CFP: Environmental History, Legal History, and Environmental Law – Two Transdisciplinary Conversations

Susan Bartie (ANU), Ben Pontin (Cardiff), and I are organizing a double session on environment, law, and history for the 4th World Congress of Environmental History, to be held (in hybrid format) in Oulu, Finland, 19-23 August 2024. This double session will showcase environmental-legal-historical research that demonstrates the opportunities as well as the challenges inherent in this meeting of disciplines, and discuss strategies, theories, and research methods that might help in overcoming these challenges. The sessions' abstract is below.

If you're interested in joining (in person or remotely, you need not decide now), please submit a proposal through this link by 18 September 2023. Please indicate in your submission whether you wish to propose a traditional research paper (the first session) or make a presentation as part of the roundtable (second session).

Abstract:

The triangle ‘environment–history–law’ suggests a wealth of opportunities for productive transdisciplinary scholarship: Historical analysis of environmental law, environmental histories of legal change, legal histories of the environment, etc. Yet such transdisciplinary projects have to date been tentative and largely tangential to the thriving fields of environmental history, legal history, and environmental law. Legal history, while having moved beyond its previously narrow focus on legal doctrine to embrace wider contexts of society, economy, and culture, has to date remained largely indifferent to environmental issues or to the environment as a category of analysis. The field of environmental law, so salient in pressing issues such as climate change and biodiversity conservation, tends to see itself as brand new, overlooking centuries of environmental laws. And while environmental histories frequently reference legal issues and institutions, from common property to rights of nature, they are often insensitive to the legal context in which these institutions operate.

The first session will showcase new environmental-legal-historical research that demonstrates both the opportunities and challenges inherent in this meeting of disciplines. The following, roundtable session will bring together scholars working across the boundaries of environment, history, and law, in order to discuss the challenges facing this intersection of disciplines, from institutional obstacles to the difficulty in meshing historical and normative analysis. With the participation of the audience, it will seek to identify strategies, theories, and methods that might help in overcoming these challenges. Panelists will be drawn from a variety of disciplines, regions, and methodological approaches. 

Jhering and environmental legal history

The German-language legal history journal Zeitschrift für Neuere Rechtsgeschichte last year published Sascha Ohlenforst's article, "Vom Sinn und Nutzen der Umweltrechtsgeschichte. Methodische Überlegungen auf Grundlage der Interessen- und Wertungsjurisprudenz" [On the sense and use of environmental legal history. Methodological considerations based on the jurisprudence of interests and values.]. The abstract:

How to write a history of environmental law that can be integrated into environmental and  legal history? What insights can be gained from dealing with past environmental law? The article discusses and problematizes essential questions of modern legal history and, on the basis of the jurisprudence of interests and values – especially with reference to Rudolf von Jhering –, promotes a possible new orientation of the history of environmental law. Such a method considers above all the different interests of historical actors and reference groups as a major factor of dynamization in environmental law. Examining these interests as social factors not only contributes to a deeper understanding of the particular human-environmental relations in the past, but also provides a detailed insight into the development of law. By consulting a case study on mining law, both the dynamizing factors as well as the continuities and disruptions between past and present law are illustrated.

Corpus linguistics and the history of environmental law

The article by Caroline Laske in the new issue of Comparative Legal History, "Corpus linguistics: the digital tool kit for analysing language and the law", argues for the utility of this computational methodology with an example (among others) from the history of environmental law. First the article abstract:

Corpus linguistics methodologies offer innovative ways of reading legal historical sources. Studying the language of source texts using computational techniques that retrieve linguistic data makes detailed searches of words, phrases, and lexical/grammatical patterns and structures possible and provides multiple contextual data that is both quantitative and qualitative, empirical rather than intuitive. It helps us understand not just what is being said, but also how it is being said, how language is used to encode meanings, and what that can tell us about underlying contents and the socio-political, cultural, geopolitical, economic, and other contexts and discourses in which these texts were produced. This paper argues that the use of corpus linguistics is relevant across comparative legal history and can be applied in comparative legal historical research independent of the area of the law or the historical period. Detailed studies incorporating corpus linguistics will be discussed to show the potential of this methodological shift.

