Litigation's Regulatory Pathways and the Administrative State : Lessons from U.S. And Australian Climate Change Governance

The administrative state struggles to address massive, complex problems such as ameliorating the financial crisis, preventing terrorism, or responding to climate change. These problems cut across levels of government — local, state, national, international — and substantive areas of law. Yet our governance structures, for the most part, are not designed to deal well with issues that involve multiple types of governance authority and institutions. A burgeoning literature by leading U.S. scholars describes this problem and proposes solutions. These analyses often include some case law, but their primary focus has been on the legislative and executive branches in the United States. This article argues that, even accepting the constraints of constitutional separation of powers and of administrative law in this country, a fuller exploration of the regulatory role of courts is needed. Drawing from the comparative experiences of the United States and Australia in responding to climate change, it provides a novel model for understanding the direct and indirect regulatory pathways that litigation provides in common law jurisdictions. This model and its application help to illuminate the nexus between litigation and regulation, which allows for a more complete understanding of governance in the context of complex problems