By Benjamin Goes
Benjamin Goes graduated from Albany Law School, magna cum
laude, in December 2018. He has a
Bachelor of Science degree in Economics from SUNY Albany. Ben currently serves on the Guilderland Board
of Education and is involved in various educational reform movements.
Since the publication of Ronald Coase’s The Problem of Social Cost and the concomitant development and popularization of the field of law and economics, courts and legislatures have been encouraged to consider the principles of economic theory in the course of their decision-making. This seems entirely proper.
Economics is a science for studying the condition and activity of human life. And law is a normative institution attempting to maintain and improve the condition of human life. However, attempts to employ economic concepts without truly understanding them, or employing them narrowly, can be a dangerous practice, leading to decisions which are sound from neither a traditionally legal nor an economic aspect.
One particularly striking example of a court embracing a seemingly economic approach to solving a social problem is the New York Court of Appeals’ 1970 decision in Boomer v. Atlantic Cement Co.
In this case, plaintiff landowners sought an injunction to prevent defendant cement factory from continuing to damage their property by its emittance of smoke, dust, and vibrations. The lower courts found that the defendant’s operations did constitute a nuisance to plaintiff’s property. But those courts denied plaintiffs an injunction due to the “large economic disparity in economic consequences of the nuisance and the injunction.” Instead, the courts simply ordered the payment of temporary damages.
The Court of Appeals reversed. New York's high court did so in accordance with the long-established state rule that whenever the damage resulting from a nuisance is found to be “not insubstantial,” an injunction would be granted.
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