Wednesday, May 9, 2012

Standing to Sue

Recently, while walking in the woods with my children, I came across an old stone-sheltered spring.  It looked as though the structure had not been touched by human hands in years, perhaps even decades.  Although my camera work leaves something to be desired, I found the experience delightful.

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I spoke with others about this find, including past residents and neighbors, but the spring seems to have preceded them all.  In the meantime, I wondered why I had attributed so much value to the experience.  Perhaps I enjoyed contact with the past, as my friend Shannon Roesler suggested.

As it turns out, this experience matured into an excellent learning opportunity.  I showed this picture to a few of my students and asked for interpretations of the scene.  We collaboratively engaged in the process of organizing this messy site into categories of rights and responsibilities and concluded upon a handful of interesting (and perhaps pleasantly vague) answers.  One student explained to me that the scene illustrated the rule of capture – that the stones signified intent and domination of the water.  One student made references to Tuck Everlasting and we all considered the level of commitment it would take to drink the waters.  Another student told me in some detail about the likely origins of the stones (possibly robbed) and their building value to past generations. 

One peculiarly perceptive student told me that the scene was really about standing to sue.  Imagine a newly-platted development on adjacent property.  Construction commences, and onlookers struggle to identify an injury that would support standing.  She pointed out that in the absence of the stones, changes to the ground and surface water flow may have gone unnoticed – not much different, she mused, than displacing a few rabbits or birds.  The placement of the stones (which may not have changed much in terms of the physical feature or operation of the spring) transformed a natural geological feature into something of legal value by converging natural features and human dependency.

An engaged learning approach allows teachers to develop opportunities outside of the casebook and in the world.  We will follow-up on this exercise by visiting the site, walking the neighborhood, and touching the dirt.

- Keith Hirokawa

http://lawprofessors.typepad.com/environmental_law/2012/05/standing-to-sue.html

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