Tag: walter olson

More on AEP v. Connecticut: Sue the Butterflies or Regulate Them?

During Tuesday’s oral arguments in American Electric Power v. Connecticut—the global warming lawsuit that Walter Olson recently discussed here and Ilya Shapiro here, and in which Cato filed amicus briefs at both the certiorari stage and the merits stage—the justices concentrated their inquiries on a few technical legal doctrines in order to answer one question: should states even be allowed to sue power companies for the damage that global warming has allegedly done to their lands and citizens?

There are multiple ways this question could be answered, and how it is answered in the final opinion could have important ramifications for future environmental litigation.

Connecticut and five other states, plus New York City and three land trusts, brought the suit against five power companies. Their claim is based on the age-old tort of nuisance, the same ground that lets you sue your neighbor if his contaminated water seeps onto your land. Essentially, the states argued that if courts can solve that kind of dispute, then a dispute over global warming is only slightly different—bigger in scope, certainly, but not different in kind.

But at oral argument, the justices did not seem persuaded. Arguing against the states, Acting Solicitor General Neal Katyal opened by pointing out that “[i]n the 222 years that this Court has been sitting, it has never heard a case with so many potential perpetrators and so many potential victims…[T]he very name of the alleged nuisance, ‘global warming,’ itself tells you much of what you need to know.” Chief Justice John Roberts later asked the states’ attorney, New York solicitor general Barbara Underwood, if she had any rebuttal to Katyal’s claim—if there was “any case where it has been as broad as it is here?” Her answer? “Well, of course it depends on what you call broad.”

Indeed.

But how much broader could it be? Taking the scientists at their word, we’d have to include at least every car owner, every coal power plant, every natural gas power plant, every cement producer, every forester, and the fabled effects of bovine flatulence. And not just every one of these in America, but every one in the world. The scope of this case and the numerous trade-offs involved make it utterly inappropriate for judicial resolution.

The supposed link between the power companies’ emissions and the alleged global warming harms resembles a Rube Goldberg device of conjectures that stretches back millions of years. In our brief we analogized this to the famous “butterfly effect”: a butterfly flaps its wings in Brazil and causes a tornado in Texas.

A few theories were offered as to why the case should not go any further. The most far reaching of these theories, the political question doctrine, is one we advanced in our amicus briefs. The political question doctrine directs courts to stay out of disputes that are better left to the other branches of government. A decision along those lines would go far in the future toward keeping such suits out of courts.

But many environmental lawyers are hoping, and predicting, that the states will “lose well”—that is, the suit will be dismissed because it has been “displaced” by the “regulatory cas­cade” underway at the EPA, not because it is a fundamentally impossible and illegitimate lawsuit. Dismissing the suit on these grounds would leave the door open for large-scale suits to be brought whenever an agency is thought to be shirking its regulatory duties. Such suits are already a problem for administrative agencies, particularly those brought by environmental advocacy groups trying to force agencies to live up to the groups’ idea of sound environmental policy. The NY Times, for example, reported recently on the “barrage [that] has paralyzed the listing process” for the Endangered Species Act.

Not wanting to totally foreclose the possibility of large-scale suits being brought in the future, at least three justices, Kagan, Breyer, and Ginsburg, seemed partial to the displacement theory. One hopes that the other five justices will rule, on either prudential standing or political question grounds, that no amount of regulatory action or inaction can make these suits justiciable. If regulation is called for here – a dubious proposition – it should be undertaken by the political branches, not the courts.

Schools for Misrule Reviewed

Today was a banner day for my new book on legal academia, Schools for Misrule. It was reviewed at the Wall Street Journal by John McGinnis, professor of law at Northwestern, and at the Weekly Standard by George Leef, director of research at the North Carolina-based John Pope Center for Higher Education Policy. (One or both reviews may be behind subscriber screens.) Both reviews were highly favorable.

