Friday, July 28, 2017

Inter-imperial riparian law V: Encounters of legal empires in Miner?

Yesterday I discussed why American water law may have been attractive to judges applying French law in Canada. Today we move the focus back to London and the Privy Council:

The reliance by counsel in Miner v. Gilmour on American sources for a question of French law, along with the court’s conflation of the French law and the common law (discussed in Part III of this series), would seem to be a faithful expression of the water law of Canada East, with its own heavy reliance on American sources and blending of the French law and common law, often by way of citing those same American sources.

W. Holman Hunt, The Right Hon. Stephen Lushington (1862)
(Victorian Web)
Moreover, the incorporation of the civil law into the common law of waters and the export of this mélange throughout the common-law world might be seen as the product not only of a one-time encounter with the law of Canada East in Miner v. Gilmour, but of an ongoing engagement with this odd jurisdiction, at once an integral part of the ascendant British Empire and the offspring of the old French Empire. Thus we find the Lower Canada case of St. Louis v. St. Louis, discussed earlier for Chief Justice Sewell’s use of Kent as authority for a point of French law, making its way to the Privy Council in 1841. The judge who delivered the judgment of the Judicial Committee, Stephen Lushington, a prominent and knowledgeable English civilian lawyer (he was a judge on ecclesiastical and admiralty courts, enclaves of civil law in the English legal system), was also a member of the panel that decided Miner v. Gilmour. Might the bold statement of the court in Miner, according to which riparian rights in the common law were essentially the same as in the civil law, have been influenced by Lushington’s exposure to precisely this attitude by the American-Canadian judge Sewell in St. Louis?

Sewell’s view in St. Louis may have influenced the common law of waters through yet another route, as well. Sitting alongside Lushington on the Judicial Committee to hear the appeal of Sewell’s judgment in St. Louis v. St. Louis was James Parke, the dominant judge on the English Court of Exchequer. Within the decade, his court decided two cases—Wood v. Waud and Embrey v. Owen—which were the first English cases to adopt the American law of riparian rights, relying heavily on Kent, Tyler v. Wilkinson, and French sources.  Could the Lower Canada case of St. Louis v. St. Louis have made an impression on Baron Parke, leading his court to base modern English riparian law on French and American sources?

Here we encounter a methodological difficulty—distinguishing between inter-imperial influences on the one hand, and transnational influences of the ‘ordinary’ kind, between two national jurisdictions, whether imperial metropolises or not, on the other. Put more concretely, was the intermixture of the laws of the old French Empire and the new American one in the courts of the British Empire a true inter-imperial encounter? Or might it be better conceived of as a case of British judges being influenced by the laws of France and the United States, two national jurisdictions the laws of which they were inclined to consider by factors such as geographic proximity, cultural affinity, common legal origins and the availability of law books, independently of their crossed imperial histories?

Thursday, July 27, 2017

Inter-imperial riparian law IV: The attraction of American law

Yesterday I discussed the extensive use water law judicial decisions in the courts of Lower Canada, with its pre-revolutionary French property law, made of American sources. Today I discuss why they may have looked to a jurisdiction that had never belonged to the old empire from which the local law derived, and no longer belonged to the new empire of which Canada was now a part.

 Hon. Justice T.C. Aylwin (Library and Archives Canada)
In his dissent in the 1859 case of Boswell v. Denis Judge Aylwin indicated one reason why Canadians may have preferred American law over French in some cases. According to French law, a ‘navigable and floatable’ river was a public one, in which the public enjoyed rights that could not be impaired by the riparian owners. As the river in question in Boswell, the Jacques-Cartier, contained rapids and was therefore not ‘navigable’ by boat traffic, the majority of the court straightforwardly applied the French test and ruled that it could not be considered a public river. Aylwin objected to this analysis: ‘Our rivers cannot be compared with those of France or Europe; the Jacques Cartier is a good sized river and has plenty of water,—it has rapids it is true, but […] I believe the river to be both navigable and flottable.’ Following a tradition going back to Montesquieu and further, Aylwin argued that French law could not apply unmodified in North America, as it was developed for a different set of environmental circumstances. Similarly, in a 1905 case Justice Trenholme of the Quebec King’s Bench noted that American authorities on the question of navigability ‘possess more than ordinary interest for Canadian Courts, as the conditions there were and are precisely like those in our country’.

Yet it seems this was not the only reason for Canadians’ turn to American water law. Returning to Brown v. Gugy, it is significant that the American case which Judge Aylwin preferred over the lower court’s ruling was from Louisiana, the only American state which based its legal system on (French) civil law. Moreover, Kent’s discussion of water law (like his discussions of many other subjects) was replete with references to civilian sources. In the pages quoted in Aylwin’s opinion (sections 6 and 7 of Kent’s Lecture 52), the American jurist cited a large number of American and English cases, as was appropriate for a work purporting to be a commentary on American law, but his very first citations were to civilian sources: Justinian’s Digest, Pothier’s Traité du Contrat de Société and Toullier’s Droit Civil Français. Later in the section, he cited again to Pothier, quoted with approval a maxim of Roman law and stated that the Code Napoléon established the same rule as said maxim.

Later commentators have divided as to what extent Kent’s use of civilian sources was substantial or rather mere window dressing, with Alan Watson arguing that Kent’s use of the Roman and French sources in the section cited above was riddled with errors and that it provided little support to his exposition of riparian rights.  Nonetheless it seems that Judge Aylwin saw Kent as a good civilian source, prefacing his long quote from the Commentaries thus:

Wednesday, July 26, 2017

Inter-imperial riparian law III: American sources of French-Canadian water law

Continuing where yesterday's post left off:

Canada’s broad St. Lawrence River and its tributaries were the sites of intensive water use in the mid-nineteenth century. They served as fishing grounds, highways for water craft, conduits for floating logs and sources of power for both traditional grist mills and new industrial facilities. Uses and users often came into conflict, and these conflicts often landed up in court.

Jonathan Sewell
(Appleton's Cyclopaedia of American Biography, 1900)
The earliest fully reported case of this type was the 1832 case of Oliva v. Boissonnault. James Oliva sued Nicolas Boissonnault in the court of King’s Bench, District of Quebec, for placing obstructions in the Rivière du Sud, blocking the floating of logs downstream to the St. Lawrence. Chief Justice Jonathan Sewell ruled for Oliva, explaining that under French law the public had a right of passage on every stream capable of floating logs or rafts. Alongside his discussion of French law, he noted that the public’s right was the same in England and America, citing Kent’s Commentaries with regard to the latter. Two years later St. Louis v. St. Louis, another water law dispute, reached the courts. This time the case involved a riparian landholder diverting water through a canal to his sawmill so that it bypassed the gristmill and carding and fulling mill of his downstream neighbours. Sewell, sitting this time in the Provincial Court of Appeals, again cited Kent, here in support of the proposition that a riparian landowner might ‘conduct such portion of the stream as he requires for the amelioration of his - property by canals or otherwise through the extent of the land which he occupies, but he must return it to the stream before it reaches the confines of his neighbour’s estate’.

