Fragile Futures and Resiliency: Litigating Climate Change, Judging Under Stress, 2019 Volume of Yale's Global Constitutionalism Seminar, a Part of the Gruber Program for Global Justice and Women's Rights

Yale Law School Global Constitutionalism, 2019

196 Pages Posted: 28 Jan 2020

See all articles by Daniel C. Esty

Daniel C. Esty

Yale Law School

Douglas A. Kysar

Yale University - Law School

Manuel Cepeda-Espinosa

Constitutional Court of Colombia

Laurent Fabius

Conseil Constitutionnel

Laurent Neyret

affiliation not provided to SSRN

Kim Lane Scheppele

Program in Law and Public Affairs, Princeton University; Woodrow Wilson School of Public and International Affairs, Princeton University; University Center for Human Values, Princeton University

Judith Resnik

Yale University - Law School

Marta Cartabia

Constitutional Court of Italy

Carlos Rosenkrantz

University of San Andres (UMSA)

Clare Ryan

LSU Paul M. Hebert Law Center; Yale University, Law School

Date Written: September 11, 2019

Abstract

Global Constitutionalism 2019: Fragile Futures and Resiliency is now available as an e-book to download without charge. This volume is the eighth in the series of readings for Yale’s Global Constitutionalism Seminar, a part of the Gruber Program for Global Justice and Women’s Rights. This year’s materials are co-edited by Judith Resnik and Clare Ryan.

Chapter I, Litigating Climate Change, examines efforts to respond to climate change through litigation under domestic and international sources of law. The materials address the familiar question of the judicial role in the context of daunting challenges to the world. An initial set of issues revolves around governments’ and private parties’responsibilities not to contribute to and to stem the tide of change. Many defendants respond by arguing that the individuals, groups, or entities seeking to hold them accountable have no authority to proceed, or that courts ought to defer to other branches of government and reject lawsuits. When such objections are overcome, issues of liability and remedies come to the fore, again framed around questions about the authority of judges to call on others for answers or to specify standards. These questions arise in cases where litigants allege that governments have not complied either with domestic or with international commitments to tackle climate change. After surveying many courts’ efforts to address these challenges, the Chapter ends with a discussion of whether the gravity of the environmental crisis inherently compels judicial engagement. This chapter was co-edited by Daniel Esty, Douglas Kysar, Manuel Jose Cepeda Espinosa, Laurent Fabius, and Laurent Neyret.

Chapter II, Judging Under Stress, reflects on the many jurisdictions in which judges are finding their own legitimacy called into question. The materials address the metrics of judicial legitimacy, sources of backlash, and responses from courts in light of twenty-first century challenges to judicial authority and to constitutional democracy. Contemporary judicial foes ― or friends ― come not only from other branches of government, but also from the media and from repeat player litigants who can seek to select judges and shape court precedents and procedures. These pressures have resulted in efforts to reconfigure courts, force the retirement of some judges, select others, and change judges’ decision-making authority. The materials emphasize that judicial independence is fundamental to constitutionalism and the rule of law, while recognizing that commitments to judicial independence also depend on the political economy and theories under-girding these commitments. In response to increasingly fractured and polarized times, some judges are restrained ― tethering their work to precedents ― and others emboldened. Whether or not existing structures or judicial practices are enough to protect judicial independence today remain open questions. Answers to these questions come in part through the essays and decisions of constitutional court judges, excerpted in the second half of this Chapter. These works call for re-commitments to the integrity of judiciaries, structures of fair governance, and the rights of individuals, from both their colleagues and the body politic. This chapter was co-edited by Kim Lane Scheppele, Judith Resnik, Marta Cartabia, and Carlos Rosenkrantz.

Suggested Citation

Esty, Daniel Cushing and Kysar, Douglas A. and Cepeda-Espinosa, Manuel and Fabius, Laurent and Neyret, Laurent and Scheppele, Kim Lane and Resnik, Judith and Cartabia, Marta and Rosenkrantz, Carlos and Ryan, Clare, Fragile Futures and Resiliency: Litigating Climate Change, Judging Under Stress, 2019 Volume of Yale's Global Constitutionalism Seminar, a Part of the Gruber Program for Global Justice and Women's Rights (September 11, 2019). Yale Law School Global Constitutionalism, 2019. Available at SSRN: https://ssrn.com/abstract=3485199

Daniel Cushing Esty

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1602 / 6256 (Phone)
203-432-4871 / 3817 (Fax)

Douglas A. Kysar

Yale University - Law School ( email )

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

Manuel Cepeda-Espinosa

Constitutional Court of Colombia

Laurent Fabius

Conseil Constitutionnel ( email )

2 rue Montpensier
PARIS, 75001
France
+33 (1) 40 15 30 00 (Phone)
+33 (1) 40 20 93 27 (Fax)

HOME PAGE: http://www.conseil-constitutionnel.fr

Laurent Neyret

affiliation not provided to SSRN

Kim Lane Scheppele

Program in Law and Public Affairs, Princeton University ( email )

Wallace Hall
Princeton, NJ 08544
United States
609-258-6949 (Phone)
609-258-0922 (Fax)

Woodrow Wilson School of Public and International Affairs, Princeton University ( email )

Princeton University
Princeton, NJ 08544-1021
United States
609-258-6949 (Phone)
609-258-0922 (Fax)

University Center for Human Values, Princeton University ( email )

304 Louis Marx Hall
Princeton, NJ 08544
United States

Judith Resnik (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1447 (Phone)
203-432-1719 (Fax)

Marta Cartabia

Constitutional Court of Italy ( email )

Italy

Carlos Rosenkrantz

University of San Andres (UMSA)

Vita Dumas 284
(1644) Victoria, Pcia
Buenos Aires, Buenos Aires 1644
Argentina

Clare Ryan

LSU Paul M. Hebert Law Center ( email )

1 E Campus Dr
Baton Rouge, LA 70803
United States

Yale University, Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

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