Trends in commons scholarship

More on (transatlantic) commons scholarship: The editors of the International Journal of the Commons (Frank van Laerhoven, Michael Schoon, Sergio Villamayor-Tomas) just published an interesting quantitative review of commons scholarship over the last five decades, "Celebrating the 30th Anniversary of Ostrom’s Governing the Commons: Traditions and Trends in the Study of the Commons, Revisited". There are interesting statistics and tables on journals, citations, disciplines, and more. (For a different take on the history of the field, see The Tragedy of the Commons at 50.) Some highlights:

The start of commons scholarship can be understood as growing out of a rejection of Hardin’s prediction of natural resource degradation unless managed by governments or through private property rights (Poteete et al. 2010). Over time, however the approach appears to have been evolving.

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Arguably, commons studies grew out of concerns associated with the tragedy of the commons. Accordingly, typical studies of the commons have been associated with local contexts, particularly with common pool resources such as forests, fisheries and irrigation, and an interest in the opportunities and challenges of common property rights and rules....

Hardin (1968) asked us to “picture a pasture, open to all.” Pastures, together with fisheries, forests, irrigation systems, and water management belong to what the authors of the 2007 study referred to as the “Big Five” in the study of the commons. Through 2007 these topics drew most of the combined attention of commons scholars. Overall, we find that this trend continues [unabated]. Over time, we see a relative increase in interest in water and fisheries since 2007.

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Where Hardin claimed that only the state or the market could prevent a tragedy of the commons, Ostrom dedicated most of her career to showing how there is a lot of room on the spectrum that ranges between these two extremes (e.g. Ostrom, 1994). Figure 18 presents a crude way to gauge our field’s attention to the market, the state, and self-governance over time.

Juergensmeyer and transatlantic commons scholarship

We've written before (here and here) on Julian Juergensmeyer as an early scholar of environmental law in the United States. The Journal of Comparative Urban Law and Policy recently published a Festschrift in his honor, including an article by Becky Jacobs, "Professor Julian Conrad Juergensmeyer's 'Impact': Scholarly, Theoretical, and Practical". Jacobs notes the influence of Juergensmeyer's "The Common Lands Concept: A 'Commons' Solution to a Common Environmental Problem" (co-authored with James Wadley), published in Natural Resources Journal in 1974. 

There's a deeper "Atlantic crossings" story here, too, one which I have yet to fully explore: The 1974 article was preceded by an earlier one by Juergensmeyer, with overlapping content and a similar title, "The Common Lands Concept in American Jurisprudence", published in a 1973 issue of the Belgian Revue De l'Institut De Sociologie. The special issue on "Les Terres Communes: Eléments d'approche historique et comparative" contained a series of articles by scholars on communal property in various legal systems: Scotch, Soviet, French, Belgian, African, and American. The other authors were all European, mostly from Brussels. 

Yet the origins of the issue were actually American. As Jacques Vanderlinden explained in his introduction (see below), the idea for the collection arose among the editors of the Boston University Law Review in 1970 (presumably when Vanderlinden was visiting BU), but subsequently dropped by the next editorial board. So the project moved to Brussels and took on a more European cast; Juergensmeyer must have been picked while he was studying in Europe in the early 1970s.

Economic theory and climate policy

A recent issue of Nature Climate Change carried an article by Jonas Meckling & Bentley B. Allan, "The evolution of ideas in global climate policy". The abstract:

From carbon pricing to green industrial policy, economic ideas have shaped climate policy. Drawing on a new dataset of policy reports, we show how economic ideas influenced climate policy advice by major international organizations, including the Organisation for Economic Cooperation and Development and the World Bank, from 1990 to 2017. In the 1990s, the neoclassical notion of weak complementarity between environmental protection and growth dominated debates on sustainable development. In the mid-2000s, economic thought on the environment diversified, as the idea of strong complementarity between environmental protection and growth emerged in the green growth discourse. Adaptations of Schumpeterian and Keynesian economics identified investment in energy innovation and infrastructure as drivers of growth. We thus identify a major transformation from a neoclassical paradigm to a diversified policy discourse, suggesting that climate policy has entered a postparadigmatic period. The diversification of ideas broadened policy advice from market-based policy to green industrial policy, including deployment subsidies and regulation.

