1. Posner, Richard A., “Wealth Maximization and Judicial Decision-Making,” International Review of Law and Economics 4 (1984): 131–35.CrossRefGoogle ScholarPosner, Richard A., Economic Analysis of Law, 3d ed. (Boston and Toronto, 1986), 54–57, 147–60 ff.Google ScholarLandes, William M. and Posner, Richard A., The Economic Structure of Tort Law (Cambridge Mass., 1987), 4–9, 29–53CrossRefGoogle Scholar, Posner, Richard A., “A Theory of Negligence,” Journal of Legal Studies 1 (January 1972): 29–96.CrossRefGoogle ScholarManson, William D., “A Reexamination of Nuisance Law,” Harvard Journal of Law and Public Polky 8 (Winter 1985): 185–211.Google Scholar

2. Coase, Ronald, “The Problem of Social Cost,” Journal of Law and Economics (Oct. 1960): 1–44.CrossRefGoogle Scholar

3. Ibid., 16. Pollution problems are characterized by high transaction costs because the complicated nature of pollution (many polluters, many victims) makes it difficult for polluters and victims to bargain effectively with each other. There are also bilateral monopoly problems associated with pollution.

4. Posner credits Calabresi, Guido, “Some Throughts on Risk Distribution and the Law of Torts,” 70 Yale Law Journal (1961): 499CrossRefGoogle Scholar as well as Coase, “The Problem of Social Cost,” as establishing the intellectual foundations of the modern law and economic field. Posner, Economic Analysis of Law, 19–20.

5. Coase, , “Problem of Social Cost,” 19. Posner, , Economic Analysis of Law, 20Google Scholar

6. Posner, Richard A., “Some Uses and Abuses of Economics in Law,” 46 University of Chicago Law Review (Winter 1979): 283–84, 288–89.CrossRefGoogle ScholarPosner, Richard A., The Economics of Justice (Cambridge, Mass., 1981), 4–5Google Scholar; Posner, Economic Analysis of Law, 19–22, 229–38; Posner, “Wealth Maximization,” 132.

7. Posner, , Economics of Justice, 174–206.Google Scholar

8. Ibid., 5.

9. Hurst, James Willard, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison, 1956).Google ScholarHorwitz, Morton J., The Transformation of American Law, 1780–1860 (Cambridge, Mass., 1977).Google ScholarFriedman, Lawrence M., A History of American Law (New York, 1973).Google ScholarScheiber, Harry N., “Instrumentalism and Property Rights: A Reconsideration of American Styles of Judicial Reasoning in the Nineteenth Century” Wisconsin Law Review (Spring 1975): 1–18.Google Scholar For a recent summary of the literature on this subject see Pisani, Donald J., “Promotion and Regulation: Constitutionalism and the American Economy,” 74 Journal of American History (December 1987): 740–68.CrossRefGoogle Scholar Pisani summarizes the prevailing view of the role that doctrinal changes in tort law played in promoting industrial development at pp. 747–49, touching on the issue of pollution. Hovenkamp, Herbert, “The Economics of Legal History,” 67 Minnesota Law Review (February 1983): 645–97Google Scholar, contains an interesting comparison of Posner's efficiency theory and Horwitz's subsidization thesis.

10. Posner, , Economic Analysis of Law, 233–38.Google Scholar Hovenkamp, “Economics of Legal History,” 647–58. The argument gets quite technical. Posner acknowledges that the law did not promote pure, Pareto optimal efficiency in the economy (in which at least one person was made better off by the outcome of a legal decision and no one is made worse off). He argues, however, that the law did promote a less ideal but still welfare enhancing form of efficiency, Kaldor-Hicks efficiency (in which those who benefit from a legal decision gain more than the losers lose, so that there is a potential for the losers to be compensated for their loss, though this need not take place for Social welfare to be increased.) Posnercalls this sort of efficiency “wealth maximizing” efficiency. Posner, and Landes, , Economic Structure of Tort Law, 16–17Google Scholar; Posner, , Economic Analysis of Law, 11–15.Google Scholar

11. Posner, “Uses and Abuses of Economics in Law,” 292–94; idem, “A Reply to Some Recent Criticisms of the Efficiency Theory of the Common Law,” 9 Hofstra Law Review (Spring 1981): 777, 780–81. Coase was concerned from the beginning that the ad hoc citation of a few cases did not pro ve the validity of his efficiency theory, although he was unable to provide more systematic support. He wrote, “A thorough examination of the presuppositions of the courts in trying such cases would be of great interest but I have not been able to attempt it.” Coase, “Problem of Social Cost,” 19.

Recently, Posner has expressed more confidence in the empirical basis of the efficiency theory, but he still seems defensive. He and Landes argue that (as of 1987) enough empirical research has been done to demonstrate the validity of the efficiency theory. The Economic Structure of Tort Law, 19–24. They list a number of such studies in their notes. However, they acknowledge that there are still many holes in this research and that it is still subject to a wide variety of criticisms. They express discomfort at their own “bobbing and weaving” about the inconclusiveness of the debate over the empirical proof of their efficiency theory.

12. Economists have studied some aspects of efficiency in nineteenth-century nuisance law. However, their empirical research tends to be a bit thin, as might be expected of scholars who lack familiarity with historical research methodologies, so their work is more important in a theoretical than an empirical sense. See Manson, “A Reexamination of Nuisance Law.” Wittman, Donald, “First Come, First Served: An Economic Analysis of ‘Coming to the Nuisance,’” Journal of Legal Studies 9 (June, 1980): 557–68.CrossRefGoogle Scholar See also Posner, Richard A., Tort Law: Cases and Economic Analysis (Boston, 1982), chap. 10.Google Scholar

