tort law

Do Climate Change Cases Belong in Federal Court? The Biden Administration Weighs In.

In a very narrowly argued brief, the Administration calls for returning the cases to state court.

The Biden Administration, at the Supreme Court’s invitation, has now filed a brief giving its views about current lawsuits against oil companies. The gist of the brief is that the cases belong in state court., and that the Court should let that happen rather than stepping into the litigation. The brief is right about that, …


The Mystery of McConnell’s Litigation Shield

Why is he investing so much in something so draconian and so unnecessary?

As part of their proposed stimulus package, Senators John Cornyn and Mitch McConnell introduced a bill that gives almost complete immunity protection to businesses that fail to take precautions against the coronavirus. It’s called the “Safe to Work Act,” but really should be called the “Work at Your Own Risk Act.” McConnell says he won’t …


Responsibility for Historic Harm

Tort law embodies our society’s view of fairness. What does teach us about climate change?

Is it fair to hold companies responsible for past emissions, even if they didn’t know at the time the emissions were harmful? Shouldn’t it be a defense that they didn’t appreciate the risk at the time?Not if tort law is any guide. Tort law imposes liability for ongoing harm even though a company did not …


Climate Change in the Courts

What’s next in climate change litigation?

There are three important climate lawsuits pending in federal court. Here’s the state of play and what to expect next. In the first case, Oakland and San Francisco sued leading oil companies. They claim that the companies’ production and sale of fossil fuels is a public nuisance under California state law. They seek an abatement …


The Environmental Lessons of Teaching Torts

What we can learn from negligence law about responsibility for environmental harm.

I’m about to teach my last Torts class of the semester today, and I’ve been musing about how some fundamental torts ideas bear on environmental law. Let me begin with the idea of duty.  There are special situations where courts say there’s no duty of reasonable care by one person toward another.  But they’re exceptions.  There are …


Remedial Education for Berkeley Law Faculty

Or at least for John Yoo, who argues: Courts award damages based on the harm to the victim and the harm to society. Suppose you thought that the Iraq war was a mistake. If so, isn’t the proper remedy to restore Saddam Hussein’s family and the Baath Party to power in Iraq? If you are …


Supreme Court Grants Review in Takings/Flooding Case

The U.S. Supreme Court has granted review in what will be the first environmental case of its next (2012-13) Term: Arkansas Game & Fish Commission v. United States, No. 11-597. The ultimate question is whether the federal government is liable for millions of dollars in damages for flooding a 23,000-acre wildlife management area owned by the State …


Preemption and Prescription Drugs

I’ve been reading a lengthy history of the FDA by Harvard political scientist Dan Carpenter.  I’m planning to post later about some his observations regarding the political dynamics of drug regulation.  But I was also struck by the implications of his description of drug regulation with regard to preemption of state torts claims. At first …