Issues

Crisis is the new normal. Between global warming, the opioid pandemic, bursts of gun violence, and political instability fueled by fake news, it is hard to remember a time when we were not facing a major catastrophe. Still more troubling, there is a growing sense that our political and regulatory institutions are faltering in their ability to offer effective responses to the incoming crises. The rapid pace at which new problems emerge—together with growing political polarization—stymies regulatory and legislative action, resulting in an inability to address contemporary challenges.

Against this gloomy background, we posit an unlikely hero: private law. Recent bursts of social activism in private litigation have led to impressive legal victories and multibillion-dollar awards in areas ranging from gun control to climate change. These achievements go a long way towards fashioning better legal responses to contemporary crises where governmental regulation has failed to do so. These victories are doubly surprising considering the supposed dominance of public law and regulation over private law as the primary legal framework for promoting broad policy goals. Thus, in the age of regulation we now inhabit, one would expect private law to take a back seat as the regulatory machinery—now more elaborate, capacious, and fine-grained than ever—takes charge. In this Article, we show that the exact opposite has happened. Contrary to expectations, private law not only remains relevant but often emerges as the most effective response to deep contemporary problems.

To explain this seeming puzzle, we offer a comparative institutional analysis that highlights the multiple advantages of private law relative to regulation. The unique structural features of private law make it more flexible, adaptable, and responsive to rapid changes. Private law institutions, for various reasons, are also less susceptible to capture and can resist the effects of political polarization. Indeed, the rise in the importance of private law is due primarily to the decline of our political institutions. Not only does private law have various structural advantages over regulation, but it is also more democratic in that it provides a platform for a wealth of diverse preferences.

Drawing on these insights, we move to our normative mission. We propose a series of procedural and substantive reforms that would facilitate and enhance the use of private law doctrines as legal responses to contemporary crises. Specifically, we explain how improving class actions, qui tam suits, and the cy pres doctrine could empower individual agents of change. We also call for the relaxation and modification of doctrinal elements of causation and harm. Finally, we come full circle by advancing a comprehensive account of the interaction, synergies, and complementary effects between regulation and private law.

To reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has remained unchallenged by either political party and largely ignored by legal scholars.

This Article exposes monetary primacy’s incoherence and proposes an alternative framework that relegates interest rate hikes to a supporting role in the fight against inflation. Governments possess other policy tools for controlling inflation that are better situated to lead. Examples include supply-side reforms to sectors facing bottlenecks, tighter fiscal policy, and more vigilant antitrust and consumer law enforcement. Between 2021 and 2023, the United States deployed many of these tools, albeit not necessarily motivated by inflation concerns. And while the Fed has received much attention for lowering inflation during this period, it likely had limited impact. Thus, our framework has descriptive power for the astonishing recent success in moderating excess inflation without causing a recession. That reality has, however, been missed—increasing the chances that the Fed keeps rates too high as the economy slows.

Instead of monetary primacy, the Fed should set interest rates at a level that is best for long-term employment and price stability, known as the “natural” rate of interest. If inflation remains too high when interest rates equal the natural rate, then the Fed, the Executive Branch, and Congress should compare the sacrifice associated with raising interest rates above their natural rate to the alternative policy tools and choose the least costly option. We assert that, in many but not all cases, the preferred option will not be elevated interest rates, and we propose reforms to enable other institutions to respond effectively to inflation alongside the Fed. This proposal would shift U.S. policy from monetary primacy to macroeconomic pluralism, which means leveraging an array of economically beneficial (or at least less harmful) tools. In both the short term and the long term, moving away from monetary primacy will help increase the chances of conquering inflation, avoiding a recession, and expanding economic opportunity.

Across a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”

This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, parties (and some courts) make various arguments about why federal courts should deny standing to plaintiffs in cases related to climate change. These arguments tend to track three themes: that climate change is too general, too uncertain, and too political an issue to support jurisdiction. Second, defendants offer a range of novel and boundary-pushing arguments about federal jurisdiction to oust state courts of jurisdiction over climate cases with the ultimate goal of getting federal courts to dismiss.

This Article then offers the normative case against climate jurisdiction exceptionalism as practiced in the United States as well as in some foreign courts. We show that arguments for climate jurisdiction exceptionalism run counter to settled notions of access to justice, federalism, and the separation of powers—and they do so without providing any justification for such exceptional treatment. We further show that exceptional doctrine cannot be limited to any small, discernible category of cases but instead is likely to spill over into the law of jurisdiction more broadly. We also suggest that a particularly pernicious version of climate jurisdiction exceptionalism exists when judges and parties deny that they are being exceptional. This hidden exceptionalism has the same problems as more public exceptionalism while also undermining accountability and risking further harm to the rule of law.