McGinnis:

American law schools wield more social influence than any other part of the American university. In ‘Schools for Misrule,’ Walter Olson offers a fine dissection of these strangely powerful institutions. One of his themes is that law professors serve the interests of the legal profession above all else; they seek to enlarge the scope of the law, creating more work for lawyers even as the changes themselves impose more costs on society.

Leef:

At most law schools—and emphatically at elite ones such as Obama’s Harvard—students are immersed in a bath of statist theories that rationalize ever-expanding government control over nearly every aspect of life. … They learn that the concepts of limited government and federalism are outmoded antiques that merely defend unjust privilege. … Schools for Misrule explains how most of the damaging ideas that lawyers, politicians, and judges are eager to fasten upon society originate in our law schools. …

The most recent explosion of legal activism involves making the United States subject to international law. Olson notes that at a New York University Law School symposium, speakers declared that international law requires nations to guarantee all people the right to health, education, “decent” work, and freedom from “severe social exclusion.” Columbia has created a campaign called “Bring Human Rights Home,” which is intended to generate pressure to make American policies consonant with the collectivist notions of “the international community.”

For readers who’d like to hear more about the ideas in the book, I’ll be giving lunchtime talks tomorrow (Tuesday) at the Heritage Foundation in Washington, D.C. and on Thursday at the Heartland Institute in Chicago. And on Thursday night I’m scheduled to appear on one of radio’s premier discussion shows, WGN’s Extension 720 with Milt Rosenberg. The book as of this afternoon had reached #1,009 in the Amazon standings, #1 in the One-L category, #2 in Legal Education (following an LSAT prep book), and #7 in Law (with only one policy-oriented book, The New Jim Crow, ahead of it; the others are true-crime and student-prep books).

Schools for Misrule at Cato Tomorrow

Yesterday was the publication date for my new book, Schools for Misrule: Legal Academia and an Overlawyered America, and tomorrow afternoon (Thursday, March 3) at 4 p.m. you can catch me in person talking about it at Cato’s headquarters or watch online at the above link. Commenting will be the Hon. Douglas Ginsburg, distinguished federal judge on the U.S. Court of Appeals for the D.C. Circuit, and Cato’s Roger Pilon will be moderating. Registration is required for the in-person version and seating not guaranteed.

From Cato’s description:

The ideas that emanate from the nation’s law schools in one generation often wind up shaping law and national policy in the next. But as Cato senior fellow Walter Olson argues in this new book, for more than four decades the nation’s law schools have been a hatchery of bad ideas, from tort and contract theories to class actions, environmental law, racial reparations, the recasting of domestic policy differences as questions of international human rights, and more. Yet the common theme is to confer power and status on the schools’ own graduates and faculty, as law pervades ever wider areas of life. The pipe dream of training up philosopher-monarchs, Olson says, distracts law schools from their genuinely useful function of training competent, ethical, and suitably humble practitioners of the law.

Publisher’s Weekly calls the book “hard-hitting,” “witty,” “cutting-edge commentary,” and “astute.” Commentary magazine runs a lengthy excerpt in its new (March) issue, available here (subscribers or individual purchase). A different excerpt is online at Minding the Campus (free). You can read about some of the early reaction to the book here and here, catch Cato’s audio podcast interview with me, or see whether I’m visiting your city on my spring speaking tour.

Walter Olson Joins Cato

I’m pleased to report that Walter Olson, known to many Cato@Liberty readers for his Overlawyered website, has joined the Cato Institute. Wally led the Manhattan Institute’s litigation reform program for more than a quarter of a century. He’ll be a senior fellow in our Center for Constitutional Studies, with a wide-ranging portfolio.

A Yale graduate, Wally began his career at Regulation magazine, back when it was published by the American Enterprise Institute. He has authored three books, 1991’s The Litigation Explosion, 1997’s The Excuse Factory, and 2003’s The Rule of Lawyers, and countless articles. And another book will be out in the fall on bad ideas coming from the legal academy, Schools for Misrule. At PointofLaw.com, Jim Copland, director of Manhattan’s Center for Legal Policy, gives us a rich account of Wally’s contributions. We’re delighted to have Wally on board.