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A Law and Economics Perspective on Judicial Risk Regulation

Published online by Cambridge University Press:  22 March 2018

Josephine VAN ZEBEN
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Abstract

This special issue provides several perspectives on the potential and limits of judicial risk regulation as a mechanism to redress actual and perceived regulatory failures. Central to this inquiry is the legitimacy of the court system to act as a risk regulator, specifically as compared to governmental actors. This article focuses on the question of institutional competency of juridical risk regulators from a law and economics (“L&E”) perspective. L&E scholarship will be used to help to understand the relative strengths and weaknesses of courts as risk regulators and helps us decide when courts may act as substitute risk regulators and when they are better positioned as complements.

Type
Special Issue on Judge-Made Risk Regulation and Tort Law
Information
European Journal of Risk Regulation , Volume 9 , Special Issue 1: Special Issue on Judge-Made Risk Regulation and Tort Law , March 2018 , pp. 79 - 98
Copyright
© Cambridge University Press 

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Footnotes

*

Dr Josephine van Zeben is a Career Development Fellow at Worcester College and Tutor in EU and Public Law.

References

1 On new versus old risks, see Huber, P, “The Old-New Division in Risk Regulation” (1983) 69(6) Virginia Law Review 1025CrossRefGoogle Scholar; on the challenges of climate change regulation see Lazarus, R, “Super wicked problems and climate change: Restraining the present to liberate the future” (2009) 94 Cornell Law Review 1153Google Scholar.

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5 For further discussion of legal conceptions of “legitimacy”, see the contribution of M Loth in this special issue.

6 Relevant facts and sections of the case will be discussed in detail in Section IV below. For a detailed discussion of the case see van Zeben, J, “Establishing a Governmental Duty of Care for Climate Change Mitigation: Will Urgenda Turn the Tide?” (2015) 4(2) Transnational Environmental Law 339 CrossRefGoogle Scholar and de Graaf, K and Jans, J, “The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change” (2015) 27(3) Journal of Environmental Law 517 CrossRefGoogle Scholar.

7 Stichting Urgenda v Government of the Netherlands (Ministry of Infrastructure and Environment), ECLI:NL:RBDHA:2015:7145, Rechtbank Den Haag, C/09/456689 / HA ZA 13-1396 (Urgenda), para. 4.1.

8 ibid, para. 4.73.

9 ibid, paras. 4.19 and 4.71.

10 ibid, paras. 4.55 and 4.65.

11 The decisions in a specific case may have a general deterrent effect. This may affect the deliberations of the court.

12 Shavell, S, “On Liability and Insurance” (1982) 13(1) Bell Journal of Economics 120 CrossRefGoogle Scholar.

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14 As will be discussed in more detail in Section IV.

15 In these cases, courts may be considered risk regulators in lieu of governmental action. See also E de Jong’s contribution to this issue, on the role of civil courts in case of governmental inaction.

16 The limits of judicial review vary between jurisdictions – on the UK, see Fordham, M, Judicial Review Handbook (Hart Publishing 2012)Google Scholar; on the US, see Hall, KL, Judicial Review and Judicial Power in the Supreme Court: The Supreme Court in American Society (Routledge 2014)CrossRefGoogle Scholar. On the practice and scope of such review in the EU, see Anderson, C, “Contrasting models of EU administration in judicial review of risk regulation” (2014) 51 Common Market Law Review 425 Google Scholar.

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at 790 (“Take almost any government program at random, and a ‘special interest’ countermajoritarian explanation can be found that is more plausible than the public interest justification given for it”).

21 See Macey, J, “Transaction Costs and the Normative Element of the Public Choice Model: An Application to Constitutional Theory” (1988) 74 Virginia Law Review 471 CrossRefGoogle Scholar.

22 Especially when compared to eg the market. See Hood, C, Rothstein, H and Baldwin, R, The Government of Risk: Understanding Risk Regulation Regimes (Oxford University Press 2001) 90 CrossRefGoogle Scholar et sqq. See also Kahn, P, “The politics of unregulation: Public choice and limits on government” (1990) 75(2) Cornell Law Review 280 Google Scholar (arguing that the influence of interest groups does not necessarily speak against governmental regulation, but rather for the regulation of interest group behaviour).

