William H. Rodgers, Jr., Where Environmental Law and Biology Meet: Of Pandas' Thumbs, Statutory Sleepers, and Effective Law, 65 U. Colo. L. Rev. 25 (1993), https://digitalcommons.law.uw.edu/faculty-articles/259
University of Colorado Law Review
evolutionary biology, Oil Pollution Act
The purpose of this article is to introduce some of the recent findings of evolutionary biology to the legal community and to urge their consideration in developing a more effective law. As background, Part II of this article will present a brief evolutionary history of our own species.
Part III offers a primer on Darwin's theory of natural selection and the concept of adaptation, with special attention to the elaboration of altruism as it is known in modern biology. Part IV discusses maladaptation as a counterpoise to adaptation and underscores the notion with some stories from natural history on subjects such as pandas' thumbs, cats' tails, and bats' wings. All of these forms of maladaptation have their metaphorical counterparts in law.
Part V directly takes up possible uses in law of biology and discusses evolution as metaphor and model and the necessity to assess carefully the human behavior that the law seeks to constrain and liberate. Some examples will be drawn from recent scholarly work in environmental law and from the Oil Pollution Act of 1990. The emphasis here will be on identifying ineffective law that is of low functional value because it is inattentive to the behavioral realities of the context it seeks to influence.