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The Invention of Antitrust

April 2023April 2023Herbert Hovenkamp*

The long Progressive Era, from 1900 to 1930, was the Golden Age of antitrust theory, if not of enforcement. During that period courts and Progressive scholars developed nearly all of the tools that we use to this day to assess anticompetitive practices under the federal antitrust laws. In a very real sense, we can say that this group of people invented antitrust law.

The principal contributions the Progressives made to antitrust policy were (1) partial equilibrium analysis, which became the basis for concerns about economic concentration, the distinction between short- and long-run analysis, and later provided the foundation for the development of the antitrust “relevant market”; (2) the classification of costs into fixed and variable, with the emergent belief that industries with high fixed costs were more problematic; (3) the development of the concept of entry barriers, contrary to a long classical tradition of assuming that entry is easy and quick; (4) the distinction between horizontal and vertical relationships and the emergence of vertical integration as a competition problem; and (5) price discrimination as a practice that could sometimes have competitive consequences. Finally, at the end of this period came (6) theories of imperfect competition, including the rediscovery of oligopoly theory and the rise of product differentiation as relevant to antitrust policy making.

Subsequent to 1930, antitrust policy veered sharply to the left. Then, two decades later it turned just as sharply to the right. Eventually it moderated, reaching a point that is not all that far away from the Progressives’ original vision.

INTRODUCTION

The long American Progressive Era to the New Deal, roughly 1900 into the early 1930s, was the formative age of antitrust policy.¹ During this period a diverse group of policy makers developed nearly all of the analytic tools that antitrust law uses today to evaluate business practices or market structures thought to be anticompetitive. For all intents and purposes, they invented antitrust law. In fact, after decades of experimentation we are reclaiming much of it. The extraordinary Progressive influence on antitrust policy was at least partly a historical coincidence. The passage of the Sherman and Clayton Acts and the development of techniques for evaluating practices tracked extraordinary developments in technology as well as social and economic thought. Antitrust policy would have looked very different had it developed a half century earlier.

The Progressive Era antitrust movement was both political and economic. It reflected the emergence of new interest groups as well as new sources of economic concern and theoretical developments. The emergent interest groups were large multistate business, the trade association movement dominated by small business,² consumers, and labor. The new sources of concern were industrialization, the rise of modern distribution, the labor movement, and the increasing importance of consumers as market participants. The new theoretical developments were the rise of marginalist economics and industrial organization theory, which provided competition analysts with a set of tools like none they had before.

The legislative debate leading up to the Sherman Act can hardly be characterized as a dispute about economic theory. That came later as litigants and courts looked for tools that would enable them to assess practices in a coherent way. Consistent with the economic-focused language of the Sherman Act itself, the tools that emerged were mainly economic, although they were applied by non-economist lawyers and judges. The record of their engagement with the law is impressive; judges routinely used them even if they were not aware of their economic origins or technical meaning. Nearly all of these developments placed antitrust theory on an expansion course that prevailed until the reaction against the New Deal found a voice in the neoliberalism of the 1940s, particularly as expressed by the Chicago School. Even so, the neoliberal revolution adopted most of these tools, although it modified some of them and rejected a few.

The Progressives are occasionally caricatured as people who really did not care about costs and productivity but were concerned exclusively about bigness as such. That could not be further from the truth. By and large the Progressives appreciated the fact that the trusts had lower costs than smaller firms and did not want to punish them for that. In fact, they were fairly obsessed with efficiency and cutting of costs.³ That obsession extended even to Louis Brandeis, a strong proponent of business efficiency even as he railed at large firms.⁴ He campaigned for “Taylorism,” or scientific management, as a way of limiting price increases.⁵ One antinomy in Brandeis’s work was his persistent failure to acknowledge the relationship between greater efficiency and larger size, even though contemporary economists clearly did.⁶

The numerous and varied participants in the Chicago Conference on Trusts, discussed below, favored lower costs and were also concerned about higher prices.⁷ They worried that exclusionary practices might be a vehicle for achieving them and making market dominance permanent.

I. THE CHICAGO CONFERENCE ON TRUSTS

The Progressive Era was heavily preoccupied with the rise of larger firms, or the “trust” problem. The initial reaction was an eclectic range of views about what to do about them, or whether to do anything at all. The gigantic 1899 Chicago Conference on Trusts, hosted by the Civic Federation of Chicago, is an exceptional window into the contemporary mindset because it reflected this diversity of views. Its personnel and proceedings, which were published in 1900, represented every interest group that had a stake in policy about the trusts. Some participants were invited by the conference managers, while others were invited by the governors of individual states.⁸ The speakers included politicians, economists, lawyers, social scientists and statisticians, industrialists, labor union leaders, insurance company representatives, and even clergy.⁹

This diverse group identified a number of phenomena that explained the rise of the trusts and that either justified or damned them. Some argued that the trusts were entirely the consequence of economies of scale or scope and as such were an engine of economic progress that should be left alone.¹⁰ Others argued that potential competition and new entry would always be present to discipline monopoly pricing, thus mitigating any concerns.¹¹ Many others saw the trusts as harmful and blamed their rise on deficiencies in state corporate law. They debated about a national corporation act as a potential solution.¹² Others both blamed and defended tariffs¹³ or unethical business actors.¹⁴

Within this amalgamation of concerns the Sherman Act itself was hardly dominant. In fact, it played a surprisingly small part, and the speeches tended to emphasize its deficiencies more than its strengths. Henry Rand Hatfield’s well-known contemporary account of the Chicago Trust Conference is very likely responsible for the view that the economists who spoke were nearly all opposed to the Sherman Act.¹⁵ A fair reading of the proceedings suggests two quite different splits. First was the division of those who thought that the trusts were efficient and harmless from those who regarded them as threatening. Contrary to Hatfield’s view, a clear majority believed that the trusts presented a serious problem. Second was the question of the best legal tools for confronting them. Here, Hatfield’s point has more traction. As correctives, corporate law and tariff reform were at least as prominent as the Sherman Act, and many of the speakers professed strong disappointment in Sherman Act litigation to that time. Although the speakers were hardly unanimous, the strongest consensus around a single view was that the trusts should be controlled by changes in corporate law.

Prior to the Chicago Conference, the Civic Federation had sent a questionnaire to participants.¹⁶ The summaries contained in the Proceedings say nothing about the methodology, but there were 554 respondents to 69 questions. The respondents were described as “trusts, wholesale dealers, commercial travelers’ organizations, railroads, labor associations, contractors, manufacturers, economists, financiers, and public men.”¹⁷ A separate list, or circular, was sent to a smaller but overlapping group of lawyers, economists, and “public men.” The description of the survey also fails to indicate whether respondents were limited to one answer or could select multiple answers. Nor does it specify how recipients of the questionnaire were selected and what was their distribution over various interest groups. These omissions largely reflected the state of public opinion research at the time.¹⁸ In any event, nothing suggests that this was anything more than an informal questionnaire distributed broadly to invitees.

David Kinley, a professor from the University of Illinois, reported on the results.¹⁹ Three quarters of the participants overall believed that the trusts injured consumers.²⁰ Two-thirds of the respondents regarded the trusts with “apprehension.”²¹ Most on the main questionnaire believed that the trusts resulted in higher prices.²²

The items of information about prices aggregate 506; 452 were to the effect that prices rose after combinations were made; 24 that they fell, 15 that there was no change, and 15 that they were fluctuating; 210 do not specifically assign a cause, 189 assign trusts as the cause of the change (increase, in most of these cases); and 40 assign other causes, usually “increased demand,” “rise of raw materials,” or the tariff.

Id. at 531. However, 90% of the respondents on the second Circular, which was more focused on academics, lawyers, and government officials, believed that the effect of the trusts was to reduce costs.²³ Two-thirds of the respondents on this second list also believed that consumers would benefit. Interestingly, roughly two-thirds of the respondents overall believed that labor organizations should be treated as all other trusts, while one-third took an unspecified “opposite view.”²⁴ This suggests that the idea of a labor “exemption” from antitrust law did not have popular support in 1900.²⁵ Tellingly, this occurred after the federal courts had begun using the Sherman Act as a powerful striking-breaking device.²⁶ Evidently, most of the participants did not object.

The survey concluded with a very general question: “What shall be done with combinations?” The answers were all over the place, with pluralities going to unspecified “legislation” (61 respondents), “let alone” (60) and the third highest specific proposal going to “Tariff revision” (45). “Antitrust” did not appear on the list, except to the extent it may have been included in unspecified legislation. Twenty-six respondents preferred government ownership or control of natural monopolies, and even fewer (10) supported “Stricter Limitation on Corporate Powers.”²⁷ No specific proposal other than “let alone” received 10% of the votes, and it received only 10.8%. The list of options did not include any that were obviously related to morals or ethics, although 123 responses were classified as “miscellaneous,” with no specification of their content.

At the time of the conference, the Sherman Act was nearly ten years old and had produced two important Supreme Court decisions condemning railroad cartels.²⁸ Even here, the very small number of comments on the railroad cartel decisions were more negative than positive. One complaint was that the railroad cartel cases did not authorize the courts to set reasonable rates, but only to condemn bad agreements.²⁹ Another was that the Trans-Missouri railroad cartel case, which had adopted a per se rule against price fixing, had largely “expunged” the rule of reason from the law.³⁰

By 1900 the Sherman Act had also been used aggressively several times against labor unions, a development that was both praised and condemned by participants. In nearly all of the labor cases the plaintiff had been the United States, thus inviting debate about what should be government policy toward labor union activities.³¹ P.E. Dowe, statistician of the Anti-Trust League, declared that while the cost of living within the last two years had increased some 12–16%, wages had risen by less than 3%.³² Nevertheless, as noted above, there was little support for labor antitrust immunity. Overall, while attitudes toward labor changed significantly between 1890 and 1914 when the Clayton Act was passed, most of this was not yet reflected in the conference proceedings.

Other conference participants criticized the Supreme Court’s very first Sherman Act decision, United States v. E.C. Knight Co.,³³ which had concluded that Congress lacked the constitutional authority to control intrastate manufacturing simply because the goods were destined for interstate shipment. That provoked the view that the country “must have a constitutional change if the general government is to deal with the trust problem.”³⁴ Another speaker praised the railroad cartel decisions as well as E.C. Knight for developing the distinction between intrastate and interstate trusts.³⁵ Many commentators expressed concerns about federalism, but most were of the nature that while the states had a primary role in combatting trusts they could not control interstate companies without federal assistance.³⁶

Several conference participants spoke about the role of costs. Many recognized that the trusts tended to reduce costs.³⁷ Even the “Great Commoner” William Jennings Bryan acknowledged the cost reductions but protested that nothing ensured that these savings would be passed on in the form of lower prices.³⁸ “A trust, a monopoly, can lessen the cost of distribution. But when it does so society has no assurance that it will get any of the benefits . . . .”³⁹ Similarly, others indicated a concern for higher prices. For example, John M. Stahl of the Farmers’ National Congress acknowledged that the trusts had lowered costs but accused them of setting anticompetitively high prices.⁴⁰ Some participants defined competition in terms of cost reduction.⁴¹

Critics later faulted the Chicago Conference for failure to make specific recommendations, and state governors called a second conference for that purpose which met in St. Louis later in 1899. It issued a number of recommendations, but its proceedings were apparently never published and it received little attention from the press. It was dominated by state attorneys general who focused largely on corporate law remedies.⁴² Its recommendations either duplicated those already contained in the Sherman Act or else called for corporate law modifications limiting the power of corporations to do business in more than a single state.⁴³

the enactment and enforcement, both by the several States and the nation, of legislation that shall define as crimes any attempted monopolization or restraint of trade in any line of industrial activity,..; punishment to the corporation to the extent of dissolution; an efficacious system of reports to State authority by corporations and the strict examination of all such as are organized under its laws; the prevention of entrance within a State of any foreign corporation for any other purpose than interstate commerce, except on terms that will put it on a basis of equality with domestic corporations, making it mandatory upon foreign corporations to procure State license as a condition precedent to their entry ; the enactment of State legislation preventing corporations created in one State from doing business exclusively in other States; providing that no corporation shall be formed in whole or in part from another corporation, or hold stock in another corporation engaged in similar or competitive business; recommending that each State pass laws providing that no corporation which is a member of any pool or trust in that State, or elsewhere, can do business in that State ; that the capital stock of private corporations should be fully paid up, and that shareholders shall be liable to twice the face value of the stock held by each.

The path of antitrust development that took place in subsequent years leading up to the Clayton Act in 1914 was much more focused than the conference debates, mainly because many alternatives dropped away. The move for a national incorporation statute or expanded state corporate law remedies ran out of gas.⁴⁴ Debates over the tariff remained, but no legislation ever linked them to trusts as such.

The role of labor became more controversial after 1900, with distinctive positions emerging by the 1912 presidential election. The 1912 Democratic Party platform called for protection of labor organizing so that “members should not be regarded as illegal combinations in restraint of trade.”⁴⁵ The Republican platform was silent on that issue, although it did advocate for preservation of high tariffs as a means of protecting workers’ wages.⁴⁶ High tariffs, it should be noted, protected producers directly, and labor only if producers passed on some of their gains in the form of higher wages. The Progressive Party, with Theodore Roosevelt as its head, called for an end to labor injunctions but did not mention a substantive antitrust immunity.⁴⁷ The Democrat’s 1912 election victory very likely accounts for insertion of a labor immunity into the Clayton Act, now as section 6.⁴⁸

Debates over good morals in business behavior are of course never ending, but the concerns were never reflected in the text of an antitrust statute. Rather, when it passed the Clayton Act in 1914, the Progressive-dominated Congress doubled down on the use of exclusively economic language. The Act condemned conduct when it threatened to “substantially lessen competition” or “tend to create a monopoly.”⁴⁹

One thing that emerges powerfully in the proceedings of the conference is that, even though the participants represented a wide variety of political beliefs as well as professions, for a clear majority of them the dominant concern was with the power of the trusts to set high prices or drive rivals out of business. But there were some exceptions. Of the roughly seventy participants whose statements were published, a half dozen emphasized political or social concerns either in addition or as an alternative to the economic ones. The most prominent in Progressive circles was economist Henry Carter Adams, at this time a statistician for the Interstate Commerce Commission. Adams spoke at some length about rising concentration and economic power, as well as the deficiencies of state corporate law. However, he also complained about the “general social and political results of trust organizations” that must be considered. “For the preservation of democracy there must be maintained a fair degree of equality in the social standing of citizens,” he observed, and wondered whether the rise of the trusts was consistent with that.⁵⁰ He concluded:

I would not claim, without discussion, that the trust organization of society destroys reasonable equality, closes the door of industrial opportunity, or tends to disarrange that fine balance essential to the successful workings of an automatic society; but I do assert that the questions here presented are debatable questions, and that the burden of proof lies with the advocates of this new form of business organization.⁵¹

He also suggested that the trusts might have outsize political influence.⁵²

Dudley Wooten, then a member of the Texas legislature, agreed, arguing that the trusts were antidemocratic perversions brought about by selfishness.⁵³ Aaron Jones, a leader of the national Grange, a populist political organization of farmers,⁵⁴ observed that the sugar trust made political contributions to the Republican Party in Republican-controlled states and to the Democrats in Democrat-controlled states.⁵⁵ John W. Hayes, General Secretary of the Knights of Labor, saw a political war between the power of the state and the power of the trusts,⁵⁶ as did Edward W. Bemis from the Bureau of Economic Research.⁵⁷ However, Bemis also praised chain stores for offering low prices and distinguished them from the trusts. While the trusts cut prices selectively in order to drive out rivals, the department store “furnishes alike to all the advantage of lower prices, which are rendered possible by the economies of a big business.”⁵⁸ William Dudley Foulke, a prominent journalist and political activist for Progressive causes, argued that “the political and social effects of monopoly are far more menacing to society than its economic results.”⁵⁹

For more conservative political activist George Gunton, by contrast, politics were present but pulling the other way: politicians were being urged to abandon sound economic principles of “industrial freedom” in order to vote the “arbitrary paternalism” of harsh regulation of the trusts.⁶⁰

Following the Chicago Conference, Progressives began to focus more narrowly on the antitrust laws and the discipline of economics as the preferred tool for dealing with the trusts. While political and moral rhetoric about the trusts has always been present, there is little evidence that it provided substantial guides to policy making. The dominant tool became marginalist economics, then in its infancy, and the darling of the younger generation of political economists in the United States. Most of these were Progressives with a much stronger bias in favor of government intervention than their predecessors had supported.⁶¹

The principal tools that emerged were (1) partial equilibrium analysis, which became the basis for concerns about economic concentration, the distinction between short- and long-run analysis, and later came to justify and provide support for the concept of antitrust’s “relevant market”; (2) classification of costs into fixed and variable, with the emergent belief that industries with high fixed costs were more problematic; (3) development of the concept of entry barriers, contrary to a long classical tradition of assuming that entry by new firms is easy and quick; (4) the distinction between horizontal and vertical relationships and the emergence of vertical integration as a competition problem; and (5) price discrimination as a practice that could have competitive consequences. Finally, toward the end of this period came (6) theories of imperfect competition, including the rediscovery of oligopoly theory and the rise of product differentiation as relevant to antitrust policy making.

II. MARGINALIST ECONOMICS AND MARKET REVISIONISM

The antitrust movement in the United States coincided with a far-reaching revolution in economics. The marginalist revolution has unfortunately been seriously undervalued in history writing about antitrust, mainly because so many historians did not understand it and failed to appreciate its implications.⁶² Nevertheless, the fact remains that one cannot understand the set of tools that Progressive antitrust policy makers deployed without understanding their underlying economics. By the 1930s nearly all economists were marginalists.⁶³

The classical political economists had seen value as inhering in goods or the labor that went into making them.⁶⁴ They tended to assess costs and benefits by looking at averages, which were necessarily taken from the past. They also tended to believe that capital would flow naturally toward profit and that the only practical impediment was government licenses or other restrictions.⁶⁵ In sharp contrast, marginalists saw value as willingness to pay or accept for the next, or “marginal,” unit of something. As a result, its perspective on value was forward looking. Further, market entry was a dynamic concept and its ease and likelihood varied greatly from one market to another.

Three features of marginalism account for both its influence and the resistance to it. One was that marginalist analysis enabled various values governing demand, supply, or economic movement to be “metered,” or quantified, in ways that classical political economy could not do. This feature also made marginalist economics much more technical, with increasing informational demands, but also promised to give Progressive Era economists capabilities far beyond those of their predecessors. Second, and relatedly, marginalism expanded the use of mathematics in economics, to a degree unknown by the classical political economists. This became a particularly attractive feature to younger economists and social scientists looking to add rigor and expertise to their disciplines. It also accounts for some of the resistance from older economists.⁶⁶A third feature was that marginalism undermined the classical view that markets are competitive unless the state creates monopoly. Under marginalism competitiveness was a matter of degree, and only a small percentage of markets satisfied the conditions for perfect competition. As a result, marginalism began to make a broad and unprecedented case for selective state intervention in the economy.⁶⁷

A. Markets as Human Institutions: Coercion

The classical political economists saw the world of commercial relationships in binary terms. For private arrangements people were either free or bound. Aside from government constraint, the boundaries of obligation were defined by contract, property, and tort law. Value inhered in things or the labor used to produce them, and people either purchased or not. Setting aside public obligations, within that world people were free to make their own economic decisions unless a contract, property right, familial hierarchy, or sovereign command bound them.⁶⁸ That bond was particularly strong because the common law principle of liberty of contract refused to set very many contracts aside.⁶⁹ Further, the classical tradition regarded the market itself as a part of nature. Francis Wayland’s popular textbook on political economy defined the discipline in 1886 as “a branch of true science,” and by science “[he] mean[t] a Systematic arrangement of the laws which God has established.”⁷⁰

By contrast, one prominent feature of the late nineteenth century was its fascination with change—in everything from biological evolution to physics to mechanics. The historian Howard Mumford Jones described the period as the “Age of Energy.”⁷¹ It was only natural that economists would develop marginalism, with its forward-looking concept of value that focused on change and the next thing rather than on averages from the past.⁷² “Equilibrium” became the steady state to which all change aspired but seldom reached. Motion rather than stasis was the natural order of things.

Marginalism began with the premise that value is a measurable expression of human choice. Value depended on willingness to pay or willingness to forego. Further, marginalism distinguished among goods depending on costs, availability, and preference. One corollary was the increasing belief that markets were not all the same and did not all function equally well. This opened the way for more substantial if selective intervention to correct market deficiencies.⁷³

This change in the conception of markets from a pure product of nature to a created human institution was perhaps Progressive economics’ most important contribution. Markets became imagined as human creations and not merely a reflection of permanent natural laws. Their design was a product not only of preference but also of state policy, which could be for good or for ill. As the institutionalist progressive economist John R. Commons put it in his important book on law and capitalism, the evolution of economic phenomena was artificial, more like “that of a steam engine or a breed of cattle, rather than like that of a continent, monkey or tiger.” ⁷⁴ Further, the “phenomena of political economy” are in fact “the present outcome of rights of property and powers of government which have been fashioned and refashioned in the past by courts, legislatures and executives through control of human behavior by means of working rules, directed towards purposes deemed useful or just by the law-givers and law interpreters.”⁷⁵

An outpouring of literature stretching from the 1890s through the early decades of the twentieth century developed aspects of this view that markets are “created” rather than simply present in the natural world. One manifestation was unprecedented economic concern with the distribution of wealth as a legitimate target of state policy because, after all, the state was responsible for it in the first place.⁷⁶ Progressive economist Richard T. Ely argued in his two-volume book on the common law and the distribution of wealth that the legal system itself was strongly biased against the poor. The coercive rules of property and contract relinquished power to those who already had it.⁷⁷ In a review, Cambridge economist Charles Percy Sanger concluded that “the most salient fact is the mass of evidence which shows how hostile the constitution of the United States, as interpreted by judges, is to the poor or the public.”⁷⁸

A related consequence that had more salience for antitrust policy was the idea that markets themselves could be coercive instruments that limited human freedom. Columbia Professor Robert Hale, another Progressive who was one of the earliest economists to be hired onto a law school faculty, expressed this idea for an entire generation. In an article entitled “Coercion and Distribution in a Supposedly Non-Coercive State,” he observed that the economic systems that had been developed by classical economists gave lip service to freedom. In reality, however, their systems are “permeated with coercive restrictions of individual freedom, and with restrictions, moreover, out of conformity with any formula of ‘equal opportunity’ or of ‘preserving the equal rights of others.’ ”⁷⁹

Many of these newly discovered concerns about market coercion showed up in public law—things such as greater protection for labor from onerous wage agreements, prohibitions of child labor, women’s suffrage, the progressive income tax, and eventually the expansive safety net programs of the New Deal. But they also affected competition policy. For example, the law of vertical restraints became increasingly aggressive, particularly in its protection of small retailers. It abandoned very benign common law rules for virtual per se illegality for most distribution agreements that limited dealer behavior, as well as aggressive rules for vertical mergers.⁸⁰ The classical conception that new entry would always be around to discipline monopoly unless the government prevented it gave way to one that saw markets themselves as forestalling new competition.⁸¹ The idea of competition itself came increasingly under attack, and not from socialists who did not believe in it. Rather it was from neoclassically-trained economists who realized that the viability of competitive markets depended on several assumptions that did not invariably obtain.⁸²

B. Partial Equilibrium Analysis

Marginal utility theory permitted the creation of tools for determining the relationship between costs and either competitive or monopoly prices within a firm. By itself, however, it was not able to assess how competition works among multiple firms or what the conditions are for achieving it. That required additional theory about interactions among firms.

Partial equilibrium analysis permitted people to group firms producing similar products into “markets” on the assumption that the interactions of firms within the same market were much more important for evaluating competition than the interactions (or lack of them) among firms in different markets. Cambridge University Professor Alfred Marshall, the first great marginalist industrial economist, borrowed this approach from the science of fluid mechanics: for goods within the same market, prices and demand would flow toward equality, but not across the market’s boundaries.

In 1890 Marshall brought the ideas of marginal utility and equilibrium together in a way that made the analysis of market behavior both tractable and useful. First, he developed what came to be known as the Marshallian demand curve, illustrating the inverse relationship between price and output of a single commodity.⁸³ The downward slope of the demand curve is driven entirely by the next, or “marginal,” buyer’s willingness to pay for one unit of that commodity. The model ignored choices people might make about different commodities, even though in a world of limited budgets such choices were relevant.

Marshall was not the first marginalist,⁸⁴ but he did turn marginalism into a practical tool of competition analysis. He explained that he had come to attach great importance to the fact that our observations of nature, in the moral as in the physical world, relate not so much to aggregate quantities, as to increments of quantities, and that in particular the demand for a thing is a continuous function, of which the “marginal” increment is, in stable equilibrium, balanced against the corresponding increment of its cost of production.⁸⁵

For example, a firm would calculate a selling price by comparing the amount of additional cost that production and sale would encounter and the amount of additional revenue that it would produce.⁸⁶

Marginalism provided a partial theory of individual firm behavior, but not so obviously a theory of firm interaction and competition. In order to do that, Marshall needed a mechanism for identifying who in the economy competes with whom. This was in contrast to earlier contemporaries such as Leon Walras and Marshall’s own successor as professor of political economy at Cambridge, Arthur Cecil Pigou, who were more concerned with the economy as whole. Today this division roughly segregates macroeconomics and microeconomics.⁸⁷

Marshall’s concern was to make economic analysis more manageable by focusing on those firms that competed with one another in an obvious way. He realized that everything in an economy affects everything else, but the most important influences can be identified and tracked. In the influential eighth edition of Principles, published in 1920, Marshall observed that informational demands made it necessary for people, with their “limited powers” to “go step by step.”⁸⁸ They would have to break up “a complex question, studying one bit at a time and at last combining [their] partial solutions into a more or less complete solution of the whole riddle.”⁸⁹

He described his solution, which came to be known as partial equilibrium analysis, this way:

The forces to be dealt with [in the economy are] so numerous, that it is best to take a few at a time; and to work out a number of partial solutions as auxiliaries to our main study. Thus we begin by isolating the primary relations of supply, demand and price in regard to a particular commodity. We reduce to inaction all other forces by the phrase “other things being equal”: we do not suppose that they are inert, but for the time we ignore their activity. This scientific device is a great deal older than science: it is the method by which, consciously or unconsciously, sensible men have dealt from time immemorial with every difficult problem of ordinary life.⁹⁰

This focus on individual industries quickly took over the entire field of business economics, or “industrial organization,” as a distinct area of economic inquiry. Industrial organization theory seeks to determine the conditions under which a particular industry attains equilibrium. Today, antitrust has become a substantially microeconomic discipline, certainly in litigation if not always in theory.

Marshall set industrial organization economics on the path of studying industries individually by identifying goods, which he termed “commodities,” that were sufficiently similar that they could be said to compete with each other. He borrowed from Augustin Cournot the definition that a “market” is the “whole of any region in which buyers and sellers are in such free intercourse with one another that the prices of the same goods tend to equality easily and quickly.”⁹¹

This assumption had numerous implications that were relevant to antitrust. One was to invite questions about exactly how to identify who was in such a market and who was not. A second was to consider whether the identity of the firms in this grouping changed over time. The concept of “entry barriers” explained the likelihood that firms would cross this line, coming in when profits were high. A third was to make the analysis of relationships among competitors, or “horizontal” relationships very different from the analysis of vertical or other relationships.⁹² A fourth was a search for the conditions that either furthered or undermined competition once such a group of firms or their commodities had been defined.

Marshall clearly realized that in reality there is no such thing as a single market that is completely isolated from the rest of the economy. Partial equilibrium analysis, as it came to be called, was no more than a working assumption—although a very important one for making economic analysis manageable. The idea that groupings of similar (competing) commodities should be industrial economics’ principal subject of study had a profound influence on antitrust policy. One of the most important antitrust tools to come out of this focus was the idea of the “relevant market,” or the grouping of sales whose products and prices are strongly influenced by one another.⁹³

The late nineteenth century was the golden age of engineering and science, including social science and economics. Marshall borrowed his ideas about markets, movement and equilibrium straight from Newtonian physics: “When two tanks containing fluid are joined by a pipe, the fluid, even though it be rather viscous, which is near the pipe in the tank with the higher level, will flow into the other,” he wrote in 1890.⁹⁴ Further, “if several tanks are connected by pipes, the fluid in all will tend to the same level . . . .”⁹⁵

While he appeared to be discussing fluid mechanics, Marshall was actually speaking of the principle of economic substitution at the margin, which he defined as the tendency for prices within a single market “to seek the same level everywhere,”⁹⁶ just as the fluid in a tank. Further, “unless some of the markets are in an abnormal condition, the tendency soon becomes irresistible.”⁹⁷ Within this model a “market” was a closed system in which fluids moved naturally toward equality. A different market would be a different enclosed system, and without any flow from one system to the other. Further, as soon as one relaxed the assumption that resources would move freely and quickly from any place of low utility to any place of higher utility, it became prudent to investigate where such movements could be expected to occur, when they would be less likely, and what were the obstacles that stood in the way.

Irving Fisher, who was to become one of America’s most important early marginalists, used his Ph.D. program at Yale in the 1890s to construct a “utility machine.” The machine illustrated with fluids controlled by pumps and valves how prices within the same market flowed to an equilibrium, but did not flow across market boundaries.⁹⁸

The utility machine was thought to be so innovative that it was scheduled for display at the 1893 Columbian Exhibition in Chicago but was destroyed in route.⁹⁹ Other American economists also used illustrations derived from fluid mechanics to illustrate the equilibrium of prices in a market.¹⁰⁰

Figure 1. Irving Fisher’s Utility Machine (1893)

Sources: Timothy Taylor, Photos of Fisher’s Physical Macroeconomic Model, Conversable Economist (Oct. 25, 2016, 8:06 AM), https://conversableeconomist.blogspot.com/2016/10/photos-of-fishers-physical.html [https://perma.cc/N64M-VLR7].

Marshall’s conclusion that the fluids in a tank would flow to a level equilibrium, even though they were “rather viscous,” presaged another development in marginalist economics: the idea of friction, or “costs of movement,” in the words of Marshall’s successor Pigou.¹⁰¹ This idea was later narrowed and refined to become “transaction costs.”¹⁰² The idea was simply that the costs of moving resources to an equilibrium varied from one market situation to another, and in some cases these costs prevented the movement altogether. As a result, one feature of some markets was “chronic disequilibria,” as Joseph Schumpeter later observed.¹⁰³ Another result was increasing awareness that these costs could interfere with a market’s movement toward competition. These concerns were reflected in the increasing attention toward barriers to entry, in contrast to the historical classical assumption of free entry.¹⁰⁴

Marginalist industrial economics also broke the bond that had always existed between classical political economy and laissez faire policy—at least until significant neoliberal pushback occurred in the 1940s. The classicists had been strenuous opponents of government intervention in the economy, but the new Progressives were not. Indeed, Marshall himself moved significantly to the left as he grew older.¹⁰⁵ As the technical study of market competition under marginalist principles developed, economists became increasingly concerned about defining the conditions for “perfect” competition. Accompanying this came the realization that the conditions are in fact quite strict. Nearly all markets deviated from them, although some more than others.¹⁰⁶ One thing that marginalism provided was a set of tools for measuring these deviations, provided that the data were available. Antitrust policy in turn became a tool for examining certain industry structures and practices in order to determine whether they were anticompetitive and, if so, whether they could be corrected by the legal system.

C. Industrial Concentration

The idea of a correlation between the number of firms in a market and its degree of competitiveness dates back to Cournot, a French mathematician who wrote in the mid-nineteenth century.¹⁰⁷ In Cournot’s model, as the number of effective competitive players in a market becomes smaller, the margin between price and marginal cost increases until it reaches the monopoly level with a single firm.¹⁰⁸ For more than a century, the relationship between industrial concentration and competitive performance has been an important component in competition policy, both at the legislative level¹⁰⁹ and more specifically in merger policy. Nevertheless, its role has been controversial.¹¹⁰

“Concentration” refers to the number of firms in a market and, under most measures, their size distribution. A market is said to be more concentrated as the number of firms goes down or as the size distribution is more lopsided. In order to have a measure of industrial concentration someone needs to have a concept of a market, or “industry,” and that is why partial equilibrium analysis was an essential premise.

Around the turn of the century, marginalist economists began to examine the relationship between market structure and industry performance. As early as 1888 Gunton used data from the U.S. Census of Manufactures to conclude that over the previous half century, industrial concentration in some markets had grown significantly.¹¹¹ For example, the cotton industry census data from 1830 and 1880 showed that during that interval the amount of capital invested in the industry grew fivefold, the amount of production more than tenfold, but the number of firms had actually shrunk from 801 to 756.¹¹² The data also showed that the amount of capital invested per worker had roughly doubled, indicating that the firms were becoming more capital intensive.¹¹³ Gunton also identified railroading, telegraphing, petroleum production, and sugar as showing greatly increased concentration.¹¹⁴

Gunton’s conclusions were not addressed to competitiveness. He never discussed the relationship between the number of firms in a market and the threat of oligopoly or collusion. He observed that some had complained that the “concentration of capital tends to increase prices”¹¹⁵ but found no evidence of it. Rather, he found that most of the facts “point the other way.”¹¹⁶ Prices in most of the industries that had experienced higher concentration had actually gone down rather than up.¹¹⁷ He also rejected the argument that “although these trusts have constantly resulted in reducing prices,” still greater saving would result “should the government run the business.”¹¹⁸ He then concluded that the large firms were fundamentally a good thing.¹¹⁹

Manifestly, therefore, the charge that the concentration of capital in the form of trusts and syndicates, necessarily tends to produce monopoly (in the obnoxious sense), destroy competition, increase prices, oppress labor, or to put the government into the hands of an industrial oligarchy, is without any real foundation in fact, or justification in reason. On the contrary, these institutions, instead of being the evidence of industrial abnormity and economic disease, are the natural consequence of modern industrial differentiation, and in their nature are economically wholesome, and politically and socially harmless.

Id. at 406. Gunton did not attribute these charges to any particular person. See also Charles H. Cooley, The Theory of Transportation, 9 Pub. Am. Econ. Ass’n 13, 75–76, 109–20 (1894) (finding increasing concentration troublesome but acknowledging that it led to lower costs).

Increasingly, however, economists and competition lawyers became less sanguine. Boston attorney Lionel Norman lamented that industrial concentration was increasing at an alarming rate.¹²⁰ Cornell economist Jeremiah Jenks and Walter Clark, a professor of mathematics and economics, were also much more pessimistic,¹²¹ as were Progressive economists Ely¹²² and Edwin R.A. Seligman.¹²³ Looking at the business landscape just after the turn of the century, Seligman concluded that the “study of modern business enterprise thus becomes virtually a study of concentration.”¹²⁴ He also relied heavily on data from the U.S. Census of Manufactures, which showed rapidly increasing concentration around 1900 and a significantly greater number of “combinations,” or firms that had attained their large size by merger. All but one of the top twenty-five combinations had been formed between 1890 and 1904.¹²⁵ On effects, he noted both the possibility of lower costs and higher profits.¹²⁶ He also noted that higher profits did not necessarily mean higher prices, because higher output and lower prices could also be profitable.¹²⁷ He seemed particularly troubled by the fact that the trusts earned higher margins, even if they sold at lower prices.¹²⁸

Progressive railroad economist and Harvard Professor William Z. Ripley also undertook a comprehensive examination of industrial concentration data derived from the Census of Manufactures.¹²⁹ The two census figures he found to be most informative were those of the number of firms in each consecutive five-year census period and the value of their gross product.¹³⁰ He concluded that in 142 of the 322 industries grouped in the census, the number of firms had declined, and there had been significant increases in per firm output. He was able to group industries by their tendency toward monopoly, simply by examining the trend toward increased concentration.¹³¹ “Concentration varies more or less directly with the degree of monopolization,” he concluded.¹³²

These writers generally assumed a correlation between the data contained in the Census reports and the “markets” that Marshall referred to for partial equilibrium analysis. In fact, the census data correlated very poorly. For example, one classification in the 1909 Census of Manufactures was “[f]urniture and refrigerators,” which included both metal and wood furniture of all kinds, as well as wooden iceboxes and metal refrigerators, which were first coming into commercial use.¹³³ A metal refrigerator did not compete very much with an upholstered chair, which did not compete very much with a wooden bed. This very poor fit between industry census data and antitrust markets has served to weaken conclusions about industry competitiveness from census classifications—something that a few Progressive economists realized already at the turn of the century.¹³⁴ This poor correlation has remained to this day as a problem with the measurement of industrial concentration through the use of census data. The classifications are better today than they were a century ago, but they still are not well designed to address this problem.¹³⁵ Nevertheless, data of this type have been in continuous use to produce measures of industry competitiveness ever since the late nineteenth century.¹³⁶

The Chicago School largely rejected the significance of concentration data, opting for a position more like Gunton’s that the aggregation of large firms resulted mainly in greater efficiency and lower prices.¹³⁷ Numerous other scholars from the mainstream and further left have disagreed.¹³⁸ In the mid-1970s, the debate produced an influential conference collecting representatives from both sides.¹³⁹ The resulting book hardly put the debate to rest, however, and census-driven concentration data continue to find a controversial but important place in debates about American competitiveness. For example, the Biden Administration’s 2021 executive order on American competitiveness lamented declining competition and relied on concentration data to make the point.¹⁴⁰

D. Fixed Costs and Equilibrium

Both marginalism as a theory of value and Marshall’s theory of equilibrium made cost classification essential. In fact, for Marshall, the cost problem produced significant frustration. Competition drives prices to marginal cost which, by definition, are costs encountered for each incremental change in output. But if hard competition drives prices to marginal costs, then how could a firm pay off its other costs?

Marshall used the term “marginal cost” to describe the immediate additional cost that a firm faced when it increased output by a single unit. In a chapter on the “Equilibrium of Normal Demand and Supply,”¹⁴¹ he observed that under what he called “free competition” prices would be driven to a level very close to marginal cost,¹⁴² and this would become a stable equilibrium.¹⁴³

Marshall’s theory of marginal cost was an effort to determine how firms decide on prices. He observed that prices are related to costs but not all costs are the same. Some costs seem to be quite unrelated to a firm’s decision about what price to charge, at least over the short run. This included administrative costs as well as depreciation on plant and durable equipment.¹⁴⁴ In calculating whether a particular price is immediately profitable, the firm largely ignores these costs. Marshall identified “total cost” as the sum of these supplemental costs plus marginal costs.¹⁴⁵ In the short run each additional sale would add to a firm’s profit so long as it was at a price that exceeded the firm’s marginal costs.

Marshall never used the terms “fixed costs” or “variable costs.”¹⁴⁶ He devoted an entire chapter to “cost of production,” which spoke of “prime costs,” “total costs,” and “marketing costs.” The words “prime” and “direct” were almost always used as references to what we would call variable costs.¹⁴⁷ Within prime costs he included “the (money) cost of raw material used in making the commodity and the wages of that part of the labour spent on it which is paid by the day or the week.”¹⁴⁸ He excluded salaries such as are paid to management because these did not vary with output over the short run.¹⁴⁹

Marshall observed that for goods that require a “very expensive plant” the “[s]upplementary” cost is a “large part of their [t]otal cost.”¹⁵⁰ As a result, a “normal price” “may leave a large surplus above their [p]rime cost.”¹⁵¹ In today’s terminology, in order to be profitable a business with high fixed costs would have to charge a premium above its variable costs. He also observed what would become a significant problem for establishing equilibrium in markets with high fixed costs. “[I]n their anxiety to prevent their plant from being idle” producers may “glut the market.”¹⁵² If they “pursue this policy constantly and without moderation,” price may be so low “as to drive capital out of the trade, ruining many of those employed in it, themselves perhaps among the number.”¹⁵³ When firms are under “keen competition” this urge becomes inevitable, and firms “whose business is of this kind . . . are under a great temptation” to sell “at much less than normal cost.”¹⁵⁴

Marshall’s problem was getting an equilibrium that would sustain a market that was both competitive and had high fixed costs—an increasingly prominent feature of industrial production. By his eighth edition in 1920, Marshall had come up with a largely unsatisfactory biological model to explain how firms with significant fixed costs might attain equilibrium. Firms were like trees in a forest, he explained. They have individual lifecycles, and thus come and go, and some never survive infancy.¹⁵⁵ This organic metaphor never fit very well into the emergent neoclassical model of equilibrium that looked strictly at the mathematics of profit-maximization.¹⁵⁶

During the formative years of antitrust policy in the United States, a “fixed cost controversy” drawn from Marshall’s model of competition dominated important debates about the appropriate roles of competition, antitrust policy, and regulation.¹⁵⁷ In industries such as the railroads or heavy steel manufacturing, the argument went, “ruinous” competition would occur because firms would be forced to cut their prices toward marginal cost, leaving insufficient revenue to pay off their fixed costs. One equilibrium solution was the emergence of monopoly, perhaps by merger. Others were collusion or price regulation. These concerns were very likely a major contributing factor to the great merger wave that occurred around the turn of the twentieth century.¹⁵⁸ Antitrust lawyers representing cartel defendants in markets with high fixed costs repeatedly asserted a “ruinous competition” defense to price fixing, but the federal courts consistently rejected it,¹⁵⁹ as they do today.¹⁶⁰

On the other side, several of the more left-leaning Progressives denied that there was any such thing as chronic overproduction.¹⁶¹ By rejecting the defendants’ arguments, the Supreme Court was effectively taking their position. That was ironic, because the principal architect of the view was Justice Peckham, also the author of Lochner v. New York.¹⁶² He could hardly be classified as a left-leaning Progressive. Peckham’s opinion in the Joint Traffic case expressed strong doubts about the ruinous competition argument, concluding that the principal consequence of very low rates was increased demand, which would in turn produce a larger supply.¹⁶³ One possibility, of course, was that Justice Peckham did not fully understand the implications of high fixed costs.

Justice Peckham’s clever response to the defense in the Addyston Pipe case was that, whether or not competition was ruinous, the defendants themselves could not be trusted to set a price no higher than necessary to prevent it. In fact, they had set prices so high as to deprive the public of the advantages of any competition at all.¹⁶⁴ The Court cited cost evidence developed in the lower court that the reasonable cost of the defendants’ pipe, including a fair profit, did not exceed $15 per ton and could have been delivered profitably to Atlanta for $17 to $18 per ton. The bid price was actually $24.25 per ton.¹⁶⁵ That statement at least suggested that one judicial response to a ruinous competition defense could be a judicial inquiry into costs, but the Court never went down that rabbit hole. It simply rejected the defense outright, as it has done ever since.

Theorizing about the behavior of firms with high fixed costs became a central focus of early antitrust literature, as well as the early American economic literature on the theory of industrial organization.¹⁶⁶ It also proved to be a general attack on the model of perfect competition.

Prior to the development of imperfect and monopolistic competition models in the early 1930s¹⁶⁷ the principal Progressive theorist of fixed costs was the institutionalist economist John Maurice Clark. Clark found the existence of significant fixed costs, which he termed “overhead” costs, to be a disruptor of the standard notion of the equilibrium of supply and demand under competition.¹⁶⁸ The problem, as he noted, was that in the short run of immediate demand price and output are determined by demand and marginal cost, but in the presence of fixed costs this could be attained only over some longer run.¹⁶⁹ High fixed costs continuously produced “irregularities” that threw the relationship between demand and supply out of balance, with some periods of excess capacity and others of excessive demand.¹⁷⁰ Echoing Marshall, he observed that “where overhead costs are a substantial item, the perfect theoretical equilibrium is not found.”¹⁷¹

The implications, as Clark worked them out, were chronic overproduction, because any price above short run marginal cost would serve to reduce the deficit in payment of fixed costs.¹⁷² Another result was that price discrimination became a profitable strategy to the extent that a firm was able to maintain higher prices on established demand while bidding a lower price for new sales.¹⁷³ One characteristic of price discrimination as a solution to the problem of high fixed costs is that when it occurs it results in increased output. Clark concluded that there was nothing inherently anticompetitive or even suspicious about most instances of price discrimination.¹⁷⁴ They were simply a mechanism that firms used to sell individual batches or product at a profit-maximizing (or loss-minimizing) price. That view has very largely persisted within antitrust policy.

The Marshall equilibrium problem ultimately went away when economic models began to incorporate product differentiation, particularly in the theory of monopolistic competition.¹⁷⁵ The principal problem had been Marshall’s assumption that all sellers in competition sold identical “commodities.” As a result, firms competed only on price. When differences in the product or even the terms of sale were incorporated, it became possible to have equilibrium without relying on any non-economic theorizing about the nature of the firm. The significance of this debate, which occurred almost entirely during the Progressive and New Deal eras, is difficult to exaggerate. It gave us much of our theory about equilibrium in industrial markets, analysis of costs, and theories about the limits of competition and the appropriate scope of regulation.¹⁷⁶ It also fueled the Harvard School view that markets differ from one another, and antitrust policy thus requires intense factual queries into particular industries and practices.

E. Market Failure and Regulation

The fixed cost controversy strongly supported Progressives’ suspicions that markets were not as inherently benign as the classical political economists had believed. However, some worked better than others. Antitrust for its part is dedicated to the proposition that markets can be made to work tolerably well on their own with only selective intervention. In other cases, however, the roots of failure are so deep that ordinary market forces are ineffective.

Increased appreciation of market diversity led to a more general theory of market “failure,” championed by Pigou.¹⁷⁷ Pigou developed the idea of a “divergence” between private and social costs, or “externalities” that private bargaining could not correct. For example, a negative externality might occur when a polluting refiner was not required to compensate downwind neighbors for its air pollution. By contrast, a positive externality occurred when the inventor of a new product could not effectively prohibit people from copying it. In the first case the result would be too much pollution; in the second case it would be too little invention.

The idea, which became more technically expressed in the 1950s,¹⁷⁸ was that in a few markets sustainable competition is impossible without state intervention. The goal of regulation became to emulate competitive outcomes in these markets. Adams had anticipated a version of that argument already in the 1880s, arguing that competition was not sustainable in industries with declining costs because the emergence of monopoly was inevitable.¹⁷⁹

The Progressive Era then saw an outpouring of literature on regulation as a corrective for market failure, much of it focused on transportation and public utilities.¹⁸⁰ Among the most important contributions was Joseph Beale and Bruce Wyman’s 1906 book on railroad regulation.¹⁸¹ They made two important observations. The first was that monopoly provisions in corporate charters for railroads and bridges were common at least since the early nineteenth century. The argument that Justice Story articulated for them already in 1837 was that monopoly privileges were essential to attract investment into public utility markets, which were distinctive because of the amount of investment they acquired.¹⁸² However, Beale and Wyman observed a second rationale, which was “virtual monopoly”—namely, that the cost structure of these industries required a monopoly. Further, they argued, this was the “true ground” for regulation of monopolies.¹⁸³ “[W]here competition prevails it regulates the conduct of business by its own processes, but monopoly requires the intervention of the law of the land . . . .”¹⁸⁴

This neoclassical theory of regulation has since formed the basis of core regulatory theory in the United States, as well as one of its most controversial features: cost-of-service rate making.¹⁸⁵ The idea of market failure expanded significantly in the 1930s and after, bolstered in significant part by the Depression. Regulation moved far beyond the relatively narrow neoclassical conception of market failure even to the idea that markets themselves cannot be trusted to distribute goods or services in an efficient, egalitarian manner.¹⁸⁶

Both Progressive and New Deal regulatory theory were aggressively assaulted in the 1960s and 1970s by Chicago School critics such as George J. Stigler.¹⁸⁷ His critique completely ignored natural monopoly or other structural characteristics thought to justify regulation. Rather, he substituted a theory based entirely on political capture—namely, that regulation is nothing more than interest group purchase of regulatory favors from legislatures or government agencies. Stigler never even mentioned declining average costs or natural monopoly. In fact, the only costs he discussed were the cost of operating the political process, including the costs to lobbyists or political operatives of obtaining favorable legislation.¹⁸⁸ He argued, for example, that the costs of successfully lobbying for an exclusionary occupational license are small when distributed over each member of society, but they can produce enormous gains to activists seeking such licensing protection.¹⁸⁹ In sum, Stigler’s model completely divorced the theory of regulation from firm costs or market structure; it was purely political.

That Chicago School effort substantially failed. It never generated a theory with significant explanatory power outside the realm of badly designed regulation that could be explained only by political influence. For example, it could not explain why public utilities are subject to price regulation at the retail level while groceries in every state are sold competitively, except perhaps by offering that the utilities had better lobbyists. To be sure, the Chicago School did make some important contributions at the margins—mainly by hammering home the proposition that regulation can lead to harmful capture and there are good reasons to be on guard about overreach. In addition, regulatory fervor led to excessive controls that did more harm than good. For that, however, the usable critiques came from centrists such as then-Professor Stephen Breyer¹⁹⁰ or Cornell economist and Chair of the Civil Aeronautics Board Alfred E. Khan.¹⁹¹

F. Price Discrimination

Price discrimination, which technically refers to selling to two or more customers at different ratios of price to cost, has always produced divisions in antitrust policy, most typically between economists and non-economists.¹⁹² Lawyers often view it with suspicion, something like race or gender discrimination. By contrast, economists have always tended to be more circumspect, and more inclined to divide it up into different varieties. Even a Progressive institutionalist economist such as John Maurice Clark discussed it in relatively benign terms. Minnesota economist and eventual Director of the United States Census Edward Dana Durand probably stated the consensus view among Progressive economists. In a critique of the Clayton Act, he observed that price discrimination “is an all but universal practice and is not necessarily injurious or calculated to bring about a monopoly.”¹⁹³ However, he also observed that price discrimination could be a strategy of selective predatory pricing used to drive competitors out of the market.¹⁹⁴

Most of the economic foundations for our understanding of price discrimination developed during the Progressive Era as an outgrowth of marginal analysis. The principal originator of the modern theory was Pigou.¹⁹⁵ Pigou divided price discrimination into three types, which he named first-, second-, and third-degree price discrimination. First-degree, or “perfect” price discrimination, is an analogue of perfect competition: it never exists in the real world but is an important tool for analysis. Under it, a seller sells every unit at that customer’s reservation price, or the highest price that customer is willing to pay. The result is that output is at the competitive level, but all of the industry profits go to producers rather than consumers.¹⁹⁶

Second-degree price discrimination occurs when the seller adopts a discriminatory pricing formula and the buyer “chooses” its price by selecting how to purchase. A quantity discount schedule is one prominent example. The purchaser can obtain a lower price by buying more. A discount for early booking is another.

In third-degree price discrimination the seller preselects categories of customers based on certain observed characteristics and charges them different prices—for example, one price for commercial users and another for residential users.

United States antitrust law has never developed general antitrust rules governing price discrimination. Section 2 of the Clayton Act, subsequently amended by the Robinson-Patman Act, addressed a practice that it called “price discrimination.”¹⁹⁷ But the set of practices that statute reached often had little to do with economic price discrimination. Rather, the statute simply condemned price differences.¹⁹⁸ The Progressives did often identify predatory price discrimination as one of the evils brought about by the trusts, particularly Standard Oil.¹⁹⁹ The result was the original section 2 of the of the Clayton Act,²⁰⁰

That it shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly to discriminate in price between different purchasers of commodities . . . where the effect of such discrimination may be to substantially lessen competition or tend to create a monopoly in any line of commerce: Provided, That nothing herein contained shall prevent discrimination in price between purchasers of commodities on account of differences in the grade, quality, or quantity of the commodity sold, or that makes only due allowance for difference in the cost of selling or transportation, or discrimination in price in the same or different communities made in good faith to meet competition: And provided further, That nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade.

Id. which the Robinson-Patman Act later amended. The original statute was intended to reach a particular form of predatory pricing widely attributed to the Standard Oil Company as well as others.²⁰¹ The House Judiciary Committee report on the provision indicated that its purpose was to target the practice of large corporations using local price cutting intended to destroy a competitor.²⁰² In a 1923 decision, the Second Circuit described the condemned practice this way:

[P]rior to the enactment of the Clayton Act a practice had prevailed among large corporations of lowering the prices asked for their products in a particular locality in which their competitors were operating for the purpose of driving a rival out of business. Such lowering of prices was maintained within the particular locality while the normal or higher prices were maintained in the rest of the country; and this practice was continued until the smaller rival was driven out of business, whereupon the prices in that locality would be put back to the normal level maintained in the rest of the country. The Clayton Act was aimed at that evil.²⁰³

The statute did not explicitly require that the lower price be below cost, but that was largely the way it came to be interpreted.²⁰⁴ The Supreme Court initially construed the statute broadly without discussing any requirement of below-cost pricing.²⁰⁵ Further, the statute’s express limitation to “commodities” meant that it could not apply to things such as railroad rates, which were one of the biggest targets of price discrimination concern.²⁰⁶

John Maurice Clark’s important 1923 book on fixed costs made a convincing argument that, setting aside differences in bargaining relationships or customer sophistication, price discrimination is largely a consequence of fixed costs.²⁰⁷ A firm with a heavy fixed cost investment needs to keep its output up, and any sale at a price greater than incremental costs will improve its bottom line. As a result, it tries to retain legacy customers at higher prices while bidding lower prices for new or spot market sales. When a firm has excess capacity, these pressures are great.

This explanation of price discrimination was already known in the railroad industry by Clark’s time. Forty years earlier Yale economist and eventual President Arthur Twining Hadley had made a similar observation in justifying railroads’ policies of charging different freight rates for different commodities depending on shippers’ willingness to pay.²⁰⁸ By doing this the railroads were able to maximize output. Given their high fixed costs, this meant that the average cost of transportation went down.²⁰⁹

The Robinson-Patman Act was passed in 1936, subsequent to the period under discussion here. It was not a way of approaching the problem of fixed costs. The statute condemned many of the things that Clark’s analysis had explained as causing no competitive harm.²¹⁰ In any event, the Robinson-Patman Act was a complete misfire. The concern motivating the statute was the emergence of large chain stores such as A&P, which had become the nation’s largest grocer. A&P drove many smaller grocers out of business, mainly because it was vertically integrated and also because it was able to purchase in large quantities, enabling it to undersell small grocery stores. The Robinson-Patman Act ignored vertical integration and scale economies and identified the problem entirely in terms of a firm’s insistence on charging some buyers lower prices than others.²¹¹

The statute completely failed to limit vertical integration because of its requirement that both the higher priced and lower priced transactions be “sales.”²¹² The courts consistently held that a “sale” refers to a transfer of goods from one firm to a different firm. The vertical passage of a good from a firm to its wholly owned store or other subsidiary was not a “sale.”²¹³ The Act did condemn a few large suppliers, such as Borden, for selling milk to large grocers at a lower price than to small grocers.²¹⁴ Further, because the statute targeted “sales,” it did not effectively reach powerful buyers such as A&P itself. The statute did contain a buyers’ liability provision, almost as an afterthought, which was never very effective.²¹⁵

During the Progressive Era through the New Deal, the antitrust analysis of price discrimination was spotty and indeterminate. In fact, however, it remains indeterminate to this day. We have never developed good theory for generalizing about the competitive effects of price discrimination. The consensus of economists today is probably not much different from what it was in the 1920s and 1930s—namely, most instances are competitively harmless, particularly if the discrimination tends to increase output.²¹⁶

G. Monopoly Power and Structure: Potential Competition, Barriers to Entry, and the Relevant Market

In 1890, when the Sherman Act was passed, legal doctrine did not have a coherent conception of market power as a measurable phenomenon. Economics was not much further along. Judicial decisions contained plenty of discussions of “monopoly,” virtually always in relation to patents or other grants of exclusive rights. In most cases “monopoly” was simply assumed from the existence of the exclusive grant itself. For example, many nineteenth-century decisions spoke of the “patent monopoly,” as if the relationship between the two terms was automatic.²¹⁷ All of the references to patents in the Chicago Conference used the term this way.²¹⁸ The law dealing with various aspects of monopoly came essentially from three sources: patent and copyright law, the common law of unfair competition and contracts in restraint of trade, and state corporation law. None contained a market power requirement, and power was generally either assumed or irrelevant.

Estimation of market power by reference to the share of a relevant market, as it is used today in antitrust cases, was a relatively late arrival. Today it has become so conventional that we regard it as routine, and in 2018 a divided Supreme Court mistakenly concluded as a matter of law that it is the only way to assess power in a vertical case.²¹⁹ Since the existence and measurement of market power present questions of fact, the Court’s conclusion was not only technically incorrect, it was also a dictatorial intrusion of policy into fact finding. Econometric tools for assessing market power, such as the Lerner Index, were actually developed prior to judicial usage of the “relevant market” in antitrust analysis.²²⁰ Today econometric methods often produce better results than traditional measurement.²²¹ Further, the use of econometric devices is fundamentally inconsistent with the model of perfect competition. The firms within a perfectly competitive market have no power to price above marginal cost unless they collude. Implicit in the Lerner Index, and later in the development of more sophisticated econometric tools for assessing the power of individual firms, is that the firms are not operating in perfectly competitive markets.²²²

1. Potential Competition and Barriers to Entry

The belief that trusts both promised lower costs and threatened higher prices at least partly explains the heavy focus in the early antitrust literature on “potential competition” as a disciplinary tool. In 1895, Gunton optimistically described potential competition as a force “that is ever waiting to step in where large profits warrant the risk.”²²³ Even a dominant trust would not charge monopoly prices if the looming threat of competition was sufficient to keep its prices down. Classical political economists had always assumed that any attempt to charge monopoly prices would invite new competitive entry that would force prices back to the competitive level. About the only things that would prevent this were government restrictions on entry, including patents.

In his 1884 critique of traditional political economy, Ely, who was to become one of the most prominent Progressive economists, caricatured the classical assumptions of easy market entry, which he described as “the absolute lack of friction in economic movements. Not only do capital and labor move with perfect ease from place to place and from employment to employment, but this . . . is accomplished without the slightest loss.”²²⁴ Under this image of the economy, Ely continued:

The silk manufacturer diverts his capital into another employment like the construction of locomotives with precisely the same facility with which he turns his family carriage horse from an avenue into a cross street, while the Manchester laborer on a moment’s warning finds a suitable purchaser for his immovable effects and without expense or loss of time transfers himself to London where employment is at once offered him at the rate of wages there current. Equality of profits and equality of wages flowed naturally from these assumptions.²²⁵

By contrast, the emerging discipline of industrial economics began to consider how long this might realistically take, what were the market factors that determined the speed and scope of new entry, and the power of incumbent firms to throw obstacles in the way. As Adams admonished in his book on trusts, “[t]he point at issue is whether the public is justified in placing sole reliance upon potential competition, active competition having disappeared.”²²⁶

Privately created barriers emerged as a concern of antitrust law early in the Progressive Era. They were undoubtedly heightened by the Progressives’ increased sensitivity to the natural coercive power of markets.²²⁷ The Supreme Court recognized one such barrier already in 1904. In an early private action under the Sherman Act, the Supreme Court condemned a guild rule that limited membership and effectively prohibited market participation by tile layers who were not members of the defendant organization.²²⁸ Members of the association were prohibited from dealing with non-members. As Justice Peckham noted in his opinion for a unanimous Court, the association’s rules prohibited dealers from acquiring tile “upon any terms” from members of the guild, and all of the manufacturers in the area were members.²²⁹

A few years later, in the American Tobacco case, the Court referred to a dominant firm’s vertical integration and market foreclosure as creating “perpetual barriers to the entry of others into the tobacco trade.”²³⁰ Some lower courts were less concerned. For example, in United States v. Quaker Oats Co.,²³¹ the court rejected the government’s claim of attempt to monopolize, noting that the product at issue, packaged rolled oats, was a commodity produced by many firms, and that the defendant had no reasonable means of excluding them.²³²

Most of the participants in the multi-disciplinary proceedings of the Chicago Conference on Trusts saw potential competition as crucial to any assessment of the likelihood of monopoly. They disagreed about its effectiveness. The debates reveal that the classical assumption of free entry had become controversial. For example, Jenks was a skeptic. He acknowledged the existence of potential competition as a disciplinary force but doubted that the power of the large trusts to charge high prices would be effectively controlled.²³³

Attorney A. Leo Weil was less concerned. He observed that the trusts generally reduced costs and prices, but if there were any tendency toward price increases, potential competition from new firms would tamp them down. Further, this new entry could be expected to occur “unless the laws of trade are to be reversed.”²³⁴ Statistician Joseph Nimmo observed that as a consequence of the revolution in railroad transportation, the range of potential competition was much wider than it had been previously.²³⁵ Economist James R. Weaver from De Pauw University was even less concerned. He suggested that potential competition “rarely fails” to aid the consumer.²³⁶ Accumulations of capital were easily assembled, and those who controlled it stood “ready to enter any specific field of production, whenever the profits of that industry offer sufficient inducement.”²³⁷ Further, it was well known that at the present time entrepreneurs were sitting on “a great mass of idle capital.”²³⁸ As a result, “to avoid this new competition, prices must be lowered or profits shared with the consumer.”²³⁹ Francis B. Thurber, the President of the United States Export Association, believed that the trusts merely moved competition to a higher and more beneficial level:

If a combination of capital in any line temporarily exacts a liberal profit, immediately capital flows into that channel, another combination is formed, and competition ensues on a scale and operates with an intensity far beyond anything that is possible on a smaller scale, resulting in breaking down of the combination and the decline of profits to a minimum.²⁴⁰

John Bates Clark, the most prominent economist among the Conference participants, was much more skeptical.²⁴¹ In theory, he observed “potential competition . . . is the power that holds trusts in check,” but “[a]t present it is not an adequate regulator.”²⁴² The “potential competitor encounters unnecessary obstacles when he tries to become an active competitor.”²⁴³ He mentioned patents as one obstacle, but refused to endorse abolition of the patent system.²⁴⁴ He was also more cynical about the railroads, which he regarded as using manipulation of shipping rates as a device for deterring potential competition.²⁴⁵ Clark also blamed selective price discrimination—or the power of the trusts to exclude entrants by charging unreasonably low prices in that particular portion of the market where new entry was threatened.²⁴⁶ A particularly pernicious form of price discrimination was selective predatory pricing:

The ability to make discriminating prices puts a terrible power into the hands of a trust. If . . . it can sell goods at prices that are below the cost of making them, while it sustains itself by charging high prices in a score of other fields, it can crush me without itself sustaining any injury. If, on the other hand, it were obliged, in order to attack me, to lower the prices of all its goods, wherever they might be sold, it would be in danger of ruining itself in the pursuit of its hostile object. Its losses would be proportionate to the magnitude of its operations.²⁴⁷

This observation became the theory under which original section 2 of the Clayton Act was passed in 1914—namely to prevent firms from using selective, geographically limited discounts to drive rivals out of business.²⁴⁸ Finally, Clark opposed tariffs because their higher costs deterred the potential competitor “from becoming an actual one.”²⁴⁹

Several years later Clark was even more pessimistic.²⁵⁰

From a theoretical point of view competition, actual or potential, will not permit the existence of monopoly control. What would happen in theory can, I believe, be made to occur in fact. At present it does not represent the usual course of events. Effective in theory, potential competition under actually existing circumstances is impotent.

