The Sense of Justice and the Justice of Sense: Native Hawaiian Sovereignty and the Second Trial of the Century

In 1993, Congress apologized to the Native Hawaiians for the political funny business of a century ago when the pineapple and sugar interests overthrew the Kingdom of Hawaii with tactical help from U.S. officials. Another apology will be in order for an unconscionable political trial now underway in the islands to punish one of the sovereignty leaders, Dennis Bumpy Kanahele, for a variety of imagined offenses that amount to the infliction of embarrassment on the U.S. To put this essay in context, it should be understood, first of all, that the struggle for Native Hawaiian lands and sovereignty is a longstanding one, with more than the usual historical, political, and legal complexities. It is accurate to say that Native Hawaiians today are frequently landless in their own ancestral lands although a full account defies a summary restatement. My approach in this Essay is to look at the conflict through a lens suggested by evolutionary theory, sometimes described in the law schools as Law and Biology. In this world, the sense of justice is a set of expectations about how others should behave, backed by a proclivity towards moralistic aggression against deviators. The sense of justice entails both cognition and emotion, with a match of expectations and then the fit that follows if there is no fit. Compare and despair is the name of the game

Executive Orders and Presidential Commands: Presidents Riding to the Rescue of the Environment

Presidential executive orders are legal and political documents. They are also uniquely personal utterances of the president and the administration. The right words at the appropriate time can motivate and move the human spirit, and they can link this president and this moment to the strongest of ideas. Being personal and tending to the heroic, the executive order can thus be perceived as accomplishing a great public good. This article will explore the pros and cons of the executive order tool. I will then evaluate a number of executive orders that have impacted contemporary environmental policy. I will conclude by offering my nominees for the Ten Most Influential Executive Orders in the annals of environmental law

Deception, Self-Deception, and Mythology: The Law of Salmon in the Pacific Northwest

This paper will present a Puritan Model of the Law of Lies, which is a prominent (but by no means only) model observable in U.S. law. We will then turn to the underpinnings in evolutionary theory of deception and self-deception. We will next apply these concepts to the worlds of salmon law and policymaking, which are marked conspicuously by evidences of deceit. Some conclusions will be offered on how deceit and self-deception are addressed in the law. We will conclude with some distinctions between the laws of deception and self-deception. For the most part, our deceptions are governed by the Puritan Model of the Law of Lies, which treats falsehood as something to be forbidden, penalized, condemned, and sanctioned. Given the universality of the phenomenon of the lie, the Puritan Model is beset by problems of enforcement and undergoes inevitable fissioning in distinguishing small lies from big ones or harmless fibs from damaging ones, but these are the traditional workings of law. By contrast, there is no Puritan Model of the Law of Self-Deception, which occurs at the level of preference, of ideology, of belief, of dogma, of revealed truth, of truncated empiricism. At this level, deception is not forbidden by law. It becomes enshrined in the law. It is enacted, approved, and endorsed. Thus, we come face-to-face with the ultimate irony: the little lies to others are felonies, the big lies to ourselves are policy. [This paper was the basis for the Fourth Annual Archie Hefner Memorial Lecture given at McGeorge Law School in October, 1994.

The Seven Statutory Wonders of U.S. Environmental Law: Origins and Morphology

Students from around the world often ask my opinion on the most influential or effective of the United States environmental laws. I offer an opinion based on two criteria: What laws have contributed most to protection of the natural world and what laws have been most emulated? The second criterion is obviously an indicator of output, not of direct consequence. However, a linkage between the spread of strong laws and degree of environmental protection is assumed. In theory, of course, the questions of how much protection and how many laws can be answered empirically. But this story is available only in the sketchiest of terms, so opinions will have to suffice. Nominees include the National Environmental Policy Act of 1969, the Federal Water Pollution Control Act Amendments of 1972 (the Clean Water Act), the Endangered Species Act, and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. Common features of these laws show strong leadership, an inspirational and radical message, growth and sleeper potential, research implantation, and attentive monitoring. The secrets of the seven great environmental laws are simple enough: All that is needed is a messianic leader with a stirring message containing seeds of growth in a sustainable environment. In practice, legal oases of this sort are few and far between. [Part of the Symposium: Twenty-Five Years of Environmental Regulation. Article reprinted in An Environmental Law Anthology 82-90 (Robert L. Fischman et al. eds., Anderson, 1996.

Bringing People Back: Toward a Comprehensive Theory of Taking in Natural Resources Law

This Article attempts to bring people back into legal analysis by drawing upon behavioral preferences of human beings suggested by the laws of biology. Biological theory offers no all-encompassing explanations of legal outcomes, although it offers important, and much neglected, partial explanations. That the law can be explained in this light suggests that courts have a view of human nature departing from the caricatures of much contemporary legal theory. We take as our setting an issue faced by each society in every era-property rights in natural resources. Part I takes up the task of theory development by recanvassing property theory and assigning special importance to four prominent themes-biological and social functionary explanations, the concept of natural resource rights in common, and the process component of property rights definition. The ideas developed include the human property right, which is inalienable except upon terms of the holder, and provisional rights to the common stock of natural resources, called social property, representing wealth that may be reallocated without compensation. These themes constitute the basis of a comprehensive theory of property. All four of the theoretical themes are amply represented in historical justifications of property, and one would expect these themes to reappear in contemporary legal doctrine governing actual property conflicts. Part II tests this comprehensive theory against legal experience in the natural resources field. Used for this purpose are the statutes and case law addressing a variety of resource conflicts in five different doctrinal settings—nuisance and takings law, waste, and the reserved rights and public trust doctrines. These doctrines define crucial relationships among people, and between people and their collective representatives. In testing the theory articulated here, a subsidiary purpose of this Article is to develop a taking theory offering descriptive guidance for the law of natural resource wealth allocation. [Reprinted in 14 Land Use & Envtl. L. Rev. 385-432 (1983).