Heinzerling on Lazarus

Sorry for the long silence - I hope I'll have some more time now to catch up on the blog.

Last spring Lisa Heinzerling published a review in the Michigan Law Review of Richard Lazarus's The Rule of Five: Making Climate History at the Supreme Court (Harvard UP, 2020). Heinzerling writes:

Let me start by saying that whoever chose the novelist Scott Turow as the lead blurbist for the book jacket nailed it. The book is crowded with ambitious lawyers, wise judges, tangled law, and stately courtrooms. There is a just cause and a triumphant outcome. There are heroes and antiheroes, with these judgments disguised but not hidden by Lazarus’s facially neutral thirdperson narrative. To top it all off, a courtroom scene serves as the dramatic climax. The book is, against all odds, a legal thriller.

All this novelistic drama, however, comes with costs. The costs are a deficit in critical judgment and a surfeit of gender traditionalism. The deficit in critical judgment manifests in Lazarus’s unalloyed reverence for the Supreme Court and apparent resistance to critiquing its work. This reverence is most vividly on display in the book’s descriptions of the Supreme Court building and its contents. The entire building becomes, in Lazarus’s narrative, a kind of reliquary: every object the justices touch, from pewter mugs to leather chairs to spittoons, takes on some larger and quasi-sacred meaning. The politics that otherwise stalk the city in which the Court sits do not, we are made to infer, darken the doors of this special building. And a frank acknowledgement of the gendered character of the men’s-club atmosphere of the Court is lost in Lazarus’s romanticizing.

*****

The book’s deficit in critical judgment, now paired with unspoken gender traditionalism, also surfaces in its treatment of the human dramas of Massachusetts v EPA. Lazarus’s account is blind to the subtle gender dynamics of the case and, most troublingly, to his own reenactment of them. Lazarus selects as his cast of characters “five guys,” as he calls them, and “a gal,” as he calls me. His account of the five guys’ roles in the case uncritically accepts their version of events and then distorts it by fixating on and amplifying the conflicts that arose during this high-stakes litigation. In Lazarus’s rendering, the contributions and sacrifices of the female lawyers, including my own, recede to make room for the men.

There's lots more here - worth reading. 

Gender discrimination in the commons

Marco Casari and Maurizio Lisciandra recently posted "Gender Discrimination in Property Rights: Six Centuries of Commons Governance in the Alps". The abstract:

Starting from the Medieval period, women in the Italian Alps experienced a progressive erosion in property rights over the commons. We collected documents about the evolution of inheritance regulations on collective land issued by hundreds of villages over a period of six centuries (thirteenth-nineteenth). Based on this original dataset, we provide a long-term perspective of decentralized institutional change in which gender-biased inheritance systems emerged as a defensive measure to preserve the wealth of village insiders. This institutional change also had implications for the population growth, marriage strategies, and the protection from economic shocks.

A usable past for commoners

We just love histories of history. Reviews in History recently carried a review by Brodie Waddell of Andy Wood's The Memory of the People: Custom and Popular Senses of the Past in Early Modern England (Cambridge UP, 2013). Waddell writes:

Much of the book revolves around common rights and agrarian custom. As Wood shows, a ‘usable past’ was absolutely central to the economic lives of the vast majority of the population who lived and worked on the land as tenants or smallholders. Their subsistence was often dependent upon precise – if occasionally selective – memories of customary rights to grazing, fuel and other resources. In 1570, for example, the tenants of Cockermouth were satisfied because ‘albeit their Fermeholds were small the Comons were great’ (p. 158). Yet, in most cases villagers only had access to such ‘Comons’ because they could prove that they had used them for ‘time out of mind’ and, according to Wood, their ability to deploy this ‘useable past’ changed substantially between the 14th and 19th centuries. The aftermath of the Black Death left the English peasantry in a strong position with landlords desperately needed tenants and labour. It was in this period, he argues, that the peasants won the indulgences that would soon, through the power of ‘social memory’, be transmuted into ‘customs’ and thus into rights or entitlements. In the early modern period, tenants defended these customs assiduously through increasingly sophisticated use of documentary evidence and the law courts. However, Wood also demonstrates how customs that favoured the tenantry were under attack. Lords sought to harness rents to inflation and seize exclusive control of common lands. In the wider culture, this manifested itself as a forceful discourse of ‘improvement’. Similarly, Wood suggests there was a hostility to custom amongst godly humanists. Thomas More, for example, who is often quoted as a defender of the commons against the lords’ man-eating sheep but who was typical of many humanists in criticizing those who justified a practice by citing its antiquity (p. 123). Worse still, in the 17th century, gentry attitudes were ‘hardening’ even further and there was an apparently ‘decisive shift’ against custom and against commoners in the central law courts (pp. 126, 160). The power of popular memory was being eroded. According to Wood’s chronology, it was in the late 18th century that the final break came. Enlightenment ideology and capitalist demands for labour discipline led to an ‘epochal shift’ towards a ‘new order’ in which custom had no authority (pp. 314, 350-2). However, even then the memory of the people was not extinguished. In the 19th century, as Wood acknowledges, common rights remained important for many working-class families and a strong sense of the past informed radical agrarian politics. The chronology presented in this book is thus careful and nuanced, even if the overarching narrative is one of struggle and loss.

