Global Environmental Constitutionalism: Getting There from Here

Transnational Environmental Law, Forthcoming

Yale Law School, Public Law Working Paper No. 244

14 Pages Posted: 9 Feb 2012 Last revised: 14 Aug 2013

Date Written: February 9, 2012

Abstract

This essay, which will appear in the inaugural issue of a new journal 'Transnational Environmental Law,' considers the possibility of global environmental constitutionalism. It argues that dominant analytical approaches to environmental law exhibit a similar, problematic form: They treat that which should be outcome determining as, instead, outcome determined. This form is most evident and influential in the welfare economic technique of regulatory cost-benefit analysis, which treats all resources – including the monetary value of human lives – as potential means toward seemingly higher-yielding ends. In contrast, an environmental constitutionalism, in which certain needs and interests of present and future generations, the global community, and other forms of life are given foundational legal importance, would help restore conceptual coherence and normative priority to the subjects of environmental law.

Keywords: Environmental constitutionalism, precautionary principle, cost-benefit analysis

Suggested Citation

Kysar, Douglas A., Global Environmental Constitutionalism: Getting There from Here (February 9, 2012). Transnational Environmental Law, Forthcoming, Yale Law School, Public Law Working Paper No. 244, Available at SSRN: https://ssrn.com/abstract=2001958

Douglas A. Kysar (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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