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Government, Governance and Lawyering in the Great Lakes Environment. Environmental Law 2 Spring 2006. What do lawyers do?. We manipulate state-sanctioned coercive forces. Influence (trigger, resist, shape) the application of coercive powers of the state. - PowerPoint PPT Presentation
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Government, Governance Government, Governance and Lawyering in theand Lawyering in the
Great Lakes Environment Great Lakes Environment
Environmental Law 2Environmental Law 2
Spring 2006Spring 2006
What do lawyers do?What do lawyers do?
We manipulate state-We manipulate state-sanctioned coercive forcessanctioned coercive forces
Influence (trigger, Influence (trigger, resist, shape) the resist, shape) the application of application of coercive powers of coercive powers of the statethe state
Structure Structure transactions with transactions with regard to legal regard to legal consequences and consequences and enforceabilityenforceability
Traditional lawyering depends upon Traditional lawyering depends upon the Westphalian modelthe Westphalian model
To be legitimate, power (sovereignty) must be To be legitimate, power (sovereignty) must be located in the government of a nation-statelocated in the government of a nation-state
States can delegate or oversee private States can delegate or oversee private exercises of power, but are ultimately exercises of power, but are ultimately responsible for the use and consequences of responsible for the use and consequences of coercioncoercion
International law generally reflects the International law generally reflects the agreements of sovereign nation-statesagreements of sovereign nation-states
Power exercised outside this framework is Power exercised outside this framework is terrorism, or crimeterrorism, or crime
Today’s environmental problems Today’s environmental problems are often beyond the ability of any are often beyond the ability of any
single jurisdiction to resolvesingle jurisdiction to resolve
Where no government has sufficient Where no government has sufficient power, the focus shifts to power, the focus shifts to governancegovernance
Multiple jurisdictions and Multiple jurisdictions and agents/stakeholders come together agents/stakeholders come together to create arrangements for getting to create arrangements for getting things donethings done
““Post-sovereign” governance is:Post-sovereign” governance is:
Non-exclusiveNon-exclusive Non-hierarchicalNon-hierarchical Consensus-based, not imposedConsensus-based, not imposed Dispute resolution through exit or Dispute resolution through exit or
voice, not votingvoice, not voting Post-territorial (problem-driven, not Post-territorial (problem-driven, not
jurisdictionally defined)jurisdictionally defined)
Does such a system have any need Does such a system have any need for lawyers?for lawyers?
Do we have the right skill set, or Do we have the right skill set, or anything close to it?anything close to it?
Do we have the right mind set, or Do we have the right mind set, or anything close to it?anything close to it?
Are we going to become just another Are we going to become just another bunch of “facilitators” directing bunch of “facilitators” directing traffic?traffic?
What good lawyers can bring to the What good lawyers can bring to the tabletable
Notions of fair process and Notions of fair process and accountabilityaccountability
Managing complexity without losing Managing complexity without losing important detailimportant detail
Working in the shadow of lawWorking in the shadow of law Focus on worst-case analysisFocus on worst-case analysis Understanding the elusiveness of factUnderstanding the elusiveness of fact Interest-balancingInterest-balancing
Accountability in Collaborative Accountability in Collaborative GovernanceGovernance
Exit, voiceExit, voice Contractual deliverablesContractual deliverables TransparencyTransparency IndicatorsIndicators
What do indicators indicate?What do indicators indicate?
Strengths of nonprofits in Strengths of nonprofits in environmental governanceenvironmental governance
Low-cost service deliveryLow-cost service delivery Local knowledge (people, places, politics)Local knowledge (people, places, politics) ““Street Credibility” and commitment to Street Credibility” and commitment to
outreachoutreach Ability to mobilize volunteersAbility to mobilize volunteers (Some) ability to act politically(Some) ability to act politically Access to different funding sourcesAccess to different funding sources More nimble than government in changing More nimble than government in changing
priorities and policiespriorities and policies Easier to work across jurisdictional Easier to work across jurisdictional
boundariesboundaries
Weaknesses of nonprofits in Weaknesses of nonprofits in environmental governanceenvironmental governance
Lack of formal authorityLack of formal authority Difficulty of maintaining credibility in the Difficulty of maintaining credibility in the
middle ground---pragmatism v. ideological middle ground---pragmatism v. ideological puritypurity
Schizophrenia of grassroots vs. well Schizophrenia of grassroots vs. well connectedconnected
Lack of resources—especially cash flowLack of resources—especially cash flow Transaction costsTransaction costs Dependence on government, “biting the Dependence on government, “biting the
hand”hand”
Where to look for blame when Where to look for blame when things don’t work . . .things don’t work . . .