Genetically Modified Crops and Nuisance : Exploring the Role of Precaution in Private Law

This paper critically considers calls for the precautionary principle to inform judicial decision-making in a private law context in light of the claims in Hoffman v. Monsanto, where it is alleged that the potential for genetic contamination from GM crops causes an unreasonable interference with the rights of organic farmers to use and enjoy their lands, giving rise to an actionable nuisance. Applying the precautionary principle in this context would likely privilege non-GM land uses over GM uses, in light of the latter's uncertain environmental impacts. Through a comparison of the institutional characteristics and respective roles of public and private regulation, we argue that the private law context, which lacks democratic accountability and has a limited ability to address complex scientific issues, is poorly suited to apply the diffuse, policy-based risk allocation considerations raised by the precautionary principle