Unnatural foundations: legal education's ecologically-dismissive subtexts.

• Author: Ellinghausen, Don, Jr.

1. INTRODUCTION II. INCLUSIONARY ECOLOGICAL SCIENCE MEETS EXCLUSIONARY PROPERTY EDUCATION A. Balking Antiques: How Originalism Thwarts Ecological Holism B. Reified Property III. LEGAL EDUCATION: ELUSIVE ETHICS IN THE CRASS NEED GAME IV. EXPANDING ETHICS: REDEFINING HUMAN-EARTH RELATIONS A. Paradigm Shift: Green-Letter Ethics B. Expanded Standing: A Stone Left Unturned? V. GREEN-LEVERING LAW I. INTRODUCTION

   If we are dwelling within a system that is degrading life on Earth, then every node of the system requires attention. (1) Four decades after the inaugural Earth Day, a substantial number of law schools offer environmental law specializations, with most providing elective courses for those students eager to develop insights and skills in this thriving area of advocacy. (2) However, this development has been shadowed by the rise of a resurgent anti-environmentalism, as aggressive corporate-promoted co-option ("greenwashing') and confrontation (global warming "denialism") have obscured or belittled otherwise unavoidable indications of accelerating environmental decline. (3) Prospects for impactful reform have dimmed, despite the abundance of studies portending potentially calamitous climate change. As environmentalists' concerns over these increasingly-inescapable harbingers of ecological damage grow, so too have the efforts of some in their ranks to identify and target those deemed most responsible for marginalizing and minimizing the potency of their message.

   Deep ecologists, eco-socialists, and other systemic-focused critics consider the legal profession the linchpin of this emboldened anti-ecological perspective, noting that "[t]he number of lawyers hired by single corporations to defend themselves against any limitation of their perceived rights to exploit the natural world is evidence of the strange principles of jurisprudence that allow the devastation of the planet to proceed." (4) They also contend that "[o]ur legal and political establishments perpetuate, protect and legitimi[z]e the ... degradation of [the] Earth by design, not by accident." (5) The "perpetuate and protect" accusation refers to the number of prestigious law firms and legally-advised industry pressure groups that facilitate this process, while the "legitimize" label is affixed to legal education, which is considered thoroughly complicit in environmental degradation, given that "law schools teach the principles that allow these violations of the planet." (6)

   Legal education evades or otherwise implicitly discourages necessary whole earth thinking, and exclusion of extra-occupational perspectives has intensified in a recessionary job market. Lawyer training exemplifies how we have "fractured our educational system into its scientific and its humanistic aspects, as though these were somehow independent of each other." (7) Such specialization obscures total views, so that "we have trouble understanding the world as an integrated community in which the well-being of the parts depends on the well-being of the whole." (8) Adhering to such a narrow, parochial mindset is especially troubling when considering the deepening ecological crisis, in which lawyers, as the acknowledged "architects and defenders of property rights," are indispensable actors. (9)

   Contemporary legal education prioritizes the development of skilled technicians, prepared to apply allegedly agenda- and bias-free solutions to complex problems. It also fosters a crisis-impervious mindset; zealous pursuit of client representation, not greater social concerns, characterizes the educational ethic. Law schools provide a Turner Classic Movies perspective for a Discovery Channel world, adhering to timeworn scientifically and ethically-discredited precepts despite their self-evident ecological inapplicability. Legal education "repeats an ancient curriculum developed for nineteenth century lawyers to meet nineteenth century concerns and contexts," and fails to "challenge the categories or to question the underlying worldviews reflected in that century-old system." (10) As ecological concerns rested outside the purview of nineteenth century lawyers, so today environmental law remains largely on the curricular periphery, even as climate peril appears less and less an "elective" subject. Law graduates, unaware of critical ecological understandings, nonetheless develop an enhanced esteem for property. Environmentalists assert that "[w]e have built an entire legal system--the entire legal system of the United States, with a few footnotes and exceptions, with the exceptions in the footnotes--on property rights." (11)

   This Article will examine how the core and shadow legal curricula each impart ecologically-harmful memes, which in turn mire lawyers deeper in complicity with the ongoing global assault on the environment. These memes include a resistance to incorporating modern eco-scientific understandings; a faux-historical analysis of the roots of American jurisprudence, particularly in regard to property rights; implicit encouragement of an amoral, materialistic careerism; and the concomitant transmission of a truncated, serf-serving sense of ethical responsibility.

