Monday, October 28, 2013

An Interesting Little Twist on Adaptive Management

For many years, adaptive management has been all the rage.  The basic concept is appealingly, if deceptively, straightforward: when we take actions that will have environmental consequences, we should monitor those consequences, learn from the monitoring, and adjust our actions based on what we learn. 

That seems eminently sensible, but in practice, adaptive management has often proven challenging.  There are many reasons why, but one of the most important is that the requisite monitoring is often missing.  There are financial disincentives to monitoring; it can be expensive, and money spent on monitoring is money not spent on other forms of environmental protection, or on other priorities.  And there are institutional disincentives.  If monitoring reveals the need to change course, that can be embarrassing to the decision-makers who selected the initial strategies, as well as frustrating to people who have relied upon those strategies.  As a consequence, monitoring is often shortchanged, and adaptive management programs often fail to involve much adaptation.

Recently, I stumbled upon a document that describes an innovative way of dealing with this incentive problem.  A group of federal and state agencies recently developed a guidance document entitled Determining Appropriate Compensatory Mitigation Credit for Dam Removal Projects in North Carolina.  As the title suggests, the intent of the document is to provide guidance to people (including mitigation bankers) who compensate for stream fill projects by removing dams.  That’s intriguing for a lot of reasons, and one involves the links between monitoring, offset ratios, and adaptation.

A little background should put that in context.  When regulators allow a permit recipient to use off-site mitigation to compensate for a project’s on-site impacts, they often use something called an offset ratio.  For example, a developer might be obligated to restore four acres of habitat in return for developing one acre.  Or a mitigation banker that restores four acres of wetlands might receive one acre of credits to sell.  The ratio is designed to compensate for a number of factors, including the temporal delay between the destruction of one area and the restoration of the other and the pervasive uncertainties about whether restoration projects will achieve lasting success. 

Like most mitigation programs, this guidance document contemplates using that approach.  But there’s a twist.  For credits generated by restoring the stream reach above the dam:

The applicant can select a predetermined amount of credit or conduct research that will better determine the extent to which anadromous fish are using the newly accessible habitat.  If the applicant can satisfy the Research Option criterion, it may be possible to receive mitigation credit exceeding the amount given with the predetermined option.

In other words, you can get extra credit if your monitoring demonstrates that the project succeeded (if your monitoring reveals that the predetermined ratio was excessively generous, however, your initial credit does not get revoked, though hopefully the agencies would use that information to inform mitigation ratios for future projects).  Implemented carefully, this approach could be a useful incentive to perform monitoring, or an effective way to compensate for the absence of monitoring.

There are obvious potential pitfalls.  The approach only works if the predetermined option is conservative.  Otherwise there will be limited incentive to monitor, and the environment also may come out on the losing end of too many deals.  It also only works if the researchers strive for objectivity, which may not be easy to do, particularly if they get their paychecks from the same entity hoping to claim an enhanced credit.  Accordingly, some sort of third-party monitoring system might be appropriate.  But those challenges, though real, seem manageable, and the concept therefore holds promise for addressing some of the perverse incentives that can limit adaptive management.

- Dave Owen

October 28, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

Environmental Peer Review

Lots of people are up in arms about Adam Liptak’s piece in NYT where he trashes law reviews by rehashing arguments we have all heard many times before. I was surprised by the somewhat sloppy nature of the piece that cobbles together some random arguments on different aspects of law reviews and was amused by the fact that an article criticizing law reviews cited so many of them. Many others have already critiqued and/or agreed with the piece (I fall into both those camps myself), and I want to move the discussion to alternative forms of publication. Let’s talk peer review.

My completely unresearched feeling is that environmental law is more connected with peer reviewed literature than some of the other legal fields. I read and cite peer reviewed literature almost as often and law journals and cases. Additionally, peer reviewed journals like Conservation Letters, Environmental Management, and Conservation Biology periodically solicit reviews from me.