Legal historians have done considerable research on the historical development of English and American nuisance law. Their work illuminates many important aspects of nineteenth-century nuisance law, including the subject of this study, balancing doctrine. However, very little of this work addresses Posner's efficiency theory, even indirectly. Instead, it describes the origins and/or use of balancing doctrine and interprets the importance of the doctrine in its broader legal or Social historical context. See McLaren, John P. S., “Nuisance Law and the Industrial Revolution—Some Lessons From Social History,” Oxford Journal of Legal Studies 3 (1983): 155–221CrossRefGoogle Scholar; Brenner, Joel Franklin, “Nuisance Law and the Industrial Revolution,” Journal of Legal Studies 3 (1974): 403–33.CrossRefGoogle ScholarProvine, D. M., “Balancing Pollution and Property Rights: A Comparison of the Development of English and American Nuisance Law” Anglo-American Law Review 7 (January/March 1978): 31–56CrossRefGoogle Scholar; Coquillette, Daniel R., “Mosses From An Old Manse: Another Look At Some Historie Property Cases About the Environment,” 64 Cornell Law Review (June 1979): 761–821Google Scholar; Kurtz, Paul M., “Nineteenth-Century Anti-Entre-preneurial Nuisance Injunctions—Avoiding the Chancellor,” 17 William and Mary Law Review (Summer 1976): 621–70Google Scholar; Bone, Robert G., “Normative Theory and Legal Doctrine in American Nuisance Law: 1850 to 1920,” 59 Southern California Law Review (September 1986): 1104–1226Google Scholar; Halper, Louise A., “Nuisance, Courts and Markets in the New York Court of Appeals, 1850–1915,” 54 Albany Law Review (1990): 301–57Google Scholar; Laitos, Jan G., “The Social and Economic Roots of Judge-Made Air Pollution Policy in Wisconsin,” 58 Marquette Law Review (1975): 465–515Google Scholar; Krauss, E. P., “The Legal Form of Liberalism: A Study of Riparian and Nuisance Law in Nineteenth-Century Ohio,” 18 Akron Law Review (Fall 1984): 223–53.Google Scholar For a general overview of work on law and pollution and hazardous waste control see Melosi, Martin V., “Hazardous Waste and Environmental Liability: An Historical Perspective,” 25 Houston Law Review (July 1988): 741–79.Google Scholar

13. Posner, “Wealth Maximization,” 132.

14. Reideman v. Mt. Morris Electric Light Co., 56 App. Div. 23, 67 N.Y.S. 391, 394 (1900)

15. Posner, Economic Analysis of Law, 56. See also Posner, “Wealth Maximization,” 132. In Posner's words, “balancing is just another name for cost-benefit analysis.” ibid., 134.

16. For the purposes of this study, I counted a case as a balancing case, only if the final decision contained some balancing language. Some case reports include transcripts of lower court decisions. If the lower court decision contained balancing reasoning but the final appeals court decisions did not, the case was not counted as a balancing decision. Only in instances where the final appeals court report was very short and essentially affirmed a lower-court decision, which was reported in full in the report of the final appeals court decision, did I consider the reasoning in the lower-court decision. Where, in such instances, the lower-court decision contained balancing, I treated the lower-court decision as part of the final decision, and counted the case as a balancing case.

17. Posner says that even today judges engage in “crude” cost-benefit judgments. “Wealth Maximization,” 134. See also Posner, and Landes, , Economic Structure of Tort Law, 23.Google Scholar

18. The rule that plaintiffs should sue in law before equity gradually broke down over the course of the nineteenth century. It disappeared in New York 1848, after which the courts allowed plaintiffs to combine suits for damages and injunctions. Kharas, Ralph E., “A Century of Law-Equity Merger in New York,” in Selected Essays on Equity, ed. Re, Edward D. (New York, 1955), 65–89.Google Scholar Most New York plaintiffs thereafter sued both for damages and injunctions. The old rule, however, remained important in Pennsylvania and New Jersey throughout the period. See Rundell, Oliver S., “The Chancellor's Foot: The Nature of Equity,” 27 University of Kansas City Law Review (Winter 1958): 71–85Google Scholar, for a discussion of historical roots of the distinction between law and equity courts.

19. Note, however, that while I was flexible in my definition of what constituted cost-benefit analysis, I only counted cases in which judges actually used such analysis to argue their decisions. I did not count cases in which judges merely mentioned the balancing test or cited as precedent cases which contained balancing, when they never actually performed anything remotely resembling cost-benefit analysis in their judgments. Nor did I count cases in which judges balanced competing rights, if they did not, in some fashion, no matter how primitively, also compare costs and benefits of assigning rights one way or another.

20. American Digest, Century Edition: A Complete Digest of All Reported American Cases from the Earliest Times to 1896 (St. Paul, 1897)Google Scholar; American Digest, Decennial Edition (St. Paul, 1907).Google Scholar

21. Many business activities have undesirable environmental impacts that are not, strictly speaking, pollution, in the sense that pollution means the introduction, through the production process, of undesirable and unnatural materials, smells, and noises, and thermal effects into the environment. Thus, for purposes of this article, the definition of pollution-related nuisance excludes a wide variety of nuisances that do not involve what is normally considered to be industrial environmental pollution, such as: physical obstructions in roads, waterways, and sidewalks; nuisances on residential property, such as residential privy vaults and defective sidewalks; one-time industrial catastrophes, such as accidents, fires, and explosions, which do not involve ongoing environmental damage, and moral nuisances such as bawdy houses. It also excludes environmental nuisances produced by farms and horse stables, unless they are associated with an industrial enterprise. The analysis also excludes nuisance suits that concerned the floods, stream diversion, and stagnant ponds caused by the damming of waterways for the establishment of watermills used in industry, since these problems, while certainly negative externalities of business, are not “pollution,” either. Finally, the analysis also excludes most of the hundreds of lawsuits that resulted from the establishment of railroads and electric streetcar lines. Though streetcars and railroads were significant sources of pollution in this period, and although suits involving them were sometimes indexed under “nuisance” in the Digest, such cases usually concerned trespass and street obstruction rather than pollution. Furthermore, most were resolved with the use of standardized formulas for assessing consequential damages rather than by the granting of nuisance injunctions or the awarding of nuisance damages. Only railroad and streetcar cases that explicitly involved suits to relieve pollution are included in this analysis.

22. All but one of the New Jersey cases are chancery court decisions. The other is a supreme court decision. Because New York retained its chancery court system until mid-century, some early New York cases are also chancery decisions.

23. In other words, this study samples the entire population of reported cases, to the extent that we were able to identify them through the West American Digest System indexes. Some reported pollution nuisance cases may have not been indexed under the “Nuisance” heading. If so, these cases are not included in this study. We could not find two obscure Pennsylvania trial court cases indexed under “Nuisance.” It is not known if they involved industrial pollution. Thus, with the the exception of relevant cases which escaped being indexed under “Nuisance,” and the possible exception of the two missing Pennsylvania cases, the findings of this analysis are fully representative of the outcomes and reasoning of reported cases. Whether they are representative of all cases, reported and unreported is, of course, unknown.

24. Posner, and Landes, , Economic Structure of Tort Law, 22–23.Google Scholar

25. Despite the distinctions between formal, modem cost-benefit analysis and the casual kinds of economic balancing that characterized nuisance law in this period, I will use the terms cost-benefit analysis and balancing interchangeably. The early rudimentary forms of cost-benefit reasoning described here represent important stages in the evolution of legal precedent leading to the the formal balancing test and modem modes of cost-benefit analysis. My purpose is to describe the primitive nature of this early, rudimentary mode of judicial economic reasoning.

