Climate Change as Unjust Enrichment
Professor Kaplan's research is focused on private law remedies and the law of unjust enrichment. He was awarded a European Research Council (ERC) grant to explore the use of unjust enrichment doctrine as a means for public interest litigation and a governance mechanism for addressing broad societal issues. His project investigates contemporary crises, including climate change, the opioid pandemic, and the proliferation of disinformation online. His most recent works include the articles “Climate Change as Unjust Enrichment” (with Maytal Gilboa and Roee Sarel, forthcoming Georgetown Law Journal), “Unjust Enrichment by Algorithm” (with Ayelet Gordon-Tapiero, forthcoming George Washington Law Review), “Excuse 2.0” (with Yair Listokin and Yehonatan Givati, forthcoming Cornell Law Review), and “A New Theory of Impossibility, Impracticability, and Frustration” (with Yehonatan Givati, forthcoming Journal of Legal Studies). Professor Kaplan has been recognized with numerous awards and research grants, including the Polonsky Prize for Best Tort Law Article (TAU Law School), Outstanding Lecturer Award (BIU Law School), Junior Scholar Cheshin Award for Academic Excellence in the Field of Law, the Addison-Brown Writing Prize (Harvard Law School), Israel Science Foundation (ISF) grant, and German Israel Foundation (GIF) grant. He received his doctoral degree from Harvard Law School and served as a clerk for Chief Justice Dorit Beinish of the Israeli Supreme Court.
The climate crisis is the greatest challenge of our generation, with no satisfactory legal response in sight. Political polarization and influence from special interest groups have hindered effective regulatory action on both national and international fronts. Climate litigation through the court system, primarily based on tort principles, has also been largely unsuccessful. In response to these legal failures, some courts and commentators have suggested that the law of unjust enrichment may provide the correct legal venue for addressing the climate crisis. This Article is the first to offer a comprehensive legal and doctrinal analysis of this new direction. This analysis is necessary to facilitate the adoption of such claims in court and their success in litigation.
The argument of the paper is two-fold. First, we explain why the law of unjust enrichment can succeed where tort litigation has failed so far. Mainly, a tort claim must be based on a clear showing of harm. Climate litigation, based mostly on future and highly dispersed harms, does not fit this requirement. Conversely, a claim of unjust enrichment does not necessitate direct proof of harm but focuses on the unjust gains of the defendant. While the worst harms of climate change lie in the future, strong commercial actors benefit here and now.
Second, and closely related, we demonstrate that the use of unjust enrichment claims in climate litigation is not only feasible from a legal standpoint but also desirable as a matter of policy. If pollution remains profitable, it would be naïve to anticipate any significant progress in mitigating climate change. By making it possible to take away unjust gains, the law of unjust enrichment offers the correct remedy for this pressing problem. We explain the doctrinal elements of our proposal and its theoretical foundations, compare its strengths and limitations to other legal strategies, and explore its implementation in practice.
This lecture is hybrid, in REC A3.01 and online via zoom. For the zoom link, please register via the button below.