Boomer Twenty Years Later: An Introduction, with Some Footnotes About "Theory"
J.C. Dobris, Albany Law Review (1990), 54:171
neacsu, dana1/28/2018 For Educational Use Only 54 Alb. L. Rev. 171 Albany Law Review 1990 Symposium on Nuisance Law: Twenty Years After Boomer v. Atlantic Cement Co. Joel C. Dobris Copyright 1990 by the Albany Law School; Joel C. Dobris
It is obligatory that this introduction begin with the following quotation from Prosser: “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.”’1
I hope I can do Prosser proud.
Why the Boomer case and what is so special about it?
1990 marks the twentieth anniversary of Boomer v. Atlantic Cement Co.,2 the case that seemingly stood nuisance law on its ear.3
People have grown a little tired of it, but for many years the case was taught in three first year courses--Property, Torts and Civil Procedure--and in two upper class courses--Remedies and Environmental Law. It is the great fertile crescent of the first year curriculum, and it seems that the whole first semester of law school could be taught out of that one case.4
Pity the teacher who taught the case last. What was left to say after the students had dealt with it in two previous classes? As a *172 new teacher, I always killed myself preparing for Boomer day, because I knew it was one of the rare opportunities for students to directly compare teachers.
* * * The Atlantic Cement Company operated a plant in an initially unzoned5 and rural area outside of Albany, New York. The plant was as modern as such a facility could be.6 In a footnote to the court of appeals opinion, we learn that the plant represented an investment in excess of $45,000,000 and employed over three hundred workers7 in an area where jobs were scarce. Its anti-pollution equipment was said to have cost over $2,000,000.8 The cement company had a payroll of $3,000,0009 and was responsible for paying one-quarter of the property taxes and one-third of the school taxes in the township.10 The locus was zoned “heavy industrial” by the town board soon after construction began.11 The company also complied with New York State air pollution regulations.12
Cement is a powder which consists of various minerals extracted from the ground. It is then burned in a kiln and ground into a fine powder.13 The process produces a great deal of dust, or particulate, as well as smoke and vibration from blasting.14 The Albany site was ideal for cement production because the minerals were readily available for mining, and the Hudson River provided cheap transport. There *173 were already many cement plants in the valley,15 which also happens to be a most beautiful place.
The plaintiffs were homeowners, farmers and small business people who were complaining that the defendant was polluting the air, causing vibrations and the like. Boomer owned an auto junk yard, a fact that does not appear in most casebooks. One of the other plaintiffs owned a restaurant, inevitably called The Coach House. The area was somewhat humble, but that too does not appear in the casebooks.
It was a classic battle. The absolutely modern16 plant was ideally situated in relation to natural resources, producing a necessary commodity, and polluting the air in a rural place which was becoming suburban. As it stood, the choice was between development or sylvan dells. Jobs and cheap cement for buildings versus “green values.” The big guys against the little guys. Sound familiar? Lewin suggests that the Boomer case is a paradigm for the modern land use dilemma.17 I am inclined to agree.
The Boomer case began as an ordinary one, but the trial court did the unexpected. The homeowners claimed there was a nuisance. They sued for temporary damages up to the time of the trial, and for a permanent injunction against continuing the polluting activities.18 The expectation undoubtedly was that there would be a settlement or a judicial determination of nuisance, which would result in the issuance of a permanent injunction. Then it was likely the plaintiffs would sell the injunction back to the cement company. However, it was possible that the plant would have to modify its operations or even shut down. And, of course, there was always the risk the plaintiffs would lose.
Up until Boomer, the nuisance package was facially straightforward and simple. Nuisance almost always led to an injunction.19 So, if a *174 court did not want to issue an injunction, perhaps because it was the middle of the Great Depression and half the people in town worked at the plant,20 then the judge found no nuisance. However, if the court did find a nuisance and “not ‘unsubstantial’ [damage], viz., $100 a year,” then an injunction typically followed automatically.21
This package began to come undone at the trial level in Boomer. The trial judge found a nuisance, but refused to issue an injunction.22 Instead, he gave temporary damages from the time the nuisance began until the time of the trial.23 He suggested an amount of permanent damages that the plaintiffs ought to accept, in essence, for a pollution easement.24 The plaintiffs were presented with the alternative to sue from time to time for additional temporary damages. In other words, the trial court directed the Atlantic Cement Company to purchase the right to pollute from day one of the plant’s operation, to the date of the trial, which was represented by the amount of temporary damages awarded. The court’s solution suggested that a permanent right to pollute was being sold, at the price of the permanent damages. The plaintiffs did not take up this suggestion, choosing instead to appeal.
The refusal to issue an injunction was based, among other things, on the utility of the defendant’s conduct, its large investment, the modernity of its operations, and the harm the injunction would do to the public.25 The intermediate appellate court affirmed the finding of nuisance and the refusal to issue an injunction.26 The high court also refused to permanently or unconditionally enjoin the operation of the plant.27 It did issue an unusual permanent injunction, however, which was conditioned on the defendant cement company paying permanent damages to be set by the trial court.28
Practically speaking, the plaintiffs were forced to sell a pollution servitude at a price to be set by the court, instead of by negotiation *175 with the cement company.29 This circumstance denied the plaintiffs the opportunity for substantial gain that might have been obtained through bargaining. They also lost the right to shut down the plant, which right, in any event, would probably never have been exercised.
