allowed the judge to retain jurisdiction and supervise the cement company while it ameliorated its nuisance.515 Another possibility in Boomer is that the court may have used the conditional injunction to keep the lawsuit in Chancery-Equity in order to grant the plaintiff permanent damages instead of an injunction without a jury.516 More specifically, granting the injunction and suspending it may have rationalized equitable cleanup and lack of a jury.517 VI. Conclusion Every profession has its array of public perceptions that are widely held, deeply believed, and oft-stated but, at best, misleading; in legal-latin, these are ignis fatuus, delusive guiding principles. In aid of expanding and broadening the injunction remedy, this Article has challenged a well-established way of looking at the law of nuisance and trespass. It has criticized the Boomer decision518 and the Cathedral article519 and suggested refinements that increase plaintiffs? injunctions.520 By proving an existing theory wrong, we refine our understanding of what our models can and cannot explain. The Boomer decision and the Cathedral article are influential sources. Timely and easy to understand, both were formative for law-and-economics scholars who were ready for their powerful simplicity and conservative, business-protective solutions.521 Have they stood the test of time? 515. See id. at 18. 516. See id. (explaining that once a case was filed in equity, the court had authority to decide the entire case, and therefore, the authority to assess damages without a jury relied on the plaintiff?s decision to merely request an injunction). 517. See id. at 17?18 (reconciling Boomer?s ?absurd? rules with the history of equity courts that denied the right to a jury and stating that the claim of equitable jurisdiction perhaps ?felt more secure if the court actually issued the injunction, even if that injunction was issued conditionally or suspended immediately?). 518. See supra Part II. 519. See supra Part III. 520. See supra Part IV. 521. See Butler, supra note 24, at 879 n.187. An analogy from science to law invoked by Thomas Kuhn?s The Structure of Scientific Revolutions522 will be evocative here. A comfortable intellectual life favors an exemplar or paradigm like the Cathedral article?s four-category system that enables people to think that a piece of the world makes sense.523 But as things change, shift happens. Anomalies accumulate that do not make sense within the earlier paradigm. The conventional wisdom is durable, not shaken by a few unexplained applications. The paradigm changes only when insiders believe that the current paradigm doesn?t explain many anomalies. When a set of ideas is no longer up to the task of explaining the world and needs to be replaced, people develop a new bundle of beliefs to put events in a different light. This Article maintains that analysis based on the Cathedral article needs to be refined.524 It places liability after remedy.525 It combines remedy and liability.526 The real world is complex and nuanced instead of being primary and theoretical. The parties? post-injunction negotiation may, but doesn?t always, occur. The four-category world of solutions is both too simple and not simple enough. Despite the scholarly ?cottage industry,?527 it doesn?t describe court decisions or positive law. Instead it points courts in the wrong remedial direction. The faulty theorizing in law schools has diverted teaching and scholarship into theoretical conundrums. Human nature is too ambiguous and variable to explain with all-purpose microeconomic analysis based on cash-preferred motives. A 2011 ?concise? property casebook ?suitable and teachable in a one-semester Property course? may foreshadow what the future portends.528 Both Boomer and Spur are reduced to footnote status; 522. THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (4th ed. 2012). 