Comments

This article will be published in 95 CORNELL L. REV. (forthcoming 2010)

Abstract

This Article examines the classification of the law into legal fields, first generally and then by specific examination of the field of environmental law. We classify the law into fields to find and to create patterns, which render the law coherent and understandable. A legal field is a group of situations unified by a pattern or set of patterns that is both common and distinctive to the field. We can conceptualize a legal field as the interaction of four underlying constitutive dimensions of the field: (1) a factual context that gives rise to (2) certain policy tradeoffs, which are in turn resolved by (3) the application of values and interests to produce (4) legal doctrine. An organizational framework for a field identifies the field’s common and distinctive patterns, which may arise in any of these underlying constitutive dimensions.

The second part of the Article applies this general analytical approach to the field of environmental law, proposing a framework for understanding environmental law as a field of legal study. Two core factual characteristics of environmental problems are, in combination, both common and distinct to environmental law: physical public resources and pervasive interrelatedness. Numerous use demands are placed on environmental resources, creating conflicts. These use conflicts define the policy tradeoffs that frame environmental lawmaking, forming the basis for a use-conflict framework for conceptualizing environmental lawmaking. A use-conflict framework for environmental lawmaking carries significant analytical advantages over other models for conceptualizing environmental law as a legal field.

Disciplines

Environmental Law

Date of this Version

May 2009

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