Restoring What's Environmental About Environmental Law in the Supreme Court
127 Pages Posted: 22 Mar 2000
Date Written: 2000
In this Article, Professor Richard Lazarus examines the votes of the individual Justices who have decided environmental law cases before the United States Supreme Court during the past three decades. The article reports on a number of interesting statistics regarding the identity of those Justices who have most influenced the Court's environmental law jurisprudence and the sometimes curious patterns in voting exhibited by individual Justices. The article's thesis is that the Supreme Court's apparent apathy or even antipathy towards environmental law during that time results from the Justices' failure to appreciate environmental law as a distinct area of law. The Justices have instead tended to view environmental protection as merely an incidental factual context for the presentation of legal issues that share no unique environmental dimension. Professor Lazarus posits that this view of environmental law is misguided and that it has resulted in poorer Court decisions. Missing from the Court's analysis has been sufficient emphasis on the nature and normative weightiness of environmental protection concerns and their import both for judicial construction of relevant legal rules and the Court's understanding of the workings of relevant lawmaking institutions. Finally, the article describes how the 'environmental' dimension to environmental law might be restored to the nation's highest Court. This discussion includes a description of how the ecological character of the problem addressed by environmental law affects legal doctrine and lawmaking institutions and how current and future Justices might be made better aware of that relationship.
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