Friday, February 5, 2016

The Tragedy of the Commons at 50: Context, Precedents, and Afterlife

A call for papers for a conference and journal issue I'm organizing, with the help of my distinguished teacher, Carol Rose. Please pass it on!

Conference and Special Issue:
The Tragedy of the Commons at 50: Context, Precedents, and Afterlife

On the occasion of the 50th anniversary of the publication of
Garrett Hardin's "Tragedy of the Commons"

Cegla Center for Interdisciplinary Research of the Law
with the support of
David Berg Foundation Institute for Law and History
GlobalTrust: Sovereigns as Trustees of Humanity
S. Horowitz Institute for Intellectual Property

Buchmann Faculty of Law
Tel Aviv University
June 28-30, 2017

Call for Papers – due 1 March 2016

            Few modern publications—or indeed ideas—have been as influential for the development of law, political science, economics, or environmental studies as Garrett Hardin's "Tragedy of the Commons", his blockbuster 1968 article in Science magazine. The notion of ownerless resources being inexorably and inevitably subject to overuse and degradation, illustrated through a parable of a common pasture consciously grazed to oblivion by herdsmen, proved to be a gripping one. It has seemed to explain or justify problems and solutions from areas such as population control, ownership of and sovereignty over natural resources, pollution, and cultural and technological innovation, and it has remained a dominant trope in many fields in and outside law since its publication. Of course Hardin's idea has not gone unchallenged, and recent decades have seen a wealth of scholarship dedicated to refuting or modifying the "Tragedy" thesis and identifying or advocating countervailing and related effects.

            Like all ideas, the idea of the "Tragedy" has a history and a context, the exploration of which is the object of this conference. Precedents in economic writing of the 1950s have been pointed out, and Hardin's article itself acknowledged his debt to a nineteenth-century "mathematical amateur". The aim of this conference and special issue is to go beyond these immediate and explicit intellectual sources and explore three themes in the history of the idea of the tragedy of the commons (the functioning of actual commons in history remains outside this conference's scope):

  1. The idea of the commons in history: The idea of "the commons", whether communally owned or accessible to all, is one that lawyers, economists, political theorists, and others have written about for centuries. Some, like Hardin, were alarmed by it; other valorized it; yet others saw it in a more complex light. We aim to excavate new layers of the intellectual antecedents of Hardin and his opponents, within the Western tradition as well as outside it, and understand the historical contexts in which these earlier ideas and texts were produced.
  2. Hardin's world: Not only did Hardin not write in an intellectual vacuum; "Tragedy" was written in a specific time and place, and in a certain political, ideological, cultural, and social environment. We seek to illuminate the contexts that might explain the particular circumstances in which "The Tragedy of the Commons" was written, published, and popularized.
  3. The Tragedy's career: Half a century after the publication of Hardin's article, its reception, revision, and rejection already have histories. We wish to understand better the enthusiasm with which the idea of the Tragedy has been embraced, as well as the intellectual, ideological, and political sources and attractions of alternative approaches, most prominently that of Elinor Ostrom's school of commons studies. 
One-page proposals addressing any aspect of the above themes are welcome. Accepted articles will be published, after peer review, in a special issue of Theoretical Inquiries in Law, the TAU Cegla Center's prestigious journal.

Accommodations in Tel Aviv will be provided by TAU, and participants will have their reasonable travel expenses reimbursed.

  • One-page abstracts accompanied by a brief c.v. should be sent to by 1 March 2016.
  • Notices of acceptance will be sent by 1 April 2016.
  • In order to allow pre-circulation and preparation of comments, draft articles will be due by the end of May 2017.
  • The conference will take place in Tel Aviv June 28-30, 2017.
  • Final drafts will be due by the end of August 2017.
  • After peer review and editing, the special issue of Theoretical Inquiries in Law will be published in July 2018.
Nahalal collective village, Israel (c. 1930?)

Tuesday, February 2, 2016

In the History Carnival

This month's History Carnival, hosted by "Art and Architecture, mainly", featured, among an amazing variety of history blogs, Mark Weiner's post on Austrian law and landscape, and my own series on art and the history of environmental law.

Also check out the post on the current Israel Museum exhibit, "Twilight over Berlin: Masterworks from the Nationalgalerie 1905-1945" (and visit the exhibit if you can).

