Civil Procedure for the Anthropocene

76 Pages Posted: 3 Oct 2023 Last revised: 8 Mar 2024

See all articles by Roger Michalski

Roger Michalski

University of Oklahoma - College of Law

Emily Taylor Poppe

University of California, Irvine School of Law

Date Written: March 6, 2024

Abstract

Climate considerations must become a core element of procedural analysis. Scholars, rule-makers, legislators, and judges have historically prioritized procedural values including cost, speed, and accuracy. More recent waves of scholarship—including critical perspectives—have emphasized participation as a further procedural goal. Yet this list has grown stale. Current environmental realities force all areas of law, including civil procedure, to reckon with climate change. In the future, proceduralists will integrate climate-aware thinking into their analysis, proposals, and discussions. Predictably, minds will disagree on how to accomplish this and the kinds of trade-offs that are warranted. Yet the fundamental point of this article remains: climate change resilience is a procedural value that has not been recognized but must be.

This signals not the genesis of a new branch of procedural scholarship but an opportunity to broaden the discussion for all procedural scholarship. Likewise, this article serves as a guide for rule-makers and legislators who have just recently begun to show interest in climate-aware procedures. It directs them to procedural topics that require urgent attention, provides implementation strategies for developing resilient procedures, and considers the attendant costs and benefits of different approaches ranging from laissez-faire to aggressive engagement.

Just as civil procedural innovations contributed to the emergence and success of the civil rights movement, our collective response to climate change will also be shaped by civil procedure. This article prepares for this future and offers a corrective to the field’s failure to anticipate and respond to climate change.

Keywords: civil procedure, climate change, federal courts

JEL Classification: K41, Q54

Suggested Citation

Michalski, Roger and Taylor Poppe, Emily, Civil Procedure for the Anthropocene (March 6, 2024). Boston University Law Review, Forthcoming, UC Irvine School of Law Research Paper No. 2023-35, Available at SSRN: https://ssrn.com/abstract=4584465 or http://dx.doi.org/10.2139/ssrn.4584465

Roger Michalski (Contact Author)

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States

Emily Taylor Poppe

University of California, Irvine School of Law ( email )

401 E. Peltason Drive
Irvine, CA 92697
United States
9498242986 (Phone)

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