2. INCLUSIONARY ECOLOGICAL SCIENCE MEETS EXCLUSIONARY PROPERTY EDUCATION

   By defining land as a commodity, the dominant legal philosophies legitimi[z]e and facilitate our exploitative relations with Earth. (12) Legal education analyzes property wholly within the context of a discredited physical science paradigm, which employs antedated anthropocentric models in increasingly fruitless attempts to explicate a moving target, the dynamic ecosphere. Ecological science reveals that "the Earth is so integral in the unity of its functioning that every aspect ... is affected by what happens to any component member of the community." (13) The late eco-theologian Thomas Berry noted how these emerging ecological insights illustrate that "[n]othing bestows existence on itself. Nothing survives by itself. Nothing is fulfilled in itself. Nothing has existence or meaning or fulfillment except [within] ... the larger community of existence." (14) James Lovelock's "Gala theory" posits that "It]he Earth System behaves as a single, self-regulating system comprised of physical, chemical, biological and human components." (15) Contemporary science "has radically altered its view of the arrangement both of life and of nonliving components of the [E]arth," constructing a new paradigm "that place[s] relationship at the center." (16) Disdaining acknowledgment of this seminal concept of interconnection, property education adheres to an eclipsed worldview, which frustrates assimilation and understanding of ecological holism; it excludes rather than includes. This intransigence stymies environmental reform, highlighting how "laws and legal systems are primarily individualistic in tone, hence their resistance to a holistic ecosystem approach." (17)

   Ecologists claim that this resistance to holistic thinking stems from an "arrogant and obsessively anthropocentric worldview" which is nowhere "more apparent than in law." (18) Legal education's reluctance to assimilate the emergent eco-scientific paradigm reflects how "few of the people who make most of the decisions that affect the relationship between humans and other aspects of the Earth Community have made the shift from a mechanistic worldview to a holistic or ecological worldview." (19) Uncomprehending or unappreciative of this transformative reorientation, lawyers instead proffer zealous representation to those corporate entities (20)--the very engines of ecological destruction--who fiercely resist this understanding. Legal property education's intense focus on individual parts and parcels greatly disserves the development of systemic awareness, of how all these combative land use issues exemplify developers' determination to impose short-term, market-driven deadlines on natural systems which operate on millennial rather than quarterly-profit timetables.

   Although property education examines land disbursement schemes from medieval to present times, there is no corresponding analysis of natural systems' progression. (21) Each case concludes with its legal resolution, foregoing discussion of any potentially significant ecological impacts. This is a troubling omission, given that "[i]n the domain of atmosphere and climate the delay between cause and effect can be thirty years." (22) Law students immersed in a history and tradition-hallowing curriculum are not appreciative of how "[t]he slow, inexorable pace of ecological and climatic cycles and lag times bear no relation to the hasty cycles and lag times of human attention, decision, and action." (23) Legal education remains obeisant to the capitalist use-development paradigm, in which "[o]ur economic models are projections and arrows when they should be circles." (24) The trajectory of legal education culminates in the bar exam and job hunting; the stressful academic regimen parallels the ever more frenetic pace of the larger society, where even the alarmingly present melting of the polar ice caps is deemed too distant and speculative for contemporary comprehension. (25) As futurist Lester Brown observes, "We are crossing natural thresholds that we cannot see and violating deadlines that we do not recognize. Nature is the time keeper, but we cannot see the clock." (26) Property education facilitates linear analysis of a cyclical subject--nature--in which "changes happen rapidly and reflect past, not present, actions." (27)

   1. Balking Antiques: How Originalism Thwarts Ecological Holism

      I'm not a policy person. I'm a language person. (28) Law students are introduced to judicial philosophies that essentially enshrine or venerate historical epochs while steadfastly resisting introduction of scientific advances or extra-legal ethical movements. Constitutional law classes provide cursory overviews of originalism and textualism, and do not alert...