Friday, January 31, 2014

Product liability law

Jay Feinman and Caitlin Edwards have posted an article on the history of manufacturers' liability, and area of law related to environmental law: "Henningsen v. Bloomfield Motors, Inc. (1960): Promoting Product Safety by Protecting Consumers of Defective Goods". The abstract:
New Jersey Law Reports
Safety recalls, child-safe toys, and other consumer safety protections are taken for granted today, but there was a time not so long ago when everyday products were dangerous and consumers who were injured by cars, toys, or other products faced a difficult road to recover compensation from manufacturers. About fifty years ago all of this changed, drastically and in a short period of time. The catalyst for this dramatic change was an unlikely source — a woman from Keansburg, New Jersey, who was injured when her new Plymouth sedan suddenly veered into a brick wall. When she initially sued the dealer who had sold her the car and Chrysler, the manufacturer, the state of the law posed roadblocks to her recovery. The New Jersey Supreme Court recognized that change was needed and issued an opinion — Henningsen v. Bloomfield Motors, Inc. — that quickly would change the world of products liability and consumer protection.

Tuesday, January 28, 2014

Colorado and Israeli water law

If you'll be in the Denver area this week, you might be interested in the Colorado Water Congress Annual Convention, at which I'll be speaking twice.
Elwood Mead was an influential figure in the development
of Colorado water law in the 19th century,
and in Palestine and Israel in the 20th

This Wednesday afternoon I'll be speaking on "How Colorado Water Law Came to Israel", where I'll talk about how the legal rules and principles developed in nineteenth-century Colorado influenced policymakers around the world, why the British rulers of Mandate Palestine looked to the western U.S. for a model of water law, and Zionist attitudes to the importation of this model into Palestine and then Israel.

On Thursday evening I'll be giving the keynote presentation at the CSU Water Resources Archive "Water Tables" event, where I'll talk about my book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier (Yale UP, 2012).

Sunday, January 19, 2014

Roman-Dutch law and subsurface resources

Hanri Mostert and Hugo Meyer Van den Berg have posted "Roman-Dutch Law, Custodianship, and the African Subsurface: The South African and Namibian Experiences", a chapter from a forthcoming edited volume on the law of energy underground. From the abstract:
The legal heritage of Southern Africa provides interesting perspectives on the... history and present status of laws governing energy resources in different legal families. Common Law and Civil Law approaches to subsurface resource regulation will be sketched in the [other] contributions [in the book]. The "mixed" legal family to which South Africa, Namibia and Botswana belongs, crosses over the common law/civil law divide; to provide for the regulation of subsurface resources in peculiar and often anomalous ways. The reason for this mix is found in the bipartite colonial history of the region.
Our contribution is limited to a study of one particular African perspective on subsurface resource regulation: that of Southern Africa. Here the development of a mixed legal tradition has been most pronounced, because of the region’s particular colonial history. In this chapter, we examine the proprietary principles on which the law relating to subsurface regulation is based, referring particularly to differences in the reception of Roman-Dutch law due to different colonial histories. Our main focus is South Africa and Namibia, although we include superficial references to Botswana. In undertaking this analysis, we are particularly interested in the role that legislative regulation and policy changes have played to amend or substitute Roman-Dutch law rules. This line of inquiry may assist in determining whether the peculiar roots of the mixed legal family investigated here remain influential in current law and practice regulating the subsurface.
We contrast the legacy of Roman-Dutch law in South Africa, Namibia and Botswana, discussing basic tenets of subsurface ownership from the Roman-Dutch law perspective, and tracing the influence that colonialism and constitutionalism had on the development of the legal system as it pertains to the subsurface.

Thursday, January 16, 2014

The Cold-War origins of the "Value of Statistical Life"

One of the most contentious issues in recent academic debates over environmental law and policy is the monetizing by policy tools such as cost-benefit analysis of values--such as the value of life--that many argue cannot be monetized. H. Spencer Banzhaf's recently posted "The Cold-War Origins of the Value of Statistical Life (VSL)" has a historical take on the origins of the methodology. The abstract:
from Mother Jones
This paper traces the history of the "Value of Statistical Life" (VSL), which today is used routinely in benefit-cost analysis of life-saving investments. Schelling (1968) made the crucial move of thinking in terms of risk rather than individual lives, with the hope to dodge the moral thicket of valuing "life." But as recent policy debates have illustrated, his move only thickened it. Tellingly, interest in the subject can be traced back another twenty years before Schelling's essay, to a controversy at the RAND Corporation following its earliest application of operation research to defense planning. RAND wanted to avoid valuing pilot's lives, but the Air Force insisted they confront the issue. Thus, the VSL is not only well acquainted with political controversy; it was born from it.

