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Towards a Holistic Vision of Law and Geography?
Hari M. Osofsky*
This chapter explores how U.S. law and geography scholarship could bring together
divergent strands in the existing literature to create a more holistic approach to this
interdisciplinary intersection. It focuses in particular on the separation between the scholarship
that draws from the critical human geography literature and other law and geography
scholarship, considering both how that divide has evolved and how future work might address it
(Foucault 1980; Soja 1989; Foucault 1986; Feldman 2000; Osofsky 2007). Although work
drawing from critical human geography often dominates public descriptions of law and
geography, other well-developed streams law and geography scholarship have blossomed in
parallel to that discourse. In particular, scholarship focused on environmental and land use
issues and on applying GIS to legal questions varies in the extent to which it draws from critical
human geography. For simplicity, this chapter refers to the work drawing from the critical
human geography as “critical” throughout, while recognizing that other work can also be
“critical” without drawing from critical human geography.
Despite the diversity in the law and geography scholarly literature, which could be a
source for rich interchange, these different streams have limited interaction with one another and
*
Associate Professor, University of Minnesota Law School; Interim Director, Consortium on
Law and Values in Health, Environment & the Life Sciences and Joint Degree Program in Law,
Health & the Life Sciences; Affiliated Faculty, Geography & Conservation Biology; Fellow,
Institute on the Environment. This chapter was inspired by research and writing that I did as part
of my comprehensive exams in geography at the University of Oregon; I would like to thank my
advisors there—Alexander Murphy, Susan Hardwick, and Andrew Marcus—for their feedback
on this idea and draft. I also greatly appreciate the helpful feedback from the other authors in
this book who participated in a spring 2012 workshop at Buffalo University. As always, I am
grateful for the love, support, and patience of Josh, Oz, and Scarlet Gitelson. This chapter is
dedicated to the memory of Keith Aoki, who introduced me to geography.
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attempts to describe the interdisciplinary intersection tend not to capture both types of work.
Many of the anthologies on law and geography have a critical orientation, and work in each
stream tends not to reference work outside of that stream. This divergence provides a barrier at
times to a comprehensive understanding of how the intertwining of these two disciplines can
bring new insights and can result in experiences of marginalization.
This chapter celebrates the contributions that the growth of law and geography in the last
thirty years has brought, analyzes the streams that have developed in the literature in this growth
period, and considers possibilities for a more synthetic vision of law and geography. Section 1
considers the key elements and primary areas of focus in the emergence of the law and
geography intersection and in its rapid growth period over the last thirty years. After a brief
consideration of early law and geography work, it focuses on three primary streams within the
modern scholarship: environmental/land use, critical, and GIS. It discusses some of the major
scholarly developments in those three streams and beyond, and considers commonalities and
divisions in how these streams conceptualize the interdisciplinary intersection.
Section 2 compares the law and geography literature produced by geographers with that
produced by legal scholars, with an emphasis on variations between scholarship drawing from
critical human geography and other scholarship. It argues that especially in the critical law and
geography scholarship, geographers focus more on materiality while legal scholars provide more
doctrinal analysis.
Section 3 concludes by considering how the law and geography scholarship might build
from this base to create a more inclusive model for future interdisciplinary interaction in this
area. It proposes future scholarly projects that provide a more comprehensive view of the field
and that grapple, in particular, with the intersection of theory, materiality, and doctrinal analysis.
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It contends that additional synthetic work could help present law and geography more clearly as
an important interdisciplinary intersection to scholars outside of the current core group.
1. Key Elements and Areas of Focus in the Development of Law and Geography
Interdisciplinary law and geography work has taken place for almost a century, but has
seen major growth over the last thirty years. This section argues that the attack on geography in
the United States likely harmed earlier growth of a substantial law and geography intersection,
and that the development of humanist and critical human geography, the environmental
movement, and GIS technology fueled the acceleration of the balkanized modern law and
geography scholarship.
