Environmental law as a legal field: An inquiry in legal taxonomy

Cornell Law Review

Volumn 95, Issue 2, 2010, Pages 221-282

  Aagaard, Todd S ^a  

^a VILLANOVA UNIVERSITY   (United States)

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EID: 77749289281     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (364)

1. According to one telling of the joke, the Law of the Horse would consist of Contracting for a Horse, Owning a Horse, Torts by a Horse, and Litigation over a Horse. See Darian M. Ibrahim & D. Gordon Smith, Entrepreneurs on Horseback: Reflections on the Organization of Law, 50 ARIZ. L. REV. 71, 71-72 (2008)
2. (quoting Harold Hongju Koh, Is There a "New" New Haven School of International Law?, 32 YALE J. INT'L L. 559, 572 n.85 (2007));
3. see also Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 207 ("Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows."). For additional references to and discussion of the "Law of the Horse," see Easterbrook, supra, at 207, 214 (attributing the origin of the phrase to Karl Llewellyn);
4. Einer R. Elhauge, Can Health Law Become a Coherent Field of Law?, 41 WAKE FOREST L. REV. 365, 368 (2006);
5. Henry T. Greely, Some Thoughts on Academic Health Law, 41 WAKE FOREST L. REV. 391, 404-05 (2006);
6. Lawrence Lessig, Commentary, The Law of the Horse: What Cyberlaw Might Teach, 113 HARV. L. REV. 501, 501 (1999).
7. The first major federal environmental case, Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965), was decided in 1965. The first modern federal environmental statute, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f (2006), was signed into law on January 1, 1970.
8. See also RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW 48 (2004) (noting that 1970 saw, in addition to the signing of NEPA, "the creation of the President's Council on Environmental Quality, the first nationwide celebration of Earth Day, the creation of the U.S. Environmental Protection Agency, and the passage of the Clean Air Act's demanding and uncompromising air pollution control program").
9. See James L. Huffman, The Past and Future of Environmental Law, 30 ENVTL. L. 23, 23 (2000).
10. See, e.g., Uwe M. Erling, Approaches to Integrated Pollution Control in the United States and the European Union, 15 TUL. ENVTL. L.J. 1, 11-12 (2001);
11. Daniel A. Farber, Foreword, 32 ECOLOGY L.Q. 383, 386 (2005);
12. Robert L. Fischman, The Divides of Environmental Law and the Problem of Harm in the Endangered Species Act, 83 IND. L.J. 661, 662 (2008);
13. Elizabeth Fisher et al., Maturity and Methodology: Starting a Debate About Environmental Law Scholarship, 21 J. ENVTL. L. 213, 219 (2009);
14. Elizabeth Glass Geltman & Andrew E. Skroback, Reinventing the EPA to Conform with the New American Environmentality, 23 COLUM. J. ENVTL. L. 1, 29 (1998);
15. Christine A. Klein, Preserving Monumental Landscapes Under the Antiquities Act, 87 CORNELL L. REV. 1333, 1338 n.22 (2002);
16. Robert V. Percival, Regulatory Evolution and the Future of Environmental Policy, 1997 U. CHI. LEGAL F. 159, 190 (1997).
17. See, e.g., DANIEL A. FARBER, ECO-PRAGMATISM: MAKING SENSIBLE E NVIRONMENTAL DECISIONS IN AN UNCERTAIN WORLD 1 (1999);
18. Peter Manus, Our Environmental Rebels: An Average American Law Professor's Perspective on Environmental Advocacy and the Law, 40 NEW ENG. L. REV. 499, 516 (2006);
19. Joseph L. Sax, Environmental Law in the Law Schools: What We Teach and How We Feel About It, 19 ENVTL. L. REP. 10,251, 10,251 (1989);
20. David A. Westbrook, Liberal Environmental Jurisprudence, 27 U.C. DAVIS L. REV. 619, 621, 624-25 (1994).
21. See Farber, supra note 4, at 387 ("But without having any overall vision of the field, it is unclear how either agencies or courts can produce a halfway coherent approach to environmental law."); Fisher et al., supra note 4, at 219 ("[E]nvironmental law, as a subject, . . . has no single guiding logic, no overarching doctrinal framework or no 'constitutional' grounding."); Westbrook, supra note 5, at 621 ("[E]nvironmental law is not a discipline, because it lacks the professional consensus on a coherent internal organization of materials a discipline requires.").
22. See, e.g., Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm'n, 461 U.S. 375, 391 (1983);
23. GUIDO CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS 293-94 (1970).
24. To take just one example, important innovations during the 1970s in the legal rules that apply to residential property leasing were justified by virtue of a reassignment of residential leasing from the category of traditional property law to contract law. See, e.g., Javins v. First Nat'l Realty Corp., 428 F.2d 1071, 1074-75, 1077 (D.C. Cir. 1970) (rejecting the application of "old common law doctrines" of "real property transactions" and relying on contract principles to hold that a warranty of habitability should be applied to urban residential leases);
25. Sommer v. Kridel, 378 A.2d 767, 771-73 (N.J. 1977) (rejecting the application of "principles of property law" and relying on contract principles to hold that a landlord has a duty to mitigate damages if the landlord attempts to recover rent due from a defaulting tenant).
26. Cf. Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. CHI. L. REV. 1015, 1070 (2008) (contending that a "three-dimensional view" of property law "leads to a richer and more coherent view of the field" that enables "scholars and lawmakers . . . to tailor better solutions to current and future property problems").
27. See infra note 19 and accompanying text.
28. A. Dan Tarlock, Is There a There There in Environmenal Law?, 19 J. LAND USE & ENVTL. L. 213 (2004); Westbrook, supra note 5.
29. See Robert C. Berring, Legal Research and the World of Thinkable Thoughts, 2 J. APP. PRAC. & PROCESS 305, 306 (2000) ("Putting information in context gives the researcher a powerful tool for understanding legal information.");
30. Ugo Mattei, Three Patterns of Law: Taxonomy and Change in the World's Legal Systems, 45 AM. J. COMP. L. 5, 5 (1997) ("[Taxonomy] provides the intellectual framework of the law and it makes the law's complexity more manageable.");
31. Linda Silberman, Transnational Litigation: Is There a "Field"? A Tribute to Hal Maier, 39 VAND. J. TRANSNAT'L L. 1427, 1430 (2006) ("[T]ransnational litigation has become a field because the discrete pieces can only be understood in relation to each other and to the whole . . . ."); id. at 1431 ("The study of transnational litigation contains interrelated elements that must be brought together in order to understand and appreciate any one of them.");
32. Stephen A. Smith, Taking Law Seriously, 50 U. TORONTO L.J. 241, 243 (2000) ("Gaining knowledge of a subject is largely a matter of learning how to classify the subject and its constituent elements."); id. at 244 ("We draw classifications in law not just for the sake of classifying but because classifying rules, cases, and so on is a large part of what acquiring legal knowledge means.");
33. Daniel J. Solove, A Taxonomy of Privacy, 154 U. PA. L. REV. 477, 484 (2006) (contending that a good taxonomy "is not simply an attempt to catalog existing laws," but advances our understanding of the area of the law and thereby "provide[s] a useful framework for its future development");
34. see also GEOFFREY C. BOWKER & SUSAN LEIGH STAR, SORTING THINGS OUT: CLASSIFICATION AND ITS CONSEQUENCES 1 (1999) ("To classify is human.");
35. 1 ENGLISH PRIVATE LAW xxxi-ii (Peter Birks ed., 2000) ("The search for order is indistinguishable from the search for knowledge.").
36. But see Roscoe Pound, Classification of Law, 37 HARV. L REV. 933, 938 (1924) ("[W]e must renounce extravagant expectations as to what may be accomplished through classification of law. . . . For I doubt whether a classification is possible that will do anything more than classify.").
37. Emily Sherwin, Legal Positivism and the Taxonomy of Private Law, in STRUCTURE AND JUSTIFICATION IN PRIVATE LAW: ESSAYS FOR PETER BIRKS 103, 119 (Charles Rickett & Ross Grantham eds., 2008) (footnotes omitted); see also Mattei, supra note 12, at 6 ("Taxonomy plays an important role in transferring knowledge from one area of the law to another."); Smith, supra note 12, at 244 ("Classifying a particular decision . . . is a claim about the meaning of the decision, as well as about how the decision should be applied in the future. To make good decisions courts need to distinguish like from unlike: to understand the law scholars need to do the same thing. When lawyers and scholars argue about how a case should be decided, or about the meaning of a particular rule, they are in large part arguing about how to classify the case or the rule.").
38. See Elhauge, supra note 1, at 370 ("[D]o we gain insights from thinking as a group about the set of legal materials grouped under this rubric?").
39. See Jay M. Feinman, The Jurisprudence of Classification, 41 STAN. L. REV. 661, 674 (1989) ("Classification is designed to reduce the complexity of complex analysis and to highlight similarities and differences among the objects classified.");
40. Kenneth R. Richards, Framing Environmental Policy Instrument Choice, 10 DUKE ENVTL. L. & POL'Y F. 221, 232 (2000) ("A useful taxonomy . . . inform[s] the user about the important similarities and differences among the various items in the classification. . . . Taxonomy generally employs an organizing principle to differentiate among the elements of the classification." (footnotes omitted)).
41. Cf. 1 ENGLISH PRIVATE LAW, supra note 12, at xliii (noting that "different classifications simply answer different questions").
42. See WEST PUBLISHING CORP., THE WEST KEY NUMBER SYSTEM: ALPHABETICAL LIST OF DIGEST TOPICS 1 (2009), available at http://west.thomson.com/documentation/westlaw/wlawdoc/ wlres/keynmb06.pdf; see also Berring, supra note 12, at 309 (noting that the American Digest System "was built on a structure of topics and key numbers that allows for the detailed sorting of legal issues into neat categories and sub-categories" and "purports to describe every possible legal situation that can exist").
43. See, e.g., Goodman v. Lukens Steel Co., 482 U.S. 656, 660-62 (1987) (holding that state statute of limitations for tort actions applies to federal claims brought under 42 U.S.C. § 1981, because such actions sound in tort rather than contract);
44. Zurich Am. Ins. Co. v. Goodwin, 920 So. 2d 427, 433 (Miss. 2006) (noting that choice-of-law rules depend on the substantive area of law into which a case fails);
45. Hydro Conduit Corp. v. Kemble, 793 P.2d 855, 859-61 (N.M. 1990) (applying state statute that conferred sovereign immunity over "actions based on contract" and holding that an action seeking restitution for unjust enrichment fell within the category of contract for purposes of the statute).