Tuesday, January 14, 2014

The Valencian water court

The Bulletin for Spanish and Portuguese Historical Studies has posted "Water as a Collective Responsibility: The Tribunal de las Aguas and the Valencian Community", by Julia Hudson-Richards and Cynthia Gonzales. (Thanks to Lior Ben David for bringing it to my attention.) The abstract:
Bernardo Ferrándiz, Tribunal de las Aguas (1865)
The Tribunal today
In this article, we argue that the Tribunal de las Aguas, historically part of a larger complex of irrigation communities, provides a foundation for an alternative model of water management, and has survived for over a thousand years precisely because it answers the community’s needs, and contributes to Valencian regional identity. As research has recently shown in African cases, providing education, infrastructure, and management opportunities to local communities helps to encourage both sustainability and direct involvement in water distribution, contrary to the impersonal distribution characteristic of privatized systems. The Tribunal de las Aguas has transcended tremendous political, social, and economic change in Spain in general, and Valencia in particular, and remains an important facet of local identity. As water issues become more and more pressing in the face of climate change, pollution, and seemingly insatiable demand, we will need to find more creative and innovative ways to address the often conflicting demands on this most valuable resource. Furthermore, the gendered aspects of water rights and distribution continue to play such a significant role in our global water cultures, and our article will contribute to a larger discussion of women’s roles in irrigation and water use in different historical contexts.

Sunday, January 12, 2014

An economic view of the history of suburban sprawl

Economist William Fischel has posted "Optimal Suburban Densities: History and Theory", advancing an explanation of why suburban areas have sub-optimal densities. The abstract:
Greg Davis, Wires in West Acton Center
A paradigmatic developing suburb, Acton, Massachusetts, was zoned in 1955 to produce a community of 45,000 people. In 2010, Acton had about 23,000 people and is unlikely to grow much more. I develop a simple model in the Tiebout (1956) tradition to explain why Boston's suburbs, and by extension, most suburbs, have adopted land-use regulations that are arguably too restrictive. The baseline model is that of a single developer who owns all the land in a community and commits herself to a master plan. Private covenants assure that the community will be fully developed, and competition among community developers creates at least locally optimal densities. This outcome is contrasted with a model in which undeveloped land is owned by many developers, who must coordinate their land-use decisions by way of public zoning. Their initial zoning plan is disciplined by the wariness of prospective homebuyers, who decline to buy homes in towns without zoning. New homeowners, however, realize that developer control of zoning could lead to changes that will result in excessive density. As enough of them arrive, they take over the reins of zoning to avoid overdevelopment. 
In a stable housing market, I show that a system by which all homeowners pay for community services by property taxes plus exactions or impact fees for later, higher-cost development leads to the same optimal outcome as a private developer. Finally, I argue that an exogenous shift in housing demand, such as that caused by unexpected inflation in the 1970s, and the (perhaps endogenous) adoption of extra-municipal regulations, is apt to cause all zoned communities to adopt additional restrictions. These can be modeled as if the town acquired a monopoly on development rights because other towns simultaneously limit growth. Acton and all of Boston's suburbs and those of other high-productivity metropolitan areas end up with populations that are arguably too small and housing prices that are too high.

Saturday, January 11, 2014

ASLH 2014

The American Society for Legal History will be holding its next meeting November 6-8, 2014, in Denver, Colorado (see here for a report on the 2013 meeting). The deadline for submitting proposals is March 1.

