Tuesday, February 2, 2010

Environmental Law as a Distinct Area of Law

Todd S. Aagaard of the Villanova University School of Law has an interesting and important new article (here) in the Cornell Law Review (vol. 95, pp. 221-282, 2010), which sets out an analytic framework for distinguishing discrete areas of law and then applies that framework to explain what distinguishes Environmental Law as a distinct field. Here is the abstract:

This Article examines the classification of the law into legal fields, first generally and then by specific examination of the field of environmental law. We classify the law into fields to find and to create patterns, which render the law coherent and understandable. A legal field is a group of situations unified by a pattern or set of patterns that is both common and distinctive to the field. We can conceptualize a legal field as the interaction of four underlying constitutive dimensions of the field: (1) a factual context that gives rise to (2) certain policy tradeoffs, which are in turn resolved by (3) the application of values and interests to produce (4) legal doctrine. An organizational framework for a field identifies the field's common and distinctive patterns, which may arise in any of these underlying constitutive dimensions.

The second part of the Article applies this general analytical approach to the field of environmental law, proposing a framework for understanding environmental law as a field of legal study. Two core factual characteristics of environmental problems are, in combination, both common and distinct to environmental law: physical public resources and pervasive interrelatedness. Numerous use demands are placed on environmental resources, creating conflicts. These use conflicts define the policy tradeoffs that frame environmental lawmaking, forming the basis for a use-conflict framework for conceptualizing environmental lawmaking. A use-conflict framework for environmental lawmaking carries significant analytical advantages over other models for conceptualizing environmental law as a legal field.

The potential importance of Aagaard's article lies in the answer it seems to provide to a question raised by Chicago-Kent College of Law Professor Dan Tarlock, "Is There a There There in Environmental Law?" Tarlock raised that question in light of what he saw as the "marginalization" of Environmental Law in the courts. Georgetown Law Professor Richard Lazarus, writing (here) about the US Supreme Court's Environmental Law jurisprudence in particular,  has similarly noted "the relative absence of any notion, for most of the Justices during the past three decades, that environmental law is a distinct area of law, as opposed to just a collection of legal issues incidentally arising in a factual setting where environmental protection concerns are what is at stake. The Court's opinions lack any distinct environmental voice. Missing is any emphasis on the nature or character of environmental protection concerns and their import for judicial construction of relevant legal rules."

If Tarlock and Lazarus are right (as I believe they are) about the need to provide the courts with a better understanding of what constitutes Environmental Law as a distinctive field, then Aagaard's article is a definite and helpful step forward in that process.

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