It traces the major streams of law and geography scholarship and
considers their synergies and divergences.
In the first half of the twentieth century, law dean John Wigmore compared world legal
systems (1928; 1929), international relations scholar Hans Weigert explored geography and
international law (1942), and geographer Gilbert White began his series of publications
addressing law and natural hazards (1945). The sporadic publication of law and geography work
continued into the second half of the twentieth century, with a substantial growth in scholarship
beginning in the 1980s and accelerating through the present (F. Murphy 1958; Platt 1976). The
law and geography scholarship of the 1980s focused on environmental and land use concerns
(Matthews 1984, Wescoat 1984), judges and cities (Clark 1985), and questions of governmental
structure (Clark and Dear 1984, Osofsky 2007; Osofsky and Murphy).
This limited early development took place against a backdrop of attacks on geography
departments in the United States. As I have analyzed in depth in earlier work (Osofsky 2007),
beginning with Harvard in 1948, geography departments were eliminated in many elite
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universities around the United States (Fink 1979; A. Murphy 2007; Osofsky 2007; Smith 1987).
But even before this purge, many of these departments were marginalized, likely due to a
combination of the demise of environmental determinism and other intellectual choices of
departments, geography’s efforts to cross-cut the physical and social sciences at a time of
departmental balkanization, modernism’s privileging of time over space, and place-specific
factors (Fink 1979; A. Murphy 2007; Osofsky 2007; Smith 1987). This marginalization and
elimination may explain why some of the interdisciplinary projects involving law and the social
sciences, such as the New Haven School at Yale, did not include geography (Osofsky 2007).
Although law and geography is still an underdeveloped intersection as compared to law
and economics or law and political science, interdisciplinary work in this area has grown rapidly
over the last thirty years. This growth, however, has not been uniformly distributed. Rather, it
has been grouped in largely separate substantive and methodological areas, with
environmental/land use work and critically-oriented scholarship being most dominant and a more
limited set of work drawing from GIS technology. The rest of this section examines that
development with full acknowledgment of a grouping dilemma: environmental/land use is a
substantive grouping; “critical” could be viewed as a substantive, methodological, or ideological
grouping; and GIS is a methodological grouping. Moreover, all three categories have some
overlap. However, I choose to focus on these categories because they provide a relatively clear
way to delineate important scholarly subdivisions.
Of these streams, the critical law and geography literature of the last twenty years
(discussed in additional depth below) often gets more attention. It dominates law and geography
anthologies and critical geographers have played a lead public role in, for example, establishing a
Legal Geography collaborative research network with the Law and Society Association. Despite
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that greater attention, though, the first acceleration in law and geography scholarship came in the
1980s from those interested in environmental and land use issues and so this section turns to it
first. This initial growth in environmental/land use law and geography scholarship followed a
period of massive development in federal environmental law and state environmental and land
use law in the United States (Fiorino 2006). This stream of scholarship has flourished since,
aided by the increase of people interested in these issues in geography departments and in law
departments, many of whom also bring other disciplines such as ecology into their work.
Environmentally-oriented law and geography scholarship largely focuses on relationships
among physical and social spatial arrangements and law, with a sub-group of pieces on physical,
social, and legal scale. Substantively, topics range from land use to water law to biodiversity to
climate change.
Although some of these scholars draw from critical human geography
scholarship in their work, many of them focus on intersecting physical and social spatial
dynamics with little or no reference to critical geography or legal scholarship (Braverman 2009;
Thompson et al., eds. 1997; Platt 1996; Auer 1998; Atkins et al. 2006; Bauer 2005; 2004; Harm
Benson 2009; 2010a; 2010b; Blomley 2008; Cinderby and Forrester 2005; Matthews et al. 2001;
Matthews and Pease 2006; Osofsky 2011; 2009; 2008; 2005; Ruhl 2010; 1999; Salkin 2005;
Verchick 1999; 2001; Flannery 2003).
