THE SCALING-UP PROBLEM: The Highly Contested Relationship Between Common Law and Environmental Law -Ihering Guedes Alcoforado

“As another example of the scaling-up problem, consider the highly contested relationship between common law and environmental law. Conventional wisdom holds that the common law, in general, and the law of nuisance, in particular, were superseded in the twentieth century by environmental law and regulation because the common law was not up to the task of dealing with the larger-scale and more complex problems thrown up by modern industry and urban life.7 In the process of making the case for environmental law and land use regulation, the common law was portrayed as static, formal, inherently conservative, and deficient in public spiritedness.’ [GOLD & SMITH, 2020:491–492]

“This framing of the problem overlooks the role of complexity in the common law and fails to frame the question — and it is a difficult one — in terms of scaling up. While the environmental law literature correctly emphasizes the complexity of the ecosystem and the need for dynamism in the law’s response, it is equally myopic about the complexity and dynamism of the common law. Indeed, the law applying to land use conflicts is an ecosystem of a sort itself.8 The bilateral nature of nuisance law is no reason to think that the law of nuisance is inherently handicapped in dealing with society-wide (or perhaps even global) problems.” [GOLD & SMITH, 2020:492]

The flip side of this view of nuisance is how easily property law could fail to scale up — how it could really be a total non-starter when it comes to environmental problems. If, for example, ownership of land were defined in terms of negative and positive externalities, the package of rights that each person would have would be highly interactive. Changes in those externalities would require adjustment in the package of rights and, more importantly, a potential cascade of ripple effects and corresponding adjustments.9 For this reason, parcels of land would be very hard to value, and transfer would be costly. Instead, the actual system of defining property rights and using a combination of exclusion and governance makes effects easier to contain and important interconnections easier to follow.”[GOLD & SMITH, 2020:492]

“As in the case of nuisance, it is in the difficult and edge cases of property that the scaling-up problem is most evident. Many examples of property in which uses are important and yet inextricably intertwined — so called ‘fluid property’ — present alternatives that scale up well or very badly. As we will see, these areas include water law, intellectual property, and radio spectrum. Unlike most private law theory of all stripes, we will argue that a proper appreciation of complexity and the scaling-up problem points to a surprising degree of convergence in approaches to private law.” [GOLD & SMITH, 2020:492]

COMPLEXITY AND THE SCALING-UO PROBLEM

“[…] (W)will argue that a proper appreciation of complexity and the scaling-up problem points to a surprising degree of convergence in approaches to private law. We argue that conflict between external and internal perspectives in private law is both over- and under-blown. Both external and internal perspectives pay too little attention to how the ‘micro’ level of individual, even bilateral, interaction relates to the ‘macro’ level of society and the law as a whole. We will show that both perspectives overlook the resources they could employ to explain how the micro and macro are connected; in their different ways, external and internal perspectives do not draw out the connection between local simplicity and generalization. In a nutshell, both perspectives could converge on a picture of private law in which locally simple structures of bilateral rights and duties scale up to produce more complex structures at the level of society” [GOLD & SMITH, 2020:492]

NOTAS

7. See e.g. Lucas v SC Coastal Council, 505 US 1003, 1035 (1992) (Kennedy J concurring): ‘The common law of nuisance is too narrow a confine for the exercise of regulatory power in a complex and interdependent society’; Lawrence M Friedman, A History of American Law, 2d ed (New York: Simon & Schuster, 1985) at 678: ‘The restrictive covenant and common-law nuisance doctrine were together not strong enough to hold the forces of change at bay in big cities. The 20th century tried zoning’; Richard J Lazarus, The Making of Environmental Law (Chicago: University of Chicago Press, 2004) at 121: ‘The essential premise of much environmental law is … that the physical characteristics of the ecosystem generate spatial and temporal spillovers that require restrictions on the private use of natural resources far beyond those contemplated by centuries-old common law tort rules’; see also Carol M Rose,‘Rethinking Environmental Controls: Management Strategies for Common Resources’ (1991) 1991 Duke LJ 1 at 25–9.

8 Donald J Kochan, ‘A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective’ (2015) 4 Mich J Envtl & Admin L 303.

9 Steven J Eagle, ‘The Common Law and the Environment’ (2008) 58 Case W Res L Rev 583 at 612–13; Henry E Smith, ‘Property as the Law of Things’ (2012) 125 Harv L Rev 1691 at 1713 [Smith, ‘Property’].

BIBLIOGRAFIA

GOLD, Andrew S., & SMITH, Henry E.,”Sizing up private law” IN University of Toronto Law Journal, Volume 70, Number 4, Fall 2020, pp. 489–534