Law in Contemporary Society

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DevinMcDougallFirstPaper 13 - 27 Mar 2010 - Main.EbenMoglen
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Climate Change, Lawyers and the Creed of Expertise

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 As Arnold might observe, a sign of the vitality and flexibility of the creed of expertise is that its invocation can serve both as a rationale for deference to agency decisions, as in Chevron, or as a rationale for judicial intervention to police politicization of agency work, as in MA v. EPA.

The decision of how to regulate greenhouse gases profoundly affects who gets what, when, and how, and therefore, to paraphrase Harold Lasswell, is essentially political. However, framing the issue as a technical one, and formulating an appeal before the judiciary that draws on the tropes of the creed of expertise can sometimes provide a means of intervening into the policymaking process of the other political branches. Whether the Court will continue to be sympathetic to these expertise-based appeals for judicial intervention in the future is uncertain. However, any addition to the quiver of those seeking stronger policies may be welcomed.

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In my view, the basic problem here is that the essay says a great deal less than it seems to say:

  1. Global warming is a serious problem we should do something about;
  2. Experts will be tend to be persuasive;
  3. Courts may or may not defer to expert opinion, but everything that tends to persuade courts sometimes is useful.

I admit that #3 sounds especially jejune and pitiful, but it's the actual conclusion expressed in the last two sentences of your essay, after all the Arnoldian windup. Quoting my brother is cute, but that does nothing to counteract the "less here than meets the eye" problem, because the statement you quote is nothing but lobbyist boilerplate, as you point out yourself. In the end, it's just another appeal to "the thinking man," who—as Arnold would say—listens to the scientists, not to the politicians.

You push the "Chevron deference" point much too far. Chevron stands for a narrower but still highly important principle, that the agencies are the parties best positioned to understand in context the Congressional intention embodied in the statutes whose provisions they administer. It is understood to mean that when the Securities and Exchange Commission interprets the Securities Exchange Act or the National Labor Relations Board the NLRA, for example, the courts ought not lightly to disturb their readings. This may well lead to the conclusion that the Environmental Protection Agency is entitled to deference concerning its conclusion that carbon dioxide is an "air pollutant" within the meaning of the Clean Air Act. But it doesn't imply that the EPA is entitled to deferential review of all the other sorts of decisions it makes in the course of its business that don't involve statutory interpretation. (Hence the non-deferential view the Court takes on the other critical point involved in the case you discuss, which is whether the agency's conclusion that there exists substantial scientific uncertainty is in itself a sufficient rationale for refusal to regulate.)

There are Arnoldian things to say about the politics of global warming, to be sure. I feel quite sure that you can find some that will result in an interesting essay. But this draft takes too easy a road, and returns with too little to show for the trip.


DevinMcDougallFirstPaper 12 - 15 Mar 2010 - Main.DevinMcDougall
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Climate Change, Lawyers and the Creed of Expertise

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III. A strategy: Climate change and the creed of expertise

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Lawyers can zealously represent the interests of those seeking stronger climate policies in the United States through mobilizing the motifs of the creed of expertise. The political economy of the United States is quite friendly to business interests, but the creed of expertise represents a potentially countervailing source of legitimacy. This is well understood by major environmental advocacy groups, who almost invariably couch their appeals in the terminology of science, rather than morals.
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Lawyers can zealously represent the interests of those seeking stronger climate policies in the United States through mobilizing the motifs of the creed of expertise. The political economy of the United States is quite friendly to business interests, but the creed of expertise represents a potentially countervailing source of legitimacy. This is well understood by major environmental advocacy groups, who almost invariably couch their appeals in the terminology of science, rather than morals or politics. As Damon Moglen, Global Warming Campaign Director for Greenpeace, put it in a recent interview: "Our position is that we have to listen to the science, not the politics."
 It can be difficult to tease lessons out of the contingency of the past, but the 2007 Supreme Court case Massachusetts v. EPA represents an instance in which expertise-based appeals found a way through the byzantine pathways of the federal administrative state and achieved a highly consequential victory for stronger climate policies.

DevinMcDougallFirstPaper 11 - 10 Mar 2010 - Main.DevinMcDougall
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Climate Change, Lawyers and the Creed of Expertise


DevinMcDougallFirstPaper 10 - 03 Mar 2010 - Main.DevinMcDougall
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Climate Change, Lawyers and the Creed of Expertise


DevinMcDougallFirstPaper 9 - 02 Mar 2010 - Main.DevinMcDougall
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Climate Change, Lawyers and the Creed of Expertise


Revision 13r13 - 27 Mar 2010 - 19:35:29 - EbenMoglen
Revision 12r12 - 15 Mar 2010 - 03:00:22 - DevinMcDougall
Revision 11r11 - 10 Mar 2010 - 14:10:10 - DevinMcDougall
Revision 10r10 - 03 Mar 2010 - 21:28:49 - DevinMcDougall
Revision 9r9 - 02 Mar 2010 - 17:41:58 - DevinMcDougall
Revision 8r8 - 01 Mar 2010 - 01:26:06 - DevinMcDougall
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