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Abstract:
In the short time following its release, Bjorn Lomborg's book, 'The Skeptical Environmentalist', has proven to be a lightning rod for controversy and polarized reaction. The work has attracted downright fawning reviews in The Economist, The New York Times, and The Washington Post while simultaneously garnering absolute scorn from such ordinarily staid publications as Science, Nature, and Scientific American. To this author's knowledge, however, no academic journal yet has published a sustained analysis of the work and its implications for environmental science, law, and policy. This review essay attempts to fill that niche by undertaking a thorough assessment of Lomborg's argument, his evidence, and his significance to the environment-development discussion. Part I provides a critical review of Lomborg's claim that available scientific research undermines the 'Litany' of fears and concerns espoused by advocates of environmental protection. Part II examines Lomborg's argument that environmental policy, risk regulation, and other subjects of social decision making are best addressed through an exclusive and narrowly defined use of cost-benefit analysis. Some thoughts on less technocratic forms of cost-benefit analysis conclude the essay.

Environmental law, environmental science, cost-benefit analysis, risk regulation, climate change, global warming

Abstract:
In two previous articles, we hypothesize that, because consumers are subject to predictable cognitive processes that depart from rational utility maximization, manufacturers have the opportunity and incentive to manipulate consumer perceptions of product risks. We suggest in those earlier articles that enterprise liability might offer the most efficient products liability regime in response to the problem of market manipulation. This work extends the analysis by focusing more particularly on the extent to which enterprise liability can combat manufacturer exploitation of consumer cognitive processes. It does so by responding to critiques recently offered by Professors Jeffrey Rachlinski and James Henderson in their article, "Product-Related Risk and Cognitive Biases: The Shortcomings of Enterprise Liability." Those authors argue that we overstate the extent of market manipulation and underestimate the ability of existing laws to identify and redress manipulative conduct. In addition, they argue that, even if enterprise liability does offer the best theoretical response to market manipulation, it offers little hope of practical results due to certain insurmountable difficulties in implementation. Finally, they contend that enterprise liability might actually backfire if adopted, ultimately exacerbating the problem of market manipulation by enabling product manufacturers who oversell safety through fear-based marketing appeals. We respond to each of these critiques and conclude that the case for enterprise liability remains remarkably strong.

Torts, Products Liability, Behavioral Law and Economics

Abstract:
This Article utilizes recent controversy over Coca-Cola's alleged depletion of groundwater resources in India as a vehicle for exploring competing conceptions of global environmental governance and the role of private actors within them. Initially, it uses the Coca-Cola groundwater situation to identify core substantive and procedural meanings that lurk within the otherwise ingeniously ambiguous concept of sustainable development. Through this exercise, it is shown that - when properly understood - the sustainable development paradigm stands in considerable tension with the premises of market liberalism that drive such political and economic trends as global market integration; privatization and commodification of water and other natural resources; and cost-benefit review of environmental, health, and safety regulations. By clarifying this and other points of normative and empirical disagreement between sustainable development and market liberalism, this Article aims to provide an impetus and an outline for more searching inspection of both frameworks.

In addition, this Article also seeks to describe, and to a lesser extent defend, a growing effort among proponents of sustainable development to adapt their sustainability goals to the framework of market liberalism itself. Specifically, by promoting various methods of downstreaming information regarding social and environmental impacts of production to individuals acting in market capacities, these proponents hope to inspire governance mechanisms that better resonate with the market-liberal grundnormen of consumer sovereignty and shareholder supremacy. Again using the Coca-Cola groundwater situation as an example, this Article speculates that promotion of conscientious consumption and socially responsible investment in this manner ultimately may prove more significant than any number of attempts to refine the conceptual meaning of sustainability. Although handicapped in obvious ways by their dependence on altruistic economic gestures to overcome dramatic collective action problems, these campaigns to encourage publicly oriented market behavior do have the great virtue of avoiding head-on confrontation between the competing theoretical conceptions of sustainable development and market liberalism - a confrontation that observers increasingly seem to suspect would favor market liberalism.

sustainable development, cost-benefit analysis, environment; trade, privatization, deregulation