There was a bitter dissent from the court of appeals decision attacking the pessimism of accepting any amount of pollution.30 Judge Jasen read the majority opinion as creating a license to pollute and allowing the taking of an easement by the cement company as if it were a government authority exercising powers of eminent domain.31 The dissenter proposed a permanent injunction with enforcement to be delayed,32 itself a somewhat unusual form of relief.33
What makes the Boomer case special?
How do I love thee? Let me count the ways.
Let us step back and ask ourselves: What is a private nuisance cause of action? The black letter answer is that “[a] private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.”34 It finds its basis in the old maxim that one may not so use his property as to injure another in the use and enjoyment of his property--sic utere tuo ut alienum non laedas.35 The maxim’s origins are said to lie in an earlier century.36
Before proceeding, we must distinguish the separate cause of action of public nuisance, which lies outside the scope of the Boomer decision and of this introduction. A public nuisance is “one which affects an indefinite number of persons, or all the residents of a particular locality, . . . although the extent of the annoyance or damage inflicted upon individuals may be unequal.”37 In other words, “public nuisance protects public rights; private nuisance protects rights in the use and enjoyment of land.”38
*176 Let us return to private nuisance. We know that a nuisance is the nontrespassory and substantial interference with the use and enjoyment of the land of another. What is the abstract purpose of this cause of action? I agree with Lewin that, when all is said and done, the cause of action adjusts “the inherent tension between two aspects of . . . property rights:”39 one person’s right to use her property for her own benefit, and the other person’s right to be free of interference.
How does a court know if it is looking at a nuisance? Obviously, it depends on the facts and the particular state law applicable to those facts. Pragmatically, however, I would say that a typical court looks in a somewhat unstructured way at a number of factors, which include the substance of the defendant’s conduct, the negligence or non-negligence thereof, the location of the offensive use, the utility of the defendant’s conduct, the extent of the investments of both parties, the nature of the property interest interfered with, the substantiality of the harm to the plaintiff and the defendant if the court grants a remedy, and whether the plaintiff is overly sensitive or was second in time. In other words, we know a nuisance when we see one. If it looks like a duck and quacks like a duck, then it must be a duck. I hasten to add that the law of the local jurisdiction may say something else, but this is, I believe, how the inquiry usually proceeds. The court considers these various factors and decides if there is a nuisance.
After Boomer came down, there was a flurry of scholarly activity about what constitutes a nuisance.40 Although it would be difficult to prove, I think it is fair to say the Boomer case fomented that activity.41 Ironically, whether or not there was a nuisance was not a major issue in Boomer. The trial court decided there was a nuisance and that is where the matter lay.
Right or wrong, I think both before and after Boomer, nonscholastic lawyers42 would tell you that a court decides if there is a nuisance *177 by “balancing the equities.” One might ask just what gets balanced. Typically it is “the gravity of the harm to a plaintiff [versus] the social usefulness of a defendant’s activity.”43 This means that general loss to the public is weighed against the specific loss to the private land owner.44
If that is what is really happening, there won’t be many up-to-date cement plants found to be nuisances.45 Since a nuisance was found in Boomer, it seems obvious that a different test was used.
Post-Boomer, a variety of definitions for what is a nuisance, or how to approach the question of what is a nuisance, have appeared. Some are said to be the law and some are merely proposals. There is the “general reasonableness,”46 or quacks-like-a-duck test, where the court looks at all the factors. There is the “balancing the equities” test, where the court weighs the harm to the plaintiff against the utility of the defendant’s conduct.47 There is also a variety of what Lewin calls compensation principle theories, all of which go to the *178 most intriguing “issue in nuisance law: whether the utility of the defendant’s conduct can justify the infliction of nuisance damages without compensation.”48 Can “really swell” factories make homeowners miserable at no cost?
Simply put, the compensation principle requires “that a victim should receive compensation for injuries inflicted by others.”49 That seems a fairly obvious proposition, but I would argue that it took the unbundling of right and remedy in Boomer to make that simple statement possible.
Section 829A of the Restatement (Second) of Torts mandates compensation for severe harm to the plaintiff50 and section 826B mandates compensation for serious harm if an award will not put a socially worthy defendant out of business.51 While these rules do not guarantee compensation in all situations, they go part way down that road.
This unbundling or deconstruction of nuisance, which I will assign to Boomer for today, has led to several professorial responses, each of which are law and economics influenced and depend heavily on the unbundling of right and remedy that we find in Boomer.52 This unbundling allows for the entitlement to the resource, the air in this case, to be given to either the plaintiff or to the defendant.
As to that unbundling, I agree with Lewin that there are really only two legal questions in all of this: Is there a nuisance, and what is the appropriate remedy?53
I would also add that the really interesting aspect of Boomer was remedial. Boomer redefined nuisance remedies. It is fashionable right *179 now to show that nineteenth century cases provided precedents for the solution in Boomer.54 My answer to that is, no Boomer, no change.55
Before Boomer, the nuisance package was generally understood to be that any substantial interference with the use and enjoyment of the land of another would lead to an injunction. Thus, there was a catalog of but two remedies. One was no remedy, and the other was temporary damages through the date of the trial plus a classic injunction. The first left the “victim”56 with no hope for relief, unless that victim could convince the polluter to accept payment to abate the activity. The second left the polluter no course except paying the victim, or perhaps shutting down.