23 The extent to which the court can provide the parameters of what would constitute an acceptable decision varies between legal systems. For example, in the UK, deference plays a key role in judicial review, severely limiting the space for acceptable guidance. Kavanagh, A, “Defending deference in public law and constitutional theory” (2010) Law Quarterly Review 222 Google Scholar; Rivers, J, “Proportionality and variable intensity of review” (2006) Cambridge Law Journal 174 Google Scholar.

24 As will be discussed later in this section, courts were primarily viewed as substitutes rather than complements, but this changed over time.

25 While analytically distinct, these two conceptions of risk are often interrelated, as we tend to be imperfectly informed about the risks involved in a certain activity.

26 Shavell, supra, note 12.

27 See eg Gilead, I, “Tort Law and Internalization: The Gap Between Private Loss and Social Cost” (1997) 17(4) International Review of Law and Economics 589 CrossRefGoogle Scholar.

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31 Redding, R, “Politicized Science” (2013) 50 Society 439 CrossRefGoogle Scholar.

32 See eg Beecher-Monas, E, “The Heuristics of Intellectual Due Process: A Primer for Triers of Science” (2000) 75 New York University Law Review 1563 Google Scholar; for a European perspective, see Alemanno, A, “The shaping of the precautionary principle by European courts from scientific uncertainty to legal certainty” in L Cuocolo and L Luparia (eds), Valori costituzionali e nuove politiche del diritto - Scritti raccolti in occasione del decennale della rivista (Cahiers Europèens Halley 2007)Google Scholar.

33 See Huber, supra, note 1.

34 This can also be viewed as a type of risk regulation if the risk itself is caused by the lack of information.

35 Information costs are a species of transaction costs which can complicate decision-making and lead to an inefficient distribution of resources, see Coase, R, “The Problem of Social Costs” (1960) 3 Journal of Law and Economics 1 CrossRefGoogle Scholar. For an early application to political decision-making, see North, D, “A Transaction Cost Theory of Politics” (1990) 2(4) Journal of Theoretical Politics 355 CrossRefGoogle Scholar.

36 For an example of this from the field of environmental regulation, see Kwerel, E, “To Tell the Truth: Imperfect Information and Optimal Pollution Control” (1977) 44(3) The Review of Economic Studies 595 CrossRefGoogle Scholar.

This also depends on the types of information that the decision-maker has access to (see Morris, S and Song Shin, H, “Social Value of Public Information” (2002) 92(5) The American Economic Review 1521)CrossRefGoogle Scholar.

37 Also, here the choice of regulator matters, especially when faced with “new” harms, which may be catastrophic or it is unclear who will be affected. The consensus has been that ex ante regulation tends to be more equitable, see Flearbaey, supra, note 28.

38 ibid.

39 ibid.

40 See generally Foreman, C, The Promise and Peril of Environmental Justice (Brookings Institution 1998)Google Scholar. See also Been, V, “What’s Fairness Got to Do With It? Environmental Justice and the Siting of Locally Undesirable Land Uses” (1993) 78(6) Cornell Law Review 1001 Google Scholar.

41 See Bass, R, “Evaluating Environmental Justice under the National Environmental Policy Act” (1998) 18(1) Environmental Impact Assessment Review 83 CrossRefGoogle Scholar.

42 See generally Kolstad, C, Ulen, T and Johnson, G, “Ex Post Liability for Harm vs. Ex Ante Safety Regulation: Substitutes or Complements?” (1990) 80(4) The American Economic Review 888 Google Scholar.

While L&E’s normative focus relates primarily to optimisation in terms of costs and benefits of risky activities, this does not necessarily exclude other considerations, such as equity concerns, see eg Flearbaey, supra, note 28.

43 See eg Heyvaert, V, “Facing the Consequences of the Precautionary Principle in European Community Law” (2006) 31 European Law Review 185 Google Scholar; Fisher, E, “Is the Precautionary Principle Justiciable?” (2001) 13 Journal of Environmental Law 315 Google Scholar.

While these principles tend to be referenced across jurisdictions, they are not necessarily applied or interpreted in the same way.

