Torts
Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming
**This is the first in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ.** In Prods and Pleas, Benjamin Ewing and Douglas Kysar claim that the American legal system needs to adopt novel solutions to deal with the question of global warming. In this Essay, I start from the premise that some form of legal response to global warming is appropriate, but then conclude that the traditional allocation of responsibility between private rights of action (for large concentrated harms) and direct government administrative action (for diffuse harms) remains the proper approach. In light of the worldwide nature of the problem, the only domestic responses to this issue should be through coordinated action at the federal level. Accordingly, I agree with the Supreme Court’s decision in American Electric Power Co. v. Connecticut and conclude further that the comprehensive powers lodged in the Environmental Protection Agency should not only block private rights of action under federal law, but under state law as well.
Reconciling Punitive Damages with Tort Law’s Normative Framework
121 Yale L.J. 678 (2011). As punitive damages have gained greater visibility in Supreme Court jurisprudence, the need for principles explaining punitive damages and guiding their application has grown. Corrective justice would seem suited to providing guidance in this arena of tort law, but unfortunately it has never satisfactorily accounted for punitive damages. This Note seeks to answer that deficiency with what the Note calls tort law’s moral accounting interest. This interest reconciles punitive damages with corrective justice within a unified theory of accountability in tort law. The Note shows how this unified theory adds practical value to the explanation and application of punitive damages.
Prods and Pleas: Limited Government in an Era of Unlimited Harm
121 Yale L.J. 350 (2011). Not just a system of checks and balances ideally tuned to constrain collective political action, the constitutional division of authority also may be seen as a system of “prods and pleas” in which distinct governmental branches and actors can push each other to entertain collective political action when necessary. Though prods and pleas are an inversion of the assumed direction of checks and balances, they are not a radical reconfiguration of the basic structure and principles of American government. Rather, they are limited government’s fail-safe: a latent capacity inherent to a system of divided authority that does and should activate when the external pressures of a changing world threaten the sustainability of disaggregated governance. By understanding and embracing their role in the shadow logic of prods and pleas, judges and other public officials can protect limited government by, when necessary, counteracting its potential to overprefer passivity. Through the case study of climate change nuisance litigation, we examine how three potential obstacles to merits adjudication—the political question doctrine, standing, and implied preemption—should be evaluated in recognition of the significance of prods and pleas. We conclude that federal and state tort law provide an important defense mechanism that can help limited government sustain itself in the face of climate change and other dramatic twenty-first century threats, where the nature of the threat is, in large part, a function of limited government itself. As a residual locus for the airing of grievances when no other government actor is responsive to societal need, the common law of tort is a—and perhaps the—paradigmatic vehicle for the expression of prods and pleas. Although climate change plaintiffs still face long odds on the actual merits of their claims, judges would sell short their institutional role if they dismissed such claims as categorically beyond the proper domain of the courts and the common law. They would duck and weave when they should prod and plead.
Misalignments in Tort Law
121 Yale L.J. 82 (2011). In negligence law, the risks taken into account by courts when setting the standard of care are the same risks considered when imposing liability and awarding damages. I call this the “alignment principle.” One objective of this Article is to expose exceptions to the alignment principle, which I call “misalignments.” In cases of misalignment, the risks that are accounted for in setting the standard of care are different from the risks for which liability is imposed and damages are awarded. A second objective of this Article is to suggest modifications to the law when misalignments cannot be justified. The most important objective of this Article, however, is to offer a theory of how to evaluate and contend with misalignments. Five cases of misalignment are identified and discussed in the Article. The first case illustrates how courts set the standard of care independently of the victim’s level of income, but award different amounts of damages to high- and low-income victims. The second case represents instances in which causation is inherently hard to prove. In such cases, courts set the standard of care according to the expected harm, but traditionally allow no compensation when the plaintiff suffers harm but cannot prove that it was caused by the defendant’s negligence. In the third case, courts account for both risks increased and decreased by the injurer when setting the standard of care, but ignore the decreased risks when awarding damages. In the fourth case, courts set the standard of care by taking into account both ordinary and unusual risks, but often refuse to impose liability for harms that materialized from the ordinary risks. Finally, in the fifth case, courts set the standard of care by considering the risks the injurer created for others, but not the risks he created for himself, even though the negligent injurer bears harms that materialized from both the risks to others and the risks to self. In all five cases, the goals of tort law would be better served by removing misalignments and equally accounting for risks both in setting the standard of care and awarding damages.
