Finding the Right Words (Judicially)

I recently posted about when various key environmental terms surfaced in the law review literature.  It occurred to me that it would be interested to compare with the courts, so I did a similar search of Westlaw’s database for all state and federal court opinions.  Here is how the results compare:

Term Law reviews Courts
Environmental law 1970 1971
Air pollution 1949 1949
Water pollution 1920 1906
Endangered species 1970 1970
Cost-benefit analysis 1963 1969
Climate change 1970 1990

Although legal academics like to think we’re a step or two ahead of the courts in recognizing new issues, that isn’t reflected in this table.  There are two exceptions: academics started discussing cost-benefit analysis a few years earlier, and climate change became a topic for academic discussion much earlier than the issue reached the courts. But otherwise, courts and professors seemed to turn their attention to issues at about the same time, presumably because society as a whole was doing so.


A few side-notes. First, I want to thank Dean Rowan for showing me how to exclude the West key numbers from the search, since those are changed retroactively.  Dean also confirmed my initial results in a more inclusive database of law review articles. Second, “climate change” was used in some earlier judicial opinions in a non-environmental sense, as in “a climate change in the precedents.”  Third, the phrase “air pollutions” was used in passing in one 1909 opinion but never again.


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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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