This limited choice of remedies created a crucial problem in nuisance law. There were circumstances when a court did not want to put the plaintiff in a position to close a plant, nor extract large gains from the defendant. Before Boomer, the court facing that situation would have likely felt obliged to find no nuisance.
Boomer solved this problem by moving the balancing of the equities test (the utility of the polluting activity versus the harm to the plaintiffs) to where it belonged--to the question of whether or not there should be an injunction.57 So, the problem of the unitary package of right and remedy was solved.
*180 Today, most academics would contend that there is a catalog of four theoretical outcomes for a nuisance litigation:58
First, no remedy. The plaintiff loses the lawsuit. This means the plaintiff must attempt to pay the polluter to stop polluting. It would be as if you tried to pay your neighbor to de-bark his dog, or pay the people at the next table in the restaurant to stop smoking.
The second remedy is the “compensated injunction.” Here the victim gets the injunction but has to pay the polluter. This is a great favorite of theorists,59 but has only been adopted in the Spur Industries v. Del E. Webb Development Co.60 case. So the compensated injunction is ultimately a novelty item from some academic rubber goods catalog. The glory of Spur is that it provides a cause of action that allows you to force the people at the table next to you to take your money to stop smoking. The plaintiff can force the defendant to sell relief without the risk of extortion or strategic behavior.61
The third outcome is damages only. This is what all the Boomer courts came up with in various forms.
The fourth outcome is the permanent injunction. This leaves the polluter in the position of having to pay the victim for the right to pollute.
*181 The property scholars’ love affair with the notion that damages are superior to the permanent injunction as a remedy for nuisance62 has its direct origins in the Boomer decision. Such a result is not difficult to understand, because Boomer went so much further than the typical case in vindicating hard-to-monetize damages for the plaintiff. On remand, the plaintiffs received much more than the difference between the market value of the property without the servitude and with the servitude, which had heretofore been the standard measure of damages. Thus, the usual complaint that damage awards insufficiently compensate losses that are hard-to-monetize (for example, subjective losses), did not seem as compelling after Boomer. The Boomer plaintiffs won a square deal in dollar terms.
Why are damages the darling of the property scholars? There are several reasons and arguments.
I think one reason is that justice seems to require compensating people for harms actually endured. Treating the injunction as the primary nuisance remedy sometimes has kept that from happening. Doctrines63 that fail to compensate plaintiffs who have been harmed leave us a little cold in the last decade of the twentieth century. Providing a damage remedy forces the polluter to consider the damage done to the plaintiff by operating the plant, without compelling the defendant to disgorge an inordinate share of profits.64 Damages allow the court to avoid the “balance of the equities” test at the level of *182 “was there a nuisance?” This method allows the court to provide relief to the plaintiff without having to shut down an industry with great utility, such as the Atlantic cement plant.
Also, efficiency arguments suggest that damages lead to more efficient outcomes and a more efficient allocation of resources. Lewin argues that if “profitability was not sufficient to allow [a business] to remain in business after . . . damages, then the inefficient activity would cease without the necessity of an injunction.”65 Therefore, no injunction was needed.66 He also agreed that “if an activity caused injury the cost of that injury should be made a part of the price of the goods. . . . and if the product were sufficiently useful socially, it would be able to make a go of it even though it had to bear the injury costs.”67 And as Lewin tells us, “Rabin believed that abatement [of the activity] would result whenever it was efficient (when the cost of abatement was less than the plaintiff’s damages) and that the defendant would pay damages whenever abatement was inefficient (when the cost of abatement exceeded the plaintiff’s damages).”68
Damages seem to solve the problem of buying out an injunction from a large number of plaintiffs through the avoidance of high transaction costs and holdouts.69 There is always a concern, however, that permanent damages will fail to monetize future health damage, or fail to inspire further efforts at nuisance abatement by the particular defendant. An answer to that problem seems to be pollution servitudes, or damages for a period of time instead of in perpetuity.70 On the other hand, perhaps we should just have faith in the courts’ ability, in view of the success of the Boomer trial court on remand, to come up with a higher dollar amount of damages that seemingly takes into account more than the drop in market value.
*183 Of course, there is much to be said for injunctions, too. They remove from the courtroom the setting of a price for plaintiffs’ damages and thus save the government time and money, although that cost may show up in the price of the product.
When the plaintiff is granted an unconditional injunction, he or she is perceived to win. That is something many of us like to see--the little guy winning the lottery and getting a piece of the big guy. The perception that society is working is worth a great deal. Sometimes justice favors giving the plaintiff some leverage to obtain some of the defendant’s gains.71 An injunction also avoids the risk that a court will underestimate the plaintiff’s true damages, although that did not seem to be the case in Boomer.
If we are secure in the idea that social welfare lies in protecting nuisance plaintiffs (little guys, residents or whoever), then injunctions may be the better remedy.72
* * * Boomer is also a case of procedural interest.
The high court refused to treat the litigation as global and insisted that the best way to advance social goals in a courtroom was to adjudicate the interests of the parties. Judge Bergan was roundly criticized for doing this in the Boomer decision.73 I think he was right. The “sin” he committed was to recognize the key question, which is: What amount of pollution are we willing to live with? In other words, he came close to speaking what was then unspeakable.
