71 Pages Posted: 20 Jul 2010 Last revised: 19 Oct 2014
Date Written: July 20, 2010
To date, scholars exploring the connection between climate change and tort law have tended to ask what the latter can do about the former. With a few notable exceptions, they have answered, “Not much.” This Article first reviews a series of doctrinal hurdles facing climate change plaintiffs and concludes that the pessimism of legal scholars is justified. The Article then poses an inverse and previously unexplored question: what can climate change do about tort law? As it turns out, the answer is, “Quite a bit.” By forcing courts to confront questions of harm, causation, and responsibility that lie at the frontiers of science and ethics, climate change lawsuits hold potential to move the bar for what counts as exotic in the domain of tort. Radical though it may seem, such a recalibration should be welcomed: just as the administrative state is being forced to adapt to grapple with the global, complex, uncertain, and potentially catastrophic nature of twenty-first century threats to social welfare, the tort system also must shift in order to serve its role as the administrative state’s traditional and necessary backdrop. Not only the climate is changing.
Keywords: Climate Change, Tort Law, Public Nuisance, New Governance
Suggested Citation: Suggested Citation
Kysar, Douglas A., What Climate Change Can Do About Tort Law (July 20, 2010). Yale Law School, Public Law Working Paper No. 215; Environmental Law, Vol. 41, No. 1, 2011. Available at SSRN: https://ssrn.com/abstract=1645871