 Discussion question one: How many peer reviews should one do before feeling okay turning some down? I tend to do almost everyone I am asked to do unless I have a conflict of interest, but the frequency of request increases the more reviews you do so the pile is growing. One of my pals from grad school asserts that it is a 2 to 1 ratio (2 reviews for every one you submit). Frankly, it takes me a long time to do each review too. I would say it is usually a full day’s work for me. Not sure if I am faster or slower than other folks here. I have also been asked to review a few books and they take even longer.

I am also finding myself increasingly interested in publishing in peer reviewed journals. If I am hoping that actual land managers read my work, peer reviewed journals is the way to go. What if I want policy makers to read it though?

Discussion question two: Where should we publish if we hope to disseminate our ideas beyond other law professors? What do we think policy makers read? Anytime of book or journal? The newspaper? Perhaps has Adam Liptak suggests, it should be on blogs. In tweets? Instagram? Therefore all my subsequent posts will be about my research because that is clearly the best way to get Congress to change its approach to land conservation. Sean Nolon recently suggested I start a website, and I think someone else hinted that I should turn my research into a movie. We all know Judge Kozinski loves movies so maybe that is the best way to get him exposed to my brilliance. Of course, it isn’t really judges we expect to read our stuff – just their law clerks.

- jessie owley

October 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, October 21, 2013

Liptak on Legal Scholarship

In today's New York Times, Adam Liptak has a short piece trashing law reviews.  The basic themes are pretty familiar: law review articles are too long and too esoteric (he refers to “the good old days, when it was not unusual for legal scholars to write about topics useful to lawyers and judges”); nobody reads them (in fact, “[l]aw reviews are not really meant to be read"); they’re badly written; and none of that is going to change.

It seems beyond dispute that there are issues with the law review system, and for a good and thorough discussion, readers might skip Liptak’s article and go straight to one of the recent pieces he cites.  But Liptak’s article is a mess.  Some of the claims are just silly.  Like pretty much all of my colleagues, I definitely do intend for my stuff to be read.  One can debate whether I’ve earned that readership, but saying—without any supporting fact or authority—that we don’t intend our articles to be read is the sort of mistake that even one of those “incompetent” law review editors would readily catch.

Only slightly less strange is Liptak’s assertion that “[t]he judge, lawyer or ordinary reader looking for accessible and timely accounts or critiques of legal developments is much better off turning to the many excellent law blogs.”  Clearly blogs are a better sources of quick analysis of breaking news, but that’s because they can be written in a very short time.  On that measure, they also outperform books, but that doesn’t mean books lack value.  And if one wants analysis of an issue that didn’t just arise yesterday, then a deeply researched article, with every footnote checked by an army of law review students, is probably a lot more reliable than a blog post—just as a carefully researched article about the law review system is a much better source of useful information than, say, a New York Times article.

Beyond those low-hanging fruit, I think there are a few more subtle problems with Liptak’s analysis.  And because these problems aren’t unique to Liptak, they merit a bit more discussion.

The judge fixation.  The first fallacy is the presumption that one can assess the value of law reviews by quoting a few judges.  Liptak, for example, places heavy emphasis on a few familiar quotes from Chief Justice Roberts and Judge Dennis Jacobs, both of whom argue that picking up a law review article and sitting down to read would not be a sensible use of their time.  But that doesn’t mean law reviews are irrelevant to judicial decision-making.  I don’t think the judge I clerked for spent much time reading law reviews.  But I did.  When I tackled unfamiliar legal areas—which, for a clerk fresh out of law school, can be a weekly occurrence—I found that law review articles were helpful places to start.  Often I was more interested in their summaries of relevant law and in the sources they cited than in their recommendations, but not always.  In any event, those articles were quite useful to me, and, therefore, to my judge, even if he didn’t realize it, and even if I never cited them in the draft orders I wrote.  I suspect the same is true for the judges Litpak quotes. 

Moreover, some articles may be useful even if they aren’t valuable to judges.  Articles designed to help local officials better understand their powers, to encourage agencies to regulate in different ways, to help inform legal teachers, or to guide new legislative initiatives all can be quite valuable.  Obviously some legal scholarship should be useful to judges.  In the legal world, they do still matter.  But there’s no reason why all of it should be.

