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64 Fla. L. Rev. 15 (2012)
An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual

handle is hein.journals/uflr64 and id is 21 raw text is: ARTICLES

David Markell* & J.B. Ruhit
While legal scholarship seeking to assess the impact of litigation on
the direction of climate change policy is abundant and growing in leaps
and bounds, to date it has relied on and examined only small, isolated
pieces of the vast litigation landscape. Without a complete picture of
what has and has not been within the sweep of climate change litigation,
it is difficult to offer a robust evaluation of the past, present, and future
of climate change jurisprudence. Based on a comprehensive empirical
study of the status of all (201) climate change litigation matters filed
through 2010, this Article is the first to fill those gaps and assess the
state of play of climate change in the courts. It concludes that the story
of climate change in the courts has not been one of courts forging a new
jurisprudence, but rather one of judicial business as usual.
Part I of the Article outlines the scope of climate change litigation,
explaining what qualifies as climate change litigation in our study, our
methodology for identifying and coding case attributes, and our
typology of the claims that have been or likely will be made as climate
change moves relentlessly forward. Part I then presents and assesses
the major theme revealed from our empirical study and largely missing
from commentary on climate change litigation-that a siege-like battle
between pro and anti regulation interests has led to an increasingly
robust and complex litigation landscape but with mixed results for both
sides. Drawing from those findings, Part III takes on a set of empirical
and normative questions designed to summarize and assess the climate
change litigation experience and its impacts on the content and
institutions of climate policy. It is evident at all levels of inquiry that
courts have taken a business as usual approach to climate change,
* Steven M. Goldstein Professor, The Florida State University College of Law,
Tallahassee, Florida.
t David Daniels Allen Distinguished Chair in Law, Vanderbilt Law School, Nashville,
Tennessee. We are thankful to William Boyd, Anne Carlson, Robin Craig, Brigham Daniels,
Tara Grove, Alex Klass, Sarah Krakoff, Doug Kysar, Jim Salzman, and Mark Squillace for their
input on the project, to participants in workshops at the Florida State University College of Law,
University of Colorado Law School, UC Berkeley School of Law, and the Texas Wesleyan
School of Law for their helpful comments, to our research assistants Christian Cutillo, Abigail
Dean, Gina lacona, Pete Matthews, Angelina Perez, and Xiaolin Zhao, and to the FSU College
of Law for financial and other support. Please direct any questions or comments to
dmarkell@law.fsu.edu orjb.ruhl@vanderbilt.edu.

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