523. See id. at 23 (?[T]he paradigm functions by permitting the replication of examples . . . . In a science . . . a paradigm is rarely an object for replication. Instead, like an accepted judicial decision in the common law, it is an object for further articulation and specification under new or more stringent conditions.?). 524. See supra Parts III?IV. 525. See supra Part IV. 526. See supra Part IV. 527. FARNSWORTH, supra note 181, at 193. 528. DAVID L. CALLIES, J. GORDON HYLTON, JOHN MARTINEZ & DANIEL R. moreover, the nuisance material does not cite the Cathedral article.529 The 2017 edition of a Remedies casebook references Boomer only within another principle decision.530 New ideas begin to percolate through the profession and the academy and fall into place. But the change comes slowly because people who are mentally within the former paradigm cannot understand what is happening. Many will continue to reason ?Cathedral all the way down,? that is, the court should favor damages because an injunction is absolute protection, a stone wall, and the court should prefer a ?liability rule? that merely ?discourages violations? because litigants will bargain around an injunction.531 ?[Q]uarrels over language and terminology mask, and sometimes reveal, quarrels over world view . . . .?532 Changing nomenclature changes ideas.533 So, more than changing the profession?s vocabulary, I wrote this Article to change the way the profession thinks about the issues involved in nuisance and trespass remedies. It doesn?t seek merely new categories but to break the mold to develop a more functional approach. ?[R]eorganizing a field of law,? Laycock wrote, ?is hard?hard to figure out, hard to disseminate, hard to implement.?534 The law?s creative-destructive process never ends. An optimist seconds Lord Mansfield?s observation that, in the long run, ?the common law . . . works itself pure . . . .?535 MANDELKER, CONCISE INTRODUCTION TO PROPERTY LAW, at v (2011). 529. See id. at 340 (discussing Boomer and Spur in note 4). Three of the editors? casebooks cite Boomer and Spur only in notes, employs injunction-damages to describe remedies, and does not cite the Cathedral article in the discussion at all. DAVID L. CALLIES, DANIEL R. MANDELKER, & J. GORDON HYLTON, PROPERTY LAW AND THE PUBLIC INTEREST: CASES AND MATERIALS 153?54 (4th ed. 2016). 530 TRACY A. THOMAS, DAVID I. LEVINE & DAVID J. JUNG, REMEDIES: PUBLIC AND PRIVATE 137?38 (6th ed. 2017) (referencing Boomer within Walgreen Co. v. Sara Creek Property Co., 966 F.2d 273 (7th Cir. 1992)). 531. See Kaplow & Shavell, supra note 320, at 715?18. 532. IRVING HOWE, A MARGIN OF HOPE: AN INTELLECTUAL AUTOBIOGRAPHY 77 (1982). 533. See id. 534. Douglas Laycock, How Remedies Became a Field: A History, 27 REV. LITIG. 161, 267 (2008). 535. See Omychund v. Barker (1744) 26 Eng. Rep. 15, 23; 1 Atk. 22, 34. Number six in all-time citations, the iconic Cathedral article has a well-established place in the firmament.536 As the late Professor Leach reminded us, however, ?great men and their great books create problems. They tend to freeze things in antique patterns.?537 I don?t entertain for an instant the notion that this modest piece will overthrow two generations of vested intellectual interest, entrenched ?knowledge,? and vocabulary about nuisance and trespass remedies. Nobel-prize winning economist Tom Schelling reminded us that ?