44 The traditional lack of regard for institutional specifics in L&E scholarship has been widely criticised and recent scholarship is paying increasing attention to these features. While of crucial importance, the incorporation of such institutional specifics must be distinguished from the role of constitutional context in legal scholarship as the underlying principles do not change between systems. For legal scholarship, the aims of risk regulation depend almost entirely on institutional context, see eg difference with precautionary approach in the US, as compared to the EU’s precautionary principle. See Wiener, J and Rogers, M, “Comparing precaution in the United States and Europe” (2002) 5(4) Journal of Risk Research 317 CrossRefGoogle Scholar.

45 See Kolstad, Ulen and Johnson, supra, note 42.

46 Ibid. See also Shavell, S, “Liability for Harm Versus Regulation of Safety” (1984) 13 Journal of Legal Studies 357 CrossRefGoogle Scholar.

47 Shavell, supra, note 46 and note 12.

48 See Coase, R, “The Nature of the Firm” (1937) 4 Economica 386 CrossRefGoogle Scholar.

49 See G Dari-Mattiacci and J van Zeben, “The Transaction Costs of Legal Remedies” (draft, on file with author).

50 While this implies that these two mechanisms act as substitutes, or alternates, rather than compliments, this is seldom the case. Most systems employ a combination of these mechanisms as will be discussed in more detail below.

51 Kaplow, L and Shavell, S, “Property Rules Versus Liability Rules: An Economic Analysis” (1996) 109 Harvard Law Review 713 CrossRefGoogle Scholar.

As discussed above, the imposition of liability is not the only type of judicial risk regulation, and indeed not even the only tool available under most tort systems: courts can also issue injunctions or, as shown by the Urgenda case, change government policy on certain issues. The term “liability” as used here should be understood as referring to those measures available under tort law (compensation and injunction), while excluding judicial review and the new type of decisions taken in Urgenda.

52 It should be noted that some harm is too expensive to avoid, in which case, risk regulation is geared towards the distribution of potential harm rather than towards its prevention. I am grateful to an anonymous reviewer for underlining this point, which had gone undiscussed in previous versions of this article.

53 See eg Katzman, M, “Pollution Liability Insurance and Catastrophic Environmental Risk” (1988) 55(1) Journal of Risk and Insurance 75 CrossRefGoogle Scholar; Faber, D, “Tort law in the era of climate change, Katrina, and 9/11: Exploring liability for extraordinary risks” (2008) 43 Valparaiso University Law Review 1075 Google Scholar.

54 See in detail, Galle, B, “In Defense of Ex Ante Regulation” (2015) 68 Vanderbilt Law Review 1715 Google Scholar.

55 See generally Sappideen, C and Vines, P (eds), Fleming’s The Law of Torts (10th edn, Thomson Reuters 2011)Google Scholar ch 9.

56 If an injurer is labelled “litigation proof” this typically means they are insensitive to financial incentives. One could, however, also envisage a different type of litigation proof injurer, namely those actors that are not subject to the jurisdiction of (certain) courts, such as governments or governmental agents. Gilette and Krier contrast this type of situation with a situation of private risk, where the obstacles to recovery are relatively low. While the author does not agree with their characterisation of public risk, some of the obstacles identified for public “risks” are relevant in this context (see Gillette, C and Krier, J, “Risk, Courts, and Agencies” (1990) 138 University of Pennsylvania Law Review 1027, 1046)CrossRefGoogle Scholar.

57 See Shavell, supra, note 46; and Shavell, S, Economic Analysis of Accident Law (Harvard University Press 1987)CrossRefGoogle Scholar.

58 See eg Innes, R, “Enforcement costs, optimal sanctions, and the choice between ex-post liability and ex-ante regulation” (2004) 24 International Review of Law and Economics 29 CrossRefGoogle Scholar (showing that ex-ante regulation can be more efficient than imposing ex-post liability even when the government’s cost of monitoring care is significantly higher than the cost of monitoring accidents (as needed under ex-post liability)).

59 See eg Flearbaey, supra, note 28.

60 It is important to note that the ex post assessment of risky situations can result in “hindsight bias”. Psychological research has shown that ex post assessors of risk are more likely to find decisions taken by actors in foresight negligent, indicating that decisions made in foresight will almost invariably be judged harshly by those with hindsight. See Kamin, K and Rachlinski, J, “Ex Post ≠ Ex Ante: Determining Liability in Hindsight” (1995) 19(1) Law and Human Behavior 89 CrossRefGoogle Scholar.

