Dilemmas of the Cheap Aesthetic

I've frequently taken aim at "expensive tastes" on this blog. It seems like the corollary of that critique would be praise for inexpensive tastes, or a cheap aesthetic. This may well be the cheapest music video ever made (American Princes, Never Grow Old):

Here's the band's (promoter's) description of the video on YouTube:

Take a moment and think back to the younger years. All you have is a pen, notebook paper, and an imagination. No distractions to interrupt you, just you and the music in your head. How would you envision your new favorite rock band? American Princes captures this innocent moment with their music video, Never Grow Old. It will effortlessly and entertainingly take you back to simplicity . . . . It's new, fresh, ingenious, and original.

The simulations here are not merely simple (unlike, say, Justice's graphics-dominated video for DVNO), but are quite a lot less resource-intensive than, say, real drums, guitars, stages, etc. Never Grow Old reminded me of Albert C. Lin's article Virtual Consumption: A Second Life for Earth (2008 BYU L. Rev. 47), which provides a creative response to the Malthusian dilemmas I was discussing yesterday.

Lin cautiously concludes that a shift from real to virtual consumption could relieve pressures on natural resources:

Whether virtual consumption will be better for the environment, or for society at large, remains to be determined. On the one hand, virtual worlds may serve merely as enablers of real consumption. If so, the environmental promise of virtual consumption may be only an illusion. On the other hand, virtual worlds may function as a bridge to a society less dependent on material consumption. Such an outcome would benefit the environment and finally provide a curb to the rising tide of consumption.

But Lin has some fascinating thoughts on whether engagement with a virtual world may lead individuals to care less and less about real ones:

Obviously, Second Life and other virtual worlds differ from Nozick's experience machine (and even more dystopic visions such as that found in The Matrix films) in various ways, not the least of which is that they provide opportunities to interact with other human beings. However, one's ability in Second Life to assume a selected persona and a chosen avatar, combined with the ability to have virtual experiences that simulate real ones, raises serious questions about the moral suitability of these activities.

Viewed in this light, the fact that many Internet users feel as strongly about their online communities as they do about their real communities is both impressive and troubling. Granted, virtual worlds offer far more excitement, with increasingly powerful graphic capabilities, than the video games of yesteryear. The growing attraction of virtual worlds nevertheless may be as much a commentary on the quality of life in the real world as a testament to the experiential value of virtual worlds. As more people establish presences in the virtual world, the danger is that these virtual world users will “tune out” the real world, give it less value, and view its problems as increasingly irrelevant. Technology has had a tendency to foster social isolation by privatizing how we get information, how we do things, and how we entertain ourselves; virtual worlds may well exacerbate that isolation.

Fortunately, the aesthetic valorization of the cheap (or ugly) may not be as dangerous as the romance of the virtual. Liking the cheap (be it real estate, food, or art) can be a training in satisfaction; virtual reality is more bivalent, both compensating for a world that falls short of expectations and subtly making those expectations grander.

Posted by Frank Pasquale at 07:47 PM | Comments (0) | TrackBack

On the Colloquy: Jurisdiction and Climate Change

This week, the Northwestern University Law Review Colloquy published a response by Professor Scott Dodson regarding the Supreme Court's decision in Bowles v. Russell. He responded to critiques by Professor Elizabeth Chamblee Burch, Mr. E. King Poor, and Professor Perry Dane and defended his position that the Court disrupted prior precedent in Bowles. To see all of the pieces in the series, click here.

Last week, Professor Howard M. Wasserman responded to Professor Dodson's Article In Search of Removal Jurisdiction, 102 Nw. U. L. Rev. 55 (2008). His Essay examines the connections between jurisdiction, merits, and procedure, when the connections come into play, and how to separate them out.

On February 11, Professor Robert L. Glicksman participated in the ongoing debate on climate change legislation. He discussed which federal agencies should be responsible for implementing climate change regulation, the proper measure of discretion that Congress should afford these various agencies, and whether the regulation should trump state and local initiatives. To see all pieces in the series, click here.

For more, go to the Colloquy archives page, and remember to check back each week for new content.

