March 22, 2021 - Professor Joshua Galperin of the University of Pittsburgh School of Law discussed the potential role of common law when it comes to environmental policy and decision-making, and argued it’s more important to focus on private claims versus public.
Galperin’s presentation, “Uncommon Law: Judging in the Anthropocene,” was hosted by the University of Houston Law Center's Environment, Energy & Natural Resources Center. The presentation is part of the Energy Transition and Governance series, sponsored by the European Union through its Marie Sklodowska-Curie grant and the efforts of UH EENR Fellow and Universite de Lyon III professor Aubin Nzaou.
“Common law judges have a really important role to play in environmental policy,” Galperin said. “The common law can be a source of satisfaction and momentum, and it can contribute to environmental governance without being policymaking, but common law is not a fallback when legislatures fail and is not an alternative to regulatory approaches.”
Galperin also discussed common law as a public or private tool, stating that the public policy view says the common law is a public ordering device where individual damage awards send deterrent signals. However, the private view says that the common law is a private institution, and if there is a public impact, it’s a secondary result. He argues that it’s better to focus on private law in this context.
Discussing two major theories under the private law view, Galperin said the first theory, called “corrective justice,” regards compensation as the core and what corrects the wrongdoing. The other view argues the process itself is empowering and creates an official forum where the plaintiff can hold the harmful actor accountable, known as “civic recourse.”
Galperin said it is important to make a distinction between public and private law, develop specific criteria, and weigh the pros and cons. This can free judges from thinking that they must defer to legislative judgments, as well as re-empower them.
During the presentation, Galperin said that although there are many shortcomings when it comes to the common law and environmental decision-making, such as the long timeline of environmental harms and the complexity of climate change, sometimes a private claim can establish norms of responsibility while offering accountability for specific, individual wrongs.
“Causation is complicated and judges aren’t scientists,” he said. “The common law is not public law, and judges are not creating policies by resolving individual suits.”
The next speaker event in the series is at 10 a.m. on April 29, and will feature Professor Uma Outka of University of Kansas School of Law, who will discuss the intersection of energy law and environmental law.
Prior speakers in the webinar series are Professor Alexandra Klass of University of Minnesota Law School, Professor Lee Paddock of the George Washington University School of Law and Professor Roy Partain of the University of Aberdeen School of Law. Their presentations and future presentations can be found here: Marie Sklodowska-Curie Conferences (2020-2022) - The Environment, Energy & Natural Resources Center - University of Houston Law Center.
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