Legal Steps Outside the Climate Convention: Litigation as a Tool to Address Climate Change

This article examines the recent academic interest in litigation as a tool to address climate change, as well as the surge of legal actions worldwide to bring the problem to the attention of judiciaries. This new interest reveals the frustration of legal scholars and activists at the slow rate at which policy makers are addressing the climate change problem. This article shows the slow build-up of academic interest in litigation, before moving on to analyse the kinds of legal causes of action that are being used in different parts of the world. Most of these cases have not been fully resolved, and it is more than likely that the judgments may not always be favourable to the plaintiffs, but at least a first step has been made to involve yet another forum for addressing the climate change problem.     

Litigation,Judicial Path-Dependence,and Legal Change

In this paper we consider the role that litigation and case selection play in the process of legal change. After identifying two necessary conditions for litigation, we examine the effect of judicial path dependence on the consolidation of liability rules and legal remedies, paying special attention to litigation with different win–loss ratios. We study the consequence of private litigation decisions on the contraction or consolidation of legal rules under various litigation and judicial environments. We also consider the relevance of the win–loss ratios, the existence and nature of positive litigation costs, and the weight of past precedents on the ongoing process of legal evolution.JEL K0, K40, K13, K41     

Climate Change Litigation in Canada and the USA

This article examines the growing phenomenon of climate change litigation in the USA and Canada. It explores the expanding context in which this litigation is occurring and highlights key successes and failures of these actions. In the absence of a comprehensive federal framework in both countries, the article shows how litigation is being used by claimants to attempt to require government action in reducing greenhouse gas emissions and to force private entities to do the same and to pay damages. Whether a piecemeal approach to climate change engendered through litigation can provide a solution to this global issue remains to be seen.     

Greenhouse Gas Politics and Climate Change Public Nuisance Litigation

In late 2009 three long-awaited decisions were handed down in the main climate change public nuisance cases. In one case, the Northern District of California became the latest trial court to dismiss plaintiffs’ claims, while in the others the Second and Fifth Circuits reversed, allowing the plaintiffs' claims to proceed. The decisions all have been appealed. The ultimate outcome of the appeals could be affected by several legislative and administrative initiatives that are expected to see further development in 2010. This article reviews some of those initiatives and discusses their relevance to the nuisance litigation.     

Magistrates, Magistrates Courts, and Social Change

Relatively little attention has been paid to lower courts' capacity to bring about social change, despite the fact that most citizens who come into contact with the judicial system will have their case considered (and most likely only considered) by these courts. Often these citizens experience a range of problems that are social in origin, including precarious employment, welfare dependence, financial hardship, and various health problems, including mental health and drug dependency. Magistrates courts must respond to social change and its human fallout and, in so doing, can contribute to progressive social change in a local, personal, and incremental way.     

Theorizing about Trial Courts: Lawyers, Policymaking, and Tobacco Litigation

What role do litigation and trial court decisions play in shaping policy? This article explores that question by examining recent litigation against tobacco manufacturers filed by state attorneys general, plaintiff lawyers in class actions, lawyers for cities, unions, health plans, individual smokers, and others. I suggest how this litigation contributed to agenda setting, new ways of defining the problem, of tobacco and the policy alternatives, political mobilization, new legal norms, and new political and legal resources for opponents of tobacco. Addressing theoretical debates about the power of the courts to effect change, I distinguish between causal and constitutive arguments and suggest how both can be incorporated in social analysis.     

Courts,Criminal Process,and AIDS: The Institutionalization of Culture in Legal Decision Making*

This study views legal process as part of an interactive web of social and cultural relationships. While law may create public policy, its own creation is part of a complex system of institutional deference and subjective behaviors which reflect a larger cultural context. The fears engendered by AIDS help to highlight the underlying cultural biases and patterns of disease scare management ingrained in legal policymaking. These patterns are again enhanced when placed in a criminal context where the resident focus is one of controlling those who precipitate anxiety. Using a method of qualitative comparative analysis, this study concludes that the historical patterns of bias and institutional deference in disease scare management continues in modern criminal court process.     

Climate Change Litigation,Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA

Climate change litigation is an obsessive preoccupation for many legal scholars. Three different “narratives” can be identified for why scholars find such litigation important to study: litigation is a response to institutional failure, legal reasoning holds authority, and litigation is a forum for the co‐production of facts and social orders. The nature and consequences of these narratives are considered in the context of the first U.S. Supreme Court “climate change” case—Massachusetts v. EPA (2007). This analysis has implications for both how scholars understand their expertise in this area, and how they should foster it.     

英国法院的诉讼模式与量刑

一、英国的法律体系英国由英格兰、威尔士、苏格兰和北爱尔兰组成,是一个君主立宪的国家。由于历史、民族、文化渊源的不同,在英格兰、威尔士和北爱尔兰,实行的是普通法,即“法官参考各地风俗习惯作成判决内容所形成的法律规范”。而在苏格兰则主要实行欧陆法系,即“以抽象的条文规范具体案件的法律,以法典作为法律渊源的法律制度”。在英国实行两种不同法系的司法制度一直沿袭至20世纪末。在传统上,上议院是英格兰、威尔士、北爱尔兰的刑事上诉案件及苏格兰民事上诉法院的终审法院。大法官兼任上议院议长而集立法、司法功能于一身,同时他又…     

Climate Change Policies, Energy Security and Carbon Dependency Trade-offs for the European Union in the Longer Term

Energy policy in the European Union (EU) faces two major challenges. The first challenge is posed by EUs commitment to reduce greenhouse gas emissions to the atmosphere in the context of the international agreement on climate change. The second challenge is to keep ensuring European security of energy supply, while its dependency on external sources of energy is projected to increase. In this paper, two long-term alternative climate change policy scenarios for Europe are examined. In the first scenario, EU reduces carbon dioxide emissions by domestic measures; in the second scenario EU maximizes cooperation with the countries of the former Soviet Union (FSU). Impacts on carbon flows between the EU and FSU and on the external energy dependency of the EU are assessed with an applied general equilibrium model, GTAP-E, whose set of energy commodities is expanded with combustible biomass as a renewable and carbon-neutral energy commodity. The results show that there is a trade-off between economic efficiency, energy security and carbon dependency for the EU. The FSU would unambiguously prefer cooperation.     

European Standards for the Rule of Law and Independent Courts

Independent adjudication as a cornerstone of the rule of law has attracted increasing attention at the European level over the past decades. Despite its general recognition in various international legal instruments there is, however, an ongoing search for its concrete meaning. Recent documents adopted under the auspices of the Council of Europe (CoE) have tried to specify standards for the organization of judicial administration. Unfortunately, however, some of these documents exhibit flaws and misconceptions in the conceptualization of judicial independence. This article identifies these imperfections and argues that future standardsetting on judicial independence in Europe should direct more attention to comparative constitutional analysis and to experience gained in the course of judicial reforms in the Council of Europe's member states. It advocates a less rigid approach to structural issues and concludes with recommendations for future Council of Europe initiatives.     

On National Courts, European Law and Constitutions: Dialogue and Conflict

Books reviewed in this article:
A.-M. Slaughter, A. Stone Sweet, J.H.H. Weiler (eds), Legal Change in Its Social Context