In an article Jim Salzman of Duke Law School and I recently published in the Duke Law Journal, Climate Change Meets the Law of the Horse, we outline a way of building and assessing legal futurism scenarios. The article itself is about envisioning climate change adaptation law, which in a previous post I suggested is all about legal futurism. But the broader theme is a riff on an already famous 2008 article in Science magazine, Stationarity is Dead, explaining how climate change is going to bust the relatively stable envelope of variability in natural systems upon which water, infrastructure, and other resource management planning has been based for decades. The question for resource and infrastructure managers, therefore, is whether climate change will so alter natural systems as to render obsolete the assumptions of stationarity-based management and design. Many believe that planning going forward must be based on a changing climate and greater uncertainty, depending on which climate-forcing scenario seems most probable.
Law also depends heavily on stationarity-based design. Every field of law is embedded in assumptions about variability in natural, social, technological, or economic conditions. Climate change will trigger potentially sweeping and legally relevant transformations in those systems. These changes, however, will vary across the landscape and will not affect law uniformly across all fields. To test whether the pressure on different fields of law will be transformative, we developed the Stationarity Assessment model. A Stationarity Assessment for law involves a three-step inquiry:
- Step 1. What is the envelope of variability for the key natural, social, technological, and economic attributes within which a field of law operates and on which its assumptions for theory and practice are based?
- Step 2. To what extent will forces of change distort the field’s envelope of variability?
- Step 3. To what extent will the expected new variability regime require altering or abandoning the stationarity-based components of the field’s theory and practice?
Applying this inquiry using a future climate scenario we built from a variety of sources, we conclude that climate change adaptation will not demand fundamentally different substantive law fields, but likely will lead to new procedural overlays to ensure coordination between legal fields aimed at ensuring climate adaptation justice.
The Stationarity Assessment method is not limited to climate change, of course, and can be used to test the pressure other forces of technological, economic, and social change will put on legal fields as well as legal practice and education. The point is that to implement the model requires a solid footing in the history of a legal field and its context paired with a solid basis for projecting future scenarios. we learn as much about the present as we do the future when thinking in the legal futurism mode.