Shira Shmuely has put out a notice on the Environment, Law, and History list (see the right side of this page to sign up) looking for anyone interested in joining a panel on plants or animals in legal history--you can contact her at sshmuely [at]

You can post your own message looking for panelists at

Thursday, January 9, 2014

Animals on trial

By way of Juris Diversitas, I came across Nicholas Humphrey's "Bugs and Beasts Before the Law" on The Public Domain Review. Discussing The Criminal Prosecution and Capital Punishment of Animals by E.P.Evans (1906), Humphrey writes:
Evans’ book details more than two hundred such cases: sparrows being prosecuted for chattering in Church, a pig executed for stealing a communion wafer, a cock burnt at the stake for laying an egg. As I read my eyes grew wider and wider. Why did no one tell us this at school? Why were we taught so many dreary facts of history at school, and not taught these?
We all know how King Canute attempted to stay the tide at Lambeth; but who has heard, for example, of the solemn threats made against the tides of locusts which threatened to engulf the countryside of France and Italy? The Pied Piper, who charmed the rats from Hamelin is a part of legend; but who has heard of Bartholomew Chassenée, a French jurist of the sixteenth century, who made his reputation at the bar as the defence counsel for some rats? The rats had been put on trial in the ecclesiastical court on the charge of having “feloniously eaten up and wantonly destroyed” the local barley. When the culprits did not in fact turn up in court on the appointed day, Chassenée made use of all his legal cunning to excuse them. They had, he urged in the first place, probably not received the summons since they moved from village to village; but even if they had received it they were probably too frightened to obey, since as everyone knew they were in danger of being set on by their mortal enemies the cats. On this point Chassenée addressed the court at some length, in order to show that if a person be cited to appear at a place to which he cannot come in safety, he may legally refuse. The judge, recognising the justice of this claim, but being unable to persuade the villagers to keep their cats indoors, was obliged to let the matter drop.
The outcome of these trials was not inevitable. In doubtful cases the courts appear in general to have been lenient, on the principle of “innocent until proved guilty beyond reasonable doubt”. In 1587, a gang of weevils, accused of damaging a vineyard, were deemed to have been exercising their natural rights to eat – and, in compensation, were granted a vineyard of their own.

Wednesday, January 8, 2014

Precaution in US environmental law

Robert Percival recently posted "Risk, Uncertainty and Precaution: Lessons from the History of US Environmental Law", discussing, among other things, the history of the precautionary approach in American environmental law, including its acceptance by some federal courts in the 1970s. The abstract:
The DC Circuit Court of Appeals upheld the EPA's
precautionary standard limiting gasoline lead
in Ethyl Corporation v. EPA (541 F.2d 1 (1976))
Globalization and expanding world trade are creating new pressures to harmonize environmental standards. Countries increasingly are borrowing legal and regulatory policy innovations from one another, moving toward greater harmonization of regulatory policies. Regulatory policy generally seeks to prevent harm before it occurs, but the reality is that it usually has been more reactive than precautionary, responding only after harm has become manifest. As regulators seek to improve their responses to new and emerging environmental risks, it is useful to consider what lessons can be learned from past experience with regulatory policy. This chapter reviews controversies over regulatory policy through the lens of history. It discusses the precautionary principle and why it is valuable even if it does not purport to answer the question of how stringent regulatory policy should be. It also considers recent studies that assess whether regulatory policy is more precautionary in the United States or the European Union [see, e.g., here] and why it is difficult to make confident, comparative conclusions. The chapter then examines the history of how precaution has been incorporated into U.S. environmental law. It demonstrates that, despite the law’s promise to prevent harm before it occurs, regulatory policy has been largely reactive, concentrating primarily on highly visible problems only after harm has become manifest. After reviewing the state of contemporary regulatory politics in the U.S., the chapter concludes by analyzing lessons that can be learned to improve future regulatory policy.

Sunday, January 5, 2014

The hidden histories of environmental law

Thanks to the Legal History Blog and Slate's "The Vault", I came across "The Roaring Twenties", a digital history site self-described as "an interactive exploration of the historical soundscape of New York City". The site has historical newsreel footage of all kinds of loud noises from early twentieth-century New York, along with published materials and hundreds of original documents from the municipal archives relating to noise complaints (see the explanation of sources under "Info"), all organized by date, by type of noise, and accessible by location on a historical map of the city. In addition to the material on noise, other environmental issues pop up as well, such as in a 1930 video of a staged confrontation between two boys over a banana peel thrown on the sidewalk in Manhattan's Lower East Side (check it out for its great accents and slang). (And if you want to understand why New Yorkers for years turned their back on their waterfront, watch some movies of tugboats and other watercraft at work.)
New York City Smog, Nov. 1966

The website is a good illustration of the masses of historical materials on environmental regulation that have yet to be explored and of some of the blinders that have limited research into pre-1970 environmental law. These types of limitations have been recognized for decades by legal historians as methodological obstacles that need to be overcome, yet they continue to plague study of environmental-legal history:

First, there is the issue of terminology. The environmental issues exposed by "The Roaring Twenties" site were not necessarily cataloged under "environment" or "pollution", but rather under issues such as nuisance, sanitation, public health, smoke, noxious vapors, and cleanliness. This kind of terminological disconnect can cause legal developments with deep historical roots to appear as if they sprouted from nowhere.

