Why Regulation? : The Shift from Traditional Remedies to Regulatory Statutes in Environmental Law

Discusses the shortcomings of traditional common law causes of action and remedies to address environmental harms, which helped push the state and federal governments toward heavy use of modern regulatory statutes in the environmental arena. Written as a seminar paper for Professor Harold Hyman's legal history research seminar at Rice University in Fall 1992. Thus, this paper precedes various more recent legal scholarship professing to rediscover the power of the common law to right environmental wrongs. The basic points of this paper still hold, however, both in the history of the rise of environmental regulation in the 1960s and now. If the common law has any meaningful force in the environmental arena, it is because it can piggyback on the powerful regulatory statutes that were created, and which effectively created the whole field of environmental law. Without that, the common law would still be as gutless and problematic for environmental purposes as it was for seven hundred years before the 1960s. Lest anyone think, "That ain't much for a grad school seminar research paper," I should note: we had to turn in papers every two weeks, so there were six other papers, almost all of them longer than this one. Most of them involved archival research into the origins and evolution of the early environmental law section at the major Houston law firm of Vinson & Elkins (yes, the people who represented Enron, as well as much of the rest of the oil and gas industry) during the late 1960s and early 1970s. The remainder of my research remains confidential