At the 2010 and 2011 Association of American
Geographer meetings, multiple panels including law professors, geography professors, and
geography graduate students have focused on law, geography, and environmental concerns,
which suggests the potential for continued growth in this category of law and geography
scholarship (Association of American Geographers 2011a; 2011b; 2011c; 2010a; 2010b; 2010c).
Parallel to this environmental/land-use stream, a critical stream of legal geography
scholarship developed significantly on both the geography and law sides in the early to mid-
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1990s, a few years later than the first stream began its period of growth. Key works from this
initial period include geographer Nicholas Blomley’s 1994 book, Law, Space and the
Geographies of Power; Richard Ford’s 1994 article, The Boundaries of Race: Political
Geography in Legal Analysis; a 1996 Stanford Law Review symposium spearheaded by law
professor Richard Ford on Surveying Law and Borders; and David Delaney’s 1998 book Race,
Place, and the Law, 1836-1948. Since then, there has been an explosion of critical legal
geography scholarship from both legal and geography scholars, often drawing from this earlier
work and Foucault’s relatively brief commentary on the value of space (Delaney 2010; Mitchell
2003; Aoki 2000; Schiff Berman 2002; Blandy and Sibley 2010; Blomley 2007; 2003; 2005;
2004; Butler 2009; Delaney 1993; 2001; 2004; Erbsen 2011; Thompson Ford 1997; Ford 1999;
Forest 2004; Howe 2008; Levi 2009; Martin et al. 2010; Oh 2004; White 2002).
As noted above, critical perspectives, relying upon both the critical geography and critical
legal literature, often have dominated descriptions of law and geography in this growth period.
For example, in The Legal Geographies Reader, one of two broad edited volumes on law and
geography published in the early 2000s that covers a range of substantive areas, a preface by
Delaney, Ford, and Blomley introduce the rest of the book by saying : “What follows then is a
set of provocative explorations into the intersections of meaning and world, power and
experience, imaginary and positivity brought together under the rubric of Law and Geography,”
(2001, xxi; Taylor, ed., 2006). The other broad edited volume has similarly diverse substantive
coverage paired with a critical orientation (Holder and Harrison, eds., 2003). This dominance of
critical legal geography in representations of the law and geography intersection at times has
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resulted in a feeling of marginalization among other legal geographers who do not feel as though
their work is fully included or valued in these accounts.1
In addition to these two primary streams, new developments in GIS technology and
broader accessibility to it have provided an avenue for spatialization of the way in which law
interacts with physical and social geography, which is reflected in the work of both geography
and legal scholars. Scholars have used GIS as a tool in legal analysis and considered how law
should interact with GIS in numerous substantive contexts, such as redistricting and
desegregation (Eagles et al. 1999; Forest 2004; Institute on Race and Poverty 2009), criminal law
creation and enforcement (Leipnik and Albert, eds. 2003; Greek 2002; Grubesic and Murray
2010), and environmental regulation (Cinderby and Forrester 2005; Matthews et al. 2001;
Matthews and Pease 2006; Osofsky 2009; Salkin 2005; Flannery 2003).
Like the
environmental/land use law and geography scholarship, the GIS scholarship varies in the extent
to which it draws from the critical law and geography literatures.
Finally, some law and geography scholarship has emerged which does not fit neatly into
these three overlapping primary categories, but reflects a recognition of the intertwining of legal
and geographic concerns. This scholarship addresses a wide range of substantive topics, but
particularly property arrangements and geopolitics, and varies in how much it draws from critical
law and geography scholarship (Flemsaeter 2009; Forman 2009; Forman and Kedar 2004; A.
Murphy 2001).
What all of these streams of scholarship have in common is a focus on the ways in which
spatial dynamics and ties to place both constitute and are constituted by law. Some of this work,
1
I have been told stories of marginalization and exclusion by non-critical legal geographers that
I omit the details of from this document out of respect for confidentiality.
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especially in the environmental/land use and GIS streams, explores physical spatial dynamics.