George Grosz, Grey Day, 1921

Monday, February 1, 2016

The Colorado Doctrine in business history

I'm pleased that my book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier (Yale UP, 2012) continues to get reviewed. The latest is one by Todd Holmes in Business History Review. Holmes sums up the book well:
The book begins with an in-depth investigation of the mining laws that emerged in the Colorado territory following the 1859 discovery of gold. Here Schorr sets an impressive tone for the following chapters, as he seamlessly interweaves his legal and historical training in research and analysis. Drawing on ninety-one mining codes from seventy-eight districts, Schorr demonstrates how the principle of equality, modified by the rule of sufficiency, limited mining claims in both size and ownership. And as he shows, this Lockean principle of equal access soon spread from land to water. From Colorado's territorial laws and constitution to the 1882 Coffin decision that etched the young state into legal history, the water monopoly bestowed in common law to riparian lands was consistently undercut and, ultimately, abolished in favor of the broader distribution achieved through the system of prior appropriation (first in time, first in right). In the final two chapters, Schorr charts how the principle of distributive justice continued to influence Colorado's water laws in the decades that followed; in the process, he squarely challenges the varying interpretations of corporate greed and market efficiency often ascribed to the law of appropriation. Contrary to Gilded Age stereotypes of corporations running amok in the West, Colorado courts consistently ruled in favor of small farmers and placed heavy restrictions on the size, access, and contracts of irrigation companies. Such efforts of fair distribution, however, did not make for efficient markets—a fact that Schorr details in his chapter on the beneficial use clause and the diminishing productivity inherent in its restriction on water right transfers.
A couple of the earlier reviews were covered here and here; Google Scholar has links to a lot more.

Friday, January 29, 2016

Lead regulation in history

Virginia Zaunbrecher at Legal Planet has an interesting post putting the Flint, Michigan lead crisis in historical context, noting, among other things, that lead use in the U.S. has actually gone up during most of the period when blood lead concentrations were dropping. Here's some more comparative background, surprising to me:
Childhood lead poisoning was linked to lead paints in 1904.  France, Belgium and Austria banned white-lead paint in 1909.  The National Lead Company admitted lead was a poison in 1921.  The League of Nations banned white-lead interior paint in 1922 (you know an environmental regulation is old if it was issued by the League of Nations), but the U.S. declined to implement the ban.  Instead, the U.S. waited nearly half a century (1971) to pass the Lead Poisoning Prevention Act (42 U.S.C. 4822), although some local jurisdictions started banning it as early as the 1950s.  The ban on lead paint was fully implemented in the U.S. 1978, 74 years after childhood lead poisoning was linked to lead paints.
(courtesy Thester11)

Wednesday, January 27, 2016

The future history of the Paris Agreement

A recent discussion on an email list led Michael Gerrard to raise the following idea:
For years to come people will be puzzling about the origins and meaning of many words and phrases in the Paris Agreement and Paris Decision. The large numbers of people who participated in the negotiations are all carrying recollections in their heads and their laptops about how certain language came to be.  Wouldn't it be useful, while memories are still fresh and files are not yet erased, if we had a way to capture and organize this? Would it make sense to set up some kind of Wiki system where people could post as comment bubbles, or footnotes, or whatever, their recollections about the negotiations around parts of the agreement?  Each comment would need to be accompanied by the name of the commenter (because anonymous commenting can lead to all sorts of mischief) and ideally by some explanation of how the commenter knows what he or she is saying (e.g. was present in such and such a negotiating session), so that later readers can judge the reliability of the information.
It seems to me that this shortly-after-the-fact legislative history of the Paris documents would be extremely useful to lawyers, officials and scholars, and that it is technologically possible (though I don't have the technological prowess myself). Negotiators could be invited to enter their memories on-line themselves. This could also be a project for large numbers of students; negotiators could be interviewed by students, who would go through the documents with them, record the recollections, and enter them as appropriate. Thousands of people participated in the negotiations, but interviews could be divided up and quite a few could be conducted this way. Additionally, several law schools sent to Paris groups of students who took extensive notes on the sessions they observed, so some of this information is already available but it would all need to be organized.
 What do you think?