[t]he lesson that may need to be learned over and over, a lesson that possibly no one can ever apply, is the extraordinary difficulty of pulling out of a situation in which one has invested heavily.?538 But I do hope that this modest effort will play a part in a process of refining and displacing outmoded analysis. For one thing, our law students are confused enough. Their professors should exit the four-room Cathedral and refute its analysis. This Article may be the last tour of the Cathedral they need to take. This Article is part of a process of creative reconstruction of granting injunctions in nuisance, trespass, and other environmental litigation. The court should ask three questions. First, is the defendant liable under properly defined substantive law? Second, what remedy should the court grant; an injunction, compensatory damages, or perhaps punitive damages and restitution? Balancing the parties? hardships may be necessary to choose between damages and an injunction, but a narrow and precise test is a crucial principle of confinement. Finally, how should the court measure or define the injunction or money recovery? Questions two and three will not always be discrete or separate. The judge might consider what an injunction ought to require or forbid along with whether to grant it. Denying a nuisance or trespass plaintiff an injunction may often be unsound for health or environmental reasons. A standards injunction may be the most propitious remedy. 536. Fred R. Shapiro & Michelle Pearse, The Most-Cited Law Review Articles of All Time, 110 MICH. L. REV. 1483, 1489 (2012). 537. W. Barton Leach, Perpetuities: The Nutshell Revisited, 78 HARV. L. REV. 973, 973 (1965). 538. SCHELLING, supra note 355, at 231; see also KAHNEMAN, supra note 54, at 277. A reinvigorated private law remedial approach may counter the federal regulatory retreat. More and more detailed standard injunctions in private litigation will improve our shared environment; moreover, the private-law example may work its way into public-law environmental litigation, where it may contribute to reducing global warming and climate change. I. Introduction.................................................................... 1861 ? A. Remedy ..................................................................... 1864 ? B. Regulation Versus Litigation .................................. 1865 ? Positive Law............................................................. 1867 ? II. Boomer v. Atlantic Cement ............................................ 1872 ? A. Pollution , Nuisance, and Trespass.......................... 1877 ? B. The Permanent-Temporary Distinction ................. 1880 ? C. Economics and the Environment ............................ 1883 ? D. The Common Law, Judgment, and Discretion....... 1887 ? III. Calabresi and Melamed's One View of the Cathedral .. 1889 ? A. The Cathedral Article's Rule 3. ............................... 1891 ? B. The Cathedral Article's Rules 1 and 2 . ................... 1894 ? Damages ................................................................... 1895 ? Rights and Liability Rights ..................................... 1907 ? 1 . Property.............................................................. 1908 ? 2 . Liability .............................................................. 