Sunday, December 10, 2017

Materialism and legal historiography

Environmental history has been debating its relationship with materialism. Now Chris Tomlins calls for legal history to turn toward the material in his recently posted "A Poetics for Spatial Justice: Materialism and Legal Historiography, from Bachelard to Benjamin". The abstract:
As the linguistic/cultural turn of the last forty years has begun to ebb, socio-legal and legal-humanist scholarship has seen an accelerating return to materiality. This paper asks what relationship may be forthcoming between the “new materialisms” and “vibrant matter” of recent years, and older materialisms – both historical and literary, both Marxist and non-Marxist – that held sway prior to post-structuralism? What impact might such a relationship have on the forms, notably “spatial justice,” that materiality is assuming in current legal studies? To attempt answers, the paper turns to two figures from more than half a century ago: Gaston Bachelard – once famous, now mostly forgotten; and Walter Benjamin – once largely forgotten, now famous. A prolific and much-admired writer between 1930 and 1960, Bachelard pursued two trajectories of inquiry: a dialectical and materialist and historical (but non-Marxist) philosophy of science; and a poetics of the material imagination based on inquiry into the literary reception and representation of the prime elements – earth, water, fire, and air. Between the late 1920s and 1940, meanwhile, Benjamin developed an idiosyncratic but potent form of historical materialism dedicated to “arousing [the world] from its dream of itself.” The paper argues that by mobilizing Bachelard and Benjamin for scholarship at the intersection of law and the humanities, old and new materialisms can be brought into a satisfying conjunction that simultaneously offers a poetics for spatial justice and lays a foundation for a materialist legal historiography for the twenty-first century.
Might legal history be ready for an environmental turn?
Jan Brueghel the Elder & Hendrick de Clerck, Abundance And The Four Elements (c. 1606)

Friday, December 8, 2017

Water rights I - Introduction

Earlier this year I published a short chapter on water rights in the collection Comparative Property Law: Global Perspectives, edited by Michele Graziadei and Lionel Smith (also on SSRN and Academia). The chapter has a strong historical component, so I'll blog it here (in bite-size pieces).


In a world in which ever-growing demand for water meets an essentially finite supply, it is unsurprising that rights in water have received much attention from courts and legislatures. Perhaps more surprising are the radical variety of property regimes governing this resource and the intensity of attention water rights have received in the scholarly literature. "Property" can sometimes connote land, the classic resource of property law; yet water often serves as land's alter ego, an exemplar of the odd, the esoteric, the colorful, or the cutting-edge in property law, set against the staid familiarity of land law.

Moreover, water represents a way of thinking about property that departs from the usual models, based on land. As one commentator (Rose, 1996: 351) has written:
If water were our chief symbol for property, we might think of property rights--and perhaps other rights--in a quite different way. We might think of rights literally and figuratively as more fluid and less fenced-in; we might think of property as entailing less of the awesome Blackstonian power of exclusion and more of the qualities of flexibility, reasonableness and moderation, attentiveness to others, and cooperative solutions to common problems.
More generally, it has been observed (Smith, 2008: 446), "Water law is seemingly so special that many commentators have seen reflected in it their preferred paradigms for property law more generally and have drawn very different lessons from it for the problems facing water users today."

Indeed, much of the writing on water rights has revolved around the paradigmatic axis of private-common-public property, and this will be the focus of most of the following posts. Much of the literature in this vein belongs to positive theory, attempting to explain why property in water has taken various forms in various places at various times. Lying alongside this body of positive work, and oftentimes intertwined with it, is a more normative strain of scholarship, advancing arguments as to the proper property regime for water, whether in general or under specific sorts of conditions. Both topics have been deeply engaged, as well, by large bodies of historical and contemporary empirical work.

More recently, the traditional law of property rights in water has been challenged and complemented with two different sorts of "rights talk", with lawmaking institutions and legal scholars advancing and grappling with the ideas of public rights in water and a human right to water, rights that may interact with classic property rights in water in complex ways. Developments around these topics will be treated in the final posts of this series.