Tuesday, January 26, 2016

Prior appropriation: A reassessment

Lawrence MacDonnell has posted "Prior Appropriation: A Reassessment". (The doctrine is a central aspect of water law in the western United States, according to which water is allocated to users on a "first in time" basis--for more, see here.) The short abstract explains that the paper "provides an overview of the literature critiquing the Prior Appropriation Doctrine, examines the historical evolution of the doctrine, and offers recommendations for modernizing its major concepts." The introduction explains (footnotes omitted):
Thoughtful observers have declared the law of prior appropriation obsolete, no longer relevant, or even dead. On the other hand, others have declared it the best-suited law yet devised to govern human uses of water, especially in water-limited places. Many writers have criticized at least some aspects of the law of prior appropriation. As further explored below, the criticisms take many forms. Far less has been written about the virtues of prior appropriation despite the tact that principles originated in the mining districts of nineteenth-century California ended up being adopted by seventeen western states.
Leaving aside that MacDonnell counts me upon the supporters of the doctrine (see p. 231), a characterization I'm not sure I agree with, the article is a good survey of much of the literature about the doctrine, pro and con. The following part, in particular, caught my eye (footnotes omitted again):
Elwood Mead was an early critic of the self-initiation form of prior appropriation. In his 1903 classic, Irrigation Institutions, he stated:
"The whole principle is wrong. It is wrong in principle as well as faulty in procedure. It assumes that the establishment of titles to the snows on the mountains and the rains falling on the public land and the water collected in fie lakes and rivers, on the use of which the development of the state in a great measure depends, is a private matter. It ignores public interests in a resource upon which the enduring prosperity of the community must rest. It is like A suing B for control of properly which belongs to C. Many able attorneys hold that these decreed rights will in time be held invalid because when they were established the public, the real owner of the property, did not have its day in court."
Colorado attorney Moses Lasky [right] pointed to the strong bias against administrative decision making in the United States during the era in which prior appropriation developed, the preference (and even necessity) for individual assertion of rights under frontier conditions, and the strong preference among common-law trained lawyers for determination of legal rights by courts in the context of a specific dispute. Because of the widespread adoption of permitting systems by 1928, Lasky concluded that "[t]oday prior-appropriation is the law nowhere in the West."
Mead's prediction didn't exactly come true, but doctrines such as reserved rights have indeed subordinated decreed private rights to public interest. I'm not sure Lasky's characterization of nineteenth-century America as being opposed to administrative decision-making stands the test of time, but his recognition that by the twentieth century the system had become an administrative one is right on.

Sunday, January 24, 2016

Legal history and the takeover of the Malheur Wildlife Refuge

Three weeks ago antigovernment gunmen took over Malheur Wildlife Refuge in Oregon, USA, and they have been in a standoff with law enforcement officials since then. The gunmen (from out of state) are demanding that the land be "returned" to the local county. Some background is provided by Alan Feuer in the New York Times, who explains that the gunmen are echoing the claims of the "Wise Use movement":
Wise Use answers the question of who should own the West by granting moral primacy to natural resource companies and to logging and ranching families....
Though composed of many activists and scores of organizations, Wise Use found its voice in the late 1980s when a timber industry adviser named Ron Arnold published “The Wise Use Agenda.” The manifesto offered an expansive plan to gut environmental regulation, increase private ownership of public land and compel the federal government to open its holdings to mining, oil and logging companies and to the unrestricted use of off-road vehicles.
Mr. Arnold adopted the phrase “wise use” from Gifford Pinchot, the first head of the United States Forest Service (who said that “conservation is the wise use of resources”). In 1988 he held a conference, bringing together the likes of Exxon and the National Cattlemen’s Association, with the goal of seeding the West with grass-roots groups that could wrest control of federal land and give a local flavor to his Reaganite aims.
“Arnold sent organizers into distressed rural communities to set up front groups with environmentally friendly sounding names that whipped up hostility against the government,” said Tarso Ramos, the executive director of Political Research Associates, a research group that studies right-wing movements. What resulted, Mr. Ramos said, was a “coalition of natural-resource companies, property developers and conservative activists working with a network of community organizations.”
This coalition achieved success in pushing its agenda. By the early 1990s, politicians friendly to the Wise Use cause had introduced or passed legislation in nearly 30 states giving local governments and citizens expanded powers to lay claim to federal land. Among those politicians was Representative Helen Chenoweth-Hage, an Idaho Republican, who became notorious for mocking the Endangered Species Act by holding what she called “endangered salmon bakes.” There was also Gale A. Norton, the interior secretary under President George W. Bush, who once worked as a lawyer for the Mountain States Legal Foundation, which has billed itself as “the litigation arm of Wise Use.”
Legal Planet's Jonathan Zasloff provides some other background:

Tuesday, January 19, 2016

Enclosure Norwegian style

The International Journal of the Commons recently published "On enclosure Norwegian style", by Erling Berge and Anne Sigrid Haugset. The abstract:
More than 200 years after the King sold one of the “King’s commons” to urban timber merchants, local people in some ways still behave as if the area is a kind of commons. The paper outlines the history of the transformation of the area from an 18th century King’s commons to a 21st century battleground for ideas about ancient access and use rights of community members facing rights claimed by a commercial forest owner within local consequences of national legislation. The discussion is focused on the right of common to hunt small game without dog in Follafoss private commons. The right was confirmed in a judgement of the Supreme Court in 1937 and in legislation on hunting in 1951. The Government’s proposal for new legislation on hunting in 1981 removed the right without saying a word about it, and it was never commented on in parliament during the legislative process. To explain what we observe it is suggested that a new layer of legislation on rights of common from 1857 and 1863 created a structural amnesia about private commons making it easy to remove them from legislation.

Monday, January 18, 2016

Oliver Wendell Holmes and water pollution

Yesterday's edition of This Day in Water History notes the anniversary of a historic interstate lawsuit over water pollution, Missouri v Illinois (1906). See my own take after the jump.
January 17, 1900: Fifteen days after Chicago opened the Sanitary and Ship Canal and reversed the course of the Chicago River to discharge sewage into the Mississippi River, Missouri sued Illinois, “…praying for an injunction against the defendants from draining into Mississippi River the sewage and drainage of said sanitary district by way of the Chicago drainage canal and the channels of Desplaines and Illinois river.”
The Bill of Complaint alleged in part:
“That if such plan is carried out it will cause such sewage matter to flow into Mississippi River past the homes and waterworks systems of the inhabitants of the complainant…
That the amount of such undefecated [huh?] sewage matter would be about 1,500 tons daily, and that it will poison the waters of the Mississippi and render them unfit for domestic use, amounting to a direct and continuing nuisance that will endanger the health and lives and irreparably injure the business interests of inhabitants of the complainant…
That the water of the canal had destroyed the value of the water of the Mississippi for drinking and domestic purposes, and had caused much sickness to persons living along the banks of said river in the State of Missouri.”
The opinion in the case was written by Supreme Court Justice, Oliver Wendell Holmes and read in part:
“The data upon which an increase in the deaths from typhoid fever in St. Louis is alleged are disputed. The elimination of other causes is denied. The experts differ as to the time and distance within which a stream would purify itself. No case of an epidemic caused by infection at so remote a source is brought forward and the cases which are produced are controverted. The plaintiff obviously must be cautious upon this point, for if this suit should succeed many others would follow, and it not improbably would find itself a defendant to a bill by one or more of the States lower down upon the Mississippi. The distance which the sewage has to travel (357 miles) is not open to debate, but the time of transit to he inferred from experiments with floats is estimated at varying from eight to eighteen and a half days, with forty-eight hours more from intake to distribution, and when corrected by observations of bacteria is greatly prolonged by the defendants. The experiments of the defendants’ experts lead them to the opinion that a typhoid bacillus could not survive the journey, while those on the other side maintain that it might live and keep its power for twenty-five days or more, and arrive at St. Louis. Upon the question at issue, whether the new discharge from Chicago hurts St. Louis, there is a categorical contradiction between the experts on the two sides.”
Commentary: In effect, Justice Holmes ruled in favor of Chicago. The experts for St. Louis had failed to prove their case.
Reference: Leighton, Marshall O. 1907. “Pollution of Illinois and Mississippi Rivers by Chicago Sewage: A Digest of the Testimony Taken in the Case of the State of Missouri v. the State of Illinois and the Sanitary District of Chicago.” U.S. Geological Survey, Water Supply and Irrigation Paper No. 194, Series L, Quality of Water, 20, Department of the Interior, Washington, D.C.: U.S. Government Printing Office.

Sunday, January 17, 2016

Sustainability: of forests, ships, and law

[Another guest post, with lots of useful references, by Peter Sand of the Institute of International Law, University of Munich (see here for his earlier post on Karl Neumeyer). Revised from Environmental Policy and Law 37:2-3 (2007) 201-203. Notes are after the break.]

“Sustainable development” has become a household word – if a heavily loaded one – to international lawyers, economists and green politicians alike. Yet, the etymology of the term spans a number of other disciplines, and more than three centuries of environmental history.

