SPECIALIZATION TREND: WATER COURTS.

• Author: Perez, Vanessa Casado

1. INTRODUCTION 588 II. SPECIALIZED TRIBUNALS 591 A. Benefits 592 1. Celerity 592 2. Quality of Adjudication 593 B. Costs 594 1. Establishment and Operational Costs 595 2. Risk of Capture 595 C. Institutional Design 597 1. Expertise 597 2. Connection with Other Areas of the Law 599 3. Courts' Structure 601 a. Separate or Hybrid Models 601 b. Levels 603 c. Tenure and Promotion 603 4. Procedure 605 III. WHY WATER COURTS? 606 IV. SOUTHEASTERN SPAIN WATER COURTS 611 V. COLORADO WATER COURTS 618 VI. SOUTH AFRICA WATER COURT 622 VII. MONTANA 625 VIII. CONCLUSION 628 I. INTRODUCTION

   Definition of property rights is an essential solution to the tragedy of the commons (1) from which many of our natural resources suffer. The scholarship analyzing how property rights are created and how they evolve often takes for granted the enforcement of those rights. (2) Enforcement is key. Enforcement is a public good often, but not exclusively, provided by government. Enforcement takes many different forms: from ostracism in self-governed property rights systems to administrative agencies' resolutions and judicial decisions in formal property right systems.

   This Article focuses on the last step in the enforcement of water rights: the courts. In particular, it analyzes whether the introduction of water courts is advisable in western United States. Currently, water rights are first enforced by administrative agencies, and the decisions of those agencies may be challenged in court. For example, a water rights holder may challenge a water agency's denial of a location change for their water right. (3) Additionally, private parties may bring claims against other water rights holders to court. Presently water cases are heard by generalist state courts. However, water law cases may unduly burden the dockets of those generalist courts. (4) Courts decide on many different areas and the complexity of the facts and the law in water law cases suggests that a different institutional design, one with specialized courts, may be more efficient. (5) The gains in efficiency will come from a faster, more accurate resolution of cases. (6)

   Specialized courts are quite common from a comparative perspective in areas as varied as corporate matters, tax issues, gender violence, administrative law, family law, or patents. (7) One such area is environmental law. Forty-two countries have specialized environmental courts. For example, India created the Green Tribunal in 2010, (8) New South Wales (Australia) has the Land and Environmental Courts that hear environmental and land use cases since 1979. (9) Sweden, in 2011, replaced property and environmental courts for a system of Land and Environment Courts which also hears water cases. (10)

   In the United States, the generalist judge is celebrated. (11) Judge Posner wrote in defense of the generalist judge in 1983. (12) While in 1990, the United States Judicial Conference qualified them as "exotic," (13) around that time the Vermont Superior Court Environmental Division (14) and the Shelby County-Tennessee Environmental Court (15) were created. Setting aside the specialization of administrative law judges such as the United States Environmental Protection Agency administrative law judges or the environmental appeals board, (16) there are plenty of examples of specialized courts in the United States, such as bankruptcy courts or Federal Circuit Court of Appeals. (17)

   Water law has not been immune to specialization at the judicial level. Water law is similar to environmental law (18) and patent law because both the facts and the regulations are very complex. In fact, across the world, water issues have often prompted the establishment of environmental courts and tribunals. (19) In the United States, only Colorado has a system of water courts. (20) These courts have been in place since 1969 (21) but, surprisingly, the literature about specialized courts has not paid much attention to these Colorado courts. In addition, some specialized courts, created to deal with the adjudication processes in the western states where water rights were not properly recorded, are becoming permanent courts of limited jurisdiction. (22) While there are few examples, water courts are not frequent. However, voices advocate for them. For example, in California, when drought strikes, there are often claims of the need for water courts. (23)

   This Article analyzes whether water law courts are a sound reform to deal with water rights disputes in an era of climate change which will inevitably make water disputes more common. Water courts compete with general courts as a forum for dispute resolution, but they also compete with market mechanisms or with political deal-making as alternative ways to solve water conflicts. (24) A better system of judicial decision making should reduce the overall social costs of water conflicts.

