Trial Run

In Australia, using moot courts to test conservation laws

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It’s an old story: environmental protections laws enacted with the highest hopes end up entangled in lawsuits for years or even decades due to vague wording. But there may be a way to avoid the legal gridlock, argue two Australian scholars: Road test proposed rules in mock trials in “moot courts” before they get chiseled into the lawbooks.

Australia has seen its share of frustrating legal wrangles over environmental laws, Mark L. Shepheard and Paul V. Martin of the University of New England in Armidale note in an article in press at Land Use Policy. Courts have largely rejected government efforts to enforce a native plant conservation law passed in the 1990s, for instance, in part due to vague requirements. Efforts to enshrine the do-no-harm “precautionary principle” into law have also been bedeviled by disagreements over definitions.

To write conservation laws that might fare better before judges, Shepheard and Martin tested a technique that lawyers have used since medieval times: the moot court. These mock trials are often used to train judges and attorneys. This time, the authors “mooted” a pair of hypothetical cases that tested a legal concept that Australian politicians have been incorporating into some conservation laws. The concept, called “duty of care,” would extend a longstanding common law duty not to harm a neighbor to the environment. In theory, the approach could give the government the power to require landowners, such as farmers, to protect wetlands or spend money on wildlife preservation.

In the simulated cases, brought under the mythical “Good Agricultural Practice Act of 2008,” the government sought to protect its power over landowners who violated the duty of care by clearing vegetation and damaging a wetland through irrigation. Using real lawyers and judges, both sides presented their arguments. Then, the researchers analyzed the resulting decisions and interviewed the participants to identify key legal issues.

In general, the exercise revealed that the judges were cautious – and even skeptical – of extending the duty of care concept to the environment, in part because they borrowed heavily from common law reasoning about what constitutes negligence. And the players also suggested that it would have been wiser for the government to use “a less treacherous” legal strategy resting on “less ambiguous” laws to press its case. Overall, the authors conclude that the duty of care standard is “unlikely to meet the stewardship aspirations that advocates… expect.” But they also say that mock trials, while potentially costly and time consuming, could be valuable tools for predicting which laws are likely to pass legal muster. – David Malakoff

Source: Shepheard, M.L., Martin, P.V. (2010). Using the moot court to trial legislation about land stewardship. Land Use Policy DOI: 10.1016/j.landusepol.2010.07.003

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