61 Huber, supra, note 1. See also Ott, C and Schäfer, H, “Negligence as Untaken Precaution, Limited Information, and Efficient Standard Formation in the Civil Liability System” (1997) 17 International Review of Law and Economics 15 CrossRefGoogle Scholar.

62 For a broader discussion of types of ex ante regulation, see Salzman, J, “Teaching Policy Instrument Choice in Environmental Law: The Five P’s” (2013) 23 Duke Environmental Law & Policy Forum 363 Google Scholar.

63 This is different under a strict liability regime where the level of care is immaterial. See Shavell, supra, note 46.

64 Diamond, P, “Single activity accidents” (1974) 3 Journal of Legal Studies 107 CrossRefGoogle Scholar; Craswell, R and Calfee, J, “Deterrence and Uncertain Legal Standards” (1986) 2(2) Journal of Law, Economics, and Organization 279 Google Scholar.

65 ibid.

66 Early work on this includes Shavell, supra, note 46 and Kolstad, Ulen and Johnson, supra, note 42, 888.

67 Schwartz, A, “Statutory interpretation, capture, and tort law: the regulatory compliance defence” (2000) 2(1) American Law and Economics Review 1 CrossRefGoogle Scholar.

68 Kolstad, Ulen and Johnson, supra, note 42. See also Ewerhart, C and Schmitz, P, “Ex post liability for harm vs. ex ante safety regulation: substitutes or complements?” (1998) 88 American Economic Review 1027 Google Scholar.

69 Latter two points raised by Shavell, supra, note 46.

70 ibid.

71 See references cited in notes 19 and 20.

72 Kolstad, Ulen and Johnson, supra, note 42.

73 See eg Peel, J and Osofsky, H, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press 2015)CrossRefGoogle Scholar at 106 (discussing the deregulatory litigation efforts of industry in Australia and the US regarding pollution control).

74 See eg Rubin, P, “Public choice and tort reform” in W Shughart II and R Tollison (eds), Policy Challenges and Political Responses: Public Choice Perspectives on the Post-9/11 World (Springer 2005)Google Scholar at 223 (discussing the susceptibility of lawyers to rent-seeking in the US tort system).

75 Kolstad, Ulen and Johnson, supra, note 42, 889.

76 Schmitz, P, “On the joint use of liability and safety regulation” (2000) 20 International Review of Law and Economics 371–382 CrossRefGoogle Scholar. For further extensions and applications, see Hiriart, Y, Martimort, D and Pouyet, J, “On the optimal use of ex ante regulation and ex post liability” (2004) 84 Economics Letters 231 CrossRefGoogle Scholar (on the effect of allowing ex ante bargaining on regulatory tools); Calcotta, P and Hutton, S, “The choice of a liability regime when there is a regulatory gatekeeper” (2006) 51 Journal of Environmental Economics and Management 153 CrossRefGoogle Scholar (on the role of information and regulator biases).

77 Green, D and Fox, J, “Rational Choice Theory” in W Outhwaite and S Turner (eds), The SAGE Handbook of Social Science Methodology (SAGE 2007) 269 CrossRefGoogle Scholar.

78 See eg Korobkin, R and Ulen, T, “Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics” (2000) 88(4) California Law Review 1051 CrossRefGoogle Scholar; Jolls, C, Sunstein, C and Thaler, R, “A Behavioral Approach to Law and Economics” (1998) 50(5) Stanford Law Review 1471 Google Scholar; Hovenkamp, H, “Rationality in Law & Economics” (1992) 60 George Washington Law Review 293 Google Scholar.

79 See eg Mattei, U, Comparative Law and Economics (University of Michigan Press 1998)Google Scholar; Komesar, N, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy (University of Chicago Press 1994)Google Scholar; Greif, A, “Historical and Comparative Institutional Analysis” (1998) 88(2) The American Economic Review 80 Google Scholar. The institutional literature in the European context is particularly underdeveloped as most of this work focuses on American institutions.

80 See Section III.

81 The imposition of tort liability to governmental actions is explicitly excluded in some jurisdictions, see eg regarding the American federal government, Price v United States, 174 US 373 (19 S Ct 765, 43 L Ed 1011) on federal immunity. Federal sovereign immunity has been waived in only very few cases, eg under the Federal Tort Claims Act (Federal Employees).