Robert L. Raymond, Industrial Combinations—Existing Law and Suggested Legislation, 20 J. Pol. Econ. 309, 312–13 (1912). At one time potential competition may have been more effective at keeping prices down, he acknowledged, but today that power had largely been eliminated by incumbent firms’ use of selective preferential rates, local discrimination, and exclusionary agreements.²⁵¹ Clark then gave a strong endorsement to the Sherman Act, although he believed that more was necessary, including a federal law chartering corporations and an “industrial commission” designed to examine the competitiveness of individual large firms. Further, he would impose on them “a burden of proof,” first to show that they do not dominate the entire market and, secondly, to show “that the way is so open for the entrance of more that prices cannot become extortionate.”²⁵²

Adams agreed in a 1903 essay on the trusts,²⁵³ as did Boston lawyer Robert L. Raymond.²⁵⁴ Raymond argued what came to be a common position held by Progressives—that potential competition was natural and ordinarily to be expected, but that dominant firms could devise practices that would prevent or limit its operation. He also observed that potential competition did not “instantaneously” become actual competition. Rather, “even with abundant capital one cannot erect a steel manufacturing plant or a sugar refinery until considerable time has elapsed.”²⁵⁵ This delay, he observed, gave dominant firms an opportunity to behave strategically.²⁵⁶ He also warned, however, that competition policy should not go further; it had to preserve the “true economic value” that they promised while also preserving the power of potential competition to limit their prices.²⁵⁷ Progressive economist Ely, who published his book on monopolies and trusts simultaneously with the Chicago Conference, doubted potential competition as a device for disciplining monopoly. He concluded that “[n]o evidence has been adduced of the sufficient action of potential competition in the case of monopoly.”²⁵⁸

Clark returned to this problem in The Control of Trusts, a book he had had originally published in 1901.²⁵⁹ For subsequent editions he was joined by his son, John Maurice Clark.²⁶⁰ The revised edition was even more pessimistic than John Bates’ original, very likely reflecting John Maurice’s more institutionalist leanings. “When the first edition of this work was issued, so called potential competition had shown its power to control prices,”²⁶¹ the Clarks lamented, but

[t]he potentiality of unfair attacks by the trust tended to destroy the potentiality of competition. Under these conditions it was and is clearly necessary to disarm the trusts—to deprive them of the special weapons with which they deal their unfair blows. It is necessary to repress the specific practices referred to and so to enable every competitor who, by reason of productive efficiency, has a right to stay in the field, to retain his place and render his service to the public.²⁶²

As a result, they concluded, while experience has shown that “potential competition is a real force, it has also shown that it is a force which can be easily obstructed.”²⁶³ A few years later, John Maurice Clark argued that potential competition was an unlikely discipline for monopoly in markets with “heavy permanent investment”—that is, with high fixed costs.²⁶⁴ In such cases, he noted, incumbent firms will be holding excess capacity and be able to expand their own output in response to new entry. Knowing this, potential competitors will not wish to make a significant investment in entry.²⁶⁵ Further, he observed, prospective entrants into such a market would realize that total output would be higher when their own production was added in, and thus prices lower. So what appeared to be profitable entry before might not be so later.²⁶⁶

The Clarks’ work developed the basic model that emerged by mid-century for monopolization cases and that prevails today. That judge-made formulation required a showing of both monopoly power and anticompetitive practices. This model retained faith that in a market that is not restrained by either the government or private action, new entry could be expected to maintain competition. The problem for the antitrust laws was anticompetitive practices that forestalled competitive entry before it could occur or become effective. “A merely possible mill which as yet does not exist may forestall and prevent monopolistic acts,” the Clarks conceded, but only provided that the way is “quite open for it to appear.”²⁶⁷

Writing in 1911 about the ongoing government cases against Standard Oil and American Tobacco, Raymond observed that the firms’ growth had depended on the suppression of potential competition.²⁶⁸ In American Tobacco, the district court condemned a trust agreement that involved a group of the same shareholders’ acquiring interests in multiple companies. The court acknowledged the defense that potential competition would discipline any monopoly because the combination itself did not involve any sort of market exclusion.²⁶⁹ But entry would take some time, the court observed, and the “objection is to present and not future conditions.”²⁷⁰ The court believed that argument to be worthy of “serious consideration.”²⁷¹

By contrast, in the 1918 United Shoe Machinery (“USM”) merger case the Supreme Court refused to condemn the union of several shoe machinery makers into what became the USM Company.²⁷² The government’s argument was that the merged companies were potential competitors who could have turned into actual competitors but for the merger. The case thus invited a tradeoff question that remains to this day: some mergers increase productive efficiency by enabling a firm to do things at lower cost, but in the process may harm competition by preventing competition that might have developed had the merger not occurred.

The USM union was a merger of complements, and the district court had concluded that the individual companies were not in competition with one another at the time of the merger.²⁷³ Justice Holmes had actually elaborated on that conclusion several years earlier in a decision that approved the original merger.²⁷⁴ He also observed that the participating firms had not been competitors but rather were makers of complements. One firm produced lasting machines, another welt-sewing machines, and others outsole-stitching machines and heeling machines.²⁷⁵ It was not the purpose of the Sherman Act to “reduc[e] all manufacture to isolated units of the lowest degree.”²⁷⁶ In this case “the combination was simply an effort after greater efficiency.”²⁷⁷ He compared the merger to a situation in which a single firm was created to make “every part of a steam engine,” rather than using the antitrust laws to force “one to make the boilers and another to make the wheels.”²⁷⁸

In the American Can case, which condemned the can-making trust but declined to break it up, the court also cited potential competition as the reason for being cautious about the remedy.²⁷⁹ The court observed that the American Can Company, given its large size and multiple plants, was highly efficient and made good cans.²⁸⁰ Further, the record revealed “that there are many ways in which a large and strong can maker can serve the trade, and a small one cannot.”²⁸¹ In any event, the defendant’s power to restrain competition was limited by “a large volume of actual competition and to a still greater extent by the potential competition” from which it cannot escape.²⁸² For example, when the defendant raised its price—perhaps prematurely believing that it had destroyed enough rivals—new competitors quickly re-emerged. It became “apparently profitable for outsiders to start making cans with any antiquated or crude machinery they could find in old lumber rooms.”²⁸³ At that point the defendant became so desperate that it actually started buying cans from its rivals, even though these were “very badly made.”²⁸⁴ Many of these were later destroyed.²⁸⁵

The language of potential competition evolved into the modern doctrine of “barriers to entry,” a term that came into common use at mid-century. An entry barrier could be either natural or fabricated obstacles that made it more difficult for competition to enter the market. The Supreme Court first used the term in the American Tobacco case, when it referred to the defendant’s acquiring control of numerous “seemingly independent corporations, serving as perpetual barriers to the entry of others into the tobacco trade.”²⁸⁶ More specifically, the Court referred to the defendant’s acquisition of plants “not for the purpose of utilizing them, but in order to close them up and render them useless,” and also to noncompetition clauses placed on sellers that kept them from re-entering the market.²⁸⁷ A few years later a district court quoted this language in condemning Eastman Kodak of monopolization by acquiring around twenty companies and assembling all of the components of the photography industry.²⁸⁸ The phrase did not find much use in the economic literature until the 1940s, followed by significant expansion in the 1950s.²⁸⁹ It entered the mainstream antitrust literature after Joe S. Bain’s pioneering work on barriers to entry in the 1950s.²⁹⁰

2. From Potential Competition to the Relevant Market

As long as confidence was high that potential competition could be trusted to control prices, the precise definition of the market in which firms operated was relatively unimportant. Even monopolists could be kept in check if potential competition was robust. The assumption of robust potential competition explains both why early antitrust decisions involving dominant firms were not particularly fussy about market definition and also why they tended to emphasize detailed litanies of exclusionary practices. Monopolization was all about harmful conduct intended to exclude rivals.

As confidence in the efficacy of potential competition waned, however, it became more important to know the number and robustness of a firm’s actual competitors. Any discipline of monopoly would come primarily from them. As John Maurice Clark observed in 1923, for most markets “it is inherently impossible to have industry effectively governed by potential competition alone.”²⁹¹

Concerns about potential competition are inherently dynamic. They ask about where a market is going, rather than how it may appear at this moment. In fact, accounting for movement and the ability to make useful predictions about it is one of the most challenging questions of antitrust policy.²⁹² Classical economists assumed markets were competitive unless the government intervened because they focused so completely on the long run. The fact that monopoly might be dissipated by new market entry is certainly reassuring. Eventually such a market may reach an acceptably competitive equilibrium, but how long will that take, and who will be affected along the way? Focusing on macroeconomics in the 1920s, John Maynard Keynes ridiculed the optimistic faith of many economists that eventually the economy would move to a healthier equilibrium. In contrast stood the policy maker’s more immediate concerns about time. He famously concluded that the “long run is a misleading guide to current affairs. In the long run we are all dead.”²⁹³ Further, focusing on the long run makes economics worthless as a policy tool: “Economists set themselves too easy, too useless a task if in tempestuous seasons they can only tell us that when the storm is long past the ocean is flat again.”²⁹⁴

The “relevant market” in antitrust analysis emerged as a device for trading off these static and dynamic concerns. First of all, it revealed who was competing with whom in the present instant. If the market was well defined and included consideration of entry barriers, it also estimated what was likely to change over time. The evolving concern was with how rivals and customers would respond to a future price increase above competitive levels.

The idea of a “relevant market” is entirely a creature of partial equilibrium analysis. While that proposition is uncontroversial, it was not commonly acknowledged in the antitrust literature until Oliver Williamson began talking about antitrust policy and welfare tradeoffs in those terms in the 1960s.²⁹⁵ As Marshall had observed, in selecting a market economists should group sales of close substitutes and then make a working assumption that those within the grouping affect one another’s behavior, but that firms outside of the group do not.²⁹⁶ Marshall also realized that this was a simplifying assumption and not a hard picture of a situation in which the elasticity of substitution between goods in the same market is infinitely high, while the substitution between goods inside and goods outside is zero.²⁹⁷

Our partial equilibrium analysis suffers from a defect common to all partial equilibrium constructions. By isolating one sector from the rest of the economy it fails to examine interactions between sectors. Certain economic effects may therefore go undetected, and occasionally behavior which appears to yield net economic benefits in a partial equilibrium analysis will result in net losses when investigated in a general equilibrium context.

Id. Today we commonly say that to the extent a market is “well defined” these two conditions come closer to applying.

Assessing antitrust practices by reference to the “market” in which they occur naturally produced several questions about delineation and measurement. The most obvious one was how to identify the particular grouping of firms to which the analysis should be applied. Marshall himself paid scant attention to the issue. He identified the grouping of sales in a particular market as a “commodity.” His favorite example was tea.²⁹⁸ In that case, sales of tea constituted the relevant market. He gave only a little thought to questions about whether tea competed with coffee or water, or even the extent to which a coffee producer might switch to tea in response to a higher price. He did conjecture at one point that a failure in the coffee harvest might lead to an increase in demand for tea.²⁹⁹ He made a similar conjecture about beef and mutton.³⁰⁰ He also noted that questions about “where the lines of division between different commodities can be drawn must be settled by the convenience of the particular question under discussion.”³⁰¹ For some purposes, he acknowledged, we might even acknowledge Chinese and Indian teas as different.³⁰²

Early Sherman Act cases took roughly the same approach, never putting a fine point on market definition. For example, neither the 1911 Standard Oil³⁰³ nor American Tobacco³⁰⁴ decisions discussed the boundaries of the “market” under consideration. In StandardOil, the Court referred repeatedly to “petroleum and its products,”³⁰⁵ without saying anything about what that might include. In American Tobacco, the Court did observe that the defendant produced a number of products, including “cheroots, smoking tobacco, fine cut tobacco, snuff and plug tobacco.”³⁰⁶ The Court did discuss some vertical practices that involved specific products. For example, the defendant also tried to control sales of licorice paste, an essential ingredient in plug tobacco, in order to exclude rivals.³⁰⁷ The Court never spoke of any of these products as relevant markets, or considered whether they were in the same or different markets.

The American Can decision a few years later described a large litany of bad practices but said virtually nothing about the scope of the market, other than to refer to it as “cans.”³⁰⁸

Id. at 989; see also United States v. Corn Prod. Refin. Co., 234 F. 964, 974, 976 (S.D.N.Y. 1916), appeal dismissed, 249 U.S. 621 (1919) (condemning a trust, but in the process noting that the relevant process included both wet milling and dry milling of corn; the court observed that cost distinctions among them were relevant). The Court wrote:

If the wet process is cheaper than the dry, then, although a monopoly of the wet will be limited by the dry, it is improper to consider the production of the dry millers, when ascertaining the proportion of production controlled by a supposed monopolist of wet milling. If, on the other hand, the dry process is cheaper than the wet, and if, which would be hardly possible, a sustained competition between them existed, then one could not disregard the dry production for all purposes.

Id. at 976; accord O’Halloran v. Am. Sea Green Slate Co., 207 F. 187, 193 (N.D.N.Y. 1913), rev’d on other grounds, 229 F. 77 (2d Cir. 1915) (noting that where black and green slate competed for some buyers but the green slate manufacturers had both production and cost disadvantages, their power was limited by price of black slate); cf. Standard Oil Co. v. United States, 283 U.S. 163 (1931) (noting that although gasoline made by traditional refining methods and the defendant’s large scale “cracking” method was fungible, the latter had an advantage in production costs). The court gave no thought to such questions as whether glass bottles, which were also widely used for preserving food,³⁰⁹ were in the same market. Such questions arose regularly after mid-century.³¹⁰

The International Shoe case, decided in 1930, included a brief discussion of the proper delineation of a product market. It also reflected the emergence of product differentiation as a factor in market analysis. The FTC challenged a merger of two manufacturers of dress shoes. McElwain made more expensive, attractive, and “modern” shoes entirely of leather. International made cheaper shoes that included some non-leather components.³¹¹ Without discussing the scope of the market, the Court did credit the defendants’ testimony that there was “no real competition” between the two firms.³¹²

Estimating market power today by reference to a share of a “relevant market” is not a pure exercise in static partial equilibrium analysis. In Marshall’s model, one examined equilibrium in the market under study on the assumption that the price and output of everything else remained constant.³¹³ However, he also acknowledged that this assumption often fails to obtain in the real world:

[T]he demand schedule represents the changes in the price at which a commodity can be sold . . . other things being equal. But in fact other things seldom are equal over periods of time sufficiently long for the collection of full and trustworthy statistics . . . . This difficulty is aggravated by the fact that in economics the full effects of a cause seldom come out at once but often spread themselves out . . . .”³¹⁴

A price increase naturally invites other sellers to move into the price increaser’s market territory and customers to defect away. These substitutions upset the equilibrium, and within Marshall’s model, continue to occur until the equilibrium is restored. To the extent the market is more rigorously defined and the market share of the price increaser is higher, the movements would take longer or be less likely to occur.³¹⁵

The 1940s and 1950s saw a significant expansion in antitrust usage of relevant markets to estimate market power. Judge Hand’s discussion in the Second Circuit’s 1945 decision in United States v. Aluminum Co. of America has become well known.³¹⁶ The first Supreme Court decision to contain a significant discussion about the scope of a relevant market was United States v. Columbia Steel Co. in 1948.³¹⁷ It concluded that the market that the government alleged was too narrow.³¹⁸ First, the area of effective competition was larger than the government claimed. Second, the two firms actually made different although somewhat overlapping types of steel. On a 5–4 vote, it dismissed the complaint. Justice Douglas’s dissent (joined by Justices Black, Murphy, and Rutledge) contained almost no discussion of the relevant market except to dispute the fact that the acquired firm’s three percent share of the purchasing market under consideration was insubstantial.³¹⁹

The chronology of these concerns is revealing because of what it says about the declining faith in potential competition to solve monopoly problems. As noted previously, as of 1899 even monopoly was not a matter of concern for some participants in the Chicago Trust Conference because potential competition could be trusted to keep prices down.³²⁰ Subsequently, greater doubts about the disciplinary effects of new entry naturally led to increased concerns about just how competitive the market was when entry is disregarded. By the 1930s most antitrust cases involving large firms were harboring significant doubts about the ameliorating effects of potential competition. That explains the rising importance of market definition in antitrust cases.

3. The Rise of Structuralism and the Diminishing Importance of Conduct

As Chief Justice White observed in the 1911 Standard Oil decision, the monopolization offense required bad conduct and not mere monopoly status. Chief Justice White’s reasoning was that the practices condemned by section 1 of the statute actually forbade “all means of monopolizing trade, that is, unduly restraining it by means of every contract, combination, and so forth.”³²¹ To this, section 2 of the Sherman Act sought,

if possible, to make the prohibitions of the act all the more complete and perfect by embracing all attempts to reach the end prohibited by the first section, that is, restraints of trade, by any attempt to monopolize, or monopolization thereof, even although the acts by which such results are attempted to be brought about or are brought about be not embraced within the general enumeration of the first section.³²²

The lower court had spoken much more clearly: section 2 should require a restraint of trade as embraced by section 1, but the difference was that “[o]ne person or corporation may offend against the second section by monopolizing, but the first section contemplates conduct of two or more.”³²³ That is in fact the distinction that modern courts have adopted.

What the statute did not do, Chief Justice White continued, was condemn “monopoly in the concrete,” or the mere status of being a monopolist.”³²⁴

At that point, however, the Chief Justice cast his entire reasoning and perhaps even his mental acuity into doubt with his infamous argument that because “reason was resorted to” in deciding earlier cases the law reached only unreasonable actions.³²⁵ That dubious rationale presaged the more formal recognition of a rule of reason seven years later.³²⁶

All of this was in pursuit of a larger point, as the Chief Justice elaborated, which was to shunt aside the argument that a court could not constitutionally divest an innocent firm of its property without compensation simply because it was a monopolist. Property owners had no right to engage in restraints on trade.³²⁷ Rather, the statute was directed to “particular acts,” even though these were inferred only “generically” from the statutory language.³²⁸ That is, requiring wrongful acts—even though the statute did not explicitly list them—was essential to the statute’s constitutionality.³²⁹

No doubt it would be desirable to define what constitutes a monopoly or an attempt to monopolize a part of interstate trade or commerce; but it is very questionable whether a comprehensive and clear statutory definition could be framed. A statutory definition probably would give rise to as much uncertainty and litigation as the word “monopolize,” and judicial decisions would be necessary to define the definition itself. The safer and better course is to let the courts, guided by common understanding of the word “monopolize” and by the principles of the common law, settle the meaning of the statute by determining its application to individual cases as they arise.

Victor Morawetz, Should the Anti-Trust Act Be Amended?, 22 Harv. L. Rev. 492, 497–98 (1909). At that point the opinion turned to a detailed summary of Standard Oil’s conduct.

The Clayton Act developed this theme further by its enumeration of specific acts that threatened to create monopoly—namely selective and discriminatory predatory pricing,³³⁰ tying and exclusive dealing contracts,³³¹ and anticompetitive mergers.³³² Nothing in the Clayton Act even hints of possible condemnation of monopoly without fault; indeed, its added specificity points in the other direction.

It is thus not surprising that Progressive Era monopolization cases often read like tort cases—with an extensive discussion of conduct, accompanied by relatively thin treatment of market structure and power. This period preceded the structuralist revolution that would occur in the late 1930s and 1940s. Indeed, some commentators from the period wrote of the monopolization offense as if it did not contain a market power requirement at all, but only guilty conduct.³³³ After World War II antitrust policy as led by industrial economists completely flipped that script.³³⁴

Already in the 1930s some industrial economists began to study the monopoly problem by looking at the types of structures most likely to produce it. In 1937 Harvard industrial economist Edward S. Mason observed that in “recent years economic thinking on the subject of monopoly has taken a radically different trend.”³³⁵ It began with the observation that “monopoly elements” of conduct were apparent in the “practices of almost every firm.”³³⁶ As a result, policy makers were increasingly required to make “distinctions between market situations all of which have monopoly elements.”³³⁷ For that, conduct alone provided little basis for differentiation. The important differences were not the conduct but rather the markets in which the conduct occurred. He noted an emerging distinction between “restriction of trade” and “control of the market.”³³⁸ If economics was to make a contribution to the problem of monopoly, Mason observed, it must move beyond practices and descriptive accounts of anticompetitive behavior and look for structural features that made markets more or less conducive to monopolization.³³⁹

The development of imperfect competition theories in the early 1930s forced a shift in focus toward the particular market structures that made noncompetitive outcomes more likely. Some of the foundational work was done earlier. For example, in the 1920s economist John Maurice Clark looked at the manifold sources of economies of large plant size.³⁴⁰ The economies, which resulted from technology and engineering, were inherent in certain industries. In addition, the presence of high fixed (“overhead”) costs provided an explanation for price discrimination, showing it to be typically but not invariably procompetitive.³⁴¹ Clark also discussed “economies of combination,” showing how the effect of high fixed costs and large plant size made markets more conducive to both horizontal and vertical control arrangements.³⁴² In such industries “large-scale production, combination, and monopoly or restricted competition are all more or less bound together, and all occur in the same class of industries.”³⁴³ Everything in Clark’s book pointed in the direction of assessing competition problems by assessing the particular structural characteristics of each firm, emphasizing the extent and nature of fixed costs.

Clark’s book was too technical to have widespread public appeal, but it did both reflect and lead an important set of developments in the field of industrial economics. Antitrust policy became more interested in the types of market structures that made noncompetitive outcomes more likely. Enforcement policy followed these developments, culminating in massive monopolization cases brought against capital intensive firms in the 1930s and after, including Alcoa and USM. Both decisions emphasized market structure and market definition and de-emphasized conduct. Indeed, both toyed with but did not ultimately embrace the idea of monopoly “without fault”—or that certain dominant firms should be broken up simply because they are too big. In Alcoa, Judge Learned Hand discussed the possibilities of a presumption that a firm that had acquired a ninety percent market share was behaving unlawfully. It could defeat that presumption, however, by showing that monopoly had been “thrust upon it,” or that it was merely the “passive beneficiary” of monopoly.³⁴⁴ A few years later in the USM case, Judge Wyzanski characterized Alcoa as suggesting that a firm with an overwhelming market share monopolizes whenever it “does business.”³⁴⁵ That was as close as American antitrust law ever came to a rule of no fault monopolization.

With those decisions the courts entered the era of antitrust structuralism, which in its strongest form made evidence of bad conduct almost but not quite irrelevant.³⁴⁶ That largely ended the Progressive Era’s tort theory of monopolization.

III. THE EMERGENCE OF VERTICAL COMPETITION POLICY

A. “Competition,” Horizontal and Vertical

Progressives were the first to examine vertical practices and vertical integration systematically as competition problems. While some law of vertical contracting practices existed prior to that, almost none of it was concerned with competition. The Progressive accomplishment was noteworthy, because vertical business practices have historically been the most poorly understood in antitrust and have provoked the most controversy. Articulate writers have argued that they should be governed by both the extreme rules of per se illegality and per se legality.³⁴⁷ The Progressives in fact opted for a highly defensible middle ground that has proven to be very durable.

Progressive Era contributions to the law of vertical integration and restraints were formative but also modest.³⁴⁸ Mainly, they focused on the relationship between vertical integration or vertical contracting and realistic threats of monopoly. Subsequently the antitrust law of vertical business relationships veered to the left and became very aggressive, condemning many practices where harm to competition was never seriously threatened.³⁴⁹ Later it changed course again, veering very far to the right and developing rules of virtual nonliability in Chicago School academic writing. The case law never went quite that far.³⁵⁰ Since 2000 or so it has been moderating once again. The rule of reason that is currently the law for nearly all vertical practices is in between, although somewhat closer to a rule of nonliability.³⁵¹ This is at least partly because the courts have made it so difficult for plaintiffs to win rule of reason antitrust cases.

The thoroughly conventional distinction that antitrust and economics makes today between “horizontal” and “vertical” practices is actually a fairly recent development. Today most of our antitrust rules of illegality are driven by it: horizontal restraints are more suspicious than vertical ones. Unlike horizontal agreements, vertical agreements do not increase the effective market share of the participants. The means by which horizontal price fixing agreements reduce market output are more obvious and better understood than for vertical price agreements. Vertical arrangements have a greater potential to produce cost savings.

Classical political economists and most lawyers prior to the 1910s or so did not see these distinctions. They tended to see competition as “rivalry,” and the vertical rivalry that might occur between a buyer and a seller, or employer and employee, counted as “competition” just as much as the rivalry between two competitors. For example, in the 1888 edition of his popular text on political economy, MIT economist Francis Walker defined competition as “the operation of individual self-interest among buyers and sellers.”³⁵²

Marshall did only a little better in Principles of Economics. On horizontal competition, he focused almost entirely on the theory of monopoly, or single firms that accounted for all sales in a market. In a footnote he spoke briefly about “partial monopoly,” which he described as a firm whose wares were better known than those of other firms.³⁵³ Marshall’s chapter on “The Theory of Monopolies” largely assumed exclusivity and focused on how the monopolist determines its output and price when there is no threat of entry.³⁵⁴ He did mention that a vulnerable monopolist, such as a railroad threatened by new competition, would very likely charge a lower price in order to protect its trade.³⁵⁵ Never once in the 750 pages of the first edition did Marshall mention cartels or price fixing. While he drew his theory of marginalism from Cournot,³⁵⁶ he never discussed Cournot’s very influential theory of oligopoly. He did mention the rise of the American trusts in his Eighth Edition in 1920, seeing them largely as an alternative to German cartels³⁵⁷

The economies of highly organized buying and selling are among the chief causes of the present tendency towards the fusion of many businesses in the same industry or trade into single huge aggregates; and also of trading federations of various kinds, including German cartels and centralized co-operative associations. They have also always promoted the concentration of business risks in the hands of large capitalists who put out the work to be done by smaller men.

Marshall, supra note 89, at 282. On the United States trust as an alternative, see id. at 304. and ultimately describing them as “treacherous.”³⁵⁸ He also saw the evil of the trusts as “narrowing . . . the field of industry which is open to the vigorous initiative of smaller businesses.”³⁵⁹ None of these discussions mentioned vertical integration or restraints.

Marshall’s relatively infrequent expressions about “competition” seem almost amateurish today—for example: “The strict meaning of competition seems to be the racing of one person against another . . . .”³⁶⁰ He complained that the term “competition” has “gathered about it evil savour, and has come to imply a certain selfishness and indifference to the well being of others,”³⁶¹ and that “unrestrained competition” produced suffering.³⁶² He spoke of competition as “glorified individualism.”³⁶³ He also lamented that machine production had led to undesirable competition that, “like a huge untrained monster,” led to weakness and disease.³⁶⁴ He blamed this on excessive British protection for liberty of contract.³⁶⁵ Marshall made the same complaint about labor, where he saw unfettered competition as driving wages to subsistence levels.³⁶⁶

Marshall also had little to say about vertical integration and vertical relationships, and nothing about their impact on competition. His few mentions focused on labor. For example, he distinguished horizontal movement of workers from one firm to another from vertical movement, or promotion within a firm.³⁶⁷ Speaking again of labor, he also discussed the “vertical” competition that existed between skilled and unskilled workers who performed the same task.³⁶⁸ He concluded that for workers competition was both vertical and horizontal. First, they competed vertically for advancement within the firm. Second, they competed horizontally by movement from one employer to another.³⁶⁹ In Chapter 8, entitled “Industrial Organization,” he used the term “integration” a single time, using a biological metaphor. He defined it as “a growing intimacy and firmness of the connections between the separate parts of the industrial organism.”³⁷⁰ Late in his life, in his much less prominent and overly long book on Industry and Trade(1919), Marshall began exploring some of the differences between horizontal and vertical expansion.³⁷¹

Prior to 1910 or so, courts also viewed “competition” in terms that did not distinguish the horizontal from the vertical. Often the reference was to the “competition” that exists between the two parties to a bargain, with the seller wishing to receive as much as possible while the buyer wished to pay as little as possible. For example, John D. Park & Sons Co. v. Hartman,³⁷² one of the earliest Sherman Act challenges to resale price maintenance, spoke of the practice as “protecting the seller of property against the competition of the buyer.”³⁷³ The Supreme Court of Oklahoma treated resale price maintenance agreements as a form of noncompetition covenant, used to protect “the seller of the property against the competition of the buyer.”³⁷⁴ Today, of course, we would characterize the relationship between a buyer and a seller as vertical, at least in most cases.

Even Justice Holmes, whose grasp of economics was better than that of most contemporary judges, spoke of competition interchangeably as horizontal or vertical. While a Justice on the Supreme Judicial Court of Massachusetts, he had defined competition in a tort case as “not limited to struggles between persons of the same class” but rather as applying “to all conflicts of temporal interests.”³⁷⁵ He continued, offering a purely vertical illustration:

One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return.³⁷⁶

In keeping with more modern views, in 1908 the Supreme Court of Illinois rejected that characterization, describing it as “fanciful and far-fetched.”³⁷⁷ It then concluded that an employer and its unionized employees could not be said to be in “competition” with one another, even though their interests clearly diverged.³⁷⁸

Holmes also dissented from the U.S. Supreme Court’s decision condemning resale price maintenance. The Court had reasoned that resale price maintenance was a restraint on alienation that served to eliminate competition among dealers in the sale of Dr. Miles’s brand of medicines.³⁷⁹ Holmes responded that the competition of “conflicting desires” should be sufficient to do that for most goods that were not essential, and Dr. Miles medicines were not.³⁸⁰ If a good was not essential (Holmes’s example was “short rations in a shipwreck”), the price would be set by the “competition” between the seller’s wish to charge more and the buyer’s wish to pay less.³⁸¹ In the Northern Securities merger case he dissented from the majority’s condemnation of a merger to monopoly under section 1 of the Sherman Act.³⁸² The “act says nothing about competition,” he observed.³⁸³ He then described the litany of common law situations characterized as contracts in restraint of trade and concluded that the facts of the present case did not fit into any of them.³⁸⁴ The idea that elimination of competition between firms that had previously been rivals might result in higher prices did not obviously trouble him.

With one implicit exception, the Sherman Act itself never distinguishes vertical from horizontal practices. The exception is the reference to “contracts . . . in restraint of trade” in section 1 of the Act.³⁸⁵ As Justice Holmes pointed out in his Northern Securities dissent, at common law that phrase referred to “contracts with a stranger to the contractor’s business, . . . which wholly or partially restrict the freedom of the contractor in carrying on that business as otherwise he would.”³⁸⁶ Justice Holmes gave as an example the British decision in Mitchel v. Reynolds.³⁸⁷ The lessor of a building to be used by the plaintiff as a bakery promised not to open a competing bakery in the vicinity. Noncompetition agreements such as these are vertical because they are formally between the seller (lessor) and buyer (lessee) of property or in other situations between an employer and an employee. Nevertheless, the agreement also has a horizontal effect to the extent that its purpose is to limit the competitive choices of the promisor. In Mitchel, the lessor had promised the lessee that he would not enter into business in competition with the lessee.

Even the Clayton Act, passed in 1914, ignored vertical competition issues with one limited exception. That was section 3, which prohibited the sale of commodities on the “condition or understanding” that the buyer not deal in a competitor’s goods.³⁸⁸ This of course became the basis for the modern law of tying and exclusive dealing. Even here, however, while the law condemned a vertical agreement, the impact was horizontal. The concern was agreements that limited competition from rivals. Further, its historical focus was on patent license agreements in which it was thought that patentees used ties to extend their patent beyond its lawful scope.³⁸⁹ The Clayton Act did not seek to expand the law of purely vertical restraints that limited only the sales of a manufacturer’s own product.

Section 2 of the original Clayton Act prohibited price discrimination directed at rivals, a form of predatory pricing.³⁹⁰ That was a purely horizontal practice. The provision was amended in 1936 as the Robinson-Patman Act so as to reach so-called “secondary line” price discrimination, or the charging of two different prices to two different customers, favoring the customer who paid the lower price.³⁹¹ These 1936 amendments effectively turned it into a predominantly vertical statute. Ever since, the Act has distinguished “primary line” (horizontal) and “secondary line” (vertical) violations. However, the first was entirely a creature of the original 1914 Act, while the second was developed by the 1936 amendments.³⁹²

Likewise, the original Clayton Act provision condemning mergers reached only those that limited competition “between” the merging firms—that is, mergers of competitors.³⁹³ It was amended and extended to vertical mergers in 1950, as it appears today.³⁹⁴

In sum, while the Clayton Act greatly expanded upon the Sherman Act and the Supreme Court largely interpreted it that way, it was concerned almost exclusively with horizontal practices. It became “vertical” only through amendments passed in the mid-1930s and after. Outside the law of resale price maintenance, which did not have a well-developed economic rationale other than the concern for restraints on alienation, competitive concerns about vertical integration had not yet emerged. While the Sherman Act’s concern with contracts in restraint of trade and the Clayton Act’s concern with tying were both vertical, today we would characterize both as “interbrand” restraints. That is, they were vertical contracts aimed at limiting horizontal competition.

At the same time, however, section 3 of the Clayton Act and the 1917 Motion Picture Patents case became important vehicles for developing a theory of anticompetitive vertical practices that expanded greatly in the 1930s.³⁹⁵ Notably, however, the practice in that case was substantially horizontal, directed at insulating the patentee’s films from the films offered by rivals.³⁹⁶

B. Progressive Economics and Vertical Integration

One important chapter in Adam Smith’s Wealth of Nations was entitled “That the Division of Labour is Limited by the Extent of the Market.”³⁹⁷ Smith’s point was that larger markets permit greater specialization because businesses are able to depend more on exchange rather than internal supply.³⁹⁸ In isolated villages in Scotland, “every farmer must be butcher, baker and brewer, for his own family,” and in such towns it is hard even to find a professional carpenter or mason.³⁹⁹ From Smith’s insight that larger markets lead firms to rely more on others for certain inputs, Stigler fashioned a theory that small markets provide an impetus for internal vertical integration.⁴⁰⁰ As markets grow larger firms have more opportunities to buy rather than make. But to turn that argument into one that saw Adam Smith as developing a general economic theory of vertical integration was a stretch.

During antitrust’s early years the idea of competitively harmful vertical practices was almost entirely absent in economics as well as law. Very little of that occurred prior to the twentieth century. In the 700 pages of proceedings of the Chicago Conference on Trusts⁴⁰¹ neither lawyers nor economists ever once discussed vertical integration or vertical practices as a competition problem. A few years later federal courts first began addressing resale price maintenance under the Sherman Act.⁴⁰²

Exploration of vertical business relationships and competition policy began to enter economics literature in the early twentieth century, although somewhat haphazardly. Notwithstanding the heightened Progressive concern about the trusts, they did not see vertical integration or vertical control as a threat. The early discussions spoke of it in very benign terms. In 1901 William F. Willoughby, a political scientist and lawyer who taught at both Harvard and Princeton, concluded that the competitive effects of vertical integration were overwhelmingly positive.⁴⁰³ Speaking of Andrew Carnegie’s steel company, he concluded that the “policy of the company” in integrating vertically was “not in attempting to lessen outside competition, but in seeking to bring about a more perfect organization and integration of its own properties.”⁴⁰⁴ Overall, he believed, the principal reason that firms integrated vertically was to ensure themselves of adequate and timely supply in the event of shortages.⁴⁰⁵

Progressive economist and President of the University of Wisconsin Charles Van Hise’s 1912 book on the Trust Problem spoke a single time of “vertical combination.”⁴⁰⁶ He was referring to vertical integration in the steel industry, but drew no conclusions about vertical integration generally.⁴⁰⁷ John Bates and John Maurice Clark’s important 1914 book on The Control of Trusts never discussed vertical practices or vertical integration at all.⁴⁰⁸ That omission is significant because at the time the father, John Bates, was one of the most prominent economists in the country and a leading marginalist. More generally, their book was a fierce indictment of the trusts.

In his 1919 book on Industry and Trade, written near the end of his life, Marshall did speak several times about the “vertical expansion” of firms into markets for supply or distribution.⁴⁰⁹ He noted, for example, that firms sometimes integrated vertically in order to avoid the effects of upstream cartels.⁴¹⁰ His only sustained discussion of vertical integration was in relation to firms that did so in order to assure sources of supply or distribution, and he spoke of it entirely in benign terms.⁴¹¹ A few other economists did talk about vertical integration, mainly to emphasize the efficiencies that vertical control made possible.⁴¹²

John Maurice Clark’s 1923 book on fixed (“overhead”) costs did contain a more detailed discussion of vertical integration.⁴¹³ He spoke briefly of “vertical combination” in the steel industry⁴¹⁴ and more generally in a chapter entitled “Economies of Combination.” He described it as “the combination under one management of successive stages in a chain of productive operations.”⁴¹⁵

Clark cast the vertical integration problem as one of managing information and fixed costs: “The employer’s knowledge of his own needs and of the conditions of his own business is an expensive industrial asset . . . .”⁴¹⁶ Further,

[A]nother gain from integration arises, in the shape of great reliability in the supplying of materials. The two concerns adapt their processes to each other, and the supply of materials, both in quality and regularity, can be more carefully suited to the needs of the user than they would be if the two were independent concerns . . . .⁴¹⁷

As a result, “[a]nother thing that is saved is all the work of negotiation, bargaining, higgling, stimulating demand (on the part of the seller) . . . and much of the other work of buying and selling, which could be reduced to a matter of routine.”⁴¹⁸ He described this as “an overhead outlay which is capable of being enormously reduced by vertical combination.”⁴¹⁹ Clearly Coase was not the first to observe that internal integration is a way of avoiding the costs of using the market.⁴²⁰ Clark’s own contribution was mainly to observe that high fixed costs and product differentiation exacerbated problems of market coordination of upstream and downstream levels.

During the Depression the economic treatment of vertical practices did an about face, becoming much more critical, minimizing the role of cost savings or even finding them harmful, and focusing on problems of monopoly.⁴²¹ One of the most pessimistic was economist Arthur R. Burns’s 1936 book The Decline of Competition, which was heavily influenced by the theory of monopolistic competition. He presented vertical integration as inherently monopolistic and as strong evidence that competition was in decline.⁴²²

C. Progressives and the Emerging Law of Vertical Integration

In distinguishing vertical from horizontal practices, the difficult part was to determine how a firm’s control of a vertically related market affected competition. As previously noted, economists of the day were keenly aware that vertical integration could reduce costs.⁴²³ So were many courts. Already in 1866, a British decision observed that one effect of a railroad’s acquisition of a colliery was to reduce the cost of coal necessary for its operations.⁴²⁴

The courts were also aware of foreclosure threats but did not generally find them decisive. In 1886, the Supreme Court held that a railroad that had integrated into express freight delivery services had no obligation to provide equivalent services for an independent delivery company.⁴²⁵ Justices Miller and Field dissented. Given that the delivery service was a complement to the railroad, they observed, the effect of the refusal would be to exclude competing express companies from the markets served by that railroad. There was no relevant antitrust law or even an Interstate Commerce Act, which was passed a year later.⁴²⁶ Rather, they would have found a duty under the common law of common carriers.⁴²⁷ A few years later the first Justice Harlan wrote the opinion for a unanimous Court declaring that an exclusive dealing contract between a railroad and a provider of sleeping cars was not contrary to public policy or common law.⁴²⁸ The action did not rely on any federal statute.

Speaking of noncompetition covenants, which are a form of vertical exclusive contracting, Judge Taft’s 1898 antitrust opinion in United States v. Addyston Pipe & Steel Co.⁴²⁹ noted that they could sometimes be harmful. They might injure the parties by depriving them of opportunities; or they might deprive the public of services that would be valuable and thus discourage enterprise. In addition, he gave two reasons more directly related to competition policy: they might “prevent competition and enhance prices,” and they “expose the public to all the evils of monopoly.”⁴³⁰ For its part, the common law approved the great majority of vertical agreements with the exception of some noncompete agreements.⁴³¹ In any event, Judge Taft’s statements in Addyston Pipe were dicta, because the case involved only naked horizontal price fixing.

That analysis still left many questions open. For example, how does one account for the fact that vertical arrangements may simultaneously reduce costs and exclude rivals? One of these things seems beneficial and the other harmful. Further, how much weight should be given to the common law’s traditional strong protection for liberty of contract and the freedom to trade? Those concerns loomed large in cases involving resale price maintenance and other vertical restraints, where the freedom to trade came to be the freedom to be free from restrictions on distribution.⁴³² As the Supreme Court reiterated in a 1919 decision declining to find an agreement to engage in resale price maintenance, the purpose of the Sherman Act is to “preserve the right of freedom to trade.”⁴³³

Historically the common law did recognize limitations on business firms’ vertical integration by contract, but the concerns did not relate to competition policy. First was the common law policy against restraints on alienation, which courts had used regularly to decline enforcement of certain types of contracts.⁴³⁴ Later on, antitrust decisions cited this policy as a rationale for using the Sherman Act to condemn vertical contractual limitations on resale, including resale price maintenance.⁴³⁵ The Supreme Court cited concerns about restraints on alienation in an antitrust case as recently as 1967, when it declared territorial restraints on dealers to be per se antitrust violations.⁴³⁶

Second, many exclusive dealing and similar contracts were incomplete because they did not specify price or quantity. The common law itself exhibited a strong preference for “one off” contracts that contemplated sales with precise terms covering all important elements. Here, the most frequently challenged practice was requirements contracts, which later came to be called exclusive dealing. Under them, a purchaser promised to purchase its needs for a product from the seller but did not state the quantity. Through the early twentieth century such contracts were routinely struck down, not because of concerns for competition, but because the contracts lacked specificity. As the New York Court of Appeals declared in 1921, while a contract did not necessarily need to specify a precise amount, the quantity must be able to be “determined by an approximately accurate forecast.”⁴³⁷ This rule threatened the early development of business franchising, because franchise agreements were by nature open ended as to price, quantities and even other terms of dealing.⁴³⁸ Within a few years such open-ended contracts were to become a routine and essential part of franchised dealership networks.⁴³⁹ This occurred largely as a result of contract law’s developing doctrine of the good faith purchaser.⁴⁴⁰

In his influential 1920 treatise on contracts, Harvard’s Samuel Williston approved of the common law’s restrictive interpretation. He also suggested a workaround, however, that revealed that competition policy was not the driving concern. As a general rule, he concluded, a promise to sell a purchaser’s needs without precise specification of the number is “not sufficient consideration” to make an enforceable contract.⁴⁴¹

A promise to buy such a quantity of goods as the buyer may thereafter order, or to take good in such quantities “as may be desired” . . . is not sufficient consideration since the buyer may refrain from buying at his option and without incurring legal detriment himself or benefiting the other party.

Id. at 216–17 (citing numerous decisions); see, e.g., Oscar Schlegel Mfg., 132 N.E. at 149 (contract that did not specify quantity void). Other developments are analyzed in Hovenkamp, supra note 438. He then added however, that the contract could be made enforceable if the buyer promised to purchase all of its needs from the seller. Thus “the promise of a seller not to manufacture except for the buyer, or the promises of a buyer not to buy except from a particular seller” was adequately supported.⁴⁴² Williston’s statements, amply supported by case law,⁴⁴³ reflected that the common law around 1920 ran in just the opposite direction as the subsequently emerging antitrust rule: contracts of this kind were enforceable at common law only if they were exclusive. By contrast, under antitrust law exclusive contracts were looked at with ever increasing suspicion.

Another concern that the case law reflected and that did breach the boundary into antitrust policy was when contractual restraints were included in patent or copyright licenses. Initially the courts refused to enforce many such agreements under patent law, using a variety of doctrines intended to limit the power of patentees to impose restrictions on patented articles once they had been sold.⁴⁴⁴ For example, in its influential decision in Wilson v. Simpson, forty years prior to the Sherman Act, the Supreme Court held that a patentee could not require purchasers of its wood planing machine to purchase its own unpatented disposable blades.⁴⁴⁵ In Adams v. Burke, the Supreme Court refused to enforce a condition imposed by the manufacturer/patentee of coffin lids limiting the geographic area where the lids could be used for a burial.⁴⁴⁶ That restriction, the Court held, was not “within the monopoly of the patent.”⁴⁴⁷ In Bobbs-Merrill Co. v. Straus,⁴⁴⁸ it refused to enforce a resale price maintenance agreement contained in a book copyright license, three years before the Supreme Court applied the antitrust laws in the Dr. Miles decision. The decision did not cite the antitrust laws. Long prior to the passage of the antitrust laws, the Supreme Court was routinely denying enforcement to vertical restrictions contained in patent or copyright licenses. Much of this doctrine eventually found its way into antitrust law.⁴⁴⁹

These decisions did not consider anything about competition in distribution, but only whether the restrictive license provision fell outside the scope of the intellectual property grant. Eventually, however, the patent decisions did generate some pushback on competition grounds. One example was Judge (later Justice) Horace Lurton’s 1896 opinion in Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co.⁴⁵⁰The seller of a patented button-fastening machine prohibited purchasers of the machine from using it with any except its own unpatented fasteners, one of which connected each button to a garment. In modern terms we would characterize this arrangement as a variable proportion tying arrangement.⁴⁵¹ In addition to a dispute over the reasonable scope of the patent license in which the restriction was placed, the purchaser made an argument “based upon principles of public policy in respect of monopolies and contracts in restraint of trade.”⁴⁵² The gist was that “public policy forbids a patentee from so contracting with reference to his monopoly as to create another monopoly in an unpatented article.”⁴⁵³ Judge Lurton responded by noting that the tying clause served the useful purpose of measuring usage of the machine in order to determine the royalty.⁴⁵⁴

In 1912 a divided Supreme Court relied heavily on the Button-Fastener case to hold in Henry v. A.B. Dick Co. that the maker of a patented office copying machine could tie its own unpatented paper, stencils, and ink to the machine.⁴⁵⁵ By this time Judge Lurton had been elevated to the Supreme Court and wrote the opinion. The Sherman Act had now been passed, but the Court rejected the contention that it prohibited this kind of agreement. Rather, the Court noted the general rule of “absolute freedom in the use or sale of rights under the patent laws.”⁴⁵⁶

The Henry decision proved to be too much. Congress responded two years later with section 3 of the Clayton Act, which prohibited ties of goods “whether patented or unpatented,” provided that harm to competition was shown.⁴⁵⁷ That is, competition law rather than the appropriate scope of the patent became the driver. With that statement, the law of tying migrated from patent law into antitrust law. Section 3 became the first antitrust statute specifically targeting a vertical restraint. The statute actually went further, prohibiting not only absolute ties but also discounts or rebates conditioned on tying.⁴⁵⁸ However, it did not condemn all ties or even all patent ties, but only those that threatened to “substantially lessen competition or tend to create a monopoly.” Indeed, it is hardly clear that the Clayton Act would have condemned the button and office copier ties that had provoked Congress to act. Both were of common commodities and very likely caused no harm to competition.

In 1917 the Supreme Court overruled Henry in condemning a tying arrangement involving the Edison motion picture projector. It was sold subject to a patent license agreement that prohibited users from showing any films other than the seller’s own.⁴⁵⁹ By the time of the litigation, separate patents on the film had expired. The Court read the license restriction as effectively attempting to continue the film patent’s exclusivity by tying the film to the patented projector.⁴⁶⁰ While the decision generally relied on patent law, the Court quoted the new Clayton Act provision as confirming its conclusion.⁴⁶¹ Unlike Henry, the Motion Picture Patents case did involve a serious threat of monopoly in the infant motion picture industry.⁴⁶² After 1930 the tying decisions were not so circumspect and began condemning competitively harmless ties.⁴⁶³

Decisions such as Motion Picture Patents never spoke of vertical practices, but the decision did indicate judicial recognition of downstream control of films as a monopoly problem, at least in the area of patents. The concern in this case was that a patented film projector and control of film could become the lever for control of the motion picture industry. In the 1930s this concern about vertical practices as a tool of monopoly became prominent in the literature of industrial economics.⁴⁶⁴ In the motion picture industry itself, it eventually led to a near obsession with vertical integration reflected in the 1948 Paramount decree.⁴⁶⁵

Resale price maintenance—a so-called intrabrand restraint because it does not limit competition with rival products—received the harshest treatment of all. Today we are inclined to think that tying arrangements present greater potential for competitive harm than do resale price maintenance agreements. In 1907 Judge Lurton, still on the Sixth Circuit, held that an agreement between a proprietary medicine manufacturer and its various distributors and resellers stipulating their resale price was not enforceable because it was a contract in restraint of trade.⁴⁶⁶ There were no antitrust issues.⁴⁶⁷ The difference between this case and his own previous decision in the Button-Fastener case was that the medicines in question may have been protected by a trade secret, but they were not patented.⁴⁶⁸ Four years later the Supreme Court agreed in Dr. Miles Medical Co. v. John D. Park & Sons Co.⁴⁶⁹ It referenced the Sherman Act only to conclude that earlier decisions refusing to apply it had all involved patented products.⁴⁷⁰

Federal antitrust case law did not refer to a practice as “vertical” until the 1930s. In 1934 a district court opinion in the SugarInstitute case spoke about the possibility that “vertical organization of distribution agencies” might result in “a lower price to the ultimate consumers.”⁴⁷¹

More explicit judicial recognition of a distinction between horizontal and vertical practices emerged a little later, and from an unlikely source. After the Dr. Miles decision holding resale price maintenance unlawful, small business interest groups began a “fair trade” movement to permit individual states to opt out of federal law and permit resale price maintenance within their borders.⁴⁷² After some state attempts to do so contrary to federal law, Congress yielded to an intensive campaign of small business groups led by the National Association of Retail Druggists, which had drafted a “model act” for Congress to adopt.⁴⁷³ Congress responded with the Miller-Tydings Act in 1937.⁴⁷⁴ President Roosevelt opposed the bill and threatened to veto it, but he caved to political pressure at the last moment.⁴⁷⁵

Miller-Tydings authorized states to approve resale price maintenance within their borders, but it invited considerable dispute about its scope. While it never used the terms “vertical” or “horizontal,” it did contain a proviso that it did not immunize agreements among manufacturers, producers, and wholesalers.⁴⁷⁶

render illegal, contracts or agreements prescribing minimum prices for the re-sale of a commodity which bears, or the label or container of which bears, the trade mark, brand, or name of the producer or distributor of such commodity and which is in free and open competition with commodities of the same general class produced or distributed by others, when contracts or agreements of that description are lawful as applied to intrastate transactions, under any statute, law, or public policy now or hereafter in effect in any State . . . in which such resale is to be made, or to which the commodity is to be transported for such resale . . . .

Id. However, then the statute provided further

[t]hat the preceding proviso shall not make lawful any contract or agreement, providing for the establishment or maintenance of minimum resale prices on any commodity herein involved, between manufacturers, or between producers, or between wholesalers, or between brokers, or between factors, or between retailers, or between persons, firms, or corporations in competition with each other.

Id. The scope of this immunity had to be determined judicially. Because the proviso was triggered by state legislation, it was interpreted mainly by state courts, which very largely concluded that the statute exempted “vertical” agreements but not “horizontal” ones. For example, the North Carolina Supreme Court explained in 1939:

The agreements authorized by the law are vertical, between manufacturers or producers of the particular branded commodity and those handling the product in a straight line down to and including the retailer; not horizontal, as between producers and wholesalers or persons and concerns in competition with each other . . . .⁴⁷⁷

The Supreme Court eventually confirmed this view as a matter of federal antitrust law in Schwegmann Bros. v. Calvert Distillers Corp.,⁴⁷⁸ concluding that the statute did “not authorize horizontal contracts, that is to say, contracts or agreements between manufacturers, between producers.”⁴⁷⁹

By the early 1930s the law of vertical practices had developed to a place not all that different from where it is today, save for the treatment of resale price maintenance. Tying arrangements were addressable under antitrust, but liability was very largely limited to firms that had dominant market shares or where foreclosure percentages were high. In addition to Motion Picture Patents, the IBM tying case of 1936 found a tie of IBM’s computation machine and its data cards to be unlawful on a market share that exceeded eighty percent.⁴⁸⁰ By contrast, General Motor’s (“GM”) tie of car repairs to its original equipment parts was approved when the court concluded that the tie was essential for quality control and that there was plenty of competition in any event.⁴⁸¹ Other decisions also approved ties when the markets in question were competitive.⁴⁸²

The same thing was true of exclusive dealing, which condemned the practice when it realistically threatened to perpetuate market dominance. In a decision applying the Clayton Act to exclusive dealing, the Court noted that the supplier controlled roughly forty percent of the dress pattern outlets in the country and that the exclusive agreement in question threatened to create several local monopolies.⁴⁸³ There was no antitrust law of vertical territorial restraints until the Supreme Court addressed the issue in the 1960s in White Motor Co. v. United States.⁴⁸⁴ Justice Douglas held for the Court that it was too early to say. Resale price maintenance, which remained unlawful per se, was the outlier.

The law of vertical mergers and ownership vertical integration cut a similar path. The courts condemned it when it appeared to create or preserve monopoly, but generally required evidence of market dominance or foreclosure. For example, judicial condemnation of vertical integration in the American Tobacco,⁴⁸⁵ Corn Products,⁴⁸⁶ Kodak,⁴⁸⁷ and Keystone Watch⁴⁸⁸ decisions were all predicated on at least an assumption of dominant market shares. On the other hand, the court refused to condemn United States Steel’s integration into distribution facilities,⁴⁸⁹ finding that the integration improved efficiency and reduced costs and uncertainty.⁴⁹⁰ In affirming, the Supreme Court cited evidence that it was cheaper for the defendant to combine several operations in a single facility and that this combination would enable it to compete more effectively in the world market.⁴⁹¹

In its unanimous antitrust decision in Eastern States Retail Lumber Dealers Ass’n v. United States, the Court even intervened to protect ownership vertical integration in the lumber industry.⁴⁹² The defendants were classic examples of Progressive Era small businesses who relied on the mantle of “fair trade” to protect themselves from larger vertically integrated firms. In this case they organized a boycott, which the Court condemned, agreeing among themselves that they would not purchase lumber at wholesale from anyone who had vertically integrated into retailing. The decision never used the words “vertical” or “integration.” Rather the boycott was cast in terms of wholesalers who sold directly to customers rather than exclusively to the defendant retailers.

D. Growing Fears of Vertical Control After World War II

The law of vertical relationships began to go off the rails in the 1940s, and for a confluence of reasons. One of course was the Great Depression and the dramatic rise of small business as an interest group following World War I.⁴⁹³ Another was President Franklin D. Roosevelt’s appointment of Thurman Arnold to be head of the Department of Justice Antitrust Division, turning it into a potent antitrust and anti-patent tool. The development of influential models of imperfect competition also had considerable influence.⁴⁹⁴

In its International Salt tying decision in 1947, the Supreme Court applied both the Sherman and Clayton Acts to condemn a non-foreclosing tie involving a common staple—salt—that was not realistically capable of being monopolized.⁴⁹⁵ The case effectively migrated patent act tying policy into antitrust law by holding that the defendant’s patents on its salt injecting machine created a presumption of market power sufficient to condemn that tie. It also watered down the Clayton Act requirement that an unlawful tie must “substantially lessen competition”⁴⁹⁶ by holding that proof of competitive harm did not require foreclosure—something that would have been impossible to show, given that the tied product was ordinary salt.⁴⁹⁷ Rather it was enough to show that the tying contracts covered a significant amount of salt. In this case that was approximately $500,000 per year.⁴⁹⁸

From that point tying law was used aggressively to condemn competitively harmless practices that the Court did not understand. Nor did it need to, because the per se rule for tying that the Court adopted created a strong presumption of illegality without competitive analysis.⁴⁹⁹ The Court relied on Justice Frankfurter’s dicta in the 1949 Standard Stations exclusive dealing case that “[t]ying agreements serve hardly any purpose beyond the suppression of competition.”⁵⁰⁰ That dicta served to make the Court more hostile toward tying arrangements than it was toward exclusive dealing.

In its 1949 Standard Stations decision, the Supreme Court expanded the rules against exclusive dealing to prohibit Standard Oil of California from engaging in “single-branding,” or insisting that its franchised gasoline stations pump only its own gasoline.⁵⁰¹ Standard Oil’s contracts covered 6.7% of the gasoline sold in California.⁵⁰² The Court’s condemnation of the practice was too much for Justice Douglas, otherwise an aggressive antitrust enforcer, who predicted in his dissent that requiring franchised gasoline stations to sell multiple brands of gasoline would force the refiners to build their own stations, thus eliminating the smaller dealers altogether.⁵⁰³

One effect of these decisions was a long-standing hostility toward tying arrangements, although it never extended quite as far to exclusive dealing.⁵⁰⁴ That distinction does not make a great deal of sense. While a tie requires a dealer to carry a specific second product as a condition of obtaining the first, exclusive dealing excludes a particular product from the dealer’s entire business. For example, under tying a dealer that sells GM cars might be required to repair them using GM parts.⁵⁰⁵ By contrast, under exclusive dealing the dealer would be prohibited from selling non-GM cars altogether. While outcomes vary with facts, often the amount of market exclusion produced by exclusive dealing exceeds the amount produced by tying. In any event, the per se rule for tying was not a creature of the Progressive Era, but rather of the late 1940s.

The courts also became more aggressive about vertical integration by merger and even by new entry.⁵⁰⁶ In fact, vertical integration almost became a suspect category. After the merger law was amended in 1950 so as to reach vertical as well as horizontal mergers, the Court applied it liberally to situations where foreclosures were not in the 40% and above range that Progressive courts had condemned, but as low as 3% or 4% on the Supreme Court,⁵⁰⁷ or barely over 1% in the lower courts.⁵⁰⁸ Internal vertical expansion earned similar treatment. For example, some decisions condemned automobile makers’ distribution of cars through wholly owned dealerships rather than contracting with independents.⁵⁰⁹ While the Mt. Lebanon Motors decision observed that the law of exclusive dealing required market power, the requirement was met when the court defined the market as “Dodge automobiles [sold] at the retail level in Allegheny County,”⁵¹⁰ thus guaranteeing that Chrysler’s market share would be 100%.

Numerous decisions in the 1960s and 1970s prohibited nondominant firms from doing any more than switching to self-distribution rather than relying on independent dealers.⁵¹¹ None of these decisions has survived today.

CONCLUSION

In 1933, two disruptive books appeared that presented the theories of imperfect and monopolistic competition. One was written by Cambridge University’s Joan Robinson,⁵¹² and the other by Edward Chamberlin from Harvard.⁵¹³ Both books reflected the Progressives’ increased skepticism about the benign qualities of markets. In the process they also paved the way for significantly more aggressive enforcement.

The theories of imperfect and monopolistic competition immediately became influential in academic circles. They gradually evolved into a single set of theories that today go by the name of imperfect competition.⁵¹⁴ Whether incidentally or as a result, antitrust policy began to veer left, often past all reasonable boundaries, condemning efficient practices where the creation of monopoly was virtually impossible.

This increased level of antitrust enforcement subsequently provoked a fierce neoliberal reaction, mainly from the Chicago School. It was prominently represented in the writing of George J. Stigler and, a little later, Robert Bork.⁵¹⁵ The Chicago School fought an ultimately losing battle to present imperfect competition models as untestable or incoherent. An empirical renaissance in economics, mainly in the 1970s and after, refuted that critique.⁵¹⁶ Today imperfect competition models clearly dominate the microeconomic literature as well as antitrust law, and their empirical robustness is well established.⁵¹⁷

The most general result has been a shift back toward the center. Today antitrust policy sits between the aggressiveness of the Roosevelt Court on one side, which often condemned competitively harmless practices, and the decaying remnants of the Chicago School on the other. Against this the Progressive response—aggressive in its own time but quite moderate today—has proven to be surprisingly durable.

96 S. Cal. L. Rev. 129

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Herbert Hovenkamp*

* James G. Dinan University Professor, University of Pennsylvania Carey Law School and the Wharton School. Thanks to Erik Hovenkamp and Matthew Panhans for valuable comments.

Fifty Ways to Leave Your Lover: Doing Away with Separation Requirements for Divorce

April 2023April 2024Claire P. Donohue*

Despite the evolution of no-fault divorces, which were intended to remove certain barriers to divorce and essentially make any divorce filed inevitable, many jurisdictions prescribe a waiting period before eligibility for divorce, during which there must be a demonstrable period of separation. In support of findings of facts and conclusions of law about whether the divorcing couple has established a separation, some jurisdictions will ask whether the couple has lived in the same abode and, if so, will inquire about the divorcing couple’s roles and choices vis-à-vis one another—for example, preparing meals for one another or engaging socially with one another. Other jurisdictions will make explicit inquiries into whether a couple has had sex with one another. Probing into families’ living arrangements and adults’ sexual choices does real and particular harm to marginalized social groups, and doing so defies the liberty and privacy interests of families and couples. In explicating this litany of critiques, this project attempts to avoid the trap that family law scholarship can too easily fall into; namely, criticizing doctrine “on a low level of abstraction” and rushing to a proposed reform. This piece, therefore, offers a taxonomy of the harm that separate and apart requirements cause—paying particular attention to the ways in which these laws are classist, heteronormative, gendered, and racially charged—and illuminates how constitutionally precarious such laws are. The project is ambitious as it attempts to situate and expose the deep-seated problems of separate and apart requirements as reflective of the deep-seated flaws in family law jurisprudence generally. The piece offers a comprehensive analysis and investigation of separate and apart requirements, and it serves as an invitation to further conversation and exploration of the themes raised herein.

Based on the author’s practice experience as much as her scholarship, the proposal insists that where couples are struggling deep in the heart of the matter about their choices—the good ones and the mistakes—they do not need or desire a judicial officer to ask them to wait or to organize their life a certain way before allowing them to divorce. Nothing and no one is served by insisting on some normative view about what the end of a marriage looks like and requiring some time period for performance of that view. The proposal in this piece joins a growing chorus of practitioners, judges, and scholars talking about administrative divorces. The distinct voice in this piece advocates for administrative divorce as a procedural decoupling of divorce from any underlying or attendant economic and custody issues. The piece motivates this argument based on the premise that allowing families to proceed thusly will enhance the self-determination of families in transition and promote use of the courts when, and only when, the families determine that court involvement in matters of children and economics will improve their stability.

INTRODUCTION

The problem is all inside your head, she said to me

The answer is easy if you take it logically

I’d like to help you in your struggle to be free

There must be fifty ways to leave your lover¹

Paul Simon knew full well that there are 50 Ways to Leave Your Lover, yet many jurisdictions insist on just one. That one way looks something like this: decide you are unhappy, unsafe, or unstable in your marriage. Leave the marital home or somehow excise your spouse from it. Pay for that additional rent or mortgage or count on the fact that your spouse can and will. File some paperwork with the court and wait. Wait a long time. Pay a lawyer. Pay a lawyer a lot of money. While you are waiting and paying you are still married, but you are also not really married. So do not resume living with your spouse, even if there is room in that property for you. If you do find yourself back in the house (but goodness, please don’t) do not socialize unduly with your spouse. You may not be sure what that looks like, but just please refrain from it. Do not share meals with your spouse. Certainly do not sleep with your spouse. Never. Not if you are living together or if you have moved out. Eventually, go to court. See a judge. Let the judge know that you followed these rules.

This Article takes up those rules, namely jurisdictions’ requirements that couples live separate and apart and wait out arbitrary waiting periods to be eligible for no-fault divorce. Despite the evolution of no-fault divorces, which were intended to remove certain barriers to divorce and essentially make any divorce filed inevitable, many jurisdictions prescribe a waiting period before eligibility for divorce, during which there must be a demonstrable period of separation.² In support of findings of facts and conclusions of law about whether the divorcing couple has established a period of separation, some jurisdictions will ask whether the couple has lived in the same abode and, if so, will inquire about the divorcing couple’s roles and choices vis-à-vis one another—for example, preparing meals for one another or engaging socially with one another.³ Other jurisdictions will make explicit inquiries into whether a couple has had sex with one another. These are questions about families’ living arrangements and adults’ sexual choices, questions that invade the privacy of families concerning their living arrangements and adults concerning their sexual choices. Moreover, the requirements of separateness and the inquiries they inspire do real and particular harm to certain social groups. This Article critiques these requirements as being classist, heteronormative, gendered, and racially charged and suggests that they defy constitutional protections. The Article ends by proposing a process that protects the dignity of divorcing couples and better provides predictability and stability for families in transition.

The primary argument for separate and apart requirements posits that separateness is a proxy for establishing that the decision to leave one another is mutual and voluntary or at least that one spouse has given the other a very clear indication that they want out.⁴ To the extent that one regards marriage as a contract, a meeting of the minds as to a modification of its terms or its termination makes a certain sense. But the requirements of separateness and the inquiries they inspire are superfluous and odd, given several realities of divorce: first, under no-fault divorce, no one has to prove any particular transgression; and, second, the contestations in divorce are rarely if ever about the divorce itself—rather, disagreements concern custodial, property, and support disputes.

A second argument, more tenuous than the first, to justify these requirements is anchored on the belief that marriage is a primary source of stability and security for children, families, and society. Divorce, the argument goes, is a destructive life event that couples should avoid, delay, or undertake painstakingly slowly.⁵ Yet the passage of time and greater visibility of families and couples not hiding their choices and arrangements has debunked the myth that marriage is the only available and functional means of raising children and ordering a civil society. Meanwhile, the time periods and requirements embedded in many separate and apart requirements are deeply destabilizing and burdensome.⁶

Moreover, the requirements for separateness burdens certain social groups in particular. To begin, living—and parenting—separately prior to final orders for support and division of assets is challenging if not impossible for those who are under-resourced or living in poverty; these economic realities impact women in particular. Moreover, the obsession about what is happening behind closed doors and what those intimate and interpersonal choices might tell the public about a couple’s desires or capacities is deeply rooted in heteronormative thinking and reasoning that applies rigid binaries to gender, gender performance, sexuality, and family constellations.⁷ Many expressions of self, love, and family do not match rigid constructions of how to “do” family.⁸ Moreover, inquiries into sex or home life are a particular violation to women, members of the LGBTQ+ community, and people of color, as classes of people whose sexuality and home life are too often distorted or weaponized against them.⁹ Meanwhile, the requirements appear contrary to constitutional protections.¹⁰ A fulsome accounting of harms—both shared and specific—and a survey of the constitutional concerns reveal that separate and apart requirements defy the very expectations we ought to have for family policies. They do not extend the dignity and respect to couples and families that they deserve, and they do not scaffold the predictability and stability that divorcing couples and families need.

