Unsettled: How Climate Change Challenges a Foundation of Our Legal System, and Adapting the Legal State


Victor B. Flatt


One of the fundamental goals of law is to end disputes. This “push to settlement” is foundational and has historically worked to increase societal efficiency and justice by engendering legitimate expectations among the citizenry. However, the efficient nature of much legal finality, settlement and repose only exists against a background of evolution of the physical environment that is predictable and slow-paced. That background no longer exists. The alteration of the physical world, and thus the background for our societal structure and decisions, is accelerating rapidly due to human caused climate change. This creates a mismatch between the law’s tendency to finality and repose and the now fast changing nature of the real world. This article proposes that law’s repose must be re-examined, and then addressed, if we are to have any hopes of societal efficiency moving forward. In order to do this, however, this article posits that we need to understand the nature of the law’s tendency to finality, settlement, and repose, and preserve this to the extent that it is still necessary and useful, while we undertake actions to re-examine the parts of static law that are most impacted by the changing physical world.


climate change, climate, adaptation, law, legal history, finality, repose, settlement, settled doctrine

Publication Date


Document Type


Publication Information

2016 Brigham Young University Law Review 1397 (2017)


COinS Victor B. Flatt Faculty Bio