The Yale Law Journal Online: Courts in the Age of Dysfunction

The Yale Law Journal Online has published the second in a series of responses to Benjamin Ewing and Douglas A. Kysar’s recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of The Yale Law Journal. In their article, Ewing and Kysar argue that the traditional constitutional model of “checks and balances” could be improved by incorporating “prods and pleas,” through which different government branches incentivize action from other branches. To establish their argument, Ewing and Kysar explore federal climate nuisance litigation as an example and analyze how prods and pleas function in that arena.

In Courts in the Age of Dysfunction, Jonathan Zasloff argues that pleas are ineffective because government branches are unlikely to listen to arguments from other branches. Zasloff does find insight in Ewing and Kysar’s theory of prods, however, and he suggests that judicial prodding is appropriate in three areas: “1) where legislation is blocked by a filibuster; 2) where opposition to legislation rejects science; and 3) where the legislative process produces results that discriminate against diffuse and invisible (and thus powerless) groups.” Zasloff examines Ewing and Kysar’s example of climate change and ultimately concludes that “under current circumstances, judicial prodding is, in fact, appropriate.”

Preferred citation: Jonathan Zasloff, Courts in the Age of Dysfunction, 121 YALE L.J. ONLINE 479 (2012),

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