University of Wisconsin–Madison

Recent UW Law Faculty Scholarship: The Legal Struggle for Rights of Nature in the United States; The Canon of Nature Rights; Progressivism in the Active Free Enterprise State: Fluidity, Fragmentation, and Stability: A Case Study in Law and Public Policy

Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN. This Article analyzes the rise and persistence of the U.S.-based nature rights movement and its engagement with social movements in the Global South and with Indigenous ideas. The story told here of the U.S. nature rights movement is also significant because it reveals dynamics about the circulation of legal ideas across borders and legal traditions. Scholars have argued that, in the transnational flow of legal ideas, stat es in developing regions like Latin America act as sites of reception of transnational theories of law rather than sites of production. Legal actors based in the periphery have the role of receiving canonical theories, doctrine,and institutions of law developed in and for the North and adapting them to local experience and politics. The causes of this lopsided exchange are both material and cultural. Northern scholars have more funding and greater access to knowledge, as well as a greater ability to export their ideas. They also enjoy more prestige or symbolic capital. To counterbalance these dynamics, some scholars have promoted the idea of the South as an underutilized source of innovative intellectual production. This scholarship highlights ways in which ideas from the Global South can exert influence in the North and how Indigenous legal ideas can find expression in the national legal system and beyond—a process sometimes referred to as “interlegality in reverse.” Similarly, in scholarship on climate change in particular, the idea that the West can learn from Indigenous systems of knowledge has recently been given much weight. In constitutional as in human rights law, rights seek to define the relationship of the individual to government and society. The canonic texts of both fields of law emphasize themes such as individual autonomy against incursions by government, how governments can ensure a life with dignity, and meaningful individual participation in the democratic process. Their focus, in other words, is on the relations of humans among themselves. Even the rights of fictional entities such as corporations and nation states are ultimately rooted in claims of how humans can best conduct their relations with each other. The claim of rights of nature is a radical departure. It says that positive rights law can extend beyond relations among humans to encompass an entirely new domain of concern: human relations with those entities falling into the category of nature, or the non-human world.This essay unfolds in four sections after the introduction. The first three sections discuss each rights of nature text respectively, arguing for its significance and using it to examine a distinct strand of argumentation for rights of nature claims. The final section examines the analytical tensions between and political interdependence of these three strands of rights of nature arguments, as well as their shifting relationship to the traditional tenets of constitutional democracy. This article is the result of a collaboration between me and Professor Maria Dallari Bucci of Sao Paulo Law School working toward a framework for Law and Public Policy (LPP). The article frames LPP as multi-interdisciplinary research on public policy, its operation, and effects, which applies nationally, regionally, and locally and to each sub-area of public policy (education, environment, housing, etc.). Many disciplines have their own research on the topic: law, economics, political science, sociology, history, etc. (the intra- aspect). Also, each discipline can and does work in the center linking to the other disciplines (the inter- aspect). With LPP, law is in the center with links to the other disciplines. Law at the center refers to how legislation, administrative rules, judicial holdings, and official influence are involved in the design, creation, implementation, and effects of each area of public policy. As an application of the framework, the article includes a longitudinal case study of the history of progressivism in the U.S. defined as policies advancing the public good and equity. The first draft of the case study was notes for a class I held with Prof. Bucci and her students. This article is a slightly more formal extension — but still in the spirit of something we could call “notes toward an LPP framework.” The case study discusses three issues: 1) areas of overlap between progressivism and the right, bipartisan, partial, and contested 2) the decades long conservative movement aimed at rolling back progressive policies 3) anxieties and realistic possibilities for the end of progressivism, permanent single party rule, or a coup overturning the institutions of democracy in favor of executive autocracy. A general framework compatible with the article encapsulating the dynamics of change and stability is Elinor Ostrom’s survey of institutional choice research discussed in Appendix A.This article was written as part of a collaboration, Bucci and Clune: A South-North Dialogue. Professor Maria Dallari Bucci’s article can be found on SSRN at this link. For the full text of these works and additional scholarship from UW Law faculty and staff, visit the University of Wisconsin Law School Legal Studies Research Paper Series on SSRN. A free email subscription is available at the top right of the page.