Prods and pleas: limited government in an era of unlimited harm.

Author:Ewing, Benjamin

INTRODUCTION I. TO PROD AND PLEAD, OR PUNT? II. TORT LAW AND CHANGING CLIMATES III. BEFORE THE LAW SITS A GATEKEEPER A. The Political Question Doctrine B. Standing 1. Injury-in-Fact 2. Traceability and Redressability 3. Prudential Standing 4. Parens Patriae Standing C. Implied Preemption and Displacement IV. THE ACTIVE VIRTUES OF COMMON LAW ADJUDICATION A. Separation of Powers B. Rule of Law CONCLUSION INTRODUCTION

Society today faces realistic threats of unlimited harm. This is true in at least two important senses. First, the sources of some injuries are now so numerous and dispersed, or so unpredictable and evasive, as to be unregulable in any traditional fashion. Climate change is the obvious example. As we are repeatedly reminded, domestic efforts to mitigate greenhouse gas emissions will matter naught without a mechanism for limiting the remainder of the globe's nearly seven billion anthropogenic emitters. Global economic risk is similarly diffuse and wide-reaching. Interlinkages of finance and trade create opportunities for growth and efficiency but also render any individual jurisdiction vulnerable to systemic risks arising from far outside its regulatory purview. The frequency and density of international travel and migration create a similar dilemma with respect to infectious diseases and the risk of global pandemics. Threats of terrorism are not pervasive in this sense, but they may still be practically unlimited. Clandestine weapons markets and global communications channels enable the recruiting of anyone anywhere into the cause of destruction. The pipeline of recruitment may be monitored, perhaps even constricted, but it may not be shut off.

Second, the potential impact of harms is frequently both catastrophic and resistant to confident characterization. (1) For instance, climate scientists have identified a variety of scenarios under which global warming and ocean acidification spin wildly out of control, with harmful effects of unprecedented magnitude. (2) Yet, the mechanisms underlying these scenarios are not sufficiently well understood to assign the kind of probabilities that policymaking in the rationalist tradition demands. (3) As a result, the tails of our probability distributions are fat and fuzzy; somewhat paradoxically, more knowledge often only makes them more so. The challenge is similar for other catastrophic threats. Before the events of September 11, 2001, the financial collapse of 2008, and the Deepwater Horizon oil spill disaster of 2010, knowledgeable observers warned that such threats were not only imaginable but likely. Yet, their warnings were not easily assimilated into our safety protocols and risk models. How do we guard against an agent determined to be indeterminable? How do we price a risk to the very mechanism that gives rise to price? How do we prepare for the worst when our history with an activity is limited and deceptively reassuring?

Threats of unlimited harm resist figuration within conventional regulatory frameworks--not least because their drivers and impacts span the globe, fall under multiple agency mandates, and confound conventional risk assessment techniques. Accordingly, many theorists of the administrative state argue that contemporary regulatory tasks require new modes of management, ones built on an understanding of regulation as a continual process of experimentation, monitoring, and adjustment against the prospect of unpleasant surprise. This "new governance" framework treats regulatory targets as embedded within intricate systems that defy precise prediction and control. (4) Rapidly evolving, globally interconnected, and wickedly complex, such systems do not yield to straightforward command-and-control regulation or other familiar lawmaking forms. (5) Instead, "governance" only emerges from the decentralized, overlapping, and continually evolving interventions of public and private actors-each operating at different levels and from different spheres of authority, utilizing a range of policy tools both hard and soft, and representing diverse interests and stakeholder groups. Rather than aggregated into hierarchical state authority, power within these systems is widely distributed and decidedly fractional. Indeed, even the state itself increasingly appears as a complex tissue of actors and networks, rather than a unified or even neatly stratified sovereign.

