Henry Smith, ‘The Ecology of the Common Law’

The common law and the environment appear to have had a falling out. Legal realists and their environmentalist successors see the complexity of environmental problems involving ecosystems as outstripping the abilities of traditional common law to handle them. Ironically, it is complexity in the very sense invoked by realism and environmentalism – pervasive interconnection – that goes a long way to explaining and justifying the common law in general and property rights in particular. Property law and institutions are a dynamic modular system that can handle a range of complex problems well, and that breaks down or runs out in characteristic ways. Private law is a hybrid of spontaneous and directed order, and it coevolves with society’s institutions, its culture, the economy, and the natural environment itself. While no panacea, the common law should not be sold short: it is an attractive system for many of the very reasons for which it is most often dismissed.

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Henry E Smith, ‘The Ecology of the Common Law’ 9 Brigham-Kanner Property Rights Conference Journal 153 (2020).

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