26. In counting the number of balancing cases, I have included two cases in which judges used balancing to argue strongly for or against providing injunctive relief, even though, for technical reasons they could not actually impose or refuse the injunctions at the stage of the proceedings at which they were writing their decisions. One is Davis v. Lambertson, 56 Barb. 480 (1868), in which the plaintiff sued for an injunction and damages. At trial, a referee awarded damages, but no injunction, and then charged the plaintiff with costs some five to ten times the damage award. The plaintiff appealed to set aside the adjustment of costs, but not to appeal the denial of the injunction. The New York Supreme Court ruled (on the basis, in part, of balancing) that a perpetual injunction should be granted, although it could not actually grant it because the appeal concemed only the narrow issue of costs. The other case is Robb v. Camegie, 145 Pa. 324, 22 A. 649, 27 Am. St. Rep. 694 (1891), a suit for damages. The Pennsylvania Supreme Court upheld a trial court award of damages, on non-balancing grounds. Although the suit was not an injunction suit, the court also ruled, on the basis of balancing, that the defendant could not be enjoined.

27. See Kurtz, “Avoiding the Chancellor,” for descriptions of the large number of non-economic legal rules and doctrines that developed during this period which allowed defendants to pollute under various conditions. I discuss a wide variety of non-economic doctrines which endowed plaintiffs with the right to be protected from pollution in “Bound to Respect His Neighbor's Rights: Nuisance Law and the Regulation of Pollution in Nineteenth-Century America,” unpublished paper, University of California, Berkeley. See also Bone, “Normative Theory and Legal Doctrine in American Nuisance Law,” and Halper, “Nuisance, Courts and Markets.”

28. In contrast, Christopher Hamlin, who has studied pollution in nineteenth-century England, finds that people discussed the costs and benefits of abating the stenches resulting from irrigation ditches in extremely sophisticated ways: “Environmental Sensibility in Edinburgh, 1839–1840: The ‘Fetid Irrigation Controversy’” Journal of Urban History (forthcoming).

29. Rosen, “Bound to Respect His Neighbor's Rights.”

30. Demarest v. Hardham, 34 N.J. Eq. 469 (1881).

31. Cases in which judges used private balancing to justify granting injunctions include: Catlin v. Valentine, 9 Paige 567, 38 Am. Dec. 567 (1842). Westheimer v. Schultz, 33 How. Prac. 11 (1866). Davis v. Lambertson, 56 Barb. 480 (1868). Campbell v. Seaman, 63 N.Y. 568 (1876). Demarest v. Hardham, 34 N.J. Eq. 469 (7 Stew.) (1881). Galbraith v. Oliver, 3 Pittsb. R. 78 (1867). Cases in which private balancing led to the denial of injunctions include: Reideman v. Mt. Morris Electric Light Co., 56 App. Div. 23, 67 N.Y.S. 391 (1900). Bentley v. Empire Portland Cement Co., 48 Mise. Rep. 457, 96 N.Y.S. 831 (1905). Richard's Appeal, 57 Pa. 105, 98 Am. Dec. 202 (1868). Huckenstein's Appeal, 70 Pa. 102, 10 Am. Rep. 669 (1871). McCaffrey's Appeal, 105 Pa. 253 (1884). Commonwealth v. Miller, 139 Pa. 77, 21 A. 138, 23 Am. St. Rep. 170 (1891). Straus v. Barnett, 140 Pa. 111, 21 A. 253 (1891). Miller v. Schindle, 15 Pa. Co. Ct. R. 341 (1894). Daugherty Co. v. Kittanning Mfg. Co., 178 Pa. 215, 35 A. 1111 (1896). In some instances judges used private balancing (mixed with social-cost balancing) to structure injunctions. See Braender v. Harlem Light Co., 2 N.Y.S. 245 (1888). Fisher v. American Reduction Co., 189 Pa. St. 419, 42 A. 36 (1899).

32. Richard's Appeal, 57 Pa. 105, 98 Am. Dec. 202 (1868). Commonwealth v. Miller, 139 Pa. 77, 21 A. 138 (1891). Daugherty Co. v. Kittanning Mfg. Co., 178 Pa. 215, 35 A. 1111 (1896). See also dissent in Sullivan v. Jones and Laughlin Steel Co., 208 Pa. 540, 57 A. 1065, 66 L.R.A. 712 (1904).

33. Cases involving social-cost balancing include: Doellner v. Tynan, 38 How. Prac. 176 (1869). People v. New York Gas Light Co., 64 Barb. 55, 6 Lans. 467 (1872). Braender v. Harlem Light Co., 2 N.Y.S. 245 (1888). Bowden v. Edison Electric Illuminating Co., 29 Mise. Rep. 171, 60 N.Y.S. 835 (1899). Reideman v. Mt. Morris Electric Light Co., 56 App. Div. 23, 67 N.Y.S. 391 (1900). Roscoe Lumber v. Standard Silica Cement Co., 62 App. Div. 421, 70 N.Y.S. 1130 (1901). Wolcott v. Melick, 11 N.J. Eq. 204 (3 Stockt.): 66 Am. Dec. 790 (1856). Bell v. Ohio and Pennsylvania Railroad Co., 25 Pa. 161, 64 Am. Dec. 678 (1855). Sparhawk v. Union Passenger Railway Co., 54 Pa. 401 (1867). Richard's Appeal, 57 Pa. 105, 98 Am. Dec. 202 (1868). Huckenstein's Appeal, 70 Pa. 102, 10 Am. Rep. 669 (1871). Sellers v. Pennsylvania Railroad Co., 10 Phila. 319 (1875). Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 6 A. 453, 57 Am. Rep. 445 (1886). Price v. Grantz, 118 Pa. 402, 11 A. 794, 4 Am. St. Rep. 601 (1888). Commonwealth v. Miller, 139 Pa. 77, 21 A. 138, 23 Am. St. Rep. 170 (1891). Robb v. Camegie, 145 Pa. 324, 22 A. 649, 27 Am. St. Rep. 694 (1891). Miller v. Schindle, 15 Pa. Co. Ct. R. 341 (1894). Fisher v. American Reduction Co., 189 Pa. St. 419, 42 A. 36 (1899)

34. Robb v. Carnegie 145 Pa. 324.

35. Doellner v. Tynan, 38 How. Prac. 176. See also Pennsylvania Coal Company v. Sanderson, 113 Pa 126.

36. Bell v. Ohio and Pennsylvania Railroad Company, 25 Pa. 161, 176–77. See also Reideman v. Mt. Morris Electric Light Co. 67 N.Y.S. 391, 395; Roscoe Lumber v. Standard Silica Cement Co. 70 N.Y.S. 1130, 1131; Miller v. Schindle, 15 Pa. Co. Ct. R. 341, 344–345; Wolcott v. Melick, 11 N.J. Eq. 204.