Limited government faces grave challenges in this brave new world. Our "preference for passivity," built out of "the idea that we are more endangered by government action than inaction," (6) has become a dangerously double-edged sword in some significant areas of law and policy, where threats to social welfare arise in substantial part from the nature of limited government itself. For these areas of concern, effective public action may be thwarted by Madison's all-too-familiar nightmare, in which "heterogeneity of interests ... prevent[s] the majority coalition from doing anything at all--even just and useful things--while simultaneously facilitating the ability of self-interested minorities to loot the federal fisc." (7) Moreover, as the new governance school emphasizes, effective public action also may be thwarted simply by the nature of the risks themselves and the challenges they pose to systems of disaggregated authority and conventional regulation. Accordingly, many twenty-first-century threats to social welfare appear to demand greater governmental responsiveness and openness to institutional and structural experimentation.

One way in which government actors in the United States can promote greater openness and responsiveness is by performing their official roles with a self-conscious appreciation for the ways in which they can signal to other institutional actors that a given problem demands attention and action. Call this function "prods and pleas" and a corollary to the more traditionally emphasized function of checks and balances. Even when a social need exceeds the scope or capacity of a government actor's role, she may still acknowledge the seriousness of that need and the desirability of action by more appropriate actors. Just as the existence of divided and overlapping government authorities creates opportunities for those institutions to check and balance one another's overreaches, it also opens space for them to prod and plead with one another when the danger instead is one of government underreach. For instance, agencies might proceed with regulatory rulemakings that are admittedly less desirable than new legislation in order to prompt Congress to overcome its considerable, self-imposed inertia. (8) Recognizing that Congress faces difficulty applying its own rules of procedure in consistent and neutral ways, judges might interpret statutes using a fictional presumption that they comply with, for example, congressional earmark disclosure rules, thus making nondisclosed rents harder for Congress to dispense. (9)

More controversially, governors might engage in a form of "state civil disobedience," pursuing climate change policy coordination with foreign governments despite doubts over the constitutionality of such actions. (10) Similarly, mayors might decide to confer marriage licenses on same-sex couples, local school boards might prohibit the teaching of evolution, and states might adopt divergent policies toward illegal immigrants, knowing well that their attempts at "dissenting by deciding" may be swiftly overruled by superior authorities, but hoping in the process to prompt sustained democratic engagement with their perceived area of need. (11) All of these actions can be understood as efforts to trigger dormant institutional hydraulics that help limited government acknowledge and address areas of social harm and discontent. (12)

In this Article, we use recent climate change nuisance suits to consider the potential for common law tort adjudication to serve a prodding and pleading function. Understandably resistant to the claim that global climate change is an ordinary pollution nuisance of the kind adjudicated for centuries, judges have sought escape from such claims through political question, standing, and implied preemption doctrines. We argue, however, that judges should overcome the temptation to exploit these malleable escape hatches and should instead proceed to the merits of the underlying claims. At the merits stage, a variety of doctrinal hurdles for plaintiffs will remain and will most likely justify dismissal of the suits. (13) Nevertheless, it is, and ought to be, an important part of the judiciary's role to grapple with the merits of such cases--even if only to the extent of finding no liability as a matter of law. Just as open trials afford democratic participation by allowing individuals to interpret-not merely observe--the judicial process, (14) merits adjudication of tort suits promotes consideration of the underlying visions of right, responsibility, and social order that are adopted (or implied) by judicial decisions. (15) Such adjudication ensures the continued availability and operation of tort law as a critical forum for the articulation of public understandings of morality. Rather than counseling against common law adjudication, therefore, the complexity and enormity of the climate change problem counsel in its favor, in order that baseline norms of responsibility--whatever their content--may be more clearly specified as public and private actors embark on what undoubtedly will be a centuries-long struggle to deal with greenhouse gas emissions and their impacts.

Entertaining the substance of boundary-pushing causes of action also gives tort an opportunity to fulfill a crucial institutional role too often neglected both by dominant theories of tort law's purposes and by institutional competence analyses that compare tort law with regulation "proper." (16) In entertaining and adjudicating tort disputes, courts can, do, and should interact...

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