Research Handbook on Climate Disaster Law
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Research Handbook on Climate Disaster Law

Barriers and Opportunities

Edited by Rosemary Lyster and Robert R.M. Verchick

Through assessing climate disaster law in relation to international, public, private and environmental law this Research Handbook considers the unique challenges, barriers and opportunities that climate disasters pose for law and policy. Scientific and empirical evidence suggests that the laws addressing natural disasters cannot be adequately applied to disasters that are caused by climate change. Featuring contributions from leading international experts, this Research Handbook will be a useful resource for those with an interest in environmental law and international policymaking.
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Chapter 17: Tort law and normative rupture

R. Henry Weaver and Douglas A. Kysar

Abstract

Do we court disaster by stretching the bounds of judicial authority to address problems of massive scale and complexity? Or does disaster lie in refusing to engage the jurisgenerative potential of courts in a domain of such vast significance? This chapter examines global climate change tort adjudication to shed light on these questions, focusing particularly on cases that seek to invoke the norm articulation and enforcement functions of courts. The attempt to configure climate-related harms within such substantive frameworks as tort law is fraught with analytical and practical difficulties. Yet the exercise, we argue, is essential. Against the backdrop of a potentially existential threat, judges redeem the very possibility of law when they forthrightly confront the merits of climate lawsuits. Conversely, when they use weak preliminary and procedural maneuvers to avoid such confrontation, judges reinforce a sense of law’s disappearance into the maw of normative rupture.

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