Part I of this Article will explore the context of divorce—who is divorcing and why people leave marriages. This Part also offers a primer as to how the process and requirements for divorce are situated in the history of divorce. Part II will clarify and expand upon the harm done by separate and apart requirements generally and the intrusion they inspire. The Part will begin with an overview of the toll that pursuing divorce takes and how separate and apart requirements compound these burdens. This Part also seeks to situate these harms in the context of the disenfranchisement experienced by those who the law subordinates or fails to anticipate, as well as the particular psychological harm to subordinated communities brought on by invasions of privacy and judgment about lifestyle. To the extent that Part II describes how separate and apart requirements complicate the lived experience of families, Part III introduces the legal doctrine that should challenge the existence of the requirements themselves.

Part III outlines preliminarily the substantive due process right to be free from the burden of separate and apart requirements and inquiries. Specifically, the Part will illuminate an intersection in the Venn diagram of family law—namely, in the overlay of intimacy cases, right to marry cases, and family rights cases that suggest separate and apart requirements are on shaky constitutional ground. This Part will be in conversation with scholars calling for a right to sexual privacy and a right to unmarry, and it is meant as an invitation to further and future analysis. Preliminary analysis is offered here in this inchoate form to illuminate how clumsily and carelessly we define and defend family as a matter of law. It is not just that separate and apart clauses cause or exacerbate psychic and sociological harm—the risk of this harm exists and persists even where the law appears to be on precarious constitutional footing. In many respects, the Article agrees with Martha Minow’s assessment from almost thirty-five years ago that there is “an incoherent jurisprudence about families, [because it is] a jurisprudence tugged and pushed by other concerns.”¹¹

The final Part of the paper will turn to a consideration of what really matters to families: (1) being afforded dignity and respect; and (2) stability and predictability for ordering finances and property and raising children. Interestingly, these are the public policy concerns cited in support of, but not actually served by, divorce law. Part IV will offer prescriptions that eschew dogmatic and political views of marriage and actually serve familial interests. First, jurisdictions must do away with separate and apart requirements. Second, jurisdictions should bifurcate the adjudication of divorce in a prompt administrative proceeding, allowing for subsequent adjudication or alternative dispute resolution of custodial, property, and support disputes.

This Article attempts to avoid the trap that family law scholarship can too easily fall into criticizing doctrine “on a low level of abstraction” and rushing to a proposed reform.¹² This Article offers a taxonomy of the harm that separate and apart requirements cause, paying particular attention to the unique harm to those whose experience of the law is too often invisible. The Article also illuminates how constitutionally precarious such laws are. The project, then, is both ambitious and insufficient, as it attempts to situate and expose the deep-seated problems of separate and apart requirements as reflective of the deep-seated flaws in family law jurisprudence generally.¹³ The Article is intended, therefore, to serve as an invitation to further conversation and exploration of the themes raised herein.

I. YOU JUST SLIP OUT THE BACK, JACK: GETTING DIVORCED

People get divorced for all sorts of reasons along a spectrum: from mistaken compatibility to situations that pose health and safety risks to spouses or children. All along this spectrum, there may be elements of neglect of self or partner in the marriage, or unkindness or sorrow or even deceit and scandal, but there is also room for collaboration or planning for a next chapter and a changed future. Whatever the reason, or whatever the conduct of the spouses involved, states now universally recognize the importance of letting people out of unhappy marriages.¹⁴ And about forty to fifty percent of Americans will avail themselves of that option each year.¹⁵ Even where a party can now rely on no-fault grounds for divorce, in many jurisdictions they must establish eligibility under the jurisdiction’s separation requirements. A separation requirement refers to the amount of time two spouses must live separately to be eligible for a divorce.¹⁶ Separation requirements range from sixty days to five years.¹⁷ These requirements affect when a party can file and start the clock regarding when the matter will actually be heard or finalized.¹⁸ Moreover, in many cases, these waiting periods are not just a matter of running the clock; rather, the period of separation has to have demonstrable features of separation to satisfy the court that the matter is ripe for divorce.

Judges in Pennsylvania, for example, may seek evidence that the spouses began to lead independent lives, may inquire about whether spouses have stopped sharing a bedroom and whether they have had sex, may ask how much time a spouse spent in the marital home, and may question whether the spouses shared meals.¹⁹ In the District of Columbia, as in Pennsylvania, a couple is permitted to remain in the same marital home pending divorce, but the court will make explicit inquiry into whether the couple has had sex with one another and may additionally inquire about whether and when the spouses began to use separate bedrooms and how household finances were managed.²⁰ In Maryland, couples are not permitted to cohabitate at all, which does not forestall inquiry into the spouses’ sexual relationship; rather, Maryland courts will make a direct inquiry regarding sex. Two spouses who have had sex will be deemed to be cohabitating regardless of a reality of separate abodes.²¹The existence of separation periods and the depth of inquiry required in some jurisdictions are vestiges of confounding Victorian principles and the conspiring paternalism of the state when it comes to divorce.

A. Current Requirements in Conversation with the Confounding History of Divorce

Historically marriage was a matter of “status and cultural location” as well as economic security (of dependent women) and property rights (of men).²² As stated by the Supreme Court in 1888,

Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change; and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority.²³

Divorce, then, was about restructuring one’s economic life and one’s public standing.²⁴ By extension, divorce was quite public and political. Perhaps the greatest indication of this was the manner of seeking a divorce, namely through a petition to the legislature.²⁵ Divorce by legislature meant a popularly elected branch of government would decide whether a marriage harmed the spouses and the community to such an extent that the harm justified ending the marriage.²⁶ The move from legislative halls to courtrooms did not really render divorces particularly more available, any more private, or any less political.²⁷ Separate and apart periods and requirements reflect the longstanding insistence that marriage has an awful lot to do with the performance of normative roles and obligations, so divorce is only an option if there has been a failure to execute these roles. Proving oneself eligible for divorce inspires the same theater of early divorce law and continues to invite or advance a regime of judicial paternalism.

1. Marriage as Performance of Obligation

Where the legislature might have asked itself if a given marriage violated public policy, the courts addressed divorce as an adversarial process concerning a breached marital contract.²⁸ The terms of the contract flowed between husband and wife reflecting normative values. The conventional story of marriage in the nineteenth and early twentieth centuries was this: man and woman meet, perhaps based on love, but more likely based on a courtship promoted and controlled by the involved families. Man marries and stays man; woman marries and becomes wife, a person no longer entitled to an independent legal identity.²⁹ Husband assumes the legally and culturally assigned role of provider and protector for this now vulnerable creature. Wife agrees to obedience and sexual submission in order to birth children and tend to a home.³⁰

Even as divorces left legislative halls, the jurisprudence of divorce still reflected a second social contract that flowed between the couple and the state.³¹ The state had an interest in reinforcing predictable, regulated (gendered) expectations of support and obligation.³² The prevailing notion was that this paradigm policed virtue and upstandingness. As sole benefactor to his family, a man would be sober and productive. As keepers of the hearth, women would be too busy or grateful to be performing their manifest destiny as mothers to notice their disenfranchisement.³³ Children would be fed and clothed and sheltered.³⁴ Conduct such as adultery, desertion, or cruelty—and eventually habitual drunkenness and use of illicit drugs—became acceptable common grounds for divorce as they amounted to an obvious breach in the promises flowing not just from husband to wife, but also between married couple and state.³⁵

2. Divorce as Theater

Forced to comply with divorce law’s requirements for specific action or omission by a spouse, “one-sided evidentiary hearings[] and feigned testimony became common.”³⁶ Litigants continued to make public performances in courts concerning the appropriateness of their divorcing, just as they had before the legislature.³⁷ Indeed, litigants would “blithely relate[] prefabricated stories of their spouses’ ‘extreme cruelty’ destroying their marriage.”³⁸ The following situation seems humorous in retrospect, but is in actuality a maddening example of what happens when there is such a gulf between law and society.³⁹ In New York, couples staged elaborate farces, complete with paid actors, for example, to play a mistress who would substantiate an adultery ground for divorce.⁴⁰ Attorneys and judges played along.⁴¹ The truly affluent skipped the show and headed to Reno for “quickie” divorces.⁴² When New York, one of the last states to allow no-fault divorces finally did so, the two “chief evils the new divorce law was designed to eliminate” were the “collusive or fraud-ridden divorce actions” and “out-of-state divorces based upon spurious residence and baseless claims.”⁴³ If a party failed to keep up the guise of the performance or a judge was not as accommodating of any novelty or stretch in the arguments litigants made, this could forestall the divorce.⁴⁴ And of course, any party not willing to concede grounds or agree to the divorce could lock a miserable couple together in perpetuity.⁴⁵

Eventually, the chasm between what relationships actually looked like and what divorce laws and jurisprudence required grew too huge and too public to ignore.⁴⁶ The nineteenth century Women’s Movement had animated questions about women’s roles and capacity that challenged the prevailing notion about family.⁴⁷ These reformers raised consciousness regarding women’s property rights and a desire to dismantle male domination, “alter[ing] the notion of the husband/father as the legal representative for the family in public and commercial realms.”⁴⁸ Decades later, in the 1960s, a powerful secondwave of feminism supplied further fodder for divorce reform.⁴⁹ These twentieth-century feminists were outspoken in naming the privilege and subordination of the varying roles and opportunities available to men and women in marriage and the public realm (for example, the privileged public role of man as employee versus the subordinated private role of woman as caretaker).⁵⁰ They mounted resistance to the subordination of private roles and to a woman’s default position in them. Emerging notions that women might have myriad ways of deciding whether and how to be wives and mothers lent themselves to reforms that facilitate movement in and out of marriage.⁵¹ This cultural revolution combined with the chorus of litigators, judges, and families who were growing tired of the system-inspired collusion and fraud piloted a transition to no-fault divorces.

The timeline for states adopting no-fault divorce statutes tracked with Supreme Court cases chipping away at laws that carried or reflected assumptions that women would marry, marry young, and remain dependent in their marriages.⁵² The first state to adopt no-fault divorce was California in 1969, and the last state was New York in 2010. To this day, only seventeen states have true no-fault statutes whereby the parties cannot raise fault.⁵³ While the concept of fault eroded or became of second order importance in the divorce law of most states, requisite periods of separation did not, and normative requirements for what constitutes appropriate levels of disconnectedness arose.⁵⁴ Parties’ abilities to satisfy the court that they have lived separately turns on their abilities to perform as expected.

The standards before a family court judge are notoriously subjective. The best interest of the child standard in custody matters, for example, asks judges to make determinations concerning a child’s welfare and happiness.⁵⁵ On the margins—where one parent is unfit or dangerous—this may be an easy call, but, in the vast majority of cases, judges are trying to parse facts about things like parental involvement, a “child’s adjustment,” and “the wishes” of the parties and the child in order to make predictive determinations about what arrangements will best serve the needs of a child.⁵⁶ These determinations inevitably turn on a judge’s opinion of the parents—opinions, which are in turn, based on the judge’s own observations and values.⁵⁷ Parties that do not play the predictable and expected part of mother as nurturer and father as provider can struggle in custody determinations.⁵⁸ Similarly, judges’ expectations and values about roles and behavior inevitably also come to bear when judges consider the conduct and choices of parties when making findings of fact and conclusions of law about whether or not couples’ marriages have in fact broken down irretrievably.⁵⁹ Trials and colloquies on these issues, after all, seek to unearth the couples’ “inner most beliefs.”⁶⁰ Perhaps because this task is so impossible and offensive, some jurisdictions pretend to have turned instead to “objective” evidence of separateness to prove the claim that the marriage is over.⁶¹ And yet even here these inquiries can include questions about sex and particularized questions about shared meals, sleeping arrangements, and social engagements when a couple continues to share a residence. Just as with other aspects of family law, couples whose performance is outside of a subjective norm can and will struggle to convince the court that they are eligible for divorce.⁶²

One appropriately wonders if any of these inquiries into intimate and familial choices are necessary given that parties can plead in plain and simple language that yes, in fact, through “no fault” of either party, there has been an irretrievable breakdown of the marriage.⁶³ Surely the inquiries are of no consequence when neither party contests the divorce, and even where one spouse contests the divorce, under a no-fault regime, this spouse cannot successfully defend against the divorce itself for long: if one spouse wants out, they will get out.⁶⁴ And yet all scenarios—from uncontested divorces to those where someone will impotently contest an inevitable divorce—many courts can and do inquire into the conditions or level of separation before entering an order of divorce.

3. Judicial Paternalism

The early days of judicial divorce and the jurisprudence of fault invited an era of judicial paternalism in which parties aired the failures of their spouse to act in accordance with norms, and the court’s orders were a mechanism to replace the failed male head of household.⁶⁵ Subsequent divorce reform allowing for no-fault divorce shifted the “regulatory” energy or emphasis away from that of locating blame on one individual and towards the “internal aspects of family life.”⁶⁶ The need for parties to demonstrate that they have lived separate and apart generally, and the companion assumption that this means something, particularly about the way a couple shares bed and board, tells us that models of judicial paternalism are alive and well.

In twenty-nine states, parties must invite the court to enter their home to determine if they and their soon-to-be-ex-spouse are behaving as if the marriage is truly over.⁶⁷ The suggestion, in turn, that evidence of sex acts or contributions to a shared residence is sufficient proof of an intact marriage reflects antiquated and gendered visions of marriage, namely that marriage is nothing more than the exchange of sexual services and housewifery for the support of bed and board.⁶⁸ It is also a reminder that marriages have always been a vehicle for the state to police interpersonal relationships and regulate society: “Marriage defines normality. It is the standard against which all other relationships are judged. Societies promote and expect marriage. And governments use marriage to police social groups.”⁶⁹

The creation of family courts themselves signal a sense that what the court and judge were doing was intervening into the family, not merely presiding over a breached contract or brokering terms for a party wishing to modify their marital contract.⁷⁰ Family courts as originally conceived were meant to “mend, and if possible cure, sick marriages,” ending them only “if cure was hopeless.”⁷¹ Judges, then, became marriage doctors or conciliators.⁷² Still today in many jurisdictions, when one files through no-fault grounds, it triggers not just a separation period and the inquiry into separateness already discussed, but it can also trigger a requirement that the couple undergo mandatory “counseling” sessions.⁷³ In Pennsylvania, for example the court does not have to order counseling but may do so on information and belief that there is a reasonable prospect of reconciliation.⁷⁴ So, if a judge determines that the couple really meant that they wanted to be divorced when they filed for divorce, the judge may decline to order them to counseling. But if the judge decides—what exactly?—that one spouse might still be invested in the marriage and should be able to use state resources to pursue their disinterested spouse, or that either spouse has not thought it through?⁷⁵ Then the judge can order the parties into counseling. And counseling to what end? To reconcile?⁷⁶ To “play nice”? This is not counseling. This is social engineering.⁷⁷ It is well studied that in order for clinical intervention to be successful, particularly in family counseling, each member must come to the counseling with a sense of autonomy, choice, and insight.⁷⁸

Of final and considerable concern, courts’ paternalistic “fact” finding into separateness seeks to ask and answer heteronormative and gendered questions about family composition and choices. The burden of the courts’ voyeurism is not something experienced or borne equally across all populations; rather, it is a practice that disproportionately subordinates people of color, women, the poor, and members of the LGBTQ+ community. Meanwhile, the intrusion into divorcing couples’ intimate choices and shared living arrangements, and its disparate impact on subordinated populations, is inapposite to family rights doctrine and the evolution of privacy rights in marital and non-marital homes.

II. SHE SAID IT GRIEVES ME TO SEE YOU IN SO MUCH PAIN: BURDEN AND HARM FROM INTRUSION INTO INTIMACY AND FAMILY

While there is some variation across jurisdictions, one can articulate a “typical” process to secure a divorce. One spouse will file a complaint and another will answer, or the two will file a joint complaint; the matter will be marked for a preliminary hearing, at which point the court and the parties chart a path for the divorce, which may include discovery deadlines and a series of court appearances; thereafter follows a final hearing, which may or may not be contested, so this hearing may be an evidentiary hearing or more of a colloquy with the parties; and finally, finally, finally the court will enter an order pronouncing the couple divorced and addressing issues of custody, support, and property. Yet, even within this similar arc of a divorce case, the distinct experience of a given family will be different depending on the predilections of their jurisdiction or the circumstances of the litigants.⁷⁹ A rudimentary Google search tells us that on average it will take a couple about one year to secure a divorce.⁸⁰ In those jurisdictions that require a waiting period before filing for divorce, however, the timeline will be one year plus that waiting period; in Maryland for example, practitioners will set clients’ expectations to contemplate a total wait of about two years before the divorce is final.⁸¹ These timelines have elongated substantially during the COVID-19 pandemic and the ensuing crisis of capacity and flexibility in state courts to administer matters remotely.⁸²

A. Social Emotional and Financial Costs of the Divorce Process

Scholarship about divorce includes studies tracking divorce rates, attempting to predict why couples divorce, and describing how they fare in the years after divorce. Dwarfing that scholarship are the multitude of articles and studies about how children fare after a divorce. In contrast, there is very little writing and research about the experience—the trajectory and social emotional states—during the years that pass when couples are waiting to file for divorce and moving through the courts to secure a divorce. We do know that leaving a marriage is a significant life stress.⁸³ “For many people, marital separation means substantial financial upheaval, the renegotiation of parenting relationships and co-parenting conflict, changes in friendships and social networks, moving locally or relocating cities, as well as a host of psychological challenges, including re-organizing one’s fundamental sense of self: Who am I without my partner?”⁸⁴

We also know that the divorce process imposes financial strain on families. Divorces are costly.⁸⁵ There are filing fees associated with the process.⁸⁶ People using an attorney pay for that assistance—sometimes as much as $400 per hour.⁸⁷ Divorces may involve consultation with accountants, therapists, or other professionals, none of whom work for free.⁸⁸ Divorcing may require refinancing homes and cars to adjust ownership of that property.⁸⁹ Couples may face moving costs or additional rents and payments to set up separate homes.⁹⁰ The particular time periods and separate and apart requirements of certain jurisdictions are deeply destabilizing and burdensome. The waiting periods and the requirements of separate and apart make the cost of divorce more immediate or pronounced.⁹¹ Protracted divorce proceedings mean lost wages or use of personal leave for multiple court appearances, as well as the risk of job loss for missing work time and the cost of childcare expenditures.⁹²

Financial strain and the protracted timeline for divorce map onto a sea of logistical and existential difficulties that are already part of divorce for families.⁹³ One difficulty surrounds the public airing of private matters. We are socialized—and in fact, the law affirms in many respects—that our marriages are confidential places.⁹⁴ Yet, the divorce process invites, even requires, an invasion of this privacy. When the issue of privacy breaches in divorce is discussed publicly or in legal discourse, the discussion usually centers on situations in which one spouse may have crossed an ethical, if not legal, line in accessing information to buttress their claims for a divorce. The invasions I refer to here, in contrast, are invasions solicited by the court and the legal process itself. Even leaving aside the particular inquiries of separate and apart, divorce itself as it is conceptualized and adjudicated asks litigants to discuss a breakdown of a (previously) private domain. It may further require discussion or examination of child rearing and finances. Now layer onto this the particularized inquiry of some separate and apart jurisdictions: last sexual encounters, sleeping arrangements, or the nature of shared meals and social engagements. In almost any other context, sex, money, and child rearing are hallowed grounds. These are issues that one may not have reason or comfort enough to discuss with anyone at all, or only with close friends; and yet now the divorce requires a public airing, all while insisting that the subject matter of the litigation is not to locate or determine any one person’s fault. As shall be discussed in more detail below, privacy is an important concept in one’s sense of self and sense of control, so the confusing breaches of it take a human toll.⁹⁵

Additionally, families arriving in divorce court are not on happy or easy footing to begin with. They have experienced interpersonal stressors or have had pressures outside the marriage spill over into the marriage, which have triggered the marital conflict.⁹⁶ When the divorce process itself introduces new sources of stress and strain—financial, logistical, psychological, and otherwise—it taxes the very families who are already struggling to maintain a sense of collaboration and problem-solving.⁹⁷ Where deterioration of the social fabric is absolute, the inability to abide each other, let alone work with one another, presents a particular problem for families with children.⁹⁸ The prevailing wisdom is that (absent issues of abuse or parental unfitness) children benefit from access to and care by both parents, and so the presumption at law is one of joint custody. Essentially, divorcing parents will need to “deal” with one another regarding the care of their shared children.⁹⁹ Childcare is not the only matter that requires cooperation or compromise during a divorce. Divorcing couples must make decisions about property distribution and support or risk the court making the decision for them. Even in situations in which couples are willing and able to communicate and contribute to the joint enterprises of raising children or structuring post-divorce households, navigating these scenarios requires heightened intentionality and care in order to avoid or minimize discord. This work is exhausting. Enter separate and apart requirements—requirements that exacerbate all of the sources of stress and tension described above.

B. Burdens Are Not Evenly Held

While any household or divorcing couple risks facing the burdens described above, the risk of exposure to the burdens or the depth of experience of each burden is not evenly borne by each family and couple. This is because not all families are resourced, respected, and accounted for in a way that provides them political and social power. It is worth starting by pointing out the ways in which differently situated families’ actual passages through the divorce process will be different; from there, we will move to consideration of the more nuanced aspects of social and political differentiation as it impacts families’ relative treatment in, and experience of, the divorce process. To begin then, it is not uncommon for different types of cases to be “tracked” differently, with separate judges for each type of case and distinct tracking orders that reflect the different realities of the pace and nature of the litigation. For families with fewer means, and particularly for those without counsel, pretrial events become the occasion for negotiation and mediation, much of which can be happening before the judge’s eyes or with the judge’s involvement. Where there are breakdowns or confusion regarding temporary orders, there are no attorneys to turn to for assistance, so the parties will seek the assistance of the court. In contrast, for parties with means, many pretrial court appearances are quite pro forma. The attorneys for the parties submit or discuss the private separation agreements that the divorcing spouses have agreed to in out-of-court negotiations or mediations. Parties produce evidence and ask and answer questions in depositions or interrogatories. Court appearances can be an occasion for announcing what is known, what has been done, and what has been decided.

The effect is to offer people of means the opportunity at least for the vision of divorce that Cady B. Stanton herself had wanted when she advocated for marriage to be considered a private agreement between the parties that could be terminated themselves with only state acknowledgment of the termination.¹⁰⁰ What she argued against is what people of lesser means arguably endure: supervised marital relations by surrogate governmental heads of household.¹⁰¹ Yet, for certain families, the entire scaffolding for divorce invites judicial involvement and threatens judicial paternalism. All this, in turn, maps on to the public discourse about the divorce “problem.”¹⁰² One hears claims that feuding parents should stay together for the sake of the children, that revaluing the idea of marital service and obligation would improve family life, and that marrying and not divorcing would lift women and children out of poverty.¹⁰³ Conservative pundits have laid blame for all manner of social problems on the thresholds of “broken homes.”¹⁰⁴ “[M]arriage, rather than a shift in public priorities, [is] the solution to poverty, violence, homelessness, illiteracy, crime, and other problems.”¹⁰⁵ It is in this context of punitive and judgmental rhetoric and under the eye of judicial paternalism that families are asked to declare their choices about whether they have lived together, how much they have communed with one another if they have lived together, and whether or not they have had sex with one another. There is a risk that subordinated and under-resourced families will have a particularly difficult or strained experience in such a divorce process.¹⁰⁶ This is not only unfair on a systemic level for a society that strives for justice, but it is painful on a personal level for those individuals whose families and needs are ignored, mischaracterized, or marginalized.

The state’s intrusion into sexual and familial choices is a story told in race, class, gender, and sexuality, yet the state will declare its laws neutral.¹⁰⁷ The critique herein is twofold: first, to notice the inadequacy or stubbornness of the law, but also to take the time to name the psychic collateral consequences of our subordinating jurisprudence. An example will help here. Let us consider the law of rape. It is well studied that when Black women report rape, their accusations are under-investigated and under-prosecuted.¹⁰⁸ Yet, in other contexts, the law is swift and careless in its intrusion into Black communities for the purpose of criminalizing the behavior of Black bodies.¹⁰⁹ Kimberlé Crenshaw explains how, therefore, a Black woman may be reluctant to call the police even when she has been raped or assaulted due to an unwillingness to subject her private life to the “scrutiny and control of a police force that is frequently hostile” to the Black community. ¹¹⁰Will her account be heard as an assault as clearly as it would if it had been reported by a white woman? Will her assault and the violation of her sanctity be credited as intolerable as it would if it had been reported by a white woman? This has led, then, to the reality of Black women underreporting violations to their bodies. It has confirmed in the hearts and minds of many in the Black community that the law, for them, is not about protection and safety. There is also lasting psychic harm to Black women, and ongoing risks to their bodily safety.¹¹¹

One can follow a similar path in analyzing separate and apart requirements and inquiries. To begin, requirements and inquiry around separate and apartness are manifestations of not believing—not believing that a family is considering or preparing itself appropriately for divorce; not believing their declarations that a marriage is over. Not being believed takes a psychic toll.¹¹² Secondly, these laws require probing into private spheres, and often, sexual choices. In this way law is primed—designed?—to alienate, ignore, or suppress classes of people, because not everyone’s sexual dignity is held in positive regard, and because the law is tethered to heteronormative arrangements for what the private family sphere is “supposed” to look like. Moreover, inquiry in search of “proof” of separation invades a person’s sense of privacy. Here, I do not refer to privacy in the constitutional sense (though I will do so in later sections of this Article) but rather in the ways in which individuals understand, hold, and value their privacy.¹¹³ Privacy is an elusive concept: Privacy is associated with liberty, but it is also associated with privilege (private roads and private sales), with confidentiality (private conversations), with nonconformity and dissent, with shame and embarrassment, with the deviant and the taboo . . . and with subterfuge and concealment.”¹¹⁴ Perhaps as a consequence, people perceive invasions of privacy differently and bear those invasions differently.¹¹⁵ We are not all situated similarly in terms of the treatment we receive, the ways we are heard, the sense people make of our lives, and our experience of normative expectations.¹¹⁶ As described above, rhetoric about divorce is already punitive and judgmental.¹¹⁷ Black, Indigenous, and people of color (“BIPOC”), LGBTQ+, and under-resourced families, meanwhile, are asking for divorces in the context of their own stigmatization, discrimination, and associated psychic pain. They are asking for divorces in the context of specific stigmatization and discrimination about their families and sexuality.¹¹⁸

1. Stigma & Discrimination

Discrimination contributes to poor health outcomes and specifically affects mental health when the experience alters “one’s perception of self and their surroundings.”¹¹⁹ One’s stigmatized social status can create “unique minority stressors” for stigmatized and disadvantaged populations.¹²⁰ People of color, specifically, are “stressed by individual, institutional, and cultural encounters with racism.”¹²¹ Specific encounters with racism may be aversion, harassment, discrimination, hostility, and violence.¹²² These encounters and experiences can be the source of affirmative trauma or the cumulative experience of them can lead to toxic stress responses.¹²³ Unsurprisingly, studies suggest that these race-based stressors have an impact on BIPOC’s psychological and physical health.¹²⁴

LGBTQ+ people also suffer from individual and institutional discrimination. LGBTQ+ people may suffer from stigmatization by individuals and institutions, which can in turn provoke self-stigma. LGBTQ+ people are specifically subjected to stigmas based on perceptions of illegitimacy: gay and lesbian individuals do not participate in legitimate relationships; transgendered persons do not express their gender in a legitimate way.¹²⁵ Researchers have identified different categories of stigma. “Felt stigma” is the knowledge of society’s perception of you.¹²⁶ Felt stigma can motivate LGBTQ+ persons to “constrict their range of behavioral options (e.g., by avoiding gender nonconformity or physical contact with same-sex friends) and even to enact sexual stigma against others.”¹²⁷ Felt stigma may encourage some LGBTQ+ people to conceal their identity or socially isolate.¹²⁸ Another manifestation of self-stigma is “internalized sexual stigma . . . . Internalizing sexual stigma involves adapting one’s self-concept to be congruent with the stigmatizing responses of society.”¹²⁹ Finally, stigmas of a different flavor plague women and particularly poor women. Since time immemorial, women looking to leave marriages were cast as lustful and deviant.¹³⁰ To this day, poor women, in particular, are subject to commentary about their being imprudent and reckless.¹³¹ Consider, for example, the double standard of marriage as something that is necessary or ideal for mothering. A white celebrity in all her staged glory and living in an environment buttressed by endless support and resources can tell a story of her personal redemption and strength in her decision to be a single mother. The object of a “welfare mom,” however, is scrutinized as having subjected herself, her children, and society at large to her irresponsible decision to mother alone.¹³² Moreover, numerous studies have confirmed that the accumulation of stress present in a life of poverty has adverse health and mental health outcomes.¹³³

Withstanding the domination and control of racist, gendered, or heteronormative systems interferes with one’s esteem and mood states.¹³⁴ It also frustrates one’s locus of control.¹³⁵ In psychology, a locus of control refers to one’s perception that they control what happens to them and around them.¹³⁶ Someone with a strong internal locus of control can believe and actualize that they are the masters of their own destiny.¹³⁷ Individuals with external loci of control are left with the feeling that the world happens to them and that they are powerless to chart or change their path.¹³⁸ The requirements of divorce risk adding to accumulative stress, stigmatization, and a loss of control already experienced by vulnerable families. Additionally, any judgment or rejection during a divorce proceeding about not getting the separation “right” follows a litany of experiences and systems that tell them BIPOC, LGBTQ+, and under-resourced families are not getting family “right.”¹³⁹

2. Getting Family and Sex “Right”

Consider, specifically, the requirement for inquiry into a couple’s decision to cohabitate during a period of separation. As previously discussed, anyone might be annoyed or embarrassed by offering a virtual stranger in open court an account of your bed and board choices, but these requirements and inquiries present particular insult to subordinated populations. Separate and apart inquiries specifically are an intrusion into the inner workings and decision-making in a private realm. For subordinated populations in particular, this private realm is a last bastion of dignity. The experience of the intrusion into a private sphere can be particularly painful and acute for those who weather subordination in the public sphere.¹⁴⁰

As Crenshaw so astutely surmised,

There is . . . a more generalized community ethic against public intervention, the product of a desire to create a private world free from the diverse assaults on the public lives of racially subordinated people. The home is not simply a man’s castle in the patriarchal sense, but may also function as a safe haven from the indignities of life in a racist society.¹⁴¹

Racism’s chronic external, public assaults on dignity create resistance to, or sensitivity about, inquiry and critique of private family decisions that are nuanced and, therefore, more susceptible to racist misinterpretations and biased reasoning.¹⁴² People of color are not alone in distrusting inquiries into private realms or experiencing heightened discomfort during such inquiries. The LGBTQ+ community has borne bias in many spheres of life.¹⁴³ For too many members of the LGBTQ+ community, rejection and judgment started in their homes and families.¹⁴⁴ The rejection of LGBTQ+ children in homes and in school can turn violent.¹⁴⁵ Judgment and hostility in the workplace or public spaces is common too.¹⁴⁶ Far too often, LGBTQ+ families are cast as deviant, illegitimate, or confusing to children.¹⁴⁷ The home spaces and families designed by some members of the LGBTQ+ community are an expression of what is required to build the family or keep it safe from heteronormative hostility.¹⁴⁸ Family design can also reflect a conscious decision to reject gendered norms for a family’s financial and social arrangements.¹⁴⁹ These families may feature partners and children connected in diverse ways.¹⁵⁰ Historic lack of protection—or affirmative criminalization—for the family ordering of LGBTQ+ families leave many LGBTQ+ families with legacies of perceived vulnerability, a perception that can be particularly acute during divorce.¹⁵¹ Preliminary research regarding same-sex couples, for example, suggests that these couples feel a “heightened social scrutiny at the time of a relationship’s end.”¹⁵² LGBTQ+ families are not alone in structuring families that do not fit a rigid heteronormative paradigm—male head of household, female companion, children. Under-resourced communities, foreign-born families, and Black families are all more likely than white affluent families to live in multigenerational homes.¹⁵³ There are racial and ethnic disparities in marriage matters as well.¹⁵⁴ Lastly, there are growing disparities by class concerning modalities for child rearing.¹⁵⁵ When families operate outside of the norm, they raise the hackles of our system of supervision: a class-based system of white, heteronormative supervision.¹⁵⁶

Finally, consider where the inquiry into the private family sphere includes specific inquiry about sex. Domination and control of sex and sexuality is an old tool in the arsenal of oppression. Consider, for example, that there was a time when the law did not acknowledge marital rape as a crime. This was because sex was an “essential obligation of marriage,” and sex between married people was “private.”¹⁵⁷ Bound up in the protection of male entitlement to sex and freedom from scrutiny regarding how they pursued it was systemic acceptance of the domination of women. Eventually, the mantle of marriage could not disguise the violence of rape and the public came to see the law’s willful ignorance of the violence as tantamount to support.¹⁵⁸ The change in law, in turn, better reflected and resisted the dominance and control inherent in rape and acknowledged that dominance and control is no less dangerous and damaging in the context of a marriage. Legacies of domination and control explain why women, BIPOC, and LGBTQ+ persons face the most abuses of their sexual privacy and are vulnerable to critique of their sexual choices in public spheres.¹⁵⁹

Anti-racist scholars have also demonstrated the “sexualized nature of racial oppression.”¹⁶⁰ Since the time of slavery, when Black women were reduced “to a sexual object, an object to be raped, bred or abused,” and onward, Black women’s sexuality has been co-opted and weaponized against them.¹⁶¹ Meanwhile, the hyper-sexualization of Black men is “one of the most prevalent stereotypes in white America’s racial mythology.”¹⁶² Indeed, in family court proceedings and the child welfare context, one still sees that the sexual stereotypes of Black men and women result in the “devaluation” of mothers and the stereotype of the absent father.¹⁶³ The scrutiny of Black parents generally, and their sexuality specifically, is ingrained into our definition of the worthy and unworthy poor.¹⁶⁴

LGBTQ+ communities, meanwhile, have experienced state-sponsored hostility regarding private, consensual sexual expression for centuries. Consider “sodomy laws” for example, which “do not merely express societal disapproval; they go much further by creating a criminal class.”¹⁶⁵ Sodomy laws provide a particularly clear example that the law is often clumsy and mean in its desire and attempts to define, understand, and regulate relationships.¹⁶⁶ Separate and apart laws are no exception to this general rule. Laws and procedures that require probing into family constellations and sexual choices are not neutral or kind—not by design and not in effect. Meanwhile, how we define and dignify intimacy between people and to whom we extend corollary rights to privacy and liberty matters. It has significant implications for equality.¹⁶⁷ When we hone in on considerations of liberty and privacy interests, what also becomes clear with separate and apart laws, beyond the fact that they are bastions of bias and unkindness, is that they are not obviously even permissible.

III. SHE SAID IT’S REALLY NOT MY HABIT TO INTRUDE: INTIMACY, MARRIAGE, AND FAMILY

The legal grounds for doing away with separate and apart requirements and their invasive inquiries are hiding in the shadows where many rights important to families and those in relationship do. Our Constitution does not articulate positive rights, rights securing access to a given thing—education or housing or health care, for example.¹⁶⁸ The quintessential articulation of rights in the U.S. Constitution—the Bill of Rights—articulates a series of negative rights, or limits on the government. The Ninth Amendment does, however, remind us that the enumeration of certain rights “shall not be construed to deny or disparage others retained by the people.”¹⁶⁹ And so, against a scaffolding of governmental restraint and in combination with an explicit invitation to recognize rights of the people, we see a liberty interest the “exactness” of which is difficult to define, but which “[w]ithout doubt . . . denotes not merely freedom from bodily restraint but also the right of the individual to . . . establish a home and bring up children”¹⁷⁰ and an articulation of a privacy right “formed by emanations” from other constitutional guarantees.¹⁷¹ The articulation and application of these rights has been vital to those in families and relationships.¹⁷² These rights as discussed in the context of intimacy cases, right to marry cases, and family rights cases suggest that separate and apart requirements are on shaky constitutional ground.

A. Privacy: Intimacy

In 1965, the Supreme Court asked itself if our society could tolerate the police searching the “sacred precincts” of a marital bedroom for evidence of use of contraceptives. It answered its own question, declaring that “[t]he very idea is repulsive.”¹⁷³ The Court’s language in Griswold v. Connecticut, describing the image of a police officer in the bedroom in order to regulate the intimacy of two adults, was not hyperbolic rhetoric. Rather, the description was reminiscent of the actual encounter that Mr. and Mrs. Loving had with police in their bedroom in 1958 and foreshadowing of state action to come.¹⁷⁴ In 1988, an officer entered Michael Hardwick’s home with a (moot and invalid) warrant for his arrest on another matter, and, upon seeing him in his bedroom having sex, arrested him. Then, in 1998, police entered John Lawrence’s home on a report of a “weapons disturbance,” saw John Lawrence and Tyron Garner having sex, and arrested them.¹⁷⁵ All might have been lost for Lawrence as it was in Bowers v. Hardwick had the Court not recognized that the issue before it concerned “the most private human conduct, sexual behavior, and in the most private of place, the home.”¹⁷⁶ In so doing, the Court finally agreed that the question provoked by a law regulating sex between consenting adults was not a question of what an individual was doing in the privacy of his own bedroom, but rather what was the state doing there.¹⁷⁷ Griswold, Lawrence v. Texas, and their progeny tell us that the bedroom becomes a proxy for “the exercise of . . . personal rights.”¹⁷⁸ These cases also confirm that these rights exist within, but also extend beyond, marital relationships.¹⁷⁹

Danielle Keats Citron argues more specifically that it is “time to conceptualize sexual privacy clearly and to commit to protecting it explicitly.”¹⁸⁰ Citron’s advocacy concerns civil and criminal liability for those who attack and assault the sexual dignity of individuals through any range of behaviors, including nonconsensual pornography, coerced sex, nonconsensual capture of nude images, and so forth, but her analysis affirms concepts important for the issue at hand. Citron defines sexual privacy as “the behaviors, expectations, and choices that manage access to and information about the human body, sex, sexuality, gender, and intimate activities.”¹⁸¹ She argues that sexual privacy combines principles of equality, intimacy, and sexual agency and that recognition of such a right and protection under it allows people to “author [their] intimate lives and be seen as whole human beings rather than as just . . . intimate parts or innermost sexual fantasies.”¹⁸² Protecting the self-disclosure and vulnerability inherent in sex upholds principles of dignity and equality. While the concept of sexual privacy is developed and litigated, cover for the literal and figurative “bedroom” at issue in separate and apart inquiries is undeniably located in the penumbra of privacy interests.¹⁸³ The privacy rights here clearly establish that the state is not, when it comes to consenting adults, permitted to intrude on who is having sex¹⁸⁴ and to what end.¹⁸⁵

One cannot help but notice how these principles of privacy around sexual intimacy erode completely in the context of separate and apart requirements. Indeed, in the context of divorce, at least, the needle has moved since the early and deeply influential articulations of why privacy matters. Samuel Warren and Louis Brandeis, in their seminal contributions to the conversation of privacy, repeatedly emphasized protection of “thoughts, sentiments, and emotions,” not just the body and property.¹⁸⁶ They made their impassioned case for privacy following publicity and specifically photography of a wedding at which the many Boston elite were present. To their thinking, by photographing the wedding and making those pictures available for public view, the press was laying bare “the sacred precincts of private and domestic life.”¹⁸⁷ If photographing marital joy was so compelling to early proponents of privacy, how can seemingly superfluous inquiry at the time of a divorce not seem problematic? Consider, for example, in Bergeris v. Bergeris, from the year 2012—not 1812—in which we see a court probing the interactions of a couple to determine whether and what type of phone sex they had.¹⁸⁸ The probing occurred despite Maryland ostensibly being a no-fault jurisdiction. The probing occurred despite the procedural posture of the case, in which Ms. Jeanine Bergeris sought and received a protective order against Mr. Bergeris, and both parties had—at varying times in the history of the case—sought limited or absolute divorces from one another.¹⁸⁹ And, in which, the scrutiny of “sexually explicit telecommunications” forestalled the divorce of this couple, despite their having been locked in litigation for two years during which time one or both of them was seeking one.¹⁹⁰

Privacy for sexual intimacy is not the only substantive right important to families hanging out in the shadow of liberty interests.¹⁹¹ One can see declaration after declaration that “[t]here . . . exist[s] a ‘private realm of family life which the state cannot enter.’ ”¹⁹² As stated in Carey v. Population Services International, “[w]hile the outer limits of [the right of personal privacy] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions ‘relating to marriage, procreation, contraception, family relationships, and child rearing and education.’ ”¹⁹³ Accordingly, the Court has admonished laws that abridge the freedom of personal choice in matters of family life.¹⁹⁴ The family realm, as a site for making choices for and about one’s family, has been afforded both substantive and procedural protection.¹⁹⁵

B. Family Rights

Families’ privacy and liberty interests can link in important ways to their survival.¹⁹⁶ This liberty interest has translated into the law affording families’ choices dignity, respect, and a wide berth.¹⁹⁷ Family survival has, in turn, always included the notion of change or restructuring.¹⁹⁸ Any suggestion that families journeying through a divorce are no longer families or will no longer be families once the divorce is finalized is intellectually dishonest and demeaning. To begin, any argument that the end of a marriage means the end of a family does not track with common sense or with the Court’s recognition of many non-nuclear or bi-modal families.¹⁹⁹ Moreover, statutes adjacent to divorce, namely support, child custody, and property distribution statutes, confirm that divorced families will still be tied to one another through continued coordination, support, or cooperation, even while each spouse will be entitled to independence from the marriage. Property distribution statutes, for example, do not just consider spouses’ past contributions to marital property and past acquisitions of assets and income to design equitable distributions, but also consider spouses’ future opportunities for acquisition of assets and income, and forward-looking needs in terms of providing care for any children.²⁰⁰ Custody statutes will ask about the living arrangement and structure of care to which children are already accustomed while also asking questions about a parent’s willingness and capacity to shape new and presumptively shared custody arrangements going forward.²⁰¹ Alimony statutes call out spouses’ past contributions to the achievements of the other or running of the household, while also enumerating forward-looking considerations of spouses’ abilities to find employment or achieve financial independence. In this way, the jurisprudence around care of children, support, and division of property reflects the complex reality of divorced families: while the pathways for two divorcing individuals is diverging, there is a history that binds them and a tomorrow that involves them both.

Prior to any restructuring contemplated above, there is a limbo period during which spouses are contemplating divorce or are in the process of negotiating or litigating a divorce. What couples are in this stage is still married. And what the couple is doing at this stage is making choices. These choices might include choices about how to spend money, how to organize their affairs, and how to care for children and prepare them for their new reality. Couples’ status as (still) married and the choices they are confronting provoke liberty interests. Direct and easy application of family rights doctrine should forestall court inquiry into the private realm of their family dealings.²⁰² Parents of a child, for example, may make decisions to continue to share physical space and even a degree of intimacy as part of a larger vision of how to provide the best care for a child during a time of emotional and financial upheaval.²⁰³ This ability to decide how to raise one’s child is a clearly constitutionally protected interest.²⁰⁴ Families’ interest in childrearing, their interest in protecting their family, and their interest in creating social and legal order were considerations Justice Kennedy named as buttressed to the right to marry. He wrote: “marriage is inherent in the concept of individual autonomy”; marriage is an “intimate association,” a “union unlike any other in its importance to the committed individuals”; “the right to marry . . . safeguards children and families”; and finally, “marriage is a keystone of the Nation’s social order.”²⁰⁵ Taken together, these four principles put flesh on the bones of the interests bound up in marriage.

C. Right to Marry

In Obergefell, the Court had relatively recent occasion to write its latest love letter to the institution, agreeing with sentiments from Courts before it that marriage is the “relation . . . most important” in life,²⁰⁶ and that freedom to marry is a “vital personal right[] essential to . . . happiness.”²⁰⁷ And yet, our nation has a shameful history of denying access to marriage for all sorts of reasons. Until appallingly recently, many states had anti-miscegenation laws on their books. When, in 1968, Loving v. Virginia declared such laws unconstitutional, fifteen states in addition to Virginia had similar laws.²⁰⁸ And there was not a clear, unencumbered pathway for same-sex couples to marry until 2015.²⁰⁹

Loving, Obergefell, and their progeny clarify and confirm that the state may not “significantly interfere” with decisions to enter a marriage, but it is well understood that states can and do regulate marriage, both in terms of one’s entrance into it and exit from it.²¹⁰ With few remaining constraints, however,²¹¹ you can decide to be married and you can—relatively immediately—be married.²¹² In contrast, there is no prohibition against interference regarding the decision to divorce. The only restrictions on states are that they cannot deny access and opportunity to be heard to end the marriage and they must extend full faith and credit once a jurisdiction has pronounced a divorce.²¹³ Thus, states police both the gateway to marriage and the gateway to divorce, but they are neither the same gate nor do they swing with equal ease or open to equal breadths.²¹⁴

Those arguing for a “right to unmarry” take issue with the fact that the process to divorce is so encumbered, as compared to the process to marry.

The government promotes marriage by making it fast and easy, at least if it’s your first marriage. In states like Nevada, you can even get married on the spot. By contrast, divorce is slow and burdensome. It can take many months and inevitably requires many filings. Unlike marriage, which is essentially a ministerial act, divorce typically requires legal representation, multiple filings, court appearances, and considerable expense. You can get married on a lark, but getting divorced is always a bear.²¹⁵

They argue—quite convincingly—that all four Obergefell principles regarding marriage apply to a right to a prompt divorce. In its argument that the fundamental right to marry “must apply with equal force to same-sex couples,” the majority opinion relied upon four principles: (1) individual autonomy; (2) intimate association; (3) the promotion of familial relationships; and (4) social order.²¹⁶ In articulating these principles, the Obergefell Court declared that marriage “draws meaning from related rights of childrearing, procreation, and education” and that choices about marriage “shape an individual’s destiny.”²¹⁷ Proponents of the right to unmarry suggest that “[i]f it offends autonomy and dignity” to prohibit a given marriage, then surely it “offends autonomy and dignity” to bind someone to a marriage they no longer wish to be part of, particularly where that bind constricts their ability to marry another.²¹⁸

One can see that protecting the “choices” and “destiny” of those in a marriage means nothing—and in fact sets us back hundreds of years—if we then limit the acceptable choices to only those that reflect a willingness to stay bound to a marriage no matter the consequences to safety, psychology, or finances. But a stronger, or additional, argument might thread the needle a little differently. One can argue that the principles in Obergefell apply directly to a divorcing couple because, during a divorce proceeding, a couple is married. The operation of laws confirms this simple truth: until parties are actually divorced, they are married. They cannot, for example, remarry in the interim without risking the subsequent marriage being deemed polygamous.²¹⁹ Property acquired before a divorce is final can be deemed marital property, and property disposed of before the divorce can be seen as a party dissipating assets.²²⁰ Couples engaged in divorce proceedings should, therefore, be entitled to privacy in any intimate association they choose to maintain and deference to their sound discretion concerning child rearing and creation of stability and predictability, because doing so will indeed serve to preserve social and legal order.²²¹

These constitutional mandates taken in combination with one another are suggestive of a substantive due process right to be able to maintain privacy and demand state deference to familial decision-making during a divorce. These protected rights of family liberty and privacy should foreclose parties from having to submit to a hearing about their choices to engage in sex, share meals, or occupy similar space.²²² There may also be equal protection challenges embedded in the pronounced burdens that separate and apart laws place on to particular social groups.²²³ But, what both the typology of harms and the analysis of the rights and interests show more generally is that separate and apart requirements are baffling and problematic. They are a “solution” in search of an actual problem, which meanwhile ignores the legitimate needs of families in transition. Perhaps this should surprise no one because family law jurisprudence and the associated rights and obligations so rarely reflect the needs and interests of families and the individuals that make up those families; rather, they are a reflection of prevailing political forces and wills.²²⁴ Divorce, in particular, is “a lightning rod for deep-seated political anxieties that revolve[] around the positive and negative implications of freedom.”²²⁵ And we have a long and particularly brutal history of disregarding or distorting the familial rights and interest of subordinated groups.²²⁶

IV. MAKE A NEW PLAN, STAN

If we are to design laws and procedures that protect families, it is worth pausing to name, even in the most general sense, what matters to families. What appears to matter—sociologically, psychologically, and historically speaking—is (1) stability and predictability for raising their children and ordering finances and property; and (2) being afforded dignity and respect.²²⁷ Separate and apart requirements, and the invasive inquiries that some requirements provoke, defy these interests. They deny some families a path to the clean, expeditious exit that they need, despite it being “socially and morally undesirable to compel a couple whose marriage is dead to remain subject to its bonds.”²²⁸ For other families, it forces social arrangements that feel premature, unnatural, or disadvantageous to a family’s plan for transition. In contrast, the proposal herein better protects and reflects a commitment to stability and predictability and dignity and respect. Preliminarily, divorce law must be rid of separate and apart requirements. From there, one could more easily contemplate divorce as an administrative and civil—not judicial—matter, just as marriage is a civil and administrative matter. Divorce could then be bifurcated from subsequent adjudication of custodial, property, and support disputes where the circumstances and needs of a family require adjudication of those matters.

A. Stability and Predictability

In a manner relatively consistent since the Victorian era, divorce has been cast as the cause of many social ills—sex-crazed men and women, unrestricted by a commitment to have sex only in order to have children and then raise children together; vagabond children left by the aforementioned parents; impoverished women-led households.²²⁹ Today, conservative pundits insist that decline in marriage is the cause of children struggling in school, financial strife, and even crime and violence.²³⁰ Rather than unearth the complicated social realities and psychology that contributes to struggling marriages or undertake public policy reform to address social ills, it is far easier to posit marriage as “the solution to poverty, violence, homelessness, illiteracy, crime, and other problems.”²³¹

Yet, far from causing all social ills, divorce actually provides important social and financial recalibrations for many families.²³² As way of example, let us begin with an honest look at the ubiquitous claim of many pro-marriage and antidivorce activists: what about the children?!? Divorce obviously affects children, and studies have rather consistently concluded that the event of a divorce will produce measurable anxiety and depression for many children.²³³ What early studies failed to ask, however, was how long or pronounced that suffering would be; and moreover, how evidence of anxiety, depression, or clinical antisocial behavior was linked to the quality of family life prior to divorce.²³⁴ More nuanced studies reveal that children in marriages marked by high dysfunction suffer, so their antisocial behavior decreaseswhen parents dissolve unhappy marriages.²³⁵ Other studies suggest a positive relationship between divorce and measures of increased resilience across time.²³⁶ Paying attention to the experiences and outcomes for high-conflict families is particularly important when one considers the reality that divorce is also a means of escape from affirmatively abusive environments. Approximately, twenty-five percent of divorces are initiated in response to domestic violence.²³⁷ There is also an inverse correlation between divorce rates and domestic violence rates: “In the first five years after the adoption of no-fault divorce, divorce rates did indeed rise, but the domestic violence rates fell by about 20 to 30 percent, and wives’ suicide rate fell by 8 to 13 percent.”²³⁸

Even in situations that do not overtly threaten one’s personhood, divorce can increase predictability and stability because it opens the door to structuring parenting and finances.²³⁹ It is no secret that divorce can create economic hardship and that this hardship disproportionately affects female headed households, but it is not true that financial independence and competence would have been assured if the marriage had remained intact.²⁴⁰ Similarly, it is true that custodial disputes can be contentious and painful, but it is not true that marriages produce equal and adequate parenting.²⁴¹ Oftentimes, divorce recognizes the truth that some people reach more authentic or sustainable parenting and financial arrangements when they are apart. And indeed, it is only through divorce and not within an intact marriage that parties have a legal right to equitable distribution of property, claims for support, and claims of custody that are severable from that of the child’s other parent.²⁴² It is only in the context of divorce and not marriage that parties can seek intervention of the court to help them act on these rights.

Whether the assistance of the court or an internal reckoning gets them there, divorces can and do change people’s choices regarding their parenting and decisions to work or pursue training. After studying nearly fourteen hundred families, Mavis Hetherington describes custodial parents learning to round out their skills as parents; for example, a parent may learn more about discipline and control or strive for greater kindness and softness when the parent cannot offload some aspect of parenting on the other parent and must develop the skills themselves.²⁴³ She also writes about a group she calls “divorce activated fathers”²⁴⁴ who “begin to do all the things they were too busy to do before divorce or had relegated to their wives,” for example, soccer games and school plays.²⁴⁵ Other individuals studied reported that divorce ignited an opportunity or a motivation to go back to school, find work, or switch jobs. For many of these divorcees, these changes in their roles and ways they conceived of themselves in their families led to self-discovery and empowerment.²⁴⁶

B. Dignity and Respect

Perhaps precisely, because divorce is a pathway to refiguring one’s social, financial, and custodial relationships, leaving a marriage can be an important expression of agency and self-determination. Self-Determination Theory looks to human experience to understand what motivates people and posits that the ultimate goal for any intervention is inspiring a person’s optimal functioning. The theory suggests that three basic psychological needs are associated with increases in wellbeing: autonomy, competence, and relatedness. Autonomy refers to the need to have an independence of being; competence is defined as the desire to “master one’s environment”; and relatedness refers to the desire for meaningful social interactions. Scholars have described marriage as an “expressive resource” and that commitment to marriage is an expression of association and personhood. ²⁴⁷ David Cruz argues that that ability to hold oneself out in a relationship recognized by civil law, and not just social reality, is an expressive resource.²⁴⁸ He made this case in 2001 to argue for same-sex marriage, but the notion easily applies to divorce as well. A decision to divorce and an appeal to have that divorce recognized by law is an expression of needs and choices about the continuation of a union with another person and the associated intermingling of finances, property, child rearing, and habitation. Limiting an individual’s expression inside marriage to only those decisions and behaviors that commit to the marriage constrains one’s self-determination. Divorce can be a valid expression of one’s autonomy, decision-making, and desire for a different manner or source of relatedness. Divorce allows people the opportunity to resituate themselves in new relationships or outside of any relationship at all. Additionally, in ways unavailable to them in an intact marriage, those seeking divorce are able to pursue orders for equitable reallocation of property or for support that may alter financial and power dynamics with their spouses in important ways.²⁴⁹

It is not just the ability to divorce that matters for one’s self-determination; freedom from public scrutiny regarding the mode and manner of separation while divorcing has implications for one’s self-determination and mental health as well. Much of divorce reform acknowledges that judges have no business probing into families’ personal issues, because their doing so is beside the point if the couple themselves declared their marriage “dead” and because such probing produces “gut-wrenching pain” and injures families.²⁵⁰ Moreover, such probing is also fated to skew toward normative bias or whimsy, which in turn tend to ignore, silence, or diminish voices of those who fall outside the dominant narrative.²⁵¹ Nothing defeats a sense of autonomy and competence like being told “you might have meant x, y, or z by your words and actions, but we find your interpretation of your own words and actions less valuable than our own interpretation of your words and actions.” Moreover, certain requirements of separation ask families to distort or hide their truth by either rearranging themselves or avoiding certain disclosures, or they incentivize families to misrepresent themselves. Truth-telling, meanwhile, promotes social emotional health. Research suggests that truth-telling strengthens the connection between our prefrontal cortex—our “adult” brain—and our limbic brain—our “child” brain. Truth-telling is literally good for our brains.²⁵²

What if, instead of substituting our judgment about what the end of a marriage looks like or incentivizing distortion to satisfy our judgment, we simply said “okay” when a party said, “I wish to no longer be bound by marriage to this person?” What if our process reflected the reality that when couples are struggling deep in the heart of the matter about their choices—the good ones and the mistakes—they do not need or desire a judicial officer to ask them to wait or organize their life a certain way before deciding to divorce or while undertaking the divorce? What if we could avoid forcing “efficacious resolution of economic issues and custody” to take a back seat to the timeline of divorce by decoupling these issues from the right or opportunity to divorce? We would then be free to conceptualize alternative dispute resolution alternatives that can improve outcomes for the thorny issues of custody and economic issues.²⁵³

C. Prompt Administrative Divorce

This Article proposes that divorces should be administratively and promptly issued upon the filing of a request by an aggrieved party to a marriage; such that, thereafter, issues of support, equitable distribution, and custody can drive the manner and mode of adjudication or alternative dispute resolution. First, one must note that this proposal flips the script on divorce, suggesting that a pronouncement of a divorce can be disaggregated from and precede final resolution of matters of property, custody, and support. Currently, in all states, a divorce starts when a party files a complaint and serves it on the other; after which time the parties enter a “kind of purgatory,” a “pendente lite stage.”²⁵⁴ During this time, the court holds hearings or the parties submit agreements regarding temporary decisions on parenting, support, and use or access to certain marital property (such as homes or cars) while the case is pending. After (in some cases) protracted discovery or (in all cases) protracted waits due to court congestion, matters are calendared and heard in final hearings, or negotiated final agreements receive judicial blessing. The meat of these final hearings and agreements are the minutia and nuance of the same issues that were handled initially and temporarily, namely custody, support, and property.

The embedded notion is that a party cannot be divorced until matters of custody, support, and property are squared away. But why? It is a social and legal myth that parties cannot negotiate and contract regarding support and property or negotiate and mediate about parenting children outside of the bonds of marriage. As a matter of law, it is actually possible, for example, to grant a divorce and table or calendar matters of custody for a final hearing. Socially, we know full well that many children are raised in households by unmarried parents or are raised in and by two separate households.²⁵⁵ Moreover, even in the current regime, the litigation of custody, support, and property issues often persists and survives after the dissolution of marriage via motions to modify or motions to compel.²⁵⁶

In addition to disaggregating the divorce itself from resolution of corollary matters, this proposal conflates or includes the concept of shortening waiting periods with freedom from requirements during that waiting period. Any proposal to promptly issue divorces and do away with separate and apart requirements can find comfort in the fact that plenty of states do not have them, and the world appears to have kept on spinning. States such as Alaska, Nevada, New Hampshire, Wyoming, South Dakota, and Idaho have short waiting periods for divorce.²⁵⁷ These same states do not have involved requirements for demonstrating separation in order to qualify for the divorce.²⁵⁸ When one cross-checks “quickie” divorce states against other states, one is struck by the fact that nothing is striking. To begin, aside from Nevada, which has a distinct explanation for being an anomaly,²⁵⁹ divorce rates in these other low-bar states are on par with other states, and even Nevada is not alone in being a high divorce rate state.²⁶⁰ But, then again, separation periods and normative standards for periods of separation are about creating predictability for children and economic and psychological security for families. So then, surely the citizens of Alaska, Nevada, New Hampshire, Wyoming, South Dakota, and Idaho must be floundering in a state of civic and familial chaos. But no. No, they are not: measures of social services consumption, child welfare statistics, school performance data, and so forth are all unremarkable compared to other states with more stringent divorce requirements.²⁶¹

The question then becomes what, if anything, should the requirements be for the administrative pleadings and requests for divorce. Here again, we see examples of jurisdictions offering opportunities for “summary dissolution,” “streamlined dissolution,” or “simplified dissolution” to offer parties efficient, less public, and more cost-effective dissolution of their marriage.²⁶² These processes still require judicial approval, but they do not contemplate a trial and instead invite parties to craft their own agreements. States allowing these dissolutions may impose limits on assets, requests for spousal support, or length of marriage, or they may be limited to cases in which there are no children. France has taken this approach one step further and allowed matters that can be handled summarily to move forward without judicial involvement at all.²⁶³ The same is true in Australia, where uncontested divorces with no children can be obtained by administrative procedure through the mail.²⁶⁴ Denmark similarly allows for an administrative procedure in uncontested cases.²⁶⁵

An expeditious administrative process supports the goals of creating a system that respects the families utilizing it, as well as the goal of creating predictability and security for families. To begin, an administrative process that separates requests to divorce from requests for the court’s assistance with property, support, and custody better reflects several important realities beleaguering the family courts and harming the families who are forced to engage with the courts. Family courts are overcrowded and inefficient.²⁶⁶ Family courts also deal with vast numbers of pro se litigants.²⁶⁷ As compared to represented parties, pro se litigants are more likely to have substantive or procedural missteps such as missed deadlines or deficient filings. As a family court judge and two practitioners put it,

This perfect storm created by a void of knowledge of procedural, substantive, and evidentiary law on the part of individuals stuck in a system to deal with unhappy, very personal, and, at times, highly conflicted matters results in an unnecessary overuse of judicial resources and a growth of the backlog in the court’s docket.²⁶⁸

Under this new proposal, certain divorce scenarios would come off the court docket all together, clearing room for those matters that require more time and attention. Other matters could come before the court, not automatically upon the filing of a divorce, but rather when the families’ own needs and energies direct them to file. Some parties may feel they need court intervention to understand, negotiate, and contract around their property interests, support needs, or child custody issues; some parties may not.²⁶⁹ Some parties may choose to merge and incorporate settlement agreements into court orders, while other parties may not.²⁷⁰

Courts and legislatures recognize that the more process a law requires or inspires, the greater the delay and that the greater the delay, the greater the agony.²⁷¹ Social science literature—and if we are honest with ourselves, our own lived experiences—buttress this conclusion. People do not like to wait; and waiting for uncertain time periods, for an uncertain outcome, is the worst kind of waiting.²⁷² People become agitated and irrational under these conditions; “[w]aiting in ignorance creates a feeling of powerlessness, which frequently results in visible irritation and rudeness.”²⁷³ The psychology of waiting is often studied in connection with customers waiting in line, so one must consider how these same psychological tendencies toward frustration and anger will be amplified when the matter at hand—a divorce—is more socially emotionally fraught than a trip to a customer service center. Consider, for example, patients asked to wait for medical procedures due to COVID-19 protocols and barriers. Here, patients showed marked symptoms of mental distress as they waited to undergo their procedures.²⁷⁴ To add insult to injury, the psychic toll did not just cause suffering in the patient, but it also adversely impacted patients’ trust in the health care system.²⁷⁵ As it turns out, such findings do and have translated onto the legal system generally and family courts specifically. Delay upon delay with uncertainty about the divorce risks exacerbating the social-emotional stress a family is under and threatens to diminish litigants’ ability to work together and confidence in the legal system.²⁷⁶

Simplifying and truncating the line between wanting a divorce, filing for a divorce, and getting a divorce has advantages for almost every type of couple who the family court sees. The law lacks teeth on the issue of divorce itself; so much of divorce law is actually about regulating or apportioning property and money among family members to support the individuals and bimodal family constellations arising out of breakdowns in the married, nuclear family.²⁷⁷ Some couples struggle financially to create separate households or face contentious divorces. Without the benefit of advocacy and assistance, separation periods are rarely productive and simply impede the couples’ full opportunity to use the resources of the court and the force of the law to plan and prepare for a new future. A prompt administrative divorce clears the way for these couples to immediately seek final resolution for the matters that will help them prepare financially and logistically for their next chapter. In contrast, some resourced and represented couples are able to negotiate agreements about property, support, and child support. These couples do not need active involvement of the court to broker agreements, but they need the court’s prompt attention to finalize them. For these resourced couples, the murkiness created by periods of separation prior to divorce can create confusion around what holdings or debts are marital property.²⁷⁸ Clearly delineating the moment of divorce from the period of negotiation and possible adjudication regarding property and support interests clarifies which choices and conduct were “marital” and which were not.²⁷⁹ Still other couples have “simple” cases where they own little to no property and have no children. Despite shifts in divorce law leaving the courts with little to no authority over the matter of divorce itself, these couples must queue up, adding to the clogged docket, missing work for interim court appearances, and waiting—sometimes years—for a pronouncement of what they themselves have known all along: their marriage is over.²⁸⁰ The current divorce system not only creates all these inefficiencies and delays, thus forestalling family problem-solving, but it also decentralizes the problem-solving.

Court filings automatically trigger the involvement of bureaucratic authority, which can be demoralizing or unnecessary for many families. Administrative trends reflect a jurisprudential reality that divorces seem less like a “legal matter in need of adjudication and more a private matter subject to administrative regulation.”²⁸¹ Administrative divorce trends, meanwhile, also mirror the parallel practice of alternative dispute resolution (“ADR”) trends. Many states, even those without summary dissolutions on the books, allow families to use ADR such as mediation to settle their disputes before seeking judicial approval. Such practices promote parties’ self-determination over personal matters and their everyday lives.²⁸² One argument is that court processes and the role of judges are often about rewarding and punishing or incentivizing and barring. These frames contemplate one winner and one loser. The frames are not comfortable or appropriate for people trying to share property equitably or contemplate some sort of partnership to raise children.²⁸³ Others point out that the process of re-conceptualizing family relationships in a new family system is slow, iterative, deeply personal, and ideally collaborative. The divorce process is not currently designed with the space to negotiate, grieve, try, fail, and try again. A system that reduces dockets and narrows issues before the tribunal might better foster opportunity to design systems and processes more respectful of, and responsive to, families’ needs.