Tuesday, July 25, 2017

Inter-imperial riparian law II: The Law in Miner v. Gilmour

Continuing where yesterday's post left off:

As the judges of the Privy Council recognized, the law governing the conflict between Miner and Gilmour over the waters of the Yamaska was not English law. Quebec, before being conquered by the British in 1760, had been part of the French Empire. A royal edict of 1663 had declared the law of New France to be the law as applied in the Parlement of Paris.  This law included royal ordinances, Roman law as expounded by jurists, and the sixteenth-century official collection of the customary law of Paris known as the Coutume de Paris. The Quebec Act of 1774, passed by the British Parliament a few years after the British conquest of Canada from France, declared that the laws of property existing in the province of Quebec pre-conquest would remain in force under British rule.

The water law applicable to the case at hand was thus the law of the old French Empire, that is to say the law of ancien régime Paris, ironically no longer in force in France itself after the adoption of the Napoleonic Code in 1804, but preserved in British colonies that had been conquered from the French. Indeed, the lawyers arguing the case before the British court in Westminster cited the civilian Digest of Justinian, the great French scholar Pothier and said Custom of Paris.
Sitting of a Judicial Committee of the Privy Council
(Illustrated London News, vol. 8, no. 206, 11 April, 1846, p. 1)
The encounter between French and English law did not end with this infusion of French imperial law into a British imperial courtroom, nor with its application by British judges at the seat of imperial power. Despite the lack of formal authority for English common law in the civil-law jurisdiction of Canada East, the lawyers for Miner and Gilmour before the Privy Council cited not only the civilian sources mentioned above, but also recent English case law on the subject of riparian rights. The judges of the Judicial Committee were impressed with the ‘great learning and ingenuity’ displayed by counsel, and scheduled an unusual second round of oral arguments. Yet after all this learning and argument, they arrived at a surprising conclusion: ‘It did not appear that, for the purposes of this case, any material distinction exists between the French and the English law.’ According to both legal systems, the court opined, Miner could not demand that Gilmour keep the dam gate closed all the time, since a riparian proprietor had ‘no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury’.

The decision’s exposition of this and other principles of what Lord Kingsdown, writing for the court, termed the ‘general law applicable to running streams’—that is to say the law of riparian rights, according to him common to French and English law—went on to be cited extensively throughout the British Empire and beyond as the definitive statement of the rules of riparian rights in the common-law world, as will be discussed in a later post.

Monday, July 24, 2017

Inter-imperial riparian law I - Introduction: Inter-imperial law in an inter-imperial court

It seems I forgot to mention my own article when I posted it a while back. "Riparian Rights in Lower Canada and Canada East: Inter-Imperial Legal Influences" was published as chapter 4 of Imperial Co-operation and Transfer, 1870-1930: Empires and Encounters (Roland Cvetkovski & Volker Barth eds., Bloomsbury, 2015). I'll do a few posts based on the article now; for the full version, please see the book.

One of the most dynamic areas of law in the nineteenth-century Anglo-American world was that of water rights, or, as it was typically denoted then, “riparian rights”. This body of law dealt with the relative rights of owners of land adjacent to water—riparian land—to use the flowing waters, whether for power, irrigation, transportation, fishing, or waste disposal. The historical development of the law in this field in the nineteenth century has been analysed from several points of view, including economic property theory and Marxian legal history.  Transnational aspects of the subject have not been neglected, as some have highlighted the transatlantic—that is, Anglo-American—framework in which this body of doctrine developed, and others have examined the use of Continental, civil law sources by some of the American jurists responsible for that development.  Yet the inter-imperial aspect of this story, in particular the meeting of the laws of the British and French Empires, has gone unremarked.

The court case of Miner v. Gilmour can be seen as the epicentre of this inter-imperial encounter. The case began as a conflict in the 1850s between two prominent citizens of the Eastern Townships village of Granby, in the part of Canada then known as Canada East (in the half century preceding 1841 called Lower Canada, the southern part of today’s Quebec). Harlow Miner’s tannery on the south bank of the Yamaska River, the town’s major industrial enterprise, was powered by water directed from a dam in the river, but Francis Gilmour, the town’s store-keeper, had been opening a sluice on the north side of the dam in order to allow the water to flow through and power his gristmill downstream. In order to put a stop to Gilmour’s interference with his business, Miner brought a lawsuit in the Superior Court of the District of Montreal.  When the court ruled in Miner’s favour, ordering Gilmour to cease and desist diverting water away from Miner’s mill, Gilmour brought an appeal to the Court of Queen’s Bench of Canada. Here the decision went in his favour, and the court dismissed the plaintiff’s suit. Unsatisfied with this result, it was Miner who appealed this time, making use of the only remaining judicial recourse available to him, an appeal to the Judicial Committee of the Privy Council in London.

The Privy Council, an organ of the British monarchy, was for years the executive body through which British overseas possessions were governed, also hearing appeals from the courts of these colonies. In 1833, in an effort to give these appeals a more judicial character, Parliament created the Judicial Committee of the Privy Council, composed primarily of judges from other British high courts. Though formally not a court of law—the members of the committee did not wear judicial garb, they sat around a table with the parties’ counsel and their decisions were, strictly speaking, merely recommendations to the monarch, who would then issue an order giving force to the recommendation—in practice it functioned like a court, and was treated as such by all. This new judicial body was tasked with hearing appeals from overseas possessions (as well as from the British court of Admiralty and ecclesiastical courts).

The Judicial Committee, hearing cases from far-flung possessions around the globe, was an imperial institution par excellence. The nature of litigation in the common law, adversarial, system—in which the parties, not the state, generally determined if and when court proceedings would be conducted, and on what legal grounds—meant that the court’s agenda was largely shaped by the decisions of litigants in the courts below. Nonetheless the Judicial Committee’s worldwide jurisdiction, along with its judges’ parallel tenures on other British high courts, gave it a potentially harmonizing and homogenizing role; ‘The assumption was that there could be cohesion and certainty in the legal system of the Empire only if appeals could be referred up to a judicial body in London.’ (Cornish, Lobban, Smith, "Empire’s Law", p. 245)

At the same time the Judicial Committee was in effect an inter-imperial institution.

