Using Tort Litigation to Enhance Regulatory Policymaking: Evaluating Climate Change Litigation in Light of Lessons from Gun-Industry and Clergy-Sexual-Abuse Lawsuits

I. Introduction In recent years, tort litigation has been used to address a variety of social problems. Examples include lawsuits aimed at reducing smokingrelated illness, gun violence, and obesity.1 Reactions to this use of tort litigation to influence regulatory policy-what scholars have termed "regulation through litigation"-have been mixed. On one hand, commentators have argued that litigation can be an effective means of shaping public policy and improving the performance of other policy-making institutions. Lawsuits can frame issues in new ways, give them greater prominence on the agendas of regulatory institutions, uncover policy-relevant information, and mobilize reform advocates.2 On the other hand, commentators have cautioned that regulation through litigation can be inefficient and ineffective. Compared to other forms of regulation, litigation is often unnecessarily complex, protracted, costly, unpredictable, and inconsistent.3 Moreover, courts are generally less well equipped than legislatures and administrative agencies to evaluate technical information, implement regulations, monitor results, and make adjustments.4 Policies resulting from litigation may involve less public input and accountability compared to government regulation, serving the private or political interests of the litigants rather than the public interest.5 Litigation can also be counterproductive to policy reform by generating a legislative backlash against regulation.6 Like any policy tool, litigation has strengths and weaknesses, and it performs better in some contexts than in others. This Article offers a theoretical framework for evaluating the influence of tort litigation on regulatory policy making. The framework has three parts. First, using two examples-gun-industry and clergy-sexual-abuse litigation-the Article highlights six distinct ways in which litigation influences policy making: by (1) framing issues in terms of institutional failure and the need for institutional reform; (2) generating policy-relevant information; (3) placing issues on the agendas of policy-making institutions; (4) filling gaps in statutory or administrative regulatory schemes; (5) encouraging self-regulation; and (6) allowing for diverse regulatory approaches in different jurisdictions. Second, the Article suggests empirical measures for assessing the extent to which litigation influences policy making in these six ways. Third, the Article compares the relative success of gun-industry and clergysexual-abuse litigation to identify conditions that favor the use of litigation as a policy tool. This framework can be applied more generally to other examples of regulation through litigation. In this Article, I use it to suggest how we might evaluate lawsuits against producers of greenhouse-gas emissions as a means of addressing climate change. Proponents of climate-change litigation assert that it enhances policy making in all of the ways suggested above. They claim that it frames the issue of climate change in ways that favor policy reforms; generates policy-relevant information; places the issue on the agendas of policy-making institutions; fills a regulatory gap created by federal resistance to addressing the issue; encourages voluntary self-regulation by industry; and allows for diverse regulatory approaches in different regions.7 Critics argue that climate-change litigation is doctrinally unsound, costly, unlikely to reduce greenhouse-gas emissions, and may even be counterproductive.8 The framework presented in this Article offers tools with which to advance this debate. The framework suggests how to define and measure success and how to explain the litigation's degree of success or failure by reference to the larger context in which it is situated. The framework offers guidance for evaluating both the achievements and shortcomings of climate-change litigation so far, as well as its future prospects. Before I proceed, two caveats are in order. …