Reviewing the law reviews.

• Author: Youngdale, Elizabeth M.

Law Review Highlights:

Climate change and its impact on the population are the basis of a growing number of lawsuits in the United States. The question of who will pay for damages resulting from rising seas or increasingly violent weather has come to the courts, and there are different schools of thought regarding how--and whether--such causes of action can be maintained. Currently, such suits are primarily being raised under tort law and particularly the tort of public nuisance. In April, the Defense Counsel Journal published an article addressing this timely issue, James Shelson's The Misuse of Public Nuisance Law to Address Climate Change, (1) in which Mr. Shelson argued that the tort of public nuisance has been increasingly strained to fit climate change litigation within its historical contours.

In his article Climate Change and the Public Law Model of Torts." Reinvigorating Judicial Restraint Doctrines, (2) Donald G. Gifford discusses climate change cases in the context of what he calls "public interest tort litigation." The tobacco and firearm litigations represent previous instances of this type of litigation, where attorneys general and private attorneys used the courts to remedy perceived failures by Congress and administrative agencies to regulate dangerous situations. Professor Gifford examines the development of public interest tort litigation and its results before analyzing the differences between these earlier strategies and the specifics of climate change litigation. He concludes by suggesting two doctrines of judicial restraint that will keep climate change litigation out of the courts.

A second article, a student comment, provides a discussion of the causes and effects of climate change. (3) It then addresses the law of public nuisance and recent federal court cases that involved climate change and collective liability theories. One of the challenges of these types of cases is the apportionment of responsibility, so the article looks at relevant collective liability theories and suggests a modified market-share liability theory as a possible means of assigning liability.

Pamela Stephens, in her article, Applying Human Rights Norms to Climate Change: The Elusive Remedy, (4) considers not only the possible tort remedies, but also human-rights-based remedies for such suits. The article looks at the broad question of how international human right norms might be used to protect the population from global climate change. It then considers treaty law and customary international law in addition to United States' national law in the form of the Alien Tort Statute, with its attendant procedural/substantive hurdles. Finally, the article discusses how climate change claims could be raised in the forum of the Inter-American Commission on Human Rights.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel.

U.S. and International

Damages

Craig H. Allen, Proving Natural Resource Damage Under OPA 90: Out with the Rebuttable Presumption, in with APA-Style Judicial Review?, 85 TUL. L. REV. 1039 (2011).

Gary A. Anderson and Joel R. Barber, Taxes and the Present Value Assessment of Economic Loss in Personal Injury Litigation, 17 J. LEGAL ECON. 1 (2010).

Paul Ashcroft, Economic and Natural Damages Caused by the British Petroleum Oil Spill, 59 OIL GAS & ENERGY Q. 469 (2011).

Steve Barghusen, Noneconomic Damage Awards in Veterinary Malpractice. Using the Human Medical Experience As a Model to Predict the Effect of Noneconomic Damage Awards on the Practice of Companion Animal Veterinary Medicine, 17 ANIMAL L. 13 (2010).

Jeremy C. Baron, Comment, The "Monstrous Heresy" of Punitive Damages. A Comparison to the Death Penalty, and Suggestions for Reform, 159 U. PA. L. REV. 853 (2011).

Brendan T. Beery, My Doctor Made Me Crazy; Can a Medical-Malpractice Plaintiff Allege Psychological Damages Without Making Credibility the Issue?, 27 T.M. COOLEY L. REV. 321 (2010).

Allan Beever, The Future of Exemplary Damages in New Zealand, 24 N.Z.U.L. REV. 197 (2010).

Patrick J. Borchers, Punitive Damages, Forum Shopping, and the Conflict of Laws, 70 LA. L. REV. 529 (2010).

Douglas R. Burnett, Recovery of Cable Repair Shop Cost Damages from Third Parties That Injure Submarine Cables, 35 TUL. MAR. L.J. 103 (2010).

Stephen J. Choi and Theodore Eisenberg, Punitive Damages in Securities Arbitration: An Empirical Study, 39 J. LEGAL STUD. 497 (2010).

Michael J. Donovan, Note, The Impact of "Hurricane '" Hannah: The Government's Decision to Compensate in One Girl's Vaccine Injury Case Could Drastically Alter the Face of Public Health, 50 JURIMETRICS 229 (2010).

Robert Force, et al., Deepwater Horizon: Removal Costs, Civil Damages, Crimes, Civil Penalties, and State Remedies in Oil Spill Cases, 85 TUL. L. REV. 889 (2011).

Sandro Hassan, Damage Compensation for Infringements of Industrial Property in Italy, 41 INT'L REV. INTELL. PROP. & COMPETITION L. 753 (2010).

Thomas R. Ireland, Tax Consequences of Lump Sum Awards in Wrong/hi Termination Cases, 17 J. LEGAL ECON. 51 (2010).

Richard T. Karcher, Rethinking Damages for Lost Earning Capacity in a Professional Sports Career. How to Translate Today's Athletic Potential into Tomorrow's Dollars, 14 CHAP. L. REV. 75 (2010).

Jill Wieber Lens, Honest Confusion: The Purpose of Compensatory Damages in Tort and Fraudulent Misrepresentation, 59 U. KAN. L. REV. 231 (2011).

Ronen Perry, The Deepwater Horizon Oil Spill and the Limits of Civil Liability, 86 WASH. L. REV. 1 (2011).

Ronen Perry, Economic Loss, Punitive Damages, and the Exxon Valdez Litigation, 45 GA. L. REV. 409 (2011).

Darren A. Prum and...