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Abstract

Does litigation addressing catastrophes caused by climate change make society more or less fragile? As sea-level rise and wildfires threaten to cause enormous financial and social costs, related litigation presents unmatched concerns of over- and underdeterrence. In this Note, I examine litigation addressing two of climate change’s greatest impacts: sea-level rise and wildfires. From these case studies, I distill three heuristics for assessing over- and underdeterrence concerns in the broader catastrophic risk context: (1) whether there is a regulatory scheme addressing the catastrophic risk, (2) whether the lawsuit is against the risk mitigator or the risk perpetrator, and (3) whether the lawsuit targets the ultimate cause of the risk. I posit that litigation makes society more robust in the face of catastrophic risk when there is no regulatory scheme to address the risk, the suit is against the risk perpetrator, and the suit targets the underlying cause of the risk. However, when the opposite conditions are in place, litigation likely does not reduce catastrophic risk. Instead, it may perniciously exacerbate it. The tort system should not just evolve by adding new liabilities; it should also evolve by subtracting.

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