“No Quixotry in Redress of Grievances”: How Community Abatement of Public Nuisances Disappeared from American Law

Abstract

AbstractBefore 1859, the right of any member of the public to abate a public nuisance existed unchallenged in American law as a judicially recognized form of popular justice. In that year, the decision inBrown v. Perkins, authored by Massachusetts Chief Justice Lemuel Shaw, restricted the right to those who had suffered particular injury. The decision grew out of a suit for damages by the owner of an illegal saloon, which had been sacked by a local mob. Reversing what Shaw himself had said in his charge to the jury in the same suit in the preceding year, it had little grounding in earlier American case law. Shaw's prestige and the apparent demands of public policy, however, helped win courts over to the new doctrine in relatively short order. The change was most enthusiastically promoted by judges and scholars of conservative leanings disturbed by the threat of popular excess and most resisted by those of more radical inclinations. It paralleled American law's broader shift in the same period toward centralized regulation and the constitutionalization of rights and powers.