Private Law Theory

Introduction
… This essay begins with a brisk look at the fate of prior federal common law climate tort actions, and sketches out the basic tenets and prior analyses of judicial federalism and its role in mass-party litigation. It then closely examines how climate tort claims under state law will pose fundamental challenges to the existing allocation of powers and responsibilities between federal and state courts, especially when federal courts host actions controlled by state law and when state courts hear claims involving extraterritorial impacts and the exercise of judicial authority over non-resident parties. Finally, after reviewing several instances where uncontroversial judicial notions of substantive jurisdiction and procedural rules yield troublesome results when applied to state law climate torts, it concludes with suggestions on how to use federalism principles to resolve some of these difficulties and better harmonize state law climate torts with the requirements of judicial federalism …

Tracy Hester, Climate Tort Federalism, 13 Florida International University Law Review 79 (2018).

First posted 2018-08-04 06:22:35