Abstract:
In 1997, the American Law Institute promulgated the Restatement (Third) of Torts: Products Liability, an ambitious and important project that decisively rejected the consumer expectations doctrine in favor of a risk-utility test for product design defect claims. In the few years following promulgation of the Third Restatement, however, several courts have issued opinions expressing strong judicial allegiance to the consumer expectations doctrine. Indeed, at times they have appeared deeply suspicious of the ALI Restatement project and its recommendation to abandon consumer expectations as an independent test for product design defectiveness. This article examines the disjunction between rhetoric and reality in post-Third Restatement products liability decisions. It aims to demonstrate, first, that the doctrinal framework established by the Third Restatement is in fact an accurate representation of design defectiveness litigation despite the apparent persistence of the consumer expectations test. Second, this article seeks to explore whether scholars nevertheless can and should articulate a more significant, conceptually independent role for the consumer expectations test, given that several courts appear determined to retain the test as part of their products liability jurisprudence.

Toward that end, this article explores several possible substantive foundations that might be laid for the consumer expectations test. Initially, it locates several points along the tradeoff spectrum between descriptive attractiveness and theoretical tractability, none of which provide a wholly satisfactory response to the challenge of giving content to the consumer expectations doctrine. More promising findings, however, emerge from cognitive and social psychology, behavioral economics, and other social science investigations of human behavior and decision-making. In particular, researchers from those fields have uncovered a wealth of knowledge in recent years concerning the manner in which individuals perceive and process information regarding health and safety dangers. As it turns out, lay individuals frequently comprehend such risks in ways that depart systematically from the approaches that characterize expert decision-making. Although such departures sometimes result from undesirable factual or cognitive errors on the part of individuals, a substantial remaining core of lay risk perception cannot easily be dismissed as irrational or otherwise lacking foundation. This article therefore argues that the consumer expectations test should be redirected toward these important cognitive and behavioral phenomena that are not as readily subsumed within the more analytically rigid risk-utility test. In this manner, the doctrine that refuses to die may yet find a purpose, nearly forty years after its accidental birth.

Abstract:
This report reflects the combined efforts of one subgroup of an assemblage of distinguished scholars in law, business, economics, psychology, and neuroscience who gathered for a week in Berlin in 2004 as part of the 94th Dahlem Workshop on Heuristics and the Law. This subgroup was moderated by Robert Frank (Cornell University), and included Peter Ayton (City University - London), Bruno Frey (University of Zurich), Gerd Gigerenzer (Max Planck Institute for Human Development), Paul Glimcher (New York University), Russell Korobkin (University of California, Los Angeles), Donald Langevoort (Georgetown University), and Stefan Magen (Max Planck Institute for Research on Collective Goods). Douglas Kysar (Cornell University) served as rapporteur.

Charged with addressing the theme, Are Heuristics a Problem or a Solution?, the subgroup discussed and debated a range of methodological, descriptive, and prescriptive issues concerning the implications of cognitive psychology for law, many of which are summarized in this consensus report. Included are (1) a general introduction to the subject of heuristics in decision theory, with particular attention to the distinction between optimality-based and heuristic-based decision making models within psychology; (2) an attempt to synthesize these two psychological research paradigms into a single conceptual framework that helps to identify important areas in which further research and understanding are needed; (3) an overview of scholarship to date on heuristics and the law, including the observation that this scholarship has ignored certain significant lessons of the heuristics research tradition in psychology; and (4) a compilation of suggestions for future interdisciplinary research concerning both the use of heuristics by legal subjects whose behavior the law is attempting to influence, and the use of heuristics by policymakers as a model for the substantive design of legal rules.

Heuristics, Bounded Rationality, Behavioral Law and Economics

Abstract:
This Article, which is part of a larger project on the competing merits of cost-benefit analysis (CBA) and the precautionary principle (PP) as competing policymaking paradigms for environmental, health, and safety regulation, examines one specific plank of the case against the PP: the claim that the principle's ignorance of the opportunity costs of precaution leads to indeterminate or impoverishing policy advice. Because PP defenders emphasize the limits of human knowledge and the frequency of unpleasant surprises from technology and industrial development, they prefer an ex ante stance of precaution whenever a proposed activity meets some threshold possibility of causing severe harm to human health or the environment. Importantly, they prefer this stance even in the face of potential benefits that may themselves be ameliorative of environmental, health, and safety dangers.