The Report of the ‘Brundtland Commission’, published in 1987,[1] had borrowed the term from the 1980 IUCN/UNEP/WWF World Conservation Strategy, drafted under the guidance of the then Director-General of IUCN, Dr. David A. Munro (left) – distinguished Canadian forester and wildlife biologist (1923-2004).[2]

Canada’s oldest forest school is the Faculty of Forestry at the University of Toronto. Its founder (in 1907), and first dean until 1919, was a German forester, Bernhard Eduard Fernow (1851-1923) – who from 1886 to 1898 had served as the first chief of the US Division of Forestry (which later became the Forest Service within the Department of Agriculture).[3] Fernow was the architect of the 1891 Forest Reserve Act (part of the General Public Lands Reform Act of 3 March 1891), which laid the ground for ‘creative’ conservation measures on the federal public domain – and it comes as no surprise that he had originally studied law (at the University of Königsberg).[4] His successor as US chief forester was Gifford Pinchot (PhD in forestry, University of Munich 1898; founder of the Yale School of Forestry in 1900, now School of Forestry and Environmental Studies),[5] whose mentor and role-model had been another German forester, Sir Dietrich Brandis.[6] Brandis, after obtaining his PhD in botany at the University of Bonn, had joined the British colonial service in 1856 as ‘superintendent of forests’ in Burma, and from 1864 to 1883 served as first Inspector-General of Forests in India and Pakistan.[7] He was Rudyard Kipling’s legendary “gigantic German, head of the woods and forests of all India, head ranger from Burma to Bombay”.[8] His practices and principles of ‘sustained yield’ forest management – and those of his successors, Sir William [Wilhelm] Schlich (1840-1925, founder of the Royal Indian Forestry College at Cooper’s Hill, since 1905 at Oxford)[9] and Berthold Ribbentrop (1843-1917, Inspector-General of Indian Forests from 1885 to 1900)[10] – had a lasting influence on generations of foresters in North America, Asia, Australia and New Zealand.[11]

The theoretical basis for forest management, including the concept of ‘sustained yield’, had been developed in the 18th and 19th century at specialized forestry academies in Germany, such as Tharandt in Saxony and Münden in Hanover (where both Fernow and Ribbentrop graduated).[12] The pioneering scientific treatise on the subject was the Sylvicultura Oeconomica (at top) published in 1713 by Johann [Hannss] Carl von Carlowitz (right, 1645-1714),[13] lawyer and manager of the Duke of Saxony’s silver mines (hence vitally dependent on long-term timber supplies!). It comprised the first formulations of such ‘post-modern’ terms as precaution [Praecaution, Vorsorge] for intergenerational benefits [den Nachkommen zum Besten], by sustained use [nachhaltende Nutzung]; and it was followed by other works now postulating a general policy of sustainable forest economics [nachhaltige Wirtschaft mit unseren Wäldern].[14]

Carlowitz in turn had drawn the inspiration for his innovative policies from multiple sources. After completing his legal studies at the University of Jena, he had taken the customary ‘grand tour’ of Europe in 1665-69, travelling to Italy, the Netherlands, Scandinavia, England and France. A focus of his attention at the time were the administrative reforms undertaken by Louis XIV’s powerful minister of finance, Jean-Baptiste Colbert (1619-1683, right); in particular, the great reorganization of French forestry governance which culminated in the ‘Ordonnance des eaux et forêts’ of 1669.[15] 

It must be kept in mind, though, that Colbert’s own concern for the conservation and sustainable use of France’s forest resources had very precise strategic motivations; i.e., the long-term security of timber supplies for the ship-building industry, which was the basis of French naval power.[16] Sure enough, there had been ominous historical warning signals before: The decline of Venetian maritime dominance in the Mediterranean during the 16th and early 17th century was widely attributed to timber shortages in naval construction, caused by deforestation.[17] It was no coincidence, therefore, that another contemporary pilot text which Carlowitz acknowledges among his source references – Sylva: A Discourse of Forest-Trees, and the Propagation of Timber in His Majesty’s Dominions (1664), by John Evelyn (English lawyer and writer, 1620-1706, educated at Oxford’s Balliol College and the Middle Temple, right)[18] – had been compiled and published at the request of the Commissioners of the British Navy.  After the Napoleonic Wars, Isaac D’Israeli noted that the fleets of Admiral Nelson had been constructed “with the oaks which the genius of Evelyn planted.”[19] For the same strategic reasons, Russian Tsar Peter I in 1703 had designated the oak forests of Kharkov and Simbirsk as permanent state reserves for ship timber;[20] and in 1817, the US Secretary of the Navy obtained statutory authorization to reserve public oak forest lands for ship-building.[21]

In retrospect, then, the concept of ‘sustainable development’ may indeed be said to have its historical roots in subtle power politics as much as in bona fide intergenerational equity.