Daniel A. Farber,
Preventing Policy Default: Fallbacks and Fail-Safes in the Modern Administrative State, 121
Yale L.J. F.
Available at: http://scholarship.law.berkeley.edu/facpubs/2595
Benjamin Ewing and Douglas Kysar's article, Prods and Pleas, discusses one beniftt of the fragmented American governance system: the opportunity for institutions to influence the agendas of other, more poweiful institutions. The authors illustrate this point with an extensive discussion if the potential for common law nuisance cases to direct congressional attention to the issue of climate change. Their general point is well taken, but they focus too heavily on the common law rather than the more important judicial role in public law, and they mention only in passing the role if states as independent policy centers. Furthermore, besides nudging Congress or the executive branch, public law litigation and state legislative activity can also help fill the gaps created by congressional or presidential policy difaults.