The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability
121 Yale L.J. 142 (2011). When a tort rule is fully aligned, harms are valued equally across the elements. Because the valuation of harm within duty equals the valuation within the damages remedy, a fully aligned rule gives dutyholders the option to fully comply with the duty with respect to any harm by paying (the equally valued) compensatory damages for that harm. Full alignment characterizes a rule of strict liability but not negligence liability, which partially misaligns the elements for reasons of principle. Owing to its primary reliance on the damages remedy, a fully aligned rule is unable to address adequately the problem of irreparable injury, a common law category encompassing bodily injury and damage to real or tangible property. In cases of irreparable injury, the common law has long recognized the principle that it is better to prevent the harm instead of attempting to compensate for its occurrence with the inherently inadequate monetary damages award. This principle explains why tort law has adopted a default rule of negligence liability that seeks to prevent the irreparable injury of physical harm without imposing undue hardship on the dutyholder. To function in this manner, the negligence rule must misalign the elements so that dutyholders are prohibited from rejecting the primary duty of care (based on a higher legal valuation of harm) in exchange for payment of (the lower-valued) compensatory damages. The principle of misalignment reorients the interpretation of tort law in a manner that has been missed by leading accounts. It decisively shows that courts have formulated the negligence rule in a fundamentally inefficient manner, while also showing that the rights-based accounts of corrective justice must explain why that form of justice would primarily value the exercise of reasonable care as opposed to the payment of compensatory damages. For reasons revealed by the misaligned negligence rule, that type of explanation can be supplied by a compensatory tort norm that redirects the dutyholder’s compensatory obligation from the damages remedy into expenditures that would prevent physical harm, yielding the type of misaligned negligence rule that now constitutes the default rule of tort liability. In a world of irreparable injuries and scarce resources, the varied limitations of tort liability can all be understood in relation
A Tale of Two Climate Cases
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.** In July 2004, eight states, the City of New York, and a number of conservation organizations filed suit against several of the nation’s largest electric power producers, alleging that the power companies’ greenhouse gas (GHG) emissions contributed to the public nuisance of global warming under federal common law. Simultaneously, several of the same states sued the U.S. Environmental Protection Agency (EPA), alleging that GHG emissions constituted “pollutants” subject to regulation under the Clean Air Act (CAA). Both cases sought to impose GHG emission controls, and both were a reaction to the federal government’s steadfast refusal to adopt such policies on its own. Although the cases raised different legal arguments, their fates were intertwined. It was well understood that prevailing in one case would likely preclude victory in the other. Indeed, the point of parallel litigation was to make it more difficult for industry and the EPA to stave off action. The EPA had determined GHGs were not subject to regulation under the CAA. If that were so, the states argued, the CAA could not preclude common law-based claims against GHG emissions. Thus, when the states prevailed in Massachusetts v. EPA and the Supreme Court declared that GHG emissions “fit well within the Clean Air Act’s capacious definition of ‘air pollutant,’” the outcome of American Electric Power Co. v. Connecticut (AEP) was all but assured.
AEP v. Connecticut and the Future of the Political Question Doctrine
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.** Whether and how to apply the political question doctrine were among the issues for which the Supreme Court granted certiorari in American Electric Power Co. v. Connecticut (AEP). This doctrine holds that federal courts should not resolve certain kinds of claims better left to other branches. Here, the question was whether the doctrine barred review of plaintiffs’ federal common law claims for climate change. The Court, however, declined to engage the issue. Nonetheless, this Essay argues that the doctrine is still very relevant in the context of common law causes of action for climate change, and does so in three parts. Part I briefly explains the doctrine’s historical backdrop, observing the limited extent to which it has been applied. Part II explains the role that the doctrine played in AEP and that the Court declined to address the issue directly. Part III discusses the implications that AEP may have on the doctrine going forward.
AEP v. Connecticut’s Implications for the Future of Climate Change Litigation
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.** In American Electric Power Co. v. Connecticut (AEP), the Supreme Court held that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” This set of commentaries explores several of the interesting and controversial issues that the opinion addresses (or largely sidesteps). These essays analyze the complexities of the context in which the core displacement holding takes place, the opinion’s environmental justice implications, its interaction with current standing doctrine, the political question doctrine issues briefed in the case but not addressed in detail by the decision, and common law nuisance actions as an approach to addressing climate change. My commentary situates these essays in relation to one another and adds to this dialogue by considering the decision’s implications for the future of climate change litigation in the United States.