82 Urgenda, supra, note 7, para. 5.1.

83 Other scholars have expressed concerns regarding the ability of courts to deal with any issues that do not fit easily into existing liability regimes – such as complex causation or class actions, as mentioned above – and have advocated the reform of failing regulatory regimes over the “awkward judicial hybrids”. See Rose-Ackerman, S, “Regulation and the Law of Torts” (1991) 81(2) The American Economic Review 54, at 58 Google Scholar; see also in more detail Rose-Ackerman, S, “Tort Law in the Regulatory State” in P Schuck (ed.), Tort Law and the Public Interest: Competition, Innovation, and Consumer Welfare (Norton 1991)Google Scholar.

84 See eg a recent petition by scientists and interest groups to the Dutch government regarding its appeal, available via <secure.avaaz.org/act/media.php?press_id=665> and the transcript of the parliamentary debate that followed the judgment, including statements of several political parties against the planned governmental appeal, available at <www.rijksoverheid.nl/binaries/rijksoverheid/documenten/publicaties/2015/09/24/debat-over-uitspraak-urgenda/kamerstukken-debat-over-uitspraak-urgenda-1.pdf>.

85 See eg Bergkamp, L, “A Dutch Court’s “Revolutionary” Climate Policy Judgment: The Perversion of Judicial Power, the State’s Duties of Care, and Science” (2015) 12(3) Journal for European Environmental & Planning Law 241 CrossRefGoogle Scholar; Purnhagen, K, “Towards a Regime of Emission Litigation Based on Science” (2015) 6 European Journal of Risk Regulation 443 Google Scholar.

86 See Barber, N, “Prelude to the Separation of Powers” (2001) 60(1) Cambridge Law Journal 59 CrossRefGoogle Scholar (discussing the many different conceptions of the separation of powers doctrine), see also Ackerman, B, “The New Separation of Powers” (2000) 113 Harvard Law Review 633 CrossRefGoogle Scholar (trying to construct a separation of powers doctrine out of the varying approaches adopted by different jurisdictions).

87 For early foundations on the separation of powers doctrine, see Calvin, J, Institutes of the Christian Religion (translated by H Beveridge) (Calvin Translation Society 1845)Google Scholar. Later also Montesquieu, Spirit of the Laws (translated by A Cohler, B Miller & H Stone) (Cambridge University Press 1989)Google Scholar.

88 This was also recognised in Urgenda but the court came to the conclusion that it still leaves sufficient policy discretion for the executive, see Urgenda, supra note 7, para. 4.94.

89 Urgenda, supra note 7, paras. 4.94–4.102. The court’s reasoning will be discussed in detail in Section V.

90 This is not to say that it would be possible, or even desirable, to replace the constitutional limits placed on judicial risk regulation with eg an efficiency standard. There may be situations where the courts would theoretically be able to “correct” prior inefficient decisions taken by the regulator, and/or be better placed to take this decision in the first place, but will continue to be constitutionally restrained from doing so.

91 Urgenda, supra note 7, para. 4.63.

92 Negligent endangerment is a tort as specified by Section 162 of Book 6 of the Dutch Civil Code. See Urgenda, supra note 7, paras. 4.85–4.86.

93 Urgenda, supra note 7, para. 4.65.

94 ibid, para. 4.22 emphasis added (the Court based this assessment largely on the models used in the IPCC reports).

95 Urgenda, supra note 7, para. 5.1; see also para. 4.65.

96 See eg Kysar, D, “What Climate Change Can Do About Tort Law” (2011) 41(1) Environmental Law 1 Google Scholar; Faber, D, “Tort Law in the Era of Climate Change, Katrina and 9/11: Exploring Liability for Extraordinary Risks” (2008) 43 Valparaiso University Law Review 1075 Google Scholar.

97 This was one of the points on which Urgenda had requested a declaratory judgment, which the Court refused, although it did find certain facts regarding climate change “established”, see Urgenda, supra note 7, para. 4.65.

98 ibid.