Posted by Northwestern University Law Review at 09:57 AM | Comments (0) | TrackBack

Tex-ternalities and the China/Europe Spectrum

I've recently come across these three facts about Texas:

1) About 60% of US executions occur in Texas.

2) About 20% of children in Texas do not have health insurance--almost twice the national average.

3) Texas produces more greenhouse gas emissions than California and New York combined.

When I first saw these figures, I thought that Texas may be burdening the US with some "reputational externalities" abroad, manifest in books like Vernon God Little. The judges who awarded it the Booker Prize called it a "coruscating black comedy reflecting our alarm but also our fascination with America."

Some economic theories predict that these externalities will eventually be internalized. For example, there are many stories about a European condo-buying boom in New York; I haven't seen as much on residential real estate purchases by overseas buyers in Texas. According to Anup Malani, “The value of a law [may] be judged [in part] by the extent to which it raises housing prices.” So perhaps more highly valued laws elsewhere in America will push up housing prices, comparatively enriching those property owners.

On the other hand, perhaps Texas's policies are a bid to flatter China by imitation. Pollution in places like Shenzhen is a big problem (and that's just the tip of the iceberg). Executions are common. And China's decisions about health care in the 1980s and 90s might warm many laissez-faire hearts: "From 1978 to 1999, the central government's share of national health care spending fell from 32 percent to 15 percent [and] the central government drastically reduced its ability and commitment to redistribute health care resources from wealthy areas to poor areas."

Looking at world trends, a modern-day Tocqueville might think that the US's future lay in political development of either a Chinese or EU variety. Texas appears to be a red state in more ways than one.

Posted by Frank Pasquale at 08:57 PM | Comments (3) | TrackBack

What I Want for Christmas (Sort of)

Popular Mechanics has a fun piece about a car company called Aptera. It looks cool and is made here in the U.S.A. In fact it is made up the road from me in Carlsbad, CA. The hybrd prototype will cost $30K according to the company. It can get a claimed 300 mpg. The available all electric gets, well it is not mpg, but has a 120 mile range. That one seems like the same problem all electrics had before: short range and need to plug in. Still the vehicle looks like fun. Apparently it handles well too. Why do I want it? Well honestly I love the idea that such a cool car is designed and built in the U.S. The price seems right too. If the company does well I hope some massive U.S. automaker buys them (making the Aptera people as rich as they may deserve to be) and regains some leadership in the car market. In addition, the company and the approach reminds me of the small, dedicated aerospace companies of California's past. They went on to greatness. Maybe these folks or others like them will enjoy that type of success too. So that is what I really want for Christmas and having the car is just a proxy for the idea. Then again if someone wanted to give me one, I wouldn't object.

Here's the video:

Posted by Deven Desai at 06:33 PM | Comments (1) | TrackBack

Cherry Pies, Candy Bars, and Chocolate Chip Cookies: The Nobel Peace Prize Concert

Al Gore and Rajendra Pachauri, the head of and representing the Intergovernmental Panel on Climate Change, accepted the Nobel Peace Prize for their work on climate change. Yes, it is an important issue. Here are Gore’s speech and Pauchari’s speech on behalf of the IPCC. Gore pulled out the stops and invoked Churchill and Hitler. The IPCC speech detailed many problems including one I recall from years ago when I took a class called the Water Planet at Berkeley. The professor had a few lectures on the science and then hammered water policy. This was around 1990 and I remember thinking his points about wars and conflicts turning on water policy were quite persuasive. Today they seem prescient. Gore's and others' calls for legislation and ways to address an event that will shape our future pose numerous fascinating and complex questions that require much thought. Maybe that is why I was distracted by the gala aspect of the Prize. I had always thought of the Nobel ceremony as a somber event when I read some of the speeches in high school. Apparently things are bit more festive than I realized.

First there is a banquet, “an event many would pay a fortune to attend.” (seriously right there at the home page) The banquet page details all the themes and history behind the dinner. As if that were not enough there is a big show that was almost thwarted until Kevin Spacey stepped in to cover for Tommy Lee Jones as co-host with Uma Thurman at the Nobel Peace Prize Concert. Yes, folks, the Nobel Peace Prize concert. The Web site looks more like an Academy Awards event than I expected. Alicia Keys, Annie Lennox, Kylie Minogue, Earth Wind & Fire, Melissa Etheridge, Morten Harket, KT Tunstall, Juanes, Junoon, Nick Davies (conductor) and the Norwegian Radio Orchestra perform. Wikipedia has a nice entry about the history of the concert which dates from 1994. Take a look there are some impressive names in there not to mention some Nobel Prize winners. (Sinead O’Connor singing in front of Arafat, Peres, and Rabin must have been surreal. Boyz II Men performed one year. The list is fascinating.)

