4-2017 NEWS & ANALYSIS 47 ELR 10329
tions, and solutions. Some people rejected the idea that
zero-sum problems ever actually exist, and suggested that
reliance on the framework and use of the term can be dam-
aging to environmental governance—not just because it is
an overly constrained view of how trade os actually work,
but also because the language of zero-sum necessarily cre-
ates a combative stance that can impede collaboration and
creative thinking. Others suggested t hat for some environ-
mental concerns, the zero-sum framework was underused.
at is, we might reach better results if we confront the
actual trade os. W hat work does it do to label environ-
mental problems as a zero-sum game? In this ca se, climate
change and biodiversity protection serve as key examples.
Maybe we do need to emphasize that you cannot have your
cake and eat it too. Building that hospital will indeed lead
to the extinction of a species. Putting the conundrum in
stark terms might help highlight the need for embracing
the principle of in dubio pro natura1 (when in doubt act in
favor of nature).
Most of us agreed, however, that when we see t he zero-
sum rhetoric or when we use it ourselves, we are not really
talking the language of economists.2 We are tak ing their
term and simplifying it (taking a complex topic from
another discipline and simplifying it for our use is some-
thing we legal academics are good at).3 But more than that,
1. Josena Russo & Ricardo Russo, In Dubio Pro Natura:
, 5 T T
2. See, e.g., A K. D S S, G S:
F I S E 225 (2015) (describing basic
principles of zero-sum and nonzero-sum games in economics).
3. Or perhaps not that good at. See, e.g., Richard A. Posner, Legal Scholarship
Today, 115 H. L. R. 1314, 1326 (2002) (“Remarkable, too, is the
insouciance with which they discuss concepts from other elds, such as
political science, with nary a reference to the scholarly literature in those
elds.”). See also Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4
we rea lized that we are not the ones using this term. In
fact, it is not heavily used in the legal academy. It is used in
the media, though, and by politicians.
Figure 1, above, (created by Google’s Ngram function)
shows an increased use of the phrase “zero-sum” in books
rst appearing a round 1940 and increasingly u sed since
then, with a tapering o beginning in 2000. However,
overall, there i s not a high frequenc y of use of the phrase.
And “zero-sum environmentalism” did not appear often
enough to be plotted with Google’s Ngram funct ion.4
Following this train of thought, maybe the mission of
going beyond zero-sum environmentalism is to reject the
use of the term—to emphasize that it is not really occur-
ring. Or maybe it is to show the strength of the attitude of
zero-sum. If we think that a zero-sum approach is awed
as overly simplistic, then highlighting where actors/policy-
makers are treating complex environmental problems as
zero-sum issues can reveal aws in policymaking. Daylight-
ing the zero-sum framework c an expose overly simplied
approaches to environmental protection eorts, allowing
one to target those arenas as needing richer analyses.
Once I began looking for it, I saw zero-sum issues
throughout my work. For example, I have often complained
about the nature of property law arrangements (specically
conservation easements) to break instead of bend.5 at is,
Y J.L. H. 79, 79-80 (1992) (suggesting that often legal academics
incorporate other disciplines in a “sub-standard” or “supercial” way).
4. See G B, N V, https://books.google.com/ngrams
(last visited Mar. 3, 2017). What would be more interesting is to chart this
phrase in speeches, academic publications, and news articles, but Google has
yet to make such an Ngram (at least not one that is publicly available), and
searching through such piles of documents is beyond the task of this essay.
5. See, e.g., Jessica Owley, Conservation Easements at the Climate Change
Crossroads, 74 L C. P. 199 (2011); Jessica Owley, Property
, in E L
C I N: A C A 64 (Keith
Hirokawa ed. 2014).
1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000
Figure 1: Ngram of “Zero-Sum”
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.