The misplacement fixation.  Another key critique of law reviews is that their system for placing articles is a mess, which leads to a poor correspondence between journal prestige and article quality.  The evidence is fairly overwhelming that the placement system does have systemic biases, most of which operate to the disadvantage of less-established writers.  But I’d argue that this isn’t that big a problem, and certainly isn’t a basis for dismissing the entire system as deeply flawed.  Good articles still get printed.  Bad articles are still easy to ignore, even if they’re highly placed.  And in my experience, other professors do a good job recognizing quality work, at least within their own area of expertise.  Misplacement also has a significant silver lining for lower-ranked journals: every time top journals screw up, their mistake allows students at a lower-ranked journal the opportunity, if they’re smart enough to grab it, to work on a high-quality, valuable article.  If placement corresponded perfectly to quality (something that doesn’t happen even in the peer-reviewed world), being an articles editor on the Maine Law Review or an environmental specialty journal would be much less rewarding than it currently is.

The condescension.  A last theme here is that the students actually running law reviews are incompetent.  In my experience, again, that claim is badly overstated.  Judging the relative merits of articles from many different legal sub-fields is a hard thing for second-year law students to do.  And the comments I receive from other professors are often more constructive--at least on matters of content--than those I receive from students.  But every article I've ever written has been improved by student review.  Sometimes the students' lack of knowledge is actually the key to those improvements; their edits help me identify places where a non-expert reader would be confused.  Usually the improvement comes just from having smart, motivated people thinking hard about every page and every footnote of the article.  And if my experience is at all typical--and I suspect it is--that justifies a little more respect for a lot of hardworking, and competent, students.

-Dave Owen



October 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 8, 2013

LSU Law Welcomes Hannah Wiseman as the Inaugural Liskow & Lewis Visiting Professor in Energy Law

Liskow and Lewis

The LSU Law Center is thrilled to be hosting one of our co-bloggers, Hannah Wiseman, Florida State University College of Law, as the inaugural Liskow and Lewis Visiting Professor in Energy Law. The lecture is part of a series of new initiatives of the newly created Laborde Energy Law Center at LSU. In addition to the lecture, Hannah will be visiting with students in a number of classes as well as teaching one class during her visit. We certainly look forward to Hannah's visit and hope you will attend if you are in the area! A description of the program is below:

Professor Hannah Jacobs Wiseman, a rising star in the field of energy law, will speak at the LSU Law Center on Thursday, October 10 as the inaugural lecturer in the Liskow & Lewis Visiting Professorship in Energy Law series.  The lecture, “Enhancing Sub-Federal Renewable and Fossil Energy Governance,” will take place at 5:00 p.m. in the David W. Robinson Courtroom at the Law Center.  This event is free and open to the public.  Please call 225-578-8645 to register.

The Liskow & Lewis Visiting Professorship in Energy Law provides funds to bring distinguished scholars in energy law and closely related fields to the LSU Law Center on an annual basis.  An Assistant Professor at the Florida State University College of Law, Professor Wiseman’s research focuses on the challenges of governing rapidly changing, multijurisdictional issues in energy, land use, and environmental law. She has written and spoken extensively about these challenges in the context of shale gas development and renewable energy.

Liskow & Lewis Visiting Professorship in Energy Law

Inaugural Lecture

Thursday, October 10, 2013

5:00-6:30 p.m.

  David W. Robinson Courtroom, Second Floor (New Building)

LSU Paul M. Hebert Law Center

1 East Campus Drive

Baton Rouge, LA

Registration: 225-578-8645

- Blake Hudson

October 8, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, October 7, 2013

The Blossoming of Environmental Law Workshops

I was lucky enough to find a job as a law professor a little over four years ago. From talking to more senior colleagues, this seems to mean that I have been around for the emergence of many new environmental law conferences, symposia, and workshops. For example, in a few short days I will be headed to Vermont for the 4th Annual Colloquium on Environmental Law. I was happy to be able to attend the first two and think that this is just a great gathering of folks in a pretty part of the country at the peak of its loveliness. I have spoken with a few people who thought this was a juniors-only event, which it assuredly is not. In fact, it is one the first places I actually got to meet some of my more senior colleagues from other schools whose work I had been reading for years.