37. Campbell v. Seaman, 63 N.Y. 568, 577; Bowden v. Edison Electric Illuminating Co., 60 N.Y.S. 835, 836. Reideman v. Mt. Morris Electric Light Co., 67 N.Y.S. 391, 394; Bell v. Ohio and Pennsylvania Railroad Co., 25 Pa. 161, 176; Sparhawk v. Union Passenger Railway Co., 54 Pa. 401, 430. Rhodes v. Dunbar, 57 Pa. 274, 287–9; Huckenstein's Appeal, 70 Pa. 102, 107. Commonwealth v. Miller, 139 Pa. 77, 94. Fisher v. American Reduction Co., 42 A. 36, 38. For examples of similar reasoning see also Price v. Grantz, 18 Pa. 402, 414 and Miller v. Schindle, 15 Pa. Co. Ct. R. 341, 344–345. Braender v. Harlem Light Co., 2 N.Y.S. 245, 247.

38. Tipping v. St. Helena Smelting Co. 116 E.C. L. R. 608 (from a citation in Huckenstein's Appeal, 70 Pa. 102, 107.)

39. Sparhawk v. Union Passenger Railway Co., 54 Pa. 401, 430.

40. Kurtz, “Avoiding the Chancellor,” 639–42.

41. Francis v. Schoellkopf, 53 N.Y. 152, 154. See also Hudson R.R. Co. v. Loeb, 30 N.Y. Super. Ct. (7 Rob.) 418, 423 (1868); Smith v. Cummings, 2 Pars. Eq. Cas. 92, 97–98 (1851); Brunner v. Schaffer, 11 Pa. Ct. Ct. R. 550, 552–53 (1892); Roessler and Hasslacher Chemical Co. v. Doyle, 73 N.J. Law 521, 64 A. 156, 157–58 (1906). For further discussion see Kurtz, “Avoiding the Chancellor,” 654–56.

Additional light on the narrow scope of private nuisance law in this period is provided by the two balancing cases in which judges did consider broader Social benefits of granting an injunction. Both were public nuisance cases. See Westheimer v. Schultz, 33 How. Prac. 11 and Commonwealth v. Miller, 139 Pa. 77.

42. For examples of the “grace” phraseology see Richards Appeal, 57 Pa. 105, 113, Huckenstein's Appeal, 70 Pa. 102, 106. Sellers v. Pennsylvania R.R. Co., 10 Phila. 319, 321. Judges had little trouble finding grounds to distinguish one case from another. For an interesting example of of hair-splitting case differentiation, see Butterfield v. Klaber, 52 How. Prac. 255 (1876). An intermediate appellate court judge explains why the precedent set by the New York's highest court in McKeon v. See was not relevant, even though the defendants in McKeon and Butterfield were both marble-cutting factories the noise and vibration from whose operations were damaging the plaintiffs' houses. For another interesting example see Price v. Grantz, 118 Pa. 402, in which the judge explains why the precedent set in Appeal of the Pennsylvania Lead Co. was not relevant despite the fact that both defendants were lead manufacturers whose toxic lead emissions were injuring the plaintiffs. The legal necessity that judges draw distinctions between cases and precedent and that they judge each case, even per se nuisances, on specifics is discussed in Sellers v. Pennsylvania R.R. Co. 10 Phila. 319 at 322.

43. Note that while the total number of injunction cases in New York and New Jersey is much higher than in Pennsylvania, the number of balancing cases is roughly equal.

44. See Kurtz, “Avoiding the Chancellor,” for a detailed discussion of the wide range of non-balancing doctrines that were used by nineteenth-century judges to justify refusing injunctive and damage relief in nuisance suits.

45. Campbell v. Seaman, 63 N.Y. 568; Huckenstein's Appeal, 70 Pa. 102.

46. Campbell v. Seaman, 63 N.Y. 568, 583.

47. The factory produced three to four million bricks a year at good profit. Ibid., 571.

48. Ibid., 586.

49. Ibid.

50. Huckenstein's Appeal, 70 Pa. 102, 107.

51. Ibid.

52. Ibid., 106–7.

53. Ibid., 107.

54. Ibid., 107.

55. Fish v. Dodge, 4 Denio 311, 316.

56. Davidson v. Isham, 9 N.J. Eq. (1 Stockt.) 186, 189.

57. Ross v. Butler, 19 N.J. Eq. (4 C.E. Green) 294, 298–99 (1868).

58. Demarest v. Hardham, 24 N.J. Eq. (7 Stew.) 469, 474.

59. New Jersey chancellors adhered to this standard more consistently than New York courts. New York judges who imposed injunctions on polluters bounced around between the liberal standard of strict liability and a more qualified reasonable use standard which qualified plaintiffs' right to be protected from pollution nuisances in various ways. For examples of New York decisions in which the liberal standard is clearly articulated or plainly followed see, Brady v. Weeks, 3 Barb. 157 (1848); Howard v. Lee, 5 N.Y. Super. Ct. (3 Sandf.) 281 (1849): Cropsey v. Murphy, 1 Hilt. 126 (1856); Hutchins v. Smith, 63 Barb. 251 (1872); Francis v. Schoellkopf, 52 N.Y 152 (1873); McKeon v. See, 51 N.Y 300 (1873); Bohan v. Port Jervis Gaslight Co. 122 N.Y. 18, 24–26 (1890). In several instances, New York judges articulated qualified reasonableuse standards, which they described in such broad terms as to make essentially the same as a strict standard in so far as industrial pollution was concerned. See Beir v. Cooke, 44 N.Y. Sup. Ct. (37 Hun.) 38 (1885); Cogswell v. N.Y., N.H. and H. R.R. Co., 103 N.Y. 10, 13–16, 25 (1886); Yocum v. Hotel St. George Co. 18 Abb. N. Cas. 340 (1887); Catlin v. Patterson, 10 N.Y. St. Rep. 724 (1887).

For examples of New Jersey decisions in which the liberal standard is clearly articulated and/or applied see, Cleveland v. Citizens Gas Light Co., 20 N.J. Eq. (5 C.E. Green) 201, 205–6, 209–10 (1869); Manhattan Manufacturing and Fertilizing Co. v. Van Keuren, 23 N.J. Eq. (8 C. E. Green) 251, 255 (1872); William v. Osborne, 40 N.J. Eq. (13 Stew.) 235, 293 (1885); Hennessey v. Carmony, 50 N.J. Eq. (5 Dick.) 616, 25 A. 374 (1892); Leeds v. Bohemian Art Glass Works 63 N.J. Eq. 619, 52 A. 375 (1903) (Note that the chancellor imposed an injunction on the defendant even though it had gone bankrupt and its factory had been demolished!).

