Unsettled: How Climate Change Challenges a Foundation of Our Legal System, and Adapting the Legal State

One of the fundamental goals of law is to end disputes. This push to “settlement” is foundational and has historically worked to increase societal efficiency and justice by engendering legitimate expectations among the citizenry. However, the efficient nature of much legal finality, settlement and repose only exists against a background of evolution of the physical environment that is predictable and slowpaced. That background no longer exists.

The alteration of the physical world, and thus, the background for our societal structure and decisions, is accelerating rapidly due to human-caused climate change. This creates a mismatch between the law’s tendency to finality and repose and the now fast-changing nature of the real world. This Article proposes that law’s repose must be re-examined if we are to have any hopes of societal efficiency moving forward. In order to do this, however, this Article posits that we need to understand the law’s tendency to finality and preserve this to the extent that it is still necessary and useful, while re-examining the parts of static law that are most impacted by the changing physical world.