This colloquium isn't the only thing going on in environmental law though.  Many folks tell me that they feel like there are more symposium than before and with increased use of calls for papers, more of an opportunity for  err... the less than famous among us.. to participate. What I find most exciting though -- because they tend to be the most enriching-- are the recent spate of junior works in progress events. Two years ago, I attending a junior-only WIP hosted by Amanda Leiter at American. It was really excellent and helped me with my project (well help me decide to shelve that project, which sometimes can be the most helpful advice). This past summer I attended one at University of Washington with all junior papers and a mixture of junior and senior commenters. It was also excellent. Plus I heard good things about the Sabin Colloquium for Junior Scholars at Columbia.  It is just an excess of riches. I am not sure what has caused this sudden burgeoning of programs but I gotta say that I like it!  Here is one more to add to your list: 




Lewis & Clark Law School invites submissions for its inaugural Junior Scholar Workshop to be held at Lewis & Clark Law School on Saturday, April 12, 2014. At the workshop, four junior scholars will present their works-in-progress before eight senior scholars. Each junior scholar will receive written feedback from at least two senior scholars. In addition, each junior scholar will have one hour to present and discuss her or his paper with the senior commentators and other workshop participants.

About the Workshop

The workshop aims to promote dialogue between law faculty interested in natural resources and administrative law topics. It also aims to provide junior faculty the opportunity to present their works-in-progress to experts who can offer constructive and thoughtful feedback in a collaborative environment.

The senior scholars who will participate in this workshop have a wealth of expertise in natural resources and administrative law. They are: Peter Appel (Georgia), Eric Biber (Berkeley), Michael Blumm (Lewis & Clark), Robert Glicksman (George Washington), John Nagle (Notre Dame), Mark Squillace (Colorado), Janice Weis (Lewis & Clark), and Sandra Zellmer (Nebraska).

Scholars are invited to submit papers related to natural resources and administrative law. Topics may focus on wildlife law, public lands law and use, protected areas, water law, and other associated topics, as well as administrative law.

Lewis & Clark Law School will pay hotel expenses for two nights. Junior scholars are also invited to attend Lewis & Clark’s symposium, The Wilderness Act at 50, which will take place on April 11, 2014, the day before the junior scholar workshop.

Paper Submission

For the purposes of this workshop, “junior scholars” include law professors with no more than 7 years’ teaching experience. Junior scholars who wish to participate in the workshop should submit papers that are 30-50 pages in length (double-spaced text using 12-point font, with single-spaced footnotes using 10-point font) and include an abstract of no more than 200 words. Scholars may submit papers that have been accepted for publication so long as the scholars can still revise the papers in response to workshop feedback.

Submissions are due by February 10, 2014. Please email all submissions and direct any questions to Melissa Powers, Submissions should include your name, institutional affiliation, telephone number, and email addresses. 

- Jessica Owley

October 7, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 1, 2013

Scoping Scholarship

Recently, law blogs (at least the few that I read) have been abuzz with discussion of the recent draft report of the ABA task force on "The Future of Legal Education."  That report has some less-than-flattering things to say about the motivations of law professors.  The resulting discussion often circles back to an old critique: that we write things that aren’t particularly useful for people in the non-academic world.  But academia’s independence also has fierce defenders.  They argue that if we commit ourselves to writing things of immediate value to practitioners, we’ll fail to consider systemic issues with our legal system and society, and instead will unwittingly become enablers of the status quo.  Implicit in both critiques is the premise that there is an inherent tension between academic and practitioner expectations for scholarship.  But I wonder if that tension really is so inherent, and I have a practical suggestion for avoiding, or at least reducing, it. 

