The Development of a Legal Rule: The Federal Common Law of Public Nuisance

Paul J. Wahlbeck

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Judicial and Constitutional Studies Legal and Constitutional Studies Law, Economics, and Judicial Systems

Abstract

Scholars from across disciplinary lines are interested in understanding legal development. One impediment to the quest for a systematic explanation has been measures of legal change. Indicators like whether a court overturns an earlier ruling capture one facet of legal change but fail to capture the full range of courts' actions to develop legal doctrine. I introduce an alternative measure of legal change here—one based on Levi's (1949) focus on whether factual circumstances are or are not encompassed by the law. I use the U.S. Courts of Appeals decisions on the federal common law of public nuisance to illustrate this measure. Utilizing a multinomial logit model to explore the appellate judiciary's decisions to develop this legal doctrine, I find that the judges' decisions to develop the federal common law are explained by the judges' policy preferences; the litigation environment consisting of party resources, attorney experience, and amicus support; as well as the broader political context of public opinion and Supreme Court rulings.

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References

1983Limited-dependent and qualitative variables in econometrics 1974Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change 1992Institutions and Social Conflict 1998Measuring Citizen and Government Ideology in the American States, 1960-93 1993The Supreme Court and the Attitudinal Model 1984Prosser and Keeton on the law of torts 1989Studying Institutions 2021The General Social Surveys

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