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The English Commissions of Sewers remain a fertile source of scholarship (for earlier posts see, e.g., here and here .) Last year Environment and History  published John Emrys Morgan's "The Micro-Politics of Water Management in Early Modern England: Regulation and Representation in Commissions of Sewers" . The abstract: Early modern water management was as much a social and political endeavour as an environmental one. This paper explores this assertion by analysing the different forms of knowledge used by English Commissions of Sewers in the governance of flood defence and drainage in the sixteenth and seventeenth centuries. Using examples drawn primarily from Gloucestershire and Lincolnshire, in south-west and eastern England respectively, this paper traces the rise and decline of popular influence over water management. Where Commissions of Sewers operated harmoniously, they were staffed by significant numbers of local people, who valued their right to participate in wa

Next in the series of posts (the last one is here ) on "The Tragedy at 50" (by the way, if anyone wants a hard copy of the journal issue, please email me), is Harry Scheiber's "The 'Commons' Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s 'Tragedy'" . The abstract: Throughout the fifty years since its publication, Hardin’s “The Tragedy of the Commons” has been regarded as a seminal paper in the environmental movement, although his emphasis on population control (which actually formed the core concern of the article) has been largely forgotten. Hardin argued that free access by a growing population to common resources would inevitably lead to the depletion of those resources, citing as one example how maritime nations’ belief in the freedom of the seas, combined with their belief in the inexhaustibility of marine resources, had brought whales and many species of fish close to extinction. Hardin failed, however, to take acc

The early-modern Netherlands continue to inspire interesting historical scholarship on environmental regulation (see, e.g. here ). Last year's Environment and History had an article by Milja van Tielhof, "Regional Planning in a Decentralised State: How Administrative Practices contributed to Consensus-Building in Sixteenth-Century Holland" . The abstract: This article examines how a regional drainage system in the northern part of Holland in the Late Middle Ages could emerge despite the fact that the weak central state was hardly able to provide the necessary coordination nor prevent free-riding. Institutions, defined as rules and norms, including practices, procedures and techniques, play a key role in the argument. Four traditional administrative practices are identified as essential to the emergence of regional water control: a broad consultation process, by which opponents of new plans were also heard; landowners giving their explicit consent to plans and their costs;

Next in the series of posts on "The Tragedy at 50" (the last one is here ), we have Monica Eppinger's "Cold-War Commons: Tragedy, Critique, and the Future of the Illiberal Problem Space" . The abstract: Major twentieth-century social theories like socialism and liberalism depended on property as an explanatory principle, prefiguring a geopolitical rivalry grounded in differing property regimes. This article examines the Cold War as an under-analyzed context for the idea of “the tragedy of the commons.” In Soviet practice, collectivization was meant to provide the material basis for cultivating particular forms of sociability and an antidote to the ills of private property. Outsiders came to conceptualize it as tragic in both economic and political dimensions. Understanding the commons as a site of tragedy informed Western “answers” to the “problem” of Soviet collective ownership when the Cold War ended. Privatization became a mechanism for defusing old tragedie

I'm pleased to announce that The Oxford Handbook of Legal History , edited by Markus Dubber and Chris Tomlins, has now been published, and it includes my article on "Historical Analysis in Environmental Law", on which I've blogged here . The book is available both in print and online . I'd be happy for any comments on my paper!

The Boston Review  recently published Andrew Kahrl's "Free the Beach", an essay adapted from his  Free the Beaches: The Story of Ned Coll and the Battle for America’s Most Exclusive Shoreline (Yale UP, 2018). Here's an excerpt that digs into the connection between land privatization and racism: For millennia, beaches have been considered public property. The legal principle of the public trust doctrine, which dates to the ancient Mediterranean world, has long held the seashore as public land. In 1892 the U.S. Supreme Court validated the public trust doctrine with its decision in Illinois Central Railroad v. Illinois , which ruled that land covered by tidal water belonged to the public, with the state acting as a trustee. States were obligated to maintain that trust and protect the public’s right to access the shore in perpetuity. Each state, however, marked the line separating public land from private property along the shore at a different spot—some drew the line at

Irrigation canal in Provence Continuing the series of posts on "The Tragedy at 50 " (the first one is here ), here's the abstract of an article with a new, historical perspective on commons debates: Alice Ingold's "Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty" : Do commons outline a different way of considering historical forms of environmental regulation? Might they represent a sort of alternative, apart from the usual model of environmental law which rests on public authorities and forms of restrictions of private rights? In order to grasp the complex relationship between environmental law and history, it is essential to pay attention to the state’s radical transformation in the nineteenth century, especially the separation (and separate definition) of administration and the judiciary. This article aims to historicize the commons, but also the state in order to escape the projected shadow of public adm

The Historical Journal recently published Kyle Gardner's "Moving Watersheds, Borderless Maps, and Imperial Geography in India's Northwestern Himalaya" . The abstract: This article uses the British colonial history of border making in northern India to examine the assumptions and contradictions at work in the theorizing, configuring, and mapping of frontiers and borders. It focuses, in particular, on the development of the ‘water-parting principle’ – wherein the edge of a watershed is considered to be the border – and how this principle was used to determine boundaries in the northwestern Himalaya, a region that had long-established notions of border points, but no borderlines. By the twentieth century, the water-parting principle would become the dominant boundary logic for demarcating borders in mountainous regions, and would be employed by statesmen, treaty editors, and boundary commissioners around the world. But for the northwestern Himalaya, a region that British

As promised, I'm going to post on some of the articles that were published as part of the issue of Theoretical Inquiries in Law  on "The Tragedy at 50" , which I co-edited with Carol Rose. These articles attempt to provide historical context for the modern commons discourse. First up is Stuart Banner's "The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin" . The abstract: The Tragedy of the Commons tends to be remembered today as the canonical statement of the idea that commonly-owned resources will be overused. But this idea was well known for centuries before Hardin wrote. Hardin acknowledged that he got the example of cattle in a common field from the early nineteenth century economist William Forster Lloyd, and by Lloyd’s time the idea was already familiar and was already being applied to the analysis of overpopulation, Hardin’s primary concern. This paper will trace the history of the idea that common ownership is ine

The website for the book The Republican Reversal: Conservatives and the Environment from Nixon to Trump by James Morton Turner and Andrew C. Isenberg (Harvard UP, 2018) includes a range of interesting primary sources on the topic. Among them is a pdf of a 1971 memo by Lewis Powell to the US Chamber of Commerce, described on the website : Soon-to-be Supreme Court justice Lewis Powell wrote this memo for the U.S. Chamber of Commerce in 1971 as conservatives grew concerned about the growing influence of liberals and an expanding regulatory state.  It offered conservatives a roadmap for exerting their political power in the defense of individualism and free enterprise. It's a pretty amazing document. Here's an excerpt: As every business executive knows, few elements of American society today have as little influence in government as the American businessman, the corporation, or even the millions of corporate stockholders. If one doubts this, let him undertake the role of "lo