Naturally, this asymmetric aspect of the PP generates strident criticism, particularly from consequentialist-utilitarian thinkers such as those who advocate CBA. Along with substitute risks, lulling effects, and other purportedly overlooked health consequences of precautionary regulation, these critics argue that the PP's failure to treat opportunity costs pari passu with the primary risks targeted by policy measures is simply indefensible. Despite the seemingly unimpeachable logic of this critique, the role of opportunity costs in environmental, health, and safety regulation actually turns out to be much more complicated and interesting than the CBA proponents' account reveals. As this Article demonstrates, the question of opportunity costs in risk regulation turns out to raise profound questions regarding the meaning and significance of uncertainty and rationality, the nature and extent of a society's moral obligation to other nations, other generations, and other life forms, and the very possibility of conceiving of political decisionmaking in the purely agent-neutral manner presupposed by CBA.

precautionary principle, cost-benefit analysis, discounting, future generations, environmental law, risk regulation

Abstract:
Three prominent interconnected trends - the equation of civic responsibility with consumer spending, the displacement of politically-determined regulatory policies by market-derived environmental, health, and safety standards, and the global integration of product markets - have been joined by a less well-recognized fourth: The struggle for control over consumer access to information regarding the processes by which products come into being. The aim of this Article is to identify and expand on this under-appreciated trend by, first, demonstrating the existence of a conceptual distinction between product-related information (e.g., whether a consumer good threatens to harm its user) and process-related information (e.g., whether a good's production harmed workers, animals, or the environment) as an increasingly prominent effort to resolve policy disputes that involve the entanglement of consumer regulation with broader social or environmental questions; second, showing that this process-product distinction is too thin and formalistic of a conceptual device to address such policy disputes in a stable or satisfying manner; and, finally, arguing more broadly in favor of acknowledging and accommodating consumer process preferences within theoretical frameworks for policy analysis, given the potential significance that such preferences may serve in the future as outlets for public-regarding behavior.

Abstract:
Environmental law stands uncomfortably poised between visions. Once driven by essentially moral, cultural, and aesthetic purposes, the environmental regulatory agenda now seems, like other aspects of the emerging cost-benefit state, to be emphatically instrumentalist. Although the legal framework established during the primarily ethical environmentalism of the 1970s remains largely intact, the consensus view of commentators today is that this framework represents a failing paradigm. The future of environmental regulation instead lies in such efficiency-oriented instruments as tradable permits, corrective taxes, disclosure schemes, and other tools designed to replicate the conditions of a well-functioning market. Indeed, the tradable permit has been called "the most fashionable innovation in environmental policy today," promising not only to achieve regulatory goals with less cost than traditional command and control techniques, but also to inspire reasoned deliberation by the public and its representatives regarding such weighty issues as the very type of environment in which we desire to live.

This Article argues that the republican moment promised by tradable permit schemes will remain stubbornly elusive so long as environmental law and policy is dominated by either the ethical environmentalism of the 1970s or the stark instrumentalism of conventional economic theory. Because many mainstream approaches to economics fail to recognize absolute limits imposed by nature on the ability of humans to appropriate and utilize natural resources, they also fail to provide a sound conceptual basis on which to make the political judgments required by tradable permit schemes. Just as cost-benefit analysis seems incoherent under the absolutism of 1970s-era environmental statutes, setting aggregate limits to annual pollutant emissions appears nonsensical -- or at least not urgent -- within a theoretical model that recognizes no binding constraints to economic growth.

Fortunately, an alternative vision exists. More or less simultaneous with the shift to efficiency-oriented environmental regulation has been the development of ecological economics, an emerging field that seeks to bring multidisciplinary rigor to the study of nature's role within human economic production. By fusing insights from ecology, population biology, and physics with the theoretical framework of economics, ecological economists attempt to provide a more nuanced understanding of human-ecosystem interactions than those offered independently by either economists or conservationists. Significantly, ecological economists rely upon a preanalytic vision of human activity that is bounded by natural constraints. This vision or worldview provides a simple yet surprisingly radical departure from mainstream economic thought. As this Article attempts to demonstrate, it also provides the basis for an alternative conception of the goals of collective governance, one that brings much-needed coherence to environmental decision-making within the reign of market-based regulation.

