Using Public Nuisance Litigation to Address Industrywide Misconduct: Common-Law Statutes, Nondelegation, and Regulation

In this Article, we assert that broad, open-ended public nuisance statutes offer a legitimate legal tool to curb public health harms caused by the unreasonable design, marketing, and distribution practices of product manufacturers. We argue that these statutes are "common-law statutes" by which legislatures authorize courts to apply the concept of public nuisance to new situations using common-law-style reasoning. We demonstrate that this understanding of public nuisance statutes is consistent with well-established interpretive traditions regarding the codification of common law. Statutory delegation of broad interpretive discretion to courts concerning the application of public nuisance law constitutes a legislative choice to regulate through litigation. We contend that the delegation to courts to elaborate on public nuisance law is no less justified than delegation to administrative agencies to exercise policy discretion through adjudication and rulemaking.