All of these streams of scholarship consider human spatial dynamics, and could broadly be
viewed as part of interdisciplinary law and society scholarship. Much of this work, both critical
and non-critical, considers the operation of power at this interface, but the critical scholarship
focuses more on the relationship of that power with spatial inequality, at times drawing from
Marxism.
2. Comparison of Geographic and Legal “Law and Geography” Scholarship
Throughout the last thirty years, during this growth period in interdisciplinary
interchange, both geography and law professors have been doing work that engages this
interdisciplinary intersection. This scholarship often displays at least some explicit knowledge
of both disciplines. But at times, especially on the law side, it uses some words of the other
discipline without grounding it in the relevant scholarly literature of the other discipline; for
example, some legal scholarship written by interdisciplinary law and political science scholars
uses geographic language and concepts without drawing from geography scholarship directly
(Raustiala 2005).
This section compares law and geography scholarship produced by legal and geography
scholars in order to further understand the ways in which primary orientation in one of the
disciplines has impacted the development of the different streams of law and geography
scholarship in the United States. It argues that the core law and geography scholarship emerging
from the two disciplines is more similar than different; scholars have some fluency in the
relevant literature in both disciplines and consider the influence of geography on law or law on
geography, at times intertwining them.
However, especially in critical legal geography,
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geographers tend to focus more on spatiality and materiality while legal scholars tend to provide
more doctrinal analysis.
When critical geographers talk about law, they tend to focus more on spatialization and
connecting law to materiality than on doctrinal analysis that dissects the language of cases,
statutes, and regulation. Certainly, there are critical geographers who provide in-depth case or
statutory analysis, but many of the dominant critical geographers tend not to do so in some of
their most significant work (Forest 2004; Blomley 2004; 2007; Delaney 1993), as exemplified by
books written by leading critical legal geographers Nicholas Blomley and David Delaney.
Blomley’s 1994 Law, Space and the Geographies of Power contains extensive theoretical
analysis, detailed case studies that focus in depth on the interaction between law and the social
context and on maps that illustrate its spatial arguments, but less on statutory or case analysis.
Delaney’s 2010 The Spatial, the Legal and the Pragmatics of World-Making: Nomospheric
Investigations distinguishes its approach early on from that of legal scholar Robert Cover (who
did not profess to do law and geography) by criticizing its lack of grounding in materiality; in the
chapters that follow, Delaney provides such a grounding as he delves insightfully into the
material and social context of law, but provides minimal doctrinal case or statutory analysis.
Critically-oriented law professors also interrogate spatial and material conditions, but
they tend to do so in less depth than the geographers and include substantially more doctrinal
analysis. For example, Richard Ford’s Geography and Sovereignty: Jurisdictional Formation
and Racial Segregation provides detailed discussion of cases to ground a theoretical argument
grounded in geography, legal, and democracy theory (1997).
Keith Aoki’s (Intellectual)
Property and Sovereignty: Notes Toward a Cultural Geography of Authorship, which inspired
my interest in the field, interweaves critical geography theory with legal theory, history, and
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doctrinal analysis (2000). Reginald Oh’s Re-Mapping Equal Protection Jurisprudence: A Legal
Geography of Race and Affirmative Action uses an initial framing in critical geography to inform
the rest of the papers analysis of legal cases (2004).
However, this differentiation between legal scholars and geographers is much less
pronounced in the environmental and GIS literature. Geographer Olen Matthews, who has been
a pioneer in both environmental law and geography and in using GIS in legal analysis, often
includes rich analysis of legal provisions or cases in his scholarship. For instance, his coauthored piece with geographer Michael Pease, The Commerce Clause, Interstate Compacts, and
Marketing Water Across State Boundaries (2006), contains both spatial context and extensive
legal analysis of both the Commerce Clause of the U.S. Constitution and the Rio Grande
Compact. Geographer Carl Bauer’s scholarship on Chilean water markets similarly contains
comparative geographical analysis of international debates over water policy grounded in legal
and empirical exploration of Chile’s water law that engages its provisions and specific elements
of reform proposals (2004; 2005). Geographer Melinda Harm Benson (who has a J.D. rather than
geography degree but teaches in a geography department and publishes largely in geography and
environmental journals) includes both detailed geographic context and statutory analysis in her
work on adaptive management in the context of oil and gas development (2009; 2010). On the
law side, J.B. Ruhl, who has both a J.D. and a Ph.D. in geography, has written numerous articles
which interconnect geography, ecology, and legal theory with detailed studies of statutes,
regulations, and cases (1999; 2010).