Abstract:
The United States is suffering both from a healthcare crisis, one of the symptoms of which is an unnecessarily high number of malpractice injuries, and from an insurance crisis. There is, however, no tort lawsuit crisis - in medical malpractice liability or otherwise. The insurance industry, managed-care companies, and organizations representing healthcare providers have invested a great amount of money in political contributions and media campaigns to convince policy-makers and the public that the civil justice system is fraught with meritless claims and is consequently the cause of the recent increase in malpractice premiums. But a mounting number of studies are finding that the tort system in general and malpractice liability in particular have been quite stable for the past two decades. And examinations of insurance industry practices reveal insurers' business decisions as the source of premium volatility - not the amount insurers are paying out on malpractice claim. More specifically, the recent premium spikes were insurance companies' attempt to make up for losses that they incurred as a result of offering artificially low premiums to increase their market share and depending instead on projected income from risky investments to meet future payout obligations.

In addition to shifting the blame for skyrocketing malpractice premiums from insurance companies to the civil justice system, corporate interests and the politicians they support have shifted the blame for the alarming lack of access to affordable, quality healthcare from the for-profit entities that run the U.S. healthcare system to malpractice victims and their attorneys. More specifically, advocates of restrictions on medical malpractice liability claim that rampant lawsuit abuse is driving physicians to practice so-called defensive medicine and to leave the medical field, both of which increase healthcare costs and diminish healthcare availability. Given the overwhelming evidence of stability in the civil justice system, it is not surprising that neither the defensive-medicine claim nor the physician-flight claim withstand empirical scrutiny. The Bush administration's primary support for the claim that doctors are ordering unnecessary tests and procedures out of fear of being sued in a study that two non-partisan congressional research agencies have dismissed as unreliable because it projects extremely limited findings onto the entire nation. More appropriately designed studies have found little or no evidence that fear of liability results in unnecessary medical expenditures. And regarding the supposed physician flight, the Government Accountability Office recently reported that the physician supply in this country has been increasing faster than the population for the past decade.

In short, the administration, other tort reform politicians, and big businesses have fabricated a lawsuit crisis to defraud the American people of their right to redress for wrongful injury and their ability to hold the perpetrators - no matter how wealthy and powerful - accountable in the civil justice system. Information readily available to the administration and federal legislators promoting tort reform makes clear that civil justice system is not inundated with baseless claims, that insurance companies' losses in malpractice lawsuits are not driving premium hikes, that doctors are not disappearing, and that there is no surge in defensive medicine responsible for increased healthcare costs. Thus, the restrictions on medical malpractice liability that President Bush insists Congress must enact serve only to provide immunity (1) for healthcare providers who commit malpractice by denying victims access to the courts, and (2) for insurance companies, who raised premiums to recover from losses incurred as a result of their imprudent business practices and who now seek to evade responsibility for this imprudence and to maximize future profits by blaming malpractice victims for the premium hikes. Furthermore, the healthcare crisis will continue as long as the nation's focus remains fixed on a chimerical cause of that crisis - i.e., the civil justice system - instead of the real causes - i.e., the insurance, managed-care, and pharmaceutical industries that largely control healthcare delivery in the United States. Addressing the healthcare crisis requires ensuring everyone access to quality healthcare, which, in turn, requires reining in these corporations, not immunizing them from citizens' check on the public health risks posed by their profit-maximizing behavior.

Abstract:
We present the results from the second in a series of ongoing experimental studies of public perceptions of nanotechnology risks. Like the first study, the current one found that members of the public, most of whom know little or nothing about nanotechnology, polarize along cultural lines when exposed to information about it. Extending previous results, the current study also found that cultural polarization of this sort interacts with the perceived cultural identities of policy advocates. Polarization along expected lines grew even more extreme when subjects of diverse cultural outlooks observed an advocate whose values they share advancing an argument they were predisposed to accept, and an advocate whose values they reject advancing an argument they were predisposed to resist. But when those same advocates were assigned the opposite positions, subjects formed perceptions of nanotechnology risks diametrically opposed to the ones normally associated with their own cultural predispositions. Finally, when there was no consistent relationship between the perceived values of advocates and positions taken on nanotechnology risk and benefits, cultural polarization was neutralized. The significance of these findings for promotion of informed public understanding of nanotechnology is discussed.