1909 ? E. Post-Injunction Negotiation and Hold Outs........... 1914 ? F. Rule 4 : Winner Pays ................................................ 1924 ? IV. Rule 5: Does the Cathedral Have Too Many or Too Few Rooms? .................................................................... 1928 ? A. Too Many Rooms...................................................... 1928 ? B. Too Few Rooms ........................................................ 1928 ? 1 . The Standards Injunction.................................. 1929 ? 2 . Damages ............................................................. 1932 ? 3 . Punitive Damages.............................................. 1933 ? 4 . Restitution.......................................................... 1935 ? V. Procedure , the Jury, and Equitable Cleanup ............... 1937 ? VI. Conclusion ...................................................................... 1940 6. See Abram Chayes , The Role of the Judge in Public Law Litigation, 89 HARV. L. REV . 1281 , 1281 ( 1976 ). 7. See Boomer v . Atlantic Cement Co., 257 N.E. 2d 870 , 871 - 75 (N.Y. 1970 ). 8 . 257 N.E. 2d 870 (N.Y . 1970 ). 9. Guido Calabresi & A. Douglas Melamed , Property Rules, Liability Rules, and Inalienability: One View of the Cathedral , 85 HARV. L. REV. 1089 ( 1972 ). 10 . See Responding to Climate Change, NAT'L AERONAUTICS & SPACE ADMIN ., https://climate.nasa.gov/solutions/adaptation-mitigation / (last updated Aug . 28 , 2018 ) (last visited Dec. 3 , 2018 ) ( on file with the Washington and Lee Law Review) . 11 . See id. 12 . See F. Andrew Hessick , The Challenge of Remedies , 57 ST. LOUIS U. L.J. 739 , 741 ( 2013 ). 13 . See Boomer, 257 N.E. 2d at 875; see also Calabresi & Melamed, supra note 9 , at 1121. 14. See Owen M. Fiss , The Supreme Court 1978 Term Foreword: The Forms of Justice , 93 HARV. L. REV. 1 , 47 ( 1979 ). 15 . 547 U.S. 388 ( 2006 ). 16 . Id. at 392 . 17. See discussion infra Part III.C. 18 . See discussion infra Parts IV.B.3-4 . 19 . See discussion infra Part V. 20. See discussion infra Part V. 21. See discussion infra Part V. 22 . See Adam D.K. Abelkop , Tort Law as an Environmental Policy Instrument , 92 OR. L. REV. 381 , 385 ( 2013 ) (stating that ?tort law and public regulation are complements , not substitutes?) . 23 . See Alexandria B. Klass , CERCLA , State Law and Federalism in the 21st Century , 41 SW. L. REV. 679 , 680 ( 2012 ). 24 . Abelkop, supra note 22, at 464; see also Lynda L. Butler , The Resilience of Property , 55 ARIZ. L. REV. 847 , 887 ( 2013 ); Richard A . Epstein, Modern Law Principles , 37 HARV. J.L. & PUB. POL 'Y 23 , 34 ? 35 ( 2014 ). 25 . See Chris Mooney, Trump Withdrew from the Paris Climate Deal a Year Ago . Here's What has Changed, WASH . POST (June 1 , 2018 ), https://www.washingtonpost.com/news/energy-environment/wp/2018/06/01/ ?noredirect=on&utm_term= . 89f12c5a84fc (last visited Dec. 3 , 2018 ) ( on file with 5. 26 . See Jonathan H. Adler , Jurisdictional Mismatch in Environmental Federalism , 14 N.Y.U. ENVTL . L.J. 130 , 130 - 33 ( 2005 ) (discussing problems with enforcement of regulation pose difficulties) . 29 . See Lynda W. Powell , The Influence of Campaign Contributions on the Legislative Process , 9 DUKE J. CONST. L. & PUB. POL 'Y 75 , 100 - 01 ( 2014 ). 30 . See Amber Phillips , The Striking Lack of Diversity in State Legislatures, WASH. POST (Jan. 26 , 2016 ), https://www.washingtonpost.com/news/the- fix/wp/2016/01/26/the-real -problem-with-diversifying-congress-state- legislatures-are-even-less-diverse/?utm_term= . d68adaa7cc8a (last visited Dec . 