99 Urgenda, supra note 7, paras. 3.1 and 4.94.

100 Urgenda, supra note 7, para. 4.63 et sqq.

101 See eg Bora, A, “Scientific Norms, Legal Facts, and the Politics of Knowledge” in N Stehr and B Weiler (eds), Who Owns Knowledge? Knowledge and the Law (Transaction Publishers 2008) 67 Google Scholar. See also Justice Cardozo: “Lawsuits are rare and catastrophic experiences for the vast majority of men, and even when the catastrophe ensues, the controversy relates most often not to the law, but to the facts” (emphasis added), as cited in Marx, R, “Shall Law Schools Establish a Course on “Facts”?” (1953) 22 University of Cincinnati Law Review 281, at 282 Google Scholar.

102 See eg the US Federal Tort Statute.

103 See more generally on the third party effects of tort law, Lee, M, “The public interest in private nuisance: collectives and communities in tort” (2015) 74 Cambridge Law Journal 329 CrossRefGoogle Scholar.

104 Urgenda, supra note 7, para. 4.96.

105 ibid, para. 4.100.

106 ibid, para. 4.74 (“Based on its statutory duty – Article 21 of the Constitution – the State has an extensive discretionary power to flesh out the climate policy. However, this discretionary power is not unlimited. If, and this is the case here, there is a high risk of dangerous climate change with severe and life-threatening consequences for man and the environment, the State has the obligation to protect its citizens from it by taking appropriate and effective measures.”) On the specific issue of the democratic mandate of the judiciary, the Court underlined the legislative foundations of its position, which themselves were the result of a democratic process, ibid, para. 4.97.

107 Urgenda, supra note 7, para. 4.101.

108 A comparative overview of issues in the United States and Australia can be found in Peel, J and Osofsky, H, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press 2015) 269 CrossRefGoogle Scholar et sqq. For general issues see Hodas, D, “Standing and Climate Change: Can Anyone Complain about the Weather?’ (2000) 15(2) Journal of Land Use & Environmental Law 451 Google Scholar.

109 Urgenda, supra note 7, para. 4.5.

110 See eg contribution by Maria Lee.

111 Notably, the EU had set the mitigation goals for the Netherlands, leaving limited discretion to the Dutch government. See Decision 406/2009/EC on the Effort of Member States to Reduce Their Greenhouse Gas Emissions to Meet the Community’s Greenhouse Gas Emission Reduction Commitments up to 2020 [2009] OJ L 140/136 (EU Effort Sharing Decision).

112 This is also recognised by the Court, see eg Urgenda, supra note 7, para. 4.74.

113 On the relative strengths of public risk regulation, see Gillette, P and Krier, J, “Risk, Courts and Agencies” (1990) 138(4) University of Pennsylvania Law Review 1027 CrossRefGoogle Scholar; and Huber, P, “Safety and the Second Best: The Hazards of Public Risk Management in the Courts” (1985) 85 Columbia Law Review 277 CrossRefGoogle Scholar. See also Cane, P, “Using Tort Law to Enforce Environmental Regulation?” (2002) 41 Washburn Law Journal 427 Google Scholar.

114 See also Sunstein, C, “On the Costs and Benefits of Aggressive Judicial Review of Agency Action” (1989) 3 Duke Law Journal 522 CrossRefGoogle Scholar.

115 Urgenda, supra note 7, para. 5.1. The Court also ordered the Dutch government to pay for Urgenda’s costs but also rejected Urgenda’s claim for an order to inform as invalid. It held the order had no basis in law and that given that it is not yet clear what action the order to act will result in, it would not be reasonable to force the Dutch government to provide any information to the public (para. 4.107). The existing Dutch reduction commitments are based on its EU obligations, which in turn are based on its international commitments under the UNFCCC and Kyoto Protocol systems.

116 See eg Lazarus, R, “Super wicked problems and climate change: Restraining the present to liberate the future” (2008) 94 Cornell Law Review 1153 Google Scholar.

Even if these timing issues were absent, there is ample evidence to suggest that voters have difficulties internalising the implications and risks of (lack of) climate change (mitigation), which further reduces the likelihood of climate decisions influencing voting decisions. See O’Connor, R et al, “Risk Perceptions, General Environmental Beliefs, and Willingness to Address Climate Change” (1999) 19(3) Risk Analysis 461 CrossRefGoogle Scholar.

