What Climate Change Can Do about Tort Law

To date, scholars exploring the connection between climate change and tort law have tended to ask what the latter can do aboutthe former. With a few notable exceptions, they have answered, “Not much.” This Article first reviews a series of doctrinal hurdles facing climate change plaintiffs and concludes that the pessimism of legal scholars is justified. The Article then poses an inverse and previously unexplored question: what can climate change do about tort law? As it turns out, the answer is, “Quite a bit.” By forcing courts to confront questions of harm, causation, and responsibility that lie at the frontiers of science and ethics, climatechange lawsuits hold potential to move the bar for what counts as exotic in the domain of tort. Radical though it may seem, such a recalibration should be welcomed: just as the administrative state is being forced to adapt to grapple with the global, complex, uncertain, and potentially catastrophic nature of twenty-first century threats to social welfare, the tort system also must shift in order to serve its role as the administrative state’s traditional and necessary backdrop. Not only the climate is changing.

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Publication Details

Published
2025-02-24
DOI
https://doi.org/10.31219/osf.io/4gkjv_v1
Citations
34
Primary Topic
Environmental law and policy
Type
article
Field-Weighted Citation Impact
0.00
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article

What Climate Change Can Do about Tort Law

Douglas A. Kysar
34 citations
Environmental law and policy
article

What Climate Change Can Do about Tort Law

Douglas A. Kysar
article en
34 citations

Abstract

To date, scholars exploring the connection between climate change and tort law have tended to ask what the latter can do aboutthe former. With a few notable exceptions, they have answered, “Not much.” This Article first reviews a series of doctrinal hurdles facing climate change plaintiffs and concludes that the pessimism of legal scholars is justified. The Article then poses an inverse and previously unexplored question: what can climate change do about tort law? As it turns out, the answer is, “Quite a bit.” By forcing courts to confront questions of harm, causation, and responsibility that lie at the frontiers of science and ethics, climatechange lawsuits hold potential to move the bar for what counts as exotic in the domain of tort. Radical though it may seem, such a recalibration should be welcomed: just as the administrative state is being forced to adapt to grapple with the global, complex, uncertain, and potentially catastrophic nature of twenty-first century threats to social welfare, the tort system also must shift in order to serve its role as the administrative state’s traditional and necessary backdrop. Not only the climate is changing.

Yale University (US)
Climate action
Openalex Percentile: Top 100%
Environmental law and policy
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