3 , 2018 ) (on file with the Washington and Lee Law Review) . 31 . See , e.g., Oil Pollution Prevention , 112 C.F.R. ? 112 ( 2017 ) (providing HYDRAULIC FRACTURING-UNSAFE, UNREGULATED 1-3 ( 2018 ), https://www.citizen. unregulated risks to drinking water) . 32 . See Abelkop, supra note 22 , at 387; Stephen B Burbank , Sean Farhang & Herbert M. Kritzer , Private Enforcement, 17 LEWIS & CLARK L. REV . 637 , 713 ( 2013 ); Klass, supra note 23, at 680 . 33. Jenna Greene , New Tactic in Climate Control Litigation Could Cost Energy Companies Billions. Or Not , RECORDER (July 20 , 2017 ), https://www.law.com/therecorder/almID/1202793545435/New-Tactic-in-Climate- Not/?mcode=1202617583589&curindex=405 (last visited Dec. 3 , 2018 ) ( on file with the Washington and Lee Law Review) . 35 . Catherine M. Sharkey , The Administrative State and the Common Law: Regulatory Substitutes or Compliments? , 65 EMORY L.J. 1705 , 1734 ( 2016 ). 36 . See Richard A. Posner, The Economic Approach to Law, 53 TEX. L. REV. 757 , 762 - 67 ( 1975 ) (discussing economic theory and arguing that individuals engage in predictable behavior regarding the law ). 38 . See Felix S. Cohen, Transcendental Nonsense and the Functional Approach , 35 COLUM. L. REV. 809 , 821 - 34 ( 1935 ). 39 . See generally LEON GREEN, THE LITIGATION PROCESS IN TORT LAW (2d ed. 1977 ). 40 . Calabresi & Melamed, supra note 9, at 1128. 41. See GUIDO CALABRESI , THE FUTURE OF LAW & ECONOMICS: ESSAYS IN REFORM AND RECOLLECTION 4-7 ( 2016 ) (endorsing behavioral economics , adding to explain legal reality?) . 42 . See James R. Hackney Jr., Guido Calabresi and the Construction of Contemporary American Legal Theory , 77 LAW & CONTEMP . PROBS. 45 , 63 - 64 ( 2014 ) (asserting that Calabresi's work reflects a trend towards a more methodologically flexible approach to scholarship in the law-and-economics field ). 43 . This Article leaves out parts of the Cathedral article's analysis; for note 9 , at 1111- 15 . 44 . See Joshua D. Wright & Douglas H. Ginsburg , Behavioral Law and Economics: Its Origins , Fatal Flaws, and Implications for Liberty, 106 NW. U. L. REV. 1033 , 1083 - 84 ( 2012 ). 45 . See Russell B. Korobkin & Thomas S. Ulen , Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics , 88 CAL. L. REV. 1051 , 1055 ( 2000 ). 46 . See JONATHAN LEVIN & PAUL MILGROM , INTRODUCTION TO CHOICE THEORY 2- 6 ( 2004 ), https://web.stanford.edu/~jdlevin/Econ%20202/Choice%20Theory. pdf. 47. See Posner, supra note 36 , at 760 . 48. Cf . Thomas C. Galligan, Jr., Deterrence: The Legitimate Function of the Public Tort , 58 WASH. & LEE L. REV . 1019 , 1031 - 33 ( 2001 ). 49 . See Samuel L. Bray , Remedies, Meet Economics; Economics, Meet Remedies , 38 OXFORD J. LEGAL STUD . 71 , 72 ( 2018 ). 50 . See Jeffrey Berryman, The Law of Remedies: A Prospectus for Teaching and Scholarship , 10 OXFORD U. COMMONWEALTH L.J. 123 , 130 ( 2010 ). 51 . See id. at 130 . 52. Id . 62 . See John C. McCoid II , Inconsistent Judgments , 48 WASH. & LEE L. REV . 487 , 487 ( 1991 ) (describing how judges arrive at inconsistent opinions in lawsuits containing identical issues) . 63 . Casey Blake & Christopher Phelps , History as Social Criticism: Conversations with Christopher Lasch, 80 J. AM. HIST . 1310 , 1324 - 25 ( 1994 ). 64 . 257 N.E. 2d 870 (N.Y . 1970 ). 65 . Id. at 871- 72 . 66 . See Klass, supra note 23 , at 693-94 ( explaining that on a theory of liability?) . 67 . See Boomer, 257 N.E. 2d at 871. 68. See id. at 871-75. 