Next: Systems of property rights in water

Wednesday, December 6, 2017

Love Canal, CERCLA, and deregulation

This past summer H-Environment published a Roundtable Review of Richard Newman's Love Canal: A Toxic History from Colonial Times to the Present (OUP, 2016). An excerpt from Stephanie Malin's contribution:
While the Superfund Act [CERCLA] resulted from national awareness of Love Canal, and though Newman focuses on the success that legislation represents, we conclude with a troubling denouement. Love Canal is now Black Village Creek, filling up with a new round of working-class residents enticed by homes priced 10 – 20% below market value. Though former residents including Gibbs fought the relocation, they lost this battle. Developers won. The results have been tragic; as Newman recounts, health problems and toxic exposures have reemerged in this ‘remediated’ community, despite the extensive, state-of-­the-­art environmental engineering schemes used to filter leachate and otherwise remediate the site.
Newman’s Love Canal succeeds in highlighting for readers an exceptionally timely notion: before the institutionalization of the U.S. Environmental Protection Agency’s Superfund Program, the American landscape was riddled with unregulated, unmonitored, and often unknown chemical and industrial dumps from America’s dizzying participation in the Industrial Revolution. Communities like Love Canal that dealt with these historical mistakes, Newman shows, contended with rampant pollution, contested and rare health outcomes, and instances of deep disempowerment. Newman showcases for his readers the immense risks and voluminous unintended consequences that emerge when environmental regulations are absent and when the precautionary principle is eschewed in favor of industrial economic development, in one era after another. His historical details, and his careful examination of the numerous barriers faced by Love Canal activists, display that regulatory programs that protect public and environmental health are relatively new, have been hard won, and are constantly vulnerable to eradication. Indeed, these are the very programs that have most swiftly come under attack under the Trump Administration – which makes Newmans’s message so relevant and timely. 

Monday, December 4, 2017

Recreational conflict on British rivers

Wastwater, the Lake District, England
Rounding out coverage of September's issue of Water History, Marianna Dudley published “Muddying the waters: recreational conflict and rights of use of British rivers”. The abstract:
Rivers have historically been spaces of recreation, in addition to work, trade, and sustenance. Today, multiple groups (anglers, canoeists, rowers, swimmers) vie for the recreational use of rivers in Britain. But, this paper argues, legal definitions of rights of use have not kept up with the growth of recreational river use. Focusing on two groups, anglers and canoeists, it explores the emergence of conflict between recreational users of British rivers in the twentieth century, and subsequent campaigns for universal public rights of navigation on inland waterways. As a result of conflict (real and perceived), small-scale organized groups have re-conceptualized river spaces in ways that reflect a modern engagement with, and understanding of, water through recreation. This papers foregrounds recreation as a form of water-use that generates important water-knowledge. Grounded in the Environmental Humanities, it draws on notions of legal geographies, ‘modern’ waters, and hydrocommons to suggest that small-scale conflicts on British rivers are challenging how we use, govern, and conceptualize river water.

Saturday, December 2, 2017

US energy regulation

Hauling crude oil to a refinery in Casper, Wyoming, c. 1900
(Casper College Western History Center)
Dan Farber at Legal Planet posted the other day on how the US federal government's regulation of the energy sector goes back a while:
To hear some of the debate, you’d think that the Obama Administration breached some longstanding barrier that left energy policy to the states and the market. If there ever was such a barrier, it disappeared over a century ago, with the onset of World War I.  Ever since then, the federal government has been actively shaping energy production, distribution, and sale.  We wouldn’t have the oil industry or the coal industry we have today if the Feds hadn’t been involved.  That’s not to mention all the money the Feds poured into building dams for hydroelectric power. Putting aside hydro, efforts to move the nation away from reliance solely on fossil fuels dates back sixty years when Congress decided to promote the use of nuclear power.
Simply listing federal statutes is enough to show how pervasively the Feds have been involved. Here is a timeline of major federal actions with a sentence about what each one did. I’ve included only a couple of the Supreme Court decisions that have helped shape the law, and none of the major administrative actions, such as the Federal Energy Regulatory Commission’s (FERC’s) deregulation of wholesale electricity prices and revamping of power grid management. I’m also excluding environmental regulations, which obviously have had a substantial impact on the energy sector. Nevertheless, the number and scope of federal interventions is overwhelming:
1906.  Congress passes the Hepburn Act, which limited ownership of oil pipelines by oil producers.
The rest is at Legal Planet.

Tuesday, November 28, 2017

Rhine river governance

The law of the Rhine River seems to be a fruitful topic (see here and here). The latest Water History has an article by Jennifer Schiff, "The evolution of Rhine river governance: historical lessons for modern transboundary water management". The abstract:
Transboundary rivers pose significant governing challenges to state actors, as riparian stakeholders struggle to balance their own interests in a critical resource against those of their neighbors. To that end, a case study of Europe’s Rhine River is illustrative, as it provides a strong historical example of shared water management. Indeed, the Rhine experience suggests at least two universal lessons that modern riparian actors the world over would do well to consider when balancing shared riverine interests. First, that transboundary water cooperation is supported by a shared historical legacy of water governance, suggesting that, if a governing regime does not yet exist, riparian actors should purposefully create one in anticipation of future coordination issues. Second, the case of the Rhine demonstrates that an acute environmental crisis is not a necessary condition for intensive shared riverine governance, and instead, it is extant historical collaboration that leads to later effective crisis coordination.

