Uncommon Law: Judging in the Anthropocene

Jolene Lin & Douglas A. Kysar (eds.), CLIMATE CHANGE LITIGATION IN THE ASIA PACIFIC (Cambridge University Press 2020)

U. of Pittsburgh Legal Studies Research Paper No. 2020-33

21 Pages Posted: 13 Aug 2020 Last revised: 28 Oct 2020

See all articles by Joshua Galperin

Joshua Galperin

University of Pittsburgh - School of Law

Douglas A. Kysar

Yale University - Law School

Date Written: July 13, 2020

Abstract

The origin story of environmental law begins with judges working valiantly to protect the environment, but ultimately, out of an apparent necessity, passing responsibility to legislators and regulators. There is truth to the story, but it ignores important aspects of the demonstrated expertise, creativity, and dynamism of common law judges. Given the trajectory of the environmental law narrative, judges today too anxiously defer to legislative and regulatory policy, and we have come to expect, sometimes champion, this shirking of environmental responsibility. But this logic of deference is unpersuasive in an age where legislators and regulators also struggle, and most often fail, to address environmental issues like climate change. This chapter urges that, instead of minimizing the role of judges, there is immense need to rediscover the possibilities of common law environmental protection. There is need to write a new origin story in which courts, legislators, and regulators carry shared responsibility. The threat of climate change demands a turn to courts for a variety of services, not least, adjudication that uncovers individual suffering and declaration of norms of right and responsibility. The judge’s role in candidly attending to these meaningful decisions can be the catalyst for much needed political action.

Keywords: Environmental Law, Climate Change, Common Law, Litigation, Judges, Courts, Nuisance, Property, Negligence, Trespass, Anthropocene, Judging, Legislation, Regulation, Administrative Law, Global Warming, Adjudication

Suggested Citation

Galperin, Joshua and Kysar, Douglas A., Uncommon Law: Judging in the Anthropocene (July 13, 2020). Jolene Lin & Douglas A. Kysar (eds.), CLIMATE CHANGE LITIGATION IN THE ASIA PACIFIC (Cambridge University Press 2020), U. of Pittsburgh Legal Studies Research Paper No. 2020-33, Available at SSRN: https://ssrn.com/abstract=3650360 or http://dx.doi.org/10.2139/ssrn.3650360

Joshua Galperin (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

HOME PAGE: http://law.pitt.edu/people/joshua-galperin

Douglas A. Kysar

Yale University - Law School ( email )

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

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