Climate Justice and the Elusive Climate Tort
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.** The Supreme Court’s decision in American Electric Power Co. v. Connecticut (AEP) closes another door for those most vulnerable to climate change. The corrective justice goals of tort law and the associated possibilities for redress—particularly vital to the most vulnerable—remain elusive due to the Court’s restricted view of tort law’s relevance to climate change. This Essay analyzes these climate justice implications of AEP. The field of “climate justice” (CJ) is concerned with the intersection of race and/or indigeneity, poverty, and climate change. It also recognizes the direct kinship between social inequality and environmental degradation. The term “climate vulnerable,” the subject of CJ, describes those communities or nation-states that have a particularly acute exposure to present and forecasted climatic changes. That increased vulnerability is due to either the nature and degree of climate impacts’ forecast and/or the preexisting socioeconomic vulnerabilities that climate impacts amplify. Underscoring the “justice” element, these most vulnerable populations are also the least responsible for the emissions that fuel anthropogenic climate change. The Essay argues that the common law nuisance claims rejected by the Court in AEP provide an important mechanism for the climate vulnerable to achieve corrective justice. Corrective justice is one of the most important goals of tort law because of its focus on the relationship between the tortfeasor and victim. While there are myriad interpretations of corrective justice theory and its application, this approach at its core counsels simply that individuals who are responsible for the wrongful losses of others have a duty to repair those losses. Further, rectification of harms suffered can help restore the moral balance upset by the externalized costs that climate change inflicts on individuals and communities. The corollary, therefore, is that tort law should provide a venue and possible damages remedy for CJ plaintiffs whose claims—namely, injuries to life and property—demand compensation from the worst offenders.
Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.** Article III standing has three seemingly simple components: (1) the plaintiffs must suffer an actual injury, (2) the injury must be caused by the defendant, and (3) the courts must be able to provide a remedy for that injury. In American Electric Power Co. v. Connecticut (AEP), the Justices deadlocked over the application of the test to a common law action for nuisance. As AEP illustrates, the apparent simplicity of the test is misleading. The claims were brought against utilities by states complaining that carbon emissions from power plants were contributing to harm from climate change. The Court devoted only a few cryptic sentences to the issue of standing. Four Justices found standing based on Massachusetts v. EPA, the Court’s path-breaking opinion on climate change, while four others rejected standing, either “adhering to a dissenting opinion in Massachusetts or regarding that decision as distinguishable.” As a result, the lower court’s finding of standing was affirmed by an equally divided Court. This disposition may leave the reasoning of the Justices mysterious, but AEP is a powerful illustration of the deep flaws in current doctrine: first, its incoherent application; second, its injection of merits issues into a supposedly jurisdictional determination; third, its manipulability in the hands of creative, well-resourced lawyers; and fourth, its resulting failure to advance any intelligible vision of the proper role of the federal judiciary.
What Litigation of a Climate Nuisance Suit Might Look Like
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.** In American Electric Power Co. v. Connecticut (AEP), the Supreme Court explicitly left ajar the door to litigation under state (as opposed to federal) common law for greenhouse gas (GHG) emissions. Some plaintiffs’ lawyers are also arguing that the decision leaves room for seeking money damages (rather than injunctive relief) even in a federal common law case. For purposes of this Essay, let’s imagine a world in which the courthouse doors are swung open to common law claims for damages for GHG emissions, and the courts have rejected all defenses based on displacement, preemption, political question, and standing. In other words, the plaintiffs finally are able to litigate the merits. What would that litigation look like? Because I have spent thirty years as a practicing environmental litigator (sometimes acting for plaintiffs, sometimes for defendants) prior to entering academia, my head swims with the challenges such a case would pose. Most of the voluminous commentary on the common law GHG cases looks at the threshold issues; let’s now peer across the threshold and see what’s on the other side. What we’ll find is an extraordinary number of open questions that would face the parties and the courts; in this Essay I attempt to enumerate them, without undertaking the daunting task of answering them.
Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations
Intellectual Property as Property: Delineating Entitlements in Information
This Article proposes that intellectual property’s close relationship to property stems from the role that information costs play in the delineation and enforcement of exclusion rights. As theorists have emphasized, the nonrivalness of information causes exclusive rights to be more costly in terms of forgone use than in the law of tangible property. But if intellectual property does not solve a problem of allocation, it can play a role in allowing those who find and develop information to appropriate the returns from their rival inputs. It is on the cost side that exclusion emerges as a possible shortcut: exclusive rights in information are simple, indirect, and low-cost devices for solving the problem of appropriating the returns from these rival inputs. Building on a framework that identifies exclusion and governance as complementary strategies for defining property rights, the Article derives some propositions about which factors can be expected to push toward and away from exclusion in delineating entitlements to information. The role that exclusion plays in keeping the system of entitlements over information modular—allowing information to be hidden behind metaphorical boundaries—is both its strength and its weakness. Because exclusion is both more costly and potentially more beneficial as interconnected information becomes more valuable, it is an empirical question whether we would expect more exclusion—and whether it would be desirable. The Article uses this information-cost theory to explain some of the basic differences between the more tort-like copyright regime and the more property-like patent law. The information-cost theory also has implications for suggestive sources of empirical evidence on the structure of entitlements, such as rules within business organizations. Intellectual property, like property in general, can be seen as (at best) a second-best solution to a complex coordination problem of attributing outputs to inputs. 116 Yale L.J. 1742 (2007).
