Professor Doug Kysar’s thought-provoking article cogently outlines an array of doctrinal and conceptual hurdles that climate-change plaintiffs face and notes the way in which tort’s focus on short-term solutions—its marginalist bias as Professor Kysar puts it—impairs its ability to address a variety of important issues. He then suggests that while climate change litigation may
not succeed at its own goal, it may have the salutary effect of changing tort law for the better. In this Response, I sketch what I see as two problems with this argument. The first concerns Kysar’s implicit model of legal change, which I think is overly sanguine about the ability of tort law to evolve in response to either climate change or climate change litigation. The second concerns the issue of the institutional competence of the courts to administer the kind of tort law regime that Kysar proposes.