Rob Verchick and I have both used critical geography
theory, with my work drawing from physical geography as well, to ground in-depth analysis of
particular environmental laws and cases (Blomley 2008; Osofsky 2011; 2009; 2008; 2005;
Verchick 1999; 2001).
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These patterns suggest that scholarship’s positionality in one of the streams discussed in
the previous section impacts its methodological approach as much as a scholar’s primary
disciplinary orientation.
Both legal scholars and geographers produce work that addresses
spatial and material conditions and that provides doctrinal legal analysis. However, geographers
with a critical orientation tend to lean more heavily in the spatial/material direction with more
limited focus on legal doctrine, and those with a primary orientation in law or at least some legal
training tend to consider caselaw in more depth.
3. The Next Generation of Law and Geography Scholarship
These differences among the streams; between some of the work by legal versus
geography scholars; and between critical and non-critical scholarship more broadly pose
challenges for the coherence and richness of the next generation of this scholarship: How should
law and geography scholarship be defined? Is there value to a holistic vision of law and
geography or should different streams or methodological approaches be treated separately?
If
the former, what would a holistic vision look like and how would it account for the abovedescribed differences? Regardless of how the field is described, how can its presentation be
sufficiently inclusive to avoid some who self-identify as law and geography feeling as though
their work is not valued as part of the interdisciplinary developments? This final section makes
two suggestions for ways in which interdisciplinary law and geography efforts might begin to
address these challenges.
First, and most fundamentally, a more comprehensive understanding of law and
geography scholarship is needed both conceptually and to address inclusion concerns. If the
various streams of this scholarship are engaged in quite different, though sometimes intertwined,
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analysis, a comprehensive understanding of legal geography needs encompass this diversity and
that of the two disciplines. One starting place might be an in-depth consideration of spatiality and
law that engages critical spatial analysis, GIS, physical organization of space, etc. across several
substantive areas. Such an approach would bridge the divides in the existing scholarship and
help to frame a more holistic vision of law and geography’s contribution.
In so doing, such an analysis could highlight not only how the pieces form a coherent
whole, but also pathways for new inquiry.
Holistic approaches need not always be
comprehensive, but rather might explore specific theories in depth in a way that illuminates the
panoply of law and geography analysis. One could consider, for example, how the spatial and
scalar questions in physical geography compare to those in human geography and how these
approaches might interact with law.
In the process, such an inquiry could illustrate the
simultaneous pathways for critical and non-critical analysis of the same subject. For instance,
one could compare Nathan Sayre’s exploration of scale in geography and ecology, which has a
very physical focus, with Kevin Cox’s socially-oriented network approach to scale. I have
drawn from both of these scholars’ work in my previous analysis of environmental legal
questions (Osofsky 2007; 2009). One could show how each of their theories of scale could be
applied to a particular problem, like climate change mitigation in a particular place, to examine
how different theories of scale might play out in a regulatory approach (the analysis not drawing
from critical scholarship). Then, one could consider how power and inequality does and should
influence choices among regulatory approaches (the analysis drawing from critical scholarship).
This example is, of course, only one possible way in which one could produce more
inclusive, synthetic scholarship—and one tailored to my particular conceptual and substantive
interests. The overall point is that whatever one’s conceptual and substantive concerns, an
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analysis which acknowledges the broader inquiry of law and geography and how one’s particular
slice of it fits into that broader inquiry helps to provide a more cohesive vision of the field. I also
think there is value in producing more comprehensive assessments of law and geography that
include all of its strands while acknowledging the ways in which they vary and serve different
purposes.
