Faculty Publications: Prodding & Pleading the Government to Act

December 2, 2011

Where checks and balances (and K Street) might enable governmental inertia, Professor Douglas Kysar and Benjamin Ewing (YLS '11) offer a parallel framework of Prods and Pleas to spur governmental activity in the face of global crises which require more timely action. Prods and pleas are not, as the authors remind us, a revoutionary restructuring of our system of limited government.  More accurately, prods and pleas co-exist with checks and balances, but as a failsafe which activate when the going gets tough (or, more importantly, when "external pressures of a changing world threaten the sustainability of disaggregated governance").

In their recent Yale Law Journal article, Kysar and Ewing illustrate the utility of prods and pleas through a case study of climate change nuisance litigation. When neither the executive nor legislative branch is responsive to the risk of global climate change, the authors find in the common law of tort a model vehicle for the use of prods and pleas. 

Further Reading

Climate Change Litigation and Law (Jean-Francois Mason ed., 2010).

Douglas Kysar, Limited Government in an Era of Unlimited Harm, Huffington Post (Nov. 30, 2011).

Douglas NeJaime, Winning Through Losing, 96 Iowa L. Rev. 941 (2011).

Richard H. Pildes, Political Avoidance, Constitutional Theory, and the VRA, 117 Yale L.J. Pocket Part 148 (2007).




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