Courting Disaster: Climate Change and the Adjudication of Catastrophe

R. Henry Weaver & Douglas A. Kysar*

Do we court disaster by stretching the bounds of judicial authority to address problems of massive scale and complexity? Or does disaster lie in refusing to engage the jurisgenerative potential of courts in a domain of such vast significance? This Article examines global climate change adjudication to shed light on these questions, focusing particularly on cases that seek to invoke the norm articulation and enforcement functions of courts. The attempt to configure climate-related harms within such substantive frameworks as tort and constitutional law is fraught with analytical and practical difficulties. Yet the exercise, we argue, is essential. Against the backdrop of a potentially existential threat, judges redeem the very possibility of law when they forthrightly confront the merits of climate lawsuits. Conversely, when they use weak preliminary and procedural maneuvers to avoid such confrontation, judges reinforce a sense of law’s disappearance into the maw of normative rupture.

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© 2017 R. Henry Weaver & Douglas A. Kysar. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice

*R. Henry Weaver, Yale Law School, Class of 2018. Douglas A. Kysar, Joseph M. Field ’55 Professor of Law, Yale Law School. For helpful comments and discussion, we are grateful to Bruce Ackerman, John Applegate, Rosemary Lyster, Ben Mylius, Heather Richard, and Rob Verchick.