Chapters (5)
Forthcoming (1)
Last 3 years (4)
The Cambridge Law Journal (2)
Canadian Journal of Law & Society / La Revue Canadienne Droit et Société (1)
CJLS Canadian Law & Society Association CLS (1)
Cambridge Studies in Law and Judaism (2)
Cambridge Textbooks (2)
7 - The Next Transresource
Todd Jarvis, Oregon State University, Jakob Wiley, University of Oregon
Book: Collective Aquifer Governance
Print publication: 03 February 2022, pp 85-96
The suggested shift in policy perspective from groundwater to aquifers challenges the traditional approach to groundwater as a public resource issue. The legal issues involving aquifers are a complex combination of public rights and private property. Groundwater is traditionally a publicly held resource, yet the aquifer's storage space appears to be considered private property. Although these resources are interconnected, courts have taken different approaches to addressing conflicts that involve indirect effects of groundwater extraction, like subsidence and subterranean trespass. Some states and courts treat pore spaces akin to a mineral right and protect private uses, like carbon sequestration. In other cases, courts have treated pore spaces as a public resource and refused claims of trespass and nuisance when adjacent aquifer uses interfered with private property rights. There is no clear consensus as to the ownership of aquifer pore spaces.
3 - The Foundations of the Maimonidean Theory:
Yuval Sinai, Benjamin Shmueli, Bar-Ilan University, Israel
Book: Maimonides and Contemporary Tort Theory
Published online: 10 August 2020
Print publication: 06 August 2020, pp 80-137
Chapter 3 introduces the foundations of the Maimonidean theory: the scope of tort law, its connection to criminal law, the classification of the different categories of tort law, and the various objectives underlying each of these categories. We argue that understanding Maimonides's tort theory and providing a complete view of his theory requires three things: An awareness that Maimonides' theory incorporates various goals and considerations that operate in concert; the understanding that Maimonides introduced different goals for different categories of damage; and a focus both on what Maimonides wrote in his Code and in the Guide and in his other works such as Commentary to the Mishnah and Responsa. In each category of damage one goal (or more) is (or are) more dominant than the others. A fundamental division into different types of torts emerges from the classification of the Book of Torts in the Code: The basic distinction between damages that are caused by a person's property and damages that are caused by the person himself; the distinction between a person who causes physical injury to another and a person who damages the property of another; and the distinction between regular damage to nuisance and damages to neighbors.
2 - Tort Liability in Maimonides' Code:
Print publication: 06 August 2020, pp 39-79
In Chapter 2 we will present the difficulties facing those who seek to understand Maimonides' tort theory as it appears in the Code alone, and according to the common interpretation (the "yeshivah reading"). Several contemporary scholars, as well as rabbis from the Lithuanian yeshivot, identified a different element as an alternative to the element of peshiah, i.e., the element of ownership, and some say ownership and strict liability, by virtue of which liability is imposed for damage caused by a person's property. We will examine this approach critically and conclude that it does not accurately reflect Maimonides' position, for it raises serious difficulties, both conceptual-principled and exegetical. We will point to a trend of new explanations of the Jewish sources through the speculum of the common tort theories in the twentieth century in the world of Jewish law. Chapter 2 will leave us with many open questions, which will be answered in the subsequent chapters. The book contains three main parts: (a) Questions; (b) Answers; and (c) Dialogue. Chapter 2 presents the questions to be dealt with in the book. Chapters 3–6 supply answers, and Chapters 7–8 offer a dialogue between Maimonides and various contemporary tort theories.
Chapter 9 - Nuisance
Joanna Kyriakakis, Monash University, Victoria, Tina Popa, Royal Melbourne Institute of Technology, Francine Rochford, La Trobe University, Victoria, Natalia Szablewska, Southern Cross University, Australia, Xiaobo Zhao, University of Southern Queensland, Jason Taliadoros, Deakin University, Victoria, Darren O'Donovan, La Trobe University, Victoria, Lowell Bautista, University of Wollongong, New South Wales
Book: Contemporary Australian Tort Law
Print publication: 15 October 2019, pp 360-396
The Law of Bad Smells: Making and Adjudicating Offensiveness Claims in Contemporary Local Law
Mariana Valverde
Journal: Canadian Journal of Law & Society / La Revue Canadienne Droit et Société / Volume 34 / Issue 2 / August 2019
Print publication: August 2019
The sense of smell seems to have resisted the kind of objective measurement process that might have facilitated settling competing claims about offensive smells by applying a general rule or standard. As a result, authorities, including courts,cannot avoid making subjective judgements of taste. A nuisance lawsuit out of Ontario regarding a mushroom farm, or rather its smells, is used here as one source of material about the difficulties of adjudication in this subfield of the "law of the senses." Attention is also paid to a curious quasi-judicial entity, Ontario's Normal Farm Practices Protection Board, charged with resolving, mainly through mediation, disputes about farm smells between farmers and non-farming neighbours. Overall, the article shows that the ex post facto, situated and complaint-driven logic of nuisance that nineteenth-century law used to govern offensive noises as well as nasty smells, and which left plenty of room for subjective judgements of taste, keeps reappearing in the present day. Nasty smells seem particularly impervious to modernization, that is to being managed through objective measurement and preventive regulation.
13 - Self-help remedies
from Part 4 - Remedies as vindication
Katy Barnett, University of Melbourne, Sirko Harder, University of Sussex
Book: Remedies in Australian Private Law
Print publication: 07 August 2018, pp 369-387
THE LOCALITY PRINCIPLE IN PRIVATE NUISANCE
Journal: The Cambridge Law Journal / Volume 76 / Issue 1 / March 2017
Published online by Cambridge University Press: 03 April 2017, pp. 145-167
This article considers the principle in the tort of private nuisance that the level of protection to which one is entitled from certain kinds of interference is sensitive to one's locality. It argues that the principle can be partly justified by the different costs of avoiding an interference which different localities create. However, it shows that, if the principle is to be justified in its entirety, a further justification is necessary. The article considers further justifications based on social rules, autonomy, cost minimisation, the idea of a system of equal right and an analogy to the rules on hypersensitive claimants. It largely rejects these explanations and concludes that, to the extent the locality principle requires individuals to bear substantial burdens that they would not have to bear were collective interests set aside, without compensation, it is difficult to justify.
THE PUBLIC INTEREST IN PRIVATE NUISANCE: COLLECTIVES AND COMMUNITIES IN TORT
Maria Lee
Journal: The Cambridge Law Journal / Volume 74 / Issue 2 / July 2015
Print publication: July 2015
The relevance of public interests in private law is at the heart of some central divides in tort scholarship. This paper argues that public interests pervade private nuisance cases. The uncertain and contested nature of public interests, and the absence in both the case law and the scholarly literature of an abstract definition of what is to count as a public interest, do not prevent these matters from playing a significant role in tort. In these circumstances, it is important to reflect on how we might set about articulating the public interest. This paper argues that administrative decisions that are intended to serve the public interest can in some cases provide a defensible vision of public interest for the purposes of private law. An examination of the process by which regulatory decisions were reached can provide indicators to assist in identifying and evaluating the strength of claimed public interests.