Something Borrowed for Something Blue: Legal Transplants and the Evolution of Global Environmental Law

This Article addresses the evolution of legal rules to govern the global environment. It traces the borrowing of legal ideas from national law into international law, in particular the borrowing of emissions trading and the comprehensive approach into the Rio and Kyoto climate change treaties. The Article argues that such vertical legal borrowing is related to, yet importantly different from, the pervasive horizontal legal borrowing across national legal systems that has been much studied by comparative law scholars. The Article develops both positive and normative assessments of vertical legal borrowing, arguing that it is often suppressed but increasingly essential to the success of global environmental law. Yet vertical legal borrowing must be undertaken with care, adapting the borrowed national law concept to the very different institutional framework of international law. The Article suggests that the major flaw in the Kyoto Protocol- the omission of developing countries- derives from an attempt at vertical legal borrowing without such adaptation. More generally, the Article suggests that whether legal rules evolve towards efficiency depends on the institutions of lawmaking and legal education