Who Owns the Sky? Seventh Annual Lloyd K. Garrison Lecture on Environmental Law

The question Professor Torres poses in this article is: who owns currently unassigned natural resources? Professor Torres argues that for one such resource, the atmosphere, the public has an interest that must be accounted for in the construction of emission trading schemes. He argues that the doctrine of res communes is the foundation for the public trust interest held by the people. This commonly held interest requires that where the government has sanctioned the private trading of this asset, the government must account for the profits of such trades. In short, it is not the government\u27s to give away. Ancillary benefits associated with cleaner air do not offset the public\u27s interest in the value of the resource, especially where the regulatory scheme has effectively precluded private action in defense of the resource. Moreover, economic research supports the conclusion that the efficiency gains made by using market mechanisms to reduce pollution also supports the capture by the government of scarcity rents created by the allocation of pollution rights. When the efficiency arguments are combined with arguments rooted in equity claims, some of the benefits of the market mechanisms may be diminished, but other values, like an aversion to gross inequities in the distribution of public resources, are optimized. We have looked at the sky as though it were a common resource free of any substantial public interest in its value and quality. By doing so, we have permitted the government to transfer a substantial public resource to private hands free of charge. It is this failure that the public trust doctrine is designed to prevent

Legal Change, The Eighty-Third Cleveland-Marshall Fund Visiting Scholar Lecture

This Essay will proceed in the following steps. First, I want to propose a preliminary definition of legal change. As I hope to make clear, there are technical and non-technical dimensions to the definition. Second, I want to offer a preliminary definition of social change and social movements. Third, I want to build on the analysis of the late Professor Thomas Stoddard in which he sketched out a relationship between what he calls rule shifting and culture shifting. \u27 Finally, I want to describe what Professor Lani Guinier and I have come to call demosprudence. I appreciate that it is not a word in common usage, but I hope to demonstrate how it is rooted in our commitment to a broad form of democratic legitimacy. Demosprudence is a philosophy, a methodology and a practice that systematically views lawmaking from the perspective of popular mobilizations, such as social movements and other sustained forms of collective action that serve to make formal institutions, including those that regulate legal culture, more representative and thus more democratic. It highlights the democratic wisdom and lawmaking power of social movements. The study of demosprudence is the study of the lawmaking and democracy enhancing effects of social movements as they influence and are disciplined by democratic practice

Synecdoche

This article suggests that the ideas of synecdoche and metonymy are not just figures of speech in which the part stands in for the whole. They are potentially useful metaphoric devices to understand the politics of institutional change through the inclusion of the formerly excluded. Capture: here the hazard is that those who find themselves in a position to use institutional power may find themselves subject to pressure to conform to the norms and values of those who have traditionally benefitted from the conventional use of that institution\u27s authority. This will often be subtle and it may merely be a means to reduce tension and conflict. It might be the easiest route to conventional success within such organizations; but acting in a way that is always consistent with the normative vision of the dominant institution has its costs, and one of those costs may be the loss of critical perspective. The hazards associated with what is called the tyranny of tokenism arise from the impact of that process on neutralizing the energy for collective action. This article suggests that collective rather than individual action is necessary to produce institutional or social change, and any process that neutralizes or redirects that energy for substantive change is not likely to be in the larger interest of the subordinate group. The social psychological research seems to suggest that tokenism-when combined with cues about the individual basis for the success of the now included former outsider-often creates a gulf between members of the dominant and subordinate groups, even if membership in the dominant group is completely contingent. It is a version of the capture thesis, but with more attention to the impact on social policies that create contingent insiders. Finally, a theory of change that does not retain an argument for continued accountability to members of the subordinate group is not an argument for serious social change. The problem of synecdoche, the part standing in for the whole, suggests that one be cautious when trying to generalize from the presence of former outsiders in positions of leadership in dominant institutions. Although it may seem socially important, in reality, it might not be. Its meaning can only begin to be understood if one asks questions about those contingent insiders, about the dynamics of the institution within which they are functioning, and about one\u27s own theory of change which will, of course, be informed by the goals one sets

Legal Change

The demos in demosprudence is meant to refer to those people who are collectively mobilized to make change. Demosprudence is not the community at the micro level. Nor is it the \u27polity writ large whether it acts through representative decision-making or voting in referenda and initiatives. It is not the theory or practice of a riot or a lynch mob. Nor is it the study of elections, whether for representatives or referenda. It is the theory and philosophy of legal meaning making through popular mobilization that engages a thick form of participation by people who are pushing for change by resisting manifestations of either public or private power. Demosprudence is an effort to expand the analysis of the way social power circulates and finds its expression in law. Demosprudents examine the collective expression of resistance that tests the democratic content of the formal institutions of lawmaking studied by jurisprudents and legisprudents. Rather than solely relying on courts to protect discrete and insular minorities, demosprudence forces us to focus on alternative forms of representing power, especially on alternative democratic expressions of power. You might think about this by asking a question: if we value democratic legitimacy, how do we know when democracy is working? We look for the answers in the people themselves when organized as dynamic constituencies and not as isolated individual preference holders. We are not talking about alternative accumulations of preferences (poll taking, a mob, or a referendum). We are talking about the lawmaking and democracy-expanding potential of social movements

Legal Change

The demos in demosprudence is meant to refer to those people who are collectively mobilized to make change. Demosprudence is not the community at the micro level. Nor is it the \u27polity writ large whether it acts through representative decision-making or voting in referenda and initiatives. It is not the theory or practice of a riot or a lynch mob. Nor is it the study of elections, whether for representatives or referenda. It is the theory and philosophy of legal meaning making through popular mobilization that engages a thick form of participation by people who are pushing for change by resisting manifestations of either public or private power. Demosprudence is an effort to expand the analysis of the way social power circulates and finds its expression in law. Demosprudents examine the collective expression of resistance that tests the democratic content of the formal institutions of lawmaking studied by jurisprudents and legisprudents. Rather than solely relying on courts to protect discrete and insular minorities, demosprudence forces us to focus on alternative forms of representing power, especially on alternative democratic expressions of power. You might think about this by asking a question: if we value democratic legitimacy, how do we know when democracy is working? We look for the answers in the people themselves when organized as dynamic constituencies and not as isolated individual preference holders. We are not talking about alternative accumulations of preferences (poll taking, a mob, or a referendum). We are talking about the lawmaking and democracy-expanding potential of social movements

American Blood: Who is Counting and for What?

When thinking about who counts, I initially titled this Essay: Who is Counting and for What? I wanted to highlight the role that power necessarily plays in the very asking of the question. It presumes a perspective, and interrogating that perspective can only occur if the second part of the question is answered. Because race has always played a critical role in our culture from the very beginning, I wanted to explore one of the many ways it has been deployed to justify a particular expression of power. The story virtually every American learns is the story of the inevitable continental expansion of the American Nation. It is not told as a story of coming to terms with a form of internal colonization filled with contradictions, complications, horrors, and graces. What is clear is that racial ideas are woven through the story of our national identity. That identity emerged as a series of oppositions in which race figured prominently, not just in the slave trade, but in the very conquest of the continent and beyond. Unlike Latin America, we do not have a detailed philosophical tradition exploring the question of whether Indians count as people with souls worth saving. Instead, we supplied a political answer that was premised on exclusion, but which was also informed by pre-existing ideas of racial hierarchy that used to justify treating Indians like political communities suitable of recognition framed by the law of nations. It would also be used, however, to strip these tribes of autonomy, resources, and humanity. Indians, whether in tribes or individual, would count in different ways but always for the purposes of the one doing the counting