Sunday, July 23, 2017

Environmental racism, American exceptionalism, and Cold War human rights

OAS headquarters in Washington
Carmen Gonzalez recently posted "Environmental Racism, American Exceptionalism, and Cold War Human Rights". The abstract:
Environmental justice scholars and activists coined the terms “environmental racism” to describe the disproportionate concentration of environmental hazards in neighborhoods populated by racial and ethnic minorities. Having exhausted domestic legal remedies (or having concluded that these remedies are unavailable), communities of color in the United States are increasingly turning to international human rights law and institutions to challenge environmental racism. 
However, the United States has ratified only a handful of human rights treaties, and has limited the domestic application of these treaties through reservations and declarations that preclude judicial enforcement in the absence of implementing legislation. Indeed, the U.S. has generally resisted scrutiny of its human rights record by domestic or international institutions on the basis of “American exceptionalism” -- the belief that the U.S. is unique in its commitment to freedom and equality and provides more robust protection of human rights than international law. What historical events triggered this resistance to international human rights law? What are the implications for human rights-based approaches to environmental protection? 
This article explains how the struggle for racial justice in the United States at the height of the Cold War shaped U.S. attitudes to international human rights law. Using Mossville Environmental Action Now v. United States as a case study (currently pending before the Inter-American Commission on Human Rights), the article argues that international human rights law is far superior to U.S. domestic law as a means of addressing environmental injustice. However, its utility is constrained by legal doctrines developed over time but reinforced during the Cold War that restrict the enforcement of international human rights law in U.S. courts. Nevertheless, a victory for the Mossville petitioners would be immensely useful as part of a larger strategy to name and shame the United States, to bridge the gap between international law and domestic law, and to educate government officials and the public at large about the relationship between environmental protection and human rights.

Friday, July 21, 2017

Top 100 environmental blog

I'm happy to report that Feedspot has named Environment, Law, and History one of the top 100 environmental blogs. Thanks to all of you - the readers, writers, commenters, mentioners, and so on - who made it happen!

Thursday, July 20, 2017

Dutch drinking water

David Zetland and Bene Colenbrander recently posted "The Evolution of the Dutch Drinking Water Sector". The abstract:
Dutch drinking water companies (DWCs) have brought more water of better quality to more people over the past 160 years, but their institutional environment has changed with social priorities. We divide these changes into four eras in which an initial solution leads to a new constraint that forces a change in priorities and thus DWC actions. The first era begins around 1850 when polluted common pool water attracts sellers of drinking water as a private good. Priorities changed around 1900 as the government pushed for a network expansion that would bring drinking water services to all as a public good. The third era began around 1950 as strains on common-pool budgets and water supplies shifted the focus to rationalization and efficiency. The fourth and current era began around 1970 with DWCs being asked to restore ecosystems and play a larger role in the community. These shifts demonstrate how the path towards clean, safe drinking water may twist and turn as new opportunities eclipse past successes and changing priorities shift the relative costs and benefits of different actions.

Wednesday, July 19, 2017

The tobacco playbook

(Sorry for the long silence, I've been busy with some other things. As always, if you're interested in contributing posts to the blog, I'd be more than happy to help! In the meantime:)

Sarah Milov (a co-founder of this blog) recently published a piece in the Washington Post on the history of grass-roots anti-tobacco campaigns that might serve as a model for climate activism today. Some highlights:
Activists won the fight against tobacco by working on the local, not national, level. Neither the Occupational Safety & Health Agency nor the Environmental Protection Agency regulate secondhand smoke. Congress has never passed a Non-Smokers’ Rights Act. Instead, 41 states and 1,354 cities have enacted laws to protect the health of citizens. They did so in response to the sustained activism of men and women who argued that the government was not doing enough to protect their rights.
*****
In 1973, the dogged efforts of Betty Carnes, a sexagenarian amateur ornithologist, resulted in Arizona’s passage of the first law that banned smoking in elevators, museums, theaters, buses and libraries. Two years later, Minnesota passed an even more comprehensive Clean Indoor Air Act that banned smoking in many workplaces, stores, and banks.
*****
These state-focused efforts threw a wrench in tobacco’s well-oiled lobbying machine. Since the 1930s, the tobacco industry had enjoyed close relationships with tobacco-state congressmen who wielded disproportionate power in the Democratic Party coalition. And with millions to spend on well-connected Washington lawyers, the tobacco industry wielded clout with the federal agencies that had the capacity to regulate the many ways that tobacco touched Americans’ lives: as a drug, a consumer product, a pollutant, or a workplace hazard. 
...By 1981, 36 states had some kind of public smoking restrictions on the books. A decade earlier there had been none.
Action at the local level was even more dramatic — and even harder for the industry to combat. Berkeley passed one of the nation’s earliest antismoking ordinances in 1977 when it banned smoking in restaurants, but local smoking ordinances were not just for bohemians and health nuts. In 1981 alone, 35 cities passed indoor smoking restrictions, including Baton Rouge; Leavenworth, Kan..; and House Speaker Paul D. Ryan’s hometown of Janesville, Wis.
*****
In the 1970s, antismoking activists were outnumbered and underfunded. But by developing their own playbook — where cities functioned as both a site for social activism and a node of resistance against federal inaction — citizens cleared the very air we breathe. Today’s citizens now have a chance to do the same. 

Wednesday, June 21, 2017

Environmental originalism

Over at Legal Planet Dan Farber recently blogged on "The Truth About Environmental Originalism". Farber writes:
Scott Pruitt has taken to talking about environmental originalism – going back to the original intent of our environmental laws. But he’s got the original intent completely backwards. The statutes weren’t intended to protect jobs or grow the economy. They were intended to protect the environment, with cost at best a secondary consideration.
*****
In fact, some of the key provisions of our environmental laws preclude consideration of cost or even technological feasibility. For instance, the Clean Air Act requires EPA to set national air quality standards based entirely on possible risks to public health – and “with an adequate margin of safety.” As Justice Scalia himself was forced to admit in Whitman v. American Trucking Ass’n, the statute “unambiguously bars cost considerations.” In fact, he said in a footnote, EPA would be reversed in court there was proof that it secretly did take cost into account. (Pruitt might want to take note of this, given the number of leaks from the government these days.) As Scalia also recognized, these cost-oblivious air quality standards are the linchpin of the Clean Air Act. 
*****
This is not the only statutory provision that ignores costs. The Endangered Species Act prohibits agencies from jeopardizing the survival of species in absolute terms, with only a rarely used exception for extraordinary cases, requiring approval by a special cabinet-level committee. OSHA requires that standards for toxic chemicals in the workplace be set to eliminate any significant risk to workers, unless doing so would bankrupt the industry.
*****
It’s important to recognize that the federal environmental laws were passed in a time of remarkable public ferment over the environment. Don’t forget this was the era of the first Earth Day, of Rachel Carson’s Silent Spring, and of a public shocked by a fire on the Cuyahoga River and the Love Canal toxic dump. As I discuss in a recent paper, even arch-conservatives like Barry Goldwater and William F. Buckley were calling for much stricter pollution control. The public today remains broadly supportive of environmental regulation but the issue is no longer a top priority for most people. But it was an urgent priority in the 1970s when these laws were passed. The original intent was about as far away from current Republican views as humanly possible. If they could see that Scott Pruitt had become head of the EPA, the framers of these laws would have been appalled.

