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When we found the right words

Dan Farber, professor of law | October 19, 2011

It’s hard to talk about something if you don’t have the right words to designate it easily.  So it’s interesting to look for the first appearance for some of the key words in the legal literature.  Presumably, this words were in non-legal use a bit earlier, but their first use in law reviews tells us something about when concepts first received legal attention.

Based on Westlaw searches of the law journal database (JLR), here’s what I found:

  • “Environmental law” first appeared in 1970.
  • “Air pollution” appeared in 1949.
  • “Water pollution” in 1920, although a 1900 article was headed “Water — pollution”
  • “Endangered species” — 1970.
  • “Cost-benefit analysis” — 1963, in a sentence reading:  “There is considerable controversy over cost-benefit analyses.”
  • “Climate change” – only one environmental use before 1980, in a 1970 article.  The first mention of “global warming” was 1983.
  • “Ecology” — fifteen uses before 1970, but only one in an environmental context.

The most interesting thing may be the emergence of water pollution as a term well before other environmental issues engaged attention in the legal literature.

I also tried the word “wilderness” but gave up because it is so often used metaphorically or as implying lack of value.  It would be interesting to know when the term was first used with the connotation that land in the wild state was worthy of preservation.

Cross-posted from the environmental law and policy blog Legal Planet.

Comments to “When we found the right words

  1. FACT #1: We have a lot of people communicating but almost all of it is one way communication because global warming is at or near the bottom of our national and international action lists.

    FACT #2: We are not finding the right words because we have not yet begun to motivate enough people to read, think, learn, discuss, and take action about global warming.

    FACT #3: Our future, ca 2050, quality of life is in grave jeopardy because we have not yet found the right words.

  2. Interesting to see when terms appeared in the law versus conversation. A few things:

    Water contamination came about as a concept in the 1850s and 60s, though the word “pollution” definitely wasn’t used then. No clue when that cropped up.

    Cost-benefit analysis has its origins in the epidemics around 1850 as well, as advocates tried to encourage the wealthy to contribute to cleaning up poor neighborhoods. It wasn’t formalized as a method, though (and given a name), until the 1930s when the Army Corps had to justify navigation projects by summing the cost of the project and comparing it to perceived economic benefits.

    Supposedly ecology has been around (to describe ecosystems) since the late 1800s/early 1900s. I’ve never seen it that early myself, though. (And would totally be interested in a citation if anyone else has one…)

    Lastly, I’m not entirely sure about the world wilderness, but Transcendentalists likely used it in the mid-late 1800s (does it count that Thoreau wrote about “wildness” in the context of preservation? — that was somewhere around 1860, not sure exactly).

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