Property and Half-Torts
116 Yale L.J. 1400 (2007) The idea that a tort can be split analytically into two parts—risk and harm—underlies a great deal of torts scholarship. Yet the notion has been all but ignored by property scholars employing Calabresi and Melamed’s famous entitlement framework. Thus, in discussing an “entitlement to pollute,” scholars rarely distinguish inputs to pollution (a factory’s emission of fumes from a smokestack) from outcomes of pollution (a neighbor’s grimy linens or respiratory distress). Instead, “pollution” is viewed as a single unified event that one party or the other receives an entitlement to control. This failure to conceptually separate risky inputs from harmful outcomes has led to imprecise and inaccurate ways of thinking and talking about entitlements. Property theory has suffered as a result, as has our understanding of how property and torts relate to each other. In this Article, I make a start at bringing the concept of the divided tort—here termed “half-torts”—into the property picture. Doing so generates a reformulated entitlement framework that fits more comfortably with moral intuitions, highlights the potential roles of luck and self-help in producing outcomes, and clarifies the available menu of alternatives for addressing property conflicts. The approach taken here advances a functional view of property as a container designed to collect inputs and outcomes with some regularity.
Irreparable Benefits
116 Yale L.J. 1284 (2007) The conventional approach to preliminary relief focuses on irreparable harm but entirely neglects irreparable benefits. That is hard to understand. Errant irreversible harms are important because they distort incentives and have lasting distributional consequences. But the same is true of errant irreversible gains. When a preliminary injunction wrongly issues, then, there are actually two distinct errors to count: the irreparable harm wrongly imposed on the nonmoving party, and the irreparable benefit wrongly enjoyed by the moving party. Similarly, when a preliminary injunction is wrongly denied, there are again two errors: the irreparable harm wrongly imposed on the moving party, and the irreparable benefit errantly accorded the nonmoving party. The conventional approach to preliminary relief mistakenly accounts for only half the problem. Read Professor Lichtman's Pocket Part essay on this topic, Irreparable Benefits. Read Professor Porat's response, When Do Irreparable Benefits Matter? A Response to Douglas Lichtman on Irreparable Benefits. Read Professor Ben-Shahar's response, Against Irreparable Benefits. Read Aaron Petty's response, The Relative Weight of Irreparable Benefits .
Risk Aversion and Rights Accretion in Intellectual Property Law
116 Yale L.J. 882 (2007) Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict and the consequences of infringement are dire, risk-averse intellectual property users often seek a license when none is needed. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine, as the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory—where risk aversion again creates licensing markets, which causes further accretion of entitlements, which in turn pushes the gray areas even farther afield, and so on. This “doctrinal feedback” is not a result of changes in the positive law but is instead rooted in longstanding, widely accepted doctrine and prudent behavior on the part of everyone involved. And because feedback is so ingrained in established law and practice, its various cures tend to create more problems than they solve. In the end, however, subtle changes in doctrine’s use of licensing information provide a normatively neutral solution. Read Professor Rebecca Tushnet's Response, Why the Customer Isn’t Always Right: Producer-Based Limits on Rights Accretion in Trademark. Read Professor Wendy Gordon's Response, The ‘Why’ of Markets: Fair Use and Circularity.
The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs
115 Yale L.J. 524 (2005) In our legal system, redressing private wrongs has tended to be the business of tort law, itself traditionally a branch of the common law. But do individuals have a "vested interest" in law that redresses wrongs? If so, do state and federal governments have a constitutional duty to provide that law? Since the New Deal era, conventional wisdom has held that individuals do not possess such a right, and consequently, government bears no such duty. In this view, it is a matter of unfettered legislative discretion--"whim"--whether or how to provide a law of redress. This view is wrongheaded. To be clear: I do not argue that individuals have a property-like interest in a particular corpus of tort rules. The law of tort is always capable of improvement, and legislatures have an obligation and the requisite authority to undertake such improvements. Nonetheless, I do argue that tort law, understood as a law for the redress of private wrongs, forms part of the basic structure of our government. And though the Constitution does not confer on any particular individual a right to a specific version of tort rules, all American citizens have a right to a body of law for the redress of private wrongs that generates meaningful and judicially enforceable limits on tort reform legislation.