Title: The Public Life of Private Law: Tort Law as a RiskRegulation Mechanism
Speaker: Professor Douglas Kysar, Yale Law School
Speaker’s brief bio:
Professor Douglas Kysar is Joseph M. Field ’55 Professor of Law at Yale LawSchool. His teaching and research areas include torts, environmental law,climate change, products liability, and risk regulation. He received his B.A.summa cum laude from Indiana University in 1995 and his J.D. magna cum laudefrom Harvard Law School in 1998. He has published articles on a wide array ofenvironmental law and tort law topics, and is co-author of two leadingcasebooks, The Torts Process (9th ed. 2017) and Products Liability: Problemsand Process (8th ed. 2016). Professor Kysar’s monograph, Regulating fromNowhere: Environmental Law and the Search for Objectivity (YUP 2010), seeks toreinvigorate environmental law and policy by offering novel theoreticalinsights on cost-benefit analysis, the precautionary principle, and sustainabledevelopment.
Against the backdrop of contemporary climate change lawsuits, this articlepresents preliminary research findings regarding a remarkable andunderappreciated moment in the common law pre-history of modern environmental,health, and safety regulation. The findings complicate the conventionalacademic story about the limited capabilities of tort law and its inevitabledisplacement by more institutionally robust and sophisticated forms ofregulation. Part I offers a brief introduction, followed in Part II by a reviewof existing academic literature on the pros and cons of utilizing tort law as aregulatory device. As will be seen, the consensus view seems to be that tortlaw is a clumsy and imperfect mechanism for addressing most environmental,health, and safety risks. Part III argues that the debate over tort law’spotential as a risk regulation mechanism ignores the distinctively private lawhistory and character of that body of law, essentially asking tort to serve apurpose for which it was neither intended nor designed. Part IV then presents acase study of nuisance litigation in which the tort system achieves aremarkable and underappreciated risk regulation effect precisely by focusingnarrowly on the traditional task of adjudicating alleged wrongs between privateparties. Part V concludes.
Light lunch will be provided between 12 noon and 12:30pm. Please RVSPwith Coria () before 22Feb. 2018 to facilitate lunch booking.