Tuesday, June 20, 2017

Property law and flooding

William Smyth Maynard Wolfe, “Maugerville on the St. John River, New Brunswick”
(1853/1854)
Continuing our trend on water, the Osgoode Society recently announced that Jason Hall has won its Peter Oliver Prize for best published student writing for his article, "High Freshets and Low-Lying Farms: Property Law and St. John River Flooding in Colonial New Brunswick". The abstract:
Although New Brunswick was founded on private land ownership, colonists who settled low-lying land along the St. John River found that the waterway's erratic flood cycle and ever-changing nature threatened their lives and farms, and thwarted their efforts to divide riverbanks and islands into fixed parcels of private  property. This article draws upon colonial petitions, sessional court records, and colonial legislation in analyzing the response of the colonial legislature and of local governance to the challenge that the St. John River created for property rights and a private land management system dependent on static boundaries and fixed fences. In examining the colonists' attempts to adapt property law to foster appropriate responses to their changing environment and social needs, this article provides insight into the evolution of colonial law, local governance, the ecological knowledge of farmers, social conflict, and adaptations to flooding in early New Brunswick.

Monday, June 19, 2017

Legal traditions and environmental factors in water law

Gonzalo Rodriguez recently posted "Protecting Inland Waterways: From the Institutes of Gaius to Magna Carta". The abstract:
No single factor has had a more significant effect on the ebbs and flows of history than water. Water creates civilizations, and water brings them to extinction. Even today, thousands of years after we learned to harness the power of water, we continue to struggle in determining how to prioritize competing uses of water resources, how to make water available to all who need it, and how to protect it. Yet, these are questions that humans have faced since as long as history dares to recollect.
What factors guide civilizations in their decision whether, and to what extent, to regulate and protect inland waterways? This article looks at four legal codes from three distinct civilizations: From the Romans, The Institutes of Gaius and the Corpus Juris Civilis; from the Visigoth Kingdom, the Visigothic Code; and from the English, Magna Carta. This article proposes that, perhaps more so than inherited Roman tradition, two sets of factors influenced the extent to which these codes protected inland waterways: perceptions of water resource abundance and the propensity for navigability and trade of these civilizations’ inland waterways.

Sunday, June 18, 2017

Scalia's "takings" legacy

John Echeverria recently posted "Antonin Scalia's Flawed Takings Legacy". The abstract:
This essay offers a generally negative appraisal of the significance of Justice Antonin Scalia’s work on the takings issue during his tenure on the Supreme Court. While Justice Scalia was a visible advocate for expanding the scope of regulatory takings doctrine, and his opinion for the Court in Lucas v. South Carolina Coastal Council represents an important precedent, the totality of Scalia’s takings work turned out to be relatively inconsequential. He only authored two majority opinions in takings cases during 30-plus years on the Court. No grand theory motivated his work on the issue, though he was surely sympathetic to the potential for the Takings Clause to constrain the permissible scope of government regulation. Scalia’s substantive contributions to takings jurisprudence are best understood as an effort to elaborate upon the two-part takings test articulated by Justice Lewis Powell in his 1980 opinion for the Court in Agins v. City of Tiburon. The first branch of this test, suggesting that a regulation denying economically viable use of property necessarily represents a taking, blossomed into the Lucas decision; though undeniably important, Lucas has turned out to have a relatively narrow scope. The second branch of the Agins test, suggesting that a regulation results in a taking if it fails to substantially advance a legitimate governmental interest, was repudiated by a unanimous Supreme Court, including Scalia himself, in the 2005 decision in Lingle v. Chevron USA Inc.
For more on Scalia and takings, see here.

Thursday, June 15, 2017

Property in water and urban water supply

"New" Jersey City reservoir, c. 1880
Yesterday's This Day in Water History posted an interesting story on a 1919 fine handed down to Jersey City for using too much water, but both the original report and the commentary reflect some misunderstandings. The blog quotes an editorial on "Public Control of Water" from the Municipal Journal of June 14, 1919:
Water companies and departments have appealed to consumers from time to time to restrict consumption in order to avert a water famine in the city, and meters are used largely to prevent waste; but we believe it is something new to impose a penalty for excessive consumption. As told last week, Jersey City, N. J., has been fined by the state $22,285 for using from the Rockaway river more than the 100 gallons per day per capita which had been allotted to it. 

Monday, June 12, 2017

Indian water rights, federal water rights, and state courts

Ed Mendoza of the Gila River Indian Community, Arizona (photo: Monica Almeida/NYT)
Dylan Hedden-Nicely recently posted "The Legislative History of the McCarran Amendment: An Effort to Determine Whether Congress Intended for State Court Jurisdiction to Extend to Indian Reserved Water Rights", published in Environmental Law. The abstract:
The year 1976 marked a sea change in federal policy regarding the treatment of American Indian tribes and their water rights. In that year, the Supreme Court of the United States was called upon to determine the scope of the McCarran Amendment, a rider on a federal appropriations bill that waived the sovereign immunity of the United States in state court general stream adjudications “where it appears that the United States is the owner or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise.” The Supreme Court, in what has been called a “clear example of judicial legislation,” interpreted that language to grant state court jurisdiction for the determination of Indian reserved water rights. In so doing, the Court abandoned the “deeply rooted” federal policy of “leaving Indians free from state jurisdiction and control,” and has subjected the tribes to “hostile [state court] forums in which [the tribes] must be prepared to compromise their [water right] claims.”
The purpose of this Article is to examine the legislative history of the McCarran Amendment ― the available Congressional Record, the Senate Report, as well as the Hearing Minutes ― in an effort to ascertain whether it was Congress’s intent to include Indian reserved water rights within the scope of the McCarran Amendment.
The legislative history indicates that “the McCarran Amendment was meant to be interpreted narrowly, not broadly.” It demonstrates that the Senators’ actual concern had not to do with federal reserved water rights but instead that the United States, acting in a proprietary rather than sovereign capacity, had been acquiring an ever-increasing number of state law water rights but was refusing to enter state court proceedings to either adjudicate or administer those rights. As the presence of the federal government increased in the river basins of the West, the proponents of the McCarran Amendment became increasingly alarmed that federal claims of sovereign immunity would effectively preclude state courts from enforcing state water law, thereby causing “the years of building the water laws of the Western States . . . [to] be seriously jeopardized.”
Far from a general waiver, the legislative history reveals that the sponsors of the McCarran Amendment intended to address only this narrow but politically explosive problem where the United States was claiming a “privilege of immunity that the original owner wouldn’t have.” Indian reserved water rights, which are reserved by the federal government in its sovereign capacity for the benefit of Indian tribes that have sovereign immunity independent of the United States, do not appear to have been considered or intended to be included by Congress as the McCarran Amendment was passed into law.
For more on Indian water rights, see here.

