Regulating Through Recourse: Rediscovering Tort As Regulation

68 Pages Posted: 7 Sep 2019 Last revised: 28 Sep 2019

Date Written: September 26, 2019

Abstract

Most scholars hold that tort has little or no power to effectively or legitimately regulate complex risks such as environmental pollution. This consensus has spurred a broad skepticism about tort’s regulatory capacity within the judiciary, altering the contours of tort law itself. This Article challenges such skepticism by presenting a case study of farmers who used tort to manage the risk of air pollution from a nearby aluminum plant. The scope of their success suggests that features of tort adjudication such as equitable powers, discovery and procedure, settlement, and community have been overlooked by tort theorists. By reintegrating these features into theoretical visions of tort law, we can rediscover tort’s potential as a powerful tool within what might be called society’s ‘ecosystem’ of risk regulation.

Keywords: tort, risk regulation, environmental law, discovery, empowerment, community, settlement, courts

Suggested Citation

Kysar, Douglas A. and Dwyer Reynolds, Conor, Regulating Through Recourse: Rediscovering Tort As Regulation (September 26, 2019). Available at SSRN: https://ssrn.com/abstract=3449770 or http://dx.doi.org/10.2139/ssrn.3449770

Douglas A. Kysar

Yale University - Law School ( email )

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

Conor Dwyer Reynolds (Contact Author)

Yale Law School ( email )

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

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