Now although I do think that the issue is important I think that the committee erred. Maybe Earth Wind & Fire were a nod to the elements and the environment or maybe people miss that fat horn section (I do). Regardless the obvious choice should have been a reunion of Talking Heads and the song has to have been (Nothing But) Flowers. It was 1988 and environmental commentary with intelligent, witty satire flew. (Here are some choice lines but listen to the whole thing. "The highways and cars were sacrificed for agriculture ... We used to microwave, now we just eat nuts and berrries. This was a discount store now it's turned into a corn field"). Not to mention the world music aspect of the song seems to fit with the Nobel Prizes. The album is Naked (I also recommend Remain In Light arguably a masterpiece). You ask where is this song? As Talking Heads might say you got it.

image: Wikicommons

cross-posted at Madisonian

Posted by Deven Desai at 03:24 AM | Comments (1) | TrackBack

Law Talk: Linda Malone on Litigating Global Warming

In this episode we hear from my colleague Linda Malone, at William & Mary Law School. Linda is an expert on international law, national security law, and the legal issues surrounding global warming. In this episode Linda discusses new litigation strategies that are using domestic courts as a way of enforcing international norms on global warming, as well as forcing action by domestic regulators. Her remarks were originally delivered as the St. George Tucker Lecture at William & Mary, which is given each year to honor the scholarlly accomplishments of a senior member of the law faculty.

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by Nate Oman at 09:42 AM | Comments (0) | TrackBack

Why did the US try to Undermine EU Safety Regulation?

As a website relates, "Mark Schapiro's new book Exposed: The Toxic Chemistry of Everyday Products investigates how corporations intent on thwarting stricter environmental and health guidelines here in the U.S. are forced to meet new demands by the European Union." An excerpt from the book compares the U.S.'s oft-toothless Toxic Substances Control Act to the EU's scheme for Registration, Evaluation and Authorisation of Chemicals (REACH). Schapiro notes that "REACH amounts to a revolution in how chemicals are managed, and in how production decisions around the world will be made from now on."

As REACH was being crafted, the U.S. decided to intervene decisively:

[A]s REACH was being debated in the European Parliament from 2003 to 2006, the U.S. government and the nation's industries teamed up to undertake an unprecedented international lobbying effort to kill or radically weaken the proposal. The assault came from an assortment of government and industry offices.

A memo that circulated at the State Department's Bureau of European and Eurasian Affairs denounced REACH as too "costly, burdensome, and complex" for industry to follow. . . [A] Commerce Department brief warned, "hundreds of thousands of Americans could be thrown out of their jobs." U.S. Trade Representative Robert Zoellick submitted a protest to the World Trade Organization asserting that REACH amounted to a "non-tariff" barrier to foreign exporters.

Though REACH promises to become a world standard, the U.S. may soon see itself in the position that Larry Summers recommended for LDC's: "our nation's steady retreat from environmental leadership means it may soon become a dumping ground for chemicals deemed too hazardous by more progressive countries." Schapiro suggests that the bottom line will be an relative increase in European power and quality of life: "American consumers are more at risk than their European counterparts[;] the European Union is . . . gaining the upper hand in regulating the behavior of multinational corporations; and [the EU] is thus amassing more economic power."

Posted by Frank Pasquale at 12:05 PM | Comments (0) | TrackBack

Yoshida Battles the Pink Jellyfish

The WSJ has a great story on a jellyfish invasion in Japanese waters:

Fisherman Ryoichi Yoshida pulled in his nets before dawn one morning, hoping for lots of yellowtail and mackerel. But the fish were overwhelmed by a heaving mass of living pink slime. The creatures, called Nomura jellyfish, can measure six feet across and weigh up to about 450 pounds.

