Margot J. Pollans (Elisabeth Haub School of Law at Pace University) has posted Legalizing Inundation: How Law Produces Exposure And Undermines Democracy, New York University Environmental Law Journal (forthcoming 2027) on SSRN. Here is the abstract:
Bodily intrusion, from toxins, bullets, noise, and information, is constant and pervasive. Transcending traditional legal siloes, this Article explores this phenomenon of “inundation.” The legal system not only fails to prevent inundation, but also it regulates inundation in ways that erode community relations and public governance. This Article begins with a novel taxonomy of inundation law. Rather than adopting a preventioncentered framework that recognizes mutual dependence and responsibility, existing law relies on “shield” and “cleanup” regimes that individualize responsibility for avoiding harm and managing its aftermath. These frameworks simultaneously obscure the culpability of those responsible for producing inundations and overburden individuals, particularly marginalized groups, with managing risks over which they have little control. This Article argues that this inundation legal regime undermines citizenship. First, it overwhelms people with exposure that generates fear and anxiety, making people manipulable and open to fearbased othering narratives and promises of security at others’ expense. Second, the inundation legal regime primes people to take individual responsibility and to distrust public governance, while also generating risk-management work that commands attention, distracting people from political engagement and other meaningful life pursuits. Finally, inundation laws are hierarchical in multiple ways. They impose greater burdens on socially disadvantaged communities, and they reinforce hierarchy by stoking obsession with bodily “purity,” a primary building block for projects of racial and gender oppression. The Article calls for a shift in legal and scholarly focus: away from piecemeal regulatory fixes and toward the recognition that bodies are permeable, immutably so. Permeability generates mutual and collective rather than individual responsibility. Those responsible for inundation are perpetrating violence on a global scale—a violence that the abstract and disembodied language of modern regulatory law makes invisible and that modern inundation law makes perfectly legal.
Recommended!