That is what made the critics74 and the dissent so unhappy in *184 1970. They were unwilling to face the fact that there has to be tolerance for some pollution as a matter of resource allocation and economic efficiency. Simply put, we do not drive around in cars that are exquisitely safe but cost a million dollars.
The remedy of permanent damages also made facing the social utility question possible. As Lewin puts it: Today, virtually all major sources of air and water pollution, as well as toxic waste disposal, surface mining, and coastal development, are regulated by detailed federal statutes. . . . [T]heir regulatory programs have largely supplanted the law of private nuisance at the forefront of our efforts to protect the environment.
Due to its inherent limitations, nuisance law generally has been relegated to marginal cases, involving small-scale, localized land use conflicts. Private nuisance litigation is most likely to involve disputes that primarily affect only the immediate parties. A frequent source of such disputes is the diversion of surface water in connection with residential and commercial developments.75 It is then a source of suburban and exurban law, the stuff of first year law school and simple litigation practice. It is a marvelous teaching tool.
I take it, moreover, that the current, or if I may say it, postmodern76 view, is that the Boomer court was right in a nuisance context. It is *185 now a given that “nuisance law [cannot] adequately respond to the problems of air and water pollution.”77 This conclusion is based on notions of civil procedure and the inherent limitations of the nuisance cause of action.
A more particular aspect of Boomer that I see as procedural involves the proper role of a judge in litigation. Is a judge to be a passive decider of the small questions brought before the court, or is the judge to actively reach out?78 I think it is fair to say that civil proceduralists are split. The Boomer case shows a modern flexibility as to remedy, but clings to the old notion of the judge as passive observer and referee rather than bold ombudsman and theorist.
* * * So, what is nuisance really about these days? I would say that nuisance law encompasses the following: the judicial zoning of unzoned land; determining how much of a “land moat” manufacturers are required to buy; approaching “green” problems through the common law; protecting and perhaps resetting Ellickson’s norms of neighborliness;79 a sullen and not so sullen use of law and economics by many law teachers and first year law students and a limited, but not unimportant, role in environmental litigation.
How do we know if we are looking at a nuisance in an era of law and economics after this constant and great outpouring of nuisance scholarship? When all is said and done the “determination of whether an activity constitutes an actionable private nuisance depends on the result of either [the old] balancing test or a vague standard of reasonableness.”80 In other words, I suspect the law in action remains much the same as it was twenty years ago. Farber suggests that Boomer has not led to a major unbundling of right and remedy.81 He tells us that most cases that cause a court to find a nuisance still lead to an injunction.82
*186 Like any other developed country, we do not really know where we stand on these matters. I think there is general sympathy of some sort with many “green” ideas. We are acutely conscious of our eighteenth century, Jeffersonian hierarchy of land use values--The Residential, Agricultural and Industrial. Yet, we are just as conscious of the role development has played in our prosperity. Our concerns are contradictory--we fear the decline of the American industrial empire, we have a love-hate relationship with business, and we want to see justice done.
At the end of the day, it seems to me that Boomer primarily stands for the proposition that a nuisance plaintiff must be compensated for damages suffered.83 It also stands for the proposition that those damages, however, should not be determined by the parties. The court should make that determination and take into account damages other than the diminution in property value.
While it is difficult to generalize about the shape of American nuisance law in 1990,84 Lewin may be correct in stating that “the compensation principle may eventually become the dominant theory of nuisance liability [in the next decade].”85 The compensation principle is found in Boomer as well as in the Second Restatement of Torts.86 It is not hard to reach the conclusion that a victim should receive compensation for her injuries.
Thus, I agree with Lewin’s observation that in most states, nuisance law has not evolved substantially in the past hundred years. The primary difference is that today, most jurisdictions explicitly balance equities with respect to the issuance of injunctive relief.87 Not much has really happened in the courts since Boomer and Spur.88 The scholars have had a field day, but things keep chugging along as they have in the past.89 I think it may be unrealistic to expect these highly *187 theoretical remedies90 to be successful in solving problems which are so suffused with human issues91 in the real world.92
