Comment on Doug Kysar's "What Climate Change Can Do About Tort Law"

Published In: 42 Environmental Law Reporter 10745 (2012)

Posted on RAND.org on August 01, 2012

by James M. Anderson

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Professor Doug Kysar's article outlines an array of doctrinal and conceptual hurdles that climate-change plaintiffs face and notes the way in which tort's focus on short-term solutions—its marginalist bias as Professor Kysar puts it—impairs its ability to address a variety of important issues. He then suggests that while climate change litigation may not succeed at its own goal, it may have the salutary effect of changing tort law for the better. In this Response, the author sketches two problems with this argument. The first concerns Kysar's implicit model of legal change. The second concerns the issue of the institutional competence of the courts to administer the kind of tort law regime that Kysar proposes.

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