Catherine M. Sharkey (New York University School of Law) has posted Tort Law in the Age of Regulations (New York University Law Review, forthcoming) on SSRN. Here is the abstract:
Tort law’s role as an information-sharing and enforcement mechanism in the age of regulations can serve as a critical supplement or complement to federal regulatory schemes. Public nuisance, perhaps the quintessential modern regulatory tort, provides fertile ground for consideration of the role of tort law in the age of regulations. In order to analyze the contours and limits of a public nuisance claim, two fundamental questions must be answered: first, what is the violation of the public right, and, second, who can enforce the public nuisance. The interplay between state tort law and federal statutory schemes through its information-sharing and enforcement mechanism roles, moreover, has led to an interesting possibility regarding the expansion of the modern public nuisance tort. This expansion is premised on the concept that, since it is currently possible to bring a cause of action for public nuisance per se for the violation of a state public nuisance statute, then it should also be possible to sue in tort when the violation of a health or safety regulation leads to a public nuisance. Although the public health and safety nuisance per se tort comports with the notions of the role of tort law in the age of regulation and would further the objectives of the public nuisance tort in general, some key obstacles to its viability remain.
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