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Environmental Law




Definition of property rights is not useful unless there is an enforcement system, either public or private, that backs it up. While the definition of property rights as a solution to the tragedy of the commons has been carefully analyzed in the literature, the enforcement piece has been somewhat overlooked. Water is becoming scarcer and conflict is rising. As a result, the need for an efficient and fair enforcement system is more necessary than ever due to climate change.

Given the complexity of water law and the backlog in the judicial system, introducing specialization in the resolution of water cases may become necessary in many jurisdictions. Specialize enforcement takes different forms: from administrative agencies decisions to judicial decisions. This piece focuses on the judiciary, where specialization in the water and environmental arena has gained traction in recent decades in the United States and abroad. Specialization ensures faster resolution and better-quality decisions. To achieve those benefits, jurisdictions do not need to create a whole new system of courts necessarily. For example, in water, specialization in the judiciary can range from special masters assisting generalist judges in water cases or general judges who get assigned all water cases on the docket to full-fledged specialized courts.

The article, first, covers how the literature has analyzed specialized tribunals across different legal areas, along with their advantages and disadvantages. Second, it establishes the need for specialized water courts and their procedural particularities. Factual and legal complexity of water disputes demands specialization both at the trial and at the appellate level. Third, it diagnoses the trend toward judicial specialization in water cases in the West of the United States and analyzes case studies of water courts in the United States and abroad, looking at both their institutional structure and their particular procedural rules. Based on this research, the paper offers a portfolio of institutional options for jurisdictions designing specialized courts. The proposals are particularly helpful to respond to the expected increase in conflicts over the allocation of natural resources due to climate change.

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Northwestern School of Law, Lewis & Clark College

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