Sunday, June 11, 2017

Water law and apartheid

The latest Water History has an article by Johann Tempelhoff, "The Water Act, No. 54 of 1956 and the first phase of apartheid in South Africa (1948–1960)". The abstract:
After the formation of the Union of South Africa in 1910 the government department responsible for water governance, in terms of the Irrigation and Conservation of Water Act, No. 8 of 1912 went by the name of the Department of Irrigation. In 1956, when the Water Act, No. 54 of 1956, was passed its name changed to the Department of Water Affairs. The new legislation marked the beginning of a new era in South Africa’s water governance. The focus of the department shifted from irrigation infrastructure and bulk water governance responsibilities, to make an important contribution to the country’s social and economic development. Priorities of the day included the need for more comprehensive water infrastructure for industrial development; the greater demand for water in the country’s rapidly growing urban areas; and taking steps against the increasing threat of water pollution. In this paper the focus is on the way the department, in terms of the Water Act of 1956, responded to the policy of separate development (apartheid), but at the same time took a deeper and long-term view of the development of water infrastructure to be of value for the country and its people, beyond the shorter temporal view of the political leaders of the day. The period 1948–1960 can be seen as the first phase of apartheid (1948–1960). It was notable for the initial emergence of significant opposition amongst the country’s indigenous African people to the white minority government’s apartheid policies, but their struggle was subdued. This phase came to an end at a time when the rest of Africa was engaged in rapid decolonisation and South Africa became politically ostracised in the international arena. What is apparent is that the emergent hydraulic mission of industrialisation promoted unsurpassed development that was destined to have a marked effect on South Africa’s status as a modern state on the African continent.

Friday, June 9, 2017

Unraveling the racial context of property rights

Joseph Singer recently posted "Indian Title: Unraveling the Racial Context of Property Rights, or How to Stop Engaging in Conquest", an article relevant, I think, to those engaged with the history of law and the environment. The abstract:
John Marshall
The case of Johnson v. M'Intosh, 21 US 543 (1823), is taught in many property law classes and is the only information given to new law students about the property rights of Indian nations. However, the case is often misunderstood as denying title to those nations. A close reading of the opinion, in light of three later cases decided in the early 19th century, reveals that the Supreme Court intended to recognize "Indian title" while granting the United States a right of first refusal if tribes sought to sell property on the open market to non-Indians. Far from denying tribal property rights, Justice Marshall's opinion in this case, as explicated by later cases, actually sought to protect tribal title from expropriation by the United States unless the tribes voluntarily consented to the transfer of land.
While it is true that the opinion contains offensive and racist language, assumptions, and arguments, it is important not to ignore the ways in which the opinion sought to criticize, as well as justify, conquest and to put a halt to it in the future. Of course, history did not turn out that way but it did result in our current reality where conquest was incomplete. There are 567 federally-recognized Indian nations in the US and if property law professors teach students that conquest was complete and that tribes have no property rights in their land, those messages have current consequences for tribes trying to exercise sovereignty and property rights today. The truth is that Indian nations have both sovereignty and property rights over their lands and they do not have a mere license or "permission from the whites to occupy" (as the Supreme Court suggested in the 1955 case of Tee-Hit-Ton v. United States).
Both property law professors and scholars of federal Indian law should understand both the offensive racist reasoning in the decision and the ways in which the opinion represents one of the most pro-Indian nation decisions in the history of the Supreme Court. Treating the opinion as simply a racist relic of the past, like the Dred Scott decision, and nothing more, deprives Indian nations of the ability to use the case (and later cases like it) as a bulwark against further non-consensual deprivation of tribal property rights. And such a misreading of the case infects current politics by suggesting that tribes are being unreasonable when they seek to have their property rights be given equal respect to the property rights of non-Indians.
The importance of recognizing that federal law does protect tribal title can be seen easily if one simply considers the Standing Rock Sioux's opposition to a pipeline that threatens their ancient lands—lands that are currently protected both by tribal law, a treaty with the United States, and federal statutes and common law. Understanding Indian title as an estate in land that is every bit as powerful as the fee simple—as equally "sacred" in the words of the Supreme Court—is the message we should be sending to new lawyers, not the opposite.

Monday, June 5, 2017

The Pope, the Archbishop, and the Poet

(A little off the beaten path for this blog, but--despite the title--not a joke.
Thanks to Bruce Huber, John Langbein, and Shai Wozner for introducing me to the sources in this post.)

I. The Pope

Last year I was fortunate to be invited by Bruce Huber to participate in a great little conference on Pope Francis's encyclical on the environment, Laudato Si'. The conference and reading the encyclical got me thinking about the relationship between law, religion, and urgent matters of policy (such as the environment and social justice), with some help from a classic source in English legal history courses (see below). More specifically, it got me thinking about the relative absence of law in contemporary discussions of religion and the environment, exemplified by Laudato Si'.

Reading the document with legal eyes, one thing that caught my attention was the essentially legal argument that the Pope makes about the responsibility of privileged classes and nations towards those less fortunate. Put simply, Francis argues that the earth's resources are the common property of humankind, and that disproportional exploitation by some creates a debt towards those who have benefited less from the common property:
Whether believers or not, we are agreed today that the earth is essentially a shared inheritance, whose fruits are meant to benefit everyone. For believers, this becomes a question of fidelity to the Creator, since God created the world for everyone. (93)
The natural environment is a collective good, the patrimony of all humanity and the responsibility of everyone. If we make something our own, it is only to administer it for the good of all. If we do not, we burden our consciences with the weight of having denied the existence of others. (95) 
The climate is a common good, belonging to all and meant for all. (23)

Sunday, June 4, 2017

State-federal relations and American antienvironmentalism

Youngstown Sheet and Tube Company’s Campbell Works, Youngstown, Ohio (c. 1960)
Ohio Valley History recently published Allen Dieterich-Ward's "'We’ve Got Jobs. Let’s Fight for Them': Coal, Clean Air, and the Politics of Antienvironmentalism". From the introduction (notes omitted):
Narrating the history of the environmental opposition has grown in importance over the past four decades as the rapid expansion of environmental laws gave way to a conservative antienvironmental movement determined to roll back policies seen as challenging older legal imperatives and in conflict with economic goals. Since the 1980s, first journalists and then historians have focused on the back and forth of environmental policymaking. The basic narrative is of an environmental backlash, which began in the mid-1970s in western states—the Sage Brush Rebellion that formed one of the conservative pillars in Reagan’s coalition. By the 1990s, protests over tightening federal land regulations coalesced ideologically into the wise use movement, which purported to be a modern update of Progressive Era practices (conservationist Gifford Pinchot coined the term “wise use” in 1910). As environmental politics became increasingly partisan, resurgent Republicans in Congress, such as Idaho’s Helen Chenoweth, Tom Delay of Texas, and Alaskan Don Young seized on the principles of wise use and made rolling back environmental regulations key to their “Contract with America.”
The Sage Brush Rebellion narrative provides a compelling shorthand for journalists and historians alike and is doubtless accurate in describing one element of the rise of the environmental opposition. However, the broader narrative of a grassroots backlash prompted by the relative liberalism of the 1970s has recently faced criticism by scholars who point out the ways this framework can mask the purposeful top-down strategies of powerful elites seeking policy wedges to divide the Democratic political coalition. Further, the regional focus of the Sage Brush Rebellion poses the same problems for the story of antienvironmentalism as the overemphasis on the American West that has often characterized scholarship on the environmental movement. While western concerns about federal land ownership sometimes dovetailed with fears among eastern politicians, industrialists, and blue-collar workers about the effects of environmental regulation on jobs, the latter proved at least as decisive in shaping the political landscape as conservationists within the Republican Party were first sidelined and then largely eliminated on the national level. The saga of the spotted owl and old-growth forests in the Pacific Northwest, after all, cannot fully serve as a stand-in for battles over algae blooms in Lake Erie or acid rain in the Ohio Valley and New England. In industrial cities like Gary, Indiana, and Cleveland, Ohio, opponents of environmentalism seized on plant closures as proof positive of their concerns about privileging “clean air and pure water” over “jobs and continued economic progress.” 

