Document Type

Article

Publication Date

1994

Abstract

Two social movements in the last fifty years have had a profound impact on our understanding of law and the role of the courts in our system of government. One is the civil rights movement. The demand for greater racial and gender equality and other civil rights has changed the face of the law in countless ways. For example, it has called into question-or at least required a fundamental revision in the traditional understanding that the courts should interpret the Constitution and laws in accordance with their original meaning. Decisions such as Brown v. Board of Education' and the voting rights cases 2 appear to presuppose that the meaning of the law can change over time as courts' perceptions of social exigencies change. The civil rights revolution has also thrust courts deeply into the governance of traditionally autonomous institutions such as local schools, election boards, prisons, and mental hospitals.

There is a second social movement, however, that can also lay claim to have transformed our conception of law and the role of courts-the environmental movement. Environmentalism burst onto the scene on Earth Day in 1970 and, despite some challenges to its position, has not departed since. Although the influence of environmentalism on the legal system has not been as pervasive as that of the civil rights movement, it too has left its mark in many ways. For example, environmentalism can take credit for the vast expansion in the law of standing that took place in the early 1970's.3 Similarly, environmental groups pioneered the use of "public interest law firms" as private enforcers of public laws. As a consequence of these and related developments, the environmental movement gave rise to a new and much more aggressive style of judicial review of agency action, known as the "hard look" doctrine.4 Environmentalism has also had an impact on substantive legal norms, most prominently perhaps with respect to causation, where courts have gone so far as to hold that liability may be imposed under the "Superfund" statute without regard to any showing of causation of injury at all.5 Each of these innovations has spilled over from environmental controversies to other areas of the law.

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