Second, there is the issue of scale. As in the case of the New York City materials documented by the website, much environmental regulation took place (and still does) at the level of sub-national governments, making it invisible to historians focused on developments at the national level.

Third, there are the interrelated issues of what counts as law, what sources are legal sources, and what legal sources are studied. The city documents reproduced on the website consist largely of complaints to city officials and their responses. The documents indicate that in some cases the complaints resulted in legal action in the courts (typically lower courts whose decisions are difficult to access and often overlooked by legal scholars), but in many (perhaps most) cases they resulted in action by administrative officials such as a letter to the creator of the nuisance, a visit by inspectors, and the like. These kinds of enforcement activities are often ignored by students of the law, yet they are arguably legal actions par excellence, whether as actions taken under color of law, or as law in action creating a normative reality that governed behavior and expectations.

For instance, the website has this to say about a 1933 complaint by Mr. D. Friedman of Atlantic Avenue in Brooklyn about noise from a nearby factory:

Wednesday, January 1, 2014

A Half Century of Federal Environmental Law?

Dan Farber's post at Legal Planet, "Celebrating A Half Century of Federal Environmental Law!", is a welcome opportunity to kick off 2014 on our blog with some thoughts on when environmental law began. Farber writes (links added):
Later in this year, we will celebrate the fiftieth anniversary of the first modern environmental statute, the Wilderness Act of 1964.  NEPA followed five years later and then in quick succession came the creation of EPA, a slew of laws regulating pollution and toxics, the Endangered Species Act, and reforms of public lands laws.
It’s been a tumultuous half century — think Anne Gorsuch Burford, Newt Gingrich, and Tea Party.  Yet, at the end of fifty years, the major environmental laws are still there, accompanied by thousands of pages of regulations and judicial opinions.  Opponents of regulation may still target EPA but their main fire has been concentrated elsewhere, on the Affordable Care Act.  In the meantime, a burst of new EPA regulations is on the scene, some of them addressing climate change for the first time.
Age is no guarantee of longevity.  But the past five decades suggest that environmental law is here to stay and is likely to keep getting stronger.
Paul Magill discussing the smog on Black Friday in Los Angeles
at the first National Air Pollution Symposium in 1949
Farber's post (his position is developed further in a recent book review) joins recent articles looking back on the last few decades of US environmental law. But was 1964 (or 1970) really the founding moment of modern environmental law, federal or otherwise? In what way can the Wilderness Act be said to have been the first "modern" environmental statute? Karl Boyd Brooks's Before Earth Day: The Origins of American Environmental Law, 1945–1970 (Kansas, 2009) pushes the story back to 1945 and before, and many others have been doing valuable work on various aspects of environmental law before the 1960s and '70s.

Much remains to be done, including explaining what--if anything--changed around 1964 or 1970 in environmental law. Please write in or comment with thoughts and suggestions for further reading and research!

100th post!: A historical perspective on the IPCC

Over at Environmental History Resources, Exploring Environmental History has a podcast on "The IPCC's Fifth Assessment Report: a historical perspective" (Podcast 54, 3 October 2013):
On 27 September 2013 the The Intergovernmental Panel on Climate Change (IPCC) published its highly anticipated summary for policymakers, in advance of its fifth assessment report that will be published in early 2014. This special episode of the podcast, explores briefly the origins of the organisation that produced this landmark report and, in more detail, the difficult international negotiations that have used the IPCC’s findings since its inception. This historical overview ends with the question whether we can learn anything from previous problems of atmospheric pollution, in this case the Great London Smog and the ozone hole, to tackle global warming.
The podcast concludes with a brief interview of historical climatologist Dagomar Degroot and his response to the summary of the fifth assessment report from the perspective of climate history.
Of less historic import, not only is this the last post of 2013--it is also the 100th post of the Environment, Law, and History Blog, which went online last May. Thanks for reading, please send in news and information, and please let me know if you're interested in writing!