60. Commonwealth v. Van Sickle, 4 Clark 104, 7 Pa. Law J. 82, Brightly N.P. 69 (1845); Smith v. Cummings, 2 Pars. Eq. Cas. 92 (1851); Appeal of Czarniecki, 11 Atl. 660, (1887); Commonwealth v. Wescott, 4 C.P. Rep. 58 (1887); Evans v. Reading Chemical and Fertilizing Co., 160 Pa. 209, 28 Atl. 702 (1894).

61. Pottstown Gas Co. v. Murphy, 39 Pa. (3 Wright) 257 (1861); Dennis v. Eckardt, 3 Grant Cas. 390 (1862); Smith v. Phillips, 8 Phila. 10 (1871); Warwick v. Wah Lee, 10 Phila. 160 (1874); Appeal of the Pennsylvania Lead Co., 96 Pa. 116 (1880); Gavigan v. Atlantic Refining Co., 186 Pa 604, 40 A. 834 (1898); Farver v. American Car and Foundry Co., 24 Pa. Super. Ct. 579 (1904); Sullivan v. Jones and Laughlin Steel Co. 57 A. 1065, 1069, 1071 (1904); Ganster v. Metropolitan Electric 214 Pa. 628, 64 A. 91 (1906).

Court reports show that by the mid-1870s, in response to the Sparhawk decision, some judges finding in favor of plaintiffs had moved to a qualified reasonable use standard. Wallace v. Auer, 10 Phila. 356 (1875); Rodenhausen v. Craven, 141 Pa. 546, 21 Atl. 774 (1891). By the 1890s, several judges who applied this more narrowly framed standard did so in such a way as to indicate that they were personally sympathetic to a strict liability standard: Evans v. Reading Chemical and Fertilizing Co., 160 Pa. 209; Commonwealth v. Russell, 172 Pa. 507, 522 (1896).

62. Sparhawk v. Union Passenger Railway Co., 54 Pa. 401. There were two balancing cases prior to this one. In Bell v. Ohio and Pennsylvania R.R. Co., 25 Pa. 161 (1855), benefits are assessed in very vague terms, but no effort is made to explicitly exclude discomfort etc. In Galbraith v. Oliver, 3 Pittsb. R. 78 (1867), the judge emphatically includes relief from discomfort in his assessment of the benefit of alleviating the pollution.

63. Sparhawk v. Union Passenger Railway Co., 54 Pa. 401, 412.

64. Ibid. 412–13. Note that although the trial judge calculated that the defendants were causing severe economic damage to the plaintiffs, he did not actually engage in cost-benefit balancing. Indeed, he declared that it would be a scandal if he took the defendant's profit into consideration. Ibid., 415.

65. Ibid., 424–43, 430.

66. Ibid., 430.

67. Johnson, Paul E., Shopkeepers' Millennium: Society and Revivals in Rochester, 1815–1837 (New York, 1978), 83–87Google Scholar; Brown, Bertram Wyatt, “Prelude to Abolitionism: Sabbatarian Politics and the Rise of the Second-Party System,” 63 Journal of American History (September 1971).Google Scholar

68. Rhodes v. Dunbar, 57 Pa. 274, 287.

69. Ibid.

70. Huckenstein's Appeal, 70 Pa. 102.

71. McCaffrey's Appeal, 105 Pa. 253.

72. Fisher v. American Reduction Co., 189 Pa. St. 419. This was an odd case in which the judge used language that trivialized the plaintiff's discomfort even though he granted an injunction. However, he granted the injunction very reluctantly, using balancing to justify allowing the defendant to continue to pollute if it proved infeasible to abate the nuisance successfully. The judge left it up to the city to resolve the issue, noting that it could refuse to renew its contract with the defendant to burn its garbage if it so desired.

73. Straus v. Barnett, 140 Pa. 111. Miller v. Schindle, 15 Pa. Co. Ct. R. 341.

74. Straus v. Barnett, 140 Pa. 111, 117. Proving that the nuisance caused financial loss was not easy, as the plaintiffs in a similar balancing case, Miller v. Schindle, 15 Pa. Co. Ct. R. 341, discovered. The owners of a household goods store sued a steam laundry for an injunction to prevent noise and vibrations so strong that they shook goods off their shelves and rang their electric gong several times a day for several minutes at a time. The trial judge argued that even though the plaintiffs had suffered a decline in business as well as inconvenience, the benefits of an injunction were not great enough to require the costly suppression of the laundry, because the plaintiffs had not proven that the the loss of business resulted from the nuisance rather than general economic conditions.

75. Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 149.

76. Price v. Grantz, 118 Pa. 402, 413–14.

77. Bell v. Ohio and Pennsylvania R.R. Co., 25 Pa. 161, 176–77; Sparhawk v. Union Passenger Railway Co., 54 Pa. 401, 427, 430; Rhodes v. Dunbar, 57 Pa. 274, 287; Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 149; Price v. Grantz, 118 Pa. 402, 413–14; Miller v. Schindle, 15 Pa. Ct. Ct. R. 341, 344. Fisher v. American Reduction Co., 189 Pa. St. 419. Judges also trivialized benefits when they used private balancing. See, e.g., McCaffrey's Appeal, 105 Pa. 253, 255, where the trial judge compares the “overpowering, intolerable, crashing” noise from the defendant's printing presses, which caused the plaintiffs sleepless nights, impaired health, and lower property values, to the pleasing sound of breakers on a distant beach.

78. Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 149; Price v. Grantz, 118 Pa. 402, 413–14. The only balancing injunction case in which these words were used is Miller v. Schindle, 15 Pa. Ct. Ct. R. 341, 344. Otherwise, judges trivialized the benefits of injunctive relief without actually using the words “mere” and “trifling.” However, they also used the word “merely discomforting” in some non-balancing cases in which they refused injunctions. See for example, Scott v. Haupt, 8 Kulp 42, 49 (1895).

79. McGuire v. Bloomingdale, 68 N.Y.S. 477, 481, 485.

80. Riedeman v. Mt. Morris Electric Light Co., 56 App. Div. 23, 67 N.Y.S. 391. Bentley v. Empire Portland Cement Co., 48 Mise. Rep. 457. The Reideman case was decided by the New York Supreme Court, Appellate Division, First Department, the Bentley case by the New York Supreme Court, Special Term, Onondaga County. A third case, Roscoe Lumber v. Standard Silica Cement Co., 62 App. Div. 421 (1901), also involved balancing, but the judge subseribed to the traditional idea that the law protected people from nuisances that rendered the enjoyment of life uncomfortable. This case was decided by the New York Supreme Court, Appellate Division, Second Department. This suggests that only some courts were moving to the new definition of actionable nuisance, this time.