Footnotes a Professor of Law, University of California, Davis. I wrote this introduction while on sabbatical from the University of California, Davis. During that time, I was an academic visitor at the London School of Economics, Law Department and at the Institute of Advanced Legal Studies in London, England. In addition, I was a resident of William Goodenough House which is maintained by the London House Trust. I wrote this on a computer given me by my Aunt Dorothy Lazoroff. I thank all of them for indirectly subsidizing my work. I also thank Jack Ayer, Linda Dobris and Eric, whose last name I do not know, for their ideas and for listening to mine. 1 W. KEETON, D. DOBBS, R. KEETON & D. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS § 86, at 616 (5th ed. 1984). 226 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970). 3 This is a symposium about Boomer twenty years later. I suggested a Boomer symposium to the Albany Law Review for several reasons, some obvious and some not. I think Boomer and its history is a paradigm for all that legal education and law are about these days. As it happens, I was born and raised in Albany, New York, and I often pass the cement plant that was at issue in the Boomer case. Judge Frank Bergan, the author of the Boomer opinion, is a friend of my family and he wrote letters of reference for me, both when I applied to law school and when I was nominated for membership in the American Law Institute. I also played football with Frank Bergan’s two sons, or more accurately, I watched from the bench as they played. Moreover, my father, M. Michel Dobris, went to Albany Law School, and my mother and my Aunt Dorothy Lazoroff made contributions to the school. I have always wanted to write something for the Albany Law Review. 4See generally Rabin, Environmental Liability and the Tort System, 24 HOUS. L. REV. 27, 27-28 (1987) (stating that law “students seem to encounter [Boomer] in every third course they take”). 5See Recent Decisions, 35 ALB. L. REV. 148, 153 & n.49 (1970). 6Id. at 155 (citing Boomer v. Atlantic Cement Co., 30 A.D.2d 480, 481, 294 N.Y.S.2d 452, 453 (1968), rev’d,26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970)). 7Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 225, 257 N.E.2d 870, 873, 309 N.Y.S.2d 312, 316 (1970). 8 Farber, Reassessing Boomer: Justice, Efficiency, and Nuisance Law, in PROPERTY LAW AND LEGAL EDUCATION: ESSAYS IN HONOR OF JOHN E. CRIBBETT 7, 10 (1988) (citing Respondent’s Appendix at 30-31, Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970) (No. 5907-66)). 9Id. at 10 (citing Respondent’s Appendix at 15-16, Boomer (No. 5907-66)). 10 Recent Decisions, supra note 5, at 155 n.56. It is interesting to note that these figures are in 1965 dollars. 11Id. at 153 n.49. 12Id. at 153-54. 13 We must not forget that Boomer is about cement. It is a very concrete problem, if you will. In Asia, to control cement is to control most things. See Asian Cement, Pour Me A Cup, ECONOMIST, Dec. 2, 1989, at 80 (U.S. ed.). 14Boomer v. Atlantic Cement Co., 55 Misc. 2d 1023, 1024-25, 287 N.Y.S.2d 112, 114 (Sup. Ct. 1967), aff’d,30 A.D.2d 480, 294 N.Y.S.2d 452 (1968), rev’d,26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970). 15Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 223, 257 N.E.2d 870, 871, 309 N.Y.S.2d 312, 315 (1970). 16Boomer, that great Tigres and Euphrates valley of law that was once studied in Property, Torts and Civil Procedure, has come to be representative of the most modern of cases, and we all love to be modern. Modern is that most rabbitty of rabbit words. He who puts the rabbit in the hat, is the master of the day. I would say that today’s law teachers and law students are acting in a movie about the rabbit going into the hat. Indeed, this is part of the thrust toward the ultra-theoretical in law schools today. What’s new, what’s hip, what’s the password, what will be thrown at me at the next cocktail party. Boomer was modern in its easy but unspoken fit with law and economics. It was perhaps even postmodern in its embrace of unbundling--an unbundling of right and remedy if nothing else, unbundling that was a bit of premature deconstruction, if you will. 17See Lewin, Boomer and the American Law of Nuisance: Past, Present, and Future, 54 ALB. L. REV. 189, 221 (1990). 18Boomer, 55 Misc. 2d at 1024, 287 N.Y.S.2d at 113. 19But see Halper, Nuisance, Courts and Markets in the New York Court of Appeals, 1850-1915, 54 ALB. L. REV. 301, 303-04 (1990). 20See Bove v. Donner-Hanna Coke Corp., 236 A.D. 37, 258 N.Y.S. 229 (1932) (holding, in the era of the Great Depression, that a particular industrial area of Buffalo was well-suited to entertain the defendant’s coke oven, and that therefore, it was not a nuisance). 21Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 224, 257 N.E.2d 870, 872, 309 N.Y.S.2d 312, 315 (1970). 22Boomer, 55 Misc. 2d at 1024-25, 287 N.Y.S.2d at 113-14. 23Id. at 1025, 287 N.Y.S.2d at 114-15. 24Id. at 1026, 287 N.Y.S.2d at 115-16. 25Id. at 1024-25, 287 N.Y.S.2d at 113-14. 26Boomer v. Atlantic Cement Co., 30 A.D.2d 480, 294 N.Y.S.2d 452 (1968), rev’d,26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970). 27Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 228, 257 N.E.2d 870, 875, 309 N.Y.S.2d 312, 319 (1970). 28Id. 29See Halper, supra note 19, at 301-02. 30See Boomer, 26 N.Y.2d at 228-32, 257 N.E.2d at 875-77, 309 N.Y.S.2d at 319-22 (Jasen, J., dissenting). 31Id. at 230, 257 N.E.2d at 876, 309 N.Y.S.2d at 321. 32Id. at 231, 257 N.E.2d at 877, 309 N.Y.S.2d at 322. 33But see Halper, supra note 19, at 354 (stating that “[t]he Boomer ‘solution,’ . . . was not new twenty years ago, except insofar as it may have contradicted more recent decisions of the [New York Court of Appeals]”). 34RESTATEMENT (SECOND) OF TORTS § 821D (1977). 35 Lewin, supra note 17, at 196. 36Id. 37 BLACK’S LAW DICTIONARY 1065-66 (6th ed. 1990). See also RESTATEMENT (SECOND) OF TORTSSSSSSS § 821B(1) (1977) (defining public nuisance as “an unreasonable interference with a right common to the general public”). 38 J. DUKEMINIER & J. KRIER, PROPERTY 818 (2d ed. 1988). Most courts respect this conclusion “no matter how many landowners are involved.” Id. 39 Lewin, supra note 17, at 199. 40Id. at 219 nn.156-57 (citing numerous scholarly articles addressing nuisance law). 