Tristan focuses her practice in constitutional, class action and energy law. In that capacity, she prosecutes and defends challenges to state and federal legislation, leading the firm’s constitutional law efforts and the firm’s comprehensive national and international energy-related litigation in product liability, environmental and toxic tort, antitrust, consumer fraud, and commercial disputes. She also has significant experience handling federal and state governmental investigations and administrative proceedings.
With vast experience in class actions and multidistrict litigation as well as federal and state appellate work, Tristan is the co-chair of Shook’s Class Action and Appellate Litigation Practice Group. She also co-chairs the firm’s Art Law Practice Group.
Tristan also advises international and national energy companies on climate change matters at the federal and state levels and is lead counsel in climate change litigation pending in federal and state courts.
Tristan has spoken and published widely on these matters and has been quoted in national publications, including the Wall Street Journal and ABA Journal. In 2013, the Association of Corporate Counsel recognized Tristan as a “Value Champion” for her “innovative, collaborative and savings-driven approach” in nationwide litigation. This defense work also garnered praise from The National Law Journal, which named her one of the nation’s top 50 Energy & Environmental Trailblazers in 2015, and Missouri Lawyers Media, which honored her as a 2013 Legal Champion. She was also recognized as a BTI Client Service All-Star after clients singled her out for her excellent service during an independent interview process.
Representative Matters
Co-leads team on biometrics class action litigation involving data privacy and security issues pending in federal court in Illinois.
Leads a legal team representing a major multinational energy company in environmental and toxic tort litigation, involving significant constitutional arguments, including takings, due process, and fair notice.
Leads a legal team representing 12 retailer and wholesaler defendants under an innovative joint litigation strategy. Tristan was first-chair trial counsel and won unanimous defense verdicts in the first bellwether consumer fraud class action, and also made new case law with a resulting 10th Circuit decision, which established the “First Amendment Associational Privilege” against disclosure of petitioning strategies.
Leads a trial and appellate team in climate change litigation across the country, including serving as lead counsel for a coalition of energy companies in the Clean Power Plan litigation in which the legal team won an historic landmark stay by the United States Supreme Court of President Obama’s Clean Power Plan.
Served as lead counsel along with Laurence H. Tribe in a constitutional challenge to the Kansas school finance system and the state cap on local spending for public education.
Obtained an appellate victory for homeowners against a municipality with respect to the proper interpretation of zoning regulations.
Publications and Presentations
Constitutional Issues
When Failure Is Success in Constitutional Litigation: Tales from the Trenches with Kurt Vonnegut and Other American Icons, Duke Law School, March 31, 2016.
Laurence H. Tribe, Joshua D. Branson & Tristan L. Duncan, Too Hot for Courts to Handle: Fuel Temperatures, Global Warming, and the Political Question Doctrine, 129 Critical Legal Issues: Working Paper Series (Wash. Legal Found. Jan. 2010).
Tristan L. Duncan & Jonathan S. Massey, AEP’s Tipping Point: Implied Preemption of Climate-Change Common Law Claims, 179 Critical Legal Issues: Working Paper Series (Wash. Legal Found. Feb. 2012).
Tristan L. Duncan, (Handi-)Capping Equality and Excellence: the Unconstitutionality of Spending Caps in Public Education, 45 The Urban Lawyer: The National Journal on State and Local Government Law, 183 (Winter 2013).
Tristan L. Duncan, Commentary, Balancing power – lawyers, guns and money, The National Law Journal, Apr. 11, 2012.
Constitutional Test Cases: Challenging the Constitutionality of Joint and Several Liability in Product Liability and Toxic Tort Litigation, Bacon Thomas CLE Presentation, Feb. 23, 2007.
Class Action and Complex Litigation
Tristan L. Duncan & Rex A. Sharp, Recent Developments in U.S. Class Action Litigation (Développements Récents en Matière d’Actions Collectives aux États-Unis), 2018 National Class Action Conference, Montréal, Canada, March 23, 2018.
Class Action Settlements, DRI Class Actions Seminar: Latest Developments in Law and Practice, Washington, D.C., July 21, 2017.
Tristan L. Duncan & Martin H. Redish, The Constitutional Limits on Class Action Lawsuits: The Scholar and Practitioner Perspective, DRI Class Actions Seminar, July 25, 2014.