46. See Nan D. Hunter, Risk Governance and Deliberative Democracy in Health Care, 97 GEO. L.J. 1, 17 (2008) (contending that the author's proposed framework provides a "lens" for understanding her field of health law through "greater intellectual coherence"); see also id. at 4 (noting the author's objective of developing "a more holistic and integrated conceptualization of health law"); id. at 19 (noting that the debate over the proper framework for health law "centers on how best to capture the uniqueness and coherence (if any) of health law").
47. I use the term "explanatory power" here to mean broadly the power to explain, not just predictive capability, as it sometimes is used. See, e.g., Anatol Rapoport, Explanatory Power and Explanatory Appeal of Theories, 24 SYNTHESE 321, 322 (1972). Explanatory power as I use the term includes, for example, what Anatol Rapoport called explanatory appeal, which he defined as "'integrative potential', the extent to which many apparently unrelated events are seen in the light of the theory to be related." Id. at 324.
48. Ann Althouse, Late Night Confessions in the Hart and Wechsler Hotel, 47 VAND. L REV. 993, 1001 (1994).
49. Theodore W. Ruger, Health Law's Coherence Anxiety, 96 GEO. L.J. 625, 628 (2008).
50. Id. at 630; see also id. (noting that "the academic preference for elegant and sparse theoretical coherence reflects a worthy intellectual goal of discernment and illumination"); id. at 631 ("In this framework the cure for the malaise is the imposition of some grand unifying theme, the discovery of which is a central test of the field.").
51. Chaim Saiman, Restating Restitution: A Case of Contemporary Common Law Conceptualism, 52 VILL. L. REV. 487, 511 (2007);
52. see also Robert C. Berring, Legal Research and Legal Concepts: Where Form Molds Substance, 75 CAL. L. REV. 15, 17 (1987) (ascribing to Christopher Columbus Langdell's approach to studying the common law the belief that "[a]ll of the pieces of the puzzle could be assembled into a coherent picture");
53. Brian Langille & Patrick Macklem, The Political Economy of Fairness: Frank Iacobucci's Labour Law Jurisprudence, 57 U. TORONTO L.J. 343, 343 (2007) (characterizing coherence as "a necessary precondition to principled decision making").
54. On the other hand, the legal profession may in some respects have an interest in maintaining at least some inscrutability in the law. See John Earnhardt, Cisco General Counsel on State of Technology in the Law, Cisco: The Platform (Jan. 25, 2007, 4:13 PM), http://blogs.cisco.com/news/ comments/cisco-general-counsel-on-state-of-technology-in-the-law/ (noting that Richard Susskind observed that when "law gets standardized, it can be outsourced, co-sourced, integrated, aggregated, syndicated and shared," empowering clients vis-à-vis their attorneys).
55. See, e.g., John Fabian Witt, Toward a New History of American Accident Law: Classical Tort Law and the Cooperative First-Party Insurance Movement, 114 HARV L. REV. 690, 706 (2001) (noting that the negligence principle in torts "satisfied the conceptualist desire to unify and systematize tort law at an exceedingly high level of generality around a single abstract principle");
56. Randy E. Barnett, The Richness of Contract Theory, 97 MICH. L. REV. 1413, 1414 (1999)
57. (reviewing ROBERT A. HILLMAN, THE RICHNESS OF CONTRACT LAW: AN ANALYSIS AND CRITIQUE OF CONTEMPORARY THEORIES OF CONTRACT LAW (1997)) (noting the rise in the 1970s and 1980s of contracts scholarship "in search of unifying theories of legal doctrine").
58. See Ruger, supra note 22, at 630 ("[T]he intellectual pressure to achieve singular coherence is felt most acutely by newer fields aspiring to more established, if not canonical, status."); see also Steven Price, Media Law in New Zealand, 36 VICTORIA U. WELLINGTON L. REV. 665, 665 (2005) (book review) (tying recognition of the coherence of media law to "[t]he emergence of media law as a legitimate field of study"); Saiman, supra note 24, at 519 ("In a variety of ways, the legitimacy of restitution [as a legal field] is entirely bound up in the debate regarding the conceptual coherence of the proposed analytic category.").
59. See supra text following note 20 (identifying the strength, simplicity, and predominance of a field's pattern as some of the factors that determine a field's explanatory power).
60. See, e.g., Saiman, supra note 24, at 518 (listing the field of sports law, among others, as one for which a central conceptual principle does not exist but that still is an emerging field of law).
61. See supra text following note 20.
62. See Robert Glennon, Water Scarcity, Marketing and Privatization, 83 TEX. L. REV. 1873, 1898 (2005);
63. A. Dan Tarlock, The Future of Prior Appropriation in the New West, 41 NAT. RESOURCES J. 769, 770 (2001).
64. Tarlock, supra note 31.
65. See id.
66. See Daphna Lewinsohn-Zamir, More Is Not Always Better than Less: An Exploration in Property Law, 92 MINN. L. REV. 634, 656 n.100 (2008) ("[S]ome Western states have recognized rights in instream flows, which entitle their holders to refrain from diversion and consumption of water, in order to protect endangered fish, wildlife and habitats, or for recreational purposes.");
67. A. Dan Tarlock & Sarah B. Van de Wetering, Growth Management and Western Water Law: From Urban Oases to Archipelagos, 14 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 983, 994-95 (2008) ("Non-consumptive uses have long been recognized, but these uses, such as fishery maintenance flows, were relatively minor until the 1970s.").
68. See, e.g., EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 1 (1949) (describing the three-step process of legal reasoning based on precedent: "similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case");
69. Susan Etta Keller, The Rhetoric of Marriage, Achievement, and Power: An Analysis of Judicial Opinions Considering the Treatment of Professional Degrees as Marital Property, 21 VT. L. REV. 409, 411(1996) (noting that courts decide cases by "extrapolat[ing] the facts at hand into a more universal pattern, connecting the precedent they will set to the precedent they follow"). This norm predominates even outside the confines of binding precedent within hierarchical court systems, as evidenced by the many cases in which courts of one jurisdiction rely on and address decisions from other jurisdictions.
70. See, e.g., Ortega v. City of New York, 876 N.E.2d 1189, 1195 (N.Y. 2007)
71. (citing Temple Cmty. Hosp. v. Super. Ct., 976 P.2d 223, 232 (Cal. 1999), in which the California Supreme Court declined to recognize a tort cause of action for intentional third-party spoliation of evidence);
72. State v. Lackey, 110 P.3d 512, 515 (N.M. Ct. App. 2005)
73. (citing State v. Wixom, 947 P.2d 1000, 1002 (Idaho 1997),
74. and State v. Richcreek, 930 P.2d 1304, 1308 (Ariz. 1997) (en banc), as cases in which the Idaho Supreme Court and the Arizona Supreme Court, respectively, concluded on "similar facts" that police officers lacked reasonable suspicion to stop defendants). Of course, this norm does not mean that judgemade law is entirely consistent. Different judges may read precedent differently or view facts differently, thereby reaching different decisions in similar cases.
75. See John Burritt McArthur, The Class Action Tool in Oilfield Litigation, 45 U. KAN. L. REV. 113, 148 (1996) ("Even though there is little disagreement over general [class] certification standards, the same facts can lead to different results in different courts."). Sometimes judges simply disagree and decline to follow each other's decisions.
76. See, e.g., Phila. Marine Trade Ass'n-Int'l Long-shoremen's Ass'n Pension Fund v. Comm'r, 523 F.3d 140, 151-52 (3d Cir. 2008)
77. (explicitly disagreeing with, and declining to follow, Deutsch v. Comm'r, 599 F.2d 44 (2d Cir. 1979),
78. and Miller v. United States, 784 F.2d 728 (6th Cir. 1986) (per curiam)). Nevertheless, the role of precedent-based reasoning in judicial decision making undeniably exerts an overall force that favors coherence.
79. See, e.g., LAZARUS, supra note 2, at 67-124 (discussing the political history of the major federal environmental statutes).
80. Cf. William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1408 (1988) (attributing to political scientist John Kingdon the argument that "Congress is an 'organized anarchy' whose deliberations are best characterized by the theory of 'garbage can decisionmaking.'"
81. (quoting J. KINGDON, AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES 47-73 (1984))). Areas of the law governed primarily by detailed administrative regulations may fall somewhere between judge-made law and statutory law. Agencies are, like legislatures, primarily political institutions. Like statutes, regulations are promulgated and revised in different lawmaking moments, in different contexts that result in different compromises among different competing interests. Moreover, because regulations derive from statutes, which may treat similar situations quite differently, differences among statutes may require agencies to enact regulations that approach similar problems differently under different statutes. Administrative regulations are almost inevitably more complex than legislation, and complexity is associated with incoherence.
82. Cf. Peter H. Schuck, Legal Complexity: Some Causes, Consequences, and Cures, 42 DUKE L.J. 1, 10 (1992) (arguing that, as compared with legislation, the delegation of discretion to agencies tends to result in legal rules that are more complex). Complexity is not necessarily congruent with incoherence, but the two characteristics are at least closely correlated. Other factors, however, may give agencies incentives to adopt consistent approaches in their regulations. Institutional or professional norms that transcend particular statutes may lead agencies to take similar approaches to disparate statutory situations, thereby increasing coherence. Because many of its statutes involve some form of evaluating risks to public health and the environment, for example, the Environmental Protection Agency has adopted guidance documents that prescribe a process for assessing carcinogenic risks that applies throughout the agency's activities.
83. See Notice of Availability of the Document Entitled Guidelines for Carcinogen Risk Assessment, 70 Fed. Reg. 17,765, 17,768-69 (Apr. 7, 2005). Moreover, the standards by which courts review agency rules encourage consistency among agency decisions.
84. See, e.g., Westar Energy, Inc. v. Fed. Energy Regulatory Comm'n, 473 F.3d 1239, 1241 (D.C. Cir. 2007) ("A fundamental norm of administrative procedure requires an agency to treat like cases alike.");
85. Hall v. McLaughlin, 864 F.2d 868, 872 (D.C. Cir. 1989) ("Reasoned decisionmaking requires treating like cases alike; an agency may not casually ignore its own past decisions." (footnote omitted)). In fact, however, most agency rules are more a product of political negotiations among competing interest groups than a reasoned attempt to create a coherent body of law.