69. See id. 70. Id. at 875 . 71. Louise A. Halper , Untangling the Nuisance Knot, 26 B.C. ENVTL. AFF . L. REV. 89 , 130 ( 1998 ). 72 . See Boomer, 257 N.E. 2d at 872. 73. Id. at 877 (Jasen, J., dissenting) . 74 . Id. at 875- 77 (Jasen, J., dissenting) . 75 . See Daniel A. Farber, The Story of Boomer: Pollution and the Common Law , in ENVIRONMENTAL LAW STORIES 7 , 8 ( Oliver A. Houck & Richard J. Lazarus eds., 2005 ). 86 . See id. at 873 n.*. 87. Louise A. Halper , Nuisance, Courts and Markets in the New York Court of Appeals , 1850 - 1915 , 54 ALB. L. REV. 301 , 302 ( 1990 ). 88 . Laycock, supra note 61, at 10. 89. Id. at 8 , 10 n. 46 . 90. See Negative Externality, FUNDAMENTAL FINANCE , Dec. 3 , 2018 ) ( on file with the Washington and Lee Law Review) . 91 . Id . 92 . See J. William Futrell , The Transition to Sustainable Development Law, 21 PACE ENVTL. L. REV . 179 , 192 ( 2003 ). 400. E-mail from John M. Golden , Loomer Family Professor in Law, Professor of Law, Washington and Lee University School of Law (Apr. 12, 2013 2 : 58 PM ) (on file with author ). 401 . Laycock, supra note 61, at 32 . 402. See RENDLEMAN , supra note 77, at 770- 71 . 403 . See Lewinsohn-Zamir, supra note 341, at 228-29. 404. DOBBS & ROBERTS, supra note 231, at 543-44 . 405 . See Golden, supra note 335 , at 1448 (?[T] he over-whelming majority of patent-infringement disputes settle before an injunction issues . . . .?). 406 . 500 F. Supp . 2d 556 (E.D. Va . 2007 ). 407 . Id . 559 . 408. RENDLEMAN, supra note 77, at 87. Party acrimony affects post-judgment Guido Calabresi , 50 WAKE FOREST L. REV . 1181 , 1183 ( 2015 ). 409 . Calabresi & Melamed, supra note 9, at 1116-23; see also DOBBS & ROBERTS , supra note 231, at 538 . 410. Spur Indus. Inc v. Del E. Webb Dev . Co., 494 P.2d 700 , 708 (Ariz. 1972 ). 411. Id. at 704. 412. Id. at 705. 413. Id. 414. Id. at 706. 415. Id. 416. See id. at 707 . 417. See id. at 708 . 418. See id. 419 . See , e.g., JOHN E. CRIBBET , ROGER W. FINDLEY, ERNEST E. SMITH & JOHN S. DZIENKOWSKI , PROPERTY: CASES AND MATERIALS 679- 91 (9th ed. 2008 ) (presenting Spur after Boomer); DUKEMINIER ET AL., supra note 76 , at 749- 58 DAMAGES: CASES AND MATERIALS 804- 23 (8th ed. 2011 ) (presenting Spur after POLICIES 965- 80 (3d ed. 2017 ) (presenting Spur after Boomer) ; VICTOR E. TORTS: CASES AND MATERIALS 867- 77 (13th ed. 2015 ) (presenting Spur after Boomer); SHERWIN & BRAY, supra note 76 , at 484-87 (including Spur immediately after Boomer in its discussion on injunctions); WEAVER ET AL., supra note 77 , at 335- 40 (including Spur after Boomer). 420 . See FARNSWORTH , supra note 181, at 196-97 ( working out an elaborate, apparently counter-factual, example that Farnsworth considers bizarre) . 429 . See CALABRESI , supra note 41, at 20 . 430. See id. 431 . See Sonya P. Passi , Note, Compensated Injunctions: A More Equitable Solution to the Problem of Inevitable Disclosure, 27 BERKELEY TECH . L.J. 927 , 941- 55 , 949 ( 2012 ). 432 . See A. Douglas Melamed , Remarks: A Public Law Perspective , 106 YALE L.J. 2209 , 2209 - 10 ( 1997 ). 433 . Id. at 2209 . 441. See id. at 523 . 442. See Boomer v. Atlantic Cement , 257 N.E.2d 870 , 875 (N.Y . 1970 ). 443. See supra notes 437-441 and accompanying text. 444. See Brigid Schulte, Va. High Court Breaks New Ground on Tree Liability, WASH. POST , ( Sept . 15, 2007 ), http://www.washingtonpost.com/wp- dyn/content/article/2007/09/14/AR2007091401340.html?noredirect=on (last visited Dec. 3 , 2018 ) ( on file with the Washington and Lee Law Review) . 