Fish poisoned by jellyfish tentacles die with their mouths agape. That mars their appearance and reduces their value by as much as 20%. "When their mouths are wide open, it means they've died going, 'I'm in pain! I'm in pain!' " explains Mr. Yoshida.

The jellyfish could lead to an international incident--either over Chinese industrialization, or global warming:

[A] computer model of ocean currents suggests the jellyfish are breeding off the Chinese coast near the mouth of the Yangtze River. One theory is that pollution, perhaps linked to industrialization in China, is helping create more algae in the sea. The algae are food for plankton, which is food for jellyfish. . . . [But the] dean of the Ocean University of China [says] "Floating jellyfish are mostly in the Sea of Japan....That's Japan and Korea's problem."

One fear among scientists is that the creatures are multiplying in a "jellyfish spiral." Shinichi Uye, a leading jellyfish researcher at Hiroshima University in western Japan, thinks overfishing off China has led to fewer plankton-eating fish, leaving more plankton for the jellyfish to suck up. This growing army of jellyfish then also eats fish eggs, resulting in even fewer fish.

If China is helping to generate giant pink jellyfish, it will be interesting to see if any international body can do anything to control the problem. On the other hand, the new popularity of "vanilla-and-jellyfish ice cream" shows that the industrious can turn even the most noxious pests into a blessing in disguise.

Photo Credit: Flaming Lips, Yoshimi Battles the Pink Robots.

Posted by Frank Pasquale at 08:57 PM | Comments (2) | TrackBack

Whom The SUV's Help

I was recently listening to a podcast of Peter Singer at the University of Chicago Law School. He recounted a story about a 2001 press conference with Ari Fleischer, where the President's spokesman was asked if the administration would ask Americans to "change lifestyles" in order to conserve. Here's the answer:

That's a big no. The President believes that it's an American way of life, and that it should be the goal of policy makers to protect the American way of life. The American way of life is a blessed one.

Now the blessings of our liberty are subsidizing some of the most repressive regimes on the planet:

[About] $700 billion a year are flowing to the world's oil-exporting countries [due to recent price rises]. Two of those nations -- Iran and Venezuela -- may be better able to defy the Bush administration because of swelling oil revenue. . . . .Russia, the world's No. 2 oil exporter . . . . is trying to reclaim former Soviet republics as part of its sphere of influence. Freed of the need to curry favor with foreign oil companies and Western bankers, Russia can resist what it views as American expansionism.

Might the great oil wealth redistribution lead to the end of knee-jerk libertarian defenses of SUV's? Or is there some Schumpeterian "creative destruction" story to be told here, whereby the short-run costs speed the development of transformational energy technologies? I'll believe the latter story when I see real venture capital money behind it.

Photo Credit: Hugo Chavez, Dictator of the Month.

Posted by Frank Pasquale at 01:12 PM | Comments (9) | TrackBack

Suing the EPA to Act

Several states including California and a block of states in the Northeast are preparing to sue the EPA to act. The issue is the EPA’s delay in granting waivers so that states can use their power under the Clean Air Act to regulate automobile emissions. California has been waiting two years for the waiver. The idea is to ensure that the agency acts, but it appears that the agency could rule that the state action is not authorized. As David Doniger, an attorney for the National Resources Defense Council, put it “The real issue is, will [the EPA’s administrator] block the states or let the states go forward?” In addition, a group of 10 states are issuing regulations regarding power plants under a Regional Greenhouse Gas Initiative. New York is part of that group. Its regulations are to take effect next year. That strategy helps wind and solar power producers and will make it harder for coal-based producers. The Times article noted that the largest investor-owned energy producer in New York backs the idea and does not operate coal plants in the state. In contrast the Independent Power Producers of New York, a trade group that includes coal-based power producers, opposes the state regulations. This quote from the group’s CEO is interesting for its use of fear and the idea that some other state would gain from the regulations.

“We don’t want to put more burden on the rate payers of New York, and the last thing I would think this governor wants to do is send the message that investment should go in other states,” said Gavin J. Donohue, the group’s chief executive. “You can build plants in other states and send the electricity back into New York.”

