Thursday, July 2, 2015

Rechtstaat and Recht in the German nuclear power debate

The latest Law and History Review has an article by Michael Hughes, "Rechtsstaat and Recht in West Germany's Nuclear Power Debate, 1975–1983".  The article begins:
Germans have long prided themselves on their commitment to the Rechtsstaat, the state based on the rule of law. However, they have not agreed on what would constitute a Rechtsstaat. Recht can mean “law,” or “right,” or “justice,” leaving open what a Rechtsstaat ought to establish. Moreover, a Rechtsstaat could be merely formal, an independently adjudicated process of applying statutes equally binding for all, or substantive, a process providing “justice.” Formal processes should minimize capricious decisions but could, in particular cases, produce outcomes that citizens perceived as unjust, and people are generally most committed to outcomes they believe to be just or appropriate. Not surprisingly, a complex debate developed among jurists, across a century and multiple regimes, over what the Rechtsstaat and Recht might mean.
Hans Weingartz,
Anti-AKW-Demonstration auf dem Bonner Hofgarten am 14. Oktober 1979
Nonjurists could also clash over the meanings of Recht and Rechtsstaat, as West Germans did in vigorous, often militant, clashes over nuclear power in the 1970s and 1980s. For proponents of nuclear power, Germany's economic future and the viability of the legal-political order were at stake in efforts to implement energy-policy decisions that had been reached democratically and according to legal and constitutional norms. For opponents, the life and health of current and future generations and the maintenance of a free society were at stake in preventing the construction of dangerous nuclear facilities, even if the political and legal processes had formally approved them. Germans on both sides of the issue appealed to Recht and the Rechtsstaat, but they did not agree about what that meant in practice. And whereas those citizens often replayed scholarly disputes, disputes over the Rechtsstaat and Recht were not for them purely academic exercises, but rather vital elements in a struggle in which, they believed, the stakes were life or death, freedom or oppression. And because Recht and Rechtsstaat were and are so complex, West Germans (individually and in association) had to choose among varying conceptions, often out of conviction but sometimes out of expediency.

Wednesday, June 24, 2015

Oysters, raisins, and water

Not a recipe for stew, but some of the elements of a US Supreme Court decision issued yesterday. Last month we noted John Eccheverria's discussion of the then-pending Horne v. Dept. of Agriculture, a case in which the court was asked to decide whether a government regulation requiring raisin growers to hand over some of their raisins to the government was a "taking" of property requiring compensation. The case seemed to bear a striking resemblance to a 1929 case, Leonard & Leonard v. Earle, in which the Supreme Court had ruled that a Maryland law requiring oyster packers to turn over shells to the state was not a taking. Echeverria noted that counsel for petitioners in Horne argued that the early case should be distinguished on the grounds that oysters, unlike raisins, were wild animals, and therefore the property of the state to begin with. This seemed to be a weak legal argument, running against Supreme Court decisions that called public ownership of wildlife "a mere fiction".

Piles of oysters in 1884 (Oysters for the Bay.Com)

It turns out that yesterday's decision bought the argument, a development with potentially far-reaching consequences for the ability of the government to protect nature without running afoul of the takings clause. Echevveria explains in a post yesterday:

Sunday, June 14, 2015

Hunting and conservation

Irus Braverman recently posted "Conservation and Hunting: Till Death Do They Part? A Legal Ethnography of Deer Management". The abstract:
Claims that hunters are exemplar conservationists would likely come as a surprise to many. Hunters, after all, kill animals. Isn’t there a better way to appreciate wildlife than to kill and consume it? Yet there is no mistake: wildlife managers frequently make the claim that hunters, in the United States at least, are in fact some of the greatest conservationists. This article explores the complex historical and contemporary entanglements between hunting and wildlife conservation in the United States from a regulatory perspective. Such entanglements are multifaceted: hunting provides substantial financial support for conservation and hunters are the state’s primary tools for managing “big game” populations. Additionally, many wildlife officials are themselves hunters, and wildlife management programs are often geared toward the interests of hunters. Statutes, regulations, and governmental policies have been set in place that both reflect and reinforce this intimate relationship. This article draws on seven in-depth, semi-structured interviews, mainly with government wildlife managers, as well as on my own participatory observations accompanying a wildlife manager on a hunting trip, to trace the interconnections between hunting and conservation and the detailed regulatory regimes that have emerged around them. The management of the white-tailed deer in New York State will serve as a case study for these explorations of how American wildlife officials think about, and practice, their work of governing wildlife hunting.