445. See supra notes 409-433 and accompanying text. 454 . See FED. R. CIV . P. 60 ( b)(5)-(6) (allowing relief from final judgment in ?any other reason that justifies relief?); RESTATEMENT (SECOND ) OF TORTS ? 941 , cmt. e (AM. LAW INST . 1979 ). 455 . See Helmkamp v. Clark Ready Mix Co., 249 N.W.2d 655 , 657 (Iowa 1977 ). 456 . See Georgia v. Tenn. Copper Co., 206 U.S. 230 , 239 ( 1907 ). 457 . See Georgia v. Tenn. Copper Co., 237 U.S. 474 , 477 - 78 ( 1915 ). 458 . See OWEN M. FISS , THE CIVIL RIGHTS INJUNCTION 7 , 9 ( 1978 ). 459 . See id. at 13-14 . 460 . See MALCOLM M. FEELEY & EDWARD L. RUBIN , JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA'S PRISONS 78 (Alfred Blumstein & David Farrington eds., 1998 ). 461. DAN B. DOBBS, LAW OF REMEDIES: DAMAGES-EQUITY-RESTITUTION ? 2. 5 ( 4 ), at 143- 44 (2d ed. 1993 ). 462 . See FISS , supra note 459, at 9 . 463. See FEELEY & RUBIN, supra note 460, at 78 . 464. CALABRESI, supra note 41, at 118 . 465. See id. at 118-20 . 466 . See DOBBS ET. AL., supra note 131 , ? 404 . 467. See Weinhold v. Wolff , 555 N.W.2d 454 , 467 (Iowa 1996 ). 468 . See id. at 466 . 469. See Daniel Farber, Reassessing Boomer: Justice, Efficiency, and JOHN E. CRIBBET 19 ( Peter Hay & Michael H . Hoeflich eds., 1988 ). 470 . See Laycock, supra note 61 , at 34; Smith, supra note 252, at 1039 . 471. See Harrison v. Ind. Auto Shredders Co., 528 F.2d 1107 , 1125 (7th Cir. 1975 ). 472 . See Boomer v. Atl. Cement Co., 257 N.E.2d 870 , 875 (N.Y . 1970 ). 473 . See Harrison, 528 F.2d at 1125. 474. See Oglethorpe Power Corp. v. Estate of Forrister , 774 S.E.2d 755 , 763 (Ga. App . 2015 ). As this Article goes to press, three of the twenty-six lawsuits brought in North Carolina by 500 plaintiffs against Smithfield Foods's pork production facilities have reached jury verdicts . The plaintiffs' verdicts in the 482. Boomer , 257 N.E. 2d at 873. 483. Daniel Farber, Reassessing Boomer: Justice, Efficiency, and Nuisance CRIBBET 12 (Peter Hay & Michael H . Hoeflich eds., 1988 ). 484 . See id. at 18 . 485. See Edwards v. Lee's Adm'r, 96 S.W.2d 1028 , 1032 (Ky. 1936 ); Raven Red Ash Coal Co . v. Ball, 39 S.E. 2d 231 , 238 (Va. 1946 ); Olwell v . Nye & Nissen Co., 173 P.2d 652 , 654 (Wash. 1946 ). 486 . See GEORGE E. PALMER , THE LAW OF RESTITUTION 137 ( 1978 ) ; see also Property or the Commission of a Wrong, 80 COLUM . L. REV. 504 , 509 n. 28 ( 1980 ); RESTITUTION AND UNJUST ENRICHMENT : CRITICAL AND COMPARATIVE ESSAYS 251, 259 (Charles Mitchell & William Swadling eds., 2013 ) (?[A]llowing [a party] to sue will be entitled to sue . . . for license fee damages instead . ?) . 487 . Andrew Kull , Restitution and the Noncontractual Transfer , 11 J. CONT. L. 93 , 104 ( 1997 ). 488 . See RESTATEMENT ( THIRD) OF RESTITUTION AND UNJUST ENRICHMENT ? 44 , illus. 15 (AM. LAW INST . 2011 ). 489 . Id .; see also Marmo v. Tyson Fresh Meats , Inc., 457 F.3d 748 , 764 (8th Cir . 2006 ) (Arnold , J., dissenting) . 490 . See Daniel Farber, Reassessing Boomer: Justice, Efficiency, and JOHN E. CRIBBET 18 ( Peter Hay & Michael H . Hoeflich eds., 1988 ); see also Farber, supra note 75 , at 22 . 491. Farber, supra note 75, at 22 . 492. Laycock cites RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST ENRICHMENT ? 51 (AM . LAW INST . 2011 ), which requires a defendant to disgorge profits. Laycock, supra note 61, at 34.


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Doug Rendleman. Rehabilitating the Nuisance Injunction to Protect the Environment, Washington and Lee Law Review, 2019,