If one wanted to study a simple way to try and hit the people this quote offers a decent, albeit transparent, example. First claim that costs will go up for individuals. That may be true, but the long-term as opposed to short-term cost question is lost in this framing not to mention that these are elected officials who just might have accounted for the perception of near-term rate increases. Second, indicate that investment will flee. Sure, coal-based and other methods of power production that generate greenhouse gases may leave. Then again, those companies interested in areas favorable to other energy production may rush in and invest more. Furthermore, they will have to build new plants just to be able to offer their energy; that may require investment. Third, suggest that one’s business is impervious because there is always a market and others will take in the producers only to allow them to sell back to New York. This last point raises an issue of whether some states lack the ability, will, or interest to stop the coal producers and thus they will allow the energy producers to generate negative effects in any event. If so, then the argument seems to be let us produce in your state and at least get the investment benefit, because we will pollute elsewhere, further global warming, and still sell our energy so nyah (imagine a tongue sticking out here). It is unlikely that the last analysis is exactly what the group wanted to say, but it seems to be a possible interpretation.

Last, I am not an environmental law person so any thoughts about the issue from the regulation to the implications of suing the EPA to act to the negative externality issues in this context are appreciated.

Hat Tip: Slashdot

(Image Source: Wikicommons)

Posted by Deven Desai at 11:20 PM | Comments (1) | TrackBack

Charismatic Mini-Fauna

Anyone interested in the Endangered Species Act might enjoy reading D.T. Max's story on Squirrel Wars in England. The gray squirrel is rapidly displacing the red squirrel because it carries a virus--squirrelpox--to which it is immune (but which kills the reds in a gruesome manner). Given the virulence of squirrelpox, I'm sympathetic with a quarantine effort, but some members of the House of Lords believe something more is at stake:

Lady Saltoun of Abernethy, the 21st to hold that title in Scotland, [has] point[ed] out the inherent superiority of the red over the gray squirrel: “Red squirrels,” she said, “are rather like quiet, well-behaved people who do not make a nuisance or an exhibition of themselves or commit crimes and so do not get themselves into the papers in the vulgar way gray squirrels do.”

And who brought these vulgarians to England's green and pleasant land? The "first gray squirrels came to Britain to amuse the rich, probably in the early 19th century," having been imported from America. As Max quotes one Oxford squirrel authority, “I know of more than one patriotic Englishman who has been embittered against the whole American nation on account of the presence of their squirrels in his garden."

Posted by Frank Pasquale at 03:10 PM | Comments (0) | TrackBack

Saving the Earth, 24 Hours at a Time

The New Republic, a serious magazine for right thinking people not noted for its humor, has a very funny article up on their website that confirms all of your suspicions about the possibilities of combining Jack Bauer, Al Gore, environmentalist jokes, and a Simpson's writer It begins:

EPISODE 1: 12:00 AM - 1:00 AM

Int. CTU - day

JACK BAUER talks to JANIS GOLD.

JANIS GOLD
Our source tells us that the terrorists' plan is blow up Broward Dam. This would create mass flooding, cut power to the entire state, and destroy the habitat of the tidewater goby.

JACK BAUER
Dammit! Without that goby, what will our local heron population eat?

JANIS GOLD
Try not to think about that.

JACK BAUER
I can't help it! Every link in the food chain matters!

Jack punches his hand through a wall.

And so on. I cried during the Al Gore part...

Posted by Nate Oman at 10:02 AM | Comments (1) | TrackBack

Carbon Offsets, Contract, and Complicity

The Washington Post ran a front page story earlier this week on the wild and unregulated world of carbon offset markets. The basic idea is that one purchases some off set -- either in the form of technological development or contracts not to emit -- for one's own carbon emissions so that one's over all carbon footprint is zero. This is just the sort of environmentalism that makes my free-market-contracts-prof's heart go pitter patter. The regulators, however, are now snooping around. As The Post reports:

Critics say that offset sellers usually have good motives. But the market is confusing enough that, this month, the Federal Trade Commission said it would look into whether consumers are being adequately protected.

"It's just like the Wild West," said Frank O'Donnell of the group Clean Air Watch. "There are no controls, no standards."

Having grown-up in the West, I object to "Wild West" as a term of regulatory derision, but it strikes me that there is a deeper problem here, namely what exactly is it that a person is trying to get when they do a carbon offset.