Tuesday, November 21, 2017

The Water Resources Research Act

The latest issue of Water History has a few articles with legal aspects on which I plan to post. The first is "Instituting water research: the Water Resources Research Act (1964) and the Idaho Water Resources Research Institute", by Adam M. Sowards and Brynn M. Lacabanne. The abstract:
In 1964, Congress passed the Water Resources Research Act (WRRA) and created state research institutes to pursue practical research for the nation’s growing water problems. The Idaho Water Resources Research Institute (IWRRI), initiated as part of WRRA, implemented its research program with multidisciplinary specialists across Idaho. Collaborating with public and private partners, IWRRI advanced research that reflected distinct political, economic, and environmental needs at a time when the state required more rigorous water planning. Case studies presented here include research on understanding and valuing wild and scenic rivers, tracing and mitigating water pollution from industrial mining, and improving efficiency and promoting maximization in irrigation among rural landscapes. Scientists developed new methods and advised on ways to improve water quality. Tracing IWRRI’s research demonstrates how concerns about wilderness, pollution, and efficiency developed within a research regime determined to improve water resources management. Each element reflected historical forces and social values, something only occasionally acknowledged by the researchers but nonetheless central to their efforts. In this way, IWRRI shines analytical light on state water use and the policy and scientific methods used to comprehend, mitigate, and manage water resources. The history of institutes like IWRRI provide a neglected, but useful, avenue to explore the powerful ways contemporary legal, political, and economic concerns shaped scientific research agendas, reminding us of the larger social context in which scientific research occurs.

Thursday, November 16, 2017

Trump, Carl Schmitt, and climate change denial

Over at the Niskanen Center blog, Mark Weiner recently posted the very interesting "Climate Change Denial as the Historical Consciousness of Trumpism: Lessons from Carl Schmitt". Some excerpts:
We need to understand Trumpism as a philosophical movement even better than its own adherents do, and with full interpretive sympathy, and we need to be prepared to confront it along all its philosophical axes.
The most central of these axes is Trumpism’s approach to history, because the identity of a political movement, like that of a nation, becomes fully apparent only once it possesses a self-conscious understanding of the past.
As a framework for interpreting the past, climate change denial grows logically from the core metaphysical commitments of contemporary populist nationalism in its confrontation with trans-Atlantic, cosmopolitan, individualist liberalism.
In this respect one might thus regard it as the distinctive form of anti-liberal historical thinking of our era. 
Two principles of Schmitt’s writing are especially relevant to understanding the place of climate change denial in Trumpism’s historical consciousness, and they’re worth discussing at some length. Each principle links Trumpian domestic and international politics as two sides of the same philosophical coin.
The political is inviolable
First, for Schmitt a community’s ability to draw the friend-enemy distinction can—by definition—brook no conceptual or institutional restraint.
Most notably, the distinction can’t be predicated on other domains of human value, such as morals, aesthetics, or economics. Ideals from these fields may be used to enhance public feelings of opposition. Enemies are regularly portrayed as ugly, for instance—a practice at which Trump personally excels.
But the object of a community’s political dissociation is made on the basis of criteria independent from judgments about good and evil, beauty and ugliness, or profit and loss.
Liberals today regularly violate this principle. They seek to circumscribe national sovereignty within generally-applicable legal norms such as individual human dignity—consider Article I of the German Basic Law—and to restrict it through institutions like the United Nations.
Schmitt views such liberal projects not simply as na├»ve, but also as a recipe for social chaos at home and unrestrained, imperialistic violence abroad. 

Tuesday, November 14, 2017

A colonial history of the River Murray dispute

Adam Webster recently posted his article, "A Colonial History of the River Murray Dispute". The abstract:
This article examines the history of the dispute over the sharing of the waters of the River Murray between the colonies, with particular emphasis on the period from the mid-1880s to the mid-1890s. The article shows that the change in water use by the colonies during this period had a significant impact on the question of how the water should be shared between the colonies. The article examines the early legal arguments regarding the ‘rights’ of the colonies to the waters of the River Murray and argues that these early legal analyses influenced the drafting of the Australian Constitution, which in turn has influenced the way similar disputes between the states are resolved today.

Friday, November 10, 2017

Animal welfare law in Scotland

Daniel James Carr recently posted "The Historical Development of Animal Welfare Law in Nineteenth Century Scotland". The abstract:
This paper examines the development of animal welfare in Scotland. Whilst the law developed in tandem with developments across nineteenth century Britain, the paper draws attention to the distinctive Scottish situation. By examining the development from disparate common law protections to the statutory interventions of the nineteenth century the paper charts that development, and begins to place it within nascent 'humanist' movements emerging around this time. The piece examines how the Scottish doctrinal law took a distinctive direction in decisions, and in particular considers contemporary opinion. The paper is the first to take a look at the particular Scottish development and opens up new avenues of research into the nineteenth century, and also frames developments in the modern law which I will pursue in future research.