Nuisance Law: The Morphogenesis of an Historical Revisionist Theory of Contemporary Jurisprudence

Abstract

The debate over the scope of the concept of reasonableness - its application and use in testing the legality of normative conduct - is of long standing. Recently, it has been suggested that reasonableness be substituted for both legal and moral rightness. I go further in this Article and suggest reasonableness incorporates the goal of economic efficiency and that it is tested or shaped by a simple cost-benefit model that has its legal etiology in the equitable principle of balancing that, in turn, has its roots in the principle of Sic utere tuo ut alienum non laedas, or So use your own property as not to injure your neighbor. Here is to be found the guiding standard that seeks to unify and bind the law, that I submit operates as a fundamental truth at both trial and appellate levels of decisonmaking. Lower or trial courts are confronted almost daily with the need to make determinations for which no broad, discernible general principle of law is available. Thus, the totality of circumstances test regarding the reasonableness of a particular situation becomes the standard by which a factual determination is made. A counter argument suggests appellate judges should resist, whenever possible, application of the totality of circumstances and balancing tests because they are expositors of the law, not lower court fact finders; and because at the appellate level, the Rule of Law or, the law of rules, should be extended as far as the nature of the question allows. Such an argument fails to recognize the inextricable connection or relationship between balancing and its application in initial decisionmaking by the consumer through all phases of judicial and legislative analysis. Balancing of one form or other - be it of facts, rules or results - is to be found as an inherent part of the analytical process in all legal decisionmaking. If the word, balancing, is off-putting, it should be regarded as but a synonym for consider or take into account. The key should be to avoid semantic exercises which unduly obfuscate the primary goal for the courts of reaching reasonable decisions, or stated otherwise, those that are just, fair and wealth maximizing (e.g., efficient). A study of the law of nuisance serves as a paradigmatic focus for a consideration of the morphogenic or evolutionary exposition and development of the principle of reasonableness realized through application of the balancing of utilities, conveniences or costs, versus benefits, in specific reference to the revised doctrine of sic utere. Indeed, it is within the crucible of nuisance law that the practical foundations and the tests of reasonableness and economic efficiency are realized in both their original development and contemporary application. Stated otherwise, it is within nuisance law where the seedtime of economic jurisprudence flowers. There is a symbiotic, if not an inextricable or binding, relationship between both. In cases that challenge or test the degree to which one has acted reasonably in the use of his property, to achieve fairness (and thus efficiency), modern courts should, consistent with the Restatement (Second) of Torts, balance the relative hardships of the parties, substantively and procedurally, in deciding the initial characterization of whether the actions are a nuisance, and then, determine procedurally whether injunctive relief or damages are to be awarded. Stated otherwise, what is considered or balanced by a judge in every legal action is, essentially, the value of what is obtained (by holding for the plaintiff) versus the value of what is sacrificed to obtain it. And, again, it is seen clearly that practical reasoning dictates the use of the balancing principle.