Suchergebnisse

This Article examines the interactions between European Community and national law, in the context of Member State public tort liability. Specifically, the Article analyzes Brasserie du Pecheur v. Federal Republic of Germany, a case that pitted German beer purity legislation against requirements of Community law. In that case, the European Court of Justice (ECJ) ruled that acts or omissions of the national legislator may, under certain conditions, give rise to Member State public tort liability, which is adjudicated in the national court systems. The German Federal Court of Justice dismissed the case after finding that the conditions of state liability were not met under either German or Community law. The Article discusses in detail the nature and characteristics of the Member State liability principle conceived by the ECJ; despite the silence of treaty law on this issue, the ECJ has long supported the notion that a Member State may incur tort liability for breaching community law. As a result of ECJ jurisprudence, supranational judge-made law may deeply permeate domestic legal orders. However, the German court's dismissal of the damages claim in Brasserie du Pecheur demonstrates that Member State liability is not open-ended. Rather, a balance may be achieved between European Community (EC) compliance interests and Member State domestic institutional prerogatives.

Public nuisance has recently been dusted off as a potential source of legal redress for tobacco use, handgun distribution, lead paint removal, MTBE contamination, and global warming. The premise of this litigation is that public nuisance is a tort, and that courts have inherent authority as common law tribunals to determine what conditions qualify as a public nuisance. This article argues that public nuisance is properly regarded as a public action rather than a tort, as revealed by a number of its features, including the nature of the interest protected – rights common to the general public – and the traditional understanding that public nuisance is a crime. The view that public nuisance is a species of tort liability is a product of the Restatement (Second) of Torts, which sought in the 1970s (without notable success) to transform public nuisance into a weapon to combat environmental harms. If public nuisance is properly regarded as a public action rather than a tort, then the effort to enlist public nuisance as an instrument of social reform without authorizing legislation suffers from a delegation deficit. Public nuisance, like other public actions, should not proceed unless the legislature has first specified the circumstances in which liability exists, and who has authority to bring an enforcement action. This means courts should disclaim any inherent authority based on the common law to declare that particular conditions are a public nuisance. It also means that existing public nuisance statutes, which were typically adopted years ago with a different order of social problem in mind, should be interpreted non-dynamically, in order to preserve the principle that public actions must be grounded in enacted law rather than a claim of inherent judicial authority.

Public nuisance law is an atavism.The fundamental objection is that public nuisance never was, and ought not to be, regarded as a tort. It is a public action, and as such should be subject to the control and direction of the legislature. Given the confusion sown by the Restatement, existing statutory authority condemning activity as a "public nuisance" should be interpreted non-dynamically, as ratifying understandings of that term when the law was enacted. For the future, legislatures should avoid speaking of public nuisances, and should instead spell out what is prohibited, the sanctions for violation, and which entities have authority to enforce the law.

Examines the extent to which an overlap exists between the legal categories of public law and tort. Considers how the tortious doctrines of misfeasance in public office and exemplary damages for oppressive, arbitrary or unconstitutional actions by servants of the Government may fall within public law, and whether the same is true for the tort of malicious prosecution. Discusses the implications of treating the doctrines as part of public law.