41 I might note that much of the post-Boomer activity had a law and economics flavor. Of course, the mother of it all is Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960). 42 It used to be that the law schools were controlled by people who were very bright, but who were usually not classic intellectuals. They were people who loved law school and who never left it in any real sense. They often were bored in undergraduate school or found more interesting things to do there. They went to law school to find a way to make a living and instead found a way of life. Suddenly, they were the ones who knew the passwords. Now the passwords have changed and a different type of folk have seized the high ground. They are still English majors, only now some law schools seem to belong to the people who are bored by them, as opposed to those who fell in love with them. And, in the spirit of post-60s social modernism, they have seized and changed the schools instead of embracing them. What is it about abstraction and fancification that seems to be carrying the day? Strangely enough, I find a bit of an answer in a piece in The New Yorker that has a scrap of jazz history in it: [The] bebop movement . . . ushered in a new hipster militancy along with the intricate music that they had developed . . . the music they played for themselves. When the boppers began to get engagements, they didn’t care if you couldn’t dance to their music; they wanted you to listen--or rather, they let you listen. Bebop never became widely popular; it was a jazz avant-garde movement, and the music, which seemed very demanding at the time, angered many of the older jazz musicians (possibly because bop intellectualized their music, speeded it up, made it abstract, and brought it new shades of emotion). The boppers didn’t try to be ingratiating; they barely acknowledged the audience’s existence. Kael, Bird Thou Never Wert, NEW YORKER, Oct. 17, 1988, at 110. I think the quote tells it all. Culturally, we are inevitably drawn to the hip, the militant, the intricate, the uncaring, the designers, the avant-garde, the intellectualizers, the abstract; those who most often refuse to acknowledge us. Remember, for instance, high school dating? See K. ACKER, BLOOD AND GUTS IN HIGH SCHOOL (1984). In some sense, it is a miracle that law school has lasted as long as it has. And, as to critical legal studies, American intellectuals have always been suckers for anything French or left wing. Today it seems that no person of intelligence can devote time or spirit to Marxism. That person has to do something. So time and energy go to disciplines outside one’s own--philosophy, social philosophy, interpretation theory, feminism and, of course, postmodernist reading. Not to mention what students of literature call Theory. 43Little Joseph Realty, Inc. v. Town of Babylon, 41 N.Y.2d 738, 745, 363 N.E.2d 1163, 1168, 395 N.Y.S.2d 428, 433 (1977); see C. HAAR & L. LIEBMAN, PROPERTY AND LAW 1151 (2d ed. 1985) (summarizing Little Joseph Realty, 41 N.Y.2d 738, 363 N.E.2d 1163, 395 N.Y.S.2d 428). 44See J. DUKEMINIER & J. KRIER, supra note 38, at 809 (referring to a quote from Mahoney v. Walter, 157 W. Va. 882, 890, 205 S.E.2d 692, 698 (1974)). 45See Halper, supra note 19, at 304. 46 Lewin, supra note 17, at 235. 47RESTATEMENT (SECOND) OF TORTS § 826(a) (1977). 48 Lewin, supra note 17, at 220. 49Id. at 278. 50RESTATEMENT (SECOND) OF TORTS § 829A (1977) (stating that “[a]n intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if the harm resulting . . . is severe and greater than the other should be required to bear without compensation). 51Id. § 826(b) (stating that such an invasion is unreasonable if “the harm caused . . . is serious and the financial burden of compensating . . . would not make the continuation of the conduct not feasible”). 52 For example, Ellickson suggested assigning liability to the least-cost-avoider, that is, to the party who can more cheaply deal with the problem. In a Boomer-type situation, that will usually be the cement plant. See Lewin, supra note 17, at 250 (citing Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681, 724-28 (1973)). Rabin suggested assigning the entitlement to clean air on the basis of fairness. See Lewin, supra note 17, at 254 (citing Rabin, Nuisance Law: Rethinking Fundamental Assumptions, 63 VA. L. REV. 1299, 1312-17 (1977)). 53 Lewin, supra note 17, at 238. 54See Halper, supra note 19, at 305-06. See also Schwartz, The Character of Early American Tort Law, 36 UCLA L. REV. 641 (1989) (reviewing the early nineteenth century tort cases of South Carolina, Delaware and Maryland, and theorizing that these decisions provide ample foundation for a Boomer-type solution). The crisis of deconstruction or ultramodernism or postmodernism or theory, or whatever, among younger law professors is, in part, a consequence of unsettling cultural changes in society. Equilibrium and maturity of ideas elude us. Self-publicists with showy styles and a hunger for publicity hope to lead us. Postmodern “deregulation” of law has demolished the old conviction that there is a unifying theory or agreement about law. We glorify political philosophy and social philosophy, yet shamefully neglect anthropology, sociology and to some extent history. Of course, Halper does not. See Halper, supra note 19. What does this have to do with Boomer? A great deal, I think. The Boomer court, and specifically Frank Bergan, understood what law is about. I think we are still very much enmeshed in the nineteenth century. I think Halper understands this. See id. Indeed, much less progress in legal thinking has been made since the eighteenth century than most people imagine. Few lawyers have (or ever will) read John Locke, let alone twentieth century social philosophers, or late twentieth century postmodern revisionists, deconstructionists, decompositionists, reconstructionists and the like. The general society is just grudgingly getting used to ideas of the first three decades of the century and can still be scandalized, or convulsed with laughter, by references to fin-de-siecle Vienna. The postmodernists are very much more in rebellion against the nineteenth century than any of them would ever care to admit. 