The example of environmental law is used to demonstrate how corpus linguistics (CL) can be used to study rapid change in the law (notes omitted):

The redwood wars

The latest American Historical Review has a review by Neil Maher of Darren Speece's Defending Giants: The Redwood Wars and the Transformation of American Environmental Politics (U. Washington Press, 2017). Some excerpts:

Speece begins with the conflict’s prehistory, describing the rise in the region during the late nineteenth and early twentieth centuries of a “corporatist” logging industry that was permitted, with encouragement from the California Board of Forestry, to self-regulate cutting practices on privately owned land. Redwood preservation during this period most often involved elite groups, such as San Francisco’s Bohemian Club, purchasing groves from timber companies. The next four chapters, which jump to the late twentieth century and the “Redwood Wars” themselves, follow local activists and their two-pronged strategy—involving lawsuits and direct action campaigns—that all but halted old-growth logging on the North Coast and, in doing so, weakened the corporatist reign over redwoods. The legal stalemate that resulted, Speece concludes, fostered “the Deal” orchestrated by President Bill Clinton, which not only protected the old-growth redwoods of the North Coast’s Headwaters Forest but also laid the groundwork for additional protection of endangered landscapes nationwide.

Defending Giants is about more than environmentalists, however, and in order to give voice to the lumber executives, loggers, and lawyers who also serve as foot soldiers in this conflict, Speece embraces a diverse set of historical methodologies. To understand the grassroots beneath his tall trees, he scours local newspapers, digs into unprocessed archival material from North Coast environmental groups, and, perhaps most importantly, conducts dozens of oral interviews with activists, timber workers, lumber company managers, and forest policy bureaucrats. Speece also skillfully navigates a torrent of legal cases initiated by environmentalists to halt redwood logging, and tracks a wide range of timber policy proposals through the hallways of capitols in both Sacramento and Washington, D.C. Finally, he carefully balances his narrative by analyzing the annual reports of the Pacific Lumber Company, which owned these redwood forests, of its successor, the Maxxam Corporation, and of several other timber businesses from the Pacific Northwest. The result, which successfully blends social, political, legal, and business history, will interest more than environmental historians. 

Empirical environmental law scholarship

Robert Fischman and Lydia Barbash-Riley recently posted "Empirical Environmental Law Scholarship". Beyond taking a look at the recent history of environmental law scholarship, the article is interesting for our purposes both for its view on what constitutes empirical scholarship and for its argument about the connection between descriptive and prescriptive work. The abstract:

The most important development in legal scholarship over the past quarter century has been the rise of empirical research. Drawing upon the traditions of legal realism and the law and economics movement, a variety of social science techniques have delivered fresh perspectives and punctured false claims. But environmental law has been slow to adopt empirical tools, and our findings indicate that it lags behind other fields. There are several clear benefits from an empirical agenda to explore how to make environmental law more effective. But no previous article has applied the lessons from empirical scholarship in other fields to environmental law. This Article fills that gap by assessing the state of environmental empirical scholarship, evaluating the strengths and weaknesses of published approaches to answering empirical questions, and recommending methods to advance the empirical research agenda.

Where environmental law scholarship has employed empiricism, it has done so mostly in the pollution control area. More empirical environmental law research relies on analysis of existing data than on the generation of new data, and experimental treatments are completely absent from our review of the literature. One strength of the empirical work in environmental law is analyzing existing data to determine correlations using regression analysis and statistics. But empirical environmental law scholarship underperforms in offering policy prescriptions. This assessment of the field identifies several methods and sources of data that may prove useful in advancing and sharpening empiricism’s contribution to law reform and implementation.

(xkcd)

Art and the history of environmental law - part I: Introduction

I'm happy to report that my article, "Art and the History of Environmental Law", has been published by Critical Analysis of Law. CAL's online format, along with excellent editing, made publishing an article with lots of color pictures a real possibility; my article has 29 color figures, a level of illustration impossible in print journals, even one as amenable as Environmental History to this kind of work.

Claude Monet, Boats in the Pool of London, 1871, private collection 

Since I really like the pictures I collected, I decided to share some of them on this blog as well, along with modified excerpts from the article, in a series of posts. Today's, the first installment, outlines the justification for the project.

The first reason for my turn to art is prosaic. Traditional legal sources—treatises, digests, national legislation, and appellate decisions—clearly dedicated to identifiably environmental topics were few and far between before the 1970s, and so legal-historical research of even the simplest sort—identification of the norms of positive law—needs to take up whatever tools, however indirect, it can find. Though the physicality of the environment seemingly makes environmental law a good candidate for historical investigation based on visual sources, the legal element of environmental issues has only been foregrounded infrequently in art, even when environmental issues are clearly the subject of that art. Beyond this seemingly technical task, art may be a useful source for two further dimensions of the historical understanding of environmental law: it might provide insight into the background conditions—environmental and cultural—against which and in reaction to the law developed; and it might provide data for assessing the effectiveness of environmental law.

