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
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Rehabilitating the Nuisance Injunction
to Protect the Environment
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
(Presses Universitaires d?Aix-Marseille, Russell Weaver & Francois Lichere
. 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
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/
(last updated July 6, 2018)
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
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.,
(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)
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,
(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),
(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, 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
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),
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
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),
(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
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-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
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
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
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)
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
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
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
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
421. See Spur Indus., Inc. v. Del E. Webb Dev. Co., 494 P.2d 700, 704 (Ariz.
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
Rule 4, however, isn?t dead.429 A comprehensive, accurate view
of legal reality includes settlements, other private remedies, and
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
IV. Rule 5: Does the Cathedral Have Too Many or
Too Few Rooms?
The Cathedral article?s four approaches are both too many and
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
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
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
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
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
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
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
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.
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
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
?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),
(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,
$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.
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
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]
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
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.
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
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
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
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
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
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
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
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
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.
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
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
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 ),
?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-
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 ),
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-
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.