Sunday, June 7, 2015

Indian fishing rights

Thanks to the History Carnival hosted this month at NiCHE, we learned of Stephanie Milne-Lane's recently posted "Go Fish", an interesting look at the history of Indian fishing rights in the American Northwest. This is obviously a fruitful topic (see, e.g., here and here). From the post:
Looking at an image of (renowned Washington governor) Isaac Stevens, two things come to mind. First, he has a striking resemblance to Brad Pitt. Second, he looks like a man that gets what he wants, come hell or high water. As the first Territorial Governor of Washington and the Superintendent of Indian Affairs, Stevens did get what he (and by extension President Franklin Pierce) wanted. Charged with securing the land and cooperation of local tribes, Stevens negotiated a series of treaties, procuring the legal rights to 64 million acres of land in less than a year. Exuding the nineteenth century belief that land not dedicated to traditional farming was going to waste, Stevens’ treaties carried the underlying belief that Native Americans needed to assimilate into general—white—American culture by living and farming on designated reservations. However, Stevens also included a safety net of sorts in his treaties. Native Americans negotiated one key phrase in all of the treaties: “right of taking fish at all usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory.” In Stevens’ eyes, the phrasing eliminated the U.S. government’s obligation to supply food to the tribes during the transitional period from their traditional way of life to their lifestyle on reservations.[see Gabriel Chrisman, "The Fish-in Protests at Franks Landing"] His work complete, Stevens left the rain of the Pacific Northwest in 1857. However, his treaties and their phrasing would have long-standing implications. 
Isaac Stevens after his promotion to Brigadier General in 1861.
Committed to the yeoman farming ideal, many early American settlers concerned themselves with farming, logging, and mining, while Native Americans continued to fish at their usual and accustomed areas. However, by the turn of the 20th century the bountiful salmon and trout of the Evergreen State brought the issue of native fishing rights to the forefront. A tug-of-war between native fishing rights and entrepreneurial commercial fishing endeavors further strained already tense relationships, illuminating the muddied intentions of the state of Washington and prompting legal action.
More at SHRA's website.

Friday, June 5, 2015

Economics of Legal History

Daniel Klerman recently published an edited collection, Economics of Legal History (Elgar, 2015), which includes influential pieces on the history of natural resources law, including Harold Demsetz's "Toward a Theory of Property Rights", Robert Ellickson's "A Hypothesis of Wealth-Maximizing Norms: Evidence from the Whaling Industry".

The publisher's description:
Generations of law and economics scholars have been fascinated by history, seeing in its institutions and laws a vast database for illustrating their theories. Equally, historians have seen economic analysis as a helpful tool with which to analyze legal institutions. As a result a vibrant field has emerged in which people trained in law, economics, history and political science have all made significant contributions. This volume brings together the most important works examining legal history from an economic perspective. An original introduction by the editor provides a useful roadmap to the field.

Sunday, May 31, 2015

Origins of the Clean Air Act

Christopher Ahlers has posted "Origins of the Clean Air Act: A New Interpretation", what should be another nail in the coffin of the still-too-prevalent view that environmental law began around 1970. The abstract:
Given the increased national attention to the use of the Clean Air Act to address climate change, an analysis of the origins of the Clean Air Act is instructive for understanding the law in its current form. Contrary to the traditional view, the formation of the Clean Air Act was not the result of the events of the Year of the Environment, but rather, the gradual evolution of a federal regulatory approach to the medium of air between 1955 and 1970. Far from being weak and ineffectual, the federal air pollution laws of 1955, 1963, 1965, and 1967 laid the legal and conceptual framework for the modern Clean Air Act.
Harry Sternberg, Smoke Stacks in the Moonlight (1937)

Saturday, May 30, 2015

Environmental protection in New Zealand

Geoffrey Palmer has posted "The Resource Management Act - How We Got It and What Changes are Being Made to It". The abstract:
At a time when the New Zealand Government is proposing significant changes to New Zealand’s key environmental protection statute the Resource Management Act 1991, one of the architects traces the Act’s origin and history. The Act is based on the principle of sustainable management articulated in the report of the World Commission on Environment and Development in 1987. This chapter in a book analyses the forces that led to the enactment, particularly the National Development Act 1979. It also canvases weaknesses in the administration of the Act and critiques the Government’s proposals for reform.