The suggestion is straightforward: at the outset of any research project, we academics ought to spend some time discussing the project concept with practitioners (including non-lawyers) in the field we’re planning to write about.  I’ve done this with several of my research projects, and it’s been rewarding in several ways.  First, it lets me tap into practitioner knowledge, which is particularly helpful if, as is usually the case, there are practitioners who know a lot more about my subject than I initially do.  Second, and relatedly, it lets me know what questions practitioners are struggling with.  If I can help answer those, my work will be more useful to them.  Third, it alerts people in the field that I’m working on their area of interest.  Often they’ll follow up with me later if they hear about something relevant, and sometimes the initial contact has led to non-academic presentation opportunities, which then can open new discussion and feedback loops.

To people who argue that legal scholarship should be more useful to practitioners, that may sound good, but the proponents of academic independence might have a concern: wouldn’t these conversations tend to make scholarly work narrower and more anchored to the status quo?  To a small degree, the answer is yes; often ideas that sound appealing in the abstract suffer when they collide with day-to-day realities, and one result of these conversations usually is to compel qualification of whatever hypotheses I began with.  But that’s not a bad thing.  One purpose of scholarship is to get people to think or act differently, and that’s hard to do if they can easily dismiss you as naïve.   Also, I’ve found that the resulting changes usually are subtle.  Practitioners, in my experience, often want an academic perspective on the issues they work on.  They’re often excited when someone has time to compile a broader database that they would ever have time to collect themselves, to think systemically about issues they confront in piecemeal fashion, or to integrate their day-to-day experiences into broader theoretical frameworks.

Of course, this is not an original suggestion.  It’s something many academics already do, and it helps explain why, despite all the critiques, there is quite a lot of useful thinking in academic work.  This approach also doesn’t work for every project.  But I’d still suggest that for most projects, early outreach ought to be standard practice.  The relationships between academics and practitioners can be highly symbiotic, and talking at the outset of a research project is a good way to build that symbiosis.

- Dave Owen

October 1, 2013 | Permalink | Comments (0) | TrackBack (0)

Urban Agriculture Conference RFP

Going to Seed:  Urban Agriculture in Distressed Cities

The Law Review of the University of Detroit Mercy School of Law invites proposals for its 2014 Symposium, “Going to Seed:  Urban Agriculture in Distressed Cities,” scheduled for Friday, March 7, 2014.  This symposium will bring together both national scholars and local leaders to assess the role urban agriculture plays in the economic recovery of economically distressed cities such as Detroit, Cleveland, and Philadelphia.  Symposium organizers invite proposals for presentations and panels for the event.  Any topic related to urban agriculture will be considered; topics that dig into the ground-level details of current urban farming efforts in major American cities are especially welcome.  Relevant topic ideas could include regulatory issues such as zoning; permitting, water access, use, and discharge; chemical use and runoff, and developing physical and commercial infrastructure; as well as unique issues such as integrating agricultural animals into residential neighborhoods; food security and sustainability as a political, social, or theological priority; public and private liability for negligent or harmful agricultural practices; effects of urban agriculture on fundamental property law concepts, including, e.g., encroachment, boundary issues, nuisance, restrictive covenants, or eminent domain; as well as creative, outside-the-box topics that connect with urban agriculture and economic recovery in new ways.

Special Features:  Scholars whose proposals are accepted will be invited to join Symposium organizers for a tour of local urban agriculture projects. 

Deadline:  E-mail submissions of 500 words or less must be received no later than Monday, December 2, 2013, and should be directed to Ms. Gerta Rapo, Law Review Symposium Editor, University of Detroit Mercy School of Law / Law Review, at  Accepted proposals will be considered as possible publication topics for a special symposium edition of the UDM Law Review; editorial staff will follow up with selected speakers regarding the details and deadlines for publication.

Additional Info: Questions regarding the Symposium or the proposal process should be directed to Law Review Symposium Editor Ms. Gerta Rapo,, University of Detroit Mercy School of Law / Law Review, 651 E. Jefferson Ave., Detroit, MI 48226 (ph. 313-492-6318). 

October 1, 2013 | Permalink | Comments (0) | TrackBack (0)