Tuesday, March 18, 2014

Teaching the history of law and the environment


I’d like to thank David Schorr for inviting me to post my thoughts on teaching law and environmental history, and for his work in developing this blog, which I have found to be a vital resource for keeping up-to-date on this rapidly developing field.

Legal Issues in Environmental History” was a course description developed by the New Jersey Institute of Technology’s innovative undergraduate program in Law, Technology, and Culture, headed by legal historian Alison Lefkovitz. The goal is to teach students how humans have regulated and managed the natural environment in North America from the colonial period to the present. 

By looking at the evolution of environmental rules from customary use rights to modern state-based regulation, students learn how ideas about nature, law, and the market have changed over time. Hopefully, they leave the class with a better sense of the possibilities and pitfalls that surrounded the federalization and, increasingly, the globalization of environmental law.

I’ll start this discussion by suggesting what the course doesn’t do. As you can see in the syllabus, the course tries to avoid a teleological history of federal environmental law that follows a path from the shortcomings of local governance to the virtues of a national system. Instead, it assumes that people in each period of American history we study had particular rules about environmental management and analyzes how these practices were grounded in the social, cultural, political, and economic conditions of their time and place.

As a result, the course steers away from instrumentalist explanations for changing practices of governance. I use historical examples to introduce important theories about legal and environmental change (Marxism, the “Release of Energy,” or the ever-popular “Tragedy of the Commons”), but leave it to the class to decide whether the facts support these approaches.
Frank Leslie's Illustrated Newspaper, Aug. 13, 1859
(from Ted Steinberg, Down To Earth (2002), 161)

Finally, using Dirk Hartog’s classic article "Pigs and Positivism" (1985) as our theoretical starting place, I try to shift the conversation away from sharp lines between “law” and “custom” and toward questions about nature and power. As a result, the course integrates topics, such as labor history or the role of gender and race in shaping law, that ordinarily get left out of environmental history courses focused on land use, pollution, and resource extraction. It also leaves space to discuss non-elite views of law and nature.

In an upcoming post, I’ll write about some of the topics discussed in the class and the theoretical and practical problems of teaching them.

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