86. See, e.g., Berring, supra note 24, at 15-16 (noting that William Blacktone's Commentaries "struggled to place the common law of England into a rational narrative structure" but that Blackstone "has been roundly excoriated by later critics for bending the data to fit his needs"); cf. Chaim Salman, Restitution in America: Why the US Refuses to Join the Global Restitution Party, 28 OXFORD J. LEGAL STUD. 99, 107 (2008) (noting the legal-realist view that "coherent classification of legal categories is all but impossible" because "[e]ach instance of adjudication presents a localized act of balancing the competing interests that the legal system can neither fully realize nor reconcile" (footnote omitted)).
87. See Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 U. CHI. L. REV. 511, 516 (2004) ("Tasks are said to be complex when their constitutive considerations are numerous, contradictory, ambiguous, and incommensurate. Most legal cases that are litigated and appealed are of this nature, in that the facts can be ambiguous, incomplete, and contradictory; different rules, values, and principles can be invoked to support opposite conclusions; and the case at hand can be somewhat analogous to more than one previous decision." (footnotes omitted)).
88. Daniel Dabney coined the phrase "universe of thinkable thoughts" to describe the way in which "categories for classifying the law . . . become the structure of the law," and "thoughts that aren't represented in the system . . . become unthinkable." Daniel Dabney, The Universe of Thinkable Thoughts: Literary Warrant and West's Key Number System, 99 L. LIBR. J. 229, 229-30 (2007); see also id. at 236 ("The essence of a classification scheme is to be a closed list of the salient ideas in the literature it serves, and when the system, by omitting an idea, implies that the idea is not sufficiently salient to be included, it can be an obstacle to considering the idea."). The phrase is probably more associated with Robert Berring, who agrees that Dabney originated the term. See, e.g., Berring, supra note 12, at 311 n.13.
89. Cf. BOWKER & STAR, supra note 12, at 5 ("[E]ach category valorizes some point of view and silences another."); id at 44 (noting that the act of creating a classification necessarily entails "deciding what will be visible or invisible within the system"); Dabney, supra note 40, at 233 (noting that a classification necessarily implies "that some aspects of the situation are more important than others").
90. See Ruger, supra note 22, at 629-SO (noting that the classical field-coherence paradigm "favors frames of analysis that are powerfully reductionist in character, and which purport to explain a vast array of legal materials with the use of one or a few core conceptual building blocks").
91. See Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695, 709-33 (2003).
92. See Feinman, supra note 15, at 691-92 (noting that, because classifications necessarily emphasize some features and deemphasize others, doctrinal classification leads to "framing bias," which occurs when the classification oversimplifies differences among cases within a category); cf. Simon, supra note 39, at 513 (explaining "coherence-based reasoning," a theory of cognitive psychology, which "posits that the mind shuns cognitively complex and difficult decision tasks by reconstructing them into easy ones").
93. See RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 163 (1985) (asserting the benefits of allowing "diversity and competition" among federal circuit courts);
94. Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679, 743 (1989) (noting that, when the Supreme Court grants certiorari to resolve a conflict among the federal circuits, it "benefit[s] from being able to observe the effects of the different legal regimes");
95. Richard A. Posner, Will the Federal Courts of Appeals Survive Until 1984? An Essay on Delegation and Specialization of the Judicial Function, 56 S. CAL. L. REV. 761, 785-86 (1983) ("If two circuits or two states are in conflict on a question, other circuits or other states benefit from the clash of views - the (literally) competing alternatives. The circuits as well as the states are laboratories for social, including judicial, experimentation . . . .").
96. See RESTATEMENT (SECOND) OF TORTS §§ 291-95 (1965).
97. See Catharine Pierce Wells, Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication, 88 MICH. L. REV. 2348, 2350-51 (1990).
98. See Schuck, supra note 37, at 29.
99. See Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies - and Their Connections to Substantive Rights, 92 VA. L. REV. 633, 637 (2006).
100. Ruger, supra note 22, at 627; see also Elhauge, supra note 1, at 367 (contending that a field of law does not require agreement about the contours, principles, or policy goals of the field); Mark A. Hall, The History and Future of Health Care Law: An Essentialist View, 41 WAKE FOREST L. REV. 347, 356 (2006) ("All the pieces do not need to fit into a tidy whole for [an area] to be regarded as a legitimate intellectual field, nor does [an area] have to be organized by theory or overarching principle."); Ruger, supra note 22, at 627 ("To say that [a field] is messy is not the same as saying it is random; to say it is multifaceted and difficult to center on a parsimonious internal core is not the same as saying it defies all abstraction and generalization."); Silberman, supra note 12, at 1429 (arguing that "a 'field' is not necessarily in need of a 'big think' unifying theory").
101. See Ruger, supra note 22, at 646-47 (noting that legal differences within a field facilitate comparative analysis).
102. See Silberman, supra note 12, at 1429 (arguing that an area of law "merits autonomous treatment" if it functions as "an interconnected whole").
103. Indeed, even if we did not make such decisions deliberately, adopting an organizational framework for a field implicitly would decide certain threshold questions.
104. One could classify the law into categories based solely on the definitions of the categories without applying an organizational framework beyond the mere definitions. But such an approach would untether the categories from their function (and therefore their rationale). It is the organizational framework for each field that identifies the analytical significance of the field as a category - that is, the rationale for the usefulness of the field as a classification.
105. Sherwin, supra note 13, at 110.
106. See Daniel J. Solove, Conceptualizing Privacy, 90 CAL. L. REV. 1087, 1096 (2002) ("Most often, theorists assess a conception by determining whether it is coherent - that is, whether it is logical and consistent.").
107. The task of identifying the concepts that are analytically helpful in understanding the field is addressed infra in Part I.C.2.
108. Cf. Mark P. Gergen, A Thoroughly Modern Theory of Restitution, 84 TEX. L. REV. 173, 174 n.8 (2005) (book review)
109. (contending that to make restitution a coherent field, Peter Birks "had to lop off one of its most memorable parts - restitution to reward rescue - and do some conceptual legerdemain to include some of its most important parts, such as the right of a joint tortfeasor who satisfies a claim to contribution from another joint tortfeasor" (citing PETER BIRKS, UNJUST ENRICHMENT 170-71 (2d ed. 2005))).
110. Some aspects of the conceptual model of legal fields developed in this Article do not apply well to fields of law, such as law and economics, that are organized around transsubstantive methodological approaches. See infra text accompanying note 99.
111. The extent to which this factual context is exogenous to the legal system varies considerably from field to field. Personal injuries and property damage exist regardless of law, and so the factual context of tort law is for the most part exogenous to the legal system. For other fields, the context is itself a creation of the law. Taxes, for example, cannot exist independently of the law, and so the factual context of tax law is to a considerable extent endogenous to the law. The factual context of fields such as remedies, civil procedure, and criminal procedure, moreover, are entirely endogenous to the law, in that the questions they address arise wholly within the law itself. See, e.g., Douglas Laycock, How Remedies Became a Field: A History, 27 REV. LITIG. 161, 164 (2008) (noting that the field of remedies addresses "the question of what to do about a completed or threatened violation of law").
112. Cf. Sherwin, supra note 13, at 108 ("Any two factual settings are alike and unlike in an indefinite number of ways, and the only way to determine which similarities and differences should count is to refer to some purpose or principle that picks out certain of them as relevant to what is being decided.").
113. See infra note 75 and accompanying text (arguing that the common features that cohere a field must be legally relevant).
114. Cf. Feinman, supra note 15, at 679-80 (defining factual classification, for which "the factual similarities among the situations governed by the doctrines within the system provide both the organization and the identifying criteria for the category").
115. See, e.g., Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 CORNELL L. REV. 531, 615 (2005) (presenting a property-law framework that the authors claim "illuminates the tradeoffs involved in the field");
116. Lawrence O. Gostin, A Theory and Definition of Public Health Law, 10 J. HEALTH CARE L. & POL'Y 1, 4, 12 (2007) (noting that "[t]he field of public health law presents complex tradeoffs," including "[a]chieving a just balance between the powers and duties of the state to defend and advance the public's health and constitutionally protected rights");
117. Theodore W. Ruger, The United States Supreme Court and Health Law: The Year in Review, 33 J.L. MED. & ETHICS 611, 611 (2005) ("Problems in the field of health law often force tradeoffs between uniformity and particularity in health care decision-making.").
118. See, e.g., Gostin, supra note 64, at 12 (identifying "the quintessential values of public health law - government power and duty, coercion and limits on state power, government's partners in the 'public health system,' the population focus, communities and civic participation, the prevention orientation, and social justice"); Ruger, supra note 22, at 635 (noting that fields could be analyzed by reference to recurring "primary interests," such as the right to bodily autonomy in health law).
119. See, e.g., F. Scott Kieff & Troy A. Paredes, The Basics Matter: At the Periphery of Intellectual Property, 73 GEO. WASH. L. REV. 174, 183 (2004) ("Antitrust law, IP law, and the general law of property and contracts are each well-established disciplines and bodies of law. . . . [W]e believe that general agreement can be found on the broad positive legal frameworks of each field and the core principles that undergird them.");
120. Robert A. Williams, Jr., Columbus's Legacy: Law as an Instrument of Racial Discrimination Against Indigenous Peoples' Rights of Self-Determination, 8 ARIZ. J. INT'L & COMP. L. 51, 67 (1991) ("Practitioners and students of United States Federal Indian Law are all intimately familiar with the three core, fundamental principles in the field from which all Supreme Court Indian law jurisprudence extends: the Congressional Plenary Power doctrine . . . .");
121. see also Larry Reibstein, Leveling the Political Field, THE LAW SCHOOL: THE MAGAZINE OF THE NEW YORK UNIVERSITY SCHOOL OF LAW, Autumn 2008, at 21 (quoting Owen Fiss questioning whether the founders of the field of "Law of Democracy" have identified "an 'autonomous set of principles' governing election law that would properly constitute a law of democracy").
122. Cf. Sherwin, supra note 13, at 105-08 (noting that legal taxonomies can classify either posited legal rules, ideal legal rules, or "semi-ideal rules attributed to legal decisions"). Although here I equate prescriptive with normative, see, for example, James K Hammitt, Response, Saving Lives: Benefit-Cost Analysis and Distribution, 157 U. PA. L. REV. PENNUMBRA 189, 195 (2009), http://www.pennumbra.com/responses/03-2009/Hammitt.pdf,
123. a distinction sometimes is drawn between the two, see, for example, Adrian Vermeule, Connecting Positive and Normative Legal Theory, 10 U. PA. J. CONST. L. 387, 390 (2008) (distinguishing normative "claims about what ends it would be good to adopt" and prescriptive "claims about the best means to adopt, given stipulated ends").