It is, of course, problematic to assume that a work of art presents an accurate representation of historical reality;  even on the level of subjective perception, assuming that the work of an individual artist is somehow representative of general attitudes may be unwarranted. Nonetheless, the potential profit to be gained from this heretofore unexamined set of sources seems great enough to justify a tentative attempt at using art to try to learn something about the history of environmental law that we might not be able to learn otherwise. In this article I would like to use art mostly as evidence of historical attitudes towards environmental issues, but I believe that it also has some value as evidence of the physical environment in history. As Peter Brimblecombe writes:

Waste and legal-historical methodology

Joe Jones, Wastelands (c. 1937)

Jill Fraley recently posted "Waste Law", a critique of Morton Horwitz's influential account of the changes in American property law brought about by industrialization, and of the methodology she thinks supported his work. For the uninitiated, "waste" is the common-law doctrine that says that tenants of real estate cannot make changes to the property to detriment of those with future interests in the land; Adam Wolkoff explains its significance from an environmental history perspective here. Fraley's abstract:

The history of waste law, posited as a radical transformation from the traditional English rule to a uniquely American one to support resource exploitation, provided a cornerstone for Morton Horwitz’s influential view of the transformation of American law. While Horwitz’s general approach to the transformation of law has been critiqued, his economics-driven view of waste law has remained the primary narrative from textbook to scholarly accounts. Yet Horwitz’s account of waste law’s transformation lacks evidentiary support. Indeed, the story of waste law has remained half written because scholars have examined the American doctrine without considering the prior and concurrent English cases. This article provides a previously unwritten history of waste law and demonstrates that despite vastly different social and economic contexts, American courts and English courts shifted roughly contemporaneously and in parallel. Both jurisdictions shifted in response to innovations in surveying technology and title recordation. For American courts, the changes were both less radical and less American than previously suggested, maintaining a deep fidelity to the English tradition.

Given that Horwitz’s overall theory of transformation has been criticized and that the evidence so little supports Horwitz’s account, the traction of Horwitz’s narrative of waste presents quite a quandary. By examining the resilience of Horwitz’s narrative, this article suggests a critique of the methodology of legal history. By overly focusing on social contexts, historians have allowed themselves to be anachronistically biased, viewing transformations of law through a lens of the inevitability of industrialization. While social contexts provide key data points, the law and society methodology does not absolve historians of their duties to doctrinal investigation. When scholars examine transformations through the lens of social context without engaging the history of doctrine, they risk distorting the role of law as an independent, stable, and internally consistent structure of society — one that promotes social stability and affirms existing rights and investments, particularly where property is concerned. Only by reintegrating and reaffirming the role of doctrinal investigation can we mold a more accurate method of examining the transformations of American law.

The hidden histories of environmental law

Thanks to the Legal History Blog and Slate's "The Vault", I came across "The Roaring Twenties", a digital history site self-described as "an interactive exploration of the historical soundscape of New York City". The site has historical newsreel footage of all kinds of loud noises from early twentieth-century New York, along with published materials and hundreds of original documents from the municipal archives relating to noise complaints (see the explanation of sources under "Info"), all organized by date, by type of noise, and accessible by location on a historical map of the city. In addition to the material on noise, other environmental issues pop up as well, such as in a 1930 video of a staged confrontation between two boys over a banana peel thrown on the sidewalk in Manhattan's Lower East Side (check it out for its great accents and slang). (And if you want to understand why New Yorkers for years turned their back on their waterfront, watch some movies of tugboats and other watercraft at work.)

New York City Smog, Nov. 1966

The website is a good illustration of the masses of historical materials on environmental regulation that have yet to be explored and of some of the blinders that have limited research into pre-1970 environmental law. These types of limitations have been recognized for decades by legal historians as methodological obstacles that need to be overcome, yet they continue to plague study of environmental-legal history:

First, there is the issue of terminology. The environmental issues exposed by "The Roaring Twenties" site were not necessarily cataloged under "environment" or "pollution", but rather under issues such as nuisance, sanitation, public health, smoke, noxious vapors, and cleanliness. This kind of terminological disconnect can cause legal developments with deep historical roots to appear as if they sprouted from nowhere.

Second, there is the issue of scale. As in the case of the New York City materials documented by the website, much environmental regulation took place (and still does) at the level of sub-national governments, making it invisible to historians focused on developments at the national level.

Third, there are the interrelated issues of what counts as law, what sources are legal sources, and what legal sources are studied. The city documents reproduced on the website consist largely of complaints to city officials and their responses. The documents indicate that in some cases the complaints resulted in legal action in the courts (typically lower courts whose decisions are difficult to access and often overlooked by legal scholars), but in many (perhaps most) cases they resulted in action by administrative officials such as a letter to the creator of the nuisance, a visit by inspectors, and the like. These kinds of enforcement activities are often ignored by students of the law, yet they are arguably legal actions par excellence, whether as actions taken under color of law, or as law in action creating a normative reality that governed behavior and expectations.

For instance, the website has this to say about a 1933 complaint by Mr. D. Friedman of Atlantic Avenue in Brooklyn about noise from a nearby factory: