Document Type
Note
Abstract
When civil rights lawyers sought to overturn Plessy v. Ferguson in the years leading up to Brown v. Board of Education, they faced a history of institutionalized segregation and inequality, constitutional acceptance of the “separate but equal” doctrine, and sharp social divisions on the issue. Other landmark cases of rights recognition, such as Obergefell v. Hodges and Roe v. Wade, similarly built upon years of evolution in law, precedent, and social opinion that made them inconceivable before their time. Early versions of the litigation strategies envisioning these judgments might have been tentative and vague, lacking in factual, legal, and political support. Drawing encouragement from these episodes, this Note aims to set out a theoretical blueprint for litigation to establish the right to a livable climate. The Note proceeds by discussing the foundation laid by preceding environmental litigation, particularly with regards to standing and establishing injury and causation. It then seeks to establish the government’s duty and culpability, grounded in existing doctrines of government action and inaction in the realm of rights protection. Finally, it highlights the judicial role in the recognition of and protection of individual rights.
Recommended Citation
Melanie Hess,
Note: Building Blocks of a Fundamental Right: A Thought Experiment on the Constitutional Right to a Livable Climate,
1
Notre Dame J. on Emerging Tech.
525
(2020).