124. See Sherwin, supra note 13, at 105-07.
125. See id. at 106 (noting that, for prescriptive taxonomy, legal categories - as well as the proposed legal rules themselves - should reflect some "external criterion of legal goodness - moral, economic or otherwise").
126. See id. at 111 ("[T]he same scholarly interests . . . that lead a taxonomer to attempt to formulate ideal rules or extrapolate best-they-can-be legal rules . . . will also tend to attract him . . . to a normative framework . . . .").
127. See, e.g., id. at 121-22 (explaining that even Birks, a firm believer in providing formal descriptive categories, "appear[s] to stray into normative territory").
128. See, e.g., sources cited supra note 18 (citing cases in which classification as a tort or contract is determinative as to what legal rule applies).
129. See David Luban, What's Pragmatic About Legal Pragmatism?, 18 CARDOZO L. REV. 43, 69 (1996) ("The crucial difference between law and science is that scientific data are measured physical quantities, not the holdings of other scientists.");
130. Geoffrey Samuel, English Private Law: Old and New Thinking in the Taxonomy Debate, 24 OXFORD J. LEGAL STUD. 335, 362 (2004) ("Law is a social science rather than a natural science and the object of its science is very different. One is not categorizing objects that are empirical and on the whole lend themselves to classification. One is trying to classify objects that are fluid and whose empirical nature can be perceived only through schemes and paradigms . . . .")
131. See supra Part I.C.2.
132. See Feinman, supra note 15, at 680 (arguing that the factual characteristics that define a legal field should be "not arbitrary, but [should] reflect the analytical and instrumental aims of the process," such as "principles, policies, or interests" common to the category); Hall, supra note 50, at 361 (arguing that the defining features of a field of law must be "central to the analysis or inquiry, rather than . . . simply being an incident of generic law's subject matter"); Ibrahim & Smith, supra note 1, at 74-75 (contending that whether a factual attribute defines a legitimate field of legal study depends on whether the attribute is "a legally relevant fact"); see also Silberman, supra note 12, at 1430 (arguing for the existence of international litigation as a field of law "because international and comparative perspectives shape and influence the development of rules").
133. See supra note 1 and accompanying text.
134. Usually the commonality is a description of existing law, rather than a purely normative prescription for how one thinks the law should be. One could imagine, however, an emerging field in which a theoretical superstructure precedes any common legal doctrine. The field of cyberlaw definitely required the existence of cyberspace, but the field could have preceded the creation of any law of cyberspace by anticipating such law and setting forth a normative framework for thinking about it. It is more difficult to imagine a legitimate field of existing law defined by reference to a normative framework that does not match, at least in significant part, extant legal doctrine. At the very least, such a circumstance would seem to require defining the field at a sufficient level of generality to encompass both the existing doctrine and the theoretical alternative.
135. See, e.g., Stuart P. Green, The Concept of White Collar Crime in Law and Legal Theory, 8 BUFF. CRIM. L. REV. 1, 28-29 (2004);
136. David Millon, Objectivity and Democracy, 67 N.Y.U. L. REV. 1, 18 n.54 (1992);
137. J.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 779-99 (1996); Solove, supra note 56, at 1095-99.
138. Solove, supra note 56, at 1095-96.
139. Id. at 1095-98 (internal quotation marks omitted); see also Solove, supra note 12, at 485-86 (noting that certain "activities [can] differ significantly yet share many commonalities").
140. See Easterbrook, supra note 1, at 207-08 ("Teaching 100 percent of the cases on people kicked by horses will not convey the law of torts very well.").
141. Cf. Dabney, supra note 40, at 235 (noting that employing a classification that needlessly separates cases from each other "has the potential at least to make the law less coherent" by obscuring characteristics that transcend categories in the classification).
142. Although they have articulated the criterion in different ways, several scholars have identified some form of distinctiveness as a requirement for a legitimate legal field. See, e.g., W. Burlette Carter, Introduction: What Makes a "Field" a Field?, 1 VA. J. SPORTS & L. 235, 244 (1999) (contending that "a field becomes a field" when "we shape it as such, defining the concepts and legal norms that will prevail uniquely in that context" and the field thereby receives "some special treatment . . . in the law"); Elhauge, supra note 1, at 369 ("[D]oes the purported field address the legal treatment of a distinct set of relations?"); Hall, supra note 50, at 357-58 ("For a body of substantive law to emerge as a distinctive field of intellectual inquiry, it must be more than just an assortment of rules that results from applying other bodies of substantive law to a particular economic sector or human activity. Such a field is not intellectually distinctive unless there are one or more attributes of the economic or social enterprise in question that make it uniquely important or difficult in the legal domain.");
143. Peter W. Hohenhaus, An Introductory Perspective on Computer Law: Is It, Should It Be, and How Do We Best Develop It as, a Separate Discipline?, Apr. 1991, at § D, 1991 WL 330761 ("The subject matter of the proposed discipline and its legal ramifications should not comfortably or effectively fit within existing legal frameworks . . . ."); Ibrahim & Smith, supra note 1, at 76 ("[A] new field of legal study is justified when a discrete factual setting generates the need for distinctive legal solutions. This distinctiveness may manifest itself in the creation of a unique set of legal rules or legal practices, in the unique expression or interaction of more generally applicable legal rules, or in unique insights about law." (footnotes omitted)).
144. See Ibrahim & Smith, supra note 1, at 85.
145. See supra notes 78-80 and accompanying text.
146. Cf. Feinman, supra note 15, at 699 ("The elements of different paradigms overlap, but there is considerable redundancy among the elements of a particular paradigm; that is, most of the elements of a paradigm are more highly correlated with elements of the same paradigm than with elements of other paradigms.").
147. Easterbrook, supra note 1, at 207. Although Easterbrook expressed a preference for principles that apply to "the entire law," perhaps stemming from his allegiance to a transsubstantive law-and-economics framework, he seemed to recognize that at least some of the general or unifying principles he sought to illuminate may apply only in certain categories of cases. See, e.g., id. at 208 (noting "broader rules about commercial endeavors"). His inclination, however, was clearly toward drawing the most expansive categories possible.
148. E.g., id. at 208 (arguing that, instead of developing a law of cyberspace, we should "[d]evelop a sound law of intellectual property, then apply it to computer networks").
149. Lessig, supra note 1, at 502-03.
150. Id. at 502.
151. Id. at 503.
152. Id.
153. See Paul L. Caron, Tax Myopia, or Mamas Don't Let Your Babies Grow Up to Be Tax Lawyers, 13 VA. TAX REV. 517, 541-45 (1994) (praising academic authors who "undertake tax-specific work that generates insights into the process of statutory construction generally" (footnote omitted)
154. (citing Lawrence Zelenak, Thinking About Nonliteral Interpretations of the Internal Revenue Code, 64 N.C. L. REV. 623, 626-27 (1986),
155. and Michael Livingston, Congress, the Courts, and the Code: Legislative History and the Interpretation of Tax Statutes, 69 TEX. L. REV. 819 (1991))).
156. See, e.g., 29 C.F.R. § 1910.1000 (2008) (regulating occupational exposure to mercury in air); 40 C.F.R. § 61.50-.56 (2008) (regulating environmental emissions of mercury into air).
157. See Greely, supra note 1, at 405-06 ("[M]any time-honored law school subjects and legal fields are . . . courses and fields about the law as it is applied in specific settings, not about generalized law . . . . [A]lthough health law provides some insights that may be useful in other areas of the law, . . . that is not crucial to its importance.").
158. Indeed, Lessig accepts Easterbrook's challenge to satisfy his transcendence test without conceding that cyberspace must satisfy the test to achieve legitimacy. See Lessig, supra note 1, at 502-03.
159. Jay Feinman has expressed concern that the pursuit of transcendence may succeed too well, yielding "a metaprinciple that threatens to dissipate [the particular field's] integrity as an independent subject and render it a mere application of some transcendent method of analysis." Feinman, supra note 15, at 671. Feinman's point is analogous to the aforementioned concern that the excessive pursuit of coherence may lead us to overlook meaningful variations in the law. See supra notes 38-44 and accompanying text.
160. See Michael Lockwood, Humans Valuing Nature: Synthesizing Insights from Philosophy, Psychology and Economics, 8 ENVTL. VALUES 381, 395-96 (1999) (noting that institutional context influences how values are expressed).
161. See supra text following note 58 (nothing that legal fields can be organized on the basis of, among other things, a substantive topic, an aspect of the legal process, an institutional actor, or a transsubstantive methodological approach (for example, law and economics or comparative law)).
162. See Lewis A. Kornhauser, The Great Image of Authority, 36 STAN. L. REV. 349, 353-55 (1984) ("Every article in law and economics adheres, explicitly or implicitly, to one or more of four logically distinct theses: Economic theory provides a good theory for predicting how people will behave under rules of law (the behavioral claim). . . . The law ought to be efficient (the normative claim). . . . The (common) law is in fact efficient (the positive claim). . . . The common law tends to select efficient rules, although not every rule will, at any given time, be efficient (the genetic claim)." (emphasis omitted)).
163. See, e.g., Mark A. Hall & Carl E. Schneider, Where Is the "There" in Health Law? Can It Become a Coherent Field?, 14 HEALTH MATRIX 101, 103 (2004) (arguing that "[m]edical law deals with medical activities in too many settings" to yield a "grand organizing principle").
164. See supra text following note 20.
165. But cf. Jack Goldsmith & Daryl Levinson, Law for States: International Law, Constitutional Law, Public Law, 122 HARV. L. REV. 1791, 1865 (2009) (arguing that "constitutional and international law, proceeding along parallel tracks, have dealt with a common set of practical and theoretical problems . . . with similar analytic tools, and they have converged on a remarkably similar range of solutions" and expressing the hope that "the commonalities of their respective enterprises will produce intellectual synergies" and thereby "shed new light on public law as a field of academic inquiry").
166. Cf. Hall & Schneider, supra note 101, at 103 (criticizing existing health-law doctrine for "draw[ing] its doctrines from the many fields of law that govern ordinary commercial affairs," without considering whether the distinctive context of health law sometimes supports a different legal rule).
