Tort and environmental regulation

Douglas Kysar recently posted "The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism", which, among other things, takes issue with the supposed inability of tort law to deal with complex environmental issues; or as the New York Court of Appeals put it in the leading case of Boomer v. Atlantic Cement Co., "the judicial establishment is neither equipped... nor prepared to lay down and implement an effective policy for the elimination of air pollution".

Kysar argues that "rather than common law litigation being displaced by more sophisticated regulatory approaches, the latter instead may well have depended on the former for their sophistication", and backs up his claim with a case study (in order not to spoil the suspense in his article, after the jump):

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