CONCLUSION

The origin story of separate and apart requirements is a legacy of the bizarre and lasting stalemate between what people were doing inside unhappy or unhealthy marriages and the technical lawful authority to divorce.²⁸⁴ Surely now we can begin to narrow that divide between law and society, because after all, the train has left the proverbial station.

About half of all Americans over the age of 18 are married, but an increasing number of them have been married before.Over the past ten years, the number of cohabiting adults over the age of 50 has increased dramatically, from 2.3 to 4 million. More than one-quarter of married men in their seventies report having had an intimate relationship with someone other than their spouse. The grey divorce rate—the divorce rate for those age 50 and older—doubled from 1990–2015, although it remains significantly lower than the rate for those under 50. Almost a third of Americans (30%) have a step- or a half-sibling. . . . As many as 5% of Americans are polyamorous, having serious intimate relationships with more than one person at the same time. Approximately 40% of children are born to unmarried mothers, but more than a third of those mothers are cohabiting at the time they give birth.²⁸⁵

“[S]tatistics have normative as well as empirical implications.”²⁸⁶ One can see these implications playing out on our TV screens, in our neighborhoods, our schools, our work, and our social spaces. Families increasingly “do” family all sorts of ways—ways that suggest that family is a beautifully nuanced thing. Bound up in this, is the reality that marriage must also be a beautifully complicated thing—or at least something that is about more than sex and meals. It is illogical to hover the magnifying glass on these issues when a party seeks to end their marriage. Moreover, this piece suggests it is acutely painful and harmful to certain populations and constitutionally precarious to do so. A simple conclusion flows from all of this: these requirements do not make sense. They require performance and permission that is neither necessary in life nor should be acceptable in law.

96 S. Cal. L. Rev. 77

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Claire P. Donohue*

* Assistant Clinical Professor, Boston College Law School, Director of Interdisciplinary Practice and Family Law Professor. With thanks to the members of the Boston College Summer Writers’ Workshop for their comments on this project; and thanks also to Laura Robinson for her tireless enthusiasm, even for my most tedious asks; and to Karen Breda, Boston College Law School Librarian and Lecture, who I am convinced, could find anything anyone ever asked for.

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Justice Breyer’s Friendly Legacy for Environmental Law

April 2023April 2024Richard J. Lazarus*

Environmentalists did not cheer President Bill Clinton’s decision in May 1994 to nominate then-First Circuit Judge Stephen Breyer to fill Justice Harry Blackmun’s seat on the Supreme Court. Just the opposite. Many instead expressed serious concerns about Breyer’s impact on environmental law were he to be confirmed, and openly questioned whether a Justice Breyer might be “hazardous to our health.” This Article considers whether, in light of Justice Breyer’s actual record over the past twenty-seven years on the Court, environmentalist concerns about him at the time of his nomination were realized. The Article concludes they were not. Justice Breyer was instead friendly to environmental protection concerns even if he fell shy of being an unqualified friend on the bench. In almost all of the most important environmental cases of the past twenty-seven years, he was a reliable vote joining the majority in the big cases environmentalists won—often providing the critical fifth vote. And although Justice Breyer on a handful of occasions was less a reliable vote in dissent with liberal justices sounding the alarm in the big cases environmentalists lost, in none of those cases was his vote dispositive of the outcome. For this reason, although environmentalist concerns at the time of Justice Breyer’s nomination were reasonable, and had the potential to cause the very problems environmentalists identified, they proved largely insignificant in actual application. Finally, Justice Breyer’s actual record on the Court suggests the wisdom of rethinking what it means to be a “dream” justice for environmental law. Most simply put, the best Justice for environmental law may not be a Justice who always votes in favor of the outcome favored by environmentalists in individual cases.

INTRODUCTION

Environmentalists did not cheer President Bill Clinton’s decision in May 1994 to nominate then-First Circuit Judge Stephen Breyer to fill Justice Harry Blackmun’s seat on the Supreme Court. Just the opposite. While Justice Breyer had his defenders, environmentalists mostly expressed serious concerns about Justice Breyer’s impact on environmental law were he to be confirmed. And some denounced him on that ground, worrying that he might be “hazardous to our health”¹—a concern strikingly similar to that which had been expressed a year earlier by attorneys advising President Clinton when the President had first considered Justice Breyer for a vacancy on the Court.² Yet, ironically, although those concerns had abruptly derailed Justice Breyer’s nomination only hours before its expected announcement in 1993, they became a major reason why the President chose Justice Breyer over the President’s first choice for the nomination in 1994. Senate Republican leaders threatened to wage an all-out campaign against the President’s first choice, Secretary of the Interior Bruce Babbitt, because of his reputation as an unabashed environmentalist.³ And that same Republican leadership promised smooth sailing if Justice Breyer were instead the nominee because Justice Breyer had expressed concern about unduly costly environmental protection requirements and therefore was perceived, unlike Babbitt, as pro-business.⁴

Justice Breyer’s recent retirement from the Court after twenty-eight years⁵ provides an opportune moment to reflect on his legacy for environmental law based on his actual record—as reflected in the votes he has cast and the opinions he has written. More specifically, this Article considers whether Justice Breyer’s record on the Court confirms or contradicts the expectations of his supporters and detractors more than a quarter century ago.

To that end, the Article is divided into three Parts. Part I reviews the events surrounding Justice Breyer’s nomination and the role that environmental law then played in securing both his nomination and confirmation. Part I includes discussion of previously undisclosed information long buried in the official archival papers of President Clinton related to the decision not to nominate Justice Breyer in 1993. Part II reviews Justice Breyer’s record in environmental cases before the Court, with special emphasis on opinions he wrote in those cases, whether majority, concurring, or dissenting.

Part III considers whether, in light of Justice Breyer’s actual record on the Court, environmentalist concerns—shared by some advising the White House—about Justice Breyer were realized. Although those concerns were understandable and pertained to the very problems that White House advisors and environmentalists identified in 1993 and 1994, they have proven largely insignificant in actual application. In the vast majority of environmental law cases heard by the Court during Justice Breyer’s tenure to date, Justice Breyer has both displayed heightened sensitivity to environmental protection concerns and voted in a manner sympathetic to environmentalists, without expressing any concern about environmental protection requirements being too demanding. And, in those relatively few cases in which his concern with unduly stringent environmental law was relevant to a legal issue’s resolution, Justice Breyer’s views made no difference to the outcome of the case, nor has he written an opinion of the Court in any of those cases, instead at most writing a separate concurring opinion of no legal effect. In only one relatively unimportant case that defied application of liberal or conservative ideology did he ever supply the decisive fifth vote against environmentalists,⁶ likely because the Court has been consistently dominated by at least five more conservative Justices ever since he joined the bench.

I. WHITE HOUSE ADVISOR CONCERNS AND ENVIRONMENTALIST OPPOSITION TO JUSTICE BREYER’S NOMINATION

President Clinton’s decision to nominate then–First Circuit Judge Breyer to fill Justice Harry Blackmun’s seat in May 1994 was remarkable because only one year earlier, the President had decided at the last minute not to nominate Judge Breyer to fill Justice Byron White’s seat on the Court. In June 1993, Judge Breyer had been the expected nominee, bolstered by the strong support of Massachusetts Senator Ted Kennedy.⁷ But in what was dubbed by the New York Times as “A Surprise Choice,” Clinton instead tapped D.C. Circuit Judge Ruth Bader Ginsburg to fill the opening.⁸

According to press accounts at that time, Judge Breyer’s nomination stumbled in the final day and hours because of reports that he had failed to pay Social Security taxes on the wages of a part-time housekeeper.⁹ Judge Breyer’s problem was an especially sensitive one for the White House because the President had recently suffered repeated embarrassment when his two successive choices to serve as the first female Attorney General were abandoned because of problems with their domestic household employees: the first had reportedly failed to pay taxes for a childcare provider and the other had failed to inform the White House that she had once hired an illegal alien as a household employee (although, in her defense, that hiring was not itself unlawful when it occurred).¹⁰ And, as much as the Clinton White House sought to distinguish Judge Breyer’s circumstances, the specter of excusing conduct from a man that resembled conduct that had only recently derailed two female cabinet picks apparently cratered Judge Breyer’s nomination.¹¹ Judge Breyer also reportedly interviewed poorly with the President not long before Ginsburg was announced—which Judge Breyer’s supporters blamed on painkillers he was taking while recovering from a serious bicycle accident for which he had recently been hospitalized.¹²

But what was not reported at the time is that White House concerns about Judge Breyer were also substantive in nature.¹³ In early June 1993, White House Counsel Bernie Nussbaum asked Joel Klein, a highly skilled and trusted D.C. private sector attorney, to conduct a confidential review of both Judges Ginsburg and Breyer to assist the President’s decision. Over the course of just a few days, Klein orchestrated detailed reviews of the record of both judges by forty lawyers at six law firms. And Klein provided Nussbaum a comparative analysis of the two judges in memos dated June 10 and June 11¹⁴—precisely the time period when President Clinton pivoted away from Judge Breyer in favor of Judge Ginsburg, whose Senate confirmation Klein then championed in his new role as Deputy White House Counsel.¹⁵

The reviews were devastating to Judge Breyer’s prospects. As summarized by Klein to Nussbaum, “Judge Ginsburg more closely meets the President’s articulated standards for the Supreme Court than does Judge Breyer.”¹⁶ Her “work has more of the humanity that the President highly values and fewer of the negative aspects that will cause concern among some constituencies.”¹⁷ “She has written more, and consistently, about the human condition and the plight of the disadvantaged, and she has done so with obvious conviction and commitment.”¹⁸ In a draft memo to Nussbaum on Judge Breyer, while describing Judge Breyer as “a brilliant jurist” with “the potential to rank with the most distinguished judges in our past,”¹⁹ Klein also described the “dispassionate” nature of his writing and how “he does not wear his heart on his sleeve.”²⁰ Klein added that Judge Breyer’s views on government regulation such as environmental risk regulation were “conservative” and in a recent book he authored on risk regulation, he had proposed “a government-wide cost/benefit approach” akin to what Republicans then favored and to those regulatory reforms supported by the prior presidential administration.²¹

Those attorneys who reviewed Judge Breyer’s writings for Klein stressed Breyer’s apparent lack of sensitivity to the human stakes of economic regulation and environmental protection requirements. In one memo dated June 8, and sent to Klein on June 9, two reviewers described the “bloodlessness” evidenced by Judge Breyer’s penchant for “analyz[ing] every problem he is considering within a framework [so] bounded by economic theory or rules of logic that the result seems devoid of emotion and even . . . humanity.”²² The reviewers harshly contrasted Breyer’s writings with those of Bruce Babbitt—the candidate favored by environmentalists who was then serving as Secretary of the Interior—which were described as “lucid, exuberant and wide-ranging.”²³ A second memo, prepared on June 7, similarly described Judge Breyer as a “cold fish,” “bring[ing] no passion or insight” and as so “lack[ing] of vigor in his jurisprudence that one suspects he does not have (or refuses to utilize) any innate sense of justice.”²⁴ The memo concluded that Judge Breyer was “certainly a judicial conservative” and “[c]onservatives will be thrilled if Judge Breyer is appointed. . . . Nothing in Judge Breyer’s opinions suggests that he would be a great Supreme Court Justice.”²⁵ “In no way is he a ‘man of the people,’ as some other candidates have been.”²⁶

These concerns had a clear impact. Then-Associate White House Counsel Ron Klain made an explicit reference to the concern in his June 11, 1993, memorandum to White House Counsel that listed the questions that the President could ask Judge Breyer in their interview.²⁷ One question asked Judge Breyer to respond to the claim that his “writings suggest an over-emphasis on economics: putting a cost on lives, for example.”²⁸ Another question more pointedly asked him to “respond to the criticism that his opinions are ‘bloodless.’ ”²⁹ President Clinton’s interview with Judge Breyer that same day did not go well,³⁰ and a few hours later, Klein called Judge Ginsburg to let her know she should be available for a meeting with President Clinton. She met with the President two days later, Sunday, June 13, and the President called her later that same night to offer her the job.³¹

What resurrected Judge Breyer’s prospects a year later and secured President Clinton’s nomination was the President’s desire to avoid a Senate confirmation battle. Clinton’s apparent first choice in 1994, as it had first been in 1993, was Bruce Babbitt.³² Liberals in the Democratic Party strongly endorsed Babbitt, as did environmentalists, in 1994 because of his progressive views and his championing of environmental protection causes both as Governor of Arizona and Interior Secretary.³³ Indeed, environmentalists had a year earlier been so enthusiastic about Babbitt that some had actually opposed his nomination to the Court to replace Justice White because they did not want to lose his leadership at Interior—in retrospect a decision they may well regret.³⁴

But it was that same environmentalist enthusiasm for Babbitt that ended up sinking his possible nomination to replace Justice Blackmun in 1994. When the White House let leak to the news media that the President had settled on Babbitt and would announce his nomination shortly,³⁵ Republican Senate leadership preemptively announced that they would vigorously oppose Babbitt—because of his reputation as an ardent environmentalist.³⁶ Simultaneously, the Republican Senate minority leader, Senator Bob Dole, predicted “smooth sailing” were President Clinton to nominate Judge Breyer instead.³⁷ The President blinked, and Judge Breyer became the nominee. Judge Breyer also overcame Clinton’s earlier doubts, upon meeting him a summer before, that he lacked energy, by literally taking a run with the President along the Capital Mall to establish his physical stamina for the job.³⁸ The White House’s concerns of a year earlier, regarding his lack of humanity and affinity for regulatory reform, apparently disappeared—these qualities had been transformed from a political liability into a political virtue.

Most liberal Democrats in Congress muted their displeasure with the Judge Breyer choice, presumably to avoid breaking publicly with their own President, following twelve years of Republican administrations. But some of the more progressive Democrats and hardcore environmentalists did not shy away from sharply criticizing the nominee, revealing their obvious frustration that the President had let pass a potentially historic opportunity to have an acclaimed environmentalist join the High Court.³⁹

The focus of their criticism was a common theme evident in Judge Breyer’s scholarship, work experience, and judicial opinions in favor of reform of excessively burdensome regulations. These were the same concerns that advisors to the White House had stressed in 1993. As counsel to the Senate Judiciary Committee, on leave from Harvard Law School in the late 1970s, Breyer had worked effectively in a bipartisan fashion with both Democrats and Republicans in support of legislation that deregulated the airline industry. He favored such deregulation on the ground that regulation imposed unnecessary costs on industry and impeded the operation of free market forces that could on their own lead to better products and services for lower prices than burdensome government regulation might achieve.⁴⁰

Indeed, Breyer had so impressed Senate Republicans with his support of regulatory reform that they endorsed President Carter’s nomination of Breyer to serve on the First Circuit even though that nomination occurred on November 13, 1980—a time when a nomination for a life-tenured position should have been dead on arrival in Congress. After all, the date of the nomination was only nine days after Carter had lost the Presidency to Ronald Reagan and the Democrats had lost the Senate to the Republicans. Confirming Breyer to the First Circuit during a congressional lame duck session would accordingly mean the elimination of an important federal appellate court vacancy that would otherwise have been available for a Republican President and Republican Senate to fill a couple months later. Yet, because of Senator Kennedy’s clout and significant Republican leadership support for Breyer, rooted in his work on regulatory reform as a Senate staffer, Breyer was confirmed as a federal appellate judge less than a month later in December 1980.⁴¹

As an appellate judge, moreover, Judge Breyer continued to be a proponent of regulatory reform, including for environmental protection rules. In both his judicial rulings and his extra-judicial writings, Judge Breyer expressed concern about the possible harm caused by irrational environmental regulations with compliance costs that far exceeded their benefits.

One of Judge Breyer’s most prominent opinions for the First Circuit was United States v. Ottati & Goss, in which the court upheld a trial court ruling that had rejected the proposed remedy by the Environmental Protection Agency (“EPA”) to clean up a hazardous waste site on the ground that the public health benefits did not warrant the high cleanup costs.⁴² The ruling was remarkable at the time because it was so unusual for a court not to defer to EPA’s judgment about the extent of cleanup needed to reduce risks from hazardous wastes. Although the force of Judge Breyer’s opinion for the First Circuit was a bit muted because the appellate court was simply affirming the trial court’s ruling against EPA—concluding that “[w]e cannot say that the district court was ‘clearly erroneous’ or unreasonable”⁴³—his opinion seemed to join the lower court in ridiculing EPA’s decision to base its cleanup remedy on the proposition that a child would eat contaminated soil over a sustained period of time.⁴⁴ And, while declining to impose sanctions on EPA, Judge Breyer’s opinion gratuitously took the occasion to “wonder about the government’s priorities in the face of other, apparently more serious, environmental demands for ‘cleanup’ time and effort.”⁴⁵

Judge Breyer, moreover, did far more than just author the opinion. Outside of his judicial role, he trumpeted its policy themes regarding how environmental risks should be regulated. He used the Ottati & Goss case as the basis for his 1992 Oliver Wendell Holmes Lectures at Harvard Law School, which he then published as a book entitled Breaking the Vicious Circle: Toward Effective Risk Regulation the following year.⁴⁶ In that book, Judge Breyer identified why and how government regulation of risks, including environmental risks, had a tendency to require excessive expenditures to reduce the “last ten percent” of risks,⁴⁷ here too referring to the facts of the Ottati & Goss case as an illustrative example.⁴⁸ Judge Breyer more broadly proffered the question whether determining the acceptable level of environmental risk was best answered by a political process vulnerable to accommodating the public’s tendency to overreact to environmental risks. And, answering his own question, Judge Breyer concluded that such public policy questions were better answered by expert, technical agencies removed from the pressure of politics and popular opinion.⁴⁹

What simultaneously made Judge Breyer’s book so popular with the Republican Party and regulated business and so unpopular with Democratic Party progressives and environmentalists was its embrace of the rhetoric of regulatory reform. Regulatory reform had in fact been an express and significant part of the agenda of the administration of President Jimmy Carter and EPA when Judge Breyer first endorsed it in his work at the Senate in 1980.⁵⁰ Regulatory reform then was a more benign political issue, and it enjoyed support on both sides of the political aisle. In March 1978, President Carter issued an executive order, developed in part by EPA leadership, that sought to “reform” the process for developing “significant regulations” in order to eliminate regulations that “impose unnecessary burdens on the economy.”⁵¹ Political appointees at EPA during the Carter administration favored opportunities to employ economic analysis to ensure that the Agency was directing its limited resources to the most serious environmental issues and taking advantage of market incentives to reduce pollution in general.⁵² The Reagan administration announced from the outset that it would similarly champion a regulatory reform agenda that took more account of the costs of environmental protection.⁵³

But by 1993, the term “regulatory reform” had become a highly partisan term, tainted by efforts during three Republican administrations to cut back on environmental protections under the guise of cost-benefit analysis and economic efficiency. Reagan administration officials at the Office of Management and Budget and EPA used the rhetoric of regulatory reform and cost-benefit analysis but in a wholly skewed fashion to justify deregulation based on exaggerated estimates of regulatory costs coupled with underassessments of the benefits of environmental protection.⁵⁴ Environmentalists vehemently opposed those efforts.⁵⁵

Even prominent supporters of President Reagan openly commented at the time that his environmental appointees had so bungled the regulatory reform effort that they had undermined it. The President’s own chair of the Council of Economic Advisors, a stalwart champion of regulatory reform, publicly declared: “We will be lucky if by January 1985, we are back where we were 1981 in terms of the public’s attitude toward” regulatory reform.⁵⁶

That is why Judge Breyer’s promotion of regulatory reform rhetoric in his 1993 book set off alarm bells throughout the environmental community, and to those reviewing his writings for the White House Counsel in 1993, to a degree that would not have happened in the late 1970s during the Carter administration. But, in light of how much the political debate had shifted since 1980 when Breyer was working on deregulation on the Senate Judiciary Committee, his 1993 publication was either politically tone-deaf or deliberately designed to position Judge Breyer for promotion as a justice with bipartisan support. With Judge Breyer, the former is a distinct possibility. However, whatever the actual motivation, the publication of Judge Breyer’s book coincided with the openings of two seats on the Supreme Court in successive years and played a central role in whether he would be nominated and confirmed.

Republicans and the business community became his cheerleaders while environmentalists expressed serious concerns. The latter’s criticism could be scathing. “[I]t is clear that [Judge Breyer] is no fan of health and environmental regulation.”⁵⁷ If he “had been a member of Congress, he would not have supported many of the current health and environmental statutes.”⁵⁸ They accused him of blithely accepting the economic
analysis of right-wing think tanks to belittle the risks addressed by government regulation,⁵⁹ minimizing “the risks posed by toxic chemicals
in the environment,”⁶⁰ “reject[ing] a policy of erring on the side of safety . . . because it leads society to spend too many dollars chasing after what he believes to be trivial risks,”⁶¹ failing to recognize the limits of cost-benefit analysis,⁶² and of “even accept[ing] the highly dubious ‘richer is safer’ argument against stringent regulation of activities that pose health and safety regulations.”⁶³

Consumer advocate Ralph Nader pulled no punches in testifying against Judge Breyer’s confirmation. Nader described Judge Breyer as an “extremist.”⁶⁴ According to Nader, Judge Breyer was “ridden with fantasy” and “insensitive on the ground to the health and safety needs of the American people.”⁶⁵ Judge Breyer, Nader concluded, “appears to seriously question many health and safety laws that he will be expected to interpret impartially as a Justice of the Supreme Court.”⁶⁶

There were, of course, supporters too. The renowned scholar Professor Cass Sunstein, a close professional colleague of Judge Breyer, casebook co-author, and the leading legal scholar in support of the central role of cost-benefit analysis for rational regulation, testified in favor of Judge Breyer’s nomination.⁶⁷ More moderate legal academics contended that Judge Breyer would be a “friend” to environmental law and that, even though “in sheer numbers, his rulings against environmental groups probably exceed his rulings in their favor”—only because they lose most of their cases—the judge “ha[d] shown a sensitivity and appreciation for environmental issues.”⁶⁸

Only one environmental public interest organization affirmatively supported Judge Breyer’s nomination—the Conservation Law Foundation, headquartered in Massachusetts—perhaps because of his favorable ruling in a case they had brought to clean up Boston Harbor, because of geographic allegiance to Judge Breyer, or perhaps even more likely, because of institutional loyalty to his principal political sponsor, Massachusetts Senator Ted Kennedy.⁶⁹ But even that organization’s letter was noticeably understated. It was only two paragraphs long and addressed merely “To Whom It May Concern.”⁷⁰ The most the organization’s director could muster in his opening sentence was that “Stephen Breyer has fashioned a remarkable record on environmental matters that have come before the First Circuit Court of Appeals.”⁷¹ The word “remarkable,” is, of course, itself remarkable for what it does not say in a letter that purports to be an endorsement.

During his own Senate testimony, Judge Breyer plainly sought to assuage concerns by walking back from the deregulatory import of some of his writings. While conservative Republican Senator Strom Thurmond stressed how he “was pleased to learn of [Judge Breyer’s] concerns with excessive regulation,”⁷² Judge Breyer asserted that the “role of economics” was necessarily “much more limited” in application to “health, safety, and the environment . . . because, there, no one would think that economics is going to tell you how [much] you ought to spend helping the life of another person.”⁷³ He also characterized the book as “a plea . . . not to cut back by 1 penny this Nation’s commitment to health, safety, and the environment” but only to “reorganize[e] that commitment” to ensure that money was spent on saving real lives rather than “on the statistical life that might not exist.”⁷⁴

The Senate voted overwhelmingly in favor of Judge Breyer’s confirmation to join the Court.⁷⁵ Eighty-seven senators voted in favor, only nine were opposed, and four did not vote.⁷⁶ And the only votes opposed were a smattering of conservative Senate Republicans.⁷⁷ No liberal Democrat opposition challenged their own President’s nominee notwithstanding any misgivings they might have harbored.78

II. JUSTICE BREYER’S RECORD IN ENVIRONMENTAL LAW CASES BEFORE THE COURT

Justice Breyer’s environmental law record consists of his votes in individual cases and his written opinions in a subset of those cases. During the past twenty-eight years on the Supreme Court, Justice Breyer has written more than five hundred opinions: (1) about two hundred opinions for the Court; (2) approximately one hundred concurring opinions; (3) just shy of two hundred dissenting opinions; and (4) approximately thirty opinions dissenting and concurring in part.⁷⁹

The Justice has written relatively few opinions in environmental cases, mostly for the straightforward reason that the Court does not decide that many environmental cases. Environmental law is, at least numerically, a relatively small part of the Court’s docket so long as one defines “environmental law” more narrowly as I am doing for the purposes of this inquiry.

My narrower approach considers only those cases that arise in a fact pattern in which environmental protection concerns are at stake and those stakes are not wholly incidental to the legal issue raised. That definition sweeps in both cases involving the construction and application of classic environmental laws like the National Environmental Policy Act⁸⁰ as well as those cases involving general cross-cutting legal issues such as the scope of congressional commerce authority in a case where environmental protection is at stake. A broader, and perfectly fair contrary approach would be to consider all cases that raise legal issues that, although not arising in an environmental protection setting in the case then before the Court, are likely to have significant implications in future cases that do.⁸¹ Consistent, however, with the author’s belief that there is a discernible “environmental” dimension to environmental law that is important for judges (and Justices) to consider,⁸² this Article relies on the narrower definition instead.

Based on that narrower definition, I have identified sixty-three “environmental law cases” decided by the Court during Justice Breyer’s tenure to date, in which he participated in sixty-one due to his recusal in two cases in which his brother, also a federal judge, participated in the case in the lower courts. This subset of cases fulfilled two conditions: (1) each case raised legal issues in the environmental protection context; and (2) that context was not wholly incidental to the legal issue being considered by the Court.⁸³ For instance, I excluded from my sample a case like Alaska v. United States,⁸⁴ a 2005 original action case in which the State of Alaska and the United States were disputing ownership over certain submerged lands in Glacier Bay. I also excluded the Court’s recent decision in BP P.L.C. v. Mayor of Baltimore,⁸⁵ concerning the scope of judicial review of a district court ruling not to allow removal of a state court case to federal court. In neither of those cases, or those like them, do the environmental stakes play any non-incidental role in the Court’s resolution of the legal issue to be decided.⁸⁶ But I included cases like Article III standing and regulatory takings cases because, as I have elaborated in previous scholarship,⁸⁷ the environmental dimension of those cases should bear on the application of the relevant legal standards even if, as described below, individual Justices and sometimes a majority of the Justices too often fail to grasp its relevance.

A. Justice Breyer’s Votes

In 2000, I published an article that tried to develop a rough quantitative basis for comparing how individual Justices voted in environmental law cases and for assessing whether certain Justices and the Court as a whole were more or less responsive to the need for environmental protection. The article argued more broadly in support of the thesis that there was a uniquely “environmental” dimension to environmental law relevant to judicial decision making—for instance, how such concerns might provide a proper basis for rethinking what constitutes a “concrete injury” for Article III standing purposes, a “property right” in natural resources for regulatory takings purposes, an “intelligible principle” for nondelegation doctrine purposes, an “economic activity” in Commerce Clause analysis, or the degree of judicial deference owed a federal agency in both technical assessments and statutory interpretations.⁸⁸ While concluding that the Court overall had displayed “apparent apathy or even antipathy towards environmental law,”⁸⁹ I concluded that some individual Justices had shown more sensitivity than others to how environmental protection concerns could be relevant to how the legal issues before the Court should best be decided.⁹⁰

My 2000 analysis relied on a scoring system somewhat analogous to that employed by the League of Conservation Voters in scoring members of Congress on environmental matters,⁹¹ but now applied to each Justice. A Justice was awarded one point for each outcome that I classified as “pro-environmental protection,” resulting in each Justice receiving an “EP score,” based on the percentage of pro-environmental votes the Justice cast out of those in the sample of environmental cases in which that Justice participated. Although nominally quantitative in its ultimate yield, I freely admitted at the time the “inevitabl[e] arbitrariness and sometimes downright foolishness in attempting any such ‘pro’ or ‘anti’ policy assignments to Supreme Court rulings, especially assignments that purport to be binary in nature.” ⁹²

The problems are obvious. First, I defined as “pro-environmental” the legal position favored by environmentalists in each case. An environmental advocate, however, trying to win a particular case may in fact be making an argument that leads to a win in that case but to losses in other future environmental cases. For instance, the advocate may be arguing against deferring to an expert agency’s judgment because, in the case before the Justices, an argument against such deference may be needed to secure a win. But if the advocate prevails in that case, the precedent established may cause environmentalists in the future to lose far more than they win if it turns out that judicial deference to agency expertise is more advantageous to environmental protection concerns over the longer term.

Second, the legal position favored by environmentalists in a particular case may be very weak on the merits and warrant rejection. There is no necessary correlation between a legal argument favoring environmental protection and its being a meritorious argument. Not every argument in favor of environmental protection is necessarily a strong legal argument that a judge or Justice should accept.

Indeed, there is good reason to worry that the Justices tend to hear cases in which the legal arguments favoring environmental protection are disproportionately weaker. As I have detailed elsewhere,⁹³ the Court’s decision-making at the jurisdictional stage for most of the past fifty years that define the modern environmental law era has been skewed against environmentalists. The vast majority of the cases in which the Court has granted review are cases in which the position favored by environmentalists prevailed in the courts below. The Court has taken relatively few cases in which the environmentalists lost and then sought the Court’s review, especially those in which the federal government was the prevailing party.⁹⁴ The Court has, in effect, cherry-picked the cases in which environmentalists may have won based on potentially weak arguments while not being similarly ready to review cases in which business interests have won on weak grounds.⁹⁵

I accordingly warned in 2000 against drawing any conclusions based on EP scores apart from those at the two extremes—either very high or very low. Because of the obvious limits to such scoring, only such extreme discrepancies in scores might offer a fair basis for positing that the Justice in question was more or less “likely to rule in favor of or against an environmentally protective outcome because of that outcome’s environmental dimension.”⁹⁶ Those same limits are also a reason not to be surprised when even the highest EP score is not that high—the potential result of a skewed merits docket.

In 2000, Justice Breyer had served on the Court for only six years, and his EP score back then of 66.6 after six years of service was in fact one of the highest of those then on the Court. It far exceeded Justice Scalia’s strikingly low score of 13.8 and the scores of Justices Thomas (20.0) and Kennedy (25.9). But, of course, his score came nowhere close to Justice Douglas’s, who retired from the Court in 1975. An environmentalist hero and former member of the Board of the Sierra Club,⁹⁷ Douglas boasted of a score of 100—apparently no matter the legal issue presented, and perhaps even the relative strength of the competing arguments, Douglas always voted in favor of the outcome supported by environmentalists. Justice Breyer’s EP score of 66.6 was also higher than Justices Brennan (58.3), Marshall 61.3), Blackmun (58.3), Stevens (50.6), Souter (57.1), and Ginsburg (63.6) but not to any significant extent, especially because both Justice Breyer and Ginsburg had both served for far fewer years than Justices Brennan, Marshall, and Stevens and therefore reflected very different cases too. Justices Brennan, Marshall, and Stevens were accordingly being measured based on cases in which it might have been harder on the merits to vote for the side favored by environmentalists.⁹⁸

Two decades later, the number of environmental cases in which Justice Breyer has participated has naturally risen, and interestingly his new EP score (62.3) is essentially the same as before and as the two other Justices with high scores—Sotomayor (64) and Kagan (68). Yet Justice Breyer’s score is sufficiently higher than former Justices Scalia (23.4) and Kennedy (36.0) and current members such as Chief Justice Roberts (20), Justice Thomas (20.6), and Justice Alito (10.5) for their overlapping cases since 1994 to suggest significant differences in the application of law to environmental protection. Justice Alito’s score of 10.5 is astoundingly low. The only cases in which Alito voted on the side supported by environmentalists were in four cases that the Court decided unanimously in their favor.⁹⁹

On the other end of the spectrum, although former Justices Stevens, Souter, and Ginsburg’s scores in 2000 were a tad lower than Justice Breyer’s at that time, all of their scores became higher—Stevens (78.4), Souter (80.6), and Ginsburg (71.9)—than Justice Breyer’s for the cases on which they overlapped while serving on the Court. The gap between Justice Breyer and both Justice Stevens and Souter is not especially significant but arguably enough to suggest a potential difference in their respective willingness to consider how the environmental protection dimension of the case might be relevant to their resolution of the legal issue before the Court and, for Justices Stevens and Souter, in favor of a more protective outcome.¹⁰⁰

Finally, not all environmental cases are, of course, equally important, and the individual votes are more significant in some cases than in others. Some cases are far more significant in terms of their import for environmental protection. Whether EPA has authority to regulate greenhouse gas emissions under the Clean Air Act¹⁰¹ is clearly more important than whether a certain river in Alaska is “public land” for the purposes of the Alaska National Interest Lands Conservation Act.¹⁰² And, because in some of those more important cases the vote was also closely divided, the vote of any one Justice in the majority is outcome-determinative. In that distinct respect, the individual vote of any single Justice in a five-Justice majority is more significant.

Based on this criteria, Justice Breyer’s votes in several cases were especially significant, including Alaska Department of Environmental Conservation v. EPA,¹⁰³ upholding the EPA’s authority to override Alaska’s issuance of a permit under the Clean Air Act; Kelo v. City of New London,¹⁰⁴ sustaining a local government’s exercise of its eminent domain power to condemn residential property to promote commercial development; Massachusetts v. EPA,¹⁰⁵ both upholding environmental-plaintiff standing and rejecting the EPA’s claim that it lacked authority to regulate greenhouse gas emissions under the Clean Air Act; and Murr v. Wisconsin,¹⁰⁶ rejecting a regulatory takings claim against a local environmental restriction on residential development. Those are all, moreover, cases environmentalists won.

By contrast, in only one of the sixty-one environmental law cases in which Justice Breyer participated and environmentalists lost did he provide the critical vote against their position.¹⁰⁷ Justice Breyer voted against the legal outcome favored by environmentalists on twenty-three occasions. In eleven of those cases, the Court ruled unanimously and in three others the vote was eight to one against the environmentalist position. Justice Breyer supplied the sixth and seventh vote for the majority in six cases and dissented in the last two. The only case in which Justice Breyer’s vote was outcome-determinative in a case that environmentalists lost during the past twenty-eight years was the Court’s ruling in June 2021 that the condemnation authority provided by the federal Natural Gas Act to recipients of a Federal Energy Regulatory Commission certificate of public convenience and necessity extended to the right to acquire state-owned property. Interestingly, the five-Justice majority was an unusual one, consisting of Justice Breyer, Chief Justice Roberts, who authored the Court’s opinion, and Justices Alito, Sotomayor, and Kavanaugh.¹⁰⁸

B. Justice Breyer’s Opinions in Environmental Cases

Justice Breyer has written opinions in nineteen environmental cases, which is a disproportionately large number of the sixty-one environmental cases in which he has participated. He has written three majority opinions for the Court,¹⁰⁹ six concurring opinions,¹¹⁰ and ten opinions either dissenting in full or in part.¹¹¹ Although Justice Breyer’s majority opinions are clearly the most significant because they alone announce binding legal precedent, the concurring and dissenting opinions may well be the most personally revealing because they largely resulted from the Justice’s own decision to write an opinion expressing his views rather than, as with majority opinions, an assignment from the senior Justice in the majority to write the official opinion of the Court.¹¹² The majority opinion, however, nonetheless can very much reflect the priorities and values of its author, especially whether the Justice chooses to write the opinion narrowly and tries to attract as many votes as possible or instead drafts the opinion in as sweeping a way as possible consistent with maintaining the bare minimum of five votes required for a majority.¹¹³

1. Justice Breyer’s Majority Opinions

Justice Breyer wrote the majority opinions in Ohio Forestry Association v. Sierra Club,¹¹⁴ Public Lands Council v. Babbitt,¹¹⁵ and County of Maui v. Hawaii Wildlife Fund.¹¹⁶ None is a headliner. Nor is that at all surprising, given that Justice Breyer remained the most junior Justice for his first twelve years on the Court,¹¹⁷ which does not lend itself to especially high-profile opinion assignments from his more senior colleagues. That status is also likely why it was not until 2019 that Chief Justice Roberts assigned Justice Breyer a moderately more important environmental case, County of Maui, though still far short of a blockbuster.

All three Court opinions by Justice Breyer evidence his essential pragmatism, a catchword that the White House promoted when he was nominated and that was accordingly captured in the first New York Times headline announcing his nomination.¹¹⁸ His pragmatism was similarly the theme of favorable testimony provided before Congress by one of his leading academic supporters.¹¹⁹

Ohio Forestry is a classic opinion assigned to a junior Justice. Indeed, it might well be classified as one of the “dogs” of the docket that Term, a term of art the Justices use informally in referring to the kind of case no Justice has any particular interest in writing.¹²⁰ At issue was whether the Sierra Club’s challenge to the Forest Service’s plan for managing the Wayne National Forest in Ohio was justiciable.¹²¹ The Court ruled unanimously that the lawsuit was not ripe for review on the ground that the plan did not itself create any adverse effects of a “strictly legal kind” because it did not purport to authorize any particular action within the forest.¹²² It would be far more sensible, Justice Breyer’s opinion for the Court reasoned, to wait until “the Plan is implemented” which would allow the reviewing court to benefit from “further factual development” of the issues.¹²³

Justice Breyer’s opinion for the Court evidences significant sensitivity to the administrative preferences of the federal agency and to the resources of the federal judiciary. The ruling that the case was not ripe emphasizes how allowing the Sierra Club’s lawsuit to proceed would have “require[d] time-consuming judicial consideration of the details of an elaborate, technically based plan . . . without benefit of the focus that a particular logging proposal could provide.”¹²⁴ There is obvious force to the Court’s concern. But the opinion evidences no comparable consideration of the litigation resource challenges that a public interest organization like Sierra Club faces in trying to oversee a series of site-specific logging proposals over time. What the Court posits as the better approach may well be better in theory, but the challenges of such constant site-specific oversight may in fact be preclusive as a practical matter of any meaningful review of future logging decisions in a national forest.

To that same end, the Court declined to consider a series of other ways that the Forest Plan could immediately harm the Sierra Club and its members. The Court reasoned that Sierra Club’s argument “suffer[ed] from the legally fatal problem that it ma[de] its first appearance [before the] Court in the briefs on the merits.”¹²⁵ That is a fair point, and the Court is not at all out of bounds in strictly applying administrative law exhaustion principles in denying consideration of Sierra Club’s argument. Yet, here too, the ruling ignores the practical limits of a resource-strapped public interest organization maintaining lawsuits in an effort to ensure other unrepresented interests are given voice. An organization like the Sierra Club is hard-pressed to monitor all the site-specific decisions that Forest Service personnel are making on a daily basis throughout a national forest. For this reason, the Club’s only practical recourse may be to persuade a court, as they tried unsuccessfully to accomplish in the Ohio Forestry case, to establish some guidelines for the exercise of Forest Service personnel discretion in the future. And the Court’s lack of sensitivity to that practical limitation contrasts unfavorably with the many ways that the Justices, in my experience both litigating for and against the United States, routinely allow the federal government to raise new arguments and bring to the Court’s attention new facts not considered below, because of the Justices’ awareness of the practical limits in the government’s ability to oversee all of its lower court litigation.

The Court’s providing such practical flexibility to the United States makes great sense. Otherwise, the Court would be making significant pronouncements of law affecting the country based on incomplete arguments and flawed factual assumptions. And, given the thousands of cases the federal government handles in the lower courts, it is exceedingly limited in its ability to ensure that all the best arguments are made in the timeliest manner. The Court, however, could demonstrate some sensitivity to the practical needs of environmental citizen suit litigants too. Justice Breyer’s opinion for the unanimous Court in Ohio Forestry evidences no such awareness of the problem.

Public Lands Council v. Babbitt¹²⁶ was a logical sequel to Ohio Forestry. Again, Chief Justice William Rehnquist assigned the junior Justice Breyer the task of writing an opinion for a unanimous Court in another public lands administrative law case that was likely of little, if any, interest to the Justices. The major difference was that, rather than environmental plaintiffs challenging the Forest Service’s management of a national forest, it was commercial livestock interests challenging the Bureau of Land Management’s administration of grazing permits on public lands.

The basic result was the same. The Court concluded that the federal agency’s regulations governing the issuance of permits were valid under the relevant statutory language and that the commercial plaintiffs’ concerns that they might be harmed in how those regulations were applied in the future were largely premature.¹²⁷ The plaintiffs should instead wait, not unlike the environmental plaintiffs in Ohio Forestry, until the federal agency actually applied the regulations in a specific factual context that harmed them.¹²⁸ While the reasoning is similar is tone, there is still a significant practical difference between the two cases because the commercial party subject to a grazing regulation will naturally always know as soon as such harm happens in the future, which is not true for an environmental organization striving to learn of any possible site-specific decision to allow logging or other potentially harmful activity within a very large area of land such as a national forest.¹²⁹

It took twenty more years for Justice Breyer to write a third opinion for the Court in an environmental case, County of Maui v. Hawaii Wildlife Fund.¹³⁰ And, reflecting his more senior status by that time, the case is far more significant than either Ohio Forestry or Public Lands Council. It is not a mere unanimous toss-off. County of Maui instead presents a rather thorny and important question of statutory interpretation under the Clean Water Act—the type of question that nicely lends itself to Justice Breyer’s proclivity to pragmatic solutions.

The precise legal issue raised in County of Maui concerns how direct or indirect an addition of pollutants into navigable waters must be to constitute a “discharge” of a pollutant into navigable waters requiring a pollution permit under the Clean Water Act.¹³¹ In County of Maui itself, the municipal sewage treatment facility seeking to avoid the permit requirement injected contaminated water into a well located about a half mile from the Pacific Ocean—but the discharge naturally reached the Pacific within a few months through the ground water.¹³² The facility contended that no permit was required unless the pollutants were directly introduced into a navigable water body like the Pacific, meaning that the pollution was exempted from the Clean Water Act permit requirement if it travelled even just a few inches through groundwater or over the surface land before reaching the ocean.¹³³ The EPA agreed that any travel through groundwater placed the addition of pollutants outside the Clean Water Act but contrasted that any travel over surface land would depend on a more contextual analysis of directness.¹³⁴

In rejecting both those limits, Justice Breyer’s opinion for a six-Justice majority held that a Clean Water Act permit was required “when there is a discharge from a point source directly into navigable waters or when there is the functional equivalent of a direct discharge.”¹³⁵ The Court’s ruling displays Justice Breyer’s willingness to embrace a nuanced and accordingly ultimately vague legal test—such as “functional equivalence”—when he believes clearer legal rules fail to account for all the factors that should be relevant in solving a problem. The Court’s “functional equivalence” test rejects any hard-and-fast lines for when an addition of a pollutant is too indirect in favor of a multi-factor inquiry. The opinion candidly acknowledges that there are “too many potentially relevant factors applicable to factually different cases for this Court to use more specific language,”¹³⁶ while both highlighting seven relevant factors and underscoring that “time and distance will be the most important factors in most cases, but not necessarily every case.”¹³⁷ Interestingly, the Chief Justice expressed confusion at oral argument about what Justice Breyer’s “functional equivalence” test meant, when Justice Breyer then raised the possibility of such a test,¹³⁸ but nonetheless subsequently chose Justice Breyer to write the Court’s opinion.

The County of Maui ruling is significant for environmental law. Although the Court nominally vacated the lower court’s judgment favorable to the environmental plaintiffs and remanded the case to that court for reconsideration in light of its ruling, the functional equivalent test amounted to a clear win for the plaintiffs. They will do well under that test, as will environmental plaintiffs in a host of cases across the country who have brought Clean Water Act citizen suits against sources that discharge to navigable waters in a proximate but still indirect water through groundwater and over land. For instance, in the immediate aftermath of the County of Maui ruling, environmentalists targeted leakage of coal ash into navigable water bodies from power plants.¹³⁹ Although County of Maui does not rise to the front page headline status of a case like Friends of the Earth v. Laidlaw,¹⁴⁰ expanding Article III standing for environmental citizen suit plaintiffs, or Massachusetts v EPA,¹⁴¹ establishing the EPA’s authority to regulate greenhouse gases under the Clean Air Act, the case will make a big difference in application to lots of factual circumstances and represents an increasingly rare environmentalist victory as the Court’s own bench becomes more conservative.

2. Justice Breyer’s Concurring Opinions

As described above, Justice Breyer’s separate opinions are even more revealing because, unlike majority opinions that are assigned by the most senior Justice in the majority, one can be more confident that the Justice writing separately is expressing their own views. Justice Breyer wrote six concurring opinions, four of which both address significant legal issues and relate directly to the concerns raised by environmentalists when Justice Breyer was nominated. In each, Justice Breyer expressed views that promoted the very regulatory reform themes antithetical to many environmentalists. His doing so each time in a concurring opinion makes clear that these themes remained very important to him, just as environmentalists had feared at the time of his nomination.

First, in General Electric v. Joiner,¹⁴² decided in 1997, Justice Breyer wrote separately while also joining the majority ruling that upheld the trial court’s decision to exclude from jury consideration expert testimony proffered to demonstrate a link between the plaintiffs’ exposure to polychlorinated biphenyls (“PCBs”) and small-cell lung cancer.¹⁴³ In his separate opinion, Justice Breyer stressed that “modern life, including good health and economic well-being, depends upon the use of artificial or manufactured substances,”¹⁴⁴ presumably alluding to a chemical like PCBs, and the need for judges to use their gatekeeping authority to ensure that tort liability did not effectively “destroy” the “wrong” chemicals.¹⁴⁵ Such a concern with the potential for excessive tort liability to harm businesses was in the late 1990s a major talking point for business leaders seeking to curb large tort liability awards.¹⁴⁶

In Whitman v. American Trucking Associations,¹⁴⁷ decided in 2001, Justice Breyer’s concurring opinion was the one blight on an otherwise glorious day for environmentalists. In Whitman, Justice Scalia authored a unanimous opinion for the Court that repudiated what had been a major attack on the constitutionality of a central part of the Clean Air Act. The Court rejected the D.C. Circuit’s remarkable ruling that the Act violated the nondelegation doctrine by requiring the EPA to promulgate national ambient air quality standards requisite to protect public health without basing its determination of those standards on an intelligible principle such as cost-benefit analysis.¹⁴⁸

Scalia’s opinion not only rejected the notion that cost-benefit analysis was required to satisfy the nondelegation doctrine’s requirement of an intelligible principle, but it further ruled that the relevant provisions of the Clean Air Act barred the EPA from considering economic costs at all in promulgating the national standards.¹⁴⁹ It was a sweeping win for both environmentalists and the EPA. But what made their victory even sweeter still was that it was unanimous and written by Justice Scalia, the Court’s leading conservative.

Justice Breyer’s separate concurring opinion fell far short of dampening the victor’s spirits that day, but his words were nonetheless chillingly expressive of some of the worst fears of environmentalists upon his confirmation. He disputed Scalia’s powerful statement that the EPA could consider compliance costs only if Congress’s textual commitment to such consideration was “clear.”¹⁵⁰ According to Justice Breyer, “other things being equal, we should read silences or ambiguities in the language of regulatory statutes as permitting [rather than] forbidding” regulatory agencies from adopting “rational regulation” that considered a proposed regulation’s adverse economic effects.¹⁵¹

Even more telling, Justice Breyer conflated economic costs with public health, just as industry had long been arguing should be done. According to Justice Breyer, because an overly protective environmental protection requirement that returned society to the “Stone Age” would clearly not be “requisite to protect the public health,” “the EPA, in setting standards that ‘protect the public health’ with ‘an adequate margin of safety’” should be deemed to be able to weigh compliance costs against environmental benefits at least to guard against disproportionately high costs for only trivial benefits.¹⁵²

For environmentalists, Justice Breyer’s language sounded unsettlingly similar to the business community’s claims that a healthy society was a wealthy society and environmental protection laws that reduced business profitability were accordingly undermining rather than promoting public health.¹⁵³ Had Justice Breyer authored his concurring opinion in any context other than a concurring opinion with no legal import and when environmentalists were otherwise enjoying an enormous victory, it might have garnered far more attention and concern. But, on a day of widespread relief and celebration, few paid attention to Justice Breyer’s concurrence.

Justice Breyer’s concurrence in Bates v. Dow Agriculture Sciences LLC,¹⁵⁴ decided in 2004, strikes a similar concern about the adverse impacts of excessive government regulation. In Bates, however, the issue arose in the context of a federal preemption case, in which a pesticide manufacturer was arguing that federal pesticide regulation preempted state common law tort liability.¹⁵⁵ The majority opinion, which Justice Breyer joined, rejected the manufacturer’s more sweeping preemption theories, concluded that some state tort law liability might not be preempted, and remanded the case back to the lower courts for further proceedings.¹⁵⁶ Justice Breyer wrote separately to emphasize that the EPA, the federal agency charged with administering the federal pesticide statute at issue, enjoyed authority to promulgate regulations that effectively preempted state tort liability to avoid “a counter-productive ‘crazy-quilt of anti-misbranding requirements.’ ”¹⁵⁷

Finally, similarly sensitive to his perception of excessive environmental regulations was Justice Breyer’s separate concurrence in Coeur Alaska, Inc. v. Southeast Conservation Council¹⁵⁸ in 2009, in which the Justice provided the more conservative wing of the Court with its sixth vote in a major loss to environmentalists. At issue in Coeur Alaska was in effect whether a gold mine that was discharging toxic slurry into a lake three miles away could avoid having to comply with section 402 of the Clean Water Act, which would likely have barred the activity, by characterizing their toxic slurry as “fill,” thereby triggering section 404 of the Act, which separately and less restrictively regulates the addition of fill into navigable waters.¹⁵⁹ The gold mine had placed enormous volumes of toxic slurry into the lake, which was 51 feet deep, 800 feet wide, and 2,000 feet long.¹⁶⁰ And the EPA freely acknowledged that the slurry would kill all of the lake’s fish and nearly all of its aquatic life.¹⁶¹

To the environmental plaintiffs and the Ninth Circuit in its lower court ruling, the gold mine’s claim that it was “fill” rather than pollutant seemed like a blatant end run around the Water Act’s section 402 limitations on the addition of pollutants into navigable waters. But, relying on the EPA’s agreement that section 404 rather than section 402 applied, the Court ruled in industry’s favor.¹⁶² Justice Breyer agreed, declining to join Justice Ginsburg’s dissent, which both Justices Stevens and Souter joined. Exhibiting the same preference for deferring to expert technical agencies promoted by his 1993 book, Justice Breyer explained the reasons why he joined the majority: “I cannot say whether the EPA’s compromise represents the best overall environmental result; but I do believe it amounts to the kind of detailed decision that the statutes delegate authority to the EPA, not the courts, to make (subject to the bounds of reasonableness).”¹⁶³

The contrast between Justice Breyer’s willingness to defer to the EPA, notwithstanding the extreme results, and Justice Ginsburg’s dissent for herself and Justices Stevens and Souter was stark:

The Court’s reading . . . strains credulity. A discharge of a pollutant, otherwise prohibited by firm statutory command, becomes lawful if it contains sufficient solid material to raise the bottom of a water body, transformed into a waste disposal facility. Whole categories of regulated industries can thereby gain immunity from a variety of pollution-control standards.¹⁶⁴

Justice Ginsburg, unlike Justice Breyer, was not willing to assume that the EPA would ensure this loophole was not abused in future applications, especially given the dissent’s view that it had been abused in the facts of the case then before the Court.¹⁶⁵

3. Justice Breyer’s Dissenting Opinions in Part or in Full

Justice Breyer wrote separate opinions that dissented either in part or in full on ten occasions. In some, he concurred in part or in full with conservative majorities, and in others he dissented in part from liberal majorities. And on a few occasions, he dissented in full. The latter category tended to be those instances when Justice Breyer expressed views wholly favorable to the legal arguments of environmentalists.

Two of the cases involved tort liability. In Norfolk & Western Railway v. Ayers,¹⁶⁶ decided in 2003, Justice Breyer dissented from that part of the Court’s ruling that allowed tort plaintiffs who had been exposed to asbestos fibers and were suffering from asbestosis to recover for damages from their related reasonable fear of cancer.¹⁶⁷ Justice Breyer acknowledged that the legal issue was “a close and difficult one.”¹⁶⁸ But he dissented in part from Justice Ginsburg’s majority opinion because he was worried both about the “impossibility of knowing an appropriate compensation” for such fear¹⁶⁹ and that compensating victims for their fear might leave too little money remaining later on for victims who ultimately suffered from cancer.¹⁷⁰ On the other hand, in Exxon Shipping Co. v. Baker,¹⁷¹ decided in 2008, Justice Breyer dissented from a majority ruling limiting punitive damages from the Exxon Valdez Alaska oil spill based on his view that the punitive damages awarded the oil spill victims in that case need not be reduced.¹⁷²

Unlike in Norfolk and Exxon Shipping, in Winter v. Natural Resources Defense Council, Inc.,¹⁷³ Entergy v. Riverkeeper,¹⁷⁴ and Utility Air Regulatory Group v. EPA,¹⁷⁵ it was Justice Breyer’s partial concurrences with a conservative majority rather than his dissent from a liberal majority that were telling. In each, Justice Breyer’s separate opinion reflected his pragmatism and general desire to provide federal expert agencies with flexibility absent excessive judicial second-guessing.

In Winter, Justice Breyer declined to join Ginsburg’s dissent from the majority ruling overturning a lower court injunction of U.S. Navy exercises that the environmental plaintiffs alleged were harming marine mammals.¹⁷⁶ Justice Breyer concurred in part with the conservative Justices who made up a majority and concluded that the plaintiffs’ evidentiary support was too “weak or uncertain” to justify the “seriousness of the harm” that the Navy maintained the injunction would do “to the Navy’s ability to maintain an adequate national defense.”¹⁷⁷

In Entergy, Justice Breyer returned most explicitly to his argument, reflected in his 1993 book and earlier concurring opinion in American Trucking, that cost-benefit analysis is essential in setting rational environmental protection standards. Justice Stevens, joined by Justices Souter and Ginsburg, dissented from the majority ruling that the Clean Water Act permitted the EPA to engage in cost-benefit analysis in deciding the extent to which a power plant’s cooling water intake structure must minimize its adverse environmental impact.¹⁷⁸ Justice Breyer, however, agreed that such analysis was permissible, arguing that “an absolute prohibition would bring about irrational results.”¹⁷⁹ While suggesting some limits on how demanding such a cost-benefit analysis could be, he also cautioned that “in an age of limited resources available to deal with grave environmental problems, . . . too much wasteful expenditures devoted to one problem may well mean considerably fewer resources available to deal effectively with other (perhaps more serious) problems.”¹⁸⁰

In Utility Air Regulatory Group, Justice Breyer again concurred in part with a conservative majority but this time to a very different policy end. The majority opinion, authored by Justice Scalia, ruled that the term “any pollutant” under the Clean Air Act did not extend to greenhouse gas pollutants as applied to one significant part of the Act.¹⁸¹ Justice Breyer proffered a different approach that, like the majority, avoided the EPA’s being compelled to regulate sources that the EPA agreed would be administratively impractical, but by interpreting instead the term “any source” in a manner that would ultimately provide the EPA more discretionary authority to choose how best to regulate greenhouse gas emissions. As described by Justice Breyer, “[t]he Court’s decision to read greenhouse gases out of the [Prevention of Significant Deterioration] program drain[ed] the Act of its flexibility.”¹⁸² And Justice Breyer’s preferred approach “le[ft] the EPA with the sort of discretion as to interstitial matters that Congress likely intended it to retain.”¹⁸³

On the other hand, the Justice’s practical approach prompted him to dissent in full from the Court’s ruling in U.S. Fish & Wildlife Service v. Sierra Club,¹⁸⁴ decided in March 2021, in favor of a federal agency’s decision not to release a document to environmental plaintiffs under the Freedom of Information Act.¹⁸⁵ That Act requires agencies to release to the public final agency decision-making documents unless they are deliberative in nature, reflecting Congress tempering its desire for public disclosure with a competing desire not to unduly chill those candid internal exchanges of ideas that might not occur if the participants knew all their thinking would later be made part of the public record.¹⁸⁶

Pursuant to the Endangered Species Act, the Interior Department’s Fish & Wildlife Service and the Commerce Department’s National Marine Fisheries Service provide formal “biological opinions” to any federal agency whose proposed action may “adversely affect” an endangered or threatened species or its critical habitat.¹⁸⁷ In U.S. Fish & Wildlife Service, the two Services were preparing biological opinions on a proposed rule by the EPA under the Clean Water Act to regulate power plant cooling water intake structures because of the potentially adverse impact of those structures on aquatic wildlife.¹⁸⁸

Had the Services provided the EPA with a final biological opinion, the parties would not have disputed that such a final opinion would have been subject to public disclosure.¹⁸⁹ In the case, however, the two Services never submitted a final biological opinion because the EPA ultimately rescinded its initially proposed rule after receiving an early draft of the Services’ biological opinion that had not yet been formally approved by either Service for submission.¹⁹⁰ In challenging the EPA’s final cooling water intake structure, Sierra Club sought a copy of the informal draft biological opinions on the original proposed rule, which it hoped to use to attack the final rule.¹⁹¹

The majority easily concluded, based on FOIA’s text, that such draft biological opinions—especially ones never approved by the relevant officials of the two services—need not be disclosed because they lacked any formal legal status within the ESA: “The deliberative process privilege protects the draft biological opinions at issue here because they reflect a preliminary view—not a final decision—about the likely effect of the EPA’s proposed rule on endangered species.”¹⁹² Such preliminary assessments were, the Court concluded, “both predecisional and deliberative.”¹⁹³

In dissent, Justice Breyer naturally took a more practical approach, looking not at the formal name of the relevant document, but its function in the agency decision-making process. Because, Justice Breyer reasoned, “[t]he function of a Draft Biological Opinion finding jeopardy [of an endangered species] . . . is much the same as that of a Final Biological Opinion” and triggers the same process within EPA, the same reasons that justify public release of the final biological opinion apply with equal force to the draft.¹⁹⁴ However, because it was not clear whether the biological opinions at issue in the record were “drafts” or merely “Drafts of Draft Biological Opinion,” because they had never been approved by all relevant officials in the two Services, Justice Breyer contended the case should be remanded back to the court of appeals to decide their status.¹⁹⁵

In short, in some instances Justice Breyer’s lack of commitment to formalism supports policy ends favored by environmentalists, as in U.S. Fish & Wildlife Service. But in other instances, as in Coeur Alaska, he frustrates environmentalists by allowing the government to avoid what seems, on the face of the relevant statutory language, to be a clear transgression of congressional purpose.

However, Justice Breyer’s support for the constitutionality of environmental restrictions has been unqualified in Fifth Amendment takings cases. He has participated in ten Fifth Amendment takings cases while on the Court. And he voted against the regulatory takings claim in nine of those cases¹⁹⁶ and against a per se physical takings claim in the tenth case.¹⁹⁷ In one of those regulatory cases, Palazzolo v. Rhode Island,¹⁹⁸ he filed a separate dissent to underscore his agreement both with Justice Ginsburg that the case was not ripe and with Justice O’Connor that it was relevant to regulatory takings analysis whether the landowner was challenging a land use restriction that existed at the time of their purchase of the property.¹⁹⁹ And in Cedar Point Nursery v. Hassid,²⁰⁰ Justice Breyer filed a dissenting opinion on the ground that the majority erred by analyzing the state regulation of land use as a per se physical taking rather than as a possible regulatory taking.²⁰¹

Finally, Justice Breyer also earned high marks from environmentalists for his support of environmental plaintiff Article III standing. Like regulatory takings, Article III standing has been a persistent issue in environmental law since the 1970s.²⁰² Justice Breyer voted in favor of environmental plaintiffs in the two most important standing cases during his tenure on the Court, Friends of the Earth v. Laidlaw²⁰³ and Massachusetts v. EPA,²⁰⁴ and he authored the opinion for himself and three other Justices dissenting from the Court’s ruling against the plaintiffs’ standing in Summers v. Earth Island Institute²⁰⁵ in 2009.²⁰⁶ Justice Breyer took direct issue with the majority’s ruling that the environmental plaintiffs had failed to demonstrate a concrete injury in their lawsuit challenging the U.S. Forest Service’s salvage sale of timber from a national forest.²⁰⁷

III. ASSESSING JUSTICE BREYER’S ENVIRONMENTAL LAW LEGACY: FRIEND OR FOE OF ENVIRONMENTAL PROTECTION?

Justice Breyer is likely the only Justice ever chosen because of his perceived views on environmental law. But, ironically not because he was viewed as an ardent environmentalist. Just the opposite. He was thought to be a Justice who would instead be more sensitive to business than to environmental protection concerns.

That is both why Breyer failed to secure the nomination to the Court in 1993 and environmentalists opposed his selection in 1994—strongly favoring Secretary of the Interior Bruce Babbitt. And it is also why Republican Senate Leadership, including the Senate Minority Leader Bob Dole and the Judiciary Committee’s Ranking Minority Member Orrin Hatch, informed the White House that they would fight Babbitt’s nomination and promised a smooth confirmation process for Judge Breyer. As described at this Article’s outset, President Clinton chose not to fight, notwithstanding environmentalists’ warnings that Judge Breyer would be bad for environmental law and even “hazardous to our health.”²⁰⁸

So, which has Justice Breyer turned out to be—friend or foe? The answer seems relatively clear: friendly, if still shy of an unqualified friend. As reflected in a rough sense in his EP score, especially compared to those of his colleagues on the bench, Justice Breyer has voted in favor of results supported by environmentalists far more than most of the other Justices on the Court. And, in almost all of the most important environmental cases of the past twenty-eight years, he was a reliable vote joining the majority in the big cases environmentalists won—often providing the critical fifth vote—and no less a reliable vote in dissent with liberal justices sounding the alarm in the big cases environmentalists lost—as he did in West Virginia v. EPA, the very last environmental case decided by the Court when Justice Breyer was on the bench.²⁰⁹ These cases include major cases decided under framework environmental laws like the Clean Air and Clean Water Acts, as well as those involving major issues of constitutional law, such as Article III standing, congressional Commerce Clause authority, and regulatory takings. Justice Breyer has been a reliable, forceful vote for environmental protection in the biggest cases that mattered the most.

Environmentalist concerns about Justice Breyer’s support for regulatory reform proved overblown in application, but not because they were wrong about his views on the central role that cost-benefit analysis should play in setting environmental standards and his willingness to believe that such standards are unduly protective. They weren’t incorrect. Especially in his concurring opinions and in a scattering of his votes, Justice Breyer made clear, just as they feared, his belief in the essential role of cost-benefit analysis as well as his receptivity to concerns that environmental protection requirements may be so exceedingly expensive as to undermine, rather than promote, public health.²¹⁰

However, in no case did Justice Breyer’s distinct views make a difference. He never once provided the critical “fifth vote” in any case in which he expressed those policy preferences for cost-benefit analysis.²¹¹ And his concurring voice was of no legal effect at all. Of course, had the makeup of the Court when those cases were decided been tilted slightly more to the left, Justice Breyer’s vote might well have made a critical difference, just as environmentalists had worried it would. But that concern was never realized in almost three decades.

Justice Breyer has also proved far less dogmatic in his views than assumed by his detractors at the time of his nomination. While supporting EPA’s authority to use cost-benefit analysis in his separate concurring opinion in Entergy, Justice Breyer agreed with the environmental respondents that Congress had intentionally curbed EPA’s ability to rely on cost-benefit analysis in the Clean Water Act.²¹² Where Justice Breyer departed from the environmental respondents was his view that EPA nonetheless was permitted to take such analysis into account so long as the agency did so in a very limited way: to guard against costs wholly disproportionate to environmental benefits—a far more modest invocation of cost-benefit analysis than that sought by industry.²¹³ Justice Breyer also later fully joined Justice Kagan’s forceful dissent in Michigan v. EPA,²¹⁴ which criticized the majority for concluding that EPA was required to consider potential compliance costs in determining whether regulation of toxic mercury emissions from power plants was “appropriate.” Justice Breyer agreed with the other Michigan dissenters that Congress had instead instructed EPA to base its threshold determination of the appropriateness of emissions controls only on the extent of environmental harm posed by such emissions. None of the Justices, including the four dissenters, disputed that the Clean Air Act required EPA to consider control costs in subsequently determining the extent of emissions reduction subsequently required of power plants.²¹⁵

Finally, critics of Justice Breyer’s nomination to the Court failed to appreciate how Justice Breyer’s pragmatism and openness to consideration of regulatory costs and cost-benefit analysis might prompt the Justice to favor upholding EPA regulations those critics favored. In two very significant Clean Air Act cases, EPA v. EME Homer City Generation in 2014 and the recently-decided West Virginia v. EPA, EPA’s legal arguments in favor of the regulations at issue—the Clean Air Interstate Rule in EME Homer²¹⁶ and the Clean Power Plan in West Virginia²¹⁷—were weakened by the absence of clear support in the relevant statutory text. But what strengthened each of those EPA regulations was that both sets of ambitious regulations justified their broad reading of that language by the extent to which it permitted the EPA to take costs and benefits into account. In short, the kinds of economic analysis Justice Breyer favored allowed EPA to adopt more, not less, demanding environmental protection requirements.