167. See Mattei, supra note 12, at 8 ("[N]o taxonomy can claim universality by serving every . . . purpose better than every alternative one.").
168. See, e.g., Christensen O'Connor Johnson Kindness PLLC, Chemical Practice Group, http://www.cojk.com/ourpractice/chemicalprocesspatents.html (last visited Oct. 22, 2009);
169. McAndrews, Held & Malloy, Ltd., Chemical Practice Group, http://www.mhmlaw.com/brochure/chemical.pdf (last visited Oct. 22, 2009).
170. See Carter, supra note 83, at 243-44 (arguing that there is a "need for a law school curriculum that provides opportunities for integration" of multiple legal fields and identifying sports law as a "bridge course[ ]" that could help meet this need).
171. See Laycock, supra note 60, at 167-68.
172. See id.
173. Some private-law theorists have posited that, under a proper taxonomic system, legal categories can be arranged in a hierarchy under which categories at the same level of generality do not overlap. See, e.g., Peter Birks, Unjust Enrichment and Wrongful Enrichment, 79 TEX. L. REV. 1767, 1781 (2001) ("The test of the validity of a taxonomy is precisely the question of whether any item within its purview can appear in more than one category purportedly pitched at the same level of generality."); see also Feinman, supra note 15, at 664 ("Every categorization implies a choice between categories, a decision that the case belongs in one place rather than another."). However ill- or well-advised such a rule is in the private-law context, see Sherwin, supra note 13, at 123 (expressing "doubt[ ]" about Birks's position), for public law, such a rule seems demonstrably wrong. For example, legal issues often arise within the categories of both environmental law and bankruptcy law, neither of which is a subcategory of the other.
174. See, e.g., Midlantic Nat'l Bank v. N.J. Dep't of Envtl. Prot., 474 U.S. 494 (1986) (addressing whether federal bankruptcy law displaces state environmental law);
175. United States v. Hansen, 262 F.3d 1217, 1237-39 (11th Cir. 2001) (addressing whether a corporate executive's limited authority over operations due to bankruptcy of the corporation foreclosed holding the executive criminally liable for corporation's environmental violations);
176. see also, e.g., Hayes v. Crown Cent. Petroleum Corp., 78 Fed. App'x 857, 862-63 (4th Cir. 2003) (addressing whether proxy solicitation violated the Securities Exchange Act by not disclosing the favorable impact that would result if a corporation settled a labor dispute, a question potentially falling within the fields of both labor law and securities law).
177. See United States v. Bestfoods, 524 U.S. 51, 70 (1998) (stating that the issue was one in which corporate-law principles should apply and chastising the district court for failing to apply corporate-law standards).
178. Feinman, supra note 15, at 667-68.
179. See supra notes 2-6 and accompanying text.
180. See Richard J. Lazarus, Thirty Years of Environmental Protection Law in the Supreme Court, 17 PACE ENVTL. L. REV. 1, 14 (1999) ("For most of the Court, most of the time, environmental law has become no more than a subspecies of administrative law, raising no special issues or concerns worthy of distinct treatment as a substantive area of law. Environmental protection is merely an incidental context for resolution of a legal question.");
181. see also Jay D. Wexler, The (Non)Uniqueness of Environmental Law, 74 GEO. WASH. L. REV. 260, 262 (2006) ("[S]cholars must clarify, with some specificity, what it would mean for courts to treat environmental law as a distinct area of law.").
182. Tarlock, supra note 11.
183. Westbrook, supra note 5.
184. For examples of works excerpting or citing Tarlock's article, see DANIEL A. FARBER ET AL., CASES AND MATERIALS ON ENVIRONMENTAL LAW 4-8 (7th ed. 2006);
185. ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 62-63 (5th ed. 2006); Farber, supra note 4, at 388 & n.36.
186. For examples of works citing Westbrook's article, see David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 ECOLOGY L.Q. 545, 553 n.21 (1997);
187. Albert C. Lin, The Unifying Role of Harm in Environmental Law, 2006 WIS. L. REV. 897, 908 n.63;
188. Eric W. Orts & Paula C. Murray, Environmental Disclosure and Evidentiary Privilege, 1997 U. ILL. L. REV. 1, 40 n.210;
189. Douglas A. Kysar, The Consultants' Republic, 121 HARV. L. REV. 2041, 2057 n.41 (2008) (book review).
190. Tarlock, supra note 11.
191. Id. at 215-17.
192. Id. at 217.
193. Id. at 218-19. Tarlock offers labor law as an example of a field that has ossified. Labor law "was once a new and dynamic area of the law, but now suffers from a combination of legislative and judicial hostility." Id. at 226.
194. Id. at 221-22.
195. Id. at 218; see also id. at 228 ("One of the primary characteristics of a distinct area of law is that it contains a relatively unique set of core principles distinguishing it from other areas of the law."); id. at 222-23 (arguing that environmental law compares unfavorably to iconic fields such as contract, tort, property, and criminal law that exhibit "a pre-existing set of widely accepted legal doctrines").
196. Id. at 220, 222.
197. Id. at 230.
198. Id. at 248-53.
199. Id. at 220.
200. Id. at 239-40.
201. Westbrook, supra note 5.
202. Id. at 621.
203. See id. at 622-23 & n.3.
204. Id. at 621-22.
205. See id. at 631-47.
206. Id. at 680.
207. See id. at 647-62.
208. Id. at 662, 681.
209. See id. at 652; id. at 661 ("By passing regulations, bureaucrats attempt to replace consumer choice aggregated through the flawed unregulated market with reasoned guesses about the aggregation of consumer choice in a hypothetical well-functioning market").
210. See id. at 663-80.
211. See id. at 666-67, 670-73.
212. Id. at 693-94. Westbrook is not the first scholar, of course, to note the difficulty of protecting environmental values within a legal, social, and economic system that focuses overwhelmingly on individual human welfare. See, e.g., Frank B. Cross, Natural Resource Damage Valuation, 42 VAND. L. REV. 269, 295-96 (1989) ("As long as government is making the legal rules and as long as only humans vote, the concerns of nature never will be reflected directly in our nation's governmental policy. Most environmental laws enacted to date focus on protecting people's interest in the natural environment").
213. On the other hand, the "pervasive connections between human welfare and the surrounding environment," Daniel A. Farber, A Place-Based Theory of Standing 55 UCLA L. REV. 1505, 1549 (2008), mean that almost every environmental impact affects human welfare in some way,
214. see Zygmunt J.B. Plater, The Three Economies: An Essay in Honor of Joseph Sax, 25 ECOLOGY L.Q. 411, 433 (1998) ("Some marketplace externalities may only affect natural systems, with no human consequences, but many others pass through the environment into the human welfare context of civic-societal economics.").
215. Westbrook, supra note 5, at 708; see also id. at 695 ("Environmental law can be understood as a succession of attempts to square the circle and phrase claims of the external environment within the internal logic of liberalism."); id. at 701 ("The emergence of illiberal values, such as a substantive value in nature, within the context of liberal law is thus incessantly problematic").
216. See id. at 709, 711.
217. For example, a recent major Supreme Court environmental case, Environmental Defense v. Duke Energy Corp., 549 U.S. 561 (2007), involved a dispute between federal regulators and the owner of a coal-fired electricity plant over whether modifications made by the owner at the plant rendered the plant a new or modified source that, under the Clean Air Act, must adopt more stringent pollution-control technology, see id. at 570-71. Duke Energy is a clear example of a case implicating Tarlock's fourth principle, which holds that polluters must continually upgrade waste reduction and processing technology. See Tarlock, supra note 11, at 252.
218. See Tarlock, supra note 11, at 218 (opining that environmental law should reflect environmentalism as "a potentially transformative, fundamental, if still semi-coherent and contested paradigm shift in the ways in which we enjoy the use of our air, water, and soil planetary life support systems and our biodiversity heritage"); Westbrook, supra note 5, at 711-12 (expressing hope that environmental law will come to reflect "an understanding of nature").
219. Tarlock is unclear about whether his principles are primarily descriptive or prescriptive. See Tarlock, supra note 11, at 248-49 (describing his candidate principles as "a mix of how environmental law has evolved and how it should evolve"). Westbrook adopts a largely descriptive framework, which he employs at the end of his article to make prescriptive arguments. See Westbrook, supra note 5, at 621 (identifying his goal of organizing "the basic materials of environmental law" - "the key statutes, cases, and articles that every environmental lawyer knows and every casebook contains" - "into a coherent whole"); id. at 711 (arguing in favor of "[a] vision of nature adequate to inform environmental jurisprudence" that "would transform politics").
220. See infra text accompanying note 181.
221. Thus, Tarlock's first principle posits that environmental law should minimize uncertainty before actions are taken. See Tarlock, supra note 11, at 249. However, this principle also acknowledges that decisions must be made despite lingering uncertainty. See id. at 249 (acknowledging that some information will be acquired "as you act," after an initial decision has been made). Tarlock's second principle advocates avoiding environmental degradation. See id. at 250. He nevertheless acknowledges that "[a] general non-degradation standard . . . is not possible" and that degradation should be allowed "if there are no acceptable alternatives." Id. Tarlock's third principle asserts that government can regulate substances or activities based on a risk of an adverse impact without proving that the impact will definitely occur, but only if the government can justify the regulation. Id. at 251-52. Tarlock's fourth principle provides that environmental law should continuously advance technology. Id. at 252. He would nonetheless have to concede that a source that very recently upgraded to the best available technology, at great expense, must be exempted at least temporarily from further required upgrades. Tarlock's fifth and final principle advocates making decisions inclusive, except when doing so exceeds the limits of rationality. Id. at 253.
222. See supra Part I.C.2.
223. See Tarlock, supra note 11, at 228 (expressing concern that environmental law "will lose power in the judicial and political arena"); id. at 254 (expressing hope that environmental law will "evolve into a permanent check on the full range of resource consumption decisions").
224. See id. at 218-19.
225. Id. at 218.
226. Id. at 218, 221-23, 228.
227. "'Conceptualism' describes legal theories that place a high value on the creation (or discovery) of a few fundamental principles and concepts at the heart of a system . . . ." Thomas C. Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1, 9-10 (1983).
228. Cf. supra Part I.B.
229. See infra Part II.F.
230. It is interesting that Tarlock identifies, as a conceptual "model" for environmental law, areas of natural-resource law that exhibit coherence based on "the special physical characteristics of a resource and the social dynamics that shaped the conflicts over the use of it." Tarlock, supra note 11, at 230. To my mind, Tarlock's subsequent analysis of environmental law in his article does not particularly reflect this conceptual model. The approach to environmental law that I propose in this Article, however, strongly resembles this conceptual model. See infra Part II.C-H.