Wednesday, May 10, 2017

Lessons from tobacco for the future of climate change liability

The law surrounding the health effects of tobacco are an important precedent for many environmental law issues (see here and here). Now Martin Olszynski, Sharon Mascher, and Meinhard Doelle recently posted "From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability". The abstract:
In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the public healthcare costs of tobacco-related disease. Although comparisons between the tobacco industry and the fossil-fuel industry are increasingly common, this article is the first to consider the legally-relevant differences and similarities between these two contexts in detail. It also sets out the main elements of a potential Climate Change Damages and Adaptation Costs Recovery Act. As will be seen, the design of such legislation engages several complex legal issues, implicating not only tort doctrine but also questions of legislative competence and private international law. Nevertheless, our initial assessment is that such legislation is both likely and feasible. Our analysis focuses primarily on Canadian law but should also be relevant to other jurisdictions that are increasingly grappling with the costs of climate change mitigation and adaptation. 

Thursday, May 4, 2017

Environmental preferences and economics

A little while back Resources for the Future posted a paper by H. Spencer Banzhaf on the history of an economic idea with major implications for the way environmental law plays out (particularly when cost-benefit analysis is involved), "The Environmental Turn in Natural Resource Economics: John Krutilla and 'Conservation Reconsidered'". The abstract:
John Krutilla
Environmentalism in the United States historically has been divided into its utilitarian and preservationist impulses, represented by Gifford Pinchot and John Muir, respectively. Pinchot advocated conservation of natural resources to be used for human purposes; Muir advocated protection from humans, for nature’s own sake. In the first half of the twentieth century, natural resource economics was firmly on Pinchot's side of that schism. That position began to change as the postwar environmental movement gained momentum. In particular, John Krutilla, an economist at Resources for the Future, pushed economics to the point where it could embrace Muir’s vision as well as Pinchot’s. Krutilla argued that if humans preferred a preserved state to a developed one, then such preferences were every bit as "economic"—either way, opportunity costs exist and economic choices must be made.

Tuesday, May 2, 2017

A history of the EPA

The EPA Alumni Association recently published online Protecting the Environment: A Half Century of Progress. There's an Overview, as well as seven reports on topics such as air pollution, water pollution, toxic substances, and so on. From the introduction:
Over the past half century, our country has made enormous strides improving the environment. The laws that were passed to protect the environment and the public policy decisions that were made have yielded substantial progress. The air is demonstrably cleaner, our waterways are getting cleaner, our drinking water is safer, there are lower levels of exposure to toxic chemicals affecting people and wildlife than would have occurred, toxic waste sites are being cleaned up, and millions of acres of the most scenic and valuable parts of our country’s landscape — parks, wilderness areas, and wildlife refuges — are being protected.
None of this has come easily. There have frequently been significant costs. The decision-making process has often been protracted — sometimes by lengthy litigation. Still the progress is undeniable.
This progress is a result of laws that Congress passed and federal, state, tribal, and local agencies implemented. It is a result of investments of government and private sector dollars and the hard work of many communities, companies, and citizens across the land. They have reduced their environmental footprint and improved the way they do business and live their lives. It is the result of technological and policy innovations and the entrepreneurial spirit built into the DNA of the American people. Most of all, it is the result of Americans’ ongoing support for clean air and water, as we recognize that protection of public health and the environment benefits millions of our fellow citizens.
It is essential to understand this history and the lessons and insights learned if we as a country are to tackle some of today’s formidable challenges, such as:
  • the adverse impacts of climate change,
  • the effects of nonpoint source (runoff) pollution on our waterways,
  • issues raised by changing technology, such as biotechnology and nanotechnology, and
  • safeguarding the natural resources that are the foundation of our economic and recreational activities. 

Monday, May 1, 2017

Property in whales

Angela Fernandez recently published a review of Robert Deal's The Law of the Whale Hunt: Dispute Resolution, Property Law, and American Whalers, 1780-1880 (Cambridge UP, 2016) at JOTWELL. There's a lot here--on the environmental background of law, on efficiency and fairness, on the relation between law on the books and law in action, and more. Some highlights:
Cooperation was also important not just to the survival but also the success of a voyage. Captains were expected to help, or at least not deliberately mislead, one another about issues like weather conditions and where whales were located. When times were good and there were plenty of whales, this fact alone would greatly reduce an incentive for captains to engage in protracted and highly confrontational dispute over any particular whale. In most cases it was better to quickly agree to go halves, or some other proportion that seemed fair in the circumstances given the efforts each had invested, and move on to chasing other whales. When the catch was not going as well, as whale stocks became depleted and whalers had to go deeper into the ocean to pursue them and in more unfamiliar waters, one whale might make the difference between a voyage that was economically viable and one that was not. Deal points out that some of the litigated cases arose during lean times. The problem is that “[m]any – indeed the vast majority – of bad seasons did not send whalemen to the courtroom.” (P. 143.) And the dispute in one of the cases that Deal discusses at length, Taber v. Jenny, happened in 1852, a year that “may well have been the most successful season in the history of the Okhotsk fishery.” (P. 139.)
So what kept whaling disputes out of the courts? Deal insists it was not (contra Melville and legal scholars such as Robert Ellickson) because industry participants had a very firm and settled sense of what the rules or customs were for settling disputes. Deal argues that captains used a jumble of different competing ideas, rules, norms, and customs, including personal ethics, to decide how to negotiate situations of conflict. He concludes that captains must have wanted it that way, “prefer[ing] to operate on the basis of vague standards rather than clear rules.” (P. 162.) And while we are often told by law and economics scholars that flexibility will lead to conflict and more litigation, on the contrary, in this case at least: the “muddy standards” of the whalemen “were remarkably successful at avoiding [both] violent disputes and litigation.” (P. 163....) 

