Uncommon Law: Ruminations on Public Nuisance
Abstract
Faced with allegations of planetary liability, wise jurists may decide that courts lack the resources and tools to comprehensively investigate, thoroughly evaluate, and fairly resolve public nuisance claims based upon global climate change. After considering their unique role in our partitioned system of government, judges may decide that complex environmental bureaucracies can only be reliably developed and justly administered outside their limited realm. They may conclude that judicial intrusion into such matters usurps the legislature’s and the executive’s prerogatives, especially when they are urged to base sweeping liability determinations on narrow “case by case” standards limited by a record generated solely by litigants, and by budgets constrained by judicial appropriations. Under such circumstances, the limits of judicial competency suggest that forbearance, rather than adventure, may be the most “principled response.”
Originally presented at the Judicial Symposium on the Expansion of Public Nuisance - Northwestern University School of Law (April 27, 2010).