Tani on Calabresi and the "Economic Style"

Karen Tani just completed a fascinating four-part series at Legal History Blog on Guido Calabresi's particular form of law and economics scholarship and its influence on legal thinking. Though Tani doesn't directly deal with environmental issues (nor did Calabresi give them much attention), the series raises important questions that have relevance to understanding the history of environmental regulation and environmental law scholarship in recent decades. In particular the series focuses on the question of to what extent economic thinking in Calabresi's writings claimed exclusivity or made room for other ways of thinking about legal problems. 

Calabresi himself often insisted (as in the subtitle "One View of the Cathedral") that economics was just one factor to be considered in legal analysis, and his classic works (such as The Cost of Accidents and the Cathedral article) also at least paid lip service to this idea, but I have always thought that the depth of Calabresi's economic analysis, juxtaposed with the cursory treatment he usually gave to distributive considerations, broadcast the message that efficiency was the key factor to be considered.

This way of thinking has obviously had great effects on environmental law, starting from the way environmental issues are typically presented to law students - as negative externalities that need to be internalized or collective-action problems that need the aid of law to overcome, rather than, say, as issues of distributive justice or problems of environmental ethics.

In memoriam: Meir Shamgar

Meir Shamgar as a detainee in Eritrea, 1946

Friday saw the passing of one of the greats of Israeli law, former Justice and President of the Supreme Court Meir Shamgar. Shamgar has been eulogized elsewhere, mainly with regard to his many important contributions to constitutional law and public law in general, but I'd like to shine a light on an important decision of his in an environmental nuisance case, about which I've written (in Hebrew). (I hope the case will be translated into English soon.)

Ata v Schwartz (1976) is an Israeli classic. Briefly put, Schwartz sued a neighboring textile factory, the largest in Israel at the time; asking for an injunction against the noise emitted by its cooling and ventilation systems. Despite the factory's warning that granting the injunction would lead to the layoff of thousands of workers, the trial court as well as the two appeals courts that considered the case upheld Schwartz's right to an injunction, noting that the relevant statute rejected a "balance of the equities" test for permanent injunctions, and emphasizing the importance of every person's right to live free of harsh disturbances.

What makes the case a chestnut for teaching, beyond the stark facts and bold result, is Justice Shamgar's discussion in his decision for the Supreme Court of the then-new economic approach to law. Unbidden by the parties, Shamgar linked the defendants' claim that an injunction should be granted only if the balance of the equities was in the plaintiff's favor (i.e. that the harm eliminated by the injunction would be greater than the cost of complying with it) to classic arguments by Ronald Coase, Richard Posner, and Guido Calabresi (with Douglas Melamed), arguing for wealth- or utility-maximization as the guiding principle of nuisance law. I write "classic arguments", but Shamgar's decision was really the first (in the world) to discuss the works of these authors at any length. Why "the law and economics movement" received its first substantial treatment in an Israeli, and not an American, court is a subject for another time.