Thursday, January 5, 2006

AALS: A New Generation of Natural Resources Law Casebooks

Desperately seeking a casebook?  This well-organized and executed session provided some insight into the new casebooks on the market.  Michael Blumm of Lewis and Clark, who organized the session, first provided a summary of a recent SSRN paper entitled: Martz to the 21st Century, identifying four generations of natural resources law casebooks.  His framework was then fleshed out in the remarks of Rob Fischman of Indiana (discussing how the books reflect what we teach and why we teach it), Dale Goble of Idaho (discussing the perspective, land ownership emphasis, and case density of the books), and Sarah Krakoff of Colorado (discussing the books' approach to the interdisciplinary knowledge required to understand natural resources law).  Sarah was the most adventurous of the four -- risking a Quidditch metaphor to highlight her concern about how the incremental adjustments in natural resources law to incorporate interdisciplinary approaches may be the quaffel and bludger part of the quidditch game while how we deal with climate change represents the snitch.

Blumm identified four generations of casebooks.  The first consisted of the Martz and Trelease casebooks, which deal with water, oil & gas, and mining on public lands, with a noticeable Western orientation, an emphasis on attaining private rights in public lands, a great deal of caselaw and a policy focus of maximizing efficient resource use.  The second generation of Reitze, Rodgers, and Laitos was conceived in response to statutory developments of the 60s and 70s regarding resource protection.  This generation considered a broader range of topics and was less western in orientation.  Reitze had a distinct legal point of view "land has always been acquired by theft."  Rodgers included administrative and constitutional materials and addressed resources in terms of their full life cycle, with an emphasis on energy resources.  Laitos added economic analysis and non-caselaw materials.  The third generation is Coggins and Wilkinson, soon to be in its sixth edition.  CW returned to the western public lands emphasis, filled the book with rich cultural and legal history, stressed the influence of the "lords of yesterday" on 20th century law, and elevated resource protection to a prominent place.  It was filled with the chestnuts, the great cases, and became the western canon of natural resources.  The fourth generation consists of four books - two out, two soon to be out -  Klein, Rasband, Laitos, and Freyfogle.  These books have commonalities in broadening the material covered even further, including materials on eastern law, international law, private lands, tribal lands, and place.  The books also approach pedagogy differently -- using problems, web sites, visuals, etc. for teaching the new generation of students.

Fischman reported what we teach.  Of the 40 NR teachers who responded to his survey, virtually all teach public lands and wildlife, 75% teach NEPA and some combination of resources, usually water, minerals, and some renewable such as grazing, agriculture, or timber, and then coverage diverges by region in accordance with regional interests, e.g. oil & gas or coastal resources.

Fischman also described why we teach NR in addition to EL, drawing on David Getches' analysis -- diverse doctrines pulled together in a single field, fundamental legal skills, great ethical and social problems, and exposure to non-legal disciplines.  He added the attraction of teaching about places and resources that students can relate to, the issue of how law deals or fails to deal with changing times, the issue of how law deals with new science (ecosystem management, ecological risk, adaptive management), and the additions NR brings of "wierd property" to the property palatte.

Fischman noted several similarities in this 4th generation of casebooks in terms of coverage: ad law, constitutional law, NEPA, takings, and ESA.  But, in the end, he ran out of time to evaluate how the books fit with why we teach NR.

Dale Goble discussed the first three books as a group.  He noted the books' perspectives: Klein (place); Rasband (policy); Laitos (economic); mix of resources: Klein (33% public lands); Rasband (76%); Laitos (? - not out); and case density: Klein - 129 main cases, 24 more than CW; 220+ note cases, far less than CW's 823, and amount of history; Rasband - 73 main cases, far less than CW and Klein, 528 note cases striking the balance between CW and Klein, and many excerpts of other materials).

Dale mentioned that Freyfogel is organized very differently around the "tasks of natural resources law:"  identifying various use rights, defining the elements of those rights, allocating those rights, resolving conflicts about those rights, integrating those rights with the landscape, and reallocation of rights over time.

Sarah Krakoff began by noting that natural resources law is highly interdisciplinary, uniquely intertwined and unavoidably interdependent upon physical sciences and other disciplines.  Sarah looked at Pearson, Laitos, Klein, and Rasband.  Pearson has the typical interdisciplinary hits and history.  Laitos has front-loaded economics and science.  Klein with its place flavored approach provides geography, history, sociology, economics, and philosophy.  Rasband with its policy emphasis stresses ethics, economics, and science. 

Tom Jensen of CEQ made an additional presentation - less related to casebooks, reported in my next post.

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