To be sure, Justice Breyer has been no Justice Douglas. He has not voted in favor of the position favored by environmentalists in all cases. But nor is it clear that the nation, including environmentalists, should necessarily want such a Justice on the Court. Such a Justice might be a very good environmentalist, but not an especially good judge.

As described above, in eleven of the twenty-three environmental cases in which Justice Breyer voted against the position favored by environmentalists, all the Justices voted the same way.²¹⁸ None dissented, neither Justice Souter, Stevens, Kagan, nor Sotomayor. All the other most progressive Justices on the Court agreed that there was no, or at least too little, merit to the legal position favored by environmentalists. In three more of those twenty-three cases, environmentalists lost by a vote of eight to one. Perhaps a Justice who dissented in those cases could be credited with perceiving actual strength in legal arguments that the others were missing. But it is also quite possible that they would be engaging in the very kind of ideologically driven judicial decision-making that environmentalists correctly condemn in those Justices with very low EP scores like Justices Alito and Scalia. Even those of us who care deeply about environmental protection, and worry no less deeply about the failings of our elected branches of government, should not see a judiciary that decides cases strictly on personal ideology rather than fair consideration of the actual strengths of the competing legal arguments as the proper solution to those failings.

Finally, contrary to the predictions of those advising President Clinton in June 1993, Justice Breyer has not remotely proven to be a dispassionate, “bloodless,” “cold fish” Justice lacking any “innate sense of justice.”²¹⁹ To be sure, Justice Breyer is no Justice Sonia Sotomayor—a Justice whose writings evince a compassion for victims of injustice without ready modern parallel. He is a committed pragmatist. But his striking pragmatism should not be mistaken for a lack of passion. He has proven himself deeply committed to social justice and the fundamental role of the judiciary in its pursuit. He has made that philosophy clear in both his judicial opinions and in his writings outside of the Court, especially his 2005 book, Active Liberty, in which the Justice contends that judges should not merely attend to the need to ensure that individuals are free from governmental coercion but also ensure they enjoy freedom to participate fully in government itself, including the right to vote.²²⁰

CONCLUSION

Justice Breyer was certainly not environmentalists’ dream pick in 1994. And they had good reason to be concerned. But he has proved in actual practice to be an outstanding jurist for the nation and an excellent Justice for environmental protection law.

More fundamentally, Justice Breyer’s record on the Court suggests the wisdom of rethinking what it means to be a “dream” justice. Should it mean having a Justice who shares one’s ideological preferences on certain issues like environmental protection and will vote accordingly? Or should it mean having a Justice whose votes are rooted in a broader understanding of the proper role of the courts in interpreting law and deciding cases, including the central role our Constitution assigns to the judiciary to safeguard certain individual and collective rights? While the former Justice may reliably receive an EP score of 100, the latter is the better Justice, even if that means they sometimes will, as they should, rule in ways that disappoint.²²¹

APPENDIX A

ENVIRONMENTAL LAW CASES OCTOBER TERM 1994–OCTOBER TERM 2021

Case Name	Citation	EP Designation
Dolan v. City of Tigard	512 U.S. 374 (1994)	Dissent
Babbitt v. Sweet Home Chapter Communities for A Great Oregon	515 U.S. 687 (1995)	Majority
Meghrig v. KFC Western	516 U.S. 479 (1996)	Dissent
General Electric v. Joiner	522 U.S. 136 (1997)	Dissent
Steel Company v. Citizens for a Better Environment	523 U.S. 83 (1998)	Dissent/Concur
Ohio Forestry Association v. Sierra Club	523 U.S. 726 (1998)	Dissent
United States v. Bestfoods	524 U.S. 51 (1998)	Majority
City of Monterey v. Del Monte Dunes at Monterey, Ltd.	526 U.S. 687 (1999)	Concur
Friends of the Earth v. Laidlaw Environmental Services, Inc.	528 U.S. 167 (2000)	Majority
Public Lands Council v. Babbitt	529 U.S. 728 (2000)	Majority
Solid Waste Agency of Northern Cook County v. United States	531 U.S. 159 (2001)	Dissent
Whitman v. American Trucking Associations	531 U.S. 457 (2001)	Majority
Palazzolo v. Rhode Island	533 U.S. 606 (2001)	Dissent
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency	535 U.S. 302 (2002)	Majority
Norfolk & Western Railway v. Ayers	538 U.S. 135 (2003)	Majority
Alaska Department of Environmental Conservation v. EPA	540 U.S. 461 (2004)	Majority
South Florida Water Management Dist. v. Miccosukee Tribe	541 U.S. 95 (2004)	Majority
Engine Manufacturers Association v. South Coast Air Quality Management District	541 U.S. 246 (2004)	Dissent
Department of Transportation v. Public Citizen	541 U.S. 752 (2004)	Dissent
Norton v. Southern Utah Wilderness Association	542 U.S. 55 (2004)	Dissent
Bates v. Dow Agrosciences	544 U.S. 431 (2005)	Majority
Lingle v. Chevron U.S.A., Inc.	544 U.S. 528 (2005)	Majority
Kelo v. City of New London	545 U.S. 469 (2005)	Majority
S.D. Warren v. Maine Board of Environmental Protection	547 U.S. 370 (2006)	Majority
Rapanos v. United States	547 U.S. 715 (2006)	Dissent
Massachusetts v. EPA	549 U.S. 497 (2007)	Majority
Environmental Defense Fund v. Duke Energy Corporation	549 U.S. 561 (2007)	Majority
United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority	550 U.S. 330 (2007)	Plurality
United States v. Atlantic Research Corporation	551 U.S. 128 (2007)	Majority
National Association of Home Builders v. Defenders of Wildlife	551 U.S. 644 (2007)	Dissent
Exxon Shipping Company v. Baker	554 U.S. 471 (2008)	Dissent in part
Winter v. National Resources Defense Council, Inc.	555 U.S. 7 (2008)	Dissent
Summers v. Earth Island Institute	555 U.S. 488 (2009)	Dissent
Entergy Corporation v. Riverkeeper, Inc.	556 U.S. 208 (2009)	Dissent
Burlington Northern & Santa Fe Railway Company v. United States	556 U.S. 599 (2009)	Dissent
Coeur Alaska, Inc. v. Southeast Alaska Conservation Council	557 U.S. 261 (2009)	Dissent
Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection	560 U.S. 702 (2010)	Concurrence in part
Monsanto Company v. Geertson Seed Farm	561 U.S. 139 (2010)	Dissent
American Electric Power Company v. Connecticut	564 U.S. 410 (2011)	Dissent
Sackett v. EPA	566 U.S. 120 (2012)	Dissent
Arkansas Game and Fish Commission v. United States	568 U.S. 23 (2012)	Dissent
Decker v. Northwest Environmental Defense Center	568 U.S. 597 (2013)	Dissent
Koontz v. St. Johns River Water Management District	570 U.S. 595 (2013)	Dissent
EPA v. EME Homer City Generation L.P.	572 U.S. 489 (2014)	Majority
Utility Air Regulatory Group v. EPA	573 U.S. 302 (2014)	Concur/Dissent
Michigan v. EPA	576 U.S. 743 (2015)	Dissent
Federal Energy Regulatory Commission v. Electric Power Supply Association	577 U.S. 260 (2016)	Majority
Sturgeon v. Frost	577 U.S. 424 (2016)	Dissent
United States Army Corps of Engineers v. Hawkes Company	578 U.S. 590 (2016)	Dissent
Murr v. Wisconsin	137 S. Ct. 1933 (2017)	Majority
Weyerhaeuser Company v. United States Fish and Wildlife Service	139 S. Ct. 361 (2018)	Dissent
Sturgeon v. Frost II	139 S. Ct. 1066 (2019)	Dissent
Virginia Uranium, Inc. v Warren	139 S. Ct. 1894 (2019)	Majority
Knick v. Township of Scott	139 S. Ct. 2162 (2019)	Dissent
Atlantic Richfield Co. v. Christian	140 S. Ct. 1335 (2020)	All But Alito
County of Maui v. Hawaii Wildlife Fund	140 S. Ct. 1462 (2020)	Majority
United States Forest Service v. Cowpasture River Preservation Association	140 S. Ct 1837 (2020)	Dissent
United States Fish and Wildlife Service v. Sierra Club	141 S. Ct. 777 (2021)	Dissent
Guam v. United States	141 S. Ct 1608 (2021)	Majority
Cedar Point Nursery v. Hassid	141 S. Ct. 2063 (2021)	Dissent
Hollyfrontier Cheyenne Refining, LLC v. Renewable Fuels Association	141 S. Ct 2172 (2021)	Dissent
PennEast Pipeline Company v. New Jersey	141 S. Ct 2244 (2021)	Dissent
West Virginia v. EPA	142 S. Ct. 2587 (2022)	Dissent

APPENDIX B

ENVIRONMENTAL PROTECTION (“EP”) SCORES OF SELECTED INDIVIDUAL JUSTICES

OCTOBER TERM 1994–OCTOBER TERM 2021

Justice	Number of Cases	EP Points	EP Score
Breyer	61	38	62.3
Scalia	47	11	23.4
Stevens	37	29	78.4
Kennedy	50	18	36
Thomas	63	13	20.6
Souter	36	29	80.6
Ginsburg	57	41	71.9
CJ Roberts	40	8	20
Alito	38	4	10.5
Sotomayor	25	16	64
Kagan	25	17	68

95 S. Cal. L. Rev. 1395

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Richard J. Lazarus*

* Howard J. & Katherine W. Professor of Law, Harvard Law School. I would like to thank Professors Hope Babcock, Jonathan Cannon, Bill Funk, Steph Tai, and Susannah Weaver for their terrific comments on a preliminary draft of this Article. Kathryn C. Reed, Harvard Law School Class of 2022, provided outstanding research and editorial assistance. Although it has no bearing on my analysis, for the sake of disclosure I served as counsel for either one of the parties or an amicus in the following Supreme Court cases that fall within this Article’s scope of review: Dolan v. City of Tigard, 512 U.S. 374 (1994); Palazzolo v. Rhode Island, 533 U.S. 606 (2001); Tahoe-Sierra Pres. Council v. Tahoe Reg’l Plan. Agency, 535 U.S. 302 (2002); Norfolk & Western Ry. v. Ayers, 538 U.S. 135 (2003); S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95 (2004); S.D. Warren Co. v. Me. Bd. of Env’t Prot., 547 U.S. 370 (2006); Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009); Monsanto Co. v. Geertson Seed Farm, 561 U.S. 139 (2010); and Murr v. Wisconsin, 137 S. Ct. 1933 (2017).

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While courts around the world are increasingly recognizing rights of nature or the rights of individuals or communities to a safe and healthy environment, American courts have been much more skeptical of environmental rights claims. This Article examines this growing divergence and identifies trends in American law that might account for it, including explanations deeply rooted in U.S. constitutional history as well as recent doctrinal developments such as the major questions doctrine. More importantly, this Article offers a way forward for American law in the face of critical environmental challenges, most notably climate change. Specifically, it presents constitutional interpretive methods that might advance the interests of nature and individuals facing pollution impacts. It also explores the potential role for states and state constitutions in protecting the environment. But given the obstacles—both jurisprudential and political—to a more robust environmental rights framework in American courts, this Article concludes that the best path forward might be a theory of negative environmental rights—namely, the right to be free from harmful pollution. Such a narrowly constructed commitment to an end to uninternalized environmental externalities might offer a practical and politically feasibly way to move past the pervasive concerns of American courts about positive rights, separation of powers, the political question doctrine, and appropriate modes of judicial relief.

INTRODUCTION

In his landmark Should Trees Have Standing? article, Professor Christopher Stone posed the question of whether Nature could, and indeed should, have legally enforceable rights.¹ Today, a handful of countries have granted rights—sometimes in the form of “legal personhood”—to Nature generally or to discrete geographic features, such as mountains or rivers.² Many more countries recognize their citizens’ right to a healthy environment in one form or another.³ And a growing number of litigants across the globe—spurred on perhaps by the youth movement for climate change action—have used these rights to force governments or businesses to reduce greenhouse gas emissions.⁴ Courts in many nations around the world have been increasingly sympathetic to these claims, establishing the judiciary in many nations as an important point of leverage for moving society toward a more sustainable future in general and a more robust response to climate change in particular.⁵

In the United States, however, such efforts have met with little success. Recognition of environmental rights remains limited and largely in the background of the American legal system. Such rights are rarely constitutionally defined (and only at the state level) and have gone almost entirely unrecognized by courts.⁶ Although Stone’s argument altered the environmental rights conversation in the United States (particularly after being cited in Justice Douglas’s dissent in Sierra Club v. Morton⁷), it has not translated into strengthened environmental rights in American courts. Indeed, both federal and state courts across the country have expressly declined to entertain climate change litigation, rejecting a range of legal theories and assertions of environmental rights advanced by a diverse set of plaintiffs. The judges in these cases consistently suggest that the remedies sought by the plaintiffs go beyond what the judiciary can order.⁸

This reality leads to the central puzzle of this Article: Why has the conception of environmental rights remained so crimped in the United States in contrast with other nations?

In seeking to answer this query, I also address another critical question: Are there legal avenues available to better secure environmental rights in the United States?

In Part I, I set the stage for these inquiries with a brief survey of environmental rights scholarship over the past fifty years, chronicling how such rights emerged from the human rights discourse and have now become constitutionalized in the vast majority of nations across the globe. I go on to document how environmental rights have become increasingly widely recognized in international law through treaties, resolutions, and declarations—including a 2022 United Nations (“U.N.”) General Assembly Resolution declaring access to a clean, healthy, and sustainable environment to be a human right. Given this universality of commitment to environmental protection, I argue that environmental rights should be recognized as natural rights that need not be granted by a constitution or a statute but rather understood to be inherent in what it means to be human. In this regard, the failure of U.S. courts to recognize environmental rights seems out of step with modern mores and legal thinking across the globe—setting up the puzzles noted above.

In Part II, I undertake a comparative review of national case law around the world, noting how courts in many nations have strengthened environmental rights in recent years—particularly in the context of the need to shift our economic activities onto more sustainable underpinnings and to address the rising risks of climate change. In analyzing the global march of environmental rights, I note that while the trend is toward broader protection of peoples across the world from pollution, each nation’s framing of environmental rights reflects the particular values, circumstances, and legal traditions of that society—with the United States in a relatively unique and lagging position.

I extend this analysis in Part III with a more detailed look at the reasons why environmental rights remain limited in the United States. I focus particular attention on the decisions in a number of recent climate change cases where courts have concluded that the judicial branch of government is not positioned to provide the relief that the plaintiffs sought. I go on to suggest that the narrow American view of environmental rights derives not only from the lack of a clear constitutional provision, but also from the U.S. judiciary’s tradition of restraint in the face of cases that present political or “major” questions that might be seen as within the purview of the legislative and executive branches of government. I also note that, unlike civil rights, which have relatively clear lines, environmental protection inescapably entails tradeoffs and multidimensional policy choices. This reality makes climate change and other environmental policy issues polycentric problems, which present competing claims and no clear framework for balancing the contesting interests. In the face of such difficulties, many judges and scholars have concluded (following the conceptual framing of Professor Lon Fuller) that such issues are inappropriate for courts to adjudicate and must be left to political processes. Finally, I note that the approach to evaluating competing interests embedded in the U.S. framework of pollution control law and regulation—centered on benefit-cost analysis with particular reliance on the Kaldor-Hicks model of net social benefits—effectively privileges economic activity and often treats individual environmental rights as inconsequential.⁹

In Part IV, I argue that the sustainability imperative¹⁰ and the risks posed by climate change demand that U.S. courts revisit their hesitancy to vindicate environmental rights and respond to the need to address climate change and establish a more sustainable foundation for the American economy. I advance several legal theories and accompanying political strategies for expanding environmental rights in America—consistent with emerging norms across the country and around the world and the increasingly clear epidemiological and ecological evidence that deteriorating environmental conditions threaten the capacity of humanity to flourish in the years ahead. Ultimately, I argue that the key to progress might well not be found in the expansion of individual environmental rights per se, but rather in the emerging norm against uninternalized environmental externalities—the acceptance of which makes pollution spillovers unacceptable. Thus, the most promising pathway to expanded environmental rights in America might be through the assertion of the environmental rights of the people in a negative construct—that is, the right of individuals not to be harmed by pollution.

I conclude the Article with a reflection on the ongoing relevance of Christopher Stone’s 1972 vision of humanity’s moral development over time leading to the gradual extension of rights to those who (and that which) had previously been left out of legal personhood and thus the law’s protection.¹¹ But rather than emphasize the value of extending legal rights to natural objects,¹² I urge that human rights be understood to encompass a natural law right to a habitable environment—accomplishing through a different route Stone’s call for a “new conception of man’s relationship to the rest of nature . . . [as] a step towards solving the material planetary problems.”¹³ Rather than give trees standing, I propose a narrower path forward based on declaring an end to uninternalized externalities and asserting the right of each person to physical integrity and freedom from pollution. In doing so, we can give American citizens standing to challenge harmful emissions and stop the damage to the Earth systems that threatens to make the planet uninhabitable for humanity.

I. ENVIRONMENTAL RIGHTS

Environmental rights have increasingly been recognized as foundational to human rights. In recent decades, many nations have enshrined rights to a healthy environment in one form or another in their constitutions. The near-universal acceptance of environmental rights provides a starting point for the argument that the right to a healthy environment should be recognized as an element of natural law.

A. Environmental Rights as Human Rights

Over the past fifty years, much of the world has come to recognize environmental rights as fundamental to human existence—and therefore to be understood as natural rights that need not be expressly or specifically established by statute or governmental edict.¹⁴ While the 1948 U.N. Universal Declaration of Human Rights does not mention the environment specifically, it does recognize rights to life and to security.¹⁵ Moreover, just two decades later as environmental consciousness was rising around the world, the U.N. General Assembly adopted a resolution highlighting the relationship between environmental quality and human rights.¹⁶ In reflecting on this resolution and the momentum building for greater focus on environmental protection at the time of the 1972 U.N. Conference on the Human Environment, Janusz Symonides, a prominent Polish jurist and academic, observed that the right to a clean environment must be understood as a universal human right because the ability to enjoy other fundamental rights, including the right to life, depends on it.¹⁷

The 1972 Stockholm Declaration on the Human Environment, which emerged from the U.N. Conference, strengthened this conclusion with a further observation: “Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights—even the right to life itself.”¹⁸ But the governments in Stockholm declined to specify what might be encompassed by this right, encouraging scholars and rights activists to develop their own definitions and conceptions.¹⁹ Most notably, Alexandre Kiss, a French diplomat and scholar, offered a series of publications that explored different dimensions of environmental rights centered on the theory that environmental protection is essential to what it is to be human.²⁰ Kiss argued that Principle I of the 1972 Stockholm Declaration—asserting a “fundamental right to freedom, equality, and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”—had become so well established as to be added to the category of fundamental rights, the enjoyment of which is guaranteed to all individuals.²¹ He further explained that these environmental rights create obligations (not only for states but also for individuals), duties to future generations, and “remedies in the event of environmental harm.”²²

As the world community prepared to gather in 1992 for the second Earth Summit in Rio de Janeiro, Professor Dinah Shelton further developed the argument for recognizing environmental rights as fundamental to human rights. She critiqued many of the theories of environmental rights that were common at the time, noting that none of them was “fully articulated.”²³ Shelton ultimately concluded that an approach that viewed “human rights and environmental protection as each representing different, but overlapping, societal values” showed the most promise—and that a “clearly and narrowly defined international human right to a safe and healthy environment” could achieve objectives in human rights law and environmental law.²⁴

The breadth of support for the recognition of environmental rights has strengthened in recent years. In 2008, the U.N. Human Rights Council adopted Council Resolution 7/23, which affirmed the council’s view that “climate change poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights.”²⁵ The 2022 U.N. General Assembly Resolution—adopted with 161 votes in favor (including the United States) and just eight abstentions—declaring access to a clean, healthy, and sustainable environment to be a universal human right represents the latest manifestation of this growing consensus.²⁶ Momentum continues to build, as the fifteenth Conference of the Parties to the Convention on Biological Diversity adopted in 2022 a biodiversity conservation framework designed to accommodate the “rights of nature and rights of Mother Earth.”²⁷

B. Constitutional Recognition of Environmental Rights

The importance of environmental conditions to human flourishing is now so widely recognized and highly valued that 150 nations highlight the importance of the environment in their constitutions.²⁸ More than 100 nations now have constitutions that expressly recognize a right to a healthy environment in some form.²⁹ As David Boyd explains in his seminal study, The Environmental Rights Revolution, three concurrent waves of rights conceptualization in the second half of the 20th century contributed to the firm footing of environmental rights in constitutions today: (1) growth in democratic governance; (2) a global “rights revolution”; and (3) public awareness of severe environmental degradation.³⁰ Against the backdrop of expanding rights discourse and ecological consciousness, over half of the world’s constitutions were written or re-written, with many of those doing the drafting seizing this opportunity to establish a legal right to a healthy environment.³¹ Indeed, over this period environmental rights have been the fastest-growing provision in constitutional revisions.³² While it may be difficult to establish a precise causal link, Boyd demonstrates a consistent correlation between a formal right to a healthy environment and strengthened environmental governance and results.³³

The extent to which nations have constitutionalized environmental rights depends on country-specific context. For example, some resource-rich countries explicitly connect environmental rights to public access to the benefits of the country’s natural resources.³⁴ Many island nations, perhaps recognizing their vulnerability to ecosystem damage, instead highlight the government’s duty to preserve an “ecologically balanced environment.”³⁵ And a number of countries formerly constituting the Soviet Union include specific protections for the public’s access to “information about the environment,”³⁶ likely inspired by the Soviet Union’s tradition of state-sponsored disinformation and the specific failure to share critical facts about the Chernobyl nuclear crisis.

C. Environmental Rights as Natural Law

The increasingly universal recognition of environmental rights suggests that every person should have access to basic environmental amenities—including clean air to breathe, safe water to drink, freedom from exposure to toxic chemicals, and functioning Earth systems (including a stable climate) that provide a “safe operating space for humanity.”³⁷ So fundamental is this right to human existence that it must be understood to have independent and intrinsic value—and not simply instrumental importance as a pathway to the fulfillment of other fundamental rights such as the right to life or health. Many legal commentators have thus concluded that the right to a healthy environment should be seen as an element of the universal moral principles that must be regarded as sacrosanct in all societies at all times.³⁸

Along with my colleague Don Elliott, I have argued that the U.S. Congress highlighted the existence of environmental rights at the time of the 1970 adoption of the National Environmental Policy Act (“NEPA”) when it declared: “The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.”³⁹ Note that the Congress did not establish this right, but rather recognized it. In doing so, the Congress suggested that NEPA was intended to provide mechanisms to vindicate a pre-existing natural law right to a “healthful environment” and to clarify the obligation of every American to protect the environment. But the central thrust of this Article is not to make the case for environmental rights as an element of natural law but rather to map the environmental rights terrain in search of an explanation as to why U.S. courts have been hesitant to accept such rights. Part II takes up this quest.

II. DEVELOPMENT OF AN ENVIRONMENTAL RIGHTS JURISPRUDENCE

In the face of the existential threat posed by climate change and a growing recognition that a commitment to sustainability must be a foundational feature of twenty-first-century life, courts around the world have advanced environmental rights in recent years and issued decisions that required both governments and corporations to address a diverse set of ecological and public health harms—including the risk of climate change from a build-up of greenhouse gases (“GHGs”) in the atmosphere. In their totality, these decisions by trial courts, appeals courts, and constitutional courts across the world make clear that environmental protection is now seen as a fundamental right in many societies. I begin in Section II.A with a discussion of the international and transnational legal framework that has underpinned many of these decisions—and explore the decisions of the European Court of Human Rights (“ECtHR”) in this respect. In Section II.B, I extract some common themes from the environmental decisions of national courts around the world.

A. Transnational Courts and Environmental Rights

In recent years, the belief that access to a healthy environment is essential to the fulfillment of other human rights has increasingly been upheld in international legal proceedings.⁴⁰ For example, Justice Weeramantry of the International Court of Justice observed in his Gabcikovo-Nagymaros opinion that protection of the environment is “a vital part of contemporary human rights doctrine, for it is sine qua non for numerous human rights such as the right to health and the right to life itself.”⁴¹

This jurisprudence is underpinned in large part by language in a suite of treaties, which provide further international undergirding for environmental rights. Most notably, four regional agreements establish a right to a healthy environment: the African Charter on Human and Peoples’ Rights, the Aarhus Convention, the San Salvador Protocol to the American Convention on Human Rights, and the 2004 Revised Arab Charter on Human Rights.⁴² Together, these treaties have 126 independent signatories, comprising a healthy majority of all sovereign states.⁴³ While these treaties do not cover every nation—with the United States being one of the notable non-signatories—they bolster a global sentiment that humans have a fundamental right to a healthy environment.

Nowhere is the trend toward recognition of environmental rights more visible than at the ECtHR.⁴⁴ Indeed, while the European Convention on Human Rights (“ECHR”) has no explicit reference to the environment, the ECtHR has developed “an elaborate and extensive body of case law which all but in name provides for a right to a healthy environment.”⁴⁵ In fact, the ECtHR Registry (which acts as the administrative support structure for the Court) has produced an extensive “Guide to the Case-Law of the European Court of Human Rights” that explains ECtHR case law on environmental issues.⁴⁶

The ECtHR has an environmental history going back to noise pollution cases in the 1980s.⁴⁷ In 1994, the court explicitly recognized that environmental harms may “affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely” as protected by Article 8 of the ECHR.⁴⁸ The ECtHR has found ECHR Article 8 violations related to air pollution⁴⁹ and other environmental risks, such as the proximity of a dangerous chemical plant,⁵⁰ mines,⁵¹ or a waste treatment facility,⁵² as well as potential water contamination by a cemetery close to a home.⁵³ The ECtHR has also invoked the right to life in Article 2 of the ECHR in a few cases when environmental harms posed a direct risk to someone’s life.⁵⁴ But these cases remain rare and not central to the court’s environmental rights jurisprudence.

The court’s decisions suggest that governments retain a degree of flexibility in addressing environmental harms and weighing them against other interests, such as the country’s economic well-being.⁵⁵ But the ECtHR has been clear that states have a positive obligation to take preventive measures to address environmental harms.⁵⁶

B. Environmental Rights Jurisprudence Around the World

An ever-growing list of countries around the world are seeing their courts act decisively in the face of environmental disputes. These courts have demonstrated a much greater willingness to make findings and order governmental action with regard to climate change and other sustainability threats than have American courts, as will be explored in Part III in greater detail. Many foreign courts have explicitly recognized substantive environmental rights and a governmental duty of care towards citizens with regards to environmental quality or climate stability, even if they have left the specific path forward to be defined by other branches of government.

A number of courts have questioned the adequacy of their government’s efforts to mitigate or adapt to climate change⁵⁷—especially in light of the nationally determined contributions to which they committed as part of the 2015 Paris Agreement. Courts around the world have held that their country’s respective governments had run afoul of their constitutional,⁵⁸ statutory,⁵⁹ or common-law⁶⁰ obligations (in some cases, violating the plaintiffs’ individual rights to a healthy environment) because of the insufficiency of their plan to reduce GHG emissions. Many courts—including those of France, Germany, Pakistan, and the Netherlands—responded⁶¹ to these violations by ordering the governments to develop new frameworks for reducing greenhouse gas emissions—with Germany’s Constitutional Court ordering the federal parliament to adopt a new climate change mitigation plan.⁶²

Some courts have been willing to entertain claims raised against private companies—or against the government vis-à-vis its failure to adequately regulate a private actor.⁶³ One of the first of such cases was the 2005 Nigerian case, Gbemre v. Shell Petroleum.⁶⁴ In that case, several plaintiffs filed suit against the Nigerian government for failing to stop Shell Petroleum from gas flaring, which they argued had devastating environmental effects in their local community. The Federal High Court—akin to a federal district court in the United States—ultimately found an environmental right in the Nigerian constitution and the African Charter on Human and Peoples’ Rights, and it declared that Shell’s gas flaring violated these rights as well as other human rights to life and dignity, and that provisions of Nigerian law that allowed the gas flaring to take place violated the country’s constitution.⁶⁵ In the Netherlands, the same district court that ordered the government to reduce its greenhouse gas emissions concluded in a separate case that Royal Dutch Shell had violated the environmental plaintiffs’ rights under the Dutch Civil Code and ordered Shell to reduce its GHG emissions by 45% by 2030 from the oil company’s 2019 baseline.⁶⁶

And while explicit rights for Nature remain rare in national constitutions or in global jurisprudence,⁶⁷ developments in Colombia and Ecuador have bucked this broader trend. In Ecuador, the Pachamama (or “Mother Earth” to indigenous Ecuadorians) has been protected in its constitution since the late 2000s. In 2021, the Constitutional Court gave this protection real force in holding that mining undertaken by Enami, the state mining company, in an ecologically sensitive part of the rainforest was unconstitutional. It grounded its decision not only in the rights of nature—but also tied those rights to human rights to the environment. Judge Agustín Grijalva Jiménez wrote:

The concept of nature that the Constitution develops in Article 71 includes human beings as an inextricable part of nature, and of the life it reproduces and realizes in its breast . . . . In order to highlight this relationship, the Constitution in its preamble states that Mother Nature is vital for our existence. Here the Constitution perceives (or pays close attention to) the fact that humanity’s own existence is inevitably tied to that of nature, for he conceives it as part of himself. The rights of nature necessarily span to the rights of humanity as a species of nature.⁶⁸

In a similar case, Colombia’s Supreme Court accepted the claims of a group of youth plaintiffs who argued that their rights to a healthy environment were being debased by the government’s failure to end deforestation in the Colombian Amazon region. In its 2018 Future Generations decision, the Court declared that “fundamental rights of life, health, the minimum substance, freedom, and human dignity are substantially linked and determined by the environment” and ordered development of a plan to address the deforestation concerns brought forward by the plaintiffs.⁶⁹ The Court also granted the Amazon Basin something akin to legal personhood, finding that it was a “subject of rights” and was therefore “entitled to protection, conservation, maintenance, and restoration.”⁷⁰

These decisions reflect the effect of international legal regimes in many countries around the world. Many of the decisions favorable to environmental rights have linked together generic rights in national constitutions—such as a general right to life—with more specific protections in transnational treaties or agreements to craft a right to a healthy environment.⁷¹ The remedies that have been developed in these countries have not always been terribly specific. The orders in several European courts that governments reduce greenhouse gas emissions left the governments space to design their own plans—though in some cases, the government remained under the supervision of the court as it developed a plan.⁷² Indeed, in Pakistan, the court-created Climate Change Commission was designed to facilitate cooperation among government officials—not to function as a judicially imposed policymaking force.⁷³

C. Conclusions from Survey of Global Environmental Rights Cases

Three broad conclusions can be drawn from this survey of the judicial response to environmental claims. First, environmental rights are being recognized ever more broadly across the world. Second, the frame and scope of these rights and the underlying legal theories advanced vary across the world—reflecting the individual circumstances, judicial traditions, values, and political dynamics of each society. Finally, the United States stands apart from the rest of the world with regard to the broad trend toward court recognition of environmental rights, clearly suggesting a distinct legal framework and tradition, which is the subject of Part III.

III. UNDERDEVELOPMENT OF ENVIRONMENTAL RIGHTS IN THE UNITED STATES

The pattern that emerges from Part II of expanding judicial recognition of environmental rights—except in the United States—requires us to delve into the issue of American judicial exceptionalism in the environmental context. Specifically, why are U.S. courts an outlier with regard to recognizing environmental rights? A number of explanatory factors are explored below in pursuit of a better understanding of the unique elements of America’s legal structure and traditions that translate into a more constricted view of environmental rights than exists in other countries, particularly other economically advanced democracies.

A. The State of Climate Litigation in the United States

Litigants in the United States seeking to enforce their environmental rights or advance the U.S. response to climate change have faced a skeptical judiciary. Of particular note in this regard, in the 2022 case of West Virginia v. EPA, the Supreme Court found that the EPA lacked authority under the Clean Air Act’s statutory framework to regulate greenhouse gas emissions from existing coal and gas-fired power plants via “generation-shifting”—a regulatory mechanism akin to a cap-and-trade system for greenhouse gases.⁷⁴ In coming to this conclusion, the Court relied on a separation of powers argument and a refinement of its political question jurisprudence—advanced as a major questions doctrine.⁷⁵

In Juliana v. United States, arguably the most high-profile climate case in the federal courts to date, twenty-one youth plaintiffs, organized by an Oregon-based environmental group called Our Children’s Trust, asserted that their substantive due process rights to a life-sustaining climate system had been violated and, further, that the federal government had failed to uphold its public trust doctrine obligation to protect shared natural resources. The Oregon District Court initially ruled that the case could go forward based on the theory that “a climate system capable of sustaining human life” was a fundamental right under the Due Process Clause of the Fifth Amendment.⁷⁶ But the Ninth Circuit, while conceding that the plaintiffs had demonstrated the risks of climate change and the federal government’s contribution to the build-up of GHGs in the atmosphere,⁷⁷ declared that the plaintiffs lacked standing. The panel majority based this conclusion on a legal finding that the injury plaintiffs sought to have addressed was not “redressable” by the courts.⁷⁸ More specifically, the majority opinion of the Ninth Circuit panel leans on separation of powers arguments⁷⁹ and the limits of authority of Article III judges⁸⁰ to suggest that, in providing equitable relief, courts are always constrained and can only act where they can identify “limited and precise” legal standards to follow.⁸¹

Climate change litigants in state courts have faced similar hurdles. In 2020, the Oregon Supreme Court rejected public trust doctrine claims from a group of similar youth climate plaintiffs—including the lead plaintiff in Juliana—in Chernaik v. Brown. The court majority concluded that the doctrine applied only to the management of navigable waters and underlying lands—and should not be extended to include the atmosphere, nor does it require state action to address climate change as a potential source of damage to these resources.⁸²

In 2021, the Washington Court of Appeals rejected a similar claim in Aji P. ex rel. Piper v. State,⁸³ in which youth climate plaintiffs asserted fundamental rights to a stable climate system. The court ultimately held that the claims presented non-justiciable political questions. The Supreme Court of Washington denied review of the appellate court’s decision,⁸⁴ with two justices dissenting.⁸⁵ While declaring that the “right to a stable environment should be fundamental,”⁸⁶ the Court of Appeals leaned heavily on the logic of separation of powers and the political question doctrine as spelled out in the Supreme Court’s Baker v. Carr decision⁸⁷ in dismissing the plaintiffs’ case.

The Alaska Supreme Court reached a similar decision in the 2022 Sagoonick v. State case.⁸⁸ There, the plaintiffs advanced arguments similar to those of the plaintiffs in Juliana, Chernaik, and Aji P.⁸⁹ But the court rejected their claims based on the conclusion that the plaintiffs raised non-justiciable political questions.⁹⁰ Though the court acknowledged that, under the Alaska Constitution, it did have a role to play in supervising the state’s management of natural resources,⁹¹ those same constitutional provisions also “expressly delegated to the legislature the duty to balance competing priorities for the collective benefit of all Alaskans.”⁹² The court declined to intervene in the face of these political questions, but it noted that the plaintiffs had several alternative avenues for recourse, including the challenging of “discrete actions implementing State resource development and environmental policies,” pursuing a ballot initiative to codify their preferred policies, and lobbying state policymakers.⁹³

In finding that the relief requested by plaintiffs (a court order for more aggressive government policies to address climate change) has no judicially manageable standards and risks usurping the authority of the legislative and executive branches,⁹⁴ the courts here followed a venerable tradition of judicial restraint within U.S. courts, but one to which the judiciary does not always adhere—as I explore further below.

B. No Environmental Provision in the U.S. Constitution

Perhaps the most obvious place to start the search for an explanation for the resistance of U.S. courts to assertions of environmental rights lies in the absence of any explicit environmental or public health provision in the U.S. Constitution. Indeed, in almost all of the international environmental rights cases reviewed in Part II above, courts make reference to provisions in the country’s constitution or other foundational legal documents (including reliance on the ECHR). But only in a minority of cases was the constitutional provision one that specifically mentions the environment. Much more often, courts read environmental rights into provisions for life or health. Of course, the U.S. Constitution does not make mention of these terms either.

But this explanation is not fully satisfactory. Other countries with constitutions that make no mention of the environment or related terms have seen the judiciary expand environmental rights and even extend legal protection to elements of Nature. In fact, my research suggests that thirty-seven other nations find themselves in a similar posture (see Appendix). But courts in many of these countries have advanced a broader view of environmental rights than is found in the United States. In fact, some of these nations have been trailblazers in judicial recognition of fundamental rights in support of environmental protection claims. In New Zealand, for example, where there is no constitutional provision for environmental rights, the Whanganui River has been given legal personhood with the Maori people who claim ancestral rights to the waterway acting in a trusteeship role to ensure the resource is protected.⁹⁵ Likewise, although Canada lacks explicit environmental language in its constitution, its courts have repeatedly affirmed the authority of federal policies that regulate for the purpose of environmental protection. And multiple Canadian courts have assigned environmental rights to Aboriginal titleholders as well as Aboriginal title lands.⁹⁶

In other countries, the executive branches have asserted environmental rights in advancing pollution control and sustainability initiatives. In Kiribati, for example, despite an absence of constitutionally enshrined environmental rights, the government has developed an extensive right-based national policy focused on a healthy environment, and the nation’s political leaders have spoken at lengths on the global stage about the need to advance this right worldwide.⁹⁷ Similarly, Japan’s legislature introduced a mandamus action within its Administrative Case Litigation Act in 2004, which the Japanese Supreme Court has interpreted as a rights-based obligation on the government to minimize damage to health from environmental pollution.⁹⁸

While the lack of explicit or implicit environmental provisions in the U.S. Constitution starts to explain the narrow view of environmental rights emerging from American courts, it cannot be seen as a full explanation given the divergent outcomes across the world in climate change cases and other legal challenges based on environmental rights.

C. Non-Justiciability and Judicial Deference to the Political Branches

In the recent U.S. court decisions dismissing environmental rights claims, the standing of plaintiffs to bring a case has almost always been rejected based on the legal theory that courts cannot provide the remedy being sought—notably, a court order mandating more vigorous climate change policies. This conclusion builds on the separation of powers, political question, and the recently articulated major questions doctrines, as well as the longstanding Baker v. Carr framework, which suggests that courts should only take up cases where there are “appropriate modes of effective judicial relief.”⁹⁹ But as noted in Part II above, other courts around the world have not hesitated to declare government policies inadequate and order the remedies requested in similar circumstances. So why does the United States stand apart?

Perhaps the real explanation lies in the seriousness with which courts in the United States struggle with the issue of whether the injuries for which plaintiffs seek redress are within the power of the judiciary to address. In the Juliana case, the Ninth Circuit agreed with the district court that the plaintiffs had alleged particularized claims of injury from GHG emissions that could be linked to federal government actions (including leases and subsidies) in support of fossil fuel producers.¹⁰⁰ But the court concluded that the plaintiffs had failed to meet the redressability requirement for standing. The majority opinion rejects the notion that courts could “order, design, supervise, or implement” the sort of climate change action plan that plaintiffs sought.¹⁰¹ The two-judge majority goes on to declare that the plaintiffs must take their concerns to the “political branches” of the government.¹⁰²

This line of reasoning fits into a long American tradition of courts steering clear of political questions that are deemed to be better resolved by the political branches of the government—including in a series of prior cases involving environmental claims.¹⁰³ The Juliana majority notes that the transition to renewable energy requires “a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”¹⁰⁴

But is this outcome really mandated? Couldn’t the court have declared the government’s current climate change posture inadequate and ordered a ramped-up response to the build-up of GHGs in the atmosphere—while leaving the details of how to do so to the other branches? As Aharon Barak, former Justice of the Israeli Supreme Court, observes in The Judge in a Democracy, which analyzes the role of the judiciary, “[T]he separation of powers is not pure and . . . each branch performs some functions that belong to the other branches[] so long as they are intimately related to the branch’s primary function.”¹⁰⁵ Barak goes on to argue that the principle of checks and balances stands alongside the separation of powers as a foundational element of a functioning democracy—thus requiring the judiciary to act if the other branches fail to uphold the law or otherwise perform their duties.¹⁰⁶ He concludes:

The more non-justiciability is expounded, the less opportunity judges have for bridging the gap between law and society and for protecting the constitution and democracy. . . . [T]he court should not abdicate its role in a democracy merely because it is uncomfortable or fears tension with the other branches of the state.¹⁰⁷

As Part II demonstrates, courts around the world seem to follow this principle in their willingness to step into environmental controversies, including cases that require them to declare the policies of the government inadequate—and to order more robust responses, including but not limited to climate change policies, to the claims of a diverse set of plaintiffs.

But the U.S. judiciary has traditionally taken a much narrower view of its proper role—and concomitantly has been much more likely than courts elsewhere to declare a matter non-justiciable when confronted with cases that seem to present political questions—following the Supreme Court’s guidance and multi-factor test established in Baker v. Carr.¹⁰⁸ In Juliana, for example, the Ninth Circuit concluded that the plaintiffs’ request for relief would have entailed handling an issue committed to other branches of government (Baker v. Carr factor 1), forcing them into establishing a remedy where there were no judicially manageable standards (factor 2), and requiring the court to make policy determinations (factor 3). In finding the matter non-justiciable, the majority declared that they were “bound ‘to exercise a discretion informed by tradition, methodized by analogy, and disciplined by system’ ”¹⁰⁹ and that “the plaintiffs’ case must be made to the political branches,”¹¹⁰ noting further and somewhat curiously “[t]hat the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.”¹¹¹

But this restraint is not mandated, as the dissent in Juliana makes clear. The dissenting Ninth Circuit judge signals that she would not have found the requested relief non-justiciable and believes that a court order that the federal government take more vigorous action to address climate change would be efficacious, even if such a command were not likely to fully solve the problem.¹¹² She rejects the majority’s “deference-to-a-fault” approach and highlights a “countervailing constitutional mandate to intervene where the other branches run afoul of our foundational principles.”¹¹³

Similar separation of powers and political question arguments dominate Aji P., in which the Washington Court of Appeals found plaintiffs’ claims nonjusticiable based on four of the Baker v. Carr factors. Notably, the majority concluded that: (1) the issues on which the plaintiffs sought judicial relief were “constitutionally committed” to the legislative and executive branches of government; (2) there exists no “judicially manageable standard” for providing relief; (3) the legislature and executive agencies have established climate change policies (albeit ones that plaintiffs believe are inadequate); and (4) judicial intervention in this case would “disrespect[] the coordinate branches” of government.¹¹⁴ While the Court of Appeals decision was upheld by the Washington Supreme Court, the Chief Justice dissented and indicated that he would have allowed the plaintiffs’ case to go forward, observing that “the Court of Appeals decision unnecessarily expanded the political question doctrine” and that “considerable statutory authority” supports the plaintiffs’ claim of fundamental environmental rights.¹¹⁵

Similarly, the decision in Sagoonick was decided by just one vote and was issued over a vigorous dissent by Justice Peter Maassen, who noted that the state’s public trust doctrine incorporated a “constitutional right to a livable climate.”¹¹⁶ Justice Maassen criticized the majority for failing to issue a declaratory judgment “recogniz[ing] a constitutional right to a livable climate—arguably the bare minimum when it comes to the inherent human rights to which the Alaska Constitution is dedicated.”¹¹⁷ Justice Maassen further noted that the court had been repeatedly presented with the same question and that declining to answer it on justiciability grounds “will not eliminate it but will only postpone our answer, in the meantime putting the burden of redundantly litigating it on plaintiffs, the State, and the trial courts.”¹¹⁸ He added that recognition of the right does not require the court to develop a remedy itself, to immediately and fully “answer every subsequent question” about how the right might be invoked, or to convert any policy that harms the climate in the slightest into a rights violation—but that the court had a duty to answer the question.¹¹⁹

Although the outcome in the Chernaik case in Oregon turned on the court’s unwillingness to expand the reach of the public trust doctrine, dissenting Chief Justice Martha Walters expressly rejected the suggestion that a judicial declaration regarding climate change would be inappropriate and such matters should be left to the legislative and executive branches. In fact, she concluded that “the judicial branch also has a role to play.”¹²⁰ The dissenting opinion turns aside the separation of powers argument for judicial restraint, citing Marbury v. Madison and declaring that one of the core functions of the judicial branch “is to determine the legal authority and obligations of the other two branches of government.”¹²¹ In addition, the dissent takes apart the suggestion that the relief plaintiffs seek lacks judicially manageable standards (citing Baker v. Carr) and would require the court to make “particular policy decisions.”¹²² In rejecting the need for the court to show deference to the other branches in the face of a “political question,” Chief Justice Walters makes it clear that a court invalidating a policy decision of another branch is not the same thing as the court itself making a policy decision¹²³—and explains that she would have stepped up to the “obligation to determine what the law requires” and ordered a more robust state response to the threat climate change poses for public trust resources.¹²⁴

Signs that the tide may be turning in U.S. climate litigation have begun to emerge. Most notably, a trial court in Montana recently allowed the legal challenge brought by a group of youth plaintiffs to proceed to trial. In this case, the plaintiffs argued that several state statutory provisions violated the Montana Constitution’s environmental rights provision, the public trust doctrine, and their right to a stable climate system.¹²⁵ The state argued that the claims presented by the plaintiffs presented non-justiciable political questions.¹²⁶ In 2021, the trial court partially granted the state’s motion to dismiss on all requests for relief—except for the plaintiffs’ request for declaratory judgment that the state had violated the plaintiffs’ rights.¹²⁷ Accordingly, a trial will take place in 2023 on this question.¹²⁸

Judges and justices in other countries have not felt constrained by separation of powers or political question concerns—nor about the risk that ordering action on climate change involves decisions that have no judicially manageable standards. Scholars have similarly raised questions about the logic and advisability of declaring cases to be non-justiciable. Justice Barak, for instance, condemns the concept of normative non-justiciability (of the sort Justice Brennan develops in Baker v. Carr in concluding that there will be no judicially manageable standards for addressing some issues). He argues that every dispute has “criteria for its resolution . . . . There is no sphere containing no law and no legal criteria . . . . The mere fact that an issue is ‘political’—that is, holding political ramifications and predominant political elements—does not mean that it cannot be resolved by a court.”¹²⁹ Justice Barak likewise rejects the notion of institutional non-justiciability. He declares Justice Brennan’s Baker v. Carr argument—that for a court to take up an issue that has been committed to another branch risks disrespecting a coordinate branch of the government or creating chaos with “multifarious pronouncements by various departments on one question”¹³⁰—to be “unconvincing.”¹³¹ As Justice Barak observes, “all of the issues that are considered in constitutional or administrative law” have been entrusted to political authorities.¹³²

The jurisprudence of non-justiciability—and the tradition of judicial restraint in the face of cases that raise separation of powers issues or political questions—clearly represents a distinct element of the American legal tradition. U.S. judicial norms in this regard stand apart from the legal frameworks in place in other nations—as the next section explores in more detail.

D. Negative Rights

While the opinions in U.S. environmental rights cases and the related academic literature focus on various elements of the separations of powers and political question doctrine, what more notably underlies the U.S. legal framework and sets the nation apart from the practice of judges elsewhere in the world (and particularly in Europe) is the American constitutional emphasis on securing negative rights and wariness about assertions of positive rights¹³³—at least at the federal level. So while the commentary centers on non-justiciability and the various Baker v. Carr factors, what undergirds the American exceptionalism is a distinct approach to rights—building, of course, on a federal Constitution that emerged at a moment in time when the critical issue was protecting the citizen from an abusive state, therefore translating into a document that emphasizes negative rights.

1. Positive Rights in State Constitutions

In fact, the U.S. structure of rights is somewhat more complicated than just suggested. Notably, some U.S. state constitutions explicitly secure positive rights.¹³⁴ Indeed, the Massachusetts Constitution (of 1780) establishes a right to education.¹³⁵ Other states have also written positive rights into their constitutions with a number of states having constitutionalized rights to education,¹³⁶ labor protections,¹³⁷ and protections for arrestees and prisoners.¹³⁸ Many other states have adopted expansive legal interpretations of their state-level equivalents to the Bill of Rights in the context of abortion,¹³⁹ death penalty,¹⁴⁰ and criminal justice litigation.¹⁴¹ And seven states have expressly defined environmental rights in one form or another¹⁴²—with New York amending its constitution in 2021 to add an environmental rights amendment.¹⁴³

2. Federal Positive Constitutional Rights

I note further that, while the federal Constitution largely takes the form of establishing rights against government intrusion on the liberties of the people, there are some exceptions where positive rights have been established.¹⁴⁴ For example, American courts have come to recognize the right of an accused person to testify in court in their own defense. As my Yale colleague Akhil Amar notes, this reversal of the prior legal tradition came to be accepted because the old rules raised problems of “legal coherence.”¹⁴⁵ Likewise, the advance of civil rights in the 1960s¹⁴⁶ and gay rights in the 2000s¹⁴⁷ might also be seen as the recognition of positive rights under the federal Constitution.¹⁴⁸ The U.S. Supreme Court’s jurisprudence paints an inconsistent picture, however, of the legal logic the Court perceives itself to be advancing. A number of the Court’s civil rights opinions raise doubts about whether these rulings should be understood as advancing positive rights.¹⁴⁹ Indeed, constitutional law scholars have criticized the landmark decisions in Lawrence v. Texas and Obergefell v. Hodges as rather imprecise in specifying the rights being extended.¹⁵⁰

3. European Tradition of Positive Rights with Horizontal Effect

European courts (and a number of other judicial systems around the world) have taken another tack. Not only have they been more willing to specify positive rights, they have increasingly moved toward giving human rights horizontal effect—meaning that the courts have been willing to define rights (including environmental rights) that create obligations not only for governments but also for other citizens and corporate entities.¹⁵¹ This tradition has resulted in a framework of environmental rights that are not just broader than in the United States, but also deeper in that they have direct effect on private parties—creating affirmative duties to which companies (and others) must adhere.

Most notably, the ECtHR requires the parties to the ECHR to “secure to everyone within their jurisdiction the rights and freedoms defined in . . . [the] Convention.”¹⁵² The ECtHR has declared that states have a positive obligation to protect the rights under the ECHR,¹⁵³ including the adoption of an adequate regulatory framework¹⁵⁴ and a duty to prevent indirect or horizontal effects caused by other citizens or entities.¹⁵⁵ Note that while individuals cannot make a claim of human rights violations against other private individuals, they can call upon the state to enforce their human rights vis-à-vis private parties. In Pla and Puncernau v. Andorra, a case involving the interpretation of a will, the ECtHR famously stated:

Admittedly, the Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention.156

E. Polycentric Problems and Judicial Overreach

The American judiciary’s hesitance to take up climate change cases reflects a further distinct legal tradition: a concern that polycentric problems—ones that involve balancing of interests and apportioning of costs—are particularly unsuitable for adjudication by the courts. This theory is often associated with Professor Lon Fuller, who analogized polycentric problems to a spider web, where a pull on one strand puts stress across the many other strands and leads to instability.¹⁵⁷ Fuller thus argued that complex policy problems must be left to political processes and not resolved by the judiciary. His theorizing has had a broad impact within the Anglo-American legal tradition.¹⁵⁸

1. Environmental Issues as Polycentric Problems

Environmental problems generally, and climate change in particular, present just the sort of polycentric policy challenge that Fuller warned was inappropriate for courts to adjudicate.¹⁵⁹ Not only does climate change policy involve many elements and choices—involving production processes, pollution control possibilities, transportation systems, power generation and energy strategies, clean technology development, and many other aspects of life in modern society—but it also involves multiple trade-offs in which environmental gains for some almost always imply environmental costs for others.

Thus, unlike assertions of civil rights, which will often present bright line choices with clear underlying moral imperatives, environmental rights seem much less clear—and indeed, potentially quite intricate and hard to specify with precision. In asserting a moral right and constitutional claim that Black citizens should have a right to vote, there is no balancing to be done nor really any legitimate other side to the argument. No one can claim a right to prevent Black citizens from voting. Likewise, when gay rights are asserted, those that might wish to prevent gay citizens from living their lives as they wish have no firm foundation on which to build. These rights are relatively absolute.

In contrast, assertions of environmental rights might seem to be relatively unbounded. Do my environmental rights extend to a pristine environment? To a habitable environment? How much money should society (or polluters) be forced to spend to vindicate my right? Do I have a right to experience Nature as it is? Does the fact that Nature is not static but rather in a constant state of flux change the scope of the rights?¹⁶⁰ Simply put, if I have a right to a healthy environment, who owes me what duties and to what extent—and at what cost?

Moreover, the resolution of these questions is likely to have externalities on other citizens and private actors in society. A judicial order that a government adopt an emissions-reduction plan, while ostensibly requiring government action, will inevitably require private action to comply with the government regulations that follow. Courts may be more reluctant to order remedies that have these sort of economic impacts—as the Alaska Supreme Court in Sagoonick suggested. There, in rejecting the plaintiffs’ assertion of a right to a healthy environment and denying their requested relief, the court noted that the Alaska Constitution “directs the legislature (and not the judiciary) to manage and develop the State’s natural resources for the maximum common use and benefit of all Alaskans.”¹⁶¹ As the court made clear, the legislature is responsible for striking “the proper balance between development and environmental concerns,” and that the court “cannot, and should not, substitute [its] judgment for that of the political branches.”¹⁶²

While legal cases that require analysis of policy choices present challenges for the judiciary, a number of scholars, including Professor Owen Fiss, have pushed back on Lon Fuller’s arguments. Fiss suggests that the judiciary must not shy away from upholding fundamental rights even in the face of polycentric problems.¹⁶³ He argues that “courts should not be viewed in isolation but as a coordinate source of governmental power, as an integral part of the larger political system.”¹⁶⁴ In the American legal system, “the legitimacy of the courts and the power judges exercise in structural reform . . . are founded on the unique competence of the judiciary to . . . give concrete meaning and application to the public values embodied in an authoritative text such as the Constitution.”¹⁶⁵ Cass Sunstein raises a parallel argument, that the task of judges in adjudicating disputes—even those seemingly governed by “some preexisting rule”—is intricate and necessarily requires value judgments.¹⁶⁶ Moreover, it is a fiction that courts are not already making the sort of decisions that Fuller argues that they should not or do not.¹⁶⁷ And as Abram Chayes argued, the scope and breath of injunctive relief—including that which is widely accepted in the American legal system—involves the precise sort of value judgments that courts theoretically ought to shy away from.¹⁶⁸

In the context of environmental rights, it is inapposite to suggest that the questions involve too many imprecise calculations or debatable values. If the judiciary is able to weigh the competing concerns of other rights, both those presently enshrined in the Constitution and those recognized in common law, which implicate nearly identical concerns, it is capable of doing so here. As the dissent in Juliana noted, if courts are skeptical of granting the kind of relief sought by plaintiffs—that is, a broad order to do something that requires a coordinated effort at all levels of government, likely needing to be overseen by individual judges or special masters—there is a readily available example in Brown v. Board of Education.¹⁶⁹ There, “the Supreme Court was explicitly unconcerned with the fact that crafting relief would require individualized review of thousands of state and local policies that facilitated segregation.”¹⁷⁰

2. Politicization of the Judiciary

A related argument suggests that courts are obliged to steer clear of cases that require making policy choices for fear of politicizing the judiciary. Under this line of thinking, courts in the United States are more concerned about politicization or the political nature of climate policy questions than are courts of other nations, perhaps reflecting the deep partisan divides in American politics over environmental issues and climate change—rifts that do not exist to the same extent in most other nations. Concerns over judicial policymaking are arguably reflected in the Supreme Court’s recent invocation of major questions doctrine to invalidate proposed climate regulations which, in leaving significant policy choices to Congress, could be read as the Court declining to resolve questions with partisan overtones.¹⁷¹

But the Court’s reliance on the major questions doctrine to steer clear of hot political questions—and the argument that the Court is hyper-protective of its legitimacy as an apolitical arbiter—hardly seem convincing in a post-Dobbs v. Jackson Women’s Health Organization world.¹⁷² Justice Alito opens the majority opinion of Dobbs, in fact, with an acknowledgement that the issue of abortion is “a profound moral issue on which Americans hold sharply conflicting views.”¹⁷³ The majority opinion recognizes the criticisms that a “decision overruling Roe would be perceived as having been made ‘under fire’ and as a ‘surrender to political pressure,’ ”¹⁷⁴ but it concedes that political or politicized responses to the decision are immaterial in the Court’s eyes: “We do not pretend to know how our political system or society will respond to today’s decision. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”¹⁷⁵ In other words, fear of politicization was expressly waved away by the Supreme Court in Dobbs. That climate change also represents a profound moral or political issue (or that there would no doubt be partisan backlash to a judicial decision demanding governmental action in the face of climate change) does not seem immediately distinguishable from the Court’s eagerness to take up arms in Dobbs.

Besides, concerns over politicized climate-related decision-making beg the question of whether adjudicating political matters relating to climate change would threaten the legitimacy of the judiciary to the extent that critics claim. The presumption of grave risk seems overstated. In “invalidating actions by other branches of the state . . . the court does not criticize the internal logic or practical efficiency of such political considerations,” instead solely focusing on the legality of the action taken.¹⁷⁶ In this respect, it is entirely possible for a court to assert a right, and hold that a legislature’s action violates that right, without actually infringing on the legislature’s policymaking discretion.¹⁷⁷ In Robinson Township v. Commonwealth, for example, the Pennsylvania Supreme Court invalidated portions of an oil and gas regulation passed by the legislature on the basis that it violated the plaintiffs’ state constitutional right to a healthy environment.¹⁷⁸ In response to arguments that the plaintiffs’ claims presented non-justiciable political questions, the court had a forceful response. It noted that a court’s review of policy choices made by the legislature “does not challenge [its] power” to set policy; “it challenges whether, in the exercise of the power, the legislation produced by the policy runs afoul of constitutional command.”¹⁷⁹ “[T]he political question doctrine,” it added, “is a shield and not a sword to deflect judicial review.”¹⁸⁰ Thus, the idea that judicial restraint is to be applauded when courts face a case with political overtones should be questioned if not rejected outright, especially in the face of fundamental threats to society, such as those posed by climate change.

While it is understandable that the deep political divides that now riven America have pushed U.S. judges to be extra cautious about taking up political questions, there are good arguments to suggest that this posture is not just inappropriate but constitutionally incorrect. To the contrary, it may be that with regard to the most political issues—where the legislative branch is too divided to act—courts have a special obligation to step into the breach. In fact, in explaining when the Ninth and Fourteenth Amendments provide a foundation for unenumerated rights that should be acknowledged by courts, Akhil Amar notes that such rights are most easily recognized when there exists clear national support and particularly when Congress has recognized such rights. But he goes on to say courts may need to secure fundamental rights even without these signals of broader support because the judiciary has a “role as a critical backstop in the event that Congress ever fails to act with proper vigor.”¹⁸¹

F. America’s Benefit-Cost Approach to Environmental Regulation

One further explanation for the U.S. judiciary’s exceptionalism on environmental rights might be found in the relatively unique structure of American environmental law and regulations. In particular, American regulatory practice has developed around a law and economics approach to environmental protection that permits powerplants, mines, factories, and other entities to pollute (literally issuing these facilities permits) so long as the benefits to society of the economic activity exceed the emissions harms created by the enterprise. As Don Elliott and I explain, this net social benefits approach to pollution control—which builds on a Kaldor-Hicks economic efficiency logic (rather than a Pareto optimization that would require compensation to those suffering the pollution impacts)—results in significant unabated emissions in many instances.¹⁸² In privileging economic activities over environmental rights, this environmental policy framework could be read as a signal that America’s political branches have established a mechanism for balancing the competing interests discussed above and concluded that environmental rights should give way to economic growth and jobs as the priority. Such an observation might well lead U.S. judges to conclude that they should not take up cases that tread on this policy domain—particularly to the extent that the environmental arena is one of contested rights and divergent values.

IV. THE SUSTAINABILITY IMPERATIVE AND PATHWAYS TO SECURING U.S. ENVIRONMENTAL RIGHTS

Perhaps the most curious aspect of the recent environmental-rights-based climate change decisions across several federal and state courts is the broad recognition that the problem plaintiffs seek to address is both real and significant. The Juliana majority says, in particular: “There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change.”¹⁸³ They further suggest that a more vigorous climate change policy response is “a matter of national survival.”¹⁸⁴ Yet the court declines to act.

This paradox raises several important questions: Does the political dispute and ongoing contestation over environmental policy really justify the U.S. judiciary’s dodging of questions involving fundamental rights to a habitable environment? Is the judiciary’s restraint still justified if responding to climate change is seen as a matter of national survival? Or, to turn these questions around, what is the path forward that might allow environmental rights to be secured in the current U.S. political context? How might courts be positioned to respond to the threat posed by climate change and the need to put American society onto more sustainable footings?

In addressing these questions, the starting point must be the fact that climate science has established beyond any credible doubt the threat posed to humanity by the build-up of GHGs in the atmosphere.¹⁸⁵ More generally, society has begun to recognize a sustainability imperative¹⁸⁶ that derives from the ever-more-clear findings of ecosystems science, which suggest the need to restructure our economic activities to ensure that they do not create environmental impacts that transgress critical planetary boundaries in a manner that might destabilize the Earth systems on which all life depends.¹⁸⁷

Policy emphasis on sustainability is not new. A commitment to sustainable development that “meets the needs of the present without compromising the ability of future generations to meet their own needs” (the Brundtland Commission’s definition in the 1987 report, Our Common Future) has been a core commitment of the world community for decades¹⁸⁸ and understood to require limits on pollution and natural resource depletion.¹⁸⁹ The foundational importance of sustainability as a core principle for life in the twenty-first century has recently been reiterated with the adoption of the U.N. Sustainable Development Goals and the 2015 Paris Agreement on Climate Change, as well as the 2021 Glasgow Climate Pact, under which 197 nations (including the United States) committed to net-zero GHG emissions by mid-century.¹⁹⁰

I have argued elsewhere that sustainability (by its very definition) requires a changed foundation for business and our economic life centered on bringing an end to uninternalized environmental externalities.¹⁹¹ In this light, Part IV explores how environmental rights to a sustainable future might be established in the American political context.

A. Reading Positive Environmental Rights into U.S. Constitution

While the U.S. Constitution does not explicitly recognize environmental rights nor even rights to life or health, the Supreme Court has built upon the Due Process Clauses of the Fifth and Fourteenth Amendments a set of protections for fundamental interests of American citizens including the right to marry,¹⁹² maintain a family,¹⁹³ and choose one’s own occupation.¹⁹⁴ These fundamental rights have been judicially defined and as such “may not be submitted to vote; they depend on the outcome of no elections.”¹⁹⁵ In citing these cases and the pathway by which these rights were recognized, the dissenting judge in the Juliana case observed that the judiciary need not stand by in the face of climate change and allow a “calamity.”¹⁹⁶ Rather, courts could secure a fundamental right to a habitable environment in a similar fashion.

