"But I can remember very earnest argument that it would have handled issues
like water pollution without legislation if it had been permitted to
proceed back in the late 19th century."
Technically true, given the nature of riparian rights.
In practice, no. The evidence is what get referred to as "the railway
cases", mainly in England, a few in Canada, where common-law judges ruling
in common-law nuisance suits regarding nuisances created by the
construction of railways used reasoning which simply did not hold up to
dismiss such suits. The overall view that extending the railways was
important overrode any application of the law even in clear cases. (These
were mid-19th Century.)
Common-law remedies did in principle reduce the number of externalities to
activity such as building factories and railways, but they were not a
sophisticated way of doing so even if they had been applied. As it actually
happened, they were either restricted by legislation or simply ignored,
until the later (1930s) expansion of tort law to cover liability for
provision of goods and services (Donoghue v. Stevenson). But that's a
matter for a tort law post.
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timeasmymeasure
no subject
Date: 2021-04-24 02:03 pm (UTC)"But I can remember very earnest argument that it would have handled issues like water pollution without legislation if it had been permitted to proceed back in the late 19th century."
Technically true, given the nature of riparian rights.
In practice, no. The evidence is what get referred to as "the railway cases", mainly in England, a few in Canada, where common-law judges ruling in common-law nuisance suits regarding nuisances created by the construction of railways used reasoning which simply did not hold up to dismiss such suits. The overall view that extending the railways was important overrode any application of the law even in clear cases. (These were mid-19th Century.)
Common-law remedies did in principle reduce the number of externalities to activity such as building factories and railways, but they were not a sophisticated way of doing so even if they had been applied. As it actually happened, they were either restricted by legislation or simply ignored, until the later (1930s) expansion of tort law to cover liability for provision of goods and services (Donoghue v. Stevenson). But that's a matter for a tort law post.