231. See Westbrook, supra note 5, at 621.
232. Id. at 711.
233. See infra Part II.C.1-3.
234. See Westbrook, supra note 5, at 693-95.
235. See, e.g., MARTHA ALBERTSON FINEMAN, THE AUTONOMY MYTH: A THEORY OF DEPENDENCY 20-22, 28-30 (2004) (characterizing autonomy as a "foundational myth[ ]");
236. Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 78-82;
237. David R. Carlin, Jr., The Crusoe Fallacy: Who Is in Charge Here? Me, Me, Me. . ., COMMONWEAL, Feb. 14, 1997, at 7.
238. Cf. Hunter, supra note 19, at 20 (criticizing other frameworks proposed for health law on the ground that they "omit[ ] too much of what constitutes the core of legal regulation of the health care system").
239. 33 U.S.C. §§ 1251-1387 (2006).
240. 42 U.S.C. §§ 7401-7671q (2006).
241. See, e.g., Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-85 (2006).
242. My use of the term natural environment here is not intended to suggest the existence of nature entirely independent of human impacts. As several scholars have noted, "[t]here really is no such thing as nature untainted by people." Peter Kareiva et al., Domesticated Nature: Shaping Landscapes and Ecosystems for Human Welfare, 316 SCI. 1866, 1866 (2007)
243. (citing Eric W. Sanderson et al., The Human Footprint and the Last of the Wild, 52 BIOSCIENCE 891 (2002));
244. see also William Cronon, Introduction: In Search of Nature, in UNCOMMON GROUND: TOWARD REINVENTING NATURE 23, 25 (William Cronon ed., 1995) ("The work of literary scholars, anthropologists, cultural historians, and critical theorists over the past several decades has yielded abundant evidence that 'nature' is not nearly so natural as it seems.").
245. Compare, e.g., 43 U.S.C. § 1712(c)(3) (instructing the Secretary of the Interior, in the management of public lands administered by the Bureau of Land Management, to "give priority to the designation and protection of areas of critical environmental concern"), with 43 U.S.C. § 1712(c)(1) (instructing the Secretary of the Interior, in the management of the same public lands, to "observe the principles of multiple use and sustained yield," which are defined in § 1702(c) to include the potential extraction of timber and minerals).
246. See I.R.C. § 280F(a)(1)(A), (d)(5)(A) (2006) (allowing greater tax deduction for some sport-utility vehicles than for other cars because the definition of a luxury automobile - subject to limited depreciation deduction - is more stringent for cars than for SUVs); id. § 4064 (applying an excise tax to domestic sales of cars that do not satisfy fuel-economy standards but exempting vehicles that weigh more than 6,000 pounds); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 678, 696-99 (1973) (reviewing environmental group's challenge to Interstate Commerce Commission's approval of rail-freight increases).
247. See, e.g., Clean Air Act § 125, 42 U.S.C. § 7425(b) (authorizing rules or orders prohibiting certain air-pollution sources "from using fuels other than locally or regionally available coal or coal derivatives").
248. See, e.g., 10 U.S.C. § 2378 (2006) (requiring military procurement of copier paper to contain specified percentages of post-consumer recycled content); Pub. L. No. 106-181, § 157, 114 Stat. 61, 89 (2000) (directing the Federal Aviation Administration to study "the use of recycled materials . . . in pavement used for runways, taxiways, and aprons").
249. See infra Part II.A.
250. Cf. Wexler, supra note 114, at 283-84 (noting some of the problems with defining what law is environmental and opining that "sort[ing] these issues out[ ] . . . would be difficult and time consuming").
251. See Alyson C. Flournoy, In Search of an Environmental Ethic, 28 COLUM. J. ENVTL. L. 63, 64 n.2 (2003) ("I use the term environmental law to describe the vast realm of law, largely statutory, that addresses human actions affecting the rest of the natural world.");
252. Errol E. Meidinger, The New Environmental Law: Forest Certification, 10 BUFF. ENVTL. L.J. 211, 262 (2002-03) ("Environmental law can be generally defined as the law governing the relationships of humans to the biophysical environment").
253. See North American Agreement on Environmental Cooperation, U.S.-Can.-Mex., art. 45.2(a), Sept. 14, 1993, 32 I.L.M. 1480, 1495, available at http://www.cec.org/pubs-info-resources/law-treat-agree/naaec/download/ Naaec-e.txt (defining "environmental law" as "any statute or regulation . . . the primary purpose of which is the protection of the environment, or the prevention of a danger to human life or health");
254. CRAIG N. JOHNSTON ET AL., LEGAL PROTECTION OF THE ENVIRONMENT 1 (2d ed. 2007) ("Environmental Law is law designed to protect the environment, and the plants and animals that rely on it, including us."); LAZARUS, supra note 2, at 1 ("[E]nvironmental law regulates human activity in order to limit ecological impacts that threaten public health and biodiversity.");
255. Michael C. Blumm, Studying Environmental Law: A Brief Overview and Readings for a Seminar, 12 J. ENERGY NAT. RESOURCES & ENVTL. L. 309, 310 (1992) ("Environmental law is a loose amalgam of common law and (increasingly) statutory provisions designed to protect public health, ecosystems, and dependent animal and plant species.").
256. See A. Dan Tarlock, The Future of Environmental "Ride of Law" Litigation, 19 PACE ENVTL. L. REV. 575, 576 (2002) (defining environmental law as "the positive and common law that reflects environmentalism," which Tarlock in turn defines as "an emerging philosophy or value system which posits that we living humans should assume science-based ethical stewardship obligations to conserve natural systems for ourselves as well as for future generations" (footnotes omitted)).
257. ZYGMUNT J.B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY 5 (3d ed. 2004); see Tarlock, supra note 11, at 221 ("[T]he term 'environmental' has become so all-encompassing that it has been robbed of any operative meaning; it needs contours.").
258. See, e.g., Kim Diana Connolly, The Ecology of Breastfeeding, 13 SE. ENVTL. L.J. 157, 157, 165 (2005) (arguing that "laws that support breastfeeding should be considered environmental laws" because such laws reduce "the negative environmental impacts of production and distribution of artificial baby milk").
259. See Solove, supra note 56, at 1096 (noting that theorists
260. See supra note 168 and accompanying text.
261. See infra Part II.C.
262. This definition is not, however, unproblematic. In particular, it fails to illuminate fully another core characteristic of environmental problems: the pervasiveness of the relationship between human activities and the natural environment. The allocation of government spending between mass transit and roadways, for example, may significantly affect whether individuals decide to take mass transit or to drive, with concomitant effects on the environment. But transportation-funding legislation, unless enacted in part to address environmental impacts, would generally not be considered part of environmental law. Some provisions of federal pollution statutes, on the other hand, may have little (if any) real environmental impact See, e.g., Clean Water Act § 513, 33 U.S.C. § 1372 (2006) (setting forth labor standards for laborers and mechanics employed by contractors or subcontractors working on water-treatment works funded by Clean Water Act grants). If we are to use the category of environmental law to think critically about the relationship between law and the environment, we must examine that relationship both where it is intentional and where it is unintentional. To include every minor provision of the Clean Water Act within the definition of environmental law, but to exclude laws not aimed at the environment but that may have far greater environmental impacts, somewhat misallocates our attention. Excluding from the definition of environmental law laws that have inadvertent environmental impacts creates a problematic divide between the study of environmental problems and environmental law. Rather than expanding the definition of environmental law to include all laws that are relevant to the physical environment, which would implicate the aforementioned draw-backs of overinclusiveness, an additional category can be employed to describe laws that significantly affect the environment but that do not reflect a conscious consideration of environmental impacts: indirect environmental law or unintentional environmental law. Although laws that reflect a conscious consideration of human impacts on the environment always will form the core of environmental-law practice, teaching, and scholarship, unintentional environmental law merits greater attention than it usually receives from environmental lawyers, teachers, and scholars.
263. See, e.g., Michael Shellenberger & Ted Nordhaus, The Death of Environmentalism: Global Warming Politics in a Post-Environmental World, SOC. POL'Y, Spring 2005, at 19, 25 (noting that David Brower advocated "the need for the environmental community to invest more energy in changing the tax code"). Excluding indirect environmental law from the category of environmental law hinders the insight that many indirect environmental laws should be direct environmental laws - that is, where environmental effects of a law are significant, they ought to be managed consciously.
264. See Adell Louise Amos, The Use of State Instream Flow Laws for Federal Lands: Respecting State Control While Meeting Federal Purposes, 36 ENVTL. L. 1237, 1280 (2006) ("[F]ederal public lands are managed and the waters are protected for the benefit of the public").
265. See generally Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471, 476-491 (1970) (outlining the basic elements of American public-trust law and explaining the various reasons and conceptions behind the public-trust doctrine).
266. See Hughes v. Oklahoma, 441 U.S. 322, 335-36 (1979) (concluding that "state regulations of wild animals should be considered according to the same general rule applied to state regulations of other natural resources");
267. United States v. Causby, 328 U.S. 256, 260-61 (1946) (declining to recognize private property rights to airspace);
268. Michael C. Blumm & Lucas Ritchie, Lucas's Unlikely Legacy: The Rise of Background Principles as Categorical Takings Defenses, 29 HARV. ENVTL. L. REV. 321, 352-53 (2005) (discussing state ownership of wild animals);
269. Dave Owen, Law, Environmental Dynamism, Reliability: The Rise and Fall of CalFed, 37 ENVTL. L. 1145, 1179-80 (2007) (noting that "water rights users may own usufructuary rights, but the state owns the water and watercourses, and holds the latter as trustee for its people" (footnotes omitted)).
270. I intentionally elide here the economist's distinction between use and non-use valuation of environmental resources. See, e.g., Thomas A. More et al., Values and Economics in Environmental Management: A Perspective and Critique, 48 J. ENVTL. MGMT. 397, 398 (1996) (distinguishing use values, which "apply to the benefits a resource produces for those who actually use it," and non-use values, which "concern benefits received by those who do not use it"); see also id. ("The distinction between use and non-use values is not well defined and may not always be clear. . . . Non-use benefits have been subdivided into existence value (the value people receive from simply knowing a resource exists), altruism (the value derived from having other contemporaries use a resource) and bequest value (preserving a resource for future generations)."). I employ the term "use" expansively, to include benefits associated with what economists would call non-use values - for example, I count appreciation of the existence of an environmental resource as a use.