55 Which is not to deny the convincing nature of Halper’s article. See Halper, supra note 19. 56See Farber, supra note 8, at 12-13 (defining “‘victims”’ as “those on the receiving end of the nuisance”). 57See Lewin, supra note 17, at 250 (discussing Ellickson, supra note 52, at 720-21). 58 I am ignoring self-help and the possibility of securing action from the government. See C. DONAHUE, T. KAUPER & P. MARTIN, CASES AND MATERIALS ON PROPERTY 1051 n.7 (2d ed. 1983) (noting that landowners also have “the possibility of securing public action of some sort”); Special Project, Self Help: Extrajudicial Rights, Privileges and Remedies in Contemporary American Society, 37 VAND. L. REV. 845, 868 (1984) (stating that a person may use reasonable force in abating a nuisance after the tortfeasor knows of the nuisance and fails to cure it). 59 Why has “theory” swept the fancier law schools and why is the theory tide beginning to ebb away everywhere except in law school? Undergraduates love it. It’s sexy. It’s easy to learn. It explains everything. You don’t even have to read that much. Those undergraduates are going to law school and demanding an extension of their undergraduate liberal arts educations. Law school can be boring and as the Situationists said, in another context of course, “[b]oredom is always counterrevolutionary.” (Postcard and wall slogan from the “The Situationist International 1957-1972,” a show at the Institute of Contemporary Arts in London, held in the summer of 1989). The card also tells us, “[s]logan to be spread by every means.” I am doing my part. Boredom is revolutionary, of that I am sure in the context of this essay. Boredom is counterrevolutionary as well, which will eventually limit the revolutionary influence of philosophy, feminism, criticism, interpretation, semeiotics, hermeneutics and neo-Marxism on the law. Dare I say it? That stuff can be pretty boring, too. Unless, of course, you are one of the folks, including the language people and the economists, who like to read the philosophers and the social critics. Boomer seems so straightforward. One can read it and understand it and not have to be someone who “has read the philosophers and social critics . . . . [and who] scoffs at materialism and strivers after success.” R. BAKER, THE GOOD TIMES 8 (1989). 60108 Ariz. 178, 186, 494 P.2d 700, 708 (1972). 61 Although this is a Boomer symposium, one just cannot seem to discuss Boomer without at least mentioning Spur Industries v. Del E. Webb Dev. Co., 108 Ariz. 178, 494 P.2d 700 (1972). In the Boomer situation, courts can always enjoin the conduct and make the plaintiff pay damages to the defendant. That is Spur. See Lewin supra note 17, at 248-49 (discussing Spur). 62See Halper, supra note 19, at 301. 63 Fancy law professors do theory now. They certainly do not do doctrine. It is a little bit like what would happen if all the fancy civil engineering professors in the country stopped worrying about designing bridges and started to devote all of their time to bridge philosophy. A neo-Marxist view from the bridge, postmodern bridge engineering and the like. You might get a little worried driving down the freeway. I think it is fine to have some number of people, who are well-suited to it, considering law at the highest level of abstraction and in the most learned of contexts. However, I think that an important part of the brainpower of the law professorate should focus on improving the functional law and the quality of the lives of the people who are governed by the law. It is a mistake to have too many law professors doing theory. Why theory? Theory has swept all fields and put the traditionalists on the defensive. Theory avoids long apprenticeships, theory avoids taking “boring” things seriously, theory is clean and high-minded, theory gives you lots of room to maneuver within the boundaries of definitions and new inventions, theory does a great job of marking off “them” from “us.” We are dealing with a cult or series of subcults and they represent the revenge of the nerds, who are triumphing because we are in the midst of a postmodernist malaise. Law schools and law reviews are allowing the hunger civilized people have for taxonomy and hierarchical organization to mislead them. I think we are looking not at some marvelous late twentieth century development, but rather at a product of nineteenth century western industrial culture. We are allowing exhibitionists to lead us. See Lasson, Scholarship Amok: Excesses in the Pursuit of Truth and Tenure, 103 HARV. L. REV. 926, 927 (1990) (disparaging the demise of the “genuine scholars of yesteryear”). 64 Lewin, supra note 17, at 255-56. 65Id. at 242 (citing Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499, 534-40 (1961)). 66 This of course meant that if “damages were widely dispersed” an injunction might be needed because then “an enterprise might not be held liable for all of the damage it caused.” Id. 67Id. (quoting Calabresi, supra note 65, at 537). 68Id. at 256 (discussing Rabin, supra note 52). There is a tendency to favor damage remedies over injunctions on the grounds that they are better able to achieve the efficient outcome by avoiding strategic behavior and to promote the desired distributional outcome by avoiding extortion and allowing bonus payments. See id. at 259 (citing Polinsky, Resolving Nuisance Disputes: The Simple Economics of Injunctive and Damage Remedies, 32 STAN. L. REV. 1075, 1077-80 (1980)). 