Jacob Smith ‘23
Professor Liaison Editor
Christina Luk ‘21
Former Editor-in-Chief
Anyone familiar with the UVA Law Docket will recognize the label “Faculty Workshop.” It denotes a special event just for faculty where our esteemed professors get together to talk about secret professor things.[1] These secrets eventually get published in some form, such as a journal article or a book, and then that publication goes on to change the world. But what exactly happens in these secret professor meetings? How do we get from point A, a really cool idea, to point B, a ground-breaking piece of legal scholarship? On Tuesday, March 2, students were invited to find out.
Tuesday’s event was the first of its kind and was hosted by the Academic Placement Committee, which assists folks who are interested in going on the academic teaching market. The event opened, as all events open nowadays, on Zoom. Noon rolled around and students began to populate onto a black screen, eager to discuss Professor Michael Livermore’s upcoming article, “Where Nature’s Rights Go Wrong,” which discusses what is at stake when legal scholars generalize environmental rights too broadly. Professor Livermore welcomed everyone to the workshop and he explained that workshopping is an important part of the scholarly process.
The workshop took place in three big chunks. First, there was the introduction where Professor Livermore discussed how the project came to be. Then, there was his presentation about his article. The event concluded with a Q&A, where students got to participate in the peer review process by asking questions and making suggestions. While this editor hopes that Professor Livermore got something out of speaking with us, it was clear from the posture of the event that this was largely for the benefit of students and to give students a better understanding of what scholarship looks like in the academy.
Professor Livermore introduced his project by framing its stakes. Different countries around the world have tackled environmental rights in different ways. In 2008, Ecuador amended its constitution to give legal rights to Nature itself, recognizing it as an entity with “the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”[2] Professor Livermore’s article, co-written with a previous student of his, takes a deep dive into why Ecuador’s constitutional amendment has not been as successful as commentators hoped back in 2008.
For one thing, policies and laws that tackle environmental protection have often come at it from the perspective of individual human interests, such as the right to clean air or water. Nature’s rights, by contrast, are the rights of a group – what Professor Livermore calls a “biological aggregate.” But how do we define such a group? And, is there a way to persuasively articulate and defend this group’s interests? These are the twin dilemmas at the theoretical heart of “nature’s rights.”
Professor Livermore gave a great presentation unpacking these dilemmas. If we want to give nature rights, it’s tempting to start with the sentient experience of individual animals. During the discussion portion that followed Professor Livermore’s presentation, one participant wondered why that wasn’t enough. Intuitively, it does make sense that animals would have an interest in surviving and feeling pain, and individual human experience is foundational to our regime of human rights.
The problem is that biological aggregates also seem to deserve protection for their own sakes. Professor Livermore proposed a thought experiment: Is it worse to kill a hundred pigeons in New York City or the last hundred of a rare species of bird in Brazil? We would say the Brazilian birds deserve much more protection, because we see something especially heinous in the eradication of an entire species. But why are “rare” birds worthy of more concern? If we are looking exclusively at individual experience, the interests of all birds are equally important. To recognize the importance of rare birds, we need to protect the interests of a species, apart from the interests of that species’ members.
While we are comfortable comparing the interests of human groups, say for example a corporation, biological aggregates are different in important ways. Human groups can express preferences and litigate to protect their rights. We can compare the interests of human groups by thinking about what would happen if they could bargain or if they were forced to deliberate behind a Rawlsian veil of ignorance. Biological aggregates lack the kind of subjective preferences we attribute to people, which makes it difficult to apply a bargaining framework. A Rawlsian framework is hard to implement, precisely because it requires the thinker to conceptualize the relative likelihood of being a biological aggregate, as opposed to an individual biological entity. It is not obvious how to calculate that probability.
As we moved into the discussion portion of the event, alternative approaches were examined. We could, for example, ask what is good or bad for the biotic community as a whole. But the biotic community is difficult to separate from human activity, and it is still appropriate to acknowledge the interests of smaller entities like species. Protecting biodiversity was another idea suggested during the discussion. Professor Livermore responded that we need a normative justification for the significance of biodiversity, why biodiversity is more than “just strands of DNA.” If we are going to make humans worse off for the sake of biodiversity, we should be able to justify our decision.
All in all, this event was eye-opening. Not only was it a great opportunity to learn about an interesting and important field of law, but it was also a great experience in academic dialogue. For students who are interested in future events from the Academic Placement Committee, Professors Cathy Hwang and Richard Schragger will be hosting an informational “So You Want to be a Law Professor” event next Wednesday, March 17 at noon, when they will discuss their careers and introduce students to the process of becoming a law professor.
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js3hp@virginia.edu
cl3eh@virginia.edu