Law sometimes happens in peculiar ways.  And none so peculiar as the Fifth Circuit Court of Appeals’ recent dodging of the important issues raised by climate change litigation.  What happened (or rather, didn’t happen) is so important that it merits a digression here.  It also suggests ways that courts can make law without seeming to make law, especially when the cases involve new claims, new theories, and even new technologies.  The Fifth Circuit’s maneuver should serve as a warning – and a reminder of the clever traps of procedure – to those who attempt novel theories in the era of new technology.

 Here’s what happened.  Property owners and other residents along the Mississippi Gulf coast brought a tort action against oil companies, electrical companies, and utilities, claiming that the defendants caused massive emissions of greenhouse gases that contributed to global warming, which, among other things, added to the power of Hurricane Katrina.  They sought compensation for property damage from Katrina.  The lower court dismissed the action on a pretrial motion, and the plaintiffs appealed to the Fifth Circuit Court of Appeals.  The 3-judge Fifth Circuit panel (“the panel”) reversed and held that the action could go forward, Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), but that decision was vacated when the Fifth Circuit accepted the case for a full-bench (“en banc”) rehearing.  A number of judges recused themselves from the rehearing, presumably because of potential conflicts of interest with the case.  Last week, the Fifth Circuit said that because the court no longer had a quorum of judges, it was not empowered to rehear the case, so it dismissed the appeal and reinstated the lower court’s dismissal of the action.

 Is it really so easy to circumvent our judicial processes?

 Why is this procedural maneuver important, and what does it have to do with nanotechnology?

The net effect was to reinstate a lower court ruling over the Fifth Circuit panel’s own decision.  That lower court ruling was a dismissal of the lawsuit.  What was unusual was that the Fifth Circuit did this without considering the issues raised on appeal.  In other words, the case was decided on a technicality.  In so ruling, the Fifth Circuit rejected a variety of measures that would have allowed the rehearing to go forward.  If the court had wanted to continue with the rehearing en banc, it could have found a way.

 Nanotechnology tort actions will arrive in the courts soon enough, raising unprecedented issues (and yes, some old issues as well).  It is important that those issues (new and old) received full consideration.  The law favors deciding cases on the merits, not dodging difficult controversial and new issues.  Moreover, nanotechnology litigation will involve many industries, enormous and small, so the notion that judges may have to recuse themselves is not far-fetched.

 Most judges have past connections with big industry in this country, whether it is oil and utility companies, pharmaceutical companies, nanomaterial firms, or anything else.  They had clients who either were those companies or who were engaged in business or litigation with or against those companies.  They had investments of their own.  Their legal practices, government service, or other pre-judicial professional obligations involved them with many law firms and attorneys.  It is important that judges recuse themselves when there is the potential for a conflict of interest or even just the appearance of a conflict of interest.  But if courts will decline to hear cases because too many of their judges must recuse themselves, then the parties, and all of us, will end up on the losing side.

 And that’s not justice.