117 See eg Rowell, A and Wexler, L, “Valuing Foreign Lives” (2014) 48 Georgia Law Review 499 Google Scholar.

118 See also Enneking, L and de Jong, E, “Regulering van onzekere risico’s via public interest litigation?” (2014) 23 Nederlands Juristenblad 1542 Google Scholar.

119 See D Kysar in this issue.

120 See D Kysar in this issue. See also M Lee in this issue on a comparison between English and Dutch law in this respect and more generally on courts as norm generators in tort law, and Ewing, B and Kysar, D, “Prods and Pleas: Limited Government in an Era of Unlimited Harm” (2011) 121 Yale Law Journal 350 Google Scholar.

121 Kysar, supra, note 96.

122 Kysar, supra, note 96.

123 See Bergkamp, supra, note 85. See also Enneking and de Jong, supra note 118, 1548–49.

124 With thanks to an anonymous referee for underlining this point.

125 Pedersen, W Jr., “Formal Records and Informal Rulemaking” (1975) 85(1) Yale Law Journal 38, 60 CrossRefGoogle Scholar (arguing that this is desirable since “[c]ourts alone have the time, the influence, and the freedom from ceremonial and ‘political’ considerations that are necessary to a thorough, dispassionate and effective review of extremely complex and controversial matters”.

126 Stewart, R, “The Development of Administrative and Quasi-Constitutional Law in Judicial Review of Environmental Decisionmaking: Lessons from the Clean Air Act” (1977) 62 Iowa Law Review 713 Google Scholar.

127 See Rubenstein, D, “‘Relative Checks’: Towards Optimal Control of Administrative Power” (2010) 51 William and Mary Law Review 2170 Google Scholar.

128 Although highlighted at several points, this constitutional issue is not the focus of this contribution. For further discussion of this issue see – in relation to Urgenda: Urgenda, supra note 7, para. 4.95, for legal restrictions in place in the United States, Australia, Canada and the United Kingdom as discussed in van Zeben, supra, note 7, 354–56. More generally on American and Australian jurisprudence on climate change, see Peel, J and Osofsky, H, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press 2015)CrossRefGoogle Scholar; comparatively: Kavanagh, supra, note 23; Ackerman, B, “The New Separation of Powers” (2000) 113 Harvard Law Review 633 CrossRefGoogle Scholar

(advocating a model of constrained parliamentarianism aimed at preserving democracy, professionalism and human rights).

129 Urgenda, supra note 7, para. 4.66.

130 This relates to another limit of the judicial function as highlighted in the case of Boomer v Atlantic Cement Co 257 NE 2d 870, 871 (NY 1970) (“the judicial establishment is neither equipped […] nor prepared to lay down and implement an effective policy for the elimination of air pollution”).

131 As demonstrated by the impact of judicial review of governmental agency action in the United States since the 1960s. See eg Pedersen, W Jr., “Formal Records and Informal Rulemaking” (1975) 85(1) Yale Law Journal 38 CrossRefGoogle Scholar, Jaffe, L, Judicial Control of Administrative Action (Little, Brown and Company 1965)Google Scholar and Melnick, R, Regulation and the Courts: The Case of the Clean Air Act (Brookings Institute 1983)Google Scholar (on the specific case of air pollution in the US).

132 For an excellent overview of the development of comparative law and economics thus far, see Michaels, R, “The Second Wave of Comparative Law and Economics?” (2009) 59 University of Toronto Law Journal 197 CrossRefGoogle Scholar (see specifically the discussion on the functional equivalence of legal systems at 197–98). See also Ogus, A, “Competition Between National Legal Systems: A Contribution of Economic Analysis to Comparative Law” (1999) 48(2) International and Comparative Law Quarterly 405 CrossRefGoogle Scholar. Regarding the relevance of L&E work for civil law traditions, see Mattei, U and Pardolesi, R, “Law and Economics in Civil Law Countries: A Comparative Approach” (1991) 11 International Review of Law and Economics 265 CrossRefGoogle Scholar. For an example in the area of economic institutions, see eg Granovetter, M, “Economic Action and Social Structure: The Problem of Embeddedness” (1985) 91(3) American Journal of Sociology 481 CrossRefGoogle Scholar.

133 With thanks to anonymous referee who emphasised this point during review.