271. Cf. R.H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 2 (1960) (examining situations of conflicting use).
272. See, e.g., Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243, 1244-45 (1968);
273. Barton H. Thompson, Jr., Tragically Difficult: The Obstacles to Governing the Commons, 30 ENVTL. L. 241, 242 (2000). Economists refer to this effect as a negative externality (because the individual does not face the full costs of his or her action) or the tragedy of the commons (referring to the incentive to overuse public resources).
274. See Hanoch Dagan & Michael A. Heller, The Liberal Commons, 110 YALE L.J. 549, 574-75 (2001).
275. See, e.g., RUSSELL HARDIN, COLLECTIVE ACTION 20-22 (1982);
276. MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 1-2 (rev. ed. 1971);
277. ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION 6-7 (James E. Alt & Douglass C. North eds., 1990).
278. See Michael S. Kang, Race and Democratic Contestation, 117 YALE L.J. 734, 770 (2008) ("Similarly situated citizens may act in disparate ways that collectively lead to the least preferred outcome, because they do not see, or at least do not prioritize, the commonalities among them. They may fall victim to preference cycling in which even those with similar preferences may struggle to achieve lasting agreement").
279. See Brigham Daniels, Emerging Commons and Tragic Institutions, 37 ENVTL. L. 515, 527 (2007) (noting that as the group size increases, so too do collective action costs);
280. George J. Stigler, Free Riders and Collective Action: An Appendix to Theories of Economic Regulation, 5 BELL J. ECON. & MGMT. SCI. 359, 360-62 (1974).
281. Kang, supra note 189, at 770; see also HARDIN, supra note 188, at 35-37 (noting the need for political entrepreneurs "who, for their own career reasons, find it in their private interest to work to provide collective benefits to relevant groups").
282. See OSTROM, supra note 188, at 36; Stigler, supra note 190, at 359-60. Dan Kahan has criticized some of the precepts of collective-action literature, arguing that empirical social science shows that, "[i]n collective-action settings, individuals adopt not a materially calculating posture but rather a richer, more emotionally nuanced reciprocal one." Dan M. Kahan, The Logic of Reciprocity: Trust, Collective Action, and Law, 102 MICH. L. REV. 71, 71 (2003). According to Kahan, individuals will willingly contribute to collective action if they trust that others "will voluntarily respond in kind." Id. at 72. As applied to public resources that are widely used in relative anonymity, however, the results of Kahan's framework do not necessarily diverge from the results of conventional public-choice analysis. In particular, if the users are numerous and varied and can free ride in relative anonymity, building the requisite trust among users is likely to be difficult.
283. Cf. Manus, supra note 5, 518 ("The American jural system is based on a fundamental presumption that people bear no moral duties to refrain from exploiting the environment . . . .").
284. See, e.g., Ray Rasker, Wilderness for Its Own Sake or as Economic Asset?, 25 J. LAND RESOURCES & ENVTL. L. 15, 15 (2005) ("[I]n the remote corners of the rural West, with a long history of dependence on public lands for mining, energy development and logging, the idea of setting aside land for conservation is seen as a direct affront to the well-being of local residents.");
285. see also Paul Slovic, Perception of Risk, 236 SCIENCE 280, 281 (1987) ("Strong initial views are resistant to change because they influence the way that subsequent information is interpreted.").
286. See LAZARUS, supra note 2, at 33 ("[D]ue to the highly interrelated nature of the ecosystem, it is almost always a mistake to suppose that one can isolate a single discrete cause as the source of an environmental problem"); Richard J. Lazarus, Restoring What's Environmental About Environmental Law in the Supreme Court, 47 UCLA L. REV. 703, 747 (2000) ("[E]nvironmental harms are more typically the cumulative and synergistic result of multiple actions, often spread over significant time and space. This is primarily traceable to the sharing inherent in any common natural resource base, which is the object of so many simultaneous and sporadic actions over time and space.").
287. Cf. Lazarus, supra note 195, at 748 ("Many of the ecological injuries resulting from environmental degradation are not readily susceptible to monetary valuation and have a distinctively nonhuman character.").
288. See, e.g., Howard Latin, Ideal Versus Real Regulatory Efficiency: Implementation of Uniform Standards and "Fine-Tuning" Regulatory Reforms, 37 STAN. L. REV. 1267, 1273 (1985);
289. Kelly Nolen, Residents at Risk: Wildlife and the Bureau of Land Management's Planning Process, 26 ENVTL. L. 771, 779 (1996) ("Animals and plants within an ecosystem are intricately interrelated, and the decline of any one species may have serious effects on the balance of the entire system, with unexpected consequences for humans.").
290. See, e.g., BARRY COMMONER, THE CLOSING CIRCLE: NATURE, MAN, AND TECHNOLOGY 33-39 (1971);
291. Zygmunt J.B. Plater, Environmental Law in the Political Ecosystem - Coping with the Reality of Politics, 19 PACE ENVTL. L. REV. 423, 480 n.77 (2002);
292. see also PLATER ET AL., supra note 176, at 5 ("[The environmental perspective] starts from the premise of interconnectedness - that all human enterprises exist within one vast shared common context in which actions have collateral consequences that are relevant and should be considered . . . ."); id. at xxx ("As the First Law of Ecology says, everything is connected to everything else."); id. at 5 ("[T]he environmental perspective conceptualizes all human enterprises existing within one large system of interconnected systems.").
293. See Andrew Jacobs, U.N. Report Points to Peril from Noxious 'Brown Clouds', NY. TIMES, Nov. 14, 2008, at A6.
294. See Thomas C. Erren et al., Synergy Between Asbestos and Smoking on Lung Cancer Risks, 10 EPIDEMIOLOGY 405, 409 (1999);
295. see also Jun Peng et al., Iron and Paraquat as Synergistic Environmental Risk Factors in Sporadic Parkinson's Disease Accelerate Age-Related Neurodegeneration, 27 J. NEUROSCIENCE 6914, 6919 (2007) (reporting findings suggesting that increased oral intake of iron in the neonatal period and environmental exposure to the pesticide paraquat have a synergistic effect on increasing the risk of neurodegeneration associated with Parkinson's disease).
296. See Karen A. Glennemeier & Linda J. Begnoche, Impact of Organochlorine Contamination on Amphibian Populations in Southwestern Michigan, 36 J. HERPETOLOGY 233, 233 (2002).
297. See, e.g., James L. Huffman, Marketing Biodiversity, 38 IDAHO L. REV. 421, 425 (2002) (noting that domestic environmental regulation of industry may export environmental degradation to other countries);
298. J.B. Ruhl & James Salzman, Mozart and the Red Queen: The Problem of Regulatory Accretion in the Administrative State, 91 GEO. L.J. 757, 814 (2003) (noting the problem of "media-shifting," in which "pollution-control laws protecting one environmental medium (for example, air, water, or land) . . . generat[e] . . . pollution in alternative media");
299. Erin Ryan, New Orleans, the Chesapeake, and the Future of Environmental Assessment: Overcoming the Natural Resources Law of Unintended Consequences, 40 U. RICH. L. REV. 981, 984-85 (2006) (noting that, when "Virginia resource managers attempted to protect intertidal wetlands by establishing a development-free jurisdictional boundary . . . landowners then built all the way to the legal side of the line, . . . [which] inadvertendy doomed the protected wetlands by disconnecting them from the natural shoreline systems that sustain them during such periods of sea-level rise" and thereby "accomplished the exact opposite of what policymakers had hoped for");
300. David Sunding & David Zilberman, Consideration of Economics under California's Porter-Cologne Act, 13 HASTINGS W.-N.W. J. ENVTL. L. & POL'Y 73, 96 (2007) ("Water quality regulation that aims to improve environmental quality can have unintended consequences that harm the environment and natural resources. The reallocation of water from one location to another, to meet water quality regulation, may reduce the well-being of fish and wildlife dependent on the water in the source region. Reduction of use of chemical pesticides that reduce farm productivity may lead to an increase in utilized land and expansion of the utilized land base to wilderness areas. Diversion of water resources to meet environmental quality objectives may reduce the capacity to utilize this water in provision of environmental amenities.").
301. See AGENCY FOR TOXIC SUBSTANCES & DISEASE REGISTRY, U.S. DEP'T OF HEALTH & HUMAN SERVS., TOXICOLOGICAL PROFILE FOR POLYCHLORINATED BIPHENYLS 1-3, 16, 479, 481 (2000).
302. See, e.g., Nina A. Mendelson, A Control-Based Approach to Shareholder Liability for Corporate Torts, 102 COLUM. L. REV. 1203, 1237 (2002) ("[T]he injuries to human health and the environment of particular substances may take years to manifest themselves.").
303. See A. Chovil & C. Stewart, Latency Period for Mesothelioma, 314 LANCET 853, 853 (1979).
304. See Louis Kaplow, Discounting Dollars, Discounting Lives: Intergenerational Distributive Justice and Efficiency, 74 U. CHI. L. REV. 79, 110 n.63 (2007) ("[G]reater use of natural resources or degradation of the environment [sometimes] produces immediate benefits but long-term costs.").
305. See Richard J. Lazarus, Human Nature, the Laws of Nature, and the Nature of Environmental Law, 24 VA. ENVTL. L.J. 231, 239 (2005) ("The need for environmental law can be seen as arising from the persistent gap between the spatial and temporal horizons of human nature and the much wider and longer spatial and temporal dimensions of the consequences of human activities because of the laws of nature.");
306. see also Holly Doremus, Constitutive Law and Environmental Policy, 22 STAN. ENVTL. L.J. 295, 318-19 (2003) (identifying the durability-flexibility dilemma by explaining that, because environmental problems often develop over extended periods of time, environmental policies "must be durable over unusually long periods of time" yet also must be "flexible enough to respond to new information and changing conditions"); id. at 320-21 ("Human beings are prone to wishful thinking, tending to underestimate the seriousness of problems, to overestimate the effectiveness of efforts to solve them, and to assume that the future will make them easier to solve.").
307. See, e.g., Robert L. Glicksman, Pollution on the Federal Lands III: Regulation of Solid and Hazardous Waste Management, 13 STAN. ENVTL. L.J. 3, 54 (1994) ("Obviously, the purpose of most environmental regulation is to prevent environmental harm and adverse effects on human health." (footnote omitted)).
