The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as ???adaptation)???. While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously. To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes has not yet taken off the way that the wave of high -profile lawsuits against sources of emissions causing climate change has, but it is inevitable that it will, making it ripe for attention in legal scholarship. The Article begins in Part I by highlighting several features of climate change and adaptation that will place inevitable disruptive pressure on existing doctrines and principles of private law. The new normal of climate change questions some key factual predicates embedded in private law doctrine. For example, climate change is radically moving the long-stable upper and lower extremes of multiple biophysical conditions (what scientists call ???nonstationarity)???, meaning individuals increasingly will be unable to accurately predict the future based entirely on past data (what scientists call the ???no-analog future)???. Private law nonetheless must operate in a manner that provides practical and meaningful guidance to stakeholders, which will require it to confront the new realities presented by climate adaptation, including how
Rossi, J; Ruhl, JB
Adapting Private Law for Climate Change Adaptation
Vanderbilt Law Review