Historical analysis in environmental law VI: What is at stake
In the last couple of posts in this series I suggested several directions of inquiry for uncovering the history of environmental law. In this final post in the series, I would like to tentatively offer some thoughts on why the historical exploration of environmental law matters. First of all, history can help us better understand current environmental law. For instance, David Driesen has recently advanced a positive theory of environmental law , attempting to explain its salient features, such as reliance on certain types of standards. Notably missing from his account are historical explanations for these aspects of environmental law, explanations which might be provided by works such as those of Morag-Levine . Or take the argument of 'free market environmentalists' that private law would do a better job of protecting the environment than modern regulation; this type of argument could be checked against the historical experience of legal systems that have relied on private law...