308. See, e.g., Lazarus, supra note 207, at 240 ("[T]he further that the laws of nature spread cause and effect out over time and space, the more scientific uncertainty there will be regarding whether the adverse environmental effects projected in the future will in fact ever happen and whether the adverse environmental effects perceived today were in fact caused by specific activities in distant locations and times.").
309. See Doremus, supra note 207, at 318-21 (discussing the uncertainties that make "objectively determinate solutions tantalizingly appealing yet impossible to achieve"); Daniel A. Farber, Building Bridges over Troubled Waters: Eco-pragmatism and the Environmental Prospect, 87 MINN. L. REV. 851, 855 (2003) ("[S]cientific uncertainty [in environmental regulation] is endemic");
310. Robert L. Glicksman, Balancing Mandate and Discretion in the Institutional Design of Federal Climate Change Policy, 102 NW. U. L. REV. COLLOQUY 196, 206 (2008);
311. Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 GEO. L.J. 2407, 2420 (1995);
312. Richard Lazarus, Survey Says: Court Doesn't Get It, 17 ENVTL. F. 44, 45 (2000); Lazarus, supra note 195, at 747.
313. Lazarus, supra note 195, at 745.
314. Id. at 745-48. But see Wexler, supra note 114, at 286 (arguing that the features Lazarus identifies, although "remarkable, " "are not clearly entirely distinct from harms in other areas of law").
315. LAZARUS, supra note 2, at 16 (emphasis omitted).
316. Doremus, supra note 207, at 318-19.
317. See, e.g., Juliet P. Kostritsky, Uncertainty, Reliance, Preliminary Negotiations and the Holdup Problem, 61 SMU L. REV. 1377, 1378 (2008) ("The problem of uncertainty is pervasive in all contract negotiations.");
318. Alex Raskolnikov, Relational Tax Planning Under Risk-Based Rules, 156 U. PA. L. REV. 1181, 1262 (2008) ("[R]elational tax planning is surrounded by pervasive uncertainty.").
319. See LAZARUS, supra note 2, at 19 (tracing scientific uncertainty in environmental lawmaking to "the elaborate intricacies of the workings of the natural environment").
320. Lazarus and Doremus compiled their lists for purposes other than defining environmental law as a distinctive legal field; the differences between their lists and my own therefore may be attributable to our differing purposes rather than to any disagreement. See LAZARUS, supra note 2, at 16 (noting that his list of characteristics reflects "the problem of ecological injury"); Doremus, supra note 207, at 318 (noting that her list of characteristics reflects what makes environmental problems "especially intractable").
321. See J.B. Ruhl, Working Both (Positivist) Ends Toward a New (Pragmatist) Middle in Environmental Law, 68 GEO. WASH. L. REV. 522, 523 (2000) (book review).
322. See, e.g., U.S. ENVTL. PROT. AGENCY, THE BENEFITS AND COSTS OF THE CLEAN AIR ACT, 1970 TO 1990, at ES-2 (1997), available at http://www.epa.gov/air/sect812/copy.html (reporting that the direct costs of implementing the Clean Air Act from 1970 to 1990 totaled $523 billion).
323. See id. at ES-6 tbl.ES-3 (estimating economic values for "[u]nit[s] of [a]voided [e]ffect[s]").
324. Cf. Glennon, supra note 31, at 1874 ("In many parts of the country, fresh water reserves have been depleted; diversions have dried up rivers and pumping has exhausted aquifers.").
325. See generally Ruhl & Salzman, supra note 202, at 812-17 (explaining that environmental law is full of unintended consequences).
326. See supra note 202 and accompanying text.
327. See Ruhl, supra note 218, at 523 (characterizing environmental lawmaking as a "war of annihilation" between "two extreme and opposing philosophies - one devoted to protecting the economy and the other to protecting the environment . . . that has left in its wake the mish-mash of laws, regulations, judicial opinions, and countless administrative decisions and policies" and hence "environmental law has no agenda, no theme, no way of dunking" and "lacks any coherent philosophy").
328. See, e.g., McFarland v. Kempthorne, 545 F.3d 1106, 1109 (9th Cir. 2008) (describing a dispute over the use of a snowmobile on a route within Glacier National Park as presenting a problem of "use conflicts");
329. Nev. Land Action Ass'n v. U.S. Forest Serv., 8 F.3d 713, 719 (9th Cir. 1993) (noting that the National Forest Management Act, 16 U.S.C. §§ 1600-87, "directs the [Forest] Service to manage conflicting uses of forest resources" (citing 16 U.S.C. §§1600, 1604(g)(3) (1988)));
330. Letter from Sen. Mark O. Hatfield to Editorial Staff, 22 ENVTL. L. 792, 793 (1992) ("Throughout this country, we are faced within [sic] increasing conflicts over the use of our natural resources.")
331. See Coase, supra note 185, at 2 (suggesting approaching the problem of contamination of a stream as a question of whether to use the stream for fish habitat or as a waste sink and the total and marginal value of each use (citing G.J. STIGLER, THE THEORY OF PRICE 105 (1952)));
332. see also Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 VA. L. REV. 965, 1000 (2004) ("To Coase, the economic problem of externalities was essentially one of conflicting resource use.").
333. Cf. Ohio v. U.S. Dep't of the Interior, 880 F.2d 432, 464 (D.C. Cir. 1989) ("Option and existence values may represent 'passive' use, but they nonetheless reflect utility derived by humans from a resource . . . .").
334. An examination of the various kinds of values associated with environmental decision making, and potential taxonomies of those values, is beyond the scope of this Article. For works addressing these topics, see Andrew Brennan, Moral Pluralism and the Environment, 1 ENVTL. VALUES 15, 19-21 (1992) (defining and distinguishing among demand, nondemand, use, option, existence, and transformative values); Lockwood, supra note 98, at 382 (defining and distinguishing among intrinsic, instrumental, functional, held, and assigned values). The use-conflict framework outlined here is inclusive enough to encompass a broad range of understandings of values potentially associated with environmental resources.
335. See 16 U.S.C. §1853(a)(1)(A) (2006) (providing that fishery management plans shall "contain the conservation and management measures . . . necessary and appropriate for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery").
336. Cf. Jerry McBeath, Greenpeace v. National Marine Fisheries Service: Steller Sea Lions and Commercial Fisheries in the North Pacific, 21 ALASKA L. REV. 1, 9 (2004) ("NMFS's mission in fisheries development and management brings it into close association with the fishing industry and exposes the agency to criticism that the economic interests it regulates dictates its actions.").
337. See, e.g., 42 U.S.C. § 7411(b) (2006) (directing EPA to issue performance standards for new stationary sources of air pollution); id. § 7412(d) (directing EPA to issue emission standards for sources of hazardous air pollutants).
338. See supra notes 4-5 and accompanying text.
339. See Fisher et al., supra note 4, at 220 ("The incoherence of environmental law is not something that must (or can) be tamed by the intellectual efforts of environmental law scholars; rather it is the acceptance of that incoherence, and its methodological treatment, that marks mature environmental law scholarship."). Theodore Ruger has made a similar argument with respect to the incoherence of health law. See Ruger, supra note 22, at 639 (contending that the "messiness and complexity" of health law "is part of what makes health law important and unique, and provides fertile terrain for generalized study").
340. See Fisher et al., supra note 4, at 225 ("[E]nvironmental law regimes tend to be complicated mixtures of established legal concepts, sui generis reforms, non-legal regulatory ideals, policy and legal norms from a range of different jurisdictions.").
341. Tarlock, supra note 11, at 223.
342. See supra Part II.C-E.
343. See, e.g., supra Part II.A.3 (criticizing Tarlock's and Westbrook's proposed frameworks on this ground).
344. Smith, supra note 226, at 1000.
345. Easterbrook, supra note 1, at 208.
346. Lessig, supra note 1, at 502.
347. Id. at 503.
348. See supra Part II.C.2.
349. 549 U.S. 497 (2007).
350. Id. at 521-26.
351. See PLATER ET AL., supra note 176, at 5 (associating environmental law with "a desire for broadened accountings . . . of the full consequences of human decisionmaking").
352. See, e.g., Clinton v. City of New York, 524 U.S. 417, 434 n.23 (1998) (noting that standing requirements preclude claims for which "the chain of causation between the challenged action and the alleged injury [i]s too attenuated").
353. See, e.g., Massachusetts v. EPA, 549 U.S. at 526;
354. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992);
355. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973).
356. See Jonathan Z. Cannon, Adaptive Management in Superfund: Thinking Like a Contaminated Site, 13 N.Y.U. ENVTL. L.J. 561, 569-73 (2005);
357. Daniel A. Farber, Probabilities Behaving Badly: Complexity Theory and Environmental Uncertainty, 37 U.C. DAVIS L. REV. 145, 147-48 (2003);
358. Lawrence E. Susskind & Joshua Secunda, "Improving" Project XL: Helping Adaptive Management to Work Within EPA, 17 UCLA J. ENVTL. L. & POL'Y 155, 157-58 (1998-99);
359. Joy B. Zedler, Adaptive Management of Coastal Ecosystems Designed to Support Endangered Species, 24 ECOLOGY L.Q. 735, 736-37 (1997).
360. See, e.g., Edward S. Adams et al., At the End of Palsgraf, There Is Chaos: An Assessment of Proximate Cause in Light of Chaos Theory, 59 U. PITT. L. REV. 507, 524-28 (1998) (using chaos theory to analyze proximate causation in tort law);
361. Daniel A. Farber, Dollars and Sense: A "New Paradigm" for Campaign Finance Reform?, 37 U. RICH. L. REV. 979, 995-1007 (2003) (advocating the application of adaptive management to campaign-finance reform);
362. Donald T. Hornstein, Complexity Theory, Adaptation, and Administrative Law, 54 DUKE L.J. 913, 917-19 (2005) (applying complexity theory and, in particular, the concept of adaptation to administrative-law questions);
363. Robert E. Scott, Chaos Theory and the Justice Paradox, 35 WM. & MARY L. REV. 329, 331, 348-51 (1993) (drawing on chaos theory to analyze the competing goals of accomplishing justice between the parties to a particular dispute and appropriately regulating the conduct of other parties likely to have similar disputes in the future);
364. Guanghua Yu, Chaos Theory and Path Dependence: The Takeover of Listed Companies in China, 20 BANKING & FIN. L. REV. 217, 219-24 (2005) (analyzing China's importation of an English-style corporate-takeover law as an application of chaos and path-dependence theory).