Economic Efficiency, Nuisance, and Sewage: New Lessons from Attorney-General v. Council of the Borough of Birmingham, 1858–95
This paper examines the postlitigation history of an English nuisance case of 1858 concerning pollution of the river Tame caused by sewage from the city of Birmingham. This case is a classic citation that purports to illustrate the absence in English nuisance law of a social benefit defense for nuisance. As the court’s judgment in law found in favor of an individual landowner against Birmingham, population 250,000, property rights were manifestly awarded where benefits were lower. Coase’s theorem arguments would expect that postlitigation negotiations would ensue, and in this case such negotiations did occur but broke down. The legal conflict stretched on over nearly 40 years, while the pollution was, in practice, allowed to continue. The argument is made that the English court, in effect, by failing to enforce its decisions robustly, did take note of the calamitous social effects that would have followed a rigorous enforcement of the court’s orders.
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