Harnessing the Power of Information for the Next Generation of Environmental Law

Document Type



The most up-to-date version of this piece can be found in the Duke Law Scholarship


Despite the ubiquity of information, no one has proposed calling the present era the Knowledge Age. Knowledge depends not only on access to reliable information, but also on sound judgment regarding which information to access and how to situate that information in relation to the values and purposes that comprise the individuals or the social group's larger projects. This is certainly the case for wise and effective environmental governance. A regulator needs accurate information to understand the nature of a problem and the consequences of potential responses. Likewise, the regulated community needs information to decide how best to comply with adopted rules, and the public needs information in order to accept the credibility and legitimacy of the regulatory regime. But governance also requires judgment regarding how to manage information itself-how to structure burdens of proof in light of goals such as public safety or promotion of economic growth, how to balance the public's interest in disclosure against competing aims such as national security or the protection of trade secrets, whether to withhold information in the belief that it may actually be harmful to the recipient, and so on. This paper, written as a foreword for the Texas Law Review's symposium issue, Harnessing the Power of Information for the Next Generation of Environmental Law, provides a model to understand the role of information in environmental law-how it is generated, utilized, and disseminated within regulatory processes. Drawing on the diverse and significant insights of the symposium articles, the paper attempts both to make sense of the role of information in environmental protection and to highlight significant questions and concerns.What forms of discrimination are likely to be salient in the coming decade? This Essay flags a cluster of problems that roughly fall under the rubric of inclusive exclusions or discrimination by inclusion. Much contemporary discrimination theory and empirical work is concerned not simply with mapping the forces that keep people out of the labor market but also with identifying the forces that push them into hierarchical structures within workplaces and labor markets. Underwriting this effort is the notion that, while determining precisely what happens before and during the moment in which a prospective employee is excluded from an employment opportunity remains crucial to anti-discrimination theory and practice, significant employment discrimination problems can occur after a person is hired and becomes an employee. These problems transcend racial and sexual harassment and include a range of subtle institutional practices and micro interpersonal dynamics that create systemic advantages for some employees and disadvantages for others. We predict that the next generation of race discrimination scholarship will engage these after inclusion" workplace difficulties.

Date of Authorship for this Version

June 2008