69See id. at 263 (citing Travalio, Pay Up or Shut Down: Some Cautionary Remarks on the Use of Conditional Entitlements in Private Nuisance Cases, 38 U. FLA. L. REV. 209, 230-51 (1986)). 70See id. at 265 (citing R. POSNER, ECONOMIC ANALYSIS OF LAW § 3.7 (3d ed. 1986)). 71See id. at 259. 72 d. at 261 (citing Polinsky, supra note 68, at 1103-06). 73See infra note 74. 74 The critics of the New York Court of Appeals’ treatment of Boomer tended to be law students. See e.g., Comment, Air Pollution, Nuisance Law, and Private Litigation, 1971 UTAH L. REV. 142, 144-45 (stating that the court avoided facing the “environmental crisis” by arguing that the other branches of government are the proper sources for solutions; however, “[t]he very enormity of environmental problems . . . requires responsive action from all branches of state and federal government”); Note, Environmental Law--Individual’s Right To Injunction in a Private Nuisance Suit, 19 KAN. L. REV. 549, 558 (1971) (arguing that there was an unconstitutional ‘taking’ of plaintiff’s property in Boomer and that “the court’s approach [ran] counter to strong policy considerations by failing to consider either long-run economic costs or the need for a pollution-free environment”). The bourgeois criterion that it does not work is often of no concern to young people and to intellectuals. See Howard, Capitalism, Chronicle of Success, The Independent, July 21, 1989, at 19, col. 4. Historically, it has been of much concern to law professors. Eventually, I believe, academic lawyers will remain concerned and the esoterics who yearn to do theory will stay on, but as special team members, not as people who play for sixty minutes. Not all schools can be academies of social science nor can all faculties. Somebody has to build the bridges. Boomer is about pragmatism and the art of the possible. That is why the law review commentators originally hated it. Youth is taken inextricably with whole systems that explain all. Students love whole systems that they can master, that explain everything, and that promise to make the world a more lucid, if not better, place. Pragmatism and inconsistency are often so offensive to the young and to the intellectuals. Never the Roman when one is young--always the Greek. To accept the notion that things have to work when one is young is so unattractive, so accountant-like, so bourgeois, so like the suffocating arms of one’s parents and their house. One of the great lessons that the maturing bourgeois mind learns is that there is no obligation to be consistent. See generally, P. JOHNSON, INTELLECTUALS (1988) (presenting a hostile series of biographies of some intellectuals). The human hunger for structure is never stronger than when one is young. The unstructured is an embarrassment, an offense, a zit crying out to be cleansed. We all seek to strike the chaos, to find or at least understand the elegant theory, especially when we are young. Yet I see so much of the law as being pragmatic, decent, human and accepting of inconsistency. I have never felt that one had to be an idealogue to deal successfully with the law and its problems. A sharp wit, a sense of decency and people coupled with a sense of duty would suffice. One also needs to “understand humanity’s dreams and sorrows.” R. BAKER, supra note 59, at 8. I would cite Earl Warren as proof enough and move right on. Or Judge Bergan as I imagine him to be. And Boomer. 75 Lewin, supra note 17, at 229-30 (footnotes omitted). 76 On August 26, 1990, the LEXIS combined law review files data base contained the word “postmodern” in 90 instances. 77 Lewin, supra note 17, at 229. 78 The single most influential and interesting piece in that regard is the Chayes piece in the Harvard Law Review. See Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976) (discussing the role of the judge in civil litigation). 79 Lewin, supra note 17, at 250-51 & n.319 (stating that the standard of “neighborliness” would not substantially deviate from the “reasonableness” standard of negligence cases) (citing Ellickson, supra note 52, at 728-33). 80Id. at 276. 81 Farber, supra note 8, at 12. 82See id. The incredible and growing disjunction in both law and legal education between theory and practice could be the topic of another article or even a book. 83See Lewin, supra note 17, at 216-18. 84See id. at 229-36. 85Id. at 236. 86See id. at 273-75; RESTATEMENT (SECOND) OF TORTS §§ 826, 829A (1977). 87Id. at 206. 88 Not all jurisdictions are “up to date” in their nuisance law. See Gearty, The Place of Private Nuisance in a Modern Law of Torts, 48 CAMBRIDGE L.J. 214, 216 (1989) (arguing that the environmental tort of private nuisance “has been markedly underutilized in the battle against pollution”); Spencer, Public Nuisance--A Critical Examination, 48 CAMBRIDGE L.J. 55 (1989). Gearty is a source of wonderful quotes about nuisance law. 89See, e.g., Ellickson, supra note 52; Sterk, Neighbors in American Land Law, 87 COLUM. L. REV. 55 (1987). 90 As useful and as elegant as those solutions may be, “[a]bove all, we must at all times remember what intellectuals habitually forget: that people matter more than concepts and must come first. The worst of all despotisms is the heartless tyranny of ideas.” P. JOHNSON, supra note 74, at 342. 91 “I am . . . moved by two overriding beliefs: that law’s terrain (and the lawyer’s terrain) must be the realities of life, in all their tangled complexity; and, further, that we almost always pay a price when lawyers ignore the humanity of their subjects.” Gewirtz, A Lawyer’s Death, 100 HARV. L. REV. 2053, 2055 (1987). 92 I often regret that the new world of law schools so often seems to see no virtue in experience or in quiet pragmatism. As Holmes told us, “[t]he life of the law has not been logic: it has been experience.” O. HOLMES, THE COMMON LAW 1 (1881).