81. Both of the injunction cases in which they did not address the issue involved railroads. In neither were the plaintiffs trying to shut down the defendants' whole railroad system. They simply wanted some facilities or operating practices modified to alleviate the pollution. The judges used abstract Social balancing arguments to justify denying the injunctions. Bell v. Ohio and Pennsylvania R.R. Co., 25 Pa. 161. Sparhawk v. Union Passenger Railway Co., 54 Pa. 401. Judges also asserted that it was beyond the capacity of a defendant coal mine to abate its (water) pollution in one of the state's two balancing damage cases. Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126. Judges did not address the issue of plant shutdown in the other balancing damage case. Price v. Grantz, 118 Pa. 402, involved a lead shot company. The plaintiffs were demanding a small amount of monetary compensation for their suffering and plant shutdown was not at issue.

82. Huckenstein's Appeal, 70 Pa. 102.

83. Richard's Appeal, 57 Pa. 105.

84. Robb v. Carnegie, 145 Pa. 324. Daugherty Co. v. Kittanning Mfg. Co., 178 Pa. 215.

85. Commonwealth v. Miller, 139 Pa. 77.

86. McCaffrey's Appeal, 105 Pa. 253.

87. Straus v. Bamett, 140 Pa. 111.

88. Miller v. Schindle, 15 Pa. Co. Ct. R. 341.

89. Fisher v. American Reduction Co., 189 Pa. St. 419, 42 A. 36.

90. Galbraith v. Oliver, 3 Pittsb. R. 78.

91. Rhodes v. Dunbar, 57 Pa. 274; Sellers v. Pennsylvania Railroad Co., 10 Phila. 319.

92. See for example, Rhodes v. Dunbar, 57 Pa. 274, 287, 291.

93. See for example, Richard's Appeal, 57 Pa. 105, and Huckenstein's Appeal, 70 Pa. 102.

94. Huckenstein's Appeal, 70 Pa. 102, 106 (emphasis added).

95. McCaffrey's Appeal, 105 Pa. 253, 254–55.

96. McCaffrey's Appeal, 105 Pa. 253, 255 (emphasis added).

97. This figure includes damage as well as injunction balancing cases.

98. Westheimer v. Schultz, 33 How. Prac. 11.

99. Davis v. Lambertson, 56 Barb. 480.

100. Braender v. Harlem Light Co., 2 N.Y.S. 245.

101. Demarest v. Hardham, 34 N.J. Eq. 469.

102. Campbell v. Seaman, 63 N.Y. 568.

103. Catlin v. Valentine, 9 Paige 567.

104. Brander v. Harlem Light Co., 2 N.Y.S. 245.

105. Westheimer v. Schultz, 33 How. Prac. 11. Davis v. Lambertson, 56 Barb. 480, 487. See also Galbraith v. Oliver, 3 Pittsb. R. 78, 85. The judge who wrote the decision in Campbell v. Seaman, 63 N.Y. 568, 586, took this notion one step farther by arguing that there would, in effect, be no cost to shutting down the defendant's brick factory and moving it elsewhere.

106. This language is used in Campbell v. Seaman, 63 N.Y. 568, 586 and Demarest v. Hardham, 34 N.J. Eq. 469, 477. The words are not used, but the idea is implicit in Braender v. Harlem Light Co., 2 N.Y.S. 245, Bowden v. Edison Electric Illuminating Co., 29 Mise. Rep. 171, and Catlin v. Valentine, 9 Paige 567.

107. Hentz v. Long Island Railroad Co., 13 Barb. 646, 658–59.

108. Riedeman v. Mt. Morris Electric Light Co. 67 N.Y.S. 391, 395; Roscoe Lumber Co. v. Standard Silica Cement Co., 70 N.Y.S. 1130, 1131; Doellner v. Tynan, 38 How. Prac. 176, 183.

109. People v. New York Gas Light Co., 64 Barb. 55, 70.

110. Wolcott v. Melick, 11 N.J. Eq. 204, 214–15.

111. McGuire v. Bloomingdale, 8 Mise. Rep. 478, 480–81. Note that while the judge's discussion of costs was very straightforward and uncharged, his discussion of benefits is much more speculative and defensive, as he suggests that the plaintiff may be hypersensitive to noise. Bentley v. Empire Portland Cement Co., 96 N.Y.S. 831, 835. Compare the discussion of costs in these cases with that in Huckenstein's Appeal, 70 Pa. 102, 106 and McCaffrey's Appeal, 105 Pa. 253, 255.

112. Bentley v. Empire Portland Cement Co., 96 N.Y.S. 831, 832.

113. Galbraith v. Oliver, 3 Pittsb. R. 78.

114. McGuire v. Bloomingdale, 33 Mise. Rep. 337; Riedeman v. Mt. Morris Electric Light Co., 56 App. Div. 23; Bentley v. Empire Portland Cement Co., 48 Mise. Rep. 457.

115. Posner, , Economic Analysis of Law, 54, 147–51.Google Scholar

116. Mishan, E. J., Cost-Benefit Analysis (New York, 1976)Google Scholar, is a classic introduction to modem cost-benefit analysis. For summaries of the technical problems with and contemporary criticism of cost-benefit analysis see, Meier, Kenneth J., “Political Economy and Cost-Benefit Analysis: Problems of Bias,” in The Political Economy of Public Polky, ed. Stone, Alan and Harpham, Edward J. (Beverly Hills, 1982), 143–62Google Scholar, and Kelman, Steven, “Cost-Benefit Analysis: An Ethical Critique,” Regulation (January/February 1981).Google ScholarPubMed For a more sweeping critique of the economic approach to policy analysis see Tribe, Laurence H., “Policy Science: Analysis or Ideology?” Philosophy and Public Affairs 2 (Fall 1972): 66–110.Google Scholar

What is interesting about arbitrariness one sees in nineteenth-century balancing cases is how thoroughly it seems to predate the current debate about technical problems of measuring the value of non-market goods such as those at stake in pollution regulation. New York, New Jersey, and Pennsylvania judges did not disagree about how much value to attribute to discomfort, clean environment, and similar goods, to which they rarely attempted to ascribe any precise monetary value anyway. Instead they differed on whether to value such goods at all. New York and New Jersey chose to assign them large values, Pennsylvania chose to ignore them entirely in their calculations.

117. McCraw, Thomas K., Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge, Mass., 1984), 68–70.Google ScholarAreeda, Phillip, Antitrust Analysis: Problems, Text, Cases (Boston, 1974), 6–9.Google Scholar

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119. Richards Appeal, 57 Pa. 105.

120. Robb v. Carnegie, 145 Pa. 324.

121. I am indebted to to my colleagues, Oliver Williamson and Robert Harris for suggesting this line of explanation to me.