Consider CarbonFund, a non-profit where one can make "donations" that are designed to offset one's carbon footprint. What are they actually providing, however? According to their website:

Carbonfund.org supports three types of carbon offset projects: renewable energy, energy efficiency and reforestation. While each is different, they all play an important role in the fight against climate change. The projects Carbonfund.org support meet the same high standards relied on by thousands of companies, organizations and governments to ensure quality environmental protection.

As an example of their work, they point toward "The Chicago Zero Energy Solar Homes Project . . . [which helped] to reduce the costs of living in homes for low-income families by employing energy efficient and solar energy technologies." As near as I can tell CarbonFund never claims to be offering an offset contract, only an opportunity for donations that are roughly calibrated to individual carbon emissions. At the end of the day, this strikes me as a fund-raising gimmick more than anything else. It may be a powerful gimmick but it is not quite the same thing as a real market in personal carbon emissions.

The Chicago Climate Exchange (CCX) strikes me as a different creature. For starters, it has a dot-com domain name rather than a dot-org domain name, which is a good sign. It bills itself as "North America's only and the world's first global marketplace for integrating voluntary legally binding emissions reductions with emissions trading and offsets for all six greenhouse gases." A cursory bit of web-browsing was unable to turn up the actual text of one of its contracts, but in contrast to CarbonFund this seems to be more than a fundraising gimmick. They are purporting to offer a real contract for carbon reduction. (The devil -- of course -- is in the details of the contract itself.)

I suspect that what most of the individuals who use these markets want to purchase is freedom from complicity in global warming. Some no doubt want to change the world and are trying to do their part, but the mathematical reality is that any individual action is largely irrelevant on this front. The world is really big and despite what your high-school civics teacher told you, you are really small. This basic fact is the single most powerful argument for government action. (Although government is not the only way of overcoming collective action problems.) On the other hand, while the purchase of a carbon offset may be irrelevant on consequentialist grounds, purchasing the absence of complicity in what many see as a great global evil is not without its appeal. And here is where the issue get's interesting.

The Sierra Club, for example, doesn't much care for carbon offsets, arguing that people ought to concentrate on changing their lifestyles instead. Now it may be that the Sierra Club's reticence is motivated by genuine skepticism about the value of carbon offsets, but I suspect that it isn't. Rather, it seems to me that they are committed to a particular view of how one becomes complicit in global warming and how one avoids such complicity. The underlying notion of complicity is essentially centered on the idea of virtue. Personal abstention is important not simply because it is more effective, but because it implicates one's personal virtue in a way that purchasing an offset does not. Lurking behind this attitude are ultimately ideas of virtue, sin, and redemption that are much older than debates over greenhouse gases and effective policy.

And here I wonder if perhaps CarbonFund and CCX aren't actually providing very different things at a metaethical level. The CCX strikes me as offering a hard-edged, contractual approach that CarbonFund does not. They purport to be selling concrete reductions in emissions. CarbonFund does not. Indeed, by "donating" (CarbonFund) rather than "buying" (CCX) something deeper may be happening than a mere shift in tax status. CCX seems to be based on the notion that complicity really is a commodity that can be purchased in the market. CarbonFund strikes me as more ambivalent. Indeed, they insist taht you should "reduce what you can, offset what you can't." Personal virtue is front and center, and the offset not only is a donation rather than a contract but is a mere adjunct to "real" environmental action. The message seems to be that you can't buy your way out of Hell, although you may be able to buy your way out of Limbo.

This may leave the FTC in a bit of a quandary. No doubt there are all sorts of issues of monitoring, reporting, standards, and consistency that are needed to make sense of what is or is not offsetting what. Maybe the FTC can help (although standards can come into existence without government). The deeper issue, however, is whether the FTC can get into the regulation of what really counts as complicity or its absence. I'm skpetical.