Second, and perhaps as part of the first project, a more explicit engagement should occur
of the intersection of theory, materiality, and doctrinal legal analysis. In the critical legal
geography scholarship, in particular, more commentary and co-authoring across the two
disciplines could bring the strengths of each discipline’s analysis more fully to the other given
the divides described above. But acknowledging the value of these types of analysis and how
they might be deployed could bring insight across all of the streams.
Divisions in scholarship can result in clusters of self-referential thinking. At times,
commentary on particular streams within the law and geography scholarship, as happens in all
areas of specific inquiry, tends to center around scholars who share the same basic orientation
(Association of American Geographers 2011d). Such interchanges among scholars who share
methodological and substantive orientations are important because they understand the nuances
of one another’s work. But broadening these groupings in both interchange and collaborative
writing can also bring insights into the methodological and substantive areas that those steeped in
them might not see. Efforts at this broadening have already begun, both in the sessions being
created at meetings and in new research initiatives, but more is still needed.
With respect to the intersection of theory, materiality, and doctrine, the existing
scholarship often is not very explicit about why it chooses the emphasis that it does. It may
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indicate the value of materiality, as Delaney’s Nomospheric Investigation does, or explain why it
focuses on particular cases, as much of the more doctrinally-oriented law and geography
scholarship does, but the question of how this materiality and doctrinal analysis fit together
remains underexplored in the literature.
Especially because critical law and geography
scholarship by geographers and legal scholars varies in its orientation, more engagement of how
these three pieces fit together and different strategies for their deployment would help to clarify
and, as appropriate, bridge the current divides.
The proposals presented in this section are merely two examples of how more
comprehensive approaches to law and geography might proceed. Many other pathways are
available. The key point of presenting these examples is to highlight ways in which we might
move towards a more comprehensive and synthetic vision of this burgeoning interdisciplinary
intersection (Osofsky and Murphy; forthcoming; Osofsky; forthcoming). Such a vision need not
paper over legitimate divergence or disagreement, but rather should demonstrate the many ways
in which combining legal and geographic analysis can bring new insights. The process of
forming such a vision may also reveal synergies that the current divisions in the scholarship
limit.
Regardless of how it is framed, the current pace of law and geography scholarship makes
such a project imperative. Increasingly, new scholars, often with little training in one of the
disciplines, come upon the growing body of law and geography work and want to draw from it
and/or build upon it. One of the roles that I increasingly play on the law side is helping legal
scholars think about how they might bring one stream or another into their analysis. More
comprehensive mapping of this interdisciplinary intersection would provide helpful guidance to
such scholars while providing new interconnections among the existing group.
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In addition, such a synthesis might help to situate law and geography more clearly within
scholarship that brings together law with other disciplines. Great interest exists among both
legal and geography scholars in the power of this intersection. I am always struck by how many
people show up to broad sessions on law and geography at major meetings in both fields; these
sessions often end up overflowing their designated rooms. Providing a clearer analysis of how
the contours of this field diverge, converge, and form a whole may assist the process of
continuing to establish law and geography as a major interdisciplinary area. Law and economics
and law and political science, in particular, have useful examples of such synthetic work
(Hathaway and Koh 2005). The existing anthologies and this one serve as one important way of
illuminating the contours of law and geography, but more work that synthesizes the divergent
streams in this literature is needed.
In the final analysis, this chapter most fundamentally seeks to value what has come so far
and consider how law and geography might build on this impressive base. Each of the streams in
the literature provides important insights. The thoughtful anthologies and monographs that have
been produced provide important maps of pathways within the disciplines. This chapter aims to
take stock of those maps and suggest new frontiers for synthetic analysis as this interdisciplinary
area continues to grow and mature.
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