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)

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)

Robert Jackson on public and private rights in water

Over at Legal Planet Jonathan Zasloff yesterday posted "A Hidden Property Gem From Justice Jackson", in which he admires Jackson's lucid judicial writing in the 1945 case, United States v. Willow River Power Co. The quoted passages certainly do seem like a breath of fresh air when compared, style-wise, to the opinions of today's US Supreme Court (and many other courts), but, like Zasloff, I also like the understanding of property rights expressed in the opinion. He writes:

(Wikipedia)

In this case, the federal government constructed a dam on the Mississippi River, which backed up the water onto a tributary river, reducing the ability of the tributary to produce hydroelectric power for the plaintiff’s own dam. It sued for a taking. The Court held 7-2 that there was no taking.

But the case stands out as much for the clarity of Justice Jackson’s language than anything else:

It is clear, of course, that a head of water has value, and that the Company has an economic interest in keeping the [tributary] at the lower level. But not all economic interests are “property rights;” only those economic advantages are “rights” which have the law back of them, and only when they are so recognized may courts compel others to forbear from interfering with them or to compensate for their invasion. The law long has recognized that the right of ownership in land may carry with it a legal right to enjoy some benefits from adjacent waters. But that a closed catalogue of abstract and absolute “property rights” in water hovers over a given piece of shore land good against all the world is not, in this day, a permissible assumption. We cannot start the process of decision by calling such a claim as we have here a “property right;” whether it is a property right is really the question to be answered. Such economic uses are rights only when they are legally protected interests.

As Zasloff writes, "I’m not sure as clear a statement of legal realism or positivism has ever been made." Many, including environmental historians (and also lawyers), often mistakenly attribute great importance to something being called a property right, but as Jackson explains, saying that someone has a "property right" is properly the end of a legal analysis, not its premise.

A realist analysis of nuisance law's historical achievements

Just out in the Journal of Law and Society is Ben Pontin's "The Common Law Clean Up of the ‘Workshop of the World’: More Realism About Nuisance Law's Historic Environmental Achievements". Joining the author's previous work on environmental law in nineteenth-century Britain (e.g. here and here), the new article uses a legal realist lens to examine the achievements and limits of Victorian-era nuisance law in bringing about environmental improvements.