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124. Straus v. Barnett, 140 Pa. 111, 21 A. 253 (1891); Demarest v. Hardham, 34 N.J. Eq. 469 (7 Stew.) (1881).

125. See text at n. 41.

126. Rubin, Paul H., Business Firms and the Common Law: The Evolution of Efficient Rules (New York, 1983), 3–14, 26–30.Google Scholar See also Rubin, Paul H., “Why is the Common Law Efficient?” Journal of Legal Studies 6 (January 1977): 51–63CrossRefGoogle Scholar; For some different perspectives on the evolutionary model of common law development see Priest, George L., “The Common Law Process and the Selection of Efficient Rules,” Journal of Legal Studies 6 (January 1977): 65–82CrossRefGoogle Scholar; Goodman, John C., “An Economic Theory of the Evolution of the Common Law,” Journal of Legal Studies 7 (June 1978): 393–406CrossRefGoogle Scholar; Cooter, and Kornhauser, Lewis, “Can Litigation Improve the Law without the Help of Judges?” Journal of Legal Studies 9 (January 1980): 139–65.CrossRefGoogle Scholar

This work has much in common with the work done by economists on public choice theory in explaining the development of statutory law. Rubin discusses the parallels between his work on common law and work done by public choice economists on statutory law in Business Firms and the Common Law, 18–19 and “Common Law and Statute Law” Journal of Legal Studies (June 1982): 205–24. See also Tullock, Gordon, Trials on Trial (New York, 1980).Google Scholar

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128. Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126. The judge who wrote the final judgment expressed considerable embarrassment about the court's reversal of its own previous decision. Ibid., 156.

129. Rubin, , Business Firms and the Common Law, 4, 8.Google Scholar

130. Campbell v. Seaman, 63 N.Y. 568; Holsman v. Boiling Spring Bleaching Co. 14 N.J. Eq. (1 McCart.) 33 (1862); Meigs v. Lister, 25 N.J. Eq. (10 C.E. Green) 489 (1875).

131. This analysis fits Goodman's theory of the evolution of common law better than Rubin's. Goodman argues that the interest with the greatest ability to bear legal costs, that is, with the most wealth, will achieve the most favorable decisions and direct the evolution of common law doctrine. See Goodman, “An Economic Theory of the Evolution of Common Law.” 394–95.

To investigate the issue of the relative wealth of plaintiffs and defendants, I attempted to code the cases for whether pollution victims were more or probably more—or less or probably less—economically powerful than polluters or roughly the same. This turned out to be a speculative, highly impressionistic, not very satisfying, but nonetheless intriguing enterprise. There was not enough information to even confidently guess about relative economic power in about a third of the cases. What struck me about the cases in which one could deduce the probable relative economic power of victims and polluters was that, in both sets of states, the vast majority of victims were less powerful or roughly equal in power to the polluters. Rarely did rich homeowners or powerful businesses take on relatively weak defendants in either set of states at any point in time, including the period when judges were repudiating balancing. In all three states, most landmark decisions involved relatively economically weak plaintiffs, whether the decision favored the defendant or not. An important exception was the New York case, Campbell v. Seaman, in which a rich mansion owner prevailed over a smallish brick factory. This leads me to conclude that the most important litigation-related cause of the State differences in balancing reasoning was the enormous financial power of big-business defendants in Pennsylvania as compared to that of the New York and New Jersey defendants. Differences in the power of defendants is more important in explaining state-by-state variation in judicial reasoning than differences in the power of plaintiffs.

132. Reideman v. Mt. Morris Electric Light Co, 56 App. Div. 23. Several cases to enjoin the pollution of electric utility companies had been won by relatively weak, impoverished plaintiffs, two on the basis of balancing. The balancing cases were Braender v. Harlem Light Co., 2 N.Y.S. 245 (1888), in which the plaintiff was the owner of some houses near the utility plant and, more strikingly, Bowden v. Edison Electric Illuminating Co., 29 Mise. Rep. 171, 60 N.Y.S. 835 (1899), in which the plaintiff owned and Uved in an old, run-down lodging house. The other cases were Bohan v. Port Jervis Gaslight Co., 122 N.Y. 18, 25 N.E. 246, 9 L.R.A. 711 (1890) and Rosenheimer v. Standard Gaslight Co., 39 App. Div. 482, 57 N.Y. S. 330 (1899). In both of these cases the plaintiffs were ordinary homeowners.

The impact of Reideman can be seen in Pritchard v. Edison Electric Illuminating Co. 179 N.Y. 364, 72 N.E. 243 (1904) and Miller v. Edison Electric Illuminating Co., 184 N.Y. 17, 76 N.E. 734 (1906).

133. Rubin, , Business Firms and the Common Law, 29.Google Scholar

134. Ibid., 27–30. Not all economists agree that asymmetries between the litigating interests are likely to lead to the emergence of inefficient doctrines. Goodman, for example, argues that the greater ability of the wealthier interest to a dispute to bear the legal costs of continued litigation will drive the legal system towards greater efficiency. He assumes that in general “the ratio of private benefits that result from a favorable decision accurately reflect,” or at least do not “unduly distort” the “ratio of Social benefits—as would be the case if the parties are representative of the market as a whole.” He further argues that even if this is not so and and inefficent rules sometimes emerge, wealthy interests will continue litigating and “we expect… (inefficient precedent) to be overturned through a series of reversals.” See Goodman, “An Economic Theory of the Evolution of Common Law.” 394–95.

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136. Andrews, “The Gilded Age in Pennsylvania,” 17–18. Evans, Pennsyhania Politics, 1872–1877, 4–24; Beers, Pennsylvania Politics Today and Yesterday.

137. McSeveney, Samuel T., The Politics of Depression: Political Behavior in the Northeast, 1893–1896 (New York, 1972), 7–10, 32–62.Google ScholarMcCormick, , From Realignment to Reform, 24–26.Google Scholar Democrats were more powerful in New Jersey than New York, sometimes capturing the assembly, and more rarely the senate. New Jersey Historical Committee, Outline of New Jersey History, 234–38.

138. Haynes, Evan, The Selection and Tenure of Judges (National Conference of Juridical Councils, 1944), 127.Google ScholarSchulman, Sidney, Toward Judicial Reform in Pennsylvania: A Study in Court Reorganization (Philadelphia, 1962), 59–73Google Scholar is a lengthy discussion of the corrupting effects of partisan judicial election on the justice system of Pennsylvania and other states. For more comments on the impact of party politics on Pennsylvania judges see Fleischmann, Simon, The Influence of the Bar in the Selection of Judges throughout the United States (New York, 1905), 23, 66.Google Scholar See also Vanderbilt, Arthur, Judges and Jurors: Their Functions, Qualifications, and Selection (Boston, 1956), 35–47Google Scholar; Bryce, James, Modern Democracies 2:85–88.Google Scholar Quote is from In re Application to Appoint a Board of Assessor for City of Pittsburgh, 7 Legal Gazette 117 (1875): quoted in Schulman, Towards Judicial Reform, 62–63.

