The Limits of Statutory Law and the Wisdom of Common Law

April 2008
Citation:
38
ELR 10268
Issue
4
Author
Michael D. Axline

Editors' Summary: Although federal environmental statutes may largely have been created to address limitations in the common law, common law still retains some advantages over statutory law for plaintiffs seeking redress in the face of risk or uncertain harms. In this Article, Michael D. Axline explains some of the shortcomings of statutory law. For instance, although citizen suit provisions are built into most federal environmental laws, plaintiffs bringing actions pursuant to these provisions face substantial burdens such as notice limitations, standing challenges, mootness, and jurisdictional issues. Common law, on the other hand, offers plaintiffs a greater range of remedies as well as more flexibility and creativity. Common law also affords plaintiffs the opportunity to make their case to a jury, which has the ability to make determinations of reasonableness in the face of uncertainty.

Michael D. Axline is a principal in the firm of Miller, Axline & Sawyer, in Sacramento, California. [Editors' Note: This Article appears in the book Creative Common Law Strategies for Protecting the Environment, edited by Clifford Rechtschaffen and Denise Antolini and published in 2007 by the Environmental Law Institute (ELI). The book can be ordered either by calling ELI at 800-433-5120 or logging on to the ELI website at http://www.eli.org.]
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