Civil Procedure for the Anthropocene

Abstract

Climate considerations must become an element of procedural analysis. Scholars, rule makers, legislators, and judges have historically prioritized procedural values including cost, speed, and accuracy. More recent waves of scholarship—including critical perspectives—have emphasized participation as a further procedural goal. Yet this list has grown stale. Current environmental realities force all areas of law, including civil procedure, to reckon with climate change. In the future, proceduralists will be forced to integrate climate-aware thinking into their analyses, proposals, and discussions. Predictably, minds will disagree on how to accomplish this and the kinds of trade-offs that are warranted. Yet the fundamental point of this article remains: climate change resilience is a procedural concern that has not been recognized but must be. This signals not the genesis of a new branch of procedural scholarship but an opportunity to broaden the discussion for all procedural scholarship. In addition, this Article serves as a guide for rule makers and legislators who have just recently begun to show interest in climate-aware procedures. It directs them to procedural topics that require urgent attention, provides implementation strategies for developing resilient procedures, and considers the attendant costs and benefits of different approaches ranging from laissez-faire to aggressive engagement. Just as civil procedural innovations contributed to the emergence and success of the civil rights movement, our collective response to climate change will also be shaped by civil procedure. This Article prepares for this future and offers a corrective to the field’s failure to anticipate and respond to climate change.