Imagine that an automaker makes a car that meets every applicable federal safety standard, is sold to millions of willing customers, and operates exactly as intended. But that particular car became a target for thieves, allegedly because it did not contain an engine immobilizer, which wasn’t required.
Major automakers deal with the everyday pressures of a competitive industry: rising material costs, supply chain headaches, and shifting consumer demands. Now, on top of that, they have to worry about getting dragged into court, not because they built a defective product, but because a creative lawyer now wants them to pay for the cost of crime in a city.
Recommended Stories
Questionable lawsuits like these pull resources away from innovation, job creation, and actual vehicle safety improvements, and inevitably drive up prices for the very consumers these lawsuits claim to be helping — and, for many businesses, can become an existential threat.
Multiply that story by thousands of other businesses and industries, and you begin to see the scale of a legal crisis that has been building for years, largely out of public view. It is a crisis that touches everything from the price of a car to the cost of a gallon of gasoline, and it operates under a legal theory so elastic it can be stretched to cover almost anything: public nuisance.
Public nuisance is among the oldest legal doctrines. For centuries, it meant something specific and limited. Someone dumping garbage or waste on public property. A landowner blocking a public road. A genuine, tangible interference with a right shared by the community. Courts understood the boundaries, and the doctrine generally worked.
Then the trial bar maneuvered to repurpose it, turning it into a catch-all claim that could be used against almost anything. Over the past two decades, trial lawyers have systematically distorted public nuisance from a narrow remedy into an all-purpose weapon against lawful businesses. They have deployed it against paint companies, automobile manufacturers, mortgage lenders, fossil-fuel producers, and makers of building materials, to name but a few.
The pattern is always the same. Identify a product sold legally and in compliance with existing laws and regulations. Connect it, however loosely, to some broad perceived societal harm. Then argue that a courtroom, rather than a legislature, is the proper venue for rewriting the rules.
The numbers tell the story. In 2018, public nuisance filings peaked at 2,025 complaints. And 2,100 claims have been filed over the past three years. Roughly 30% of public nuisance claims filed each year are novel, meaning the trial bar is continually probing for new industries and new theories to exploit.
The reason is not hard to find. Traditional legal frameworks, such as product liability and consumer protection laws, call for more evidence to bring a valid claim. They require proof of specific defects, identifiable victims, and direct causation. Public nuisance, by contrast — because of what it was historically intended to address — has become a blank canvas. Plaintiffs’ lawyers are skipping past those requirements entirely to attempt to present sweeping social-policy arguments to judges and juries. Audiences that were not intended to make such decisions.
This is using the courts to make policy, and it carries enormous costs. Defendants with no connection to the harms alleged spend millions in legal fees fighting claims that may drag on for years. Those costs do not vanish. They are passed on to consumers and workers through higher product and insurance costs, as well as fewer, lower-paying jobs. Entire communities also bear the costs through reduced product choices. The U.S. Chamber of Commerce’s Institute for Legal Reform estimates that the total burden of tort litigation already costs American households roughly $4,200 a year.
Recently, there has been reason for cautious optimism. A growing number of states have begun to push back. Legislators in six states filed bills this session to codify the use of public nuisance and bring it back to its common-law purpose and meaning. But lawmakers aren’t just filing bills — they are getting them signed into law. Utah led the way when Gov. Spencer Cox (R) signed House Bill 591, making it the first and most comprehensive public nuisance reform bill enacted this session. Kansas also recently enacted a law that restores meaningful boundaries around public nuisance. Oklahoma and Montana enacted similar reforms last year. Ohio lawmakers are now actively considering their own version.
The principle uniting these efforts is simple and should not be controversial. Courthouses exist to resolve legal disputes, not to serve as alternative legislatures when activists and their lawyers fail to persuade elected representatives. When a legal doctrine has no limiting principle, it ceases to be law and becomes a tool of coercion.
WASHINGTON SECRETS: ONE WEEK AWAY FROM PEACE IN IRAN, AGAIN
The Institute for Legal Reform has been working with state policymakers and local chambers of commerce across the country to advance these protections. The goal is not to shield bad actors from accountability. Existing statutes already provide robust remedies for genuine harm. The goal is to ensure that the legal system functions as an institution of justice rather than a casino where trial lawyers place bets with other people’s money.
The next time you walk into a dealership, browse the lot, and drive off in a new car, know that embedded in that sticker price, invisible but real, is the cost of a legal system that has been allowed to drift far from its original purpose. These automakers simply provide a safe product that millions of people rely on every single day to transport their families, go to work, and travel this great nation. No manufacturer should need a team of defense attorneys simply because a criminal chose to steal their product, and no consumer should be the one paying for it.
Stephen Waguespack is the president of the U.S. Chamber of Commerce’s Institute for Legal Reform.
