Most scholars hold that tort has little or no power to effectively or legitimately regulate complex risks such as environmental pollution. This consensus has spurred a broad skepticism about tort’s regulatory capacity within the judiciary, altering the contours of tort law itself. This Article challenges such skepticism by presenting a case study of farmers who used tort to manage the risk of air pollution from a nearby aluminum plant. The scope of their success suggests that features of tort adjudication such as equitable powers, discovery and procedure, settlement, and community have been overlooked by tort theorists. By reintegrating these features into theoretical visions of tort law, we can rediscover tort’s potential as a powerful tool within what might be called society’s ‘ecosystem’ of risk regulation.
Kysar, Douglas A and Dwyer Reynolds, Conor, Regulating Through Recourse: Rediscovering Tort As Regulation (August 2019).