Preservation Law Outline
I. Philosophical Perspectives
a. Willa Cather, Tom Outland’s Story
i. Values of preservation law go directly counter in many cases to economic interests
1. Posner type economic law analysts
2. Preservation law is going against the basic economic imperative
ii. Tom Outland’s Story
1. Friend sells artifacts to a traveling collector
2. Does it always come down to money in the end
iii. Tragedy of the Commons
1. Resource that is beyond the law, that is open to all, in this sort of situation even the altruistic individual can have no impact
2. Not only will that individual not save the resource, he will be destroyed himself
iv. Garrett Hardin
1. There needs to be a collective elevation of consciousness, “the greening of America”
2. Two possible approaches to dealing with scarce resources
a. (1) Privatization
i. Individual possession might save this resource
ii. Examples
1. Holders of private estates (hunting preserves)
iii. Private interest’s to preserve public lands
1. Corporate entity to preserve lands through a non-profit vehicle
iv. Using values to generate money for conservation matters
b. (2) Regulation
i. Reliance on a non-market approach, is a continuing necessity
ii. Potential of resistance and backlash
c. There must be a balancing of the various approaches
i. Sometimes an economic approach is a welcome ally
ii. Vail, CO road example
1. Cheaper to build a road around a mountain than to go through the mountain with a tunnel
i
associated with religion or spirituality
2. Some tribes claim that virtually every element of their life with the earth is sacred
3. Is respect a measuring stick?
a. What Tom did was more than just sentiment
i. Going to Washington
ii. Ended friendship with his best friend over the desecration
b. Does this go to duty and trust?
4. Is the sense of reverence always coupled with duty?
a. David Brower (President of Sierra Club)
i. Living in a state of obligation
vi. Reciprocity
1. Owe a duty to others
a. Golden Rule
b. Social Contract
2. Tom Outland’s version
a. Generation to Generation
i. Page 251-252
1. Filial piety
a. Owe to your relations
b. Concerned with your relations
i. Past
ii. Future
3. What is Cather’s point about “possession” of this responsibility?
a. Why did Tom not want to get his diary and write about this stuff?
b. Maybe because if he started to analyze it he “would lose the whole in the parts”
c. Mesa Verde is eventually placed within federal parks jurisdiction
i. Does not end the preservation movement
d. Civilization
b. Laurence Tribe, Ways to Not Think About Plastic Trees
i. City of Los Angeles was going to replace natural trees with plastic trees (less care, smog resistant)
Efficiency is a view fully consistent with the premises of environmental law