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144. On machine politics in New York see, for example, Gosnell, Boss Platt; Myers, Gustavus, The History of Tammany Hall (New York, 1901)Google Scholar; Mushkat, Jerome, The Evolution of a Political Machine, 1789–1868, (Syracuse, 1971)Google Scholar; Callow, Alexander, The Tweed Ring (New York, 1965)Google Scholar; Riordan, William L., Plunkett of Tammany Hall (New York, 1963).Google Scholar On machine politics in New Jersey, see New Jersey Historical Committee, Outline History of New Jersey, 224–25, 235–36Google Scholar; Kuli, Irving, New Jersey (New York, 1930), chaps. 44–45Google Scholar; Noble, New Jersey. On machine politics in Pennsylvania, see Branning, Pennsylvania Constitutional Development and Beers, Pennsylvania Politics Today and Yesterday.

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146. Evans, , Pennsylvania Politics, 5–6, 18–24Google Scholar. The Philadelphia press was subsidized by the Republican Party during this period. Andrews, “The Gilded Age in Pennsylvania,” 17–18.

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149. Hammack, Power and Society.

150. Thus such New York City merchant groups as the Merchants Association, the Municipal Art Society, and the Fifth Avenue Association supported the enactment and enforcement of anti-smoke laws and exclusionary zoning to keep manufacturing activity out of the non-manufacturing business districts where their stores and offices were located. Obermeyer, Henry, Stop That Smoke! (New York, 1933), 129Google Scholar; Makielski, S. J., The Politics of Zoning: The New York Experience (New York, 1966).Google Scholar

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152. Sullivan v. Jones and Laughlin Steel Co., 208 Pa. 540, 57 A. 1065 (1904). Whalen v. Union Bag and Paper Co., 208 N.Y. 1, 101 N.E. 805 (1913). In an 1892 decision, the New Jersey chancellor strongly condemned aspects of the cost-benefit logic of the balancing doctrine using much the same argumentation as in Sullivan and Whalen, but stopped short of completely overturning the doctrine. Hennessey v. Carmony, 50 N.J.Eq. 616, 25 A. 374 (1892).

153. Waschak v. Moffatt, 379 Pa. 441, 109 A.2d 310 (1954). (discussed in Bone, “Normative Theory and Legal Doctrine in American Nuisance Law,” 1184 n. 210.) Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870 (1970).

154. See also Bone, “Normative Theory and Legal Doctrine in American Nuisance Law,” 1180–84.

155. Sullivan v. Jones and Laughlin Steel Co., 57 A. 1065, 1071.

156. Sullivan v. Jones and Laughlin Steel Co., 57 A. 1065.

157. Ibid., 1067.

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162. See Atty General v. Steward, 20 N.J. Eq. (5 C.E. Green) 415 (1869); Meigs v. Lister, 25 N.J. Eq. (10 C.E. Green) 489 (1875); Williams v. Osborne, 40 N.J. Eq. (13 Stew.) (1885); Babcock v. New Jersey Stockyard Co., 20 N.J. Eq. (5 C.E. Green) 296 (1869); Sellers v. Pennsylvania Railroad Co., 10 Phila. 319 (1875); Dubois v. Budlong, 23 N.Y.S. Ct. (10 Bosw.) 700, 15 Abb. Prac. 445 (1863).

163. Hutchins v. Smith, 63 Barb. 251 (1872); Butterfield v. Klaber, 52 How. Prac. 255 (1876); Catlin v. Patterson, 10 N.Y. St. Rep. 724 (1887); Moon v. National Wall Plaster Co. of America, 66 N.Y.S. 33 (1900); Wilmot v. Bell, 76 App. Div. 252, 78 N.Y.S. 591 (1902); Miller v. Edison Electric Illuminating Co., 76 N.E. 734, 184 N.Y. 17 (1906); Butler v. Rogers, 9 N.J. Eq (1 Stockt.) 487 (1853); Duncan v. Hays and Greenwood, 22 N.J. Eq. (7 C.E. Green) 25 (1871).

164. Defendants could often abate noise simply by rearranging machines on their shop floors. See Demarest v. Hardham, 34 N.J. Eq. (7 Stew.) 469 (1881); Yocum v. Hotel St. George Co., 18 Abb. Cas. 340 (1887); Pach v. Geoffroy, 143 N.Y. 661, 39 N.E. 21 (1894); Butterfield v. Klaber, 52 How. Prac. 255 (1876). Defendants could also retool their existing machinery or install new machines to reduce noise. See Smith v. Ingersall—Sergeant Rock Drill Co., 12 Mise. Rep. 5, 33 N.Y.S. 70 (1895); McGuire v. Bloomingdale, 68 N.Y.S. 477, 33 Mise. Rep. 337 (1900); Braender v. Harlem Light Co., 2 N.Y.S. 245 (1888); Alexander v. Stewart Bread Co., 21 Pa. Super. Ct. 526 (1902). They could also reduce noise by ceasing to overload existing njachinery, as in Bowden v. Edison Electric Illuminating Co., 60 N.Y.S. 835, 29 Mise. Rep. 171 (1899) See also Rosenheimer v. Standard Gaslight Co., 57 N.Y.S. 33 (1899).

165. Cleveland v. Citizens Gas Light Co., 20 N.J. Eq. (5 C.E. Green) 201 (1869). For confirmation that the nuisance was abated see Duncan v. Hays and Greenwood, 22 N.J. Eq. (7 C.E. Green) 25, 28 (1871); Rosenheimer v. Standard Gaslight Co., 57 N.Y.S. 330; 39 App. Div. 482 (1899).

166. For examples of the pleasure expressed by manufacturers when they discovered they saved money by burning fuel more efficiently when they installed smoke-abating technologies in their factories see Chicago Herald, August 5–6, 1892; Chicago Interocean, August 5–6, 1892; Chicago Tribune, May 27, 1894.

167. Whalen v. Union Bag and Paper Co., 208 N.Y. 1, 5.

168. Ibid.

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172. Sullivan v. Jones and Laughlin Steel Co., 222 Pa. 72 (1908). Halper argues that New York judges tried to minimize the burden to defendants of abating their pollution, even while simultaneously providing more relief to plantiffs, by devising novel nuisance remedies. For example, judges would award conditional injunctions in which defendants were given grace periods to either abate their pollution, or if that were too difficult and expensive, to buy out plaintiffs. Another technique was to grant permanent damages (or other awards that amounted to this in lieu of injunctions. Halper, “Nuisance, Courts, and Markets,” 334–57.

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