Driesen’s book is an important reminder of the need for environmental lawyers to engage with a discipline outside their own
From an environmental law perspective, The Economic Dynamics of Law is an important contribution to environmental law scholarship in at least two ways. First, it evidences the need for environmental lawyers to critically and carefully scrutinise distinct economic thoughts and their impact on environmental law. Chapter 7, in particular, makes this point apparent by discussing the narrow but prevailing law and economics framing of property rights, which projects these almost exclusively as purposed to facilitate economic growth and efficient market exchange (p. 121). Such ideas have greatly impacted environmental law scholarship and environmental policymaking, especially on the use of market-based mechanisms and deregulation in the context of climate disruption, discussed in Chapter 11. Challenging these well-established frameworks is difficult (see Fisher and others, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213). Driesen, however, manages to do so by applying an alternative lens – the economic dynamics of law – through which he revisits some of the founding writings on this topic – for instance, Hardin’s ‘Tragedy of the Commons’ (p. 128) – and reframes neoclassic economic understandings of a range of legal subjects, including property rights but also antitrust and national security. As such, Driesen makes a much-needed call not only to environmental law scholars but also to property law scholars to challenge conceptualisations informed by disciplines outside their respective fields.
Following from this, The Economic Dynamics of Law makes a significant contribution in setting the ground for a framework of analysis, in which such tests and challenges can be carried out. As the other commentators on this blog have already explained, Driesen analytical framework, the economic dynamic theory, is synthesised in terms of three parameters: focus (change over time), goal (avoiding systematic risk while keeping economic opportunities open), and method (applying economic dynamic analysis to analyse problems and propose reforms (p. 225). As a next step in these debates, two important issues need to be considered. One concerns legal culture. In a joint piece – D. Driesen and S. Bogojević, ‘Economic Thought and Climate Disruption: Neoclassical and Economic Dynamic Approaches in the USA and the EU’ (2013) 25 Journal of Environmental Law 463 – Driesen and I discuss this point and the way in which economic ideas have influenced climate disruption laws both in the USA and the EU but with distinct outcomes. The point here is to demonstrate that economic thoughts impact environmental law, but the particular understanding and ultimately implication of economic thoughts on a legal system is inevitably context-specific. Second, The Economic Dynamics of Law leaves the question of potential challenges with creating laws and legal regimes in line with the economic dynamic theory open. Driesen does not set out to assess such challenges and therefore these questions are justifiably left with the reader. An interesting link, nevertheless, could be drawn to an emerging strand of scholarship on adaptive management. Jan McDonald and Megan C. Styles provide an excellent study (forthcoming in Journal of Environmental Law) on this topic, highlighting core difficulties in creating legal frameworks that recognise dynamism of the natural systems and accommodate technological, managerial and economic innovations, as well as behaviour shifts.
It is clear that Driesen’s book raises a series of important questions for legal scholars and policymakers to reflect upon and engage with. I will keep returning to this book in many years to come.