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Nuisance is once again a hot topic in legal practice and scholarship. Public nuisance law is at the center of efforts to hold product manufacturers, energy companies, and internet platforms liable for billions in losses. Scholars have in turn offered competing accounts of the legitimacy and scope of this form of liability. Meanwhile, private nuisance has been the subject of renewed academic attention, including the issuance of new Restatement provisions, that aim to make sense of its distinctive features. Unfortunately, to date, these two lines of inquiry have mostly been pursued in isolation, a pattern that reflects the prevailing wisdom (famously articulated by William Prosser and others) that the two nuisances share nothing beyond a common name. To the contrary, this Article maintains that the key to practical and theoretical progress in this complex area of law is to appreciate that the two nuisances are variants of the same general concept. As variants, they do indeed differ: a private nuisance is a wrong involving the violation of another’s right to use and enjoy their property, whereas public nuisance in the first instance does not turn on the violation of private property rights. And yet both nuisances involve wrongful interferences with others’ access to, or use of, physical spaces or resources. By attending to and appreciating this common core, lawyers, judges, and scholars will be better positioned to develop nuisance law in a consistent and principled manner.

Sovereign immunity statutes set the boundaries of liability for tortious conduct by state government actors. Legislatures can shield state entities and agents from liability for a wide range of tortious conduct. They can even—as some states have—waive immunity to the extent of liability insurance coverage. These restrictive statutory immunity schemes can facilitate discretion and prevent the overdeterrence of helpful conduct. But by preventing state courts from hearing certain claims of tortious conduct, such schemes effectively leave injured plaintiffs in the lurch and future misconduct undeterred. This Note argues that legislatures should allow courts more leeway to set the standard of care for state government tortfeasors. Stripping courts of their capacity to adjudicate cases of garden-variety misconduct by government actors is misguided. By applying the “public duty doctrine”—a default rule that the government owes no general duty of care in tort to the public at large—courts can negotiate the interests that animate restrictive sovereign immunity statutes. This court-centered approach would fill gaps in civil damages liability under federal constitutional law that otherwise leave government negligence unremedied and undeterred. Moreover, it would let courts adapt the common law to define the scope of the government’s duties to the public.

Courts are reluctant to decide cases alleging abuses by federal law enforcement. This judicial reluctance is largely attributed to the principle of sovereign immunity, which holds that the United States—and therefore the federal government—cannot be sued. However, the sovereign can of its own accord consent to be sued: The federal government provided that consent in 1946 by enacting the Federal Tort Claims Act (FTCA), which allows tort suits against the United States. Specifically, a provision of the FTCA—the law enforcement proviso—explicitly states that law enforcement officers are amenable to suit for certain intentional torts. Nevertheless, courts have restricted the proviso’s efficacy through narrow interpretations and undue deference to competing FTCA provisions such as the discretionary function exception.

This Note argues that the law enforcement proviso must be interpreted more broadly to properly hold government officers accountable. It takes on the project of sifting through the FTCA’s complexity and history to articulate why the correct doctrinal approach is to apply the proviso exclusively, superseding any competing provision within the FTCA. It delineates the current spectrum of approaches among the circuit courts, finding that only the Eleventh Circuit has adopted the advocated approach. The Note then justifies this approach under statutory interpretation principles and tort law theory while also considering the practical consequences of a disappearing Bivens remedy. Properly understood, the complexity of the FTCA and the barrier of sovereign immunity fade away: For government activity as intrusive and forceful as law enforcement, a court of law simply must have the ability to hold officers accountable.