Dirt lawyering and environmental history

(Adam Wolkoff's third post on teaching the history of law and the environment. Links to the rest of the posts are here.)

One of the hardest things about switching from the discipline of history to the study of law is learning how to slow down. Undergraduate and graduate history students read hundreds of pages a week, learning to analyze a monograph or article by figuring out its main arguments and reviewing its evidence to see if those claims hold up. They also become adept at synthesizing large bodies of historical literature to better situate the primary and secondary sources they read into those frameworks.

These skills should translate well into law school and to the categorical reasoning it purports to teach. But law school is not a BarBri cram course. Yes, students obsess over their outlines before final exams, trying to fit everything they’ve learned into a logical framework so they can be ready for the absurd fact patterns their professors throw at them. Yet an effective legal outline describes the relational quality of law, rather than a set of black letter certainties. Law students learn that every transaction presents a moment of legal possibility, in which the doctrine accepted as law in the past intersects with the understandings of the parties in the present and their beliefs about what a judge, jury, or the wider community might say in the future.

Contingency makes for compelling history, too, challenging the impulse of many writers and lecturers to produce deterministic narratives about the past. But it also fractures the story, producing histories that can deny the realities of structural power, or give too much authority to specific events or actors. Think about the history books that actually sell at Barnes & Noble: One (month or secretary of state or hockey goal) That Changed the World.

Undergraduate classes teaching law and environmental history can draw on this creative tension to give students new ways of seeing the nature and the built landscape. I’ve always related to the experience that William Cronon describes in his prologue to Nature’s Metropolis of growing up looking out the car window as the landscape shifted from the crowded, polluted, and artificial city to the bucolic countryside. “One of the pleasures of childhood and adolescence,” he writes, “is that one can experience emotions of this sort without worrying too much about their possible contradictions.” By giving students a grounding in the laws and practices underlying these landscapes, we not only dispel the illusory walls between urban and rural, nature and artifice, but help them understand the legal devices that define them.

It’s teaching the art of what real estate practitioners call “dirt lawyering,” helping students see

Air and ground rights
Marcel Breuer's proposed Grand Central tower (1968)
Breuer Papers (Smithsonian)

the principles underlying the landscape and the events that put those rules to the test. Nearly every class I teach seems to begin with drawing that square that property professors call Blackacre. It’s our platform for understanding what novel impositions people brought to the landscape in each era and how they contested them through formal and informal means. For the curious, it’s a skill that helps solve the mysteries of everyday life and its inequalities. “Why are there so many chemical companies and refineries in North Jersey?” my students asked. “Why are there no Whole Foods in Newark?” “Why don’t brownfields get cleaned up?” Even for those who never plan to be activists, teachers, or lawyers, “dirt lawyering” will be there whenever they sign a lease, build a fence, or look out their front windshield.