The number of times neoclassical, Keynesian/Schumpeterian or limits-to-growth arguments appeared in our sample of IO annual reports each year from 1990 to 2017 (from the article)

The conservation constitution

A recent issue of Perspectives on Politics has a review by Richard Andrews of Kimberly K. Smith's The Conservation Constitution: The Conservation Movement and Constitutional Change, 1870–1930 (University Press of Kansas, 2020). Andrews writes that while existing works on the history of US conservation policy "focus on the policies expressed in statutes and regulations and on the actions of the administrative agencies, with only limited mention of the legal and constitutional arguments that were battled out in the courts", Smith's book "provides a valuable new complement to these studies by presenting a far more detailed history of the legal and constitutional arguments presented to and ultimately decided by the courts during the period from 1870 to 1930". Andrews continues:

Smith’s primary aim, well summarized in the final chapter (pp. 254ff.), is “to explain how lawyers and judges reworked constitutional doctrine to accommodate the expansion of state power over the natural environment during the Progressive era; and more specifically, how legal decisionmakers conceptualized the natural environment, its relation to human society, and the public interests at stake to create the constitutional ‘common sense’ that federal and state governments have authority to protect natural resources and the integrity of ecosystems in the interest of future generations.” In the process, she discusses the interweaving of principles such as the public trust doctrine, the police power, public nuisance doctrine, parens patriae standing, the interstate compacts clause, and federal constitutional arguments based on the interstate and foreign commerce, property, war, treaty, spending, and eminent domain powers, as well as the interstate nuisance doctrine. She argues that even though many of these issues continue to be argued in the modern era, the sheer number of these constitutional foundations, once accepted by the courts, has ultimately made governmental environmental management authority strongly resilient to challenges. She also urges greater recognition of the roles of skilled lawyers and judges, along with the better-known politicians and citizen advocates, in achieving this stronger role for the state in environmental conservation. Finally, she notes the continuing need for further evolution of our understanding of the Constitution: the Progressive understanding did not address the distributive imperfections of environmental regulation, nor the implications of administrative processes for procedural justice, nor—perhaps most problematic today—the absence of effective capacity for national economic and environmental planning, particularly in international cooperation to address global environmental challenges such as climate change. 

 After some minor criticisms, Andrews adds: 

Modernisation in English nuisance law

I somehow missed this one from Ben Pontin: "A room with a view in English nuisance law: exploring modernisation hidden within the ‘textbook tradition’". published in Legal Studies in 2018. The abstract:

The paper critically examines the consensus among tort scholars that an injured view can never be actionable in nuisance. The consensus, it is argued, is based on a problematic understanding of the permanence of early modern nuisance authority, and a neglect of modernisation in the definition of actionable injury in the nineteenth century, in response to industrialisation, urbanisation and, crucially, suburbanisation. David Sugarman's ‘textbook tradition’ provides a valuable disciplinary explanation for the mismatch between scholarly portrayals of doctrine and authoritative judicial formulations in decided cases.

For the uninitiated (like me), Pontin explains in the article (I've removed footnotes and added links):

The idea under consideration of a mismatch between formal law and academic exposition opens onto well-charted territory. David Sugarman made an important contribution to this with his critique of the ‘English textbook tradition’. Sugarman's thesis is that Victorian and Edwardian-era legal scholars, exemplified by Professor Frederick Pollock, wrote textbooks that emphasised the permanence of common law principles, downplaying their changeability. They did so in order to counter a negative impression of the common law as chaotic and unpredictable, and thereby unworthy of a university education. The crucial part of Sugarman's analysis for present purposes is that textbook understandings of the common law are ‘not reducible’ to the law itself. Against this, William Twining has suggested that formative legal scholars were attuned to the common law's spontaneity, and that Pollock was in fact in the vanguard of a proto-realist understanding of ‘living law’. In defence of Sugarman, I argue that Pollock and other scholars writing about nuisance overlooked the modernity of contemporary case law. 