   In order to assess the suitability of water courts, the Article starts by analyzing the comparative advantages and disadvantages of specialized courts in relation to the current system of generalist courts. Second, it looks at some examples of existing water courts in the United States and beyond, namely the Water tribunal of Valencia, the South Africa Water Court, Colorado Water Courts, and the Montana Water Court. Third, the Article describes the trend towards specialization in water law judicial decision making and distills the characteristics that a water court should have and how those could also inform the establishment of other specialized judicial institutions for other natural resources.

2. SPECIALIZED TRIBUNALS

   Specialized courts are expected to make quicker decisions, reducing the workload of regular courts, and provide higher quality decisions, thus ensuring legal coherence and uniform judicial decisions. (25) Beyond these advantages that all scholars agree on, some works on specialized courts identify additional advantages. (26) The study Greening Justice about the potential for environmental courts lists visibility as an advantage. (27) The report understands environmental courts as a way to increase the public relevance of a subject because by creating these courts, the government shows that environmental issues are a topic of great importance. (28) The lessons offered here for specialized water courts can be translated to many other areas.

   If all the above advantages were realized, private parties should favor specialized courts because they would greatly reduce the cost of doing business in the subject matter areas where those courts specialize. (29) Additionally, a trustworthy, respected judicial system is a key part of procedural environmental justice. (30) Some scholars consider specialized courts as increasing public confidence (31) in the system, which in turn may enjoy greater legitimacy. (32) Subpart A below will focus on the two advantages that encompass all the additional ones listed in the current scholarship on the topic: celerity and quality of adjudication (33)

   There are also costs to specialization beyond the costs of setting up a new court infrastructure. Specialized courts present a higher risk of capture because they may have fewer players--plaintiffs or defendants--and those players are often repeat players who will always face a small number of judges. (34) In addition, while judges would be experts, they may become siloed and ignore developments in other areas of the law which could be beneficial if incorporated in the specialized area the judge is assigned to. (35) Subpart B analyzes these costs. Finally, Subpart C will review the different institutional designs available to introduce specialization in the judiciary.

   1. Benefits

      1. Celerity

         Celerity is probably the greatest advantage from a private party perspective. (36) Specialized courts are supposed to reach decisions faster because the judges know the subject area, and thus they do not need to be educated by parties and their experts as much as general judges. (37) Judges working on a particular subject area will not only know in detail the rules applicable to the specialized area, they will also be more educated on the technical aspects of the facts and regulations of that subject area. (38) While a specialized judge in, for example, environmental law, does not need to be a biologist or a chemist, sitting on environmental cases would make him an educated consumer of the technical and scientific issues. In addition, this is compounded with the fact that, at least initially, specialized courts are not as backlogged as general courts. (39) Nonetheless, evidence in favor of the celerity of specialized courts is mixed. (40)

         The results regarding speed may depend on the institutional design in addition to the expertise of the judges and how the legal community with cases before the new courts reacts to their establishment and activity. (41) Celerity in reaching decisions translates into lower litigation costs, which improves access to justice. (42) However, the positive effect on the length of time needed to obtain a judicial decision may be counterbalanced by an increase in the workload of those specialized courts. If adjudication before those specialized courts becomes attractive to litigants as a result of the increase in efficiency, parties may give up extra-judicial means of solving conflicts in favor of judicial adjudication. (43) Thus, as an efficient specialized court decreases the amount of time that it takes to decide a case, its docket may increase in the number of cases. (44) This could make the court less attractive than alternative systems of resolving conflicts. In fact, some specialized courts in the environmental arena promote the use of alternative dispute resolution methods to avoid backlog. (45) Finally, as it shall be seen next, if specialized courts provide better decisions, the predictability of the law in the subject area may increase (46) and reduce overall conflicts. (47)

      2. Quality of Adjudication

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