Prods and Pleas: Limited Government in an Era of Unlimited Harm

75 Pages Posted: 31 Jan 2011 Last revised: 2 Nov 2011

Benjamin Ewing

Duke University School of Law

Douglas A. Kysar

Yale University - Law School

Date Written: January 27, 2011

Abstract

Not just a system of checks and balances ideally tuned to constrain collective political action, the constitutional separation of powers also may be seen as a system of “prods and pleas” in which distinct governmental branches and actors can push each other to entertain collective political action when necessary. Though an inversion of the assumed direction of checks and balances, such prods and pleas are not a radical reconfiguration of the basic structure and principles of American government. Rather, they are limited government’s failsafe: a latent capacity inherent to a system of divided authority that does and should activate when the external pressures of a changing world threaten the sustainability of disaggregated governance. By understanding and embracing their role in the shadow logic of prods and pleas, judges and other public officials can protect limited government by, when necessary, counteracting its potential to over-prefer passivity.

Through the case study of climate change nuisance litigation - particularly American Electric Power v. Connecticut, a case pending in the Supreme Court of the United States - we examine how three potential obstacles to merits adjudication - political question doctrine, standing, and preemption - should be evaluated in recognition of the significance of prods and pleas. We conclude that federal and state tort law provide an important defense mechanism that can help limited government sustain itself in the face of climate change and other dramatic twenty-first century threats, where the nature of the threat is, in large part, a function of limited government itself. As a residual locus for the airing of grievances when no other government actor is responsive to societal need, the common law of tort is a - and perhaps the - paradigmatic vehicle for the expression of prods and pleas. Although climate change plaintiffs still face long odds on the actual merits of their claims, judges would sell short their institutional role if they dismissed such claims as categorically beyond the proper domain of the courts and the common law. They would duck and weave when they should prod and plea.

Keywords: climate change, torts, federal courts, common law, political question, standing, preemption

Suggested Citation

Ewing, Benjamin and Kysar, Douglas A., Prods and Pleas: Limited Government in an Era of Unlimited Harm (January 27, 2011). Yale Law School, Public Law Working Paper No. 224; Yale Law Journal, Vol. 121, 2011. Available at SSRN: https://ssrn.com/abstract=1749398

Benjamin Ewing

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Douglas A. Kysar (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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