Sir Frederick Pollock, 3rd Bt (by Lafayette)

EIS in Antarctica

USA's McMurdo Station, Antarctica (USAP)

A recent issue of the Journal of Historical Geography had an article by Alessandro Antonello and Adrian Howkins, "The rise of technocratic environmentalism: the United States, Antarctica, and the globalisation of the environmental impact statement". The abstract:

Environmental impact statements (EISs), and the related environmental impact assessments (EIAs) which precede them, have become central elements of environmental management, governance, and policy worldwide since their introduction in the United States in 1970. Assessing environmental impact has a particular force and centrality within modern Antarctic environmental management and governance too. This article investigates the ways in which the United States used EISs and EIAs in Antarctica between 1970 and 1982 – during their first decade of existence in US law and during a geopolitically and scientifically vibrant decade in Antarctic affairs – as a way of illuminating the broader conceptual and historical aspects of this central, though understudied, environmental governance tool and framework. We historicise and draw attention to the EIS – individually, as a regulatory genre, and as a genre that articulates regional, global and planetary environments – as highly influential and powerful documents demanding attention from environmental historians and historical geographers. We argue that the prominence of EISs in Antarctica arose because they appealed to top-down, process-oriented approaches favoured in Antarctic governance – a technocratic environmentalism – and because of their spatial elements, particularly their tendency to upscaling.

The ecology of economic thought

I've been participating in a great online series on the historical intersections of economic and environmental thought, organized by Troy Vettese and Julia Nordblad. The organizers write:

One would think that environmental history and economic history would be peas in a pod. After all, central questions in the history of economic thought concern environmental issues such as the early-modern enclosures and the importance of water-power and coal to the industrial revolution. The meanings of ‘the environmental’ and ‘the economic’ have shifted over the centuries, especially as issues were traded between natural philosophy, political economy, and ecology. While much has been written on policy of various kinds, what this workshop is focused on are works that lie at the convergence of environmental, economic, and intellectual history. What  for example are the origins and contexts of Spaceship Earth, catastrophe bonds, geo-engineering, externalities, cap-and-trade, and sustainability? 

Many of the papers are on topics with significant legal aspects, such as the history of economic thought on emissions trading, Pigouvian taxes, and the like. Stephen Gross's paper for tomorrow is particularly laden with connections to the history of environmental law and regulation.

The schedule for the remaining meetings is below. Registration is for each session separately (links below), and the discussions assume pre-reading of the papers, as the authors do not present them but only respond to comments. Papers are available from Troy Vetesse.

Environmental dispute resolution 4,500 years ago

Fragment of the Stele of the Vultures, c. 2450 BCE

The latest Yearbook of International Environmental Law has an interesting contribution by Peter Sand, "Environmental Dispute Resolution 4,500 Years Ago: The Case of Lagash v Umma". Sand begins:

Legal historians sometimes contend—albeit tongue-in-cheek—that ‘environmental law has no history’ or that the origins of international treaty law in this field, at any rate, hardly date back more than two centuries. It is true of course that the very term ‘environmental law’ etymologically did not come into use, in any language, until the mid-twentieth century. Yet it is equally true that the earth’s natural resources have been a subject of claims for human exploitation and societal management (including law) for millennia before, as this brief note will aim to illustrate.

(The first quote is from my own chapter in the Oxford Handbook of Legal History, "Historical Analysis in Environmental Law". Let me note that I meant this contention not tongue-in-cheek but in the sense more felicitously captured by Éric Naim-Gesbert, cited by Sand: environmental law has a past without a history. See the abstract of my chapter.)

Sand continues (footnotes omitted):

The Musée du Louvre in Paris and the British Museum in London hold tangible evidence of the world’s first known legal agreement on boundary water resources—that is, the Mesilim Treaty, which was concluded in approximately 2550 BC between the two Mesopotamian states of Lagash and Umma—‘the oldest international treaty of which there is a reliable record.’ The terms of the treaty have been preserved in cuneiform inscriptions on limestone cones and a ‘stele’ commemorating Lagash’s victorious battle enforcing the interstate agreement....

Mesilim (or Me-salim, born circa 2600 BC) was the ruler of Kish, a kingdom further to the north of Lagash and Umma, which held a traditional ‘hegemonial’ position in the loose alliance of small neighbouring Sumerian states in the region between the Tigris and Euphrates rivers, south of what was to become Babylon. In that capacity, he served as arbiter in a protracted dispute between the two city states of Lagash and Umma, and it is the text of the arbitral award attributed to him, accepted under oaths by the litigants to their respective deities, that then appears as Mesilim’s rules in the cuneiform inscriptions preserved. The main subject of the award was the inter-state boundary between the two states, alongside a major irrigation canal.... The dispute concerned both water resources (with Umma upstream and Lagash downstream) and a strip of adjoining agricultural land in the fertile Guedin valley... that was cultivated by Umma under lease from Lagash for barley production.

Sand goes on to describe the breakdown of the treaty and compare it to the modern Lake Lanoux Arbitration and ensuing agreements. More on this in an earlier guest post by Sand here.