Finding constitutional space for new rights has been done in a variety of ways in other circumstances. For example, unenumerated rights can be found in the “penumbras” and “emanations” of the Bill of Rights as Justice Douglas observed in his Griswold v. Connecticut opinion that established a constitutional right to privacy.¹⁹⁷ Although the Supreme Court is increasingly strict in gatekeeping the Due Process Clause through the “deeply rooted” test on which it has relied in recent cases,¹⁹⁸ there may be significant foundations upon which to build upon in securing environmental rights. Notably, the Preamble to the Constitution declares the purpose of the document to be promotion of “the general welfare.” For a court ready to take up the challenge of combating climate change, this phrase offers a foundation for an assertion of rights to a habitable environment, especially in the face of the threat to humanity posed by climate change. The Constitution should also be read in light of the natural rights beliefs that undergirded the American Revolution¹⁹⁹ and the intentions of the Founders as expressed in the Declaration of Independence with regard to inalienable rights to “Life, Liberty, and pursuit of Happiness” and the insistence that the “new Government” should be designed to “effect” the “Safety and Happiness” of the people²⁰⁰—all of which could be read as requiring courts to secure the environmental rights needed to avoid catastrophic climate change or “implicit in the concept of ordered liberty.”²⁰¹

As Akhil Amar suggests, unenumerated rights can alternatively be discovered in the “lived practices and beliefs of the American people.”²⁰² As an example, he cites Justice Harlan’s concurring opinion in Griswold as offering a better basis for inferring a right to privacy²⁰³ than the majority opinion provides. Amar adds that such unenumerated rights are most easily advanced when they align with other “canonical sources” such as the Declaration of Independence or state constitutions²⁰⁴—factors that might well now argue for recognition of environmental rights. Moreover, the facts that (1) polling suggests that a very substantial majority of Americans now support a more comprehensive response to climate change;²⁰⁵ and (2) businesses of all sizes and across virtually all industries across America have adopted net-zero GHG emissions targets²⁰⁶ perhaps opens the way for U.S. courts to define the right to a habitable environmental as constitutionally protected—as made clear by the expectations and values of the people as expressed in both their daily and professional lives.

While there are solid constitutional foundations for securing environmental rights in America—especially for a judiciary that understands its obligation to act in the face of an overarching threat and inaction on the part of the political branches—political reality means a high hurdle must be overcome to get U.S. courts to recognize positive environmental rights.

B. Rights for Nature

Another path forward would be to heed Chris Stone’s call to give Nature legal personhood. But in the United States, the argument for extending legal rights to natural objects is seen by many as “radical”²⁰⁷ and has thus not gotten much traction—with one exception. In 2019, the citizens of Toledo, Ohio, voted to grant Lake Erie a “Bill of Rights,”²⁰⁸ which included “the right to exist, flourish, and naturally evolve.”²⁰⁹ But this initiative was quickly struck down in federal court, with the judge ruling that the proposed legal rights for the lake were unconstitutionally vague. The court asked, “What conduct infringes the right of Lake Erie and its watershed to ‘exist, flourish, and naturally evolve’?”²¹⁰ It went on to say, “The line between clean and unclean, and between healthy and unhealthy, depends on who you ask.”²¹¹

While the Toledo court was perhaps too quick to dismiss the idea of rights for Lake Erie, the revered environmental law professor Joseph Sax decades ago offered a logic for not trying to advance “rights for objects” as Stone proposed. In a review of the standing issues addressed in the Supreme Court’s Sierra Club v. Morton decision,²¹² Sax noted: “If Stone is saying only that we should take account of diffuse citizen interests not routinely represented,” then ascribing the rights to Nature is “verbal overkill.”²¹³ What is really required, observed Sax, is “a more spacious view of the right of citizens”²¹⁴ to ensure that courts take seriously the “risks of long-term, large scale practically irreversible disruptions to ecosystems”²¹⁵—thus specifying five decades ago the path forward that this Article seeks to advance.

C. State Constitutions

As discussed in Part III, seven U.S. states have provisions that establish environmental rights in one form or another. Although these rights have not yet yielded promising outcomes for litigation to implement broad-based climate change policies,²¹⁶ it may well be that vindication of these rights in state courts will provide a basis for mandating greater government action in the years ahead. State courts might also require a more vigorous climate change response by corporate entities, which could have implications more broadly across the national marketplace. If more states were to adopt New York’s recent example²¹⁷ and adopt environmental rights constitutional amendments (a process that is much easier at the state level than the national one), this trend might be a further signal of changing values of the American people—therefore justifying the recognition of positive environmental rights by federal judges.

State experiences with rights to public education provide a theoretical, if incomplete, model of how an expansion of environmental rights might unfold driven by state leadership. In 1973, the Supreme Court held that education was not a fundamental right—and rejected claims brought regarding unequal funding of schools in Texas.²¹⁸ But because many state constitutions provide a right to public education, state-court litigants have been successful in vindicating these rights—either by themselves or by linking the right to education with state-level equal protection analogs.²¹⁹ As Professor Rob Klee has noted, it’s possible that this strategy could prove viable with environmental rights, as well.²²⁰

Success at the state level could be critical to nudging federal courts to take similar action. Robinson Woodward-Burns observes that state constitutional change is “a steady, constant, quiet background process in American politics, the heretofore unnoticed channel for most American constitutional development.”²²¹ He argues that “[n]ational outcomes attributed to the federal courts may instead be caused by state constitutional reform,” pointing out that prior to the Supreme Court’s decision in Harper v. Virginia Board of Elections, all but four states had already abolished poll taxes through constitutional amendments.²²² Indeed, in the long tradition of ideas getting tested out in the laboratory of the states, it might well be that the state-level experience will demonstrate that environmental rights can be judicially managed—thus stripping away one of the core concerns federal judges have advanced for declining to take up cases where positive environmental rights are being asserted.

D. Establishing Negative Environmental Rights: End Uncompensated Pollution Spillovers

Rather than seeking to establish a broad-based right to a healthy or habitable environment, it might be easier within the U.S. constitutional framework to secure negative environmental rights—specifically a right not to be harmed by pollution. Requiring an end to pollution spillovers or full compensation for all harms from residual emissions (mandating, as economists would say, an end to uninternalized environmental externalities) would simply align America’s environmental law and policy framework with long-standing principles of the common law. Indeed, the right not to be harmed by pollution goes back at least four centuries in the Anglo-American legal tradition to the 1610 decision in Aldred’s Case, which established an English plaintiff’s cause of action against the stench from his neighbor’s pigs.²²³ And the government’s obligation to protect shared natural resources has an even longer history insofar as the origins of the public trust doctrine²²⁴ can be traced not only to old English law but also ultimately to Roman law before that.²²⁵

1. Securing a Right to Be Free from Harmful Pollution

Establishing a right to be free from harmful pollution—to each of us as individuals and to the resources on which we depend for life—might be seen by American judges as more consistent with the negative rights tradition of the U.S. Constitution. This kind of negative right would be consistent with the widely accepted principle that people have affirmative duties not to harm others—a concept key to modern tort and property law. A duty not to harm others has been justified and explained by many scholars, including John Stuart Mill in On Liberty—in which he outlined the argument for a “harm principle”—and more recently by William David Ross.²²⁶

Not only is such a conceptualization consistent with legal developments in the Anglo-American legal traditions, but the narrow frame of a right to be protected from damaging pollution impacts might also be seen as more judicially manageable and thus less of a worry with regard to the separation of powers and political question doctrines. As I have explained in some detail elsewhere,²²⁷ establishing such a right would not necessarily translate into no pollution. But an environmental rights framework that forbids uninternalized environmental externalities might require emissions reductions to the extent feasible—and full compensation to be paid for any residual harms.

A degree of scientific knowledge and expert analysis would still be required to determine which pollutants cause damage and at what scale—and thus what the harm charge for unabated pollution should be. While such calculations might require a redeployment of resources within the U.S. Environmental Protection Agency, the enormous base of epidemiological and ecological information that has been developed in recent decades along with advances in valuation methodologies makes the task manageable—especially if one excludes from the calculus de minimis levels of pollution that produce no real harm.²²⁸

2. Horizontal Effect but Narrow Framing Consistent with Emerging American Norms

While a right to be free from harmful pollution would have a horizontal effect—establishing duties for private parties as well as the government—it would do so in the most constitutionally protected domain: the right of individuals to the sanctity of their person, their home, and the necessities of life.²²⁹ Framed as a right against harmful pollution intrusions, these negative environmental rights would be seen as offering a bright line that keeps courts clear of the polycentric problem of trying to engage in setting policy goals, allocating costs, or making tradeoffs.

Even more usefully, the idea that pollution spillovers should not be countenanced has already gained widespread support—and would be seen as consistent with emerging public expectations and business ethics. Evidence of this new reality can be seen, for instance, in the widespread adoption of net-zero GHG emissions targets. Not only have governments around the world—including the U.S. government—committed to net-zero emissions by 2050, but this target and timetable has cascaded to the business community where thousands of companies have made net-zero GHG pledges.²³⁰

Growing public expectations of corporate transparency and reporting on sustainability performance more broadly has helped to reinforce the sustainability imperative framework. These new expectations around emissions disclosure reinforce corporate commitments to reduce pollution and end environmental externalities. Emissions disclosure, in turn, also provides the data needed to identify pollution spillovers that might be subject to legal action by a right to be free from harmful pollution.²³¹ The finance world has added momentum to this trend with a growing number of investment advisors demanding expanded ESG (environmental, social, and governance) disclosures from the companies in their portfolios. Likewise, a sweeping array of Wall Street leaders and finance experts from around the world have declared their support for net-zero GHG emissions as a corporate target across all industries and for commitments to internalize externalities more generally.²³²

In a similar vein, the Business Roundtable, a collection of 200 CEOs of America’s largest companies, has announced its support for full GHG pricing, which, if implemented, would effectively bring an end to uninternalized externalities in the climate change context.²³³ The Roundtable has also declared an end to the era of shareholder primacy (sometimes framed as the Friedman doctrine, which suggested that corporate leaders should seek to maximize the profits of their enterprises in any manner they could within the bounds of the law). Instead, these CEOs of the Business Roundtable have committed their companies to a mission of stakeholder responsibility in which companies have obligations beyond their owners to their customers, suppliers, employees, the communities in which they operate, and society as a whole (which would almost certainly include a duty not to inflict environmental harms on people or the planet).²³⁴ Simply put, private gain at public expense is increasingly seen as an inappropriate and unacceptable business model. Again, the emergence of what might be seen as a transformed base of business ethics makes a right to be free of uninternalized environmental externalities more of an incremental step than it might otherwise appear to be.

The momentum for net-zero GHG emissions and the broader movement away from a world where corporate pollution was seen as unavoidable has given way to a new reality where any company whose profitability depends on externalizing environmental costs faces ever greater scrutiny. Viewed cumulatively, these trends make clear the breadth of support for the new norm against uninternalized environmental externalities—making it ever easier for courts to adopt as a legal obligation what is already a pervasive business practice.

To draw the obvious conclusion: a right not to be polluted is not the same as having a right to a healthy environment. But the implication of a prohibition on harmful pollution spillovers is that individuals have environmental rights—albeit more narrowly defined. This backdoor into securing environmental rights in the United States might not be the full victory that some environmental advocates would have hoped for, but it is the most expedient path forward given America’s legal traditions and political realities.

CONCLUSION

Fifty years ago, Christopher Stone launched a debate about environmental rights—and opened a conversation that has not yet come to an end, at least in the United States. This Article does not purport to bring the discussion to a close, but it offers a direction that might be taken up to ensure that U.S. courts are positioned to play an appropriate judicial role in addressing the threat of climate change and putting America on a trajectory toward a sustainable future.

I believe that there is ample basis for concluding that environmental rights should be understood as an element of natural law—meaning, as Dinah Shelton proposes,²³⁵ that a narrowly crafted right to a safe and healthy environment should be recognized as an element of human rights and respected in all nations at all times. But to advance this agenda in the United States, the most promising path forward appears to me to be a focus in the federal context on securing negative environmental rights—defined concretely as a right not to be harmed by pollution. In advancing a right centered on enforcing an end to uninternalized environmental externalities, U.S. judges would be able to respond to climate change litigation and other sustainability-related cases in a thoughtful, serious, and tightly focused manner that steers clear of concerns about the separation of powers, the political question doctrine, and appropriate modes of effective judicial relief. Simply put, a narrowly constructed right to be free from harmful emissions would give pollution victims in America standing, which might just be enough to save the planet.

APPENDIX: ENVIRONMENTAL RIGHTS PROVISIONS BY COUNTRY

	National Constitution	International Treaty		National Constitution	International Treaty
Afghanistan	N	N	Liechtenstein	N	N
Albania	N	Y	Lithuania	Yi	Y
Algeria	Y	Y	Luxembourg	N	Y
Andorra	N	N	Madagascar	N	Y
Angola	Y	Y	Malawi	Y	Y
Antigua and Barbuda	N	N	Malaysia	Yi	N
Argentina	Y	Y	Maldives	Y	N
Armenia	N	Y	Mali	Y	Y
Australia	N	N	Malta	N	Y
Austria	N	Y	Marshall Islands	N	N
Azerbaijan	Y	Y	Mauritania	Y	Y
Bahamas	N	N	Mauritius	N	Y
Bahrain	N	Y	Mexico	Y	Y
Bangladesh	Yi	N	Micronesia (Federated States of)	N	N
Barbados	N	N	Monaco	N	N
Belarus	Y	Y	Mongolia	Y	N
Belgium	Y	Y	Montenegro	Y	Y
Belize	N	N	Morocco	Y	N
Benin	Y	Y	Mozambique	Y	Y
Bhutan	N	N	Myanmar	N	N
Bolivia (Plurinational State of)	Y	Y	Namibia	Yi	Y
Bosnia and Herzegovina	N	Y	Nauru	N	N
Botswana	N	Y	Nepal	Y	N
Brazil	Y	Y	Netherlands	N	Y
Brunei Darussalam	N	N	New Zealand	N	N
Bulgaria	Y	Y	Nicaragua	Y	Y
Burkina Faso	Y	Y	Niger	Y	Y
Burundi	Y	Y	Nigeria	Yi	Y
Cambodia	N	N	North Macedonia	Y	Y
Cabo Verde	Y	Y	Norway	Y	Y
Cameroon	Y	Y	Oman	N	N
Canada	N	N	Pakistan	Yi	N
Central African Republic	Y	Y	Palau	N	N
Chad	Y	Y	Panama	Yi	Y
Chile	Y	N	Papua New Guinea	N	N
China	N	N	Paraguay	Y	Y
Colombia	Y	Y	Peru	Y	Y
Comoros	Y	Y	Philippines	Y	N
Congo	Y	Y	Poland	N	Y
Costa Rica	Y	Y	Portugal	Y	Y
Cote d’Ivoire	Y	Y	Qatar	N	Y
Croatia	Y	Y	Republic of Korea	Y	N
Cuba	Y	N	Republic of Moldova	Y	Y
Cyprus	Yi	Y	Romania	Y	Y
Czechia	Y	Y	Russian Federation	Y	N
Democratic People’s Republic of Korea	N	N	Rwanda	Y	Y
Democratic Republic of the Congo	Y	Y	Saint Kitts and Nevis	N	Y
Denmark	N	Y	Saint Lucia	N	N
Djibouti	N	Y	Saint Vincent and the Grenadines	N	Y
Dominica	N	N	Samoa	N	N
Dominican Republic	Y	N	San Marino	N	N
Ecuador	Y	Y	Sao Tome and Principe	Y	Y
Egypt	Y	Y	Saudi Arabia	N	Y
El Salvador	Yi	Y	Senegal	Y	Y
Equatorial Guinea	N	Y	Serbia	Y	Y
Eritrea	N	Y	Seychelles	Y	Y
Estonia	Yi	Y	Sierra Leone	N	Y
Eswatini	N	Y	Singapore	N	N
Ethiopia	Y	Y	Slovakia	Y	Y
Fiji	Y	N	Slovenia	Y	Y
Finland	Y	Y	Solomon Islands	N	N
France	Y	Y	Somalia	Y	Y
Gabon	Y	Y	South Africa	Y	Y
Gambia	N	Y	South Sudan	Y	N
Georgia	Y	Y	Spain	Y	Y
Germany	Yi	Y	Sri Lanka	Yi	N
Ghana	Yi	Y	Sudan	Y	Y
Greece	Y	Y	Suriname	N	Y
Grenada	N	N	Sweden	N	Y
Guatemala	Yi	Y	Switzerland	N	Y
Guinea	Y	Y	Syrian Arab Republic	N	Y
Guinea-Bissau	N	Y	Tajikistan	N	Y
Guyana	Y	Y	Thailand	Y	N
Haiti	N	N	Timor-Leste	Y	N
Honduras	Y	Y	Togo	Y	Y
Hungary	Y	Y	Tonga	N	N
Iceland	N	Y	Trinidad and Tobago	N	N
India	Yi	N	Tunisia	Y	Y
Indonesia	Y	N	Turkey	Y	N
Iran	Y	N	Turkmenistan	Y	Y
Iraq	Y	Y	Tuvalu	N	N
Ireland	Yi	Y	Uganda	Y	Y
Israel	N	N	Ukraine	Y	Y
Italy	Yi	Y	United Arab Emirates	N	Y
Jamaica	Y	N	United Kingdom of Great Britain and Northern Ireland	N	N
Japan	N	N	United Republic of Tanzania	Yi	Y
Jordan	N	Y	United States of America	N	N
Kazakhstan	N	Y	Uruguay	N	Y
Kenya	Y	Y	Uzbekistan	N	N
Kiribati	N	N	Vanuatu	N	N
Kuwait	N	Y	Venezuela (Bolivarian Republic of)	Y	N
Kyrgyzstan	Y	Y	Vietnam	Y	N
Lao People’s Democratic Republic	N	N	Yemen	N	Y
Latvia	Y	Y	Zambia	N	Y
Lebanon	N	Y	Zimbabwe	Y	Y
Lesotho	N	Y	TOTAL	110	126
Liberia	Yi	Y
Libya	N	Y

* Yi indicates implicit constitutional language. Adapted from Boyd et al., supra note 43, at 50–55.

95 S. Cal. L. Rev. 1345

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Daniel C. Esty*

* Hillhouse Professor of Environmental Law and Policy, Yale Law School and Yale School of the Environment. The author thanks Andrew Follett, Isabella Soparkar, Kirsten Williams, Zack Steigerwald Schnall, Jan-Baptist Lemaire, and Sara Gomez for their research assistance—and Professors Don Elliott and Quinn Yeargain for conversations that helped to shape the argument presented.

Standing for Rivers, Mountains—and Trees—in the Anthropocene

April 2023April 2023David Takacs*

In his well-known article, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, Professor Christopher Stone proposed that courts grant nonhuman entities standing as plaintiffs so their interests may directly represented in court. In this Article, I review Stone’s ideas about standing and our relationship with the natural environment and describe the current, burgeoning, widespread trend toward granting not just standing, but legal rights and legal personhood to rivers, mountains, and other natural entities. I analyze the ways in which courts and legislatures in New Zealand, Australia, Colombia, and elsewhere are addressing concerns similar to Stone’s with expansive, even radical results. I draw from multiple sources, including interviews I conducted with actors advocating for or implementing these legal initiatives. Stone eloquently describes how to rationalize and implement standing and other kinds of moral consideration for nonhuman entities, but he did not envision the diverse, expansive, paradigm-shifting, justice-altering ways such rights are being granted in diverse locales around the world. Various human communities have adapted lifeways that ensure their behaviors continue to sustain their environments so that their environments continue to sustain them; often they have been dispossessed from the legal right to manage their natural environment. When jurisdictions grant rights for rivers, they simultaneously honor the cosmologies and practices of those who are staking moral, historical, ecological, and now legal, claims to speak for nonhuman entities. The very notion—espoused by Stone and now inscribed in law around the world—that law should be rooted in ecological interrelationship is itself a paradigm shift that shapes our mindsets and thus our behaviors toward the natural world that is us.

INTRODUCTION

For one, the fact that we can bring a suit on behalf of loggerheads and leatherbacks is an affirmation of who we are, or may become, as a people. . . . But these happenings, together with the collapsing glaciers and vanishing frogs, are offered to us the way a sly God scatters omens—black cats and thunderclaps—to test whether a people is really worth saving, offering them a final chance, if they will only make the right interpretation, to mend their ways. It should not take an oracle to read the signs.¹

In his famous² law review article, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, Professor Christopher Stone proposed that courts grant nonhuman entities standing as plaintiffs to have their interests directly represented in court.³ In this Article, I revisit Trees and other writings from Stone through the lens of the current global movement to grant legal rights to rivers, mountains, and other nonhuman ecosystems.

For Stone, “standing” stood for more than whose interests count in the law. Writing (presumably) as a dutiful law professor who wanted to get published, Stone framed his original article around constitutional standing requirements, that is what would and should get an entity a hearing in court. But more profoundly, Stone was reaching for a new understanding of humans’ place on the planet. Standing was a vehicle for a disquisition on matters that were, as he wrote, “a bit unthinkable”⁴—a holistic, radical (as in, from the roots) paradigm shift on humans’ place in the natural world, and our hubris in not seeing where our proper place should be. Stone later wrote that his “concern is not with moral and legal philosophy for their own sake. Rather, the animating concern is worldly: What sort of planet will this be?”⁵

In this Article, I describe the current, burgeoning, widespread⁶ trend toward granting not just standing, but legal rights and legal personhood to rivers, mountains, and other natural entities.⁷ These legal moves leap beyond standing in ways Stone could not have anticipated fifty years ago and reimagine our relationship to the nonhuman world, as inscribed in the law.

In Victoria, Australia, the Yarra River Protection Act (Wilip-gin Birrarung murron) names the Yarra as “one living . . . natural entity.”⁸ The law creates the eleven-person Birrarung Council, including at least two Aboriginal traditional custodians, as well as representatives from environmental groups, and scientific, planning, and agricultural interests. They are the Voice of the River and now speak for the interests of the Yarra as the government charts a fifty-year plan to manage the river. Colombia’s highest court has drawn upon ecocentric philosophy to give rights to the polluted Río Atrato, while ordering the government to assemble a committee of local residents and government officials to determine what legal personhood means for the river.⁹ Following this lead, Colombian courts have declared that the Amazon,¹⁰ several other rivers,¹¹ a high-altitude ecosystem,¹² and the spectacled bear¹³ are legal persons. In New Zealand, the legislature has passed laws granting personhood—with “all the rights powers, duties, and liabilities of a legal person”—to the Whanganui River and to the Te Urewera mountain ecosystem on the North Island.¹⁴ In both cases, the legislation grants local Māori communities the rights to speak for the natural features; they have started by laying out the traditional community values that define their interrelationship with the natural entities for whom they will speak.¹⁵

When, as the Māori express it, “Ko au te awa, ko te awa, ko au” (“I am the River and the River is me”),¹⁶ the river’s interests must be taken into account, based on a worldview that the river’s interests are our interests. In numerous locales, citizens, governments, legislatures, and courts are moving toward Stone’s idea of a “radically different law-driven consciousness,”¹⁷ and in so doing, this posture both reflects and evolves communities’ views of themselves. When the law turns from “we own the river” to “we are the river,” we redefine how the law understands “property.” At the same time, we create new legal paradigms that conceive of the human-nature relationship in novel ways and that empower different voices who speak for what that relationship should comprise, and why. In these nations, legislatures and courts are redefining who “we” actually are. These shifts in worldview also hack traditional power hierarchies, as those who have been disenfranchised from managing environmental resources gain legal control to say what the river or mountain (and therefore their own human communities) really need. These changes build upon and reflect Stone’s ideas, but they also transcend them in ways he might never have envisioned.

Ideas can act as forces of nature. Our evolving views of who we are and what nature needs shape our ethical precepts about these relationships; these ethical evolutions (re)shape the law. The law, in turn, shapes the natural world through what it permits and proscribes, and that remade nature, in turn, shapes our views and ethics. When a particular worldview prevails and ecosystems gain formal rights, the evolution has not been in the original views of those who have proposed such conceptions, now inscribed in law: the Māori, for example, have long believed in an indivisible relationship with the natural world around them. Instead, the ethics of the hegemonic cultures in some nations are evolving. When governments or courts grant rivers legal rights, they reflect and propel changing views both of human relationships with the natural world, and of dominant groups’ relationships with indigenous peoples or other disenfranchised subpopulations from whom the right to manage the natural world had been taken.

In this Article, I review Stone’s ideas about standing and our relationship with the natural environment and analyze the ways in which courts and legislatures in Australia, Colombia, New Zealand, and elsewhere have addressed similar questions with expansive, even radical results. I draw from multiple sources, including interviews I conducted with actors advocating for or implementing these legal initiatives. Stone eloquently describes how to rationalize and implement standing and other kinds of moral consideration for nonhuman entities. But he did not envision the diverse, expansive, paradigm-shifting, justice-altering ways such rights are being granted in diverse locales around the world. When jurisdictions grant rights for rivers, they honor the cosmologies and practices of those who are staking moral, historical, ecological, and now legal, claims to speak for nonhuman entities. Various human communities have adapted certain lifeways that ensure their behaviors continue to sustain their environments so that their environments continue to sustain them; often they have been dispossessed from the legal right to manage their natural environment. The very notion—espoused by Stone and now inscribed in law around the world—that law should be rooted in ecological interrelationship is itself a paradigm shift that shapes our mindsets and thus our behaviors toward the natural world that is us.

I. THE THEMES THAT ANIMATE CHRISTOPHER STONE’S WORK

By advocating for legal standing for rivers, mountains, and, famously, trees, Stone was really standing for an evolved view of humans’ relationships with the natural world to be inscribed in the law.

A. Standing

Constitutional standing was the legitimated, law-professor-proper way to write about more radical ideas. Criticizing U.S. standing doctrine is a favorite pastime of some law professors.¹⁸ But Stone goes beyond the normal complaints. Standing, as he notes, “does nothing but get you through the courthouse door; it does not mean the case on behalf of the environment is won, or can even be argued intelligibly.”¹⁹ He decries that in environmental cases, nature—whales, trees, rivers, whatever—are the real objects of concern, even though the law does not treat them as such. Stone advocated that nonhumans should have direct legal rights, where an appropriate custodian could institute legal actions on the entity’s behalf.

When the law recognizes this, injury to the entity itself must be the focus of legal attention, and relief from injuries must flow to the entity’s benefit.²⁰ For example, in the 1970s debate over Disney Corporation’s planned development in the Mineral King Valley of the Sierras, Stone advocated:

[W]hy not designate Mineral King, the wilderness area, as the plaintiff ‘adversely affected,’ let the Sierra Club be characterized as the attorney or guardian for the area, and get on with the merits? Indeed, that seemed a more straightforward way to get at the real issue, which was not what all the gouging of roadbeds would do to the club or its members, but what it would do to the valley. Why not come right out and say—and try to deal with—that?²¹

In the resulting case, Sierra v. Morton, U.S. Supreme Court Justice Douglas cites Stone’s work (albeit in dissent): “Permitting a court to appoint a representative of an inanimate object would not be significantly different from customary judicial appointments of guardians ad litem, executors, conservators, receivers, or council for indigents.”²² Justice Douglas suggests that the suit should “be more properly labeled as Mineral King v. Morton.”²³ But with the current state of the law, to get through the courtroom gates, an appellant had to argue that it is their human interests that matter. Stone pithily sums up his opinion on this state of affairs: “How grotesque.”²⁴

It is not that standing did not matter to Stone—it is just that the current state of standing is a symbolic surrogate for the misdirected ways we apply our environmental laws. For Stone, then, standing was a professorially suitable stand-in for much more. As he wrote, “My concern is not with moral and legal philosophy for their own sake. Rather, the animating concern is worldly: What sort of planet will this be?”²⁵ But despite the expansive views Stone promoted, even in his later writings, I cannot see that he could have envisioned the bends and oxbows the flow of developments has taken in the current movement to give rights to nonhuman entities.

B. Who Is to Say What the Natural Entity Wants?

Stone proposes, soundly, that apt “guardians” or “conservators” exist who have earned a place to speak for the needs of the nonhuman world.²⁶ Writing as late as 2010, he does not envision the place-specific, justice-promoting answers of who will speak for nature that different rights-granting governments now envision, which I will detail below. Even if fitting guardians could be identified, Stone visualizes problems in what they would say about what the nonhuman world would actually want. He wrote extensively about how difficult it is to assess the needs and wants of nonpersons.²⁷ He asks, “On what basis, and in what manner, might a nonhuman, a thing, be accorded legal or moral standing or considerateness?”²⁸ While he dislikes that “[o]rthodox legal and moral theories provide nonhumans only a limited accounting, one that generally makes the claim on behalf of the thing directly dependent upon human interests,” he nonetheless continues that this “is particularly so when we turn to things like rivers that (unlike whales) have no interests or preferences of their own.”²⁹ And thus, because the “lake itself being utterly indifferent to whether it is clear and full of fish or muddy and lifeless, when the guardian for the river gets up to speak, what is he or she supposed to say?”³⁰

Because “[n]onpersons . . . have no preferences[,] . . . [w]hat, then, could comprise a working solution” to those who would be granted standing to speak for those alleged preferences?³¹ As he goes on about how difficult it is to assess the needs and wants of nonpersons, Stone’s imagination fails him.³² When jurisdictions grant legal rights to nonhuman entities, they impute that the river is not indifferent, and neither are the communities that depend upon and speak for the river. The communities know and depend upon the river, and the law could thus allow the communities to speak for the lake and community symbiosis. Ecosystem entities may, indeed, tell us what they want. In his book, Wild Law: A Manifesto for Earth Jurisprudence, Cormac Cullinan writes:

Fortunately rivers communicate rather a lot about their essential natures. We know that they need to flow, tend to rush over rocks in a highly oxygenated, high-energy flurry in their upper reaches, and have a distinct inclination to meander languidly in their lower reaches. They create microclimate and Riverine ecosystems along their banks and they flood from time to time, compensating for what they destroy with rich silt and demarcating a flood plain as their territory. In other words, a flooding River is almost certainly acting in accordance with its nature.³³

We will see that in granting rights to rivers and mountains, modern legal actors are coming to recognize that these entities might tell us what they need, and apt spokespersons exist for conveying these messages. At the same time, nature is becoming a fulcrum to leverage power for disparate actors who have been previously disenfranchised from speaking for nature or for managing the resources upon which they depend. In his writings, Stone does suggest scientists could be the guardians because of their “authoritative” opinions and could thus speak with “practical wisdom and humility.”³⁴ Stone does not contemplate indigenous people who have been guardians (even if they would choose a different translated term) for natural objects.

C. Property

Stone was also using standing as a disquisition on the nature of “property.”³⁵ It is interesting that the star-making idea of his career—in his retelling, at least—came from an off-the-cuff series of thoughts at the end of a property class: “I sensed that the students had already started to pack away their enthusiasm for the next venue. (I like to believe that every lecturer knows this feeling.)”³⁶ In class, he used “property” to illustrate that

[t]hroughout history, there have been shifts in a cluster of related property variables, such as: what things, at various times were recognized as ownable . . . who was deemed capable of ownership . . . the powers and privileges ownership conveyed . . . and so on. It was easy to see how each change shifted the locus and quality of power. . . . “So,” I wondered aloud, reading their glazing skepticisms, “what would a radically different law-driven consciousness look like? . . . One in which Nature had rights[.]” I supplied my own answer: “Yes, rivers, lakes, . . .” (warming to the idea) “trees . . . animals . . .” (I may have ventured “rocks”; I am not certain.) “How would such a posture in law affect a community’s view of itself?”³⁷

Around the world, governments, legislatures, and courts are moving toward this “radically different law-driven consciousness” and in so doing, this posture is both affecting and reflecting communities’ views of themselves and of what constitutes “property.” When we move from “we own the river” to “we are the river,” we enter into a new paradigm of what “property” is and who “we” actually are. But Stone does not quite go where some of the cultures and governments I portray here will travel.

Stone was reaching for a paradigm shift, a break with a worldview, reflected nearly universally in property (but also other forms of) law, that humans are apart from and not a part of the natural world. Even by the time he was writing, the Public Trust Doctrine had made its peripatetic way around the world for more than a millennium (connoting that certain natural features are so essential to human survival that the sovereign could not arrogate them to private interests).³⁸ States and nations were beginning to pass environmental human rights resolutions, declaring that the right to a healthy environment (or some elements thereof) is essential to human well-being and dignity.³⁹ That did not mean, however, that those who would vindicate those rights could find their way into court, or if they did, that the natural world upon which the appellant depended would benefit from a favorable ruling; nor did it change the nature of human ownership over the natural world.

Stone was reaching for not only a new worldview on what “private property” is and could be, although in a more limited way than the legal maneuvers I describe below will lead:

Wherever it carves out “property” rights, the legal system is engaged in the process of creating monetary worth. . . . I am proposing we do the same with eagles and wilderness areas as we do with copyrighted works, patented inventions, and privacy: make the violation of rights in them to be a cost by declaring the ‘pirating’ of them to be the invasion of a property interest.⁴⁰

The interest is held by the nonhuman entity itself and defendable by suitable guardians who will insure against unjust infringements on the property right.⁴¹ And so, for example, when the Endangered Species Act protects “critical habitat,” it is giving the listed species a kind of defendable property right.⁴²

Stone’s vision was both expansive (nature belongs to all of us and none of us for our stewarded, essential, interconnected uses) and circumscribed (expanding who might own a property right, but still the nature of property remained rooted in Western notions of ownership).

D. Nature as Relationship

Even as he finds it difficult to discern how a “guardian”⁴³ would speak for the desires of nonhuman entities, Stone still roots his views in our need to reconfigure our laws, so we recognize the fundamental interconnection between human and nonhuman. Ecological science should shape how we view our relationships with the nonhuman world, and thus how we shape our laws:

This learning to look at the world from the other thing’s distinctive standpoint is a major step toward respecting its moral worth . . . the growing recognition that we are all, even amidst so much conflict and competition, part of one fragile global community encourages rearranging the legal-moral framework so as to make more room not only for the infirm, insane, and infants, but for animals, plants—indeed, for the entire planet as an organic whole.⁴⁴

Specifically, he wished that we took these relationships more seriously, to treat those relationships as if our lives depended on it—because, of course, they do.

Perhaps the most remarkable aspect of the movement to grant legal rights to nature is the recognition in the law of the essential, interwoven relationship between humans and nonhumans, and that modern, Western law is simply catching up to what indigenous peoples and other communities dependent upon the natural world (but aren’t we all?) have long known. Stone notes:

Mankind is part of this organic planetary whole; and there can be no truly new global society, and perhaps in the present state of affairs no society at all, as long as man will not recognize, accept and enjoy the fact that mankind has a definite function to perform within this planetary organism of which it is an active part.⁴⁵

His underlying concern is that

[t]he problems we have to confront are increasingly the world-wide crises of a global organism: not pollution of a stream, but pollution of the atmosphere and of the ocean. Increasingly, the death that occupies each human’s imagination is not his own, but that of the entire life cycle of the planet earth, to which each of us is as but a cell to a body.⁴⁶

Similarly, “[b]ecause the health and well-being of mankind depend upon the health of the environment, these goals will often be so mutually supportive that one can avoid deciding whether our rationale is to advance ‘us’ or a new ‘us’ that includes the environment.”⁴⁷ Below, we will see how courts and legislatures are redefining who “we” might be.

Clearly, Stone had a lot more on his mind than constitutional standing. He is trying to figure out how to fit the round peg of ecological science and ecological consciousness into the square hole of myopic legal doctrine. In standing, and in figuring out who would be appropriate guardians and what they should say when asked about nature’s needs, Stone states that “while the habitat may include higher animals, we may find ourselves wishing to speak for some value not reducible to the sum of the values of the habitat’s parts, the various things that the habitat sustains in relation.”⁴⁸ Writing about Ecuador’s constitutional change that granted legal rights to nature, he notes this “may reflect a shift, in Ecuador at least, from an exclusively homocentric view of the environment to one in which some consideration of Nature itself constrains permissible levels of ‘resource’ exploitation.”⁴⁹

The legal rights that I describe below have disparate answers to how to name and prize and legalize these synergistic values.

E. Ideas as Forces of Nature

As, I believe, Stone was aware, ideas act as forces of nature. He notes that “[h]ow we arrange our affairs so that the future we choose is the future that becomes the reality: that is the question of social institutions, of law.”⁵⁰ Our ethical systems should be informed by our scientific understanding of how we are interconnected with the natural world. And our laws need to reform to reflect this evolved understanding. In so doing, the law would mold the natural world through permitted and proscribed human behaviors. Remade nature then molds our worldviews and our ethics and, eventually, our laws.

In the United States, our current limited standing doctrine represents a pronounced anthropomorphic (or even egocentric) view of our place in the natural world: it is my needs that count. And this limits the possibility for sustaining the natural world: when the benefits of a successful environmental legal battle fail to flow to protect and restore the harmed natural entity, nature continues to degrade. If we achieved what Stone was seeking—recognition that healthy human communities require healthy ecological communities—we would continue to restore and protect the natural world, whose contours would continue to shape our experiences of it. Below I describe what has happened when nations evolve their laws to reflect an evolved conception of the value of the human and nonhuman relationship.

II. AUSTRALIA

A. Introduction

The Yarra River flows 150 miles through the heart of the Australian State of Victoria, weaving through farms, vineyards, ranches, Aboriginal lands, national, state, and local parks, and, eventually, meandering through the heart of Melbourne and its sprawling suburbs. The Yarra is the state’s most vital resource, and everyone wants a part of it. The 2017 Yarra River Protection Act (Wilip-gin Birrarung murron, which translates to “Keep the Birrarung Alive” in Wujundjeri⁵¹) describes the Yarra as “one living and integrated natural entity.”⁵² The Yarra River Protection Act is the first Australian law containing both English and an Aboriginal language. “Birrarung” translates to “river of mists and shadows.”⁵³ Part of the Act’s Wujundjeri text reads (in translation):

The Birrarung is alive, has a heart, a spirit and is part of our Dreaming. We have lived with and known the Birrarung since the beginning. We will always know the Birrarung. . . . Since our beginning it has been known that we have an obligation to keep the Birrarung alive and healthy—for all generations to come.⁵⁴

B. Who Is to Say What the Natural Entity Wants?

The Act provides one solution to Stone’s challenge to find appropriate spokespersons for what a nonhuman ecosystem wants or needs.⁵⁵ The Birrarung Council, which the Act names as “the Voice of the River,” is an eleven-person body who will speak for what the river might require. Appointed by the Environment Minister, the council acts as an independent (meaning without government representatives) advisory body.⁵⁶ Currently, the group comprises three Aboriginal elders (the Act requires at least two), an infrastructure expert, two members from a Yarra Riverkeeper NGO, a landscape architect, a farmer or rancher, and an environmental lawyer and legal scholar.⁵⁷ This disparate group seeks to be independent, transparent, accountable, consultative, expert, and considered.⁵⁸

The council is not the Yarra’s official legal “guardian”; it serves as “the independent voice of the river” and reports to the Minister for Water, Planning, and Environment.⁵⁹ The council is currently tasked with speaking for the river during a ten-year strategic plan and fifty-year community vision processes hosted by the state’s municipal water agency.⁶⁰

COVID-19 has delayed much of the council’s preparatory work during the past two years, but its first two annual reports have been about relationship building with key stakeholders and, especially, with local governments along the Yarra River. It has played a major role in getting the Yarra Strategic Vision completed, and it looks forward to playing a major role in holding responsible public entities accountable as they implement the plan.⁶¹

As in several other grants of rights for nonhuman entities (see below), the answer to Stone’s investigation of who should be empowered to speak for the nonhuman world includes indigenous or local, ecosystem-dependent populations. Here, in addition to the Act requiring that Aboriginal elders serve, the Birrarung Council has framed its mission “[a]s a bi-cultural, independent and authentic voice of the Yarra, the Birrarung Council champions the interests of the river as one living and integrated natural entity, guided by the voice and knowledge of Traditional Owners as the custodians of the river and its lands.”⁶² The council describes that some of the initial work they are doing has included building “a collective Council understanding of Wurundjeri Woi-wurrung appreciation of the River and its corridor,” and notes that such “learning cannot occur just by sitting at the conference table but requires the council to physically engage with the River.”⁶³

The Wurundjeri Forward to the 2022 Yarra Strategic Plan acknowledges that the Act gives the people “a legislative mechanism and a formal process through which to engage with responsible public entities to work collaboratively and oversee the governance of the Birrarung and its lands as one living entity” and that “[o]ur inclusion in the Act was highly significant for the first time a legislative mechanism included a placed-based approach to the management of a waterway—pairing right Country with the right people—our people.”⁶⁴ The Forward from the Bunurong people stresses the 35,000 year history (over 2,000 generations) of their ancestors as lending credibility to their right and wisdom to help speak for what the river might need; for them, “[a]ll of [their] Country is highly significant, every square inch, every rock, every leaf, every dune and every artefact.”⁶⁵

The ideas that Stone championed, decades ago and far away, now provide a fulcrum to leverage power for those who have been disempowered from stewarding their own resource base. And those people are using these ideas to advance their own rights to manage their own resource base according to their own traditional and modern concepts of what is right for the human and nonhuman community bond. For example, in the Kimberly of northwest Australia, Anne Poelina, a Nykina Aboriginal elder, is spearheading a movement to have the Fitzroy River (Martuwarra in local language) recognized as a living being with legal rights, with the local Aboriginal groups acting as the voice of the river. She wishes to translate Nykina lore into Australian law.⁶⁶ Their Fitzroy River Declaration declares that “[t]he Fitzroy River is a living ancestral being and has a right to life.”⁶⁷ Dr. Poelina and other scholars have published in Transnational Environmental Law, Recognizing the Martuwarra’s First Law Right to Life as a Living Being. The “Martuwarra RiverOfLife” itself is listed as the first author.⁶⁸ The article draws upon other grants of legal rights to rivers as a basis for its own assertion that this River in the Kimberly deserves similar recognition, with the local Martuwarra Nations accorded the rights to speak for what the river and culture nexus requires.

The article decries the farming, ranching, mining, and fracking that is destroying the river (and the ancient cultures that depend upon it and have long depended upon it). They assert the right to speak for the river as “Traditional Owners” who “view Country as alive, vibrant, all encompassing, and fully connected in a vast web of dynamic, interdependent relationships; relationships that are strong and resilient when they are kept intact and healthy by a philosophy of ethics, empathy and equity.”⁶⁹ Dr. Poelina and others (see below) are using our desire to find appropriate spokespersons for the human and nonhuman relationship, to sustain our natural environment, and to atone for past wrongs committed against indigenous people. Initiatives that include or devolve cultural and thus management authority to indigenous or local communities make compelling cases that these communities’ histories, worldviews, and ecological knowledge grant them the authority to speak for and thus regulate the ecosystems that sustain them. They assert that they will manage nature as if their lives depended on it, because their lives depend on it.

C. Standing

It is not clear that the Birrarung Council would ever have formal legal standing to represent the Yarra River’s interests in a court proceeding. The Act grants the river its spokes-council, but it does not look like the Yarra has legal rights of its own that the council would be empowered to defend.⁷⁰ That is to say, the Act recognizes that many, many entities have interests in the Yarra, and simply names a suitable entity to advocate for the river’s own needs when its waters are being allocated.

D. Property

As a result of this Act, the river does not own itself, or own any rights to its own water. As Birraung Council member Erin O’Donnell has noted disapprovingly of all newly established legal rights for rivers, “None of the river persons has a legally recognised right to flow.”⁷¹ So while the Birrarung Act recognizes the vital force of the river in the life of Victorians, and provides voices to protect that force, it does not radically change the idea of who can own what ecosystem resource or what counts as “property” under the law.

E. Ideas as Forces of Nature

The Birrarung Council has stated its vision grounded in relationship and respect: “For the Yarra River [Birrarung] and its lands to be forever protected as a living entity and kept alive and healthy for the benefit of future generations.”⁷² One of the council’s early ideas promotes the concept of “the Great Birrarung Parkland.” It aims to “champion the extension and greater recognition of this unique asset” to preserve more of the river and its riparian corridor for future generations.⁷³ Furthermore, the council sees its role “to challenge conventional thinking about the nature of a ‘park’ as a parcel of land which exists for a public purpose.”⁷⁴ Specifically, it advocates that Victoria take the “one living and integrated natural entity” language seriously, which should include the way we conceive of parklands not as disconnected parcels, but a continuous entity:

The narrative about the Parkland should convey that its significance is about more than just gazetted land, and relates to a combined landscape of all land parcels that form the river corridor landscape. Such an understanding would allow the public to more fully and respectfully experience the River, understand its cultural significance for all Australians and improve connection to the River.⁷⁵

The brand new Yarra Strategic Plan’s Aboriginal name—Burndap Birrarung burndap umarkoo—means “[w]hat is good for the Yarra is good for all.”⁷⁶ The Yarra Strategic Plan proposes that “[c]ollaborative management of the river will rightly see Traditional Owners and authorities working together to manage Yarra River land.”⁷⁷ Informed by the Birrarung Council, the vision is of a multicultural panel that represents various interests in sustaining the river. The Victoria government has empowered the council to speak for what the river needs because of both traditional and modern forms of wisdom. It sees the river as a vital entity that links ecology and culture, past and present in a seamless, flowing whole.

According to the Birrarung Council, recognition of the Yarra and other rivers as living beings “has been explicitly grounded in the relationship between the river and the people(s) who live along and near it.”⁷⁸ The legally appointed “Voice of the River,” composed of diverse individuals with different access to different expertise, will speak for that relationship going forward. If the goals of the statute are realized, the river and its interrelated communities will be healthier in the future. We should continue to watch how the legally appointed “Voice of the River” uses its voice to speak for how the relationship should be sustained.

III. COLOMBIA

A. Introduction

While in Australia, answers to some of Stone’s challenges came through statute, in Colombia, those answers come from court decisions. In a 2016 case brought by Afro-Caribbean communities in the Chocó, “one of the most bio-diverse regions of the planet”⁷⁹ and part of “mega-biodiverse” country of Colombia,⁸⁰ the Constitutional Court declared that the Rio Atrato’s “basin and tributaries are recognized as an entity subject to rights [(which translates to ‘entidad sujeto de derechos’)] of protection, conservation, maintenance and restoration by the State and ethnic communities.”⁸¹ Following this decision, Colombian courts have declared that the Amazon,⁸² several other rivers,⁸³ a high-altitude ecosystem,⁸⁴ and the spectacled bear⁸⁵ are legal persons. What is going on here, and what might Stone have made of all this?

B. Who Is to Say What the Natural Entity Wants?

Unlike in Australia or New Zealand, where communities stake their claims to manage their environment in part due to cultural identities as indigenous peoples whose arrival and environmental stewardship long predated the colonizers, here the affected communities are marginalized—Afro-Caribbean residents whose ancestors migrated to this region a couple of centuries ago and who are dependent on and connected to the affected river.

To represent the river, the court orders the national government to “exercise legal guardianship and representation of the rights of the river,” designating one government minister to join a community-appointed guardian.⁸⁶ These “legal representatives,” in turn, are tasked with designating a “commission of guardians of the Atrato River” guided by two NGOs who “have the necessary experience to guide the actions to take. This advisory team can be formed and receive support from all public and private entities, universities[,] . . . research centers on natural resources and environmental organizations (national and international), community and civil society wishing to join the protection project.”⁸⁷ Each of seven river communities appointed one male and one female guardian to develop a plan to implement the court’s ruling.⁸⁸ The members of the Collegiate Corps of Community Guardians are responsible comanagers for seeing that the order of the court is fulfilled as part of the Commission of Guardians of the Rio Atrato, consisting, as the court ordered, of representatives of government and affected communities.⁸⁹

Chief Justice Palacio informed me that it is not working as quickly as we all would like, but enormous efforts have been made to comply with it, especially by the Colombian Attorney General’s Office.⁹⁰ The work has not been easy, with COVID-19 making a new model of environmental management even more difficult than it would otherwise be, as the most recent report of the committee acknowledges.⁹¹ The scope of work that the committee has taken on is impressive—that is, the judicial decision does seem to have prompted the remedial actions the government is now taking. Throughout the report, the rights of the river are addressed as the co-managers develop their expertise to say what the river might need.

The court proclaims that “the protection of a healthy environment of the black communities acquires special relevance from the constitutional point of view, since it is a necessary condition to guarantee the validity of their lifestyle and their ancestral traditions.”⁹² According to the court, “[t]he communities have made the Atrato River Basin not only their territory, but the space to reproduce life and recreate culture.”⁹³ Chief Justice Palacio reiterated to me that these isolated, ethnic minority communities had been abandoned by the government as their environment was being destroyed and thus required special judicial intervention.⁹⁴ The local Afro-Caribbean inhabitants require a healthy river, and they wish to help the river return to health through managing “according to their own laws and customs—and the natural resources that make up their habitat, where their culture, their traditions and their way of life are developed based on the special relationship they have with the environment and biodiversity.”⁹⁵

As in Australia and New Zealand, the law is highlighting a certain kind of relationship that gives those who would speak for nature legal authority to sustain that relationship. Although the communities are not indigenous per se, “since ancestral times,”⁹⁶

there is a close and intimate relationship between the individual and the river, which is observed in expressions such as “he does not like to leave his river” or “when I return to my river.” In this configuration the river represents a notion of home, a strong feeling of belonging full of symbolic, territorial and cultural values.⁹⁷

To answer Stone’s challenge for who ought to be empowered to speak for what an ecosystem might want, the decision contains a lengthy, learned analysis of “biocultural rights” founded on the interdependence of biological and cultural diversity.⁹⁸ It is this connection that gives these communities the right to speak for what the river needs, because it is what the communities’ livelihoods and cultures need:⁹⁹

[T]he rights that ethnic communities have to administer and exercise autonomous guardianship over their territories—according to their own laws and customs—and the natural resources that make up their habitat, where their culture, their traditions and their way of life are developed based on the special relationship they have with the environment and biodiversity.¹⁰⁰

Inherent in the ecocentric philosophy articulated by the court is the idea that the ecosystem and its constituent parts have moral worth and legally recognized needs, and thus legal rights to meet those needs. The court does not say exactly what the river requires, but it names the associated, culturally and environmentally connected communities as the logical mouthpieces for what the river might need.¹⁰¹ The now-ongoing resulting work is aimed at cleaning up the Atrato and halting the illegal, damaging mining and logging that despoils the river.¹⁰²

C. Standing

The Constitutional Court addresses the standing requirement:

In this case, the representative of the ethnic communities is claiming that the acción de tutela [(a writ for protection of constitutionally guaranteed rights in Colombia)] is necessary to restrain the intensive and large-scale use of various methods of mining and illegal logging. These methods include heavy machinery, such as dredgers and backhoes, and highly toxic substances, such as mercury, in the Atrato River (Chocó), its basins, swamps, wetlands and tributaries. The methods have been intensifying for several years and are having harmful and irreversible consequences on the environment, thereby affecting the fundamental rights of ethnic communities and the natural balance of the territories they inhabit.¹⁰³

The NGO (Tierra Digna) has standing to represent the special rights of the Afro-Caribbean communities who have special solicitude as indigenous and pluri-ethnic communities to have their rights protected.¹⁰⁴

As in the other cases I describe herein, it is not yet clear how the river or any of the other ecosystem elements now given legal rights will have their own rights represented in court. That is to say, Stone’s starting point—formal legal standing in court—remains to be explicated should the river’s ongoing injuries find their way to court.

D. Property

The court notes that these communities have a notion of the river-as-community that diverges from the Western model of river-as-property: “[F]or the ethnic communities, the territory does not fall on a single individual—as it is understood in the classical conception of private law—but above all the human group that inhabits it, so that it acquires an eminently collective character.”¹⁰⁵ However, in the resulting decision, while the river becomes the object of legal obligations, the community does not come to own the river, and the river does not own itself or the waters it contains.

But more so than in the other developments I portray, the court is influenced by, and seeks to promote, ecocentric philosophy. The river may not own itself, but its own needs matter in the law, even apart from the connected needs of the communities that depend on it. Chief Justice Palacio confirmed that his decision was influenced by his deep readings in ecocentric philosophy.¹⁰⁶ The decision respects

other living organisms with whom the planet is shared, which are understood to be worthy of protection in themselves. It is about being aware of the interdependence that connects us to all living beings on earth; that is, recognizing ourselves as integral parts of the global ecosystem—the biosphere—, rather than from normative categories of domination, simple exploitation, or utility.¹⁰⁷

[The] ecocentric approach starts from a basic premise according to which the land does not belong to man . . . . According to this interpretation, the human species is just one more event in a long evolutionary chain that has lasted for billions of years and therefore is not in any way the owner of other species, biodiversity, or resources, or the fate of the planet.¹⁰⁸

E. Ideas as Forces of Nature

Nonetheless, the court had no viable way to change the very nature of property in the Colombian legal system. Instead, the court notes that “the relationship between the Constitution and the environment [is] dynamic and in constant evolution.”¹⁰⁹ Like Stone, the court here is looking for a new appreciation of the human interrelationship with the natural world, wishes that law would reflect this interrelationship, and takes steps toward this desired evolution. Beyond what Stone envisioned, the court finds that a new legal form is necessary to effect that evolution, one that grants direct rights to nature, with a reasonable answer for who should speak for those rights, meaning those communities most dependent on and knowledgeable about the river, in association with the government bodies best poised to stop the pollution destroying that river. Chief Justice Palacio told me that the decision was mean to “send the message: to preserve life. Not just the life of human beings, rather all of life on Planet Earth.”¹¹⁰ Ecocentric philosophy becomes instantiated in legal rights for an ecosystem; ecologically dependent, culturally rooted populations gain legal rights to speak for the river’s rights. Chief Justice Palacio hopes that if the court’s decision is implemented correctly, it would create a feedback loop remaking and revitalizing the river and the human communities that depend on it.

IV. NEW ZEALAND

A. Introduction

New Zealand is providing the most far-reaching, innovative answers to some of the challenges Stone posed. The government has passed statutes that grant the North Island’s Whanganui River and Te Urewera mountain ecosystem (formerly a national park) legal personhood, with Māori communities granted the right to speak for what the river or mountain will require going forward.¹¹¹ A third ecosystem, Mount Taranaki, has also been granted legal personhood, with prepared arrangements for conservatorship shared between eight local Māori in the works.¹¹² I believe the dimensions of these legal revolutions go beyond what Stone could have envisioned.

B. Who Is to Say What the Natural Entity Wants?

Stone wrote extensively about who nature’s “guardian” could and should be, and what they might do once appointed.¹¹³ In Australia and Colombia, legislatures and courts have named appropriate guardians based upon ecological connection and expertise, and historical or cultural claims to have authority in resource management. In New Zealand, the Crown’s desire to remedy past colonial wrongs, and spiritual, cultural, and ecological connections to the ecosystem legitimated the Māori claims to say what the river or mountain wants.¹¹⁴

Statutes grant that various Mãori communities now serve as guardians of the environment. Except, the communities themselves would not use the term “guardians.” Gerrard Albert, chief negotiator for the Whanganui Māori, reminded me that the term “guardian” (or anything similar) does not appear in the statute; more importantly, if anything, the Whanganui guards over the community.¹¹⁵ I think Stone himself would recognize that in some ways it turns reality on its head to say we are guardians for natural objects, as opposed (as Albert believes) that nature, in fact, guards us. We might need to assert a certain fiction in court, but the worldview underlying so much of environmental law is that functioning ecosystems make life possible.

The 2017 Whanganui River Claims Act, or “Te Awa Tupua” (“River With Ancestral Power”) grants legal personhood to the Whanganui River and deeds legal stewardship over the river to the local Māori, based on their longstanding relationship with the river.¹¹⁶ Under the Act, the river “is an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements.”¹¹⁷ The Act acknowledges “Tupua te Kawa,” as the “intrinsic values that represent the essence of Te Awa Tupua,” including that the river is a “spiritual and physical entity that supports and sustains both the life and natural resources within the Whanganui River and the health and well-being of the iwi, hapū,¹¹⁸ and other communities of the River.”¹¹⁹ “Te Pou Tupua” is a newly enshrined governance entity;¹²⁰ as newly named conservators of the river, “[t]he iwi and hapū of the Whanganui River have an inalienable connection with, and responsibility to, Te Awa Tupua and its health and well-being.”¹²¹

The Te Urewera Act turns a former national park (which had been the largest on the North Island)—a magnificent land of mountains, lakes, and rivers—into “a legal entity, and has all the rights, powers, duties, and liabilities of a legal person” with the local Māori given the duties to govern.¹²² The Act notes that “Te Urewera is ancient and enduring, a fortress of nature, alive with history . . . a place of spiritual value, with its own mana [status, prestige] and mauri [life force] . . . has an identity in and of itself, inspiring people to commit to its care.”¹²³

Stone had qualms that anyone could know what a nonhuman biophysical entity wants: “Even if moral obligations to a mountain are conceded to exist in principle, the question of how they can be discharged remains: How does one ‘do right by’ a mountain?”¹²⁴ Operating “as the voice of the living personality of Te Urewera,” the Tühoe Māori have presented its guiding values “that inspirit wise and beneficial decision making” in a preliminary document, “Te Kawa.”¹²⁵ They will know what the mountain wants because “[w]atching Te Urewera over many seasons and centuries reveals her moral conduct acted out in her interrelationships with all life that she has created.”¹²⁶ So for example, “Papatūānuku” or “landscape,” means that “[w]e revere nature, we respect her ability in connecting us to all living things.”¹²⁷ “Mauri,” or “her life” means “the living relationship between the forest the land and everything living within that relationship.”¹²⁸ This means that “prioritized action” will include that “[w]e treasure our indigenous ecological systems and biodiversity through significantly reducing key existing pressures, enabling Te Urewera to a natural state of balance,” which means “we customise smart respectable ways to reduce known and potential pressures.”¹²⁹ So, for example, Te Kawa notes that “[g]uards are effective against new or external pressures looking for a home within [Te Urewera].”¹³⁰ A few initial controversies suggest how these values will enlighten knowledge about the mountain’s desires, as described below.

C. Standing

It is not yet clear how or whether the empowered Māori communities will have formal legal standing to represent their associated ecosystems in court. For example, for the Whanganui, Te Awa Tupua “may participate in any statutory process affecting Te Awa Tupua in which Te Pou Tupua would be entitled to participate under any legislation”;¹³¹ it is not clear if that means formal legal standing. Albert told me that the Whanganui Māori prefer to stay out of court for the present time, choosing instead to build capacity within their communities around what the new laws mean and to build relationships with other neighbors of the Whanganui. He described an occasion shortly after Te Awa Tupua’s passage where the government began construction of a bike bridge over the river without discussing this with the Māori; rather than appeal to a court, Te Awa Tupua sought dialogue with the government agency to explain the new legal authority.¹³²

In Te Urewera, the Tūhoe rejected an oil-based asphalt sealant for a neighboring road, even though the delay could result in loss of funding. While the local government accused the Tūhoe of “hillbilly thinking,” the Tūhoe reject the “rape and pillage mentality . . . of unchecked tourism,” and plan, instead, to proceed with road construction that reflects Te Kawa’s environment-friendly values.¹³³ Also in Te Urewera, the Tūhoe governing body delayed fixing a flood-damaged footbridge around Lake Waikeremoana that forms part of one of New Zealand’s tourist-friendly “Great Walks.” According to Tūhoe Chairman Tāmati Kruger, “[the Tūhoe] are wanting engineers to come in because the issue could very well be that the bridge is in the wrong place,” and perhaps Te Urewera did not want the footbridge there to start with.¹³⁴ So we do not know how standing would play out should these skirmishes arrive in court; but we do see that newly empowered Māori communities wish to use their new legal powers to govern their ecosystems according to traditional precepts, merging traditional values with Western law.

D. Relationship

When explaining that “Suits on Behalf of Nature Are Better Suited to Moral Development,” Christopher Stone wrote, “As I argue in the original Trees, the law has not merely an educative, but a spiritualizing role in our society.”¹³⁵ I do not know what, exactly, he means by “spiritualizing,” but I do think I know what he means by moral development. And this is one place where the New Zealand experiment pushes us forward: it asks that the morality of how we treat the Earth embrace a relationship that has always existed and must exist, but which Western ethical systems, and the law that flows from those systems, tend to ignore. These grants of rights for nature and rights to protect that nature are sanctifying a certain kind of relationship, a web of mutually protective being. Te Awa Tupua and the Te Urewera Act grant the Māori the right to have their conception of relationship with rivers and mountains sanctified in the law, which simultaneously allows them to speak for the ecosystems on which they have always depended. These steps toward self-determination honor the saying “I am the River and the River is me,” reflecting a more capacious vision of “self” than the dominant cultures normally understand.¹³⁶ As a New Zealand court has explained,

One needs to understand the culture of the Whanganui River iwi [tribe] to realise how deeply ingrained the saying ko au te awa, ko te awa, ko au [I am the River, the River is me] is to those who have connections to the river. . . . Their spirituality is their ‘connectedness’ to the river. To take away part of the river . . . is to take away part of the iwi. To desecrate the water is to desecrate the iwi. To pollute the water is to pollute the people.¹³⁷

I believe Stone was advocating for moral systems rooted in deep connection to the environment, even if he did not envision the particular arrangement advancing in New Zealand.

E. Property

According to both Christopher Finlayson, then-Minister for Treaty of Waitangi Negotiations, and Albert, chief negotiator for the local Māori, the two sides negotiated cordially, and the government agreed to grant what the Māori wanted on their own terms that reflected their cosmology.¹³⁸ Scholar Anne Salmond has called previous New Zealand arrangements that granted formal property rights to the Māori “ontological submission”: although they gained the right to control their relationship with the ecosystem around them, by accepting a Western version of legal property ownership, they had to violate their own cosmology that defined their relationship with the world around them.¹³⁹

As in the other nations discussed here, neither the river nor mountain own itself in New Zealand. The Māori themselves did not wish to own the ecosystem elements in any traditional, Western legal sense.¹⁴⁰ The Māori traditional notions of “property” differ from the Crown’s conceptions, as you could not “own” that to which you belong,¹⁴¹ and the new statutes respect this notion of environment-as-relationship. The government did not wish to cede formal ownership of the Whanganui,¹⁴² and, as Albert explained to me, “ownership does not provide for the totality of the relationship.”¹⁴³ In the negotiations, Albert said, his community “[d]idn’t want to change the dance—we wanted to change the music so people would dance a different way: what instrument can we play to change the music?”¹⁴⁴ In Te Kawa, the initial governing guide for Te Urewera, the Tūhoe Māori explain that the

use of property rights by the western legal system has hidden from view the concept of nature; rendered her parts as natural resources now capable of rival priorities competing with other household choices. These human granted rights have displaced our devotion for Papatūānuku [landscape] with ownership now serving individual advantage . . . property rights do not give life nor do they encourage the connectedness of all living things for life . . . our fracturing of nature has sponsored our own fragmentation.¹⁴⁵

At the end of the day, the Crown still “owns” the entities. Still, for the Māori, the exact nature of “property” matters less than having their cosmology recognized in the law, their historical injustices mitigated, and their relationship with their environments back under their control.

It remains to be seen whether any new conception of “property”—in the formal ownership way Western law understands it—emerges. Absent formal ownership of the ecosystems, how far the Māori are able to take their new powers remains to be seen. The ultimate prize will be the 2040 relicensing of the Tongariro Power Scheme, which diverts eighty percent of the Whanganui’s water; Albert told me that the years leading up to 2040 will be about building his community’s and the government’s capacity to truly understand and respect the new vision of human and nonhuman relations, and the Tongariro Power Scheme will be the test.¹⁴⁶

F. Ideas as Forces of Nature

In Should Trees Have Standing?, Stone mused on why we would use “rights” language to refer to nonhuman entities in the first place, given the ambiguities of what such rights might comprise:

In the case of such vague rules . . . . [t]hese terms work a subtle shift into the rhetoric of explanation available to judges; with them, new ways of thinking and new insights come to be explored and developed. In such fashion, judges who could unabashedly refer to the “legal rights of the environment” would be encouraged to develop a viable body of law—in part simply through the availability and force of the expression.¹⁴⁷

Rights exert moral suasion on all actors. In the New Zealand examples, the nation is moving way beyond the “right to a healthy environment” or similar grants that the majority of nations bequeath their citizens.¹⁴⁸ These laws and constitutional provisions are still anthropocentric: I have the right to breathe healthy air or drink clean water. Through granting rights directly to rivers or mountains, New Zealand is designing a new idea of our relationship with the natural world, with new stewards of that relationship, inscribed in law.

Like Stone, Cormac Cullinan had some qualms about rights for nonhuman entities; he noted:

[E]ven if the law were to acknowledge that, say, a river had the capacity to hold rights, extending the language of rights and duties to relations with nonhuman subjects is potentially confusing. Terms such as ‘rights’ and ‘duties’ are infused with our experience of existing legal systems and burdened with the connotations of conflicts.¹⁴⁹

New Zealand imposes an entirely new conception of what it means to have rights, one the nation now must make more justiciable. If we are the river and the river is us, then the new ideas supporting these legal reforms are an eco-anthropocentric hybrid. The ecosystems still support human communities, but the humans who depend on the ecosystems also serve the ecosystems’ needs. Which is why, for example, in Te Urewera, the Māori community has started by naming what the values are that the mountain ecosystem holds. Anticipating judicial decisions, they have made contractual obligations contingent on attestations that those profiting from Te Urewera will first and foremost respect those values that flow from the right.