Sunday, April 30, 2017

Charles Wilkinson

Robert Fischman recently posted "Wringing Wonder from the Arid Landscape of Law". The abstract:
Charles Wilkinson
Charles Wilkinson’s estimable contribution to public land law scholarship is widely cited but only partly understood. From the mid-1970s to the mid-1980s he upended the field by elevating the diffuse public interest, displacing creation and adjudication of private property interests as the field’s focus. However, his subsequent scholarship grappled with an even more important challenge that has been far less noted. Beginning in the late 1980s, Wilkinson explored how legal institutions should determine the pluralistic, public interest. In trailblazing articles and books, he rose to the challenge with site-specific details, compelling narratives, and aspirational themes. This work undermined the dominance of exogenous preference accounting as a means of identifying the public interest. Instead, often employing methods from the humanities, Wilkinson promoted planning as a deliberative, value-shaping process for crafting resource management objectives. His scholarship of the past thirty years redefined the relevant inquiries for public land law scholarship. In particular, he established bioregionalism, time, culture, and wonder as place-building concepts essential for translating justice and equity into public natural resources decisions.

Friday, April 28, 2017

The river as legal person

Whanganui River
H-Law's World Legal History Blog published this week Debjani Bhattacharyya's post, "Being, River: The Law, the Person and the Unthinkable". Some excerpts:
While many indigenous activists and jurists hailed the granting of legal personhood to Whanganui River in New Zealand in March 2017 as a victory after a long-waged battle, many others were surprised and puzzled. When I mentioned it to my students in April, they wondered what it even means. The unthinkable in law has a long history dating back to medieval jurists. Christopher D. Stone noted that “[t]hroughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.” Stone goes on to show how it sometimes even leads to  laughable conclusions referring to the case of the Morris mouse in Suffolk County prison, where the guard flushed a rat, who had earlier been tamed by the prisoners, resulting in a lawsuit filed by the prison inmates against the guard. Following the granting of legal rights to Whanganui in New Zealand, the Uttarkhand High Court in India granted legal personhood to rivers Ganga and Yamuna, considered holy by many Hindus.
So what does it mean for a river to achieve the status of legal personhood? Broadly speaking, it means that the river counts jurally, and has legal dignity.... 

Thursday, April 27, 2017

London air pollution

The new issue of American Historical Review has a review by Christine Corton of William Cavert's The Smoke of London: Energy and Environment in the Early Modern City (Cambridge UP, 2016). Corton writes:
Cavert looks at the early legal debates, many initiated by personal complaints from Elizabeth I and Charles I, aimed at limiting smoky industries located near the Royal Palaces. Charles II shared his father’s dislike of coal smoke, but “measures against it were limited, local, sporadic, and rearguard” (190), not least because Charles was more interested in projects outside the capital city in Windsor or Greenwich. Such preferences marked the failure of earlier attempts to limit smoky industries within London.
The situation changed gradually as local magistrates became more interested in cleaning London’s air to benefit health and to protect buildings. But these early attempts to legislate started a pattern that was to be followed during later centuries as attempts to reduce smoke failed to be passed into law. For many people, a major part of the problem was that the smoke pouring from workshops signified industrial success and full employment, just as smoke issuing from domestic chimneys registered prosperity and cozy domesticity, a relationship only hinted at in Cavert’s book.
Other, wealthier individuals also tried to limit the number of smoke-emitting industries located near their own dwellings. New developments in the west of London, such as Covent Garden, prohibited smoky trades from the outset in order to attract a higher class of resident. Urban settlements created for and by social and political elites partly explain why London’s East End suffered more from the West End’s smoke, as the vapors from the increasing number of domestic dwellings were blown eastward by the prevailing winds.

Wednesday, April 26, 2017

The law and species classification

The journal Isis recently published an article by Peter Alagona, "Species Complex: Classification and Conservation in American Environmental History". I heard Peter give a fascinating talk on this at a conference a while back, in which he explained that while scientists don't really have a good definition for what a species is, the law (e.g. the US Endangered Species Act) requires organisms to be classified into species, thus driving this seemingly "scientific" endeavor. The article abstract:
How does the classification of biological organisms shape efforts to conserve them? This essay addresses this key question through the scientific, administrative, and legal histories of steelhead and rainbow trout. Members of the diverse salmon family, these two fish have different life histories and physical appearances, but since the 1930s scientists have considered them the same species. Over the past 150 years, however, their histories diverged. Today, rainbow trout are bred by the millions in hatcheries and are among the world’s most common and widespread fish, while steelhead are listed as threatened or endangered all along the West Coast of the United States. Their remarkable story shows that conservation is not merely a political struggle over things that exist in nature; it is a perennial competition to prove the existence and define the very nature of those things that are the focus of such struggles. Biological taxonomy and classification are central to these debates, as they are to environmental history and the history of science more generally.
And some of the legal history in the article:

Tuesday, April 25, 2017

Multiple use

The latest Environmental History has a review by David Rich Lewis of The Size of the Risk: Histories of Multiple Use in the Great Basin by Leisl Carr Childers (U. Oklahoma Press, 2015). Lewis writes:
Leisl Carr Childers’s book appeared at an opportune moment, just as debates over federal management of western lands roiled the national news. The takeover of the Malheur National Wildlife Refuge in Oregon, the armed standoff over grazing rights at Cliven Bundy’s Ranch in Nevada, and the ensuing federal criminal prosecutions highlight the larger critique of federal authority in the West. Two-thirds owned by the federal government and perceived as an unpopulated wasteland that defied Congress’s raft of land disposal acts, the Great Basin is, in Carr Childers’s estimation, the “bellwether for federal land management policy” (p. 7). She explores how “multiple use” emerged in the twentieth century as a way to give the nation’s unclaimed public domain a human purpose, utility, and identity separate from its ecology. This book is not just a primer on land management policies—although it certainly provides outstanding coverage of that—but one deeply rooted in cultural and environmental history, using the tools of oral and public history to trace the intersecting activities of people and their different land uses as these federal policies evolved over time.
Multiple-use management begins with the 1934 Taylor Grazing Act that allowed western ranchers to continue their “accustomed use” of the range without purchase. Having already developed their own water sources and rights, the creation of grazing districts legitimized ranchers’ activities and made the surrounding public range their liminal property. Ranchers reluctantly acceded to the political organization and fees, assuming their accustomed use rights would endure as the activity best suited to these arid lands. At the same time, progressive land managers saw grazing as just one of many possibilities, a stop gap until higher uses (or disposal) of the land occurred. Ranchers, then, assumed an unseen risk in a policy world dictated by different visions of their land and a belief in use for the greater good. 

Monday, April 24, 2017

Environmental law books

Dave Owen at Environmental Law Prof Blog recently compiled a list of books on environmental law recommended by other professors for incoming law students with an interest in the field. The results are all histories in one way or another:

  1. The favorite: Jonathan Harr's A Civil Action.
  2. The storytellers: Zyg Plater's The Snail Darter and the Dam: How Pork-Barrel Politics Endangered a Little Fish and Killed a River and Oliver Houck's Taking Back Eden: Eight Environmental Cases that Changed the World.
  3. Houck's and Richard Lazarus's Environmental Law Stories.
  4. Lazarus's The Making of Environmental Law.
  5. Gerald Stern's The Buffalo Creek Disaster.
This is obviously a very American list and one with a very recent focus. Anyone have any other suggestions?

