SJ Quinney College of Law, University of Utah
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Abstract

It is incredibly difficult to imagine an event the likes of which humans have never seen before. That, in and of itself, renders the challenge to prepare for such an event even more difficult because there is no frame of reference pushing us to act. How do you prepare to avoid something which has never occurred in the history of human occupation? That is the challenge of climate change.

I argue that the Subprime Mortgage Crisis and its aftermath parallel the Climate Crisis in critical ways that should inform our tactics. Of course, there are obvious critical differences as well. The Subprime Crisis was a predictive failure that involved the misallocation of risk and blindness to uncertainty. This Article examines the predictive failures of the Subprime Crisis by focusing on what makes probabilities more likely to be accurate and the circumstances in which some predictions blind us to the uncertainty of large-scale negative consequences. This Article employs the theory of the Black Swan and other critiques from Nassim Nicolas Taleb to explore the application of probability theory in the context of the Climate Crisis.

At the same time, data and probabilities are insufficient to motivate both individuals and political entities to act. Even an accurate probabilistic assessment of global climate change risk is inadequate; the Climate Crisis demands a narrative that resonates with individuals at a local and emotional level. Narrative theory explains the difficulty experienced in implementing legal solutions to mitigate the Climate Crisis.

This Article synthesizes the link between narrative power in creating human understanding and our propensity for making bad predictions through the human cognitive bias research of Daniel Kahneman and Amos Tversky. While policy-makers, scientists, and political representatives play important roles in trying to shape public opinion, recent empirical research supports the idea that lawyers—through litigation—are best equipped to immediately address the Climate Crisis.

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