Smoke regulation in Baltimore

Pratt Street Power Plant today (G. Edward Johnson)

As a former Marylander who spent a lot of time in Baltimore, I was particularly interested when Legal History Blog recently noted the publication of Ann-Marie Szymanski's "Regulatory Transformations in a Changing City: The Anti-Smoke Movement in Baltimore, 1895–1931" in The Journal of the Gilded Age and Progressive Era. The article enters a longstanding discussion of the circumstances of the development of local environmental regulation against a common-law background, foregrounding as well dimensions of gender and class. The conclusion:

In many ways, the long road to administrative smoke regulation in Baltimore followed the path laid out by anti-smoke reformers elsewhere, albeit in fits and starts. In cities across the United States, amateur activists initially relied on the existing common-law approach to regulating nuisances, a strategy that, at best, only allowed them to shut down isolated polluters. However, when various judges and health boards proved reluctant to declare smoke to be an actionable nuisance, smoke opponents organized campaigns during the 1890s to secure smoke abatement ordinances that declared smoke a nuisance by definition. After the courts nullified several such ordinances on the grounds that only states could define nuisances, anti-smoke activists turned their attention to state legislatures, which increasingly empowered municipalities to regulate smoke after 1900. With this enabling legislation in hand, cities typically went beyond the nuisance approach. Municipal officials no longer merely responded to complaints, but became proactive. For example, they often required businesses to secure building permits for all new construction and repairs to boilers and furnaces. They also created more sophisticated solutions to the smoke problem. Whereas the common-law approach provided three basic responses to any regulatory conflict (injunctions, abatement and the payment of damages), the new anti-smoke regime proposed a variety of technical solutions, including the installation of smoke-control equipment. Of course, this reliance on technical solutions empowered those who were presumably best able to design them, namely, engineers.

Some scholars have been critical of the triumph of experts in early environmental regulation. Indeed, as the Baltimore case confirms, engineers who served as smoke inspectors often sought accommodation, cooperation, and gradual smoke reduction. David Stradling, for one, argues that such a conciliatory approach blunted the movement's impact on urban pollution; likewise, he holds that women's “arguments concerning health, beauty, cleanliness, and morality gradually lost ground to engineering concerns” and the narrower quest for efficiency. Frank Uekoetter disagrees with these conclusions, noting that even after engineers became leaders in the movement, some public officials continued to prosecute those who violated anti-smoke ordinances and ignored the inspectors' technical advice. Moreover, he finds that both women and engineers emphasized technological as well as aesthetic and moral aspects of the smoke problem, suggesting that there was no rigidly gender-specific approach to the smoke issue.

This study suggests that some female anti-smoke activists were deferential to experts without ceding the entire sphere of action to them.

Gender, precaution, and DES

H-Environment recently re-posted a 2012 roundtable review of Nancy Langston's Toxic Bodies: Hormone Disruptors and the Legacy of DES (Yale UP, 2010), with comments by Jacob Darwin Hamblin, Mark Hamilton Lytle, Frederick Rowe Davis, Thomas R. Dunlap, and Stephen Bocking, along with an author response.

DES is familiar to law students as the harmful drug that gave rise to the novel tort theory of market-share liability in a 1980 California Supreme Court case, but Langston investigates its deeper history. The drug was banned by the FDA in 1940 based on precautionary thinking, but regulators later reversed themselves and allowed the substance to be used for many purposes, leading to all kinds of harm, including cancer in the daughters of women who took the drug. This is a rich history of toxic-substance regulation, including issues of gender, the history of science, and the precautionary principle.

Lytle, for instance, writes:

Langston is persuasive in connecting the FDA’s failure to follow the precautionary principle to a set of conditions, some specific to DES and others more a consequence of a generation’s commitment to “better living through chemistry.”  One factor involved the uncertainties over contemporary definitions of toxicology. Most scientists held to the belief “the dose makes the poison.”  As a Yale website states, “All chemical substances will exhibit toxic effect given a large enough dose.  If the dose is low enough, even a highly toxic substance will cease to have harmful effect.” The problem, as Langston explains, is that DES and other endocrine disrupters violate that principle.  They are not dose dependent. In fact, they have biological effects at dose levels far below those of other toxins.  Further, the effects do not correlate to an individual’s size but more to age. Exposed fetuses and infants face far higher risk than adults.  Finally, the effects often occur long after the initial exposure, so that affected fetuses may not face cancer or reproductive problems until puberty. 

The Valencian water court

The Bulletin for Spanish and Portuguese Historical Studies has posted "Water as a Collective Responsibility: The Tribunal de las Aguas and the Valencian Community", by Julia Hudson-Richards and Cynthia Gonzales. (Thanks to Lior Ben David for bringing it to my attention.) The abstract:

Bernardo Ferrándiz, Tribunal de las Aguas (1865)

The Tribunal today

In this article, we argue that the Tribunal de las Aguas, historically part of a larger complex of irrigation communities, provides a foundation for an alternative model of water management, and has survived for over a thousand years precisely because it answers the community’s needs, and contributes to Valencian regional identity. As research has recently shown in African cases, providing education, infrastructure, and management opportunities to local communities helps to encourage both sustainability and direct involvement in water distribution, contrary to the impersonal distribution characteristic of privatized systems. The Tribunal de las Aguas has transcended tremendous political, social, and economic change in Spain in general, and Valencia in particular, and remains an important facet of local identity. As water issues become more and more pressing in the face of climate change, pollution, and seemingly insatiable demand, we will need to find more creative and innovative ways to address the often conflicting demands on this most valuable resource. Furthermore, the gendered aspects of water rights and distribution continue to play such a significant role in our global water cultures, and our article will contribute to a larger discussion of women’s roles in irrigation and water use in different historical contexts.