Interesting Post on Climate Change Litigation at Torts Prof Blog
In a guest blogger's post at Torts Prof Blog, Professor Adam Scales, from Washington & Lee University School of Law, has an interesting rumination on climate change litigation and the Fifth Circuit's decision in Comer v. Murphy Oil, which I previously covered here. Professor Scales writes about the ebb and flow of tort law, describing the tort law of today as very different from that of the 1960s and 1970s, when new duties were being fashioned at a "heady clip." He concludes:
It is thus a little surprising to see climate change activists so hopeful about reliance on today's tort law, as opposed to the tort law of a few years ago. Tort law tends to rise and fall with the political winds; perhaps climate change action will strike judges (who shrink from charges of judicial activism), juries (decreasingly sympathetic to plaintiffs, and fed a diet of "crazy tort stories" in the media) and legislators (who have not been shy in recent years about pretermitting disfavored tort claims on behalf of important economic interests) as so urgent that it will constitute an exception in this era of retrenchment. I don't think that is likely, and I hope it doesn't happen. It is questionable whether any political system is capable of marshaling the extravagantly complex and overdetermined series of relationships that drive global emissions into an effective consensus for change. I am fairly certain, however, that the small, inwardly-focused, intuitive, largely undemocratic cross-section of the political system that is tort law is not up to the task.