These agreements lend themselves to a broader understanding of how all New Zealanders (and those of us far from that enclave) relate to, and thus manage the ecological world around us. The New Zealand Office of Māori-Crown relationships has adopted a new name, “Te Arawhiti,” which means “The Bridge.”¹⁵⁰ These reforms present a new vision for how law can reflect ecological reality and can change that reality. If the Māori succeed in cleaning up the Whanganui, changing the management regime of Te Urewera, and, eventually, shutting down the Tongariro Power Scheme, then a new hierarchy of whose ideas about nature count will have been remade into law, which will have remade nature.

CONCLUSION

When, as the Māori express it, “I am the River and the River is me,” we must take into account the river’s interests, based on a worldview that the river’s interests are our interests. Around the world, governments, legislatures, and courts are moving toward Stone’s idea of a “radically different law-driven consciousness”¹⁵¹ and in so doing, this posture both reflects and evolves communities’ views of themselves. When we move from “we own the river” to “we are the river,” we enter into a new paradigm of what “property” is, and who we actually are.

Stone opined:

The time may be on hand when these sentiments, and the early stirrings of the law, can be coalesced into a radical new theory or myth—felt as well as intellectualized—of man’s relationships to the rest of nature. I do not mean “myth” in a demeaning sense of the term, but in the sense in which, at different times in history, our social “facts” and relationships have been comprehended and integrated by reference to the “myths” that we are co-signers of a social contract, that the Pope is God’s agent, and that all men are created equal. . . . What is needed is a myth that can fit our growing body of knowledge of geophysics, biology and the cosmos.¹⁵²

In the scenarios I have portrayed here, that growing knowledge dovetails with, informs, and is informed by the lifeways of people who have long created and lived by “myths” that guide how they treat the world around them. Myth is not pejorative: where cultures have survived pre- and post- colonial invasion, they have survived because their myths kept them from undercutting the ecosystems that sustained them. When Western cultures grant nonhuman entities formal rights, the evolution in worldview has not been in the original views of those who have proposed such conceptions, now inscribed in law: Australia’s Aborigines¹⁵³ or New Zealand’s Māori, for example, have long believed in an indivisible relationship with the natural world around them. Instead, the ethics of the hegemonic cultures in some Western nations are evolving toward the direction that nature-connected communities have long understood and implemented in their own lore, that is their own law. Stone muses that “[o]ne is certain to wonder how, in selecting the critical boundary variables or supplying content to the key ‘ideal’ (riverhood, habitathood), we can avoid being, on the one hand, totally arbitrary or, on the other, guilty of smuggling in whatever standard advances our own most ‘raw’ homocentric interests.”¹⁵⁴ Thus who “we” are is going to matter a lot. In the models I have described here, governments have designated appropriate spokespersons for nature, who, it is hoped, will not simply smuggle in their own “raw” homocentric interests. When governments or courts in these nations grant ecosystems legal rights, they reflect and propel changing views both of human relationships with the natural world. In the examples I describe here, they also reflect and propel evolving views of dominant groups’ relationships with indigenous peoples or other disenfranchised subpopulations from whom the right to manage the natural world had been taken.

The legal evolutions I have described here go beyond what Stone imagined. Despite his foresight, in his writings, he is here, and the river is there: he is not the river. This makes sense. Stone’s worldview was rooted in the U.S. tradition; he was writing for U.S. audiences and was concerned with the intricacies of U.S. constitutional and statutory law. Stone dedicated much of one of his books to the idea of moral and legal pluralism;¹⁵⁵ meaning, he espoused that no one size fits all as we seek to remake our cultural and thus legal relationships with the natural world. He advocated “a whole network of mutually supportive principles, theories and attitudes toward consequences.”¹⁵⁶ The ideas he espoused find pluralistic fruition in the disparate ecological, historical, and cultural milieux I have described here, where previously subordinated groups have hacked the legal hierarchy to allow their views of human and nonhuman relationships to take legal precedence.

I am not a moral philosopher, and this is not a journal of moral philosophy. Laws, however, reflect our moral inclinations. And our moral inclinations—in Western philosophy and law—derive from how we see ourselves in relationship to the “other,” including the relative worth of the others in relation to other entities and in relation to ourselves. When a society gives rights to rivers or mountains, law is acknowledging that one way of knowing one’s place on the Earth is to see oneself as the Earth. It is the value of the indivisible relationship that gives rise to legal pathways that honor that relationship, with one entity in that relationship given priority to speak for and protect that relationship.

Ideas are forces of nature, acting with greater force when they are translated into law. Law—especially environmental laws—should be adaptive in the evolutionary sense; that is, they should evolve to fit the changing ecological matrix, and should evolve to protect and sustain that matrix, if communities and our species is to survive and thrive. As described here, law in some locales is acknowledging that one way of knowing one’s place on the Earth is to see oneself in a relationship with the Earth, or to see oneself simply as the Earth. We do not know whether or how any of these instantiations of Christopher Stone’s ideas will work to protect the ecological matrix that sustains the relationship between ecosystems and the communities who are being given new rights to speak for those ecosystems. We do not know whether or how nature will be remade, but newly empowered stewards for these experiments in “standing” and more may well improve on the way we have been managing the ecosphere up until now.

95 S. Cal. L. Rev. 1469

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David Takacs*

* Professor of Law, University of California Hastings College of the Law, San Francisco. J.D., University of California Hastings College of the Law; LL.M., University of London, School of Oriental & African Studies; B.S. (Biology), M.A. (History & Philosophy of Science), & Ph.D. (Science & Technology Studies), Cornell University. I may be reached at takacsd@uchastings.edu. I thank the people who took the time to speak with me about this project: Gerrard Albert, Christopher Finlayson, Ian Hicks, Michelle Maloney, Erin O’Donnell, Claudia Orange, Jorge Iván Palacio, and Anne Poelina. For intellectual contributions, I also thank Hadar Aviram, Larry Carbone, Ming Chin, James May, Michelle Maloney, Dave Owen, Michael Pappas, Zach Price, Reuel Schiller, Linda Sheehan, Jodi Short, Michael Pappas’ Online Workshop for Environmental Scholarship, and the Green Bag group at the University of Tasmania Law School. Final thanks to the excellent editors at the Southern California Law Review.

Fish, Whales, and a Blue Ethics for the Anthropocene: How Do We Think About the Last Wild Food in the Twenty-First Century

April 2023April 2023Robin Kundis Craig*

One of the lesser celebrated threads of Christopher Stone’s scholarship was his interest in the ocean—especially international fisheries and whaling. Fish and whales are among the “last wild food”—that is, species that humans take directly from the wild for food purposes. While whales are primarily cultural food, fisheries remain important contributors to the human diet globally. Indeed, the food security issues surrounding marine foods are increasingly being recognized as an important international and domestic component of human well-being and equity. These concerns helped to spur the fall 2021 launch of the Blue Foods movement and the conscious incorporation of aquatic foods into the pursuit of the United Nations’ sustainable development goals.

At the same time, changes in the ocean resulting from climate change and other anthropogenic forces are making the commercial harvest of marine wild foods increasingly unsustainable, simultaneously undermining ocean ecosystem function, marine biodiversity, and human food security. Humanity’s continued engagement in industrial-scale commercial marine fisheries is thus both factually uncertain and ethically suspect.

This Article explores the multilayered ethical issues surrounding Blue Foods in the Anthropocene, drawing from Stone’s work in environmental ethics and “Moral Pluralism.” Finding a balance between protecting the world’s marine ecosystems and appropriately promoting the ocean’s contribution to global food security remains an important policy challenge for the twenty-first century, but it is one that nations can meet by privileging indigenous and local fisheries while simultaneously carefully expanding the more environmentally benign forms of marine aquaculture, particularly shellfish and kelp aquaculture.

Introduction

Food security is a global issue garnering increasing attention from academics and policymakers alike. For example, Martin Barry Cole, Mary Ann Augustin, Michael John Robertson, and John Michael Manners noted that “[f]eeding the world sustainably is one of our society’s grand challenges” and that “[i]n 2050, it is estimated there will be 9.7 billion people, and we will require about 70% more food available for human consumption than is consumed today.”¹ After a period of improvement, global food insecurity is increasing, exacerbated over the last two years by the coronavirus pandemic and attending economic stress.² According to the United Nations Food & Agriculture Organization’s (“FAO”) 2021 food security report, “Nearly 2.37 billion people did not have access to adequate food in 2020—an increase of 320 million people in just one year”;³ 720 to 811 million people faced actual hunger in 2020.⁴ Among other impacts, the pandemic exposed “the fragility of our food systems,”⁵ with the result that 30 million more people will likely be dealing with hunger in 2030 than if the pandemic had not occurred.⁶ Impacts have been worst in Asia and Africa and among children.⁷ “[B]old actions” are needed to achieve the goal of eradicating world hunger by 2030,⁸ prompting the FAO to offer both a pragmatic and an ethical vision of future food systems. In its summary, food systems “need to provide decent livelihoods for the people who work within them,” “need to be inclusive and encourage the full participation of Indigenous Peoples, women and youth,” and need to “ensure that children are no longer deprived of their right to nutrition.”⁹

The recognition that achieving food security has an ethical dimension, while not new, has gained force over the last decade, in part because of increasing acknowledgement that food insecurity derives from multiple drivers, many of which require redress of larger social inequities. Over the last five years, for example, the FAO has documented that “[c]onflict, climate variability and extremes, and economic slowdowns and downturns (now exacerbated by the COVID-19 pandemic) are behind recent rises in hunger and slowing progress in reducing all forms of malnutrition,”¹⁰ while “high and persistent levels of inequality” and inability to pay for healthy food exacerbate these drivers.¹¹ For example, “More than half of the people who are undernourished and almost 80 percent of stunted children live in countries struggling with some form of conflict, violence or fragility.”¹² As for climate, “Hunger is significantly worse in countries with agri-food systems highly sensitive to rainfall and temperature variability and extremes, and where a high proportion of the population depends on agriculture for livelihoods.”¹³ Economic insecurity leads to multiple negative impacts on food security and nutrition, including increased hunger, consumption of cheaper but less nutritious foods, reduced nutrition, and food insecurity.¹⁴ Finally, healthy diets are often not the cheapest diets, and “[t]he unaffordability of healthy diets . . . is associated with increasing food insecurity and all forms of malnutrition, including stunting, wasting, overweight and obesity.”¹⁵ Given these multiple drivers and influences, the FAO identified six combinable pathways toward ethical, sustainable, and resilient food systems.¹⁶

Pathway 6—strengthening food environments and changing consumer behavior to promote the environment as well as human health¹⁷—is the most relevant to both Christopher Stone’s vision of an “Earth Ethics”¹⁸ and this Article’s pursuit of a “Blue Ethics.” By “Blue Ethics,” this Article refers to how we think about and modify human use of the ocean in the twenty-first century in order to keep ocean ecosystems resilient to the Anthropocene while still meeting critical human needs. Among the most pivotal of humans’ uses of the ocean in terms of promoting a new Blue Ethics is food supply.

What the FAO’s food security report largely left to one side is foods from the ocean and other aquatic systems, now dubbed Blue Foods.¹⁹ That elision is not unusual; the oceanic component of human food supply is often left out of food security discussions, including the ethical dimensions of food security. This Article seeks to begin filling that near void by sketching an ethical path forward for humanity’s continued dependence on Blue Foods.

This Article proceeds in four parts. Part I details humanity’s continued reliance on the ocean for food. Part II explores the issue of whether humanity should continue to engage in wild-caught fisheries, sketching out a Blue Ethics at the same time. Part III establishes that attitudes toward the ocean and its importance are already changing in ways that support a Blue Ethics, while Part IV concludes by arguing that humans can pursue Blues Ethics and Blue Food security simultaneously through a measured and careful investment in marine aquaculture.

I. Human Food Security and Blue Foods

As the FAO is well aware, marine foods are a significant part of the global food security equation. Worldwide, total consumption of food fish has increased at a rate almost double the rate of human population growth and about 50% faster than the increasing rate of consumption of other animal protein.²⁰ Indeed, “In 2017, fish consumption accounted for 17 percent of the global population’s intake of animal proteins, and 7 percent of all proteins consumed.”²¹ Around the world, 3.3 billion people consume 20% of their animal protein in the form of fish, and that number can reach “50 percent or more in countries such as Bangladesh, Cambodia, the Gambia, Ghana, Indonesia, Sierra Leone, Sri Lanka and several small island developing States (SIDS).”²²

Importantly, despite the increase in aquaculture globally,²³ wild capture fisheries still outstrip Blue Food production in aquaculture, particularly with respect to marine fish. In 2018, the latest year for which global data are available, freshwater and marine wild capture fisheries together produced 96.4 million tonnes of fish, seafood, and algae, while freshwater and marine aquaculture produced 82.1 million tonnes.²⁴ The shares from the ocean, in contrast, were 84.4 million tonnes and 30.8 million tonnes, respectively.²⁵ In other words, almost three-quarters of the human food taken from the ocean still comes from wild-caught fisheries. These marine fisheries mostly target fish. Indeed, “Finfish represent[] 85 percent of total production” in wild capture fisheries, with anchoveta, Alaska pollock, and skipjack tuna leading the lists of species caught.²⁶ Seven countries account for almost 50% of this wild harvest: China (15%), Indonesia (7%), Peru (7%), India (6%), the Russian Federation (5%), the United States (5%), and Viet Nam (3%).²⁷

Of potential relevance to the ethics of fishing, much of this wild Blue Food is not of particularly high value. Indeed, three of the four most valuable wild-caught groups of species—cephalopods (octopus and squid), shrimps, and lobsters—are not finfish.²⁸ The most valuable group of finfish species, perhaps not surprisingly, is tuna.²⁹

Given humanity’s dependence on Blue Foods, when the FAO noted in 2020 that “as we approach a world of 10 billion people, we face the fact that since 2015 the numbers of undernourished and malnourished people have been growing,”³⁰ it also emphasized that capture fisheries and especially aquaculture will play a “crucial role in global food security.”³¹ However, most other food security researchers and food policymakers ignore the ocean, instead focusing on land-based crops and livestock. For example, Alexander Y. Prosekov and Svetlana A. Ivanova discuss food security in terms of “[g]rain and cereals, vegetable and animal fats, and meat and dairy products.”³² Other researchers focus solely on agriculture and crops.³³ As such, the role of Blue Foods in global food security remains an underacknowledged issue for law, policy, and ethics.

Nevertheless, the world’s dependence on marine foods raises real, if underappreciated, food security concerns. Simultaneously, however, the continued dependence on wild-caught fisheries also raises several ethical concerns, particularly in terms of preserving and enhancing marine biodiversity and the resilience of ocean ecosystems to climate change and other anthropogenic stressors. Part II will explore these concerns in more detail.

II. Blue Ethics and Wild Capture Fisheries: Should We Keep Fishing the Ocean?

Commercial exploitation of wild fisheries stocks in the ocean has plateaued,³⁴ despite increased fishing effort,³⁵ raising important ethical questions about the continued pursuit of these wild foods. The desire for a more ethical path forward regarding humanity’s dependence on ocean food gave birth to the Blue Food Assessment, an emerging movement seeking to ensure that all food policies, including the environmental and climate policies surrounding food, take account of the importance and potential benefits of aquatic foods—fish and shellfish, both marine and freshwater, together with more culturally specific aquatic delicacies such as kelp and sea cucumber.³⁶

The Blue Food Assessment³⁷ launched September 16, 2021. It focuses on using aquatic foods to help bring about the transformation of the global food system to end hunger while increasing sustainability. As its report announces:

There is growing recognition that food systems must be transformed—that achieving the U.N. Sustainable Development Goals (SDGs) requires shifting toward a system that is more diverse, resilient and just, as well as healthier. “Blue foods”—foods derived from aquatic animals, plants and algae cultivated and captured in freshwater and marine environments—have much to offer in that transformation.³⁸

Like the FAO, therefore, the Blue Food Assessment seeks to promote a
new ethical approach to food security as well as more comprehensive food management policies and assessments. For example, one of its key
platforms is the need to “[c]ommit to human rights in policy and practice— . . . empowering in every part of the food value chain women, Indigenous groups, marginalized communities and youth.”³⁹

Another goal of the Blue Food movement is to consider the impact of Blue Food harvest on the environment itself⁴⁰—a critical component of Blue Ethics. As such, an ethical approach to Blue Foods must start by considering what industrial-scale commercial fishing of wild marine species does both to those species and to their attendant ecosystems.

A. The Current Harvest of Wild Marine Species Is Unsustainable

The FAO maintains the most reliable and comprehensive sets of data about how the world supplies itself with aquatic food, and roughly every two years it publishes a State of the World Fisheries and Aquaculture report.⁴¹ According to the 2020 report, in 2018 the world produced (from all sources, including fishing and freshwater aquaculture) about 179 million tonnes of fish, crustaceans like crab and lobster, mollusks like clams and oysters, and other aquatic animals, worth $401 billion.⁴² Of that total harvest, 156 million tonnes, or over 87%, were used for human food.⁴³

The world’s taste for fish and seafood, however, comes at a cost. Wild capture fisheries in the ocean leveled off in the late 1980s and 1990s.⁴⁴ Moreover, wild marine fisheries are becoming increasingly unsustainable:

The state of marine fishery resources, based on FAO’s long-term monitoring of assessed marine fish stocks, has continued to decline. The proportion of fish stocks that are within biologically sustainable levels decreased from 90 percent in 1974 to 65.8 percent in 2017 (a 1.1 percent decrease since 2015), with 59.6 percent classified as being maximally sustainably fished stocks and 6.2 percent underfished stocks. The maximally sustainably fished stocks decreased from 1974 to 1989, and then increased to 59.6 percent in 2017, partly reflecting improved implementation of management measures. In contrast, the percentage of stocks fished at biologically unsustainable levels increased from 10 percent in 1974 to 34.2 percent in 2017. In terms of landings, it is estimated that 78.7 percent of current marine fish landings come from biologically sustainable stocks.⁴⁵

Not coincidentally, marine aquaculture industries have been growing rapidly since 1986 to close the gap in global seafood demand.⁴⁶

Christopher Stone provided as succinct a summary as anyone of the perils facing the ocean:

The oceans—over 70% of the planet’s surface—are in trouble. The omens are everywhere. Marine catches have stagnated in almost every region, even in the face of intensified harvest efforts. The wetlands and coastal nurseries vital to maintain the stocks are vanishing under the pressures of commercial development and a siege of sewage and waste. We are dousing the seas with chemicals, and seasoning them with millions of tons of stubbornly persistent litter. Periodic red tides, kelp and coral afflictions, and major die-offs of marine mammals such as harbour seals and dolphins, may be early warning signs of worse to come.⁴⁷

The succeeding two decades since his summary have made clear that the “worse to come” is climate change and its “evil twin,” ocean acidification, which are wreaking havoc on marine ecosystems.⁴⁸ In particular, ocean warming is driving marine species poleward, but not at uniform rates, disrupting marine food webs and shifting the concentrations of increasing numbers of important fisheries across management boundaries.⁴⁹

These current and future changes to the ocean resulting from climate change and ocean acidification will only exacerbate the global insecurity of wild-caught marine fisheries. From a global perspective, the Intergovernmental Panel on Climate Change (“IPCC”) concluded in 2019 that, already, “[c]hanges in the ocean have impacted marine ecosystems and ecosystem services with regionally diverse outcomes, challenging their governance (high confidence).”⁵⁰ While, at the moment, these changes are both enhancing and undermining food security, depending on the exact community involved, the impacts on ecosystem services already “have negative consequences for health and well-being (medium confidence), and for Indigenous peoples and local communities dependent on fisheries (high confidence).”⁵¹

For example, coral reef ecosystems produce critical fisheries for island peoples, but they are increasingly vulnerable to both increasing temperatures and ocean acidification.⁵² In addition, increasing ocean temperatures are already causing many marine species to shift their ranges⁵³—and those range shifts are already complicating fisheries management. For example, a 2018 study of 686 marine species indicated that species along the Pacific Coast of North America could shift ranges as much as 1,500 kilometers (more than 930 miles), while those on the Atlantic Coast could shift more than 600 kilometers (more than 370 miles).⁵⁴ As the researchers noted, “In the United States, fisheries are managed regionally, including species that are managed by individual states and federally managed fisheries that are governed by regional councils with representatives from neighboring states,”⁵⁵ and their projected range shifts are more than sufficient to move commercially important fish stocks across regulatory jurisdictions within the United States, from the United States to Canada, from Mexico to the United States, and, on the Pacific Coast, from Canada to the United States and Alaska.⁵⁶ Other management challenges include “shifts in fishing locations, conflict over regional allocation of fisheries quota, displaced fisherman, and changes in stock boundaries.”⁵⁷

Future changes to the ocean, including species migration and food web simplification, pose even greater threats to global food security, fisheries governance, and even national security—including for the United States.⁵⁸ Moreover, the decreasing supplies of seafood are also likely to be less safe because of elevated concentrations of mercury and other toxics in marine plants and animals and increasing contamination, especially of shellfish, by both Vibrio pathogens (the family of bacteria that include cholera and the flesh-eating Vibrio vulnificus) and harmful algal blooms like red tides.⁵⁹ “These risks are projected to be particularly large for human communities with high consumption of seafood, including coastal Indigenous communities (medium confidence), and for economic sectors such as fisheries, aquaculture, and tourism (high confidence).”⁶⁰ In addition, while climate-adaptive management can in some circumstances delay the collapse of fisheries, tipping points are still likely at about 2.0°C of warming.⁶¹

Thus, in light of overexploited fisheries and worsening impacts from climate change and ocean acidification, enlightened self-interest alone counsels humanity to reconsider its current reliance on wild-caught Blue Foods and commercial marine fisheries. Blue Ethics adds the additional consideration of preserving marine biodiversity and increasing the resilience of marine ecosystems.

B. Blue Ethics: From Food to Ecosystems and Biodiversity

Enlightened self-interest only goes so far toward increasing the planet’s chances of retaining high levels of marine biodiversity and functional ocean ecosystems. As Christopher Stone noted repeatedly, getting courts and legislatures to protect these values can be difficult, leading him to propose that natural objects and places—like the Mineral King Valley in California—should have standing to represent their own interests in court.⁶² While the U.S. Supreme Court disagreed,⁶³ the problem of protecting larger natural values remained, a problem Stone found particularly vexing for whales:

[A]s long as the judges . . . remain within the bounds of conventional international and U.S. legal principles, with no accounting for invasion of the whales’ interests, the “harvesting” will continue. An argument truly on behalf of the whales has as its starting point not the sanctity of treaties and regard for “political questions,” but respect for whales.⁶⁴

To account for the value of whales (and trees and mountains and functional ecosystems), he eschewed “Moral Monism”—the positing of one theory of ethics, such as utilitarianism, to resolve all ethical dilemmas—in favor of Moral Pluralism.⁶⁵ Moral Pluralism

invites us to conceive moral activities as partitioned into several distinct frameworks, each governed by distinct principles and logical texture. We do not try to force the analysis of good character into the same framework as for good acts; nor are our obligations to the spatially and temporally remote subject to exactly the same rules that relate us to our kin, on the one hand, or to species, on the other.⁶⁶

From this pluralistic framework, whales and other natural entities are entitled to moral considerateness even if they are not legal persons, such that “killing a whale is prima facie wrong: one is obligated in a fairly strong sense not to do so.”⁶⁷

However, as Stone immediately noted, the strength of that obligation can vary by the exact moral context from which we evaluate the issue, and the Inupiat occupy a different moral framework with respect to whales than a twenty-first-century Angelina who teaches at the University of Southern California (and who has absolutely no interest in eating whale meat, it should be emphasized).⁶⁸ Expanding on Stone’s point, the Inupiat’s moral duty to the whale may be not to waste whales, or, as was true of the Makah Tribe in the U.S. Pacific Northwest, to forebear whale hunts for cultural purposes when other food is sufficient and the whale species in question is endangered.⁶⁹

[T]he Makah, who now number about 1,500, have hunted whales for more than 2,700 years. The tribe’s 1855 treaty with the US reserved the ‘right of taking fish and of whaling or sealing at usual and accustomed grounds[.]’ The Makah continued whaling until the 1920s, when they gave it up because commercial whaling devastated populations.

Judge Recommends Tribe Be Allowed to Hunt Gray Whales off Washington State, Guardian (Sept.
25, 2021, 10:30 AM) [hereinafter Judge Recommends], https://www.theguardian.com/environment/
2021/sep/25/makah-tribe-hunt-gray-whales-washington-state-judge [https://perma.cc/X5Y5-YWFV]. Conversely, increasing numbers of studies confirm that one key to both food security and better health for indigenous communities is access to traditional foods⁷⁰—including Blue Foods and, when culturally and ecologically appropriate, even whales.⁷¹

Moral Pluralism thus allows for a Blue Ethics that takes multiple values into account simultaneously while still demanding a moral conversation about humans’ uses of the ocean that goes beyond mere human utility.⁷² Applying this Blue Ethics to Blue Foods, if one method of getting the Blue Foods essential to human food security imperils marine biodiversity and ocean ecosystems, while another available method not only avoids those impacts but also contributes to the ocean’s resilience to climate change and other stressors, the choice between these two Blue Food security pathways is not an amoral one. As with Stone’s example of killing whales, a Blue Ethics for the twenty-first century must posit that the first path—specifically, the continued reliance on industrial-scale commercial wild-caught fisheries—is simply “prima facie wrong,” and “one is obligated in a fairly strong sense” to switch to the second pathway to achieve Blue Food security.

C. Marine Biodiversity Is at Risk—and the Primary Legal Tool to Protect Marine Biodiversity Conflicts with Fishing

1. Overfishing Is a Threat to Marine Biodiversity

Fishing clearly has an impact on the species caught, and multiple case studies—perhaps most famously, the collapse of the cod fishery in Canada—have documented how overfishing can semi-permanently render the target species commercially extinct.⁷³ However, ecosystem and biodiversity impacts extend beyond the fished species, in part because fishers initially target the largest members of the largest species, effectively removing apex predators from marine ecosystems.⁷⁴ As a result, wild-caught marine fisheries at commercial scale have also pervasively altered marine ecosystem function and ocean biodiversity. Indeed, in 2001 a large group of marine biologist luminaries concluded that “[e]cological extinction caused by overfishing precedes all other pervasive human disturbance to coastal ecosystems, including pollution, degradation of water quality, and anthropogenic climate change.”⁷⁵ Moreover, “Any fishing tends to alter biodiversity at some or all of its levels, from genes to ecosystems,” and the “fishing . . . of the largest animals results in alteration of age structure, population size, relative abundance of predators and prey, food webs, and ecosystems.”⁷⁶

Thus, overfishing has long been considered a primary threat to marine biodiversity and ecosystem function,⁷⁷ and “since the advent of industrial fishing . . . the sequential depletion of coastal, then offshore populations of marine fish has become the standard operating procedure.”⁷⁸ Indeed, a whole vocabulary has developed to describe these impacts. “Ecological extinction” is the elimination of a species’ ability to function as it should in an ecosystem, even if it is not entirely biologically extinct.⁷⁹ “Fishing down marine food webs” describes how fishers move from the most desirable fish to lower trophic levels—for example, from apex predators like tuna and swordfish to herring—as they exhaust the initial target species.⁸⁰ “Bycatch,” in turn, encapsulates the incidental catch of nontarget species, such as marine mammals, turtles, and seabirds, and “[f]isheries bycatch has been implicated as an important factor in many population declines, including Pacific loggerhead . . . and leatherback . . . sea turtles, North Atlantic harbor porpoises . . . , vaquita . . . in the Sea of Cortez, Mediterranean striped dolphins . . . , the wandering albatross . . . and white-chinned petrel . . . of the Southern Ocean.”⁸¹ Finally, Daniel Pauly coined “shifting baseline syndrome” to describe how each generation of fishers accepts an increasingly impoverished ocean as normal.⁸²

2. Climate Changes and Ocean Acidification Are Also Significant Threats to Marine Biodiversity

Fishing is no longer the only primary threat to marine biodiversity; climate change has become its equal. A 2015 meta-analysis of 632 peer-reviewed studies related to ocean biodiversity concluded that warming ocean waters will likely increase primary production in the ocean (phytoplankton growth) while simultaneously disrupting marine ecosystems overall and starving both herbivores and carnivores farther up marine food chains.⁸³ Although specific results will likely vary by location, in general,

We find that ocean warming and acidification increase the potential for an overall simplification of ecosystem structure and function, with reduced energy flow among trophic levels with little scope for acclimation. Ocean acidification per se appears to have the potential to bring penetrating modifications to ecological systems through changes in ecosystem processes and shifts in species community structures.⁸⁴

Similarly, the United Nations’ May 2019 biodiversity report concluded that “almost 33% of reef-forming corals and more than a third of all marine mammals are threatened” with extinction, and the planet has already lost about 30% of seagrass meadows and 50% of coral reefs—two highly productive marine habitats—since 1970 and 1870, respectively.⁸⁵ By the end of the century on the current trajectory, primary production in the ocean could decrease by 10% and total fish biomass by 25%.⁸⁶

The IPCC concurs that, by 2100, we likely will not recognize the world’s ocean.⁸⁷ Even under a low emissions scenario, ocean heat waves will likely occur twenty times more often than they do now; under a business-as-usual scenario, they will likely occur fifty times more often.⁸⁸ Most coastal ecosystems, including kelp forests, sea grass meadows, and salt marshes, face an increasing risk of destruction as a result of this heat, ocean acidification, and sea-level rise.⁸⁹ By mid-century, on our current trajectory, oxygen loss will occur to depths of 600 meters (almost 1970 feet) in 59% to 80% of the ocean.⁹⁰ Extreme sea-level events that used to occur once per century will be occurring once a year by 2050 in many locations, especially the tropics, and the rate of global average sea level rise will continue to accelerate to centimeters per year.⁹¹ By the end of the twenty-first century, again assuming business as usual, 60% of the ocean will be experiencing all five of the IPCC’s drivers of ecosystem change—surface warming, acidification, oxygen loss, nitrate pollution, and change in net primary production (growth of marine plants and zooplankton).⁹²

3. Protecting Marine Biodiversity Leads to Fisheries Conflicts

Between climate change and fishing, fishing is by far the easier anthropogenic stressor to ocean ecosystems to control immediately through regulation. The primary legal tool for protecting marine biodiversity and promoting the marine resilience are marine protected areas (“MPAs”).⁹³ MPAs legally set aside a specific area of the ocean and restrict at least some uses of that area. The most protective MPAs, generally referred to as marine reserves,⁹⁴ significantly restrict or prohibit all resource extraction from the area—especially fishing.⁹⁵

As such, MPAs and especially marine reserves often impose tradeoffs on coastal communities: the health of local biodiversity, and often of the local fisheries themselves, may depend on leaving large swaths of the ocean unfished. In this classic environmental law conflict between short-term economic gain and longer-term ecological (and often economic and personal) health, time after time, existing fishers protest the creation of these areas. For example, virtually no marine reserve created for biodiversity purposes⁹⁶ has come into existence in the United States without significant opposition, often from fishers⁹⁷ or indigenous groups.⁹⁸ These conflicts manifest as political machinations,⁹⁹ litigation,¹⁰⁰ or lengthy negotiations and collaborations.¹⁰¹ Nevertheless, however they arise legally, they evidence some of the practical difficulties of balancing Blue Food security with ocean health.

D. Nevertheless, Blue Ethics Requires Recognition that Not All Fisheries Are Equal

As already hinted at with respect to indigenous whaling, the Blue Ethics assessment, based on Moral Pluralism, shifts frameworks when the focus moves from reducing or eliminating large-scale commercial fishing to regulating indigenous, local community (subsistence), or artisanal fishing. While the terminology is fluid,¹⁰² these types of fisheries are usually much smaller in scale than even small-scale commercial fisheries, generally have fewer impacts on marine ecosystem function, provide food and economic security to communities that often have few other resources, and often are deeply ingrained into local and traditional culture.¹⁰³ They also employ a much higher proportion of women than industrial fisheries.¹⁰⁴

To be sure, these smaller-scale fisheries are not all the same in terms of their cultural and food security importance,¹⁰⁵ nor does a twenty-first-century Blue Ethics require that all existing small-scale fisheries continue unaltered. The point, rather, is that not all fisheries important to food security operate at an industrial scale, and the Blue Ethics frameworks for evaluating their continuing morality may be different.

As one example, a context of redressing the harms of colonialism may require a different framework for assessing the morality of a marine reserve. The Māori of New Zealand, for example, have strong traditions in both fishing and coastal management, and much of the early reconciliation focus and implementation of the Treaty of Waitangi in New Zealand focused on the redistribution of fishing rights.¹⁰⁶ Nevertheless, New Zealand’s impulses toward reconciliation clashed with its desires to protect the Kermadec Islands, “one of the most pristine and unique places on the planet,” located halfway between New Zealand and Tonga.¹⁰⁷ Christopher Finlayson, a former member of the New Zealand Parliament who was instrumental in according the Whanganui River personhood rights and Māori co-management, notes that “[t]he legislation to give effect to the Sanctuary is still stalled in the New Zealand Parliament because of objections of the indigenous people of New Zealand (The Māori) who say that the proposal will breach a historic settlement reached with them in 1992.”¹⁰⁸ Specifically, “The complaint of Māori about the Kermadecs is that if the Crown can unilaterally alter the system it entered into as a condition of the Fisheries Settlements of 1989 and 1992, it has the capacity to alter any Treaty Settlements on its own political whim. That could undermine the entire historical settlement framework.”¹⁰⁹ As a result, he concludes, national efforts to protect marine ecosystems from overfishing “depend[] on the circumstances and in particular the history, the expectations of the indigenous people, and the relevant legal framework.”¹¹⁰

Similar conflicts are occurring in the United States in Hawai’i, where marine reserve establishment threatens subsistence fishing and privileges (or at least appears to privilege) the non-indigenous tourist sector. As a result, Native Hawaiian fishers on the Big Island of Hawai’i protested on these grounds “the establishment of the Ka’ūpūlehu Marine Reserve, the island’s first initiative to put a reef off-limits to fishing,” which sought to impose a ten-year moratorium on all taking of fish while a subsistence plan was being drafted for Ka’ūpūlehu Bay coastline.¹¹¹

At the same time, it is important to emphasize that the Moral Pluralism underlying Blue Ethics is not moral relativism. As Stone elaborated, “Pluralism conceives the realm of morals to be partitioned into several planes. The planes are intellectual frameworks that support the analysis and solution of particular moral problems, roughly in the way that algebra and geometry provide frameworks for the problems to which they are respectively suited.”¹¹² Concrete examples will help to illustrate the difference.

Moral relativism evaluates the morality of a given action or decision according to the ethical framework of the actor. Under this approach, the morality of hunting whales varies according to the ethics of each group proposing to hunt them.¹¹³ Notably, even under moral relativism it is fairly simple to conclude that the Makah Tribe acts ethically when its members hunt non-endangered eastern gray whales, but the nations that are signatories to the International Whaling Convention¹¹⁴ and who voted for its commercial whaling moratorium¹¹⁵ act unethically when they authorize their non-indigenous citizens to kill whales to sell. The different ethical rules that the Makah and signatory nations impose upon themselves still mandate different answers to the question: Is it ethical to kill a whale?

A Blue Ethics based on Moral Pluralism, however, identifies different ethical frameworks independently of what individuals or specific groups believe. With respect to Blue Foods, for example, three of the relevant frameworks might be Mass Production of Seafood for Global Trade, Blue Foods as Cultural Preservation, and Indigenous Subsistence Fishing. Within the first framework, the moral considerateness of both whales and marine ecosystems is particularly strong, such that killing whales is prima facie wrong and large-scale capture fisheries become ethically suspect because of their impacts on marine biodiversity. Within the second framework, which encompasses the Makah Nation’s whale hunt, the moral considerateness of the whales is still strong, but it must be balanced against the cultural and legal rights of the Makah. As a result, the species’ ecological status becomes ethically relevant, and application of Blue Ethics can allow limited indigenous hunting of non-endangered eastern gray whales at levels unlikely to harm the species but prohibit any hunting of still-endangered western gray whales. Within the third framework, the survival and food security of individual community members is potentially at stake, reducing still further the moral considerateness of whales and other marine species needed for food security—but only if more ethical substitutes are not readily available.

Thus, Moral Pluralism requires Blue Ethics to distinguish among types of wild-capture marine fishing rather than embrace an outright ban on all versions of wild-capture fisheries in all locations, while still creating a presumption that there are more ethical pathways to Blue Food security than large-scale commercial marine fishing. The next question is whether the larger cultural context surrounding the ocean and the laws that govern human use of it will allow for this nuanced shift away from wild-capture fisheries, a question to which Part III now turns.

III. A Blue Ethics for the Twenty-First Century Can Emerge: Evolving Attitudes Toward and Understanding of the Anthropocene Ocean

Blue Ethics requires seeing the ocean with a new morality that makes species, marine biodiversity, and ocean ecosystems ethically and legally considerate—essentially valuing the ocean as a complex adaptive planetary life support system, not just as a grocery store.¹¹⁶ Importantly for the future success of any Blue Ethics project, nations increasingly value these larger systemic functions over fisheries.

Marine tourism provides an important example. Coral reefs are some of the most valuable ecosystems on the planet, contributing over $375 billion each year to the global economy.¹¹⁷ Many of these benefits derive from tourism. For example, the economic benefits from recreation on Australia’s Great Barrier Reef alone have been valued from $700 million to $1.6 billion.¹¹⁸ A study in the Maldives calculated that each shark that tourists can see when diving or snorkeling is worth $33,500, while a similar study in Palau calculated that each shark was worth $1.9 million over the course of its lifetime in reef tourism revenue—far exceeding its paltry value in a fishery.¹¹⁹ In Indonesia, shark and ray (such as manta rays) tourist diving was worth at least $22 million in 2017, dwarfing the export value of the entire Indonesian shark fishery ($10 million) and expected to increase dramatically over the next decide if Indonesia invests in these species’ conservation.¹²⁰ More comprehensively, a study in support of marine spatial planning in Wales found that “the economic importance of non-extractive recreational uses of marine biodiversity,” such as “diving, kayaking, wildlife watching from boats and seabird watching,” “is comparable to that of commercial fisheries for the same region,” arguing that these interests should be given equal weight to fishing in marine planning.¹²¹

Marine recreation is a form of ecosystem service, and identifying and valuing these ecosystem services more generally is another means of articulating the morality of protecting the ocean’s systemic functions. The Millennium Ecosystem Assessment defined ecosystem services broadly as “the benefits people obtain from ecosystems.”¹²² More specifically, according to Gretchen Daily, “Ecosystem services are the conditions and processes through which natural ecosystems, and the species that make them up, sustain and fulfill human life.”¹²³ In 1997, Robert Costanza and several colleagues estimated that the world’s ecosystem services were worth $16 to $54 trillion each year,¹²⁴ underscoring the economic importance of ecosystem services to human well-being.

The ocean provides a significant portion of the Earth’s ecosystem services. As the IPCC summarized in 2019, In addition to their role within the climate system, such as the uptake and redistribution of natural and anthropogenic carbon dioxide (CO₂) and heat, as well as ecosystem support, services provided to people by the ocean and/or cryosphere include food and water supply, renewable energy, and benefits for health and well-being, cultural values, tourism, trade, and transport.¹²⁵

In their 1997 Nature article, Costanza and his colleagues estimated that about 63% of the total world value of ecosystem services—about $20.9 trillion—comes from marine environments,¹²⁶ and about 60% of the value of marine ecosystem services derives from coastal ecosystems.¹²⁷ These researchers emphasized that the ocean is particularly important for the gas regulation, disturbance regulation, nutrient cycling, biological control, habitat, food production, raw materials, recreation, and cultural services it provides.¹²⁸ As one often-undervalued example, the ocean provides oxygen production. Tiny plants that float near the ocean’s surface around the world, known as phytoplankton, produce this oxygen.¹²⁹ Some of the oxygen remains dissolved within the ocean itself, where fish and other marine animals (but not marine mammals or sea turtles, which breathe atmospheric oxygen) use it. Most of the oxygen, however, is released into the atmosphere. In fact, marine phytoplankton produce half of the world’s atmospheric oxygen¹³⁰—the oxygen upon which terrestrial animals, including humans, depend.

Reflecting the greater moral consideration that the ocean thus deserves, many nations have shifted to ecosystem-based or resilience-based management of their marine resources. Indeed, ecosystem-based management (“EBM”) has become the dominant approach for governing marine ecosystems as ecosystems. The National Oceanic and Atmospheric Administration (“NOAA”), for example, has adopted EBM for many of its programs in the United States, describing that approach as follows:

Ecosystem-based management (EBM) is an integrated management approach that recognizes the full array of interactions within an ecosystem, including humans, rather than considering single issues, species, or ecosystem services in isolation. EBM is a broad resource management approach that considers dynamic, cumulative effects on marine environments using data and indicators . . . . EBM supports working across sectors to consider tradeoffs between marine resources, ultimately sustaining both diverse ecosystems as well as the services they provide to humans.¹³¹

Moreover, The overarching goal of EBM is to sustain the long-term capacity of marine ecosystems to deliver a range of ecosystem services, such as seafood, clean water, renewable energy (e.g., wave, tidal, and biofuels), protection from coastal storms, and recreational opportunities, with a focus on both ecosystem health and human well-being.¹³²

Most recently, an ever-broadening systems view of the ocean has led to the increased adoption of resilience-based marine management. There is little debate that the ocean is a complex adaptive system containing multiple linked complex adaptive ecosystems.¹³³ Specifically, it is a complex of marine ecosystems, and “marine ecosystems are complex adaptive systems linked across multiple scales by flow of water and species movements.”¹³⁴ The many calls for increased use of EBM arose in part because, “[d]espite their adaptive character and often redundant linkages, marine ecosystems are vulnerable to rapid changes in diversity and function.”¹³⁵ “In short, marine ecosystems are in trouble, indicating that many previous attempts to manage individual threats in the absence of a system-wide approach have not worked.”¹³⁶

The concept of ecological resilience is important for the systems approach to ocean law. Ecological resilience and resilience thinking acknowledge that ecosystems and social-ecological systems are dynamic—not, as prior theories had assumed, inherently stable systems tending toward an equilibrium.¹³⁷ “Resilience,” as a concept, recognizes that, in fact, there are at least three ways in which ecosystems experience and respond to changes.¹³⁸ The first and most common understanding of resilience refers to an ecosystem’s ability to resist change or bounce back from system disturbances.¹³⁹ Sometimes referred to as “engineering resilience,” this sense of resilience refers to “the rate or speed of recovery of a system following a shock.”¹⁴⁰ The second aspect of resilience acknowledges that ecosystems can exist in multiple states rather than stabilizing around a single equilibrium state; as a result, changes and disturbance can “push” ecosystems over thresholds from one ecosystem state to another.¹⁴¹ This second sense of resilience, ecological resilience, “assumes multiple states (or ‘regimes’) and is defined as the magnitude of a disturbance that triggers a shift between alternative states.”¹⁴² Finally, resilience thinking also acknowledges “the surprising and discontinuous nature of change, such as the collapse of fish stocks or the sudden outbreak of budworms in forests.”¹⁴³ The long-time persistence of an ecosystem (or collection of multiple ecosystems) like the Gulf of Mexico in an apparently stable, productive ecosystem state is absolutely no guarantee that humans can continue to disturb (abuse) the system and expect only a gradual or linear response. Indeed, sudden regime shifts have been documented for a number of marine ecosystems, including Jamaican coral reefs (caused by the combined impacts of overfishing, hurricanes, and disease)¹⁴⁴ and Alaskan kelp forests (caused by sea otter hunting and predation).¹⁴⁵

A complex systems and resilience-based approach to ocean management provides a governance framework that can operationalize Blue Ethics in the twenty-first century because this perspective changes the very goals of marine management. Increasing numbers of marine scientists are concluding, for example, that because it is no longer possible to completely control or prevent change in ocean systems, “the goal of management should be to maintain ecosystems in a healthy, productive, and resilient condition so that they can sustain human uses and provide the goods and services humans want and need.”¹⁴⁶ Among these scientists, the adoption of a complex systems view of the ocean, including ecological resilience and the potential for regime shifts, has led to calls for a new approach to management: resilience-based management (“RBM”).¹⁴⁷ “Resilience-based management is defined as using knowledge of current and future drivers influencing ecosystem function (e.g., coral disease outbreaks; changes in land-use, trade, or fishing practices) to prioritize, implement, and adapt management actions that sustain ecosystems and human well-being.”¹⁴⁸ These prioritized actions include threat mitigation (“controlling pollution, sedimentation, overfishing”), actions that support ecosystem processes (for example, improving water quality), and strengthening the abilities of communities dependent on particular marine ecosystems to adapt to the changes occurring in those ecosystems, including by changing how people earn their livelihoods.¹⁴⁹ RBM seeks not to maximize the goods that humans can extract from the ocean but rather to cope with the changes that overfishing, marine pollution, climate change, and ocean acidification are bringing to the ocean, simultaneously “acknowledg[ing] that humans are capable of driving change, adaptation, and transformation.”¹⁵⁰

Resilience-based management effectively promotes Blue Ethics by prioritizing the reduction of anthropogenic stressors to ocean systems.¹⁵¹ These stressors, as noted, include commercial fishing. The question then becomes whether we can shift humanity’s dependence on Blue Foods from commercial fishing to something else. As the next Part explores, that “something else” is likely to be certain kinds of marine aquaculture.

IV. Toward a Blue Ethics for Blue Foods: Replacing Fisheries with Marine Aquaculture

Blue Ethics requires that the pursuit of human food security not impoverish the rest of the planet, particularly in terms of worsening biodiversity loss and the impacts of climate change. Certain forms of marine aquaculture hold the promise of not only increasing food global security but also global planetary health and—if done with attention to access and the special needs of indigenous and small coastal communities, women, and children—equity.

However, this transition in Blue Food production and consumption patterns has two components. First, laws and policies need to de-incentivize, if not outright prohibit, large-scale marine commercial fishing. Christopher Stone had much to say on this subject. Simultaneously, however, nations need to recognize both that a replacement source of Blue Foods—marine aquaculture—exists and that not all forms of marine aquaculture are equally ethical. This Part explores both sides to implementing a more ethical approach to Blue Foods.

A. Tools to Decrease Wild-Caught Fisheries: Christopher Stone’s Five-Step Program for the Twenty-First-Century Ocean

Christopher Stone recognized that global wild-caught fisheries were plateauing.¹⁵² He noted the longstanding clash between biologists and economists on how to calculate optimum yield from a fishery, but he also underscored the need to consider bycatch and habitat destruction, as well.¹⁵³ In so doing, he made seabirds, sea turtles, and benthic habitat morally considerate in fisheries management—and he championed a multipronged approach to give that moral consideration real-world impact.

1. End Commercial Fishing Subsidies

According to Stone, the fishing “industry has been the historical beneficiary of public subsidy. Subsidization lowers private costs at public expense, thereby increasing the investment in fishing beyond the level that market signals would warrant.”¹⁵⁴ Government subsidies to fishers, he concluded, have “been a crucial culprit in over-fishing,” promoting an increase in commercial fishing instead of its reduction.¹⁵⁵ “Hence, the first step in restoring the health of the oceans is to wean the industry from subsidies,” a task that Stone thought international trade law was well-suited to address.¹⁵⁶

2. Improve and Extend Resource Management

According to Stone, reducing fishing subsidies, “by reducing interest-group pressures in the political and regulatory environment, would enable the managers to do their jobs.”¹⁵⁷ However—and again emphasizing international trade law as an enforcement mechanism—Stone also argued that global fisheries management also needs to be enhanced through stronger regional fisheries organizations and better management of the high seas.¹⁵⁸ Notably, with regard to the high seas, the United Nations is currently drafting a new treaty to protect marine biodiversity in the high seas, rendering large portion of the open ocean marine reserves protected from fishing.¹⁵⁹

3. Charge for Use

Stone also advocated that, rather than rely (solely) on command-and-control catch limits and gear restrictions, governments or fishery managers charge for fishing, in the form of either a landings tax or a royalty.¹⁶⁰ “A charge raises the cost of fishing to the fisher,” and the goal would be

to create cost conditions that result in the fleet extracting fish at the revenue maximizing level of effort that would be employed by a sole owner. Such a sole owner would stop fishing when the landed value of a marginal stock reduction equalled the marginal cost of catch (including congestion costs and any impairment in future yield).¹⁶¹

Specifically, and consistently with making impacts to marine ecosystems and biodiversity morally and legally considerate, this charge would go beyond the recovery of management costs and seek “to confront the fisher with (ideally) the marginal costs of harvest rivalry, stock depletion and environmental damage.”¹⁶²

4. Establish an Ocean Trust Fund

Revenues from the fishing tax, in turn, would fund the Ocean Trust Fund that Stone proposed.¹⁶³ This fund “could support”

the monitoring of fishing regulations; this could include expansion of satellite programmes, on-board inspectors, etc; defending, restoring, even purchasing wetland and nursery areas; carry-over payments for investors and workers to compensate for tie-up losses required by stock rehabilitation; gathering and analysis of stock data; fisheries health services, including monitoring health effects of mariculture on coastal quality and safeguarding against incursions of exotic species.¹⁶⁴

Thus, in addition to making fishing itself more expensive, the fishing tax would make fisheries enforcement more effective, protect marine habitat, transition fishers to other jobs, improve fisheries science, and protect marine ecosystems more generally. Again, Stone was already effectively practicing a Blue Ethics, incorporating the greater health of the ocean into the economics and regulation of fishing.

5. Establish Ocean Guardians

At the heart of Stone’s Earth Ethics was a quest to give the environment a legal voice¹⁶⁵ that could press at least a legal advantage (as opposed to a legal right) of intactness.¹⁶⁶ That voice would often come in the form of a legal guardian,¹⁶⁷ because “Nonpersons such as whales, . . . while possessing interests and even preferences, are at best restricted in their capacities to express them.”¹⁶⁸ Similarly, for the ocean, “while we cannot orient the law to a Thing’s welfare, we can orient it to some ideal state of the Thing,”¹⁶⁹ and the guardian can urge action consistent with that legal orientation.¹⁷⁰ Viewed in this light, guardians for the ocean could also operationalize a Blue Ethics in marine fisheries by articulating the ideal of healthy, resilient marine ecosystems free from the stresses of large-scale commercial marine fishing.

B. The Ethical Promise of the More Environmentally Benign Forms of Marine Aquaculture

The last step for a Blue Ethics agenda is to substitute a more ethically sound Blue Foods production system for commercial wild-capture fisheries—and that substitute is already emerging. Given the plateauing of wild fisheries, marine aquaculture industries have been growing rapidly since 1986 to close the gap in global seafood demand.¹⁷¹ Indeed, for most categories of fisheries, aquaculture production has already exceeded that of wild commercial fisheries:

Based on time-series data of major species groups, world aquaculture production has progressively surpassed that of capture fisheries. The “farming more than catch” milestones were reached in 1970 for aquatic algae, in 1986 for freshwater fishes, in 1994 for molluscs, in 1997 for diadromous fishes, and in 2014 for crustaceans. However, despite the increasing output from global aquaculture, farming of marine fishes is unlikely to overtake marine capture production in the future.¹⁷²

Aquaculture production of marine animals has grown from an average of 6.3 million tonnes per year between 1986 and 1995 to almost 31 million tonnes in 2018, a growth rate of 489% over about 35 years.¹⁷³ While, overall, finfish aquaculture dominates aquaculture production, most of that production occurs inland, in freshwater.¹⁷⁴ In contrast, “[i]n 2018, shelled molluscs (17.3 million tonnes) represented 56.3 percent of the production of marine and coastal aquaculture. Finfish (7.3 million tonnes) and crustaceans (5.7 million tonnes) taken together were responsible for 42.5 percent, while the rest consisted of other aquatic animals,”¹⁷⁵ including sea turtles and marine invertebrates such as sea cucumbers.¹⁷⁶

However, food animals are not the only aquacultured marine species of global importance. In 2018 the world produced 32.4 million tonnes of aquacultured algae (kelp, seaweed) worth $13.3 billion and 26,000 tonnes of ornamental seashells and pearls worth $179,000.¹⁷⁷ Seaweeds dominate the aquacultured algae, and while tropical seaweed aquaculture in Southeast Asia has decreased in recent years, seaweed aquaculture in temperate and cold waters—like those that surround most of the United States—continues to grow, albeit at a slower pace than marine animal aquaculture.¹⁷⁸

As such, aquaculture, both freshwater and marine, already plays an increasing role in preserving Blue Food security.¹⁷⁹ The issue is whether this global expansion of marine aquaculture is also an example of Blue Ethics. The answer, perhaps unsurprisingly, is “sometimes.”

As both the FAO and the Blue Food Assessment have recognized, sometimes an ethical approach to food security requires shifting consumer demand. For Blue Foods, the more ethical approach must include a careful expansion of marine aquaculture—but not in the form of the most common finfish aquaculture, Atlantic salmon. Instead, that expansion should focus on marine algae (seaweed) and bivalves such as clams, mussels, and oysters. “[A]cross all blue foods, farmed bivalves and seaweeds generate the lowest stressors” to the environment,¹⁸⁰ making them the most ethical choice of Blue Foods.

1. Marine Aquaculture and Climate Change

On the whole, Blue Foods are better for the environment than terrestrial foods, and most forms of marine aquaculture are better for the environment than wild-caught fisheries. The multi-author article entitled Environmental Performance of Blue Foods appeared in the journal Nature to accompany the launch of the Blue Food Assessment.¹⁸¹ It provides a standardized evaluation of the environmental impacts of twenty-three species groups of blue foods across several parameters, including greenhouse gas emissions, water and land use, and nutrient pollution, all conveniently compared to chicken production.¹⁸² Importantly, both environmental impacts and human nutritional values vary considerably across marine foods, whether wild-caught or farmed (aquaculture). To take greenhouse gas emissions as just one example, the authors found that “[a]cross assessed blue foods, farmed seaweeds and bivalves generate the lowest emissions, followed by small pelagic capture fisheries, while flatfish and crustacean fisheries produce the highest.”¹⁸³

As the authors note, “fuel use drives capture fisheries emissions.”¹⁸⁴ Even so, the greenhouse gas emissions from several wild capture fisheries remain lower than emissions from terrestrial chicken production when assessed by weight of edible food produced.¹⁸⁵ These fisheries include herring, sardines, anchovies, cods, hakes, haddocks, salmon, trout, and smelts; in addition, fisheries for tunas, bonitos, billfishes, squid, cuttlefishes, and octopuses are about equivalent in greenhouse gas emissions, on average (albeit with a wider range of variation) to domestic chicken production.¹⁸⁶ Nevertheless, tradeoffs abound—including with respect to impacts on marine biodiversity. For example, finfish fishing practices that reduce greenhouse gas emissions, such as use of gill nets and entangling nets, simultaneously increase risks to marine mammals.¹⁸⁷

Seaweed and bivalve marine aquaculture avoid greenhouse gas emissions because neither seaweed nor bivalves need to be fed. “For fed aquaculture, feed production is responsible for more than 70% of emissions for most groups.”¹⁸⁸ While seaweeds are technically not plants, like plants they rely on chlorophyll and sunlight to grow—but, unlike land crops, they do not require fertilizer. Bivalves, in turn, are filter feeders and rely on small plants and animals in the water column, known as plankton, for their food.¹⁸⁹

More impressively, seaweed aquaculture has the potential to actually sequester carbon dioxide, the most ubiquitous greenhouse gas.¹⁹⁰ As noted, kelps and marine algae photosynthesize, meaning that they take in carbon dioxide. However, while the potential for terrestrial plants, especially forests, to mitigate climate change as carbon sinks is well recognized and promoted,¹⁹¹ the same has not been true for seaweed aquaculture. Indeed, although “[t]he world production of marine macroalgae, or seaweed, has more than tripled, up from 10.6 million tonnes in 2000 to 32.4 million tonnes in 2018,”¹⁹² only recently has seaweed aquaculture been “gaining increasing attention to be promoted and monitored for climate and environmentally friendly bioeconomy development.”¹⁹³ Nevertheless, seaweed aquaculture’s potential contribution to climate change mitigation is significant.¹⁹⁴ Marine kelps generally have been left out of world “blue carbon” (ocean-based climate mitigation) strategies until recently because, unlike seagrasses and salt marshes, they grow on rocks, not in submerged soil, raising questions about their ability to sequester carbon dioxide for long periods.¹⁹⁵ However, more recent investigations indicate that natural seaweeds do indeed sequester carbon in the deep ocean (eventually becoming, somewhat ironically, petroleum).¹⁹⁶

Given the sequestration capacity of natural seaweeds, researchers have proposed that seaweed aquaculture could also significantly contribute to climate change mitigation.¹⁹⁷ In particular, seaweed aquaculture “should prove to be expandable to the offshore environment and the open sea, . . . unlocking a capacity to greatly increase carbon capture in biomass. This approach has been termed Seaweed Carbon Capture and Sink (‘Seaweed CCS’; analogous to terrestrial Carbon Capture and Storage).”¹⁹⁸

2. Marine Aquaculture and Nutrient Pollution

Bivalve and seaweed aquaculture can also help to address marine nutrient pollution. Water flowing over and from farms, in the forms of both irrigation return flows and runoff from rain or snowmelt, carries excess fertilizer (mostly nitrogen compounds) to the ocean.¹⁹⁹ Nutrients also reach the waters through atmospheric deposition, such as from the burning of fossil fuels.²⁰⁰ Once there, nutrients induce large blooms of marine plants—phytoplankton and algae. Algae are marine plants, many of which are beneficial to marine food webs.²⁰¹ Marine algae include both the large marine seaweeds and kelp and the nearly microscopic algal forms of marine phytoplankton.²⁰² However, the small phytoplankton forms of algae can create an “algal bloom,” which “is a rapid increase in the population of algae in an aquatic system,” which often “may be recognized by discoloration of the water resulting from the high density of pigmented cells.”²⁰³ This discoloration can give algal blooms common names, such as “red tides.”²⁰⁴ Increasing nutrient concentrations are the usual cause of algal blooms,²⁰⁵ because, like terrestrial plants, marine phytoplankton respond to nitrogen and phosphorus compounds as fertilizers.

Algal blooms impact both marine ecosystems and human health. At the ecosystem level, as the blooms die off, their decomposition consumes all the oxygen in the water column, leading to hypoxic (low-oxygen) conditions that make large areas of the ocean uninhabitable by marine animals.²⁰⁶ In the United States, the largest of these so-called “dead zones” occurs seasonally in the northern Gulf of Mexico at the mouth of the Mississippi River and can reach the size of Massachusetts or New Jersey—over 7,000 square miles.²⁰⁷ However, dead zones are now common throughout the world’s coastal regions.²⁰⁸ The number of dead zones in the world’s seas has doubled every decade since 1960 as a result of increasing marine pollution, and a 2008 study identified more than 400 dead zones throughout the world.²⁰⁹ Perhaps most disturbingly, dead zones are missing biomass compared to what would be expected, suggesting that the oxygen deprivation that algal blooms cause can have long-term effects on the region’s biodiversity and productivity.²¹⁰

In part because of these aquatic impacts, researchers have concluded that nutrient pollution (along with biodiversity loss)—not climate change—actually poses the greatest current risk of pushing planetary systems across potentially irreversible thresholds.²¹¹ Will Steffen, Johan Rockström, and their colleagues at the Stockholm Resilience Center first identified their nine planetary boundaries in 2009.²¹² Planetary boundaries “are human-determined values of the control variable” to keep the planet from crossing thresholds and entering into transformations that represent existential threats to current social-ecological systems.²¹³ The nine boundaries identified represent systems operating at a global scale, either directly or cumulatively, and include climate change, ocean acidification, stratospheric ozone depletion, atmospheric aerosol loading, biogeochemical flows (phosphorus and nitrogen nutrient pollution), global freshwater use, land system change, biodiversity loss, and chemical pollution.²¹⁴ The researchers’ 2015 update article moderated those conclusions by working with risk zones instead of hard boundaries²¹⁵ but nevertheless concluded that genetic biodiversity loss and both nitrogen and phosphorus pollution had crossed into red zones, while climate change remained in the yellow (lesser) risk zone.²¹⁶

As the FAO has emphasized, mollusks like clams and oysters are filter feeders, meaning that aquacultured mollusks do not need to be fed.²¹⁷ Similarly, seaweeds grow through photosynthesis.²¹⁸ As a result, “[m]arine bivalves, filter-feeding organisms that extract organic matter from water for growth, and seaweeds, which grow by photosynthesis by absorbing dissolved nutrients, are sometimes described as extractive species.”²¹⁹ These species can reduce nutrient pollution in marine environments, regardless of whether the pollution comes from fed finfish aquaculture²²⁰ or other sources, such as fertilizer runoff from upstream agriculture.²²¹

Thus, shellfish and kelp aquaculture can improve marine water quality as well as feed human beings. For example, “In the U.S., oysters are the largest grossing marine species group for U.S. aquaculture, valued at $192 million in 2016.”²²² Oysters are also particularly good at filtering water.²²³ Statistically significant water quality improvements have been measured in and around oyster farms in Virginia’s portion of the Chesapeake Bay,²²⁴ and the U.S. Geological Survey (“USGS”) and NOAA have determined that “[a]ll of the nitrogen currently polluting the Potomac River estuary could be removed if 40 percent of its river bed were used for shellfish cultivation.”²²⁵ In the Maryland portion of Chesapeake Bay, oyster aquaculture removes nitrogen pollution associated with farm runoff, allowing oyster aquaculture (and clam aquaculture) to potentially participate in nutrient trading programs under the federal Clean Water Act.²²⁶

Kelp aquaculture can also improve water quality. For example, some species of kelp can remove up to 94% of ammonia pollution and up to 61% of phosphorus.²²⁷ Similar studies along the northeastern (Atlantic) coast of the United States have “demonstrat[ed] that nutrient bioextraction through seaweed aquaculture can be an effective coastal nutrient management tool in urbanized estuaries.”²²⁸ Moreover, the nutrient extraction benefits potentially multiply when marine aquaculture facilities grow kelp and shellfish together.²²⁹

C. Ethical Transitions to Shellfish and Seaweed Aquaculture

Careful attention to Blue Foods could improve both the environmental impacts of human food security and human nutrition. For example, “blue foods provide the highest nutrient richness across multiple micronutrients (for example, iron and zinc), vitamins (for example, B12), and long-chain polyunsaturated fatty acids (for example, EPA and DHA) relative to terrestrial animal-source foods.”²³⁰

More specifically as discussed above, marine aquaculture, particularly kelp and shellfish aquaculture, is a key component of a more ethical Blue Food future. On the whole, both aquacultured kelp and “bivalves have a low environmental impact per gram of protein produced, compared with finfish aquaculture, most capture fisheries, and terrestrial livestock.”²³¹ Moreover, FAO data indicate “that 70 percent of people involved in aquaculture production are women,”²³² suggesting that marine aquaculture is already promoting gender equity in Blue Food production.

There are, of course, other ethical considerations, such as how to transition fishers to new jobs and finding ways to support communities that transition from fishing to aquaculture. Access to the new industry needs to remain equitable, and sometimes contentious issues regarding how to locate new businesses and infrastructure in crowded coastal zones will require resolution—although marine aquaculture is increasingly moving into deeper ocean waters, and co-location with offshore renewable energy facilities can save space.²³³ In other words, the transition to more ethical Blue Food security will require work, careful planning, new laws and policies, and probably some money, either from governments or investors.

Conclusion

The Anthropocene requires humanity to continually adjust law and policy to meet basic human needs—like food and water—without sacrificing the rest of the biosphere in the process. Although Christopher Stone is now most strongly associated with the Rights of Nature movement (as other articles in this volume make clear), he also recognized that progress was also possible through a new Earth Ethics that gives Things and Nonhumans in nature—like whales and coral reef ecosystems—both legal advantage²³⁴ in court and moral considerateness²³⁵ in policymaking while still stopping short of giving nature actual legal rights.

