February 1, 2024
There is a pressing need to discover forms of regulation that work in an era of widespread inequality, ecological catastrophe, and gridlocked government. The consensus, however, is that tort law cannot meet the moment. Courts, it is assumed, have inherent limitations that prevent them from properly evaluating and remedying complex risks. As the scale and scope of harms increased in the late 20th century, the shift from judicial to administrative regulation became inevitable.
This Article challenges these assumptions through a new intellectual history of tort as regulation. At the moment when tort’s inadequacies supposedly became obvious, scholars were arguing for the increased importance of tort as a vanguard regulator. By empowering ordinary people to invoke a court’s equitable powers, discovery procedures, and injunctive relief, tort could play a vital, necessary role in creating comprehensive solutions to problems caused by politically powerful industries.
While this alternative framing was eclipsed by the rise of law and economics thinking in the 1970’s, the air pollution litigation undergirding its thesis developed in the absence of scholarly attention. In uncovering the story and success of those suits, this Article provides a striking proof of concept for the lost vision of tort as vanguard regulator. These findings leave the skeptical account on uncertain ground – and suggest it is time for a fundamental rethinking of tort’s regulatory potential.
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