Posted by Nate Oman at 11:55 AM | Comments (5) | TrackBack

The Admin Law Game

There's a new kind of computer gaming being developed, and "fun" isn't exactly the point:

[Games] created by Bogost's development studio, Persuasive Games, invite us to be ruthlessly greedy, helplessly incompetent, and breathtakingly rude. The goal of Airport Security, for example, is to relieve infuriated passengers of prohibited items in accordance with continuously changing carry-on rules. In Bacteria Salad, players grow veggies for profit and try to avoid poisoning too many people. And in last year's Disaffected!, we assume the role of a Kinko's employee struggling to deliver print orders as lazy coworkers shuffle papers into the wrong stacks.

I wonder if they modeled the airport game on Dan's action figures? Less bleak scenarios are also in the works.

These innovations remind me of the "game-like" aspects of administrative law: how do you navigate a labyrinthine agency to advance your client's interests? The "game design" in Bacteria Salad has to include classic modalities in influencing human behavior: markets, common law, regulation, or norms. As Yochai Benkler notes, games themselves are also creating social relations: for the designer, "the interesting questions are, which approach will better foster creative autonomy, and create a more effective social network."

The recent Washington Post stories on Dick Cheney's influence on sub-cabinet level appointees also reminded me of "god mode" in games. You may think the rules of a given agency are set--and legally, they may well be. But the political aspect of administrative law means that an executive branch higher-up can get a lot done outside normal channels. Consider the case of Klamath river fish:

Law and science seemed to be on the side of the fish. Then the vice president stepped in. First Cheney looked for a way around the [Engdangered Species Act], aides said. Next he set in motion a process to challenge the science protecting the fish, according to a former Oregon congressman who lobbied for the farmers. Because of Cheney's intervention, the government reversed itself and let the water flow in time to save the 2002 growing season, declaring that there was no threat to the fish. What followed was the largest fish kill the West had ever seen, with tens of thousands of salmon rotting on the banks of the Klamath River.

The story of admin is often the story of how politics, law, and science collide. The unpredictability of these "rock, scissors, paper" conflicts makes the subject matter all the more game-like.

Posted by Frank Pasquale at 12:29 PM | Comments (0) | TrackBack

"The Largest NGO in the World is in DC"

So claims Paul Hawken, referring to the current administration's laissez-faire approach to environmental regulation. His new book suggests that thousands of smaller groups are going to have to take the government's place, offering small-scale solutions for sustainability. Hawken's remedy reminds me of the "new governance" theory that's been hot in admin circles for the past two decades. NG emphasizes flexible and fluid relationships between public and private bodies to develop pragmatic policy responses to intractable problems.

I find a lot to admire in this work, but a recent interview with corporate environmental evangelist Ray Anderson highlights some limits to the approach:

Mr. Anderson is . . . proud to say that as a member of an advisory council at Georgia Tech, he persuaded the institution to modify its mission statement to proclaim the goal of “working for a sustainable society.” But there is a lot that even business cannot accomplish on its own, he said. For example, he said, the tax code is “perverse,” in that it puts heavy taxes on good things, like income and capital, and leaves a lot of bad things, like energy use, relatively unscathed. And economists typically underestimate the true cost of doing business because they exclude “externalities,” like environmental damage from pollution.

Anderson's story of building a sustainable carpet manufacturer was a major highlight of the film The Corporation, and he makes a lot of sense here. As Carol Rose pointed out in The Several Futures of Property, some authoritative institution has to set some initial allocation of "rights to pollute," etc. And someone has to come up with an agreed way of measuring externalities, a notoriously difficult process. If, as Ed Glaeser proposes, "American and European carbon taxes [should] provide funding that could be used to reward poorer countries for cutting emissions," some government has to impose the tax.

Of course, the NG theorists realize these things. I just bring them up to chasten any optimism about "small-scale" solutions making the crucial contribution to solving environmental dilemmas. It's no wonder why the "average building in the U.S. uses roughly a third more energy than its German counterpart;" our "federal government has yet to establish universal efficiency standards for buildings."

Posted by Frank Pasquale at 02:37 PM | Comments (2) | TrackBack

Hypocrisy and Carbon Policy

Steve Bainbridge, writing about whether former VP Gore should take the so-called Gore Pledge, concludes:

[M]aybe the answer is not to demand that Hollywood elites cut their consumption, but simply to insist that they document their purchase of carbon off-sets before hectoring the rest of us?