How Even the Faint of Heart Can Survive MDL, Wichita Bar Association CLE Symposium: The Medium is the Mess - iPractice in the e-Age, Apr. 23, 2010.
Energy, Environmental and Toxic Tort Law
Energy, The Environment, and Property Rights: Directions for the Future, Heritage Foundation, 2017 Spring Legal Strategy Forum, May 2017.
The Hon. Patrick Morrisey & Tristan Duncan, Energy Panel: The Illegality of the EPA’s Power Plan, Southern Republican Leadership Conference, May 23, 2015.
Tristan L. Duncan, The Past, Present, and Future of Climate Change Litigation: How to Successfully Navigate the Shifting Landscape, The Legal Impact of Climate Change (Aspatore 2012).
Tristan L. Duncan, Manuel López & William F. Northrip, Tenth Circuit Limits First Amendment Privacy Rights for Advocacy Groups, 9:1 ABA Energy Committee Newsletter, Oct. 2011, at 7.
Tristan L. Duncan, William F. Northrip, & Kevin R. Corlew, Border Wars: Political Questions Presented by Common-Law Claims in Climate Change and Fuel Temperature Litigation, Energy Committees Newsletter (ABA Section of Env’t, Energy & Resources), Apr. 2010, at 10.
Potpourri of Ethics Issues for the Toxic Tort and Environmental Law Attorney, American Bar Association, Tort Trial & Insurance Practice Section, 15th Annual Spring Conference, Apr. 6-8, 2006.
Education
Laurence Tribe, Tristan L. Duncan & Sheryll Cashin, Getting the Best Education for All Our Kids: The Lawsuits That Could Transform American Public Schools, Aspen Institute Justice and Society Program, Sep. 30, 2014.
Additional Presentations and Topics
Broad Strokes: Contemporary Issues in Art and Museum Law, Update of the Law CLE webinar, June, 2022.
Chair, National Foundation for Judicial Excellence Annual Symposium 2015.
Chair, National Foundation for Judicial Excellence Annual Symposium 2014.
Building the Reasonably Safe Product: The Impact of Product Liability Lawsuits on Manufacturers, Stinson Morrison Hecker Conference: Preventing Product Liability Litigation, Jan. 15, 2004.
State Tort Reform Update, National Propane Gas Defense Association Boston Conference, Apr. 17, 2002.
A Comparative Analysis of State Tort Reform: What’s Working and What’s Not, Product Liability and Product Safety Council of the Manufacturers Alliance (Captiva Island, Florida), Oct. 14-16, 1999.
Tristan Duncan, Narrative Jurisprudence: The Remystification of the Law, 7:1 The Journal of Law and Religion 105 (1989) (The Robert M. Cover Symposium).
Media Highlights
Jack Rodgers, Top Atty At Army Center Of Military History Joins Shook Hardy, Law360, July 11, 2024.
Marcia Coyle, Five Cases to Watch at Friday's U.S. Supreme Court Conference, The National Law Journal, Mar. 15, 2018.
Shayna Posses, Retail Developments To Watch In 2018, Law360, Jan. 1, 2018.
Andrew Strickler, Shook Hardy, Seyfarth, Among ACC’s Value Champs, Law360, Jun. 19, 2013.
Scott Lauck, Hot Fuel Team: Shook, Hardy & Bacon, Legal Champions, Missouri Lawyers Weekly, Jan. 2013.
Steve Vockrodt, Johnson County property owners’ lawsuit will challenge Kansas school financing, Kansas City Business Journal, Dec. 10, 2011.
Stephanie Simon, Judge Bars School Tax in Kansas, The Wall Street Journal, Mar. 11, 2011.
Stephen Montemayor, School lawsuit in national spotlight, Shawnee Dispatch, Feb. 23, 2011.
Judge: School Funding Injunction Ruling Likely In 2 To 3 Weeks, The Associated Press, Feb. 19, 2011.
Johnson Co. group takes school concerns to court, The Associated Press, Feb. 17, 2011.
Parents challenge state’s ed spending cap, The Associated Press, Feb. 15, 2011.
Mission Valley and Brookwood parents now pin hopes on federal lawsuit, Prairie Village Post, Dec. 14, 2010.
Beth Vaughn, Shawnee Mission School District faces lawsuit filed by angry parents, three days before final votes, ABC Action News.com, Dec. 10, 2010.
