Criticisms of the growing field of empirical legal studies by UCLA law professor Stephen Bainbridge were issued in such broad brush strokes that he ended up blasting just about every law academic engaged in any sort of interdisciplinary work, especially so if the academic seeks to examine data of some sort. The main claims showed up recently in a National Law Journal article, which quoted Bainbridge:
“A lot of the people I see who are empiricists, often with doctorates in the social sciences, aren’t very good lawyers,” he said. “I’ve read numerous papers that just got the law wrong. The problem is that we’re hiring people with Ph.D.s in other fields, but their law credentials are middling at best. Someone who is a brilliant economist wants to be in a economics department, so we get second-rate lawyers who are second-rate in their academic field.”
Perhaps phrasing the criticism in that way touched a nerve with Josh Wright, a law professor at George Mason University who holds both a PhD in economics and a law degree from UCLA. Wright responds at Truth on the Market, noting among other things that Bainbridge is asserting many facts about the state of the world without actually pointing to any evidence (much less adequately testing the evidence once it is identified).
Clarity in the law is usually deemed a virtue. Groundwater planning processes implemented in Texas a few years ago have led to a few legal fights and the legislature has taken up groundwater law to help clear up some of the confusion. The conflict has arisen when groundwater management districts issue landowners permits in quantities less that the landowner desired, and perhaps in quantities less than the landowner has rights to claim.
Maybe we’ll get some clarity someday, but for now we just have a fight. From the Texas Tribune, “Texas Debates Who Owns Its Water“:
It sounds simple: Who owns the groundwater in Texas? But this issue, like others in the hot-button area of aquifer planning, is embroiled in an ongoing policy battle.
At a crowded hearing earlier this week, members of the state Senate’s Committee on Natural Resources heard testimony on a bill introduced by Sen. Troy Fraser, R-Horseshoe Bay and the committee’s chairman, that would declare that landowners have a “vested ownership interest” in the water beneath their land. A less-discussed second bill, filed by Sen. Robert Duncan, R-Lubbock, recognizes both landowner rights and the “compelling public interest” of effective groundwater management.
Generally, surface property owners have long enjoyed the right to drill for water and pump as much as they want under a “rule of capture” regime. It is a regime that has worked fine for a long time, but population growth and extensive irrigation has put increasing demands on groundwater in the more arid parts of the state. Add to that existing conflict plans of some to develop their water rights to capture water for resale in amounts far in excess of historical uses.
“Texas Water Rampage” was the name of a failed Lubbock-area water park. Let’s hope that the current water fight in Austin has a happier ending.