Sunday, April 23, 2017

Offshoring environmental law

The latest issue of Environmental History just arrived, leading with an environmental-legal history article, M.X. Mitchell's "Offshoring American Environmental Law: Land, Culture, and Marshall Islanders’ Struggles for Self-Determination During the 1970s". The abstract:
This article explores the impact of environmental law in US-controlled Micronesia. Historians have suggested that US environmental legislation and legal activism during the 1960s and 1970s often overlooked issues of environmental racism and injustice. This article establishes the importance of these emerging environmental laws for Marshall Islanders living under American rule and subjected to the harms of nuclear weapons testing. In 1972 the displaced people of Enewetak Atoll—a former nuclear test site—sued the United States hoping to stop a new program of conventional weapons testing on their badly contaminated ancestral atoll. The capacious concept of the environment used in the National Environmental Policy Act of 1969 and the statute’s ambiguous territorial reach offered islanders important new opportunities to articulate their environmental values and to further their struggles for self-determination over ancestral lands and waters. This article argues that environmental law transcended the artificial territorial boundaries between the United States and its Pacific dependencies, opening up an important new venue of negotiation and conflict over the scope and environmental footprint of US offshore power.
Test of hydrogen bomb at Enewetak, 1952

Friday, April 21, 2017

Parks and Jim Crow

H-SHGAPE recently published a review by Nancy Murray of William O'Brien's Landscapes of Exclusion: State Parks and Jim Crow in the American South (U. Mass. Press, 2015). Murray writes:

Advocates for wilderness recreation viewed national parks as a means to prevent black criminality. As early as the 1920s, officials argued that recreational areas and parks for African Americans would help to address stereotypical problems of crime and juvenile delinquency. In October 1925, while introducing a speaker at the Twelfth Recreation Congress in Asheville, North Carolina, Chairman Robert Lassiter stated that, “with proper attention to recreational facilities, they [African Americans] will make good citizens. Improper attention to that, and neglect and abuse of it, will make a criminal population” (p. 34). These assumptions about black criminality knew no color line. The following year, Ernest Attwell, director of the Parks and Recreation Association (PRA) Bureau of Colored Work and a Tuskegee Institute graduate, reiterated Lassiter’s views.
*****
O’Brien’s book spans a period of time beginning with the origins of state park development in the 1930s to the turbulent civil rights era in the 1960s and relates how the development of state parks reflected the political and racial conflicts of these decades. Throughout, Landscapes of Exclusion emphasizes how local, state, and federal agencies adhered to what was called “customary” practices to justify using public funds to build and maintain segregated state parks. By the 1930s and 1940s, even as state park officials acknowledged African Americans’ need for state parks, Jim Crow laws and the hostility of white residents meant that most southern states refused to provide them.
*****
After World War II, in the face of mounting challenges to segregation, southern states proposed a more expansive network of segregated parks for African Americans and the leasing of whites-only parks to private entities in an attempt to prevent integration. Despite these attempts to preserve Jim Crow, civil rights activists nonetheless persisted. In 1951, four African American beachgoers were denied entry into Seashore State Park on Cape Henry in Virginia. When attorneys from the National Association for the Advancement of Colored People (NAACP) filed a lawsuit, the Virginia Department of Conservation offered to build a park for African Americans near Seashore State Park with similar amenities. When the NAACP rejected this offer, they filed suit in Tate v. Department of Conservation.   

Thursday, April 20, 2017

Yet more forest law

The always vigilant Rechtsgeschiedenis Blog recently posted on the Oxford Libguide on English legal history, noting that it surprisingly has a prominent section on Forest Law. The guide explains the subject:
Generally used to designate the legal regime following the Norman conquest (or at least from temp Henry I 1100): "... the subjection of ... vast tracts of forest land to an alien and oppressive "forest law" protecting the royal hunt" ...[ Baker, Introduction to English Legal History (4th edn 2002), 12[
It raised considerable problems of rights of ownership: for example, it was possible to be the legal owner of land within the designated area of a forest, and yet not be able to "harvest" its produce, either by hunting wild game or felling timber.
Already such a source of grievance to be the subject of clauses in the first attempt to limit the royal power of King John, by 1217 had become the subject of a separate Charter (of the Forest). The arrival of this shorter charter was what lead to the Magna Carta being so called.
The forest law was maintained by specific officers (such as wardens, verderers, and foresters) and with two principal courts hearing charges of breach of the laws, the courts of attachment and the forest eyres.

Among the online resources noted by the guide are John Manwood's [apparently his real name] 1598 Treatise and Discourse on the Lawes of the Forest [the 1717 edition is here], Jane Winters's essay on Forest Law, and the above image of the 1225 Forest Charter granted by Henry III, one of three surviving originals.

For more on British forest law, see here.

Wednesday, April 19, 2017

Masters/Doctoral/Postdoctoral fellowship: Water Law in Mandate Palestine

Please pass this on to anyone who might be interested:
This call is for a single one-year fellowship (2017-2018) for a graduate student or postdoctoral fellow wishing to work on the history of water law in Israel/Palestine or a related topic. The fellowship is part of the Israel Science Foundation-funded research project headed by Dr. David Schorr (Tel Aviv University Faculty of  Law): "Private and Public Water Rights in Mandate Palestine and Early Israel".
Eligible candidates will be one of the following:
  • an applicant for an Ll.M. or Ph.D. degree TAU Law's Zvi Meitar Center for Advanced Legal Studies (candidates must apply separately to the Meitar Center for admission, and receipt of the fellowship will be contingent on acceptance to a degree program);
  • a student currently studying for one of the above degrees;
  • a candidate for a research degree in another university or in another faculty of TAU, wishing to spend a period as a visiting researcher at TAU Law;
  • recent recipients of a doctoral degree (not from TAU) wishing to conduct post-doctoral research at TAU Law.
The fellow will receive a monthly stipend of between approximately ILS 4,500 (for masters students) and 11,000 a month, in accordance with university rules and subject to available matching funds. TAU students will also receive a tuition waiver. No funds will be provided for travel or lodging, though administrative assistance may be provided for both. The fellow may re-apply for funding in subsequent years, university rules permitting.
The fellow will be expected to be in residence in the Tel Aviv area and participate in weekly workshops and seminars at TAU.
Interested individuals should send the following documents (in English or Hebrew) to berg@post.tau.ac.il by 15 May 2017:
  • cover letter describing research agenda and its relevance to Dr. Schorr's research project
  • c.v.
  • transcript of grades from last degree
  • 2 letters of recommendation sent directly to berg@post.tau.ac.il
  • writing sample
Notification of the fellowship award will be made quickly.
Please address any inquiries to berg@post.tau.ac.il.