Tuesday, July 23, 2013

Procedure and environmental history

William Hogarth, The Court
A little while back Liz Fisher gave an interesting paper at a conference at TAU Law on how courts in New South Wales have approached judicial review of environmental impact assessments. My colleague Issi Rosen-Zvi, commenting on the paper, related Fisher's discussing of Australian courts' manipulation of the law/fact distinction to a centuries-long phenomenon of courts arrogating power to themselves (and taking it away from juries and administrative agencies) by casting questions as ones of law rather than of fact.

Rosen-Zvi's comment is a reminder that current debates over procedural issues such as standing, scientific evidence, class action lawsuits, and the like not only hold great importance for today's environmental law, but have a long history behind them, a history tied up in politics and power struggles over (among other things) which institutions, social classes, professional groups, etc. get to make decisions of environmental import.

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