It’s Not About the Whales: The Continued Need for Protectionist Environmental Law

Abstract

Environmental law is altering the understanding and practice of law. Environmental Law is a legal discipline derived from social movements during the 1960s and 1970s, and has progressively received social, political, cultural, and legal acceptance. But its legitimacy is derived from extra-legal evidence. Law experienced a similar shift during the Progressive Era of the late 19th and early 20th centuries. Progressive legal scholars promoted the Law and Society Movement, which focused on the concept of "legal realism." Legal realism argued that courts consider legal and non-legal evidence in their decision-making processes. They preferred to base legal arguments on empirical research rather than traditional legal rules and institutions. In his 1881 work The Common Law, legal historian Oliver Wendell Holmes noted that experience should govern the creation and application of law, not solely logic. He argued that one had to be aware of all kinds of non-legal matters to develop a thorough understanding of law. In 1921, Judge Benjamin N. Cardozo’s work The Nature of the Judicial Process continued Holmes’s argument. He added that judges should not solely rely upon legal past precedent, but consider all branches of knowledge, experience, information, and their own intuition. Modern legal realists view law not as a fixed phenomenon, but in a state of constant flux, responding to changing social conditions.¹ Environmental law challenges court justices to not only include procedural law and sociological jurisprudence in their decisions, but also to consider each case as unique and different from all others.