Wednesday, June 12, 2013

A realist analysis of nuisance law's historical achievements

Just out in the Journal of Law and Society is Ben Pontin's "The Common Law Clean Up of the ‘Workshop of the World’: More Realism About Nuisance Law's Historic Environmental Achievements". Joining the author's previous work on environmental law in nineteenth-century Britain (e.g. here and here), the new article uses a legal realist lens to examine the achievements and limits of Victorian-era nuisance law in bringing about environmental improvements.


The abstract:
This article examines the environmental benefits arising from compliance with common law nuisance injunctions during the British industrial revolution. It argues, based on the outcomes of industrial nuisance actions involving allegations of serious air and river pollution, that many millions of pounds were invested by corporate polluters in designing and implementing clean technologies within the framework of the common law. Nuisance law was not an unqualified success in the field of environmental protection at this time, but overall the findings contribute to the on-going critique of the nuisance law histories of Brenner and McLaren, which argue that various limitations of the common law are at the root of modern environmental problems. The discovery of historic practical measures of environmental protection through common law enforcement raises important conceptual, policy, and legal questions for today, and disciplinary questions regarding the rigour of realist legal scholarship concerning the historic performance of the law.

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