This more limited ethical framework, and the Moral Pluralism that Stone developed to support it, provides a workable framework for reconsidering the ethics of humans’ dependence on Blue Foods for our overall food security. Under this new Blue Ethics, the choice of how to procure Blue Foods is not amoral; instead, giving full moral considerateness to ocean species and marine ecosystems requires consciously shifting Blue Food production away from industrial-scale commercial fishing to the most environmentally benign forms of marine aquaculture, generally involving aquaculture of bivalves and kelp. At the same time, adopting Moral Pluralism provides a principled basis for using multiple frameworks and analyses to evaluate the continued morality of other kinds of wild-caught fisheries, particularly subsistence fishing among the world’s indigenous communities.

The transition from large-scale marine fishing to increased aquaculture will not be easy in all, or even most, locations. Moreover, the details of how to first define and then shift among relevant ethical frameworks without devolving into moral relativism²³⁶ and its political manifestations will require careful thought and intimate situational wisdom, as well as a strong commitment to improving the ocean’s resilience. However, the result could be both increased food security and improved health for many coastal communities and an ocean with more capacity to adapt to climate change and ocean acidification, extending the many non-fish ecosystem services it provides to future generations.

95 S. Cal. L. Rev. 1307

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Robin Kundis Craig*

* Robert C. Packard Trustee Chair in Law, University of Southern California Gould School of Law, Los Angeles, CA. My thanks to the editors of the Southern California Law Review for including me in the Christopher Stone Symposium on Environmental Law. I may be reached at rcraig@law.usc.edu.

Identifying Contemporary Rights of Nature in the United States

April 2023April 2023Karen Bradshaw*

The Rights of Nature movement is at the precipice of watershed social changes. Leaders of this international, Indigenous-led movement call upon the public to radically reimagine the human relationship with nature. This Article comes at a crucial moment when some leading environmental law scholars are questioning the potential Rights of Nature within the United States. This Article responds by building upon the ideas of Christopher Stone to chart the theoretical and doctrinal pathways that breathe life into the legal framework of Rights of Nature. It sketches the present status of Rights of Nature in the United States and links this overview to environmental, animal, and natural resources law literatures.

Most scholarly discourse about the Rights of Nature focuses on a few well-known examples outside of the United States, such as constitutional rights in Ecuador or New Zealand and Australia granting rights to wind and rivers. In fact, the United States has a growing body of diverse Rights of Nature that legal scholars have largely overlooked. For example, in six federal statutes, natural resource damages have resulted in over ten billion dollars of tort remedies that benefit nature. Indigenous governments located throughout the United States—including the Band of Ojibwe, Ho-Chunk Nation, Navajo Nation, and Ponca Nation—have created legal personhood, statutory personhood, and constitutional provisions in tribal government. Additionally, wildlife holds many rights hidden in federal statutes, as with bald eagles claiming property rights superior to those of humans in the Bald and Golden Eagle Protection Act. Collectively, this diffuse and innovative set of laws forms a body of existing Rights of Nature, showing that such rights exist in the United States today—examples that deserve discussion, consideration, and potential extension.

This Article seeks to uncover and elevate these rights, thus promoting, amplifying, and calling attention to many diffuse efforts to capitalize upon their collective potential to reshape the human relationship with nature and address the environmental problems of our time. It links popular discourse on the Rights of Nature with its theoretical foundations and well-established statutory systems of environmental law. It seeks to help and inspire legal thinkers in disparate fields to collectively co-create a more robust role for Rights of Nature—within the United States and beyond.

INTRODUCTION

“Rights of Nature” recognize natural objects (such as trees, rivers, and wind) as having some legal rights, including them in our system of law and government. The Rights of Nature movement is international and Indigenous-led. It is part of a broader effort to displace anthropocentric conceptions of the human relationship with nature with an alternative worldview that prioritizes the needs of all parts of an ecosystem.

Famous international examples of governments recognizing natural objects as rightsholders have captivated public attention. Despite this public yearning to reimagine our relationship with nature, U.S. environmental law scholars were long slow to embrace the idea. Some have defined the idea narrowly, presupposing that Rights of Nature are narrowly confined to unenforceable constitutional provisions. Others have yet to engage the idea, thinking of it as orthogonal to environmental law, as it is conventionally understood as a set of statutes enacted in the 1970s (such as the Clean Air Act). This Article makes the novel claim that Rights of Nature not only exist but are actually widespread and can be found in many contemporary U.S. laws not conventionally understood as affording legal rights to natural objects. Further, it links conventional environmental law to the Rights of Nature movement, showing how merging these fields can revitalize environmental law to address pressing problems that presently narrow definitions of the field leave untouched. (This builds upon prior work in which I link Rights of Nature to animal law and animal rights literatures.¹) This Article suggests that we, collectively as a community of scholars continuously co-creating the field of law governing the human relationship with the environment, should use our collective talent, time, and skills to identify, amplify, and extend Rights of Nature because they hold considerable potential to forward new legal pathways to much-needed ecological objectives.

After a slow start, the Rights of Nature movement is quickly gaining momentum. Christopher Stone was influential in the creation of the Rights of Nature.² Stone challenged conventional Western understandings of how law interacts with nature by considering affording standing to natural objects. Since then, Stone’s thinking has influenced a large and growing international consortium of lawmakers, activists, and scholars in granting objects natural rights.

Yet, scholars and commentators may not have yet developed a shared understanding of what “Rights of Nature” are.³ Precision matters at this precarious moment, when an enthusiastic international group of legal scholars are beginning to seriously engage with the concept. There exists a danger that some scholars might ascribe the term a narrow definition—such as constitutional provisions—with understanding that they link to others—such as natural resource damages—which could lead commentators and courts to prematurely dismiss Rights of Nature. Thus, substantive outcomes result from the terminological definition—making proper understanding and definitions of critical importance.

Moreover, the early-stage practical challenges of forging new legal pathways give some leading environmental law scholars cold feet about the administrability of natural rights. For example, Mauricio Guim and Michael A. Livermore are self-described skeptics of the idea, noting “rights for nature are unlikely to provide the solution that frustrated environmentalists seek.”⁴ Although I have tremendous respect for these talented environmental thinkers, I think they dismiss the idea too quickly. Every legal movement is messy at first, needing many iterations to develop and mature into a well-functioning regime. Narrowly defining Rights of Nature and looking at early efforts to actualize it may produce too much skepticism for something that has the potential to provide a much-needed shakeup to the status quo. A broader definition of the Rights of Nature—the vision outlined in this Article—shows that, in fact, they already exist and are functioning quite well in natural resource damages statutes and Indigenous governments within the United States—two sources of Rights of Nature that Guim and Livermore do not contemplate in their valuable paper.

Despite the domestic origins of these ideas in contemporary legal structures, some U.S. scholars have dismissed the Rights of Nature as unworkable in our legal structure. That is beginning to change, with a wave of new scholarship on the Rights of Nature taking a more optimistic tone. Yet, even among this growing body of work, U.S. scholars have not created a typology of Rights of Nature or mined existing domestic law to uncover examples of these rights with an eye towards reforming domestic environmental law.⁵ As a result, some scholars are engaging with a superficial subpart of Rights of Nature as if it were the whole,⁶ dismissing that subpart and with it the entire idea.⁷ The problem is that the concept of Rights of Nature does not match the narrow definition that some scholars are ascribing to it. As a result, some are quickly dismissing the important movement as the latest iteration of the attractive-but-meaningless concept of “sustainability.”⁸

I believe that definition matters a great deal here—that defining the Rights of Nature in a broad and multifaceted way for an audience of legal scholars can save this vital movement from being dismissed as unworkable before it really starts. This Article seeks to bridge the gap between the popular discourse on the Rights of Nature and law. It lays a very modest foundation for lawyers, commentators, and judges to situate the Rights of Nature within the legal context.

This Article begins to explore the idea that the Rights of Nature are not only viable within the U.S. legal structure but are, in fact, already in existence.⁹ It begins by creating a novel typology of Rights of Nature, which is sometimes used in different ways in international discourse. Then, having briefly set forth types of rights, it maps this typology onto domestic laws to see whether—and where—there are Rights of Nature within our existing legal structure.

In doing so, this Article begins to reimagine how we define the field of environmental law—a definition that erodes the existing boundaries of the field as a set of statutes from the 1970s and takes a broader, more expansive approach. Reframing environmental law as laws that govern the human relationship with nature represents a profound, much-needed shift in the field—one that may hold the potential to address the issues of inclusion and rapid geophysical change that we so sorely need at this moment.

Environmental law scholars may have underestimated the potential of existing laws by confining our understanding of the field to federal statutes. This underestimation has caused us to believe that our hands are tied to address environmental issues, that we must wait for Congress to enact new laws to address the many colliding crises of our time to save us as they once did in the 1970s. But this is not the case. Environmental law scholars can find threads running through black letter law that may create legal pathways for new ideas. Reframing environmental law through the Rights of Nature provides a new solution to pressing environmental problems. It also serves to fill a gap between how most people feel about nature and what law on the books states. A more expansive view of environmental law serves to integrate these values—and the long-marginalized populations who hold them—into the canon of environmental law.

This Article proceeds in three Parts.

Part I defines environmental law and the Rights of Nature. Until now, the field of environmental law has been largely understood as a subset of administrative law, focused on federal agency administration of statutes that Congress enacted in the 1970s with very little subsequent updating.¹⁰ This disappointingly narrow conception of the field falls short of the legal tools society must wield to stem climate change and biodiversity loss.¹¹ Rights of Nature is an Indigenous-led effort to ascribe legal meaning to the rights of natural objects within government.¹² Some hope that Rights of Nature represents the most important shift in environmental law since the health-based statutes of the 1970s, which form the canonical version of environmental law. This analysis foreshadows not only the pluralistic descriptive analysis of the Rights of Nature in the United States but also foregrounds the need for new worldviews.

Part II explains that environmental crises highlight the need for alternative worldviews to inform the human relationship with nature. This begins by challenging the received wisdom of a legal and economic system that excludes natural interests—a human-created construct that erases the interests of nonhuman animals and plants. It advocates for readers to radically reimagine the human relationship with nature; it urges legal thinkers to forge creative pathways between the status quo and where we need to go.

Part III provides a typography of Rights of Nature, then compares this framework to existing laws within the United States today (inclusive of Indigenous governments). By mapping the origins of the term and its legal actualization in positive law in the United States today, I show that the concept is much broader than it is sometimes assumed to be. This analysis reveals that there are, in fact, widespread Rights of Nature for natural objects in the United States today. The conclusion considers the implications for Rights of Nature to revitalize environmental law. It briefly flags how some of the most pressing problems of our time—those that statutes alone are failing to address—can, and should, be addressed through innovative tools that integrate the interests of nonhuman rights-holders. This Article reveals that Rights of Nature extend beyond the narrow, commonly understood idea of affording legal personhood to nature in constitutions.

This Article concludes by calling for a change in what counts as environmental law. Students sign up for environmental law courses to learn how to protect pandas and save the world. They are so disappointed when they realize environmental law is mostly about pollution control. An unspoken secret about environmental law is that it is a tremendously narrow field. At the time the classic environmental law statutes (such as the Clean Air Act and Clean Water Act) were created, they were revolutionary. Today, they are clearly not enough to meet public demand. Why, then, do scholars and practitioners in the field accept the narrow constraints of current law? As a relatively new field, a living generation of environmental scholars and advocates built the field of environmental law from scratch.¹³ Early actors fought for legitimacy. They worked hard and earned it. Now, it is time to think of new and bold ideas. Rights of Nature hold the potential to revitalize and reconceive environmental law. This Article suggests that following the path of Rights of Nature—the theories undergirding it and its statutory and doctrinal framework—provides a path to a new iteration of environmental law that is more inclusive, relevant, and expansive.

I. Rights of Nature in Environmental Law

In a recent TED talk, Kelsey Leonard introduced the Rights of Nature to an international audience, suggesting that we should treat “water [as] a living relation and grant[] it the legal personhood it deserves.”¹⁴ Over three million people watched Leonard’s talk.¹⁵ Rights of Nature enjoy widespread popularity—most people like the idea of treating rivers and animals well in the abstract. But how do Rights of Nature intersect with the legal system?

Understanding the nexus of current federal policy and the Rights of Nature begins with two interrelated questions: What is environmental law? And what is the Rights of Nature movement? The answer to both revolves around human relationships with nature. At present, the field of environmental law is largely anthropocentric—focusing on the needs of humans while largely ignoring those of other species.¹⁶ Many (although not all) of our laws are focused on constraining human uses of natural objects (such as airscapes and rivers) so that they do not degrade to the point that they no longer satisfy human needs for clean air and drinking water. The premise of protecting the environment to satisfy ongoing human use of it is a centerpiece of much of the field.

In contrast, the fundamental premise of the Rights of Nature movement challenges this anthropocentric view. It suggests that other living things—rivers, wild rice, wind, animals—also have interests in the environment, which human uses should not fully degrade. Asserting rights on behalf of nature within contemporary human legal systems expands law beyond serving humans, creating a more expansive vision of our legal systems as navigating the human relationship with nature. Notably, this is not a new worldview. Many religions and cultures across time and history, including in much of the world today, reflect this ethos: the idea that the Earth and its resources are shared between its inhabitants, and humans ought not take more than our share from other creatures or destroy natural environments.¹⁷ Through legal formalities and corporate structures, the legal functionaries administering Western systems of law, government, and commerce have often pretended away the idea of nonhuman interests as worthy of equal consideration under the law—separating law from ecological morality.¹⁸

The remainder of this Part shows how Rights of Nature may resolve some of the shortcomings in current environmental law. Section A describes environmental law as a field of study and practice area. Section B shows that Rights of Nature provide an alternative worldview to existing environmental law, one in which nonhuman interests are formally recognized.

A. Environmental Law

Environmental law as a field is generally understood as a set of statutes enacted in the 1970s, such as the Clean Air Act, Clean Water Act, Endangered Species Act, and National Environmental Policy Act.¹⁹ These laws have largely sat stagnant since then—rarely amended with very little new environmental legislation. As a result, existing environmental laws are not addressing ecological vicissitudes including climate change, wildfire policy, factory farming, and biodiversity loss. Environmental laws are sorely out of date.²⁰

In the fifty years since the environmental laws were enacted, astonishing shifts have occurred in scientific understanding, showing many imbricated challenges that the statutory framework does not begin to address. Climate change, biodiversity loss, wildfire smoke emissions, and factory farming are modern environmental disasters. The worldview undergirding current laws are out-of-step with updated understandings of nature as part of an interconnected world.

While we have learned more about the natural world, so too has society shifted since the environmental laws were created.²¹ First, an understanding of intergenerational, systemic racism has shown how racist institutions have created environmental justice problems that intersect with climate change, wildfire, and biodiversity in troubling ways. Second, Indigenous governments worldwide are innovating new laws that draw on traditional ecological knowledge to address environmental issues.²² Third, Wicca and Paganism are quickly growing religions, emerging from the ashes of European and domestic genocide of people (generally identifying as women) who advocated on behalf of nature.²³ Fourth, animal law scholars have advanced a new agenda for radically reimagining a legal system focused on interspecies equity and expanding the law to make nonhumans co-participants in our systems of governance.²⁴

Environmental law statutes have failed to keep pace with these social shifts. Laws that represented colonial perspectives and were largely developed by non-inclusive groups of lawmakers are still on the books. Scholars, lawyers, legislators, and judges should broaden environmental law to keep up with the times. New laws, tools, and approaches are desperately needed from more diverse voices. ²⁵ The crucial question is how to update the field to incorporate new perspectives. Relying solely upon a narrow, statutory approach—by enacting more federal law—is insufficient to the intertwined challenges of natural and social concerns.

This is where the Rights of Nature come in—offering an opportunity to radically reimagine the human relationship with nature in ways that reflect both ancient worldviews and modern scientific understandings. The Rights of Nature is an international, Indigenous-led movement to update the law to recognize the legal rights of natural objects.

B. Rights of Nature

The term “Rights of Nature” describes affording legal rights to nonhuman natural beings and objects.²⁶ Rights of Nature incorporate nonhumans into human legal systems. Affording rights to a river, for example, allows the river to independently assert its interests to legal institutions through human trustees. A constitutional provision may allow citizens to sue on behalf of natural objects. This removes the need for a human plaintiff to assert adequate standing—providing built-in access for natural entities to the judicial process.

The Rights of Nature is also a movement—an international effort for governments worldwide to fold nature into systems of law and government.²⁷ Rights of Nature seek to reinfuse pre-colonial values of human-nature relationships into legal and economic institutions in the United States and beyond. It is sometimes described as decolonization of property or the natural world.²⁸ The movement challenges anthropomorphic conceptions of the world by folding nature’s interests into man-made institutions of law and markets.

The “Rights of Nature” are once new and ancient. Legal scholars often credit Christopher Stone’s canonical article Should Trees Have Standing? with giving birth to each of these ideas.²⁹ Three central features define Stone’s conception of affording legal rights to natural objects: (1) the standing to sue for a legal remedy in court; (2) the opportunity to obtain a legal remedy, such as money damages or an injunction; and (3) the opportunity to directly benefit from the legal remedy provided.³⁰ The effect of giving nature legal rights is to allow natural objects to collect damages, reallocating the cost of damaging nature as it presently is (costless, in economic terms) to having a value (the harm caused to nature through its damage). This essentially shifts an externality to the person creating it, a form of the “polluter pays” principle.³¹ In his seminal article, Stone argued that conferring rights on nature would impose economic costs on the value of nature that people had harmed.³² Granting legal rights to nature also reduces the damage to nature by encouraging precaution to protect against harm, the cost of which is not justified under a system in which the harm is not paid for.

Environmental law scholars tend to credit Stone’s canonical article Should Trees Have Standing? with giving birth to the Rights of Nature.³³ Surely, Stone’s work is of vital importance to the legal actualization of Rights of Nature, which is credited as an influence by European and South American scholars.³⁴ For example, influential scholar Delphine Misonne has meticulously traced the influence of Stone’s writings on international legal developments, showing that his ideas were foundational to a number of international efforts to afford nature rights, which might otherwise appear scattered but—thanks to the work of Misonne—are instead rightfully linked to Stone’s influence.³⁵

Yet, world-changing ideas rarely come to one person at one time; instead, they are things that people have always believed.³⁶ Stone’s writing might be understood as an excellent modern legal interpretation of similar concepts found in other cultural traditions, past and present. The genesis for humans acknowledging the right of natural objects is present in cultural and religious ideas throughout time and history.³⁷ Indeed, Western culture might be unique for creating legal and economic constructs that erase nature. The Rights of Nature movement merely seeks to reincorporate natural interests in legal regimes that erased them. For these reasons, Rights of Nature can be understood as either a modern legal invention or a return to pre-colonial ideas of rules governing human interactions with nature, which some cultures have held uninterrupted since time immemorial.³⁸

Today, Rights of Nature are a burgeoning area of environmental law scholarship.³⁹ Yet, existing scholarship overlooks the extent to which damages are already being collected for human harms to nature and the extent to which they have (or have not) deterred additional harm. Scholars tend to focus on the question of standing, debating the possibility (or impossibility) of natural objects seeking legal remedies in court.⁴⁰ This Article takes a different approach. It starts by looking at remedies obtained by natural objects in practice. In this way, this Article shows that the Rights of Nature are neither wholly theoretical nor confined to international examples; they are embedded in a variety of laws. But first, I briefly highlight the importance of searching for Rights of Nature in domestic law by outlining why they might serve to incorporate vitally needed diverse perspectives into our field and practice.

II. Infusing Diverse Worldviews into Environmental Law and Policy

A radically different model of envisioning human relationships with nature requires finding alternatives to the dominant discourse that frames environmental law in scientific and economic terms.⁴¹ This Part briefly overviews alternative inputs that could inform our field, drawing upon a body of my work that engages environmental values from diverse perspectives.⁴² This opens the door to more pluralistic worldviews that—directly and indirectly—are informing the Rights of Nature movement and could be incorporated into environmental law.

Dramatically increasing the diversity of inputs into ecological policymaking is crucial to course-correcting our current, disastrous environmental trajectory. One way to understand the myriad overlapping environmental problems is through a relational perspective, understanding the human relationship with nature as frayed. Humans are acting badly in our relationship with Earth and the other living creatures on it. From this perspective, the key to solving problems like climate change or factory farming is not merely practical (reduce CO2 emissions), but also philosophical (live sustainably). Sustainable living within the confines of a living world is not a value system embedded in dominant Western capitalist perspectives. Indeed, the values undergirding the dominant social views are what landed us in our current crisis. It follows, then, that backing away from the crisis cannot be achieved through the policies that landed us in this predicament, nor by the people whose decision-making is informed by worldviews that have landed us there. To do better and differently in our relationship with the natural world requires new understandings of our perspectives and obligations to it. For this, diversity is sorely needed—not for the sake of diversity alone (which would be valid), but also because our current mindsets have proven limited and problematic.

In recent work, I note, “I believe that marginalized members of society—those most absent from academic discourse and positions of federal policymaking—hold the insights that are key to our collective survival.”⁴³ Without adapting our existing property laws and environmental statutes to incorporate other perspectives, we are doomed to continue unknowingly replicating the flaws in the code of our laws. Only rethinking the underlying mindsets—which requires engaging with voices left out in prior iterations of federal statutory decision-making—will point out the problems in our perspective that led to too-narrow, ineffective, and dated laws.

Fortunately, legal scholars in related fields are shedding light on how to update common law and statutory fields to reflect more diverse perspectives. We can learn from the reckoning happening in administrative law and property law. Administrative law professor Bijal Shah suggests that “[t]he core models of analysis in administrative law are inflexible and entrenched, and the scope, quality, and materiality of administrative law scholarship has stagnated as a result.”⁴⁴ Shah advocates for introducing critical legal study of administrative law in order to invigorate the field.⁴⁵ Relatedly, in property law, K-Sue Park notes that “[a] growing body of legal scholarship suggests that erasure of the histories of conquest, slavery, and race is widespread across doctrinal areas.”⁴⁶ Park advocates for scholars to review the historical development of legal doctrines through a presumption of erasure and a close look at buried material.⁴⁷ Shah and Park both point to the work of scholars who have done important, critical work that speaks to administrative law, property law, and—by extension—environmental law.

Animal law scholars are calling for interspecies equity and shifts in the legal status of nonhuman animals. Maneesha Deckha is leading an international coalition of scholars in considering how Indigenous and eco-feminist perspectives might transform anthropocentric systems into more pluralistic spaces.⁴⁸ An Ecuadorian court recently found that the Rights of Nature protects individual nonhuman animals.⁴⁹

Environmental law scholars are considering perspectives outside of the mainstream environmental status quo, considering concepts like decolonization and unsettling. Rights of Nature provides one of many opportunities to engage these concepts within Western legal structures. Learning from pluralistic worldviews about the ways in which Rights of Nature provides insight into how environmental law scholars can and should engage our body of law amidst personal examination and institutional critiques about diversity, equity, and inclusion.

III. A Typology of Rights of Nature Applied to U.S. Law

This Part provides an overview of Rights of Nature. Section A provides a typology of Rights of Nature, which applies to domestic and international law. Section B explores domestic law, comparing existing laws outside environmental law that nevertheless map on to Rights of Nature. Section C suggests that natural resource damages might constitute the best-developed Right of Nature in the United States, although it has not previously been considered as such. Section D outlines three crucial next steps to expanding existing legal instruments to more fully accommodate a Rights-of-Nature approach.

A. Typology of Rights of Nature

This Section sketches a very rough typology of the legal instruments to actualize Rights of Nature. At present, various sources of positive law exist under this broad term, which lacks the requisite exactitude for legal purposes. Concretely identifying the legal meaning of Rights of Nature requires taking a broad view of possible sources of rights, sifting through potential applications, and delineating various sources of rights.

The inquiry in this Section proceeds in three steps. First, it draws upon actions by Indigenous communities worldwide, which have been forerunners in granting a variety of rights consistent with traditional ecological knowledge. Second, it draws upon emerging definitions that international law scholars are giving to Rights of Nature, such as constitutional provisions in some South American countries and tort remedies for repairing nature under French law. Third, it looks to law—treaties, constitutions, cases, statutes, regulations, and ordinances. From these diverse sources, I link the ephemeral concept of right to concrete legal instruments.

Two brief disclaimers are necessary. First, mapping a quickly emerging area of law runs the risk of overlooking an important component. Therefore, I present this list tentatively as a modest first step, with the assumption that subsequent scholarly discussion will refine and better it. Second, it is necessary to note a technical point: rights can overlap. For example, a constitutional provision could also create legal personhood. Therefore, this is a rough typology and not a perfect mapping, which ideally will emerge collaboratively as the field matures.

This Article identifies various legal meanings of “the Rights of Nature,” including constitutional provisions, standing, tort remedies, the right to own property, equitable consideration under the law, and rights-based personhood. This novel typology seeks to provide a legal framework for the many different meanings that scholars and commentators are assigning to the Rights of Nature.

Constitutional provisions provide perhaps the best-known Rights of Nature. International bodies, national governments, states, and Indigenous constitutions can (and do) create positive, written rights to nature in their constitutions. This can be anthropocentric—guaranteeing citizens a right to nature—or eco-centric—making an independent right of nature exist. Over one hundred governments provide some variation of a right to the environment.⁵⁰ Some well-known examples include the constitutional provisions in Ecuador and the Navajo Nation.

Legal personhood allows defined natural objects the opportunity to participate in the legal system by suing in court.⁵¹ A crucial question embedded in this is standing, or whether—and by whom—legal remedies can be sought on behalf of nature.⁵² Potential intermediaries include government entities, Indigenous communities, and nongovernmental organizations. Broader considerations of personhood include communities and governments granting natural features legal personhood, as with communities that have declared the Whanganui River or Klamath River legal persons.⁵³ Standing can be granted statutorily, with Congress explicitly allowing standing through statute. Courts can also grant legal personhood, creating a “jurisprudential paradigm shift.”⁵⁴ Tribal, state, and local laws are also being used.⁵⁵

Equitable consideration means a court considering the fairness of a particular outcome on a nonhuman animal. This is most evident in the growing number of states in which judges engage in a “best interest of all involved” standard to determine the custodial interests of pets—a degree of judicial consideration previously confined to human children.⁵⁶

Tort remedies provide a judicial remedy for a court to order that a person who harms nature pay money damages to compensate for that harm. French scholar Matthieu Poumarède asserts that making humans pay to fix nature when they hurt it is one form of a Right of Nature.⁵⁷ This is essentially saying that nature deserves to be free from harm—much as tort law suggests that people should not be harmed—and to receive damages when it is harmed.

Property rights describe nature, or natural elements such as trees, having the right to own property for its benefit. The federal natural resource damage fund is an example of this: hundreds of millions of dollars that can only be spent to restore nature. More recently, philosophers and legal scholars are considering extending the ability to own property to nature, including wildlife.⁵⁸

Right to Exist confers rights on nature equivalent to those enjoyed not only by people but also by corporations. “[N]ature has certain rights as a legal subject and holder of rights[,] . . . such as the rights to exist, to survive, and to persist and regenerate vital cycles.”⁵⁹ Philosophers urge the distinction between moral and legal rights.⁶⁰ For example, we may believe animals have a right to dignity, but that is not legally enforceable.

International agreements are also creating Rights of Nature. In 1982, 111 countries signed a United Nations (“U.N.”) Charter for the Rights of Nature declaring rights for all living things.⁶¹ Also, in September 2012, the fifth World Conservation Congress of the International Union for Conservation of Nature (“IUCN”) passed a resolution on “[i]ncorporation of the Rights of Nature as the organizational focal point in IUCN’s decision making.”⁶² Former U.N. Special Rapporteur to the Environment, John Knox, advocates for a U.N. provision recognizing a right to a clean environment.⁶³

Having sketched out a very rough typography of Rights of Nature, the next Section considers whether such rights exist within the United States

B. Mapping Current Rights of Nature in the United States

This Article makes a surprising claim: the United States, in fact, already partially recognizes the Rights of Nature. This survey of U.S. law setting aside the legal elements of the Rights of Nature reveals a surprising overlap. Familiar examples include the Endangered Species Act providing a right-to-exist for plants and wildlife.⁶⁴ The National Environmental Policy Act affords procedural protections—and attendant dignity—to government actions on viewsheds.⁶⁵

At its core, Rights of Nature allow human advocates to bring suit to collect damages for ecosystems or their component parts. Rights of Nature can be found in various sources of law, ranging from constitutional provisions to federal statutes, but they always involve a focus on natural objects or systems.

The Rights of Nature exist in many forms. For example, a nongovernmental organization may sue for a legal remedy on behalf of an animal.⁶⁶ A whale can sue the United States, asking the government to stop sonar testing that damages the whale’s vital organs and interferes with important biological behaviors such as feeding and mating.⁶⁷ A monkey can sue a photographer, asserting that he owns a copyright for a picture that he took using the photographer’s camera.⁶⁸ A pet, represented by a trustee, can inherit millions of dollars from her owner.⁶⁹ Similarly, a government can sue as a trustee for damages that someone causes to public lands or resources. If an oil spill kills a bird, the government must sue the oil company for the cost of restoring the habitat so more of that species can live there.⁷⁰

Unlike human litigants, natural objects do not sue on their own behalf. The monkey does not stand in the courtroom and seek to convince the judge that the picture is his. A human trustee must stand in for the natural object. Many legal thinkers get stuck on this point of standing—who may rightfully stand in for an animal, when, and how? As scholars debate these questions, nature continues to participate in the legal system—collecting billions of dollars in damages, amassing countless funds in inheritance, and benefiting through tort deterrence of natural action.⁷¹

Below, this Article begins to tentatively chart how legal advocacy for Rights of Nature occurs in practice, studying the activist lawyering that is expanding the margins of the legal Rights of Nature and the little-known federal statutes that form the basis for collecting damages on behalf of natural objects, as Stone imagined. It begins by setting aside the questions of standing and focuses instead on the remedies garnered. This reveals a large, previously unseen set of laws in place, from which one can trace back the questions of standing. This analysis provides insights that reframe our understanding of how, in practice, litigation for nature occurs.

Table 1. Rights of Nature in U.S. Law
Legal Aspect	Analogy in U.S. Law
Constitutional Provision	None; some argue it is embedded in the human “right to happiness” Ecuadorian Constitution^a Indigenous constitutions within the United States (Navajo Nation)
Legal Personhood	Pa. Gen. Energy Co., LLC v. Grant Twp., No. 14-209ERIE, 2018 U.S. Dist. LEXIS 2069 (W.D. Pa. Jan. 5, 2018). Colo. River Ecosystem ex rel. Deep Green Resistance v. Colorado, No. 17-cv-02316-NYW (D. Colo. 2017). Mute swan case: Fund for Animals v. Norton, 281 F. Supp. 2d 209 (D.D.C. 2003). Legal Personhood of Klamath River
Standing	Cetacean Cmty. v. Bush, 386 F.3d 1169 (9th Cir. 2004); Tilikum ex rel. People for the Ethical Treatment of Animals v. Sea World Parks & Ent. Inc., 842 F. Supp. 2d 1259 (S.D. Cal. 2012). But see Palila v. Haw. Dep’t Land & Nat. Res., 852 F.2d 1106, 1107 (9th Cir. 1988). Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992).
Human Rights	ESA = right to exist Public trust doctrine Steven Wise; Nonhuman Rights Project litigation^b
Tort Remedy	Natural resource damages
Dignity	Cultural resource claims—Native American Wild and Scenic River Act, 16 U.S.C. § 1271, stakeholder collectives National Park Service and Related Programs Act, 54 U.S.C. § 100101(a), and the National Monument enabling statute, Antiquities Act of 1906, 54 U.S.C. §§ 320301–320303
Property Rights	Animal property rights Public lands management National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. § 668dd(a)(2) National Park Service and Related Programs Act, 54 U.S.C. § 100101(a)^c

Sources: ^a Constitución de la República del Ecuador, Oct. 20, 2008, art. 7. ^b Steven M. Wise, Rattling the Cage: Toward Legal Rights for Animals (2000). For critiques of this approach, see Richard A. Posner, Animal Rights, 110 Yale L.J. 527, 539–40 (2000); Richard Epstein, Animals as Objects, or Subjects, of Rights (Univ. of Chi. John M. Olin Law & Econ., Working Paper No. 171, 2002). For a summary of efforts in court, see Bradshaw supra note 58, at 812, 812 n.10. ^c Bradshaw, supra note 58, at 823–30.

Of the potential Rights of Nature outlined above, perhaps the remedy most closely tracking Stone’s conception are the natural resource damages statutes, which are discussed in greater detail below.

C. Natural Resource Damages as Rights of Nature

This Article links the existing environmental law tort remedy of natural resource damages to the Rights of Nature. This account radically reframes legal discussions of nature’s rights, showing them to be far more tangible and well-developed than the nascent rights that scholars and commentators generally describe them as. This advances scholarly discourse about the Rights of Nature beyond whether they should exist to sophisticated discussions of how they have been already operating in practice for decades at the highest levels of federal and international law. Conceptualizing Rights of Nature as including natural resource damages has important implications for environmental law activists and scholars—it charts new pathways for pursuing Rights of Nature.

Natural resource damages are a tort remedy that require tortfeasers that harm public lands or natural resources to pay money damages to fix them.⁷² Tort remedies provide a judicial remedy for a court to order that a company, agency, or individual who harms nature must pay money damages to compensate for that harm.⁷³

Six federal statutes provide nature with a natural resource damages remedy.⁷⁴ Natural resource damages are collected by the government under the public trust doctrine. Teams of environmental lawyers employed by the government seek natural resource damages on behalf of the federal trusts. The damages can only be used to restore nature to a pre-incident baseline condition; they are not a fine or penalty, nor are they used for clean-up. This remedy has produced over ten billion dollars in the past thirty years. It is best known as the vehicle through which British Petroleum (“B.P.”) paid for the restoration of the gulf coast following the Deepwater Horizon oil spill.⁷⁵

Although widespread in practice, natural resource damages are relatively rarely studied. Until recently, environmental law scholars largely overlooked natural resource damages.⁷⁶ In 2012, Sanne Knudsen provided an outstanding introduction to the remedy, describing it as protecting ecosystem health and serving as a limitation on environmentally detrimental uses of private property.⁷⁷ In 2016, I published a descriptive article that provided a longitudinal mapping of the various statutes in which the remedies arise and reported the collection activities by the thirteen federal and resource management agencies.⁷⁸

Despite not yet being understood as conceptually linked, natural resource damages may be the best-developed actualization of Rights of Nature in the United States.⁷⁹ The United States has quietly and unwittingly charted a novel path for statutory Rights of Nature. This is a departure from the splashier continuation of all recognitions afforded Rights of Nature in other countries and tribal governments. Situating natural resource damages among other, international efforts to advance the Rights of Nature paves the way to revitalizing environmental law.

Courts and commentators alike underestimate the importance of tort damages for nature. This leads courts to rubber stamp settlements, which in turn allows overstretched agencies to settle for cents on the dollar. Parties, in turn, rely upon agencies’ inability to litigate cases to push hard for aggressive settlements that do not satisfy the fix what you broke nature of the statute. For example, the agencies in Deepwater Horizon were reliant on B.P. to provide early-stage funding to mitigate damage and assessment costs. This creates an inherent conflict for agencies, which must threaten to sue the party funding the science underlying the settlement. Understanding natural resource damages as Rights of Nature revitalizes the statutes and agencies, providing outside attention to offset the financial interests of responsible parties. Agencies should be increasingly comfortable taking more aggressive settlement and litigation positions if courts and outside commentators—such as environmental nongovernmental organizations—are playing an active role advocating for nature through these statutes. In other words, to realize the potential of natural resource damages, courts and commentators must realize its intellectual hook to Rights of Nature.

Advocating for legal acceptance of the Rights of Nature is at once prosaic and radical. Pragmatically, this Article proceeds in the established model of environmental law by pointing towards six federal natural resource damages statutes in the United States. In 2016, a longitudinal research project revealed that Congress has enacted six statutes that clearly give natural objects legal rights, under which federal agencies, tribes, and states have collected over ten billion dollars.⁸⁰ This Article links natural resource damages to the canonical legal thinking on affording nature rights, linking the law with the theory. This effectively ends the conversation about whether Rights of Nature could possibly exist in the United States. They can, and they do.

Rights of Nature—as they presently exist in federal law—elevate the legal status of nonhuman animals, plants, and natural objects on public lands as protected by law. If a party (person, company, or government entity) harms nature, they must pay tort damages.⁸¹ Those damages can only be used to actively repair the harmed object.⁸² If an oil spill kills songbirds, government agencies will sue the vessel that spilled the oil and use the money damages to restore songbirds. This might mean buying land in Costa Rica where the songbird nests, devoting that land to the songbirds, and rebuilding the population to the point that the songbirds return to the California coast.⁸³ This is one example of hundreds of well-documented cases in which federal agencies used statutes to collect money damages on behalf of nature, then used those funds to restore natural objects that humans had damaged. This is the actualization of Christopher Stone’s idea in Should Trees Have Standing?—his vision has come to fruition.⁸⁴ If we believe that natural resource damages give nature legal rights, then one could argue that Rights of Nature have existed in the United States for at least forty years.

Theoretically, Rights of Nature shift environmental law from an anthropocentric to eco-centric perspective. Nature deserves to exist outside of its uses to humans. Courts might apply the Endangered Species Act to outline the economic purposes of the songbirds—for tourists to see, for hunters to shoot. The Rights of Nature take a dramatic step, suggesting that the public trust doctrine invests in public land and resources a shared, communal right to the continued existence of the resources. Songbirds should exist because they are part of nature, which is part of the American public. Tribal and international examples take a step further still, citing the independent right of natural objects to exist, showing how existing examples of Rights of Nature might evolve in U.S. law over time.

D. Expanding the Rights of Nature

Despite widespread public enthusiasm for reimagining the human relationship with nature, desire and discourse are insufficient to create lasting change. Legal and political institutions translate public will into law. Scholars, lawyers, and law students can act quickly to leverage public will for protecting nature into a powerful, enduring, and meaningful set of legal instruments. I identify three core steps for doing so as the Rights of Nature develop: establishing trusteeship; institutionalizing sound governance models; and innovating legal routes to institutionalize emerging, continually evolving notions of Rights of Nature.

1. Trustees

The first and most urgent step is to institutionalize the early gains of legal personhood by establishing appropriate trustees. Who can be a trustee for a river?⁸⁵ Federal, state, local, or tribal governments? What about trustee claims by nongovernmental organizations, corporations, trusts, or individuals? Who is best situated to advocate for, establish, protect, and manage the Rights of Nature?

These are urgent questions. Public will has outpaced legal answers. There already exist rivers and lakes in the United States that are legal persons. Now, environmental law theorists owe it to the efforts of hard-working environmental advocates to take the baton of shepherding these rights through the legal system. This means providing solid legal analysis and advice for institutionalizing early gains. Nongovernmental organizations are surely working on them, but they should not work alone.

Lessons from the history of environmental law can shape the answers to these questions. For example, a body of extremely valuable recent work by Jessica Owley, tracing the development of conservation easements, can provide valuable lessons for this emerging tool.⁸⁶

2. Institutionalizing Governance

The second task is to consider the institutional features of adjudicating trust responsibilities. Environmental law scholars can bring to bear the cumulative lessons of fifty years of environmental history to craft well-reasoned governance mechanisms. As a default, courts are responsible. Judges have deep expertise in the procedural questions of trusts. They are generally less expert, however, on scientific topics—a reason for the substantial deference generally afforded agencies. Perhaps a system of private governance should exist to answer the scientific management question of natural rights (an argument I make specifically with regard to wildlife property trusts elsewhere).⁸⁷

Trustees, unlike agencies, are not responsive to public will and lack democratic legitimacy. As such, I argue, it is vital that a unified system of private governance emerges, composed of a certifying body representing diverse expertise including scientists, animal advocates, sociologists, and persons with traditional ecological knowledge. Here, too, we find an analogy in land trusts: the Land Alliance is a certifying body to which many reputable trusts remain. History from sustainability certifications, however, warn of the danger of look-alike certifications with less stringent objectives.⁸⁸ To avoid this, I argue, the certifying body should follow the model of Administrative Conference of the United States—a federal government agency that is composed of public and private members. The imprimatur of the federal government will add legitimacy to the proposal; the private element guards against capture.

3. Expanding the Rights of Nature

The broader task of environmental law is to integrate its current narrow framing with the Rights of Nature and environmental justice to create a meaningful, evolving, substantive area of law. This means looking beyond the statutory confines of environmental law. It means listening to what members of the public want for the environment and figuring out how to actualize it. It also means, as a field, engaging in robust debate.

Much as lawyers are called “deal killers” in corporate transactions because they spot the potential problems, so too must we bring skepticism to this project, however aligned we might be with its aims. Some ideas that sound good initially may prove ultimately detrimental. What is the worst that could happen? How could it be guarded against? Lessons learned from environmental law should also apply. If we impose on rural and landowner interests without consultation, they might derail even the clearest of laws. If elite legal architects discount the perspectives of underrepresented voices of women and people of color, our environmental law will not reflect our social values.

The difficult balance of brainstorming, experimentation, and debate may change the nature of the field. Environmental law scholars have long been aligned with one another, assessing the risk from the outside, and thus perhaps not pushing and challenging ideas far enough. But two crucial things have changed since the advent of environmental law. Public sentiment is increasing, and our field has matured. Unification in the fight for legitimacy is no longer necessary; in fact, it holds back the potential to create debate within the field that differentiates a field of scholarship from advocacy. We are ready for that leap; the world needs it. Boldly setting forth new ideas is essential. We can preserve the enviable norms of our field for supporting junior scholars, actively welcoming and encouraging women and people of color. But environmental law scholars must also look for vital and undeniable links between our fields and Indigenous law, animal law, health law, and corporate law.

Conclusion

Indigenous communities and nongovernmental organizations are investing heavily in creating Rights of Nature. Environmental law scholars might collectively choose to answer that call by taking the idea seriously and charting the theoretical and doctrinal pathways to breathe life into it. Although it is simpler to continue forward without critical examination of the past, our present environmental crises warn that is not enough. It is time for a radical reimagining of the human relationship with nature, a shift that must take place through law.

Environmental law scholars need not be the “deal killers” of bold, new ideas. Instead, it is our task to find throughlines in black letter law that create pathways to give legal life to social ideas. This Article strives to do just that—linking popular discourse on the Rights of Nature with its theoretical foundations and well-established statutory systems in the United States. It argues that Rights of Nature have become embedded in seldom-explored cracks and crevices of the law, waiting to be discovered and mined for ideas and new approaches.

This Article links the passion for Rights of Nature to the existing legal framework, providing a novel theoretical analysis and charting doctrinal pathways to institutionalize and actualize Rights of Nature in the United States. Desire and discourse are necessary but not enough. Legal and political institutions translate public will into law. Scholars, lawyers, and law students must act quickly to leverage public will for protecting nature into a powerful, enduring, and meaningful set of legal instruments. I identify three core steps for doing so: establishing trusteeship, institutionalizing sound governance models, and innovating legal routes to institutionalize emerging, continually evolving notions of Rights of Nature. Reframing environmental law like this expands the available remedies in a way that can respond to increased environmental challenges such as climate change, which existing statutes alone cannot address.

It could be the chosen task of a new generation of environmental law scholars to find the Rights of Nature, explore them, and expand them. The public enthusiasm behind Rights of Nature provides precisely such an opportunity. We are not confined to a dozen leading environmental law statutes or to history; our collective scholarly effort should not be limited to merely building upon what is, but also searching out what could be. The Rights of Nature are playing out across hundreds of seldom-explored sources of law in many courtrooms. Identifying them, creating typologies, and assessing outcomes—this is work worthy of the minds available to do it.

Environmental statutes, although vital, may have been a scaffold to build toward a more sophisticated reconciliation of capitalist and environmental values. At this moment in history, we have the combination of the urgent need, public will, and legal pathways to actualize sweeping change. Both the will and tools exist. We have the matches and the kindling—environmental law scholars can collectively choose to build the fire. I hope we do.

95 S. Cal. L. Rev. 1439

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Karen Bradshaw*

* Professor of Law and Mary Sigler Research Fellow, Sandra Day O’Connor College of Law, Arizona State University. Senior Sustainability Scientist, Global Institute for Sustainability, Arizona State
University. Faculty Affiliate, Classical Liberal Institute, New York University Law School. I am thankful for the comments provided by attendees at the University of Southern California Law Review Symposium, Christopher Stone: Assessing the Influence of “Do Trees Have Standing” (2022), the Rights of Nature: Opening the Academic Debate in the European Legal Context, University of Toulouse, IEJIJC, France, and Sustainability Conference of America Legal Educators, Arizona State University (2022). This Article benefitted greatly from comments by, and conversations with, Robin Kundis Craig, Michael
Livermore, Delphine Misonne Julien Betaille, John Knox, Hendrik Schoukens, Guillaume Chapron, and Jan Darpo. I am thankful for the outstanding research assistance of Sarah Brunswick, Caitlin Doak, and Clayton Kinsey

The Rise of Bankruptcy Directors

February 2023April 2024Jared A. Ellias, * Ehud Kamar† & Kobi Kastiel‡

In this Article, we use hand-collected data to shed light on a troubling development in bankruptcy practice: distressed companies, especially those controlled by private equity sponsors, often now prepare for a Chapter 11 filing by appointing bankruptcy experts to their boards of directors and giving them the board’s power to make key bankruptcy decisions. These directors often seek to wrest control of self-dealing claims against shareholders from creditors. We call these directors “bankruptcy directors” and conduct the first empirical study of their rise as key players in corporate bankruptcies. While these directors claim to be neutral experts that act to maximize value for the benefit of creditors, we argue that they suffer from a structural bias because they often receive their appointment from a small community of repeat private equity sponsors and law firms. Securing future directorships may require pleasing this clientele at the expense of creditors. Indeed, we find that unsecured creditors recover on average 20% less when the company appoints a bankruptcy director. While other explanations are possible, this finding shifts the burden of proof to those claiming that bankruptcy directors improve the governance of distressed companies. Our policy recommendation, however, does not require a resolution of this controversy. Rather, we propose that courts regard bankruptcy directors as independent only if an overwhelming majority of creditors whose claims are at risk supports their appointment, making them accountable to all sides of the bankruptcy dispute.

Introduction

In August 2017, the board of directors of shoe retailer Nine West confronted a problem. The firm would soon file for Chapter 11 protection, and its hopes to emerge quickly from the proceeding were in danger due to the high probability of creditor litigation alleging that the firm’s controlling shareholder, private equity fund Sycamore Partners Management, had looted more than $1 billion from the firm’s creditors.[1] The board could not investigate or settle this litigation because it had a conflict of interest.[2]

To take control of the litigation, the board appointed two bankruptcy experts as new directors who claimed that, because they had no prior ties to Sycamore or Nine West, they were independent and could handle those claims.[3] Once the firm filed for bankruptcy, its creditors objected. They argued that the new directors still favored Sycamore because it stood behind their appointment, so the directors would “hamstring any serious inquiry into [its] misconduct.”[4] Nevertheless, the gambit was successful. The bankruptcy court allowed the new directors to take control of the litigation.[5] The new directors blocked creditor attempts to file lawsuits on their own[6] and ultimately settled the claims for about $100 million.[7]

The Nine West story illustrates the emergence of important new players in corporate bankruptcies: bankruptcy experts who join boards of directors shortly before or after the filing of the bankruptcy petition and claim to be independent[8] The new directors—typically former bankruptcy lawyers, investment bankers, or distressed debt traders—often receive the board’s power to make important Chapter 11 decisions or become loud voices in the boardroom shaping the company’s bankruptcy strategy.[9] We call them “bankruptcy directors.”

The rising prominence of bankruptcy directors has made them controversial. Proponents tout their experience and ability to expedite the reorganization and thus protect the firm’s viability and its employees’ jobs.[10] Opponents argue that they suffer from conflicts of interest that harm creditors.[11]

This Article is the first empirical study of these directors. While a voluminous literature has considered the governance of Chapter 11 firms, this Article breaks new ground in shining a light on an important change in the way these firms make decisions in bankruptcy and resolve conflicts with creditors.[12] It does so by analyzing a hand-collected sample of all large firms that filed for Chapter 11 between 2004 and 2019 that disclosed the identity of their directors to the bankruptcy court.[13] To our knowledge, it is the largest sample of boards of directors of Chapter 11 firms yet studied.[14]

We find that the percentage of firms in Chapter 11 proceedings claiming to have an independent director increased from 3.7% in 2004 to 48.3% in 2019.[15] Over 60% of the firms that appointed bankruptcy directors had a controlling shareholder and about half were under the control of private equity funds.

After controlling for firm and bankruptcy characteristics, we find that the recovery rate for unsecured creditors, whose claims are typically most at risk in bankruptcy, is on average 20% lower in the presence of bankruptcy directors. We cannot rule out the possibility that the firms appointing bankruptcy directors are more insolvent and that this explains their negative association with creditor recoveries. Still, this finding at least shifts the burden of proof to those claiming that bankruptcy directors improve the governance of distressed companies to present evidence supporting their view in this emerging debate.

We also examine a mechanism through which bankruptcy directors may reduce creditor recoveries. In about half of the cases, these directors investigate claims against insiders,[16] negotiate a quick settlement, and argue that the court should approve it to save the company and the jobs of its employees.[17] We supplement these statistics with two in-depth studies of cases in which bankruptcy directors defused creditor claims against controlling shareholders: Neiman Marcus and Payless Holdings.

Finally, we consider possible sources of pro-shareholder bias among bankruptcy directors. Shareholders usually appoint bankruptcy directors without consulting creditors. These directors may therefore prefer to facilitate a graceful exit for the shareholders. Moreover, bankruptcy directorships are short-term positions, and the world of corporate bankruptcy is small, with private equity sponsors and a handful of law firms generating most of the demand. Bankruptcy directors depend on this clientele for future engagements and may exhibit what we call “auditioning bias.”

In our data, we observe several individuals appointed to these directorships repeatedly. These “super-repeaters” had a median of 13 directorships and about 44% of them were in companies that went into bankruptcy when they served on the board or up to a year before their appointment.[18] Our data also show that super-repeaters have strong ties to two leading bankruptcy law firms.[19] Putting these pieces together, our data reveal an ecosystem of a small number of individuals who specialize in sitting on the boards of companies that are going into or emerging from bankruptcy, often with private equity controllers and the same law firms.

These findings support the claim that bankruptcy directors are a new weapon in the private equity playbook. In effect, bankruptcy directors assist with shielding self-dealing transactions from judicial intervention. Private equity sponsors know that if the portfolio firm fails, they could appoint bankruptcy directors to handle creditor claims, file for bankruptcy, and force the creditors to accept a cheap settlement.[20] Importantly, the ease of handling self-dealing claims in the bankruptcy court may fuel more aggressive self-dealing in the future.[21]

Our findings have important policy implications. Bankruptcy law strives to protect businesses while also protecting creditors. These goals can clash when creditors bring suits that threaten to delay the emergence from bankruptcy. While bankruptcy directors may aim for speedy resolution of these suits, their independence may be questionable because the defendants in these suits are often the ones who appoint them. Moreover, bankruptcy directors often bypass the checks and balances that Congress built into Chapter 11 when they seek to replace the role of the official committee of unsecured creditors (“UCC”) as the primary check on management’s use of the powers of a Chapter 11 debtor.

We argue that the contribution of bankruptcy directors to streamlining bankruptcies should not come at the expense of creditors. We therefore propose a new procedure that bankruptcy judges can implement without new legislation: the bankruptcy court should treat as independent only bankruptcy directors who, in an early court hearing, earn overwhelming support of the creditors whose claims are at risk, such as unsecured creditors or secured creditors whom the debtor may not be able to pay in full. Bankruptcy directors without such support should not be treated as independent and therefore should not prevent creditors from investigating and pursuing claims.

The creditors will likely need information on the bankruptcy directors to form their opinion, and bankruptcy judges can rule on what information requests are reasonable. This will create standardization and predictability. However, disclosure is no substitute for creditor support. Requiring disclosure without heeding creditors on the selection of bankruptcy directors will not cure bankruptcy directors’ structural biases.

Some might argue that our solution is impractical or otherwise lacking. We answer these claims. More importantly, our solution is the only way to ensure that bankruptcy directors are truly independent. If it cannot be made to work, bankruptcy law should revert to the way it was before the invention of bankruptcy directors, where federal bankruptcy judges were the only impartial actors in most large Chapter 11 cases. In such a scenario, debtors will be free to hire whomever they want to help them navigate financial distress, but the court will regard these bankruptcy directors as ordinary professionals retained by the debtor. The court should weigh the bankruptcy directors’ position against the creditors’, allow the creditors to conduct their own investigation and sue over the bankruptcy directors’ objections, and not approve settlements merely because the bankruptcy directors endorse them.

Our study also lends support to the bill recently introduced by Senator Elizabeth Warren to prevent debtors from prosecuting and settling claims against insiders.[22] Like our proposal, this bill would restore the traditional checks and balances of the bankruptcy process while allowing distressed firms to appoint directors of their choice. Still, our proposal has several advantages. It does not require new legislation, it preserves greater flexibility for the bankruptcy court and, by requiring that bankruptcy directors be acceptable to creditors, it ensures that all board decisions in bankruptcy, not just decisions regarding claims against insiders, advance creditor interests.

Our analysis also has implications for corporate law. Much of the literature on director independence in corporate law has focused on director ties to the corporation, to management, or to the controlling shareholder.[23] We explore another powerful source of dependence: dependence on future engagements by other corporations and the lawyers advising them.

This Article proceeds as follows. Part I lays out the theoretical background to our discussion, showing how the use of independent directors has migrated from corporate law into bankruptcy law. Part II presents examples of bankruptcy director engagements from the high-profile bankruptcies of Neiman Marcus and Payless Holdings. Part III demonstrates empirically how large firms use bankruptcy directors in Chapter 11. Part IV discusses concerns that bankruptcy directors create for the integrity of the bankruptcy system and puts forward policy recommendations.

[1]. See Notice of Motion of the 2034 Notes Trustee for Entry of an Order Granting Leave, Standing, and Authority to Commence and Prosecute a Certain Claim on Behalf of the NWHI Estate at 15, In re Nine West Holdings, Inc., No. 18-10947 (Bankr. S.D.N.Y. Jan. 31, 2019) [hereinafter Notice of Motion of the 2034 Notes Trustee]; Kenneth Ayotte & Christina Scully, J. Crew, Nine West, and the Complexities of Financial Distress, 131 Yale L.J.F. 363, 373 (2021) (describing some of the transfers in detail). For example, the private equity sponsor had allegedly purchased the assets of Kurt Geiger for $136 million in April 2014 and sold them in December 2015 for $371 million. See Notice of Motion of the 2034 Notes Trustee, supra, at 34.

[2]. See Motion of the Official Committee of Unsecured Creditors for Entry of an Order Granting Leave, Standing, and Authority to Commence and Prosecute Certain Claims on Behalf of the NWHI Estate and Exclusive Settlement Authority in Respect of Such Claims at 17, In re Nine West Holdings, Inc., No. 18-10947 (Bankr. S.D.N.Y. Oct. 22, 2018) [hereinafter Nine West Standing Motion].

[3]. See Transcript of Hearing at 43, In re Nine West Holdings, Inc., No. 18-10947 (Bankr. S.D.N.Y. May 7, 2018).

[4]. See Nine West Standing Motion, supra note 2, at 34 (“[The lawyers for the independent directors] attended . . . depositions . . . but asked just a handful of questions of a single witness . . . . [And they] chose not to demand and review the Debtors’ privileged documents relating to the LBO . . . .”).

[5]. See Nine West Standing Motion, supra note 2, at 13 (“The Debtors have barred the Committee from participating in its settlement negotiations with Sycamore . . . .”).

[6]. Shortly after the unsecured creditors proposed to put the claims against the private equity sponsor into a trust for prosecution after bankruptcy, the independent directors unveiled their own settlement plan. See Notice of Filing of the Debtors’ Disclosure Statement for the Debtors’ First Amended Joint Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code at 1–3, In re Nine West Holdings, Inc., No. 18-10947 (Bankr. S.D.N.Y. Oct. 17, 2018) [hereinafter Nine West Disclosure Statement Announcing Settlement].

[7]. See Nine West Standing Motion, supra note 2, at 11 (seeking permission to prosecute claims for “well over $1 billion”); Soma Biswas, Nine West Settles Potential Lawsuits Against Sycamore Partners, Wall St. J. (Oct. 18, 2018, 2:12 PM), https://www.wsj.com/articles/nine-west-settles-
potential-lawsuits-against-sycamore-partners-1539886331 [https://perma.cc/RLH4-M9EU] (“Nine West Holdings Inc. unveiled Wednesday an amended restructuring plan that settles potential lawsuits against private-equity owner Sycamore Partners LP for $105 million in cash, far less than the amount the unsecured creditors committee is seeking.”).

[8]. See, e.g., Notice of Appearance—Lisa Donahue, AlixPartners, Petition (Feb. 19, 2020), https://www.petition11.com/news/2020/2/19/notice-of-appearance-lisa-donahue-alixpartners [https://
perma.cc/NA6H-69AT] (noting that “[independent directors in bankruptcy have] . . . become the latest cottage industry in the restructuring space”).

[9]. See Regina Stango Kelbon, Michael DeBaecke & Jonathan K. Cooper, Appointment of Independent Directors on the Eve of Bankruptcy: Why The Growing Trend? 17 (2014) (“Employing an outside director to exercise independent judgment as to corporate transactions in bankruptcy may not only provide additional guidance to a suffering business, but can make the decision-making process seem right in the eyes of stakeholders and ultimately, the court.”).

[10]. See Robert Gayda & Catherine LoTempio, Independent Director Investigations Can Benefit Creditors, Law360 (July 24, 2019, 3:55 PM), https://www.law360.com/articles/1174248/independent-director-investigations-can-benefit-creditors [https://web.archive.org/web/20220401015757/https://
http://www.law360.com/articles/1174248/independent-director-investigations-can-benefit-creditors%5D (noting that independent directors are helpful in bankruptcy where “speed to exit is paramount”).

[11]. See, e.g., “Independent” Directors Under Attack, Petition (May 16, 2018), https://petition.substack.com/p/independent-directors-under-attack [https://perma.cc/G9RY-U9D4]; Lisa Abramowicz, Private Equity Examines Its Distressed Navel, Bloomberg (May 26, 2017), https://www.bloomberg.com/opinion/articles/2017-05-26/payless-shoesource-private-equity-examines-its-distressed-navel [https://perma.cc/NC4H-DK9M]; Mark Vandevelde & Sujeet Indap, Neiman Marcus Director Lambasted by Bankruptcy Judge, Fin. Times (June 1, 2020), https://www.ft.com/content/
0166cb87-ea50-40ce-9ea3-b829de95f676 [https://perma.cc/5VY4-VQA8]; American Bankruptcy Institute, RDW 12 21 2018, Youtube (Dec. 20, 2018), https://www.youtube.com/watch?v=
Ah8RkXYdraI&ab_channel=AmericanBankruptcyInstitute [https://perma.cc/KG37-TJUC]; The “Weil Bankruptcy Blog Index,” Petition (Jan. 10, 2021), https://petition.substack.com/p/weilbankruptcy
blogindex [https://perma.cc/L356-TFPY] (calling the Nine West case a “standard episode of ‘independent director’ nonsense”).

[12]. See, e.g., Douglas G. Baird & Robert K. Rasmussen, Antibankruptcy, 119 Yale L.J. 648, 651 (2010) (considering creditor conflict); Douglas G. Baird & Robert K. Rasmussen, The End of Bankruptcy, 55 Stan. L. Rev. 751, 784 (2002); David A. Skeel Jr., Creditors’ Ball: The “New” New Corporate Governance in Chapter 11, 152 U. Pa. L. Rev. 917, 919 (2003) (considering the role of secured creditors); Michelle M. Harner & Jamie Marincic, Committee Capture? An Empirical Analysis of the Role of Creditors’ Committees in Business Reorganizations, 64 Vand L. Rev. 749, 754–56 (2011) (considering the role of unsecured creditors). For other articles that, like this Article, criticize recent changes in Chapter 11 practice, see generally Adam J. Levitin, Purdue’s Poison Pill: The Breakdown of Chapter 11’s Checks and Balances, 100 Tex. L. Rev. 1079 (2022); Lynn M. LoPucki, Chapter 11’s Descent into Lawlessness, 96 Am. Bankr. L.J. 247 (2022).

[13]. Our full dataset consists of the boards of directors of 528 firms and the 2,895 individuals who collectively hold 3,038 directorships at these firms. While all Chapter 11 firms are required to provide information on their board to the bankruptcy court, not all comply with the law. For more on our sample, see infra Part III.

[14]. See infra note 152 and accompanying text.

[15]. We identified bankruptcy directors using information from each firm’s disclosure statement. We then searched those disclosure statements and identified 78 cases in which the debtor represented that its board was “independent” or “disinterested.” See infra Section III.C.1. Independent directors are not new to bankruptcy. WorldCom, for example, used independent directors as part of its strategy to get through the bankruptcy process in its 2003 Chapter 11 filing. See Kelbon, supra note 9, at 20. The change is that a practice that was once relatively uncommon has become ubiquitous and a central and standard part of the process of preparing for a Chapter 11 bankruptcy filing, leading to the growth of an industry of professional bankruptcy directors who fill this new demand for bankruptcy experts on the board of distressed firms. See infra Section III.C.1

[16]. See infra Table 2.

[17]. In many cases, a debtor-in-possession contract that requires the firm to leave bankruptcy quickly heightens the debtor’s urgency. See, e.g., Frederick Tung, Financing Failure: Bankruptcy Lending, Credit Market Conditions, and the Financial Crisis, 37 Yale J. on Regul. 651, 672 (2020).

[18]. See infra Section III.C.4.

[19]. See infra Section III.C.5.

[20]. See Telephonic/Video Disclosure Statement and KEIP Motion Hearing at 34, In re Neiman Marcus Grp. Ltd. LLC, No. 20-32519 (Bankr. S.D. Tex. July 30, 2020) [hereinafter Neiman Marcus Settlement Transcript] (arguing that independent directors are changing incentives for private equity sponsors, who will be “encouraged to asset strip”).

[21]. As Sujeet Indap and Max Frumes write, a leading bankruptcy law firm that advises debtors “developed a reputation for keeping a stable of ‘independent’ board of director candidates who could parachute in to bless controversial deal making.” Sujeet Indap & Max Frumes, The Caesars Palace Coup: How a Billionaire Brawl Over the Famous Casino Exposed the Power and Greed of Wall Street 419 (2021).

[22]. See Alexander Saeedy, Elizabeth Warren Floats Expanded Powers for Bankruptcy Creditors Against Private Equity, Wall St. J. (Oct. 20, 2021, 1:17 PM), https://www.wsj.com/articles/elizabeth-warren-floats-expanded-powers-for-bankruptcy-creditors-against-private-equity-11634750237 [https://
perma.cc/P3XE-U24Y].

[23]. See generally Lucian A. Bebchuk & Assaf Hamdani, Independent Directors and Controlling Shareholders, 165 U. Pa. L. Rev. 1271 (2017); Da Lin, Beyond Beholden, 44 J. Corp. L. 515 (2019).

* Professor of Law, Harvard Law School.

† Professor of Law, Tel Aviv University, Faculty of Law.

‡ Associate Professor, Tel Aviv University, Faculty of Law; Lecturer on Law, Harvard Law School. We thank Kenneth Ayotte, Lucian Bebchuk, Vincent Buccola, Anthony Casey, Alma Cohen, Elisabeth de Fontenay, Jesse Fried, Lynn LoPucki, Tobias Keller, Michael Klausner, Michael Ohlrogge, Adam Levitin, Robert Rasmussen, Adriana Robertson, Mark Roe, Daniel Sokol, Robert Stark, Roberto Tallarita, Robert Tennenbaum, and seminar and conference audiences at the Annual Meeting of the American Law and Economics Association, Bay Area Corporate Law Scholars Workshop, the Bar Ilan University Law Faculty Seminar, the Corporate Law Academic Webinar Series (CLAWS), the Duke Faculty Workshop, Florida–Michigan–Virginia Virtual Law and Economics Seminar, the Harvard Law School Empirical Law and Economics Seminar, the Harvard Law School Faculty Workshop, Harvard Law School Law and Economics Workshop, Tel Aviv University Faculty of Law Workshop, the Turnaround Management Association, the University of Toronto Seminar in Law and Economics, and the University of California, Berkeley Law, Economics, and Accounting Workshop for helpful comments. We also thank Noy Abramov, Jacob Barrera, Jade Henry Kang, Spencer Kau, Victor Mungary, Julia Staudinger, Or Sternberg, Jonathan Tzuriel, and Sara Zoakei for excellent research assistance. This research was supported by The Israel Science Foundation (Grant No. 2138/19).

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