Friday, May 29, 2015

Desegregation of national parks

Another article from Environmental History's virtual issue on environmental justice (other were noted here and here), Terence Young's "'A Contradiction in Democratic Government’: W. J. Trent, Jr., and the Struggle to Desegregate National Park Campgrounds", brings together environmental history and the history of desegregation, at the same time reminding us that desegregation in various contexts took place by administrative action before Brown v. Board of Education. The abstract:
Camping began in the nineteenth century as an elite form of pilgrimage to the wild, but the arrival of inexpensive automobiles in the early twentieth century greatly expanded camping's social diversity. The change was not universally embraced, especially when African Americans were involved, and the issue came to a head during the 1930s after two racially segregated national parks were opened in southern states. As complaints flowed in, William J. Trent, Jr., became adviser for Negro affairs to Interior Secretary Harold L. Ickes. He had no special interest in the outdoors or national parks, but Trent championed increased African American access to the parks and an end to discrimination in them. NPS leadership resisted Trent's efforts until Secretary Ickes ordered them to create one nonsegregated demonstration area in Shenandoah National Park in 1939. The policy was extended to other areas in 1941 and the next year, with World War II shifting into high gear, campground and other forms of segregation were ended throughout the park system.
Shenandoah National Park (National Park Service)

Thursday, May 28, 2015

Zoned in the USA

H-Environment recently posted Richard Walker's review of Sonia Hirt's Zoned in the USA: The Origins and Implications of American Land-Use Regulation (Cornell UP, 2014). Walker writes:
Hirt does four things in this volume. First, she lays out the essentials of American zoning and planning without getting lost in the details. Second, she makes the comparative case for the uniqueness of the United States in terms of its degree of spatial homogeneity and protection of the idealized single-family, detached house. Third, she gives a quick tour of the history of spatial separation in cities and especially the rise of urban planning in Europe, before returning to the deep roots of "exclusive domesticity" in America ideology from the colonial era onward. Finally, she provides a fine, brief history of the establishment of deed covenants and municipal zoning in the US case.
The essence of Hirt's analysis is that American zoning is distinct from all other national planning practices, and that it is so because the spatial order of American society and cities is unique. In this, history matters in showing the depth of American ideas and permanence of US practices concerning what Hirt calls "spatial individualism": freedom conceived geographically as isolation and elbow room. Frederick Jackson Turner goes to town, as it were. Along with this came a uniquely American preference for the single-family, detached house, which dominates urban space and legal practice as in no other country. Hirt certainly recognizes the importance of separating noxious uses from domestic tranquility as the foundation for zoning, but she is nicely attuned to two other things vital to spatial freedom in the American sense: freedom from having to mingle with the lower classes and races and freedom to profit from property development by keeping government at bay except to minimize uncertainty and risk. The desire for spacious, single-family housing segregated by class, race, and function was deeply ingrained in popular bourgeois culture.
One thing I particularly like in Hirt's historical approach is that, unlike almost all other treatments of zoning and spatial segregation in American cities, this one does not begin after World War Two and does not put the bulk of the blame on the federal government's mortgage policies. The New Deal simply put federal muscle and money behind what was already standard practice locked into the fabric of urbanization by the real estate industry and Herbert Hoover in the 1920s. As is so often the case in the United States, government policy and business interests went forth hand in hand to build cities profitably.

Friday, May 22, 2015

Maximum Sustained Yield

H-Environment recently posted a Roundtable Review of Carmel Finley's All the Fish in the Sea: Maximum Sustainable Yield and the Failure of Fisheries Management (U Chicago Press, 2011). Particularly interesting are the comments by Sayuri Guthrie-Shimizu. Some excerpts:
In her discussion of the surprising flimsiness of MSY as a scientific concept, Finlay points to the “scientific racism” beneath the attitudes of the American public officials and scientists concerned with fisheries regulation at mid-century. They long held the notion, or even truism as it were, that Japanese fish science was at best woefully lacking by Western standards of scientific rigor, and at worst nonexistent. In fact, Finley argues, Japan, because of its dependence on marine living resources, had a long and venerable history of studying fish stocks and their husbandry going back to the industrialization of the nation’s inshore and coastal fisheries in the nineteenth century. Japan was also a respected source of knowledge in the inchoate fish science sought by other nations from the 1930s on, including the United States…. Works by historians of Japanese fisheries such as Yoshitaka Takahashi attest that Finley is right: Japan had indeed developed a sophisticated administrative system of fisheries management based on systematic accumulation of data even before Japan was “forced open” by Commodore Matthew Perry and famously exposed to the benefits of Western science and technology. Another interesting point Finley makes about various iterations of American racism or ethnocentrism tainting the views of American scientists and practitioners is that the United States vilified the efforts by Central American coastal nations such as Ecuador and Peru to curb American bait fishing off their shores as an attempt to extract a “tribute” from US fishermen, and they refused to regard such control as a legitimate administrative prerogative exercised by sovereign states on a par with the United States.