Pérez and Lifshitz, ‘Natural Transplants’

Policy-makers are constantly faced with the complex task of managing novel problems. At times, this results from new technologies: consider fights over allocating air rights for drones, or decisions about how to share scarce vaccines in a pandemic. Other times the resources are old, but the challenges are new: like how to fairly allocate water, in times of unprecedented drought, or previously undesirable rare earth minerals that have been in demand for modern manufacturing and energy production. Often, instead of carefully tailoring a regime to the new resource, decision-makers simply rely on mechanisms they are familiar with. When jurisdictions borrow from each other, scholars call this a ‘legal transplant’ – as when one state copies another state’s innovations, or when the federal government learns from the ‘laboratory of states’. This article unveils a new legal transplant dimension: transplants across subject-areas. That is, when a jurisdiction looks within its own legal system, but for doctrines in other legal areas when regulating a new resource or a new challenge.

This Article makes three key contributions. First, it identifies a new type of transplant – between subject-matters within a jurisdiction. Second, it analyzes the reasons for internal, cross-subject legal transplants and the criteria for selecting which subject areas to copy from. Third, the Article brings the legal transplants literature to bear, specifically, on natural resource law. It explores two cases, groundwater and wind energy, where policymakers and courts have borrowed from other resource schemes, often ignoring the scientific and social differences between these natural resources. Other areas of law, such as, the incorporation of contract doctrines in landlord-tenant relations, are also described to show the explanatory power of the natural transplant framework. This conceptual framework is then applied to new mineral developments in space and the deep sea. Cross-subject transplants may be more prevalent than previously appreciated, and understanding them will pave the way to analyze the regulation of new developments in natural resources, infrastructure, and beyond.

Casado Pérez, Vanessa and Lifshitz, Yael R, Natural Transplants (September 22, 2021). New York University Law Review, June 2022, forthcoming, Texas A&M University School of Law Legal Studies Research Paper No 21-46.

First posted 2021-11-24 11:00:09

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