The Limits of Statutory Law and the Wisdom of Common Law
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.