Prods and Pleas: Limited Government in an Era of Unlimited Harm
Duke University School of Law
Douglas A. Kysar
Yale University - Law School
January 27, 2011
Yale Law School, Public Law Working Paper No. 224
Yale Law Journal, Vol. 121, 2011
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.
Number of Pages in PDF File: 75
Keywords: climate change, torts, federal courts, common law, political question, standing, preemption
Date posted: January 31, 2011 ; Last revised: November 2, 2011