As I've written before, I think that the hypocrisy claim is a weak argument against political innovation. I have particular doubts here: why should Gore's ability to speak on matters of public concern be contingent on his living a carbon-neutral life?

One argument is that the rich will work to adopt distributively unfair standards: Al Gore's lifestyle will not change no matter what the price of gas, and his preferences for a higher gas tax are therefore not to be taken seriously. This argument sounds quite a bit like that for reintroducing the draft, though the consequences of allowing Gore to speak seem significantly less exigent than sending troops off to war. It also sounds like a classic moral hazard argument: because Gore, and politicians, are "insured" against the full effects of their proposals, they behave (or try to persuade others to behave) in inefficient ways.

But political speech is not like political action, and it isn't at all like consumption of goods. First, and most significantly, there is a long constitutional tradition holding that political speech should receive special protections for both deontological and utilitarian reasons. (I’m not saying that anyone thinks that Gore should be censored by the government for speaking. The point is merely to recognize that the “hush” impulse is directed at speech that is constitutionally important). Second, I have doubts that individuals’ political speech is particularly susceptible to relatively minor cost fluctuations. This is an empirical intuition, so I could be wrong, but I bet that if you made 10,000 environmental activists eat their words, so to speak, only a few would really change their speech to make it less personally costly. If that is true, there seems to be little reason to require a behavioral change to precede speech, just as it seems ultimately foolish to require politicians to be personally pro-life before taking pro-life positions in public, or low-tax activists to be personally charitable before suggesting that the government should get out of the redistribution business and leave it to private parties. Public arguments should stand on public merits, not those of their originators.

Posted by Dave Hoffman at 11:06 AM | Comments (6) | TrackBack

A Big Day for Enviros

Hi everyone! I'm psyched to be able to blog here, and to start on what to me is a really great legal day.

So how about that Supreme Court? And its decision in the two Clean Air Act cases today? The blogosphere's been all over this already, but I have to say, as someone whose first Supreme Court amicus briefs (team-written with some very wonderful colleagues, I should say) were in these two cases, today was incredibly satisfying.[*] (Or, in more cas-speak: OMGWOW.)

One thing I've been trying to emphasize in my classes, though (perhaps to the frustration of my students) is that litigation is not the end all and be all. And these cases illustrate that. The Supreme Court's decision in the global warming case, for example, is merely a remand back to the EPA to consider the petitioners' request for a rulemaking--albeit one taking into account the Supreme Court's guidance in Mass v. EPA. The EPA, therefore, could conceivably still reach the same decision on remand, albeit with more legally defensible reasoning. The PSD (Prevention of Significant Deterioration) case involving Duke Energy also involves a remand, and allows the lower court, on remand, to consider whether EPA's allegedly inconsistent positions on this issue is "retroactively targeting twenty years of accepted practice."

My anticipatory frustration is that although what happens next is as much a part of the whole story as the Supreme Court proceedings, there will be somewhat less press coverage of those later administrative (and political) proceedings. This is not to blame the press, really. I mean, it's reflective of legal teaching, even, where the focus is more on the individual court "cases," and less on the overall outcome (regardless of where the outcome "arises"). Hell, I see this in administrative law, where students are a lot more excited about reading current individual cases, than reading draft rulemakings and the comments made about them.

So I guess this is just a rambly way of getting to a question: how does one effectively "teach" the interaction between individual case decisions, administrative decisions, and broader societal politics? I don't want to make my classes into any sort of poli sci/public administration class, and certainly couldn't do effectively even if I wanted to. Yet I also believe that if we're training students to advocate as effectively as possible for their clients, then we as educators should give them practice in thinking beyond strategizing about individual cases.

[*] A short recap: In Massachusetts v. EPA, the Supreme Court held that the EPA did have the authority to regulate greenhouse gases, and required it to re-review the plaintiffs' request for a rulemaking. According to the Supreme Court, "Under the Act's clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do." And in Environmental Defense Fund v. Duke Energy, the Supreme Court upheld the EPA's regulations requiring permits for changes in power plants that lead to an annual increase in emissions, rejecting Duke Energy's argument that permits can only be required when the changes lead to an increase in the hourly rate of emissions.

Posted by Steph Tai at 11:16 PM | Comments (6) | TrackBack