Courts in the Age of Dysfunction
12 Pages Posted: 4 Oct 2011
Date Written: October 3, 2011
This is a commissioned comment on a forthcoming article by Benjamin Ewing & Douglas Kysar, Prods and Pleas: Limited Government in an Era of Unlimited Harm, 121 Yale L.J. - (forthcoming 2011). Ewing & Kysar suggest that we augment the traditional conception of constitutional "checks and balances" with one of "prods and please," i.e. that different branches of government can provide incentives and knowledge to induce action from other branches. It uses federal climate nuisance litigation as an example of how such prods and pleas can and should oeprate. I am skeptical that governmental branches listen to reasoned arguments from other branches; thus, "pleas" has little value. Ewing & Kysar's theory of prods, however, contains an important insight. Branches often respond to political incentives, and so when one branch reaches a decision that undermines the political goals of key actors in other branches (a "prod"), action is possible. In this Age of Dysfunction, when one of the major American political parties seeks to paralyze government action, I suggest three areas where judicial prodding might be appropriate: 1) where legislation is blocked by a filibuster; 2) where opposition to legislation rejects science; and 3) where the legislative process produces results discriminating against diffuse and invisible (and thus powerless) groups. I then use Ewing & Kysar's example of climate change policy and argue that under current circumstances, judicial prodding is appropriate.
Keywords: climate change, statutory interpretation, public nuisance, common law, separation of powers, science in policymaking
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