Prof. Linda Mullenix had been studying the judicial system’s handling of tort cases for four decades, producing scholarship about the dramatic changes in evolving case law. Then, 10 years ago, she identified a change she calls “surprising and radical.”
That change—the rise of a new theory of “public nuisance”—is the subject of her new book, “Public Nuisance: The New Mass Tort Frontier,” published by Cambridge University Press last November. In the book, she traces the history of these cases and explores the implications of the theory.
“It’s a very broad concept,” says Mullenix, the Rita and Morris Atlas Chair in Advocacy at Texas Law. “Public nuisance is any interference with the enjoyment of health, safety, and welfare in a community. Juries have often found defendants liable for creating and maintaining a public nuisance.”
Her book considers examples that all readers will find familiar: lead paint, environmental pollution, opioids, firearms, and vaping. “There’s an extensive discussion of what’s been going on in these cases,” Mullenix says. “The book sets out both sides of the debate.” It also examines claims, defenses, and remedies. Mullenix’s legal audience works across multiple areas, including property, tort, criminal, and administrative law. Defense attorney Sheila Birnbaum, co-chair of Dechert LLP’s product liability and mass torts practice, calls the book “a must-read book for anyone interested in or practicing law in the tort field.”
On Feb. 2, the Texas Law “Bookfest” will celebrate the author and her work with an event for faculty and special guests. The event includes two visiting panelists: University of Virginia Law Prof. Leslie Kendrick and Stanford Law Prof. Deborah Hensler. Texas Law’s Prof. Elizabeth Sepper will serve as the moderator.
Mullenix recently discussed the origins of her book, relevant cases she’s followed, and the possibility of public nuisance theory heading to the U.S. Supreme Court.
What’s an example of public nuisance that’s easy for readers to grasp?
Eastern Texas and Louisiana are the epicenters of environmental pollution. All these refineries are constantly emitting plumes of toxic smoke, which spreads out into the community. You can see the concept of public nuisance there: You’re a manufacturer emitting toxic waste, it’s spreading into the air or groundwater, and people are getting sick and dying. That’s the easiest model for people to grasp the concept of public nuisance.
Looking at the book’s title as a non-lawyer, can you define the meaning of “tort”?
Tort law is one of the five standard first-year courses in all law schools where students learn about property, contracts, procedure, constitutional law, and torts. Generally, torts deal with remedies for different kinds of harms—usually there’s a focus on personal injury. But there are other types of torts. For example, libel or defamation is a tort. This book has to do with both private and public nuisance and how public nuisance is being applied to deal with these mass tort cases.
What inspired you to write your book?
The book is an outgrowth of my academic and intellectual interest over 40 years tracing the arc of how the judicial system has been dealing with mass tort cases. The law has changed dramatically over that time span. In the last 10 years, plaintiffs’ lawyers began pursuing relief for harms to large groups of people using a theory called public nuisance law. It was surprising and radical when it appeared.
Part of the book’s theme is how plaintiffs’ lawyers over four or five decades have really pushed the law with novel, innovative theories. They don’t give up when they have setbacks in pursuing relief in different kinds of cases. They just retreat, regroup, and come back with something new. So, it’s a very interesting, exciting, and controversial development in the law.
Were there any specific cases you watched unfold?
Litigation over opioids and their damage to communities became a major lawsuit in Ohio. Public nuisance became the predominant theory the judge was using to resolve that case.
The other area I was following was litigation dealing with gun violence, which is also a tremendously interesting and compelling area because it’s impossible to sue gun manufacturers, distributors, retailers, or sellers.
A few years back, there were developments in Sandy Hook, Connecticut, which made inroads into the ability to sue the firearms industry. I wrote an article about that, “Outgunned No More?,” and got invited to a conference at Duke University, which has a center for firearms law. I was there to talk about public nuisance. A state legislator from Brooklyn, New York, gave a presentation, which got me very excited. He said he got tired of going to the funerals of young people who died from gun violence in his district. So, he drafted a statute in New York, which would hold people in the firearms industry liable under public nuisance theory.
That was the first public nuisance law in the nation making violations related to firearms actionable in court. It’s now the model: Eight other states have adopted public nuisance law trying to get at the firearms industry and hold it responsible for gun-related deaths. It’s quite exciting to see this advance in legal theory.
Are there any other important cases you can highlight?
In Tulsa, Oklahoma, historically there was a very important Black neighborhood that was razed to the ground. There’s been litigation about that. Most recently the plaintiffs’ lawyers are pursuing relief for the descendants of African Americans from that community on a public nuisance theory. That absolutely astonished me. This past December, another lawsuit patterned after Tulsa was started in Portland, Oregon, because apparently the same thing happened there, and the district court allowed a case to go forward on public nuisance theory. To my surprise, they cited my book in support of allowing this kind of reparations case to go forward.
Does that mean public nuisance law is a good development?
I take very seriously the scholar’s duty to present all sides of these questions.
There’s a lot of interesting stuff going on here, but it’s very controversial. The defense bar of corporate America is absolutely up in arms about using public nuisance to provide relief to municipalities, cities, and communities based on public nuisance. Basically, they’re saying this is an end run around traditional tort law—and it’s an illegitimate expansion of tort law—to accomplish what the plaintiffs can’t under traditional tort theories. It’s kind of like public nuisance is swallowing conventional tort law.
What do the courts say? And what do you think?
The courts are evenly split. Half say, “You definitely can’t do this.” The innovative courts are saying, “Yes, you can.” Since I know the history of development of mass tort, I’m not surprised, because it’s just another way plaintiffs’ lawyers have been very creative about pushing the law. So where do I come out? I have a wait-and-see approach. Law professors talk about the brilliance of the common law to change with changing circumstances and events. So, if you believe in that view of the common law, that will allow this to go forward and let the courts sort this out.
Looking ahead, what’s next for public nuisance theory?
Mexico is suing the firearms industry in the United States for all these guns that are winding up in Mexico causing cartel gun violence and killing people down there.
The Mexican government sued in Massachusetts, there was a fight over sovereign immunity, and the court dismissed it. But recently, the 1st Circuit court resuscitated the case on appeal. So, it’s going forward.
Is the gun industry going to appeal to the Supreme Court? None of these public nuisance cases have gone to the Supreme Court, but since this is such a percolating, hot, controversial area of law—and particularly since the gun statutes are being constitutionally challenged—something’s going up to the Supreme Court.
“Public Nuisance: The New Mass Tort Frontier” is available from Cambridge University Press.