nanotechnology, cultural cognition, risk perception, cultural credibility heuristic, polarization, biased assimilation

Abstract:
Legal economic analysis has traditionally focused on the application of microeconomic theory to questions of legal import. Scholars have generally regarded macroeconomic effects of legal rules as lying beyond the purview of the legal decisionmaker's jurisdiction; for instance, it is frequently stated that the distributive effects of alternative rules should be ignored because distributive goals are more efficiently accomplished through the tax-and-transfer system than through legal rulemaking. This Article argues that such exclusion of macroeconomic subject matter from legal analysis may rest on a scientifically erroneous view of the economic process.

As ecological economists have argued for the last three decades, the conventional understanding of the economic process presumes an unlimited supply of material inputs and an infinite natural capacity to absorb waste outputs. Fundamental scientific principles, including especially the laws of thermodynamics, suggest that this understanding is flawed. The economic process must necessarily be limited in scale by the capacity of the ecological superstructure to sustain it. Thus, in addition to the efficient allocation of resources and the equitable distribution of wealth, economists must also be concerned with the sustainable maintenance of scale. Particularly, economists must design policy instruments that maintain population levels, per capita consumption habits, and per unit of consumption efficiency levels within appropriate ecological bounds.

This Article argues that such policy choices are also legitimate subjects for legal decisionmaking. Efficiency has become a meta-principle guiding the selection of legal rules in all manner of contexts; scale, because it relates to the ultimate capacity for human economic activity to sustain itself, is arguably of even more importance than efficiency and therefore should also be considered a meta-principle of jurisprudential importance. Additionally, consideration of scale effects by legal decisionmakers cannot be safely ignored in the way that distributive effects have been, given that no political mechanism analogous to the tax-and-transfer system exists to regulate the scale of the macroeconomy.

A related and somewhat surprising effect of incorporating scale effects into legal analysis may be to reinvigorate the debate over distributional effects of legal rules. The dominant Western political economic response to problems of wealth distribution is a belief that unimpeded growth in the scale of economic activity will raise everyone's absolute wealth without requiring significant "redistribution." If, however, the ecological economic worldview is correct, sheer growth in economic activity will necessarily face an ecological limit, perhaps already surpassed. Beyond a certain point, in other words, "rising tides" cannot be offered as the means to "lift all boats." Instead, policymakers will need to address problems of unequal distribution of wealth openly and directly.

Abstract:
Economic cost-benefit analysis aims to evaluate regulatory proposals by identifying, monetizing, and comparing the proposals' expected positive and negative consequences. The methodology has been received critically in the area of environmental, health, and safety regulation, where scientific uncertainty, difficulties of valuation, and uncommonly long time horizons are said to render cost-benefit analysis especially problematic. This Essay reviews such criticisms through a discussion of the use cost-benefit analysis in the particular context of climate change policymaking. In this context, generic criticisms of cost-benefit analysis in the environmental, health, and safety area become even more pronounced, raising significant doubt about the methodology's philosophical and practical appropriateness as a guide for climate change policymaking.

Environmental law, environmental science, cost-benefit analysis, risk regulation, climate change, global warming

Abstract:
To achieve the level of greenhouse gas emissions reductions called for by climate change experts, officials and policy analysts may need to develop an unfamiliar category of regulated entity: the consumer. Although industrial, manufacturing, retail, and service sector firms undoubtedly will remain the focus of climate change policy in the near term, individuals and households exert a greenhouse footprint that seems simply too large for policymakers to ignore in the long term. This paper, written as a foreword for the Environmental Law Reporter's symposium issue, "Climate Change and Consumption," emerges from an interdisciplinary conference of the same title held at Vanderbilt University in April 2008. The paper begins by providing an overview of the limited role that consumer behavior and decision making has played in environmental law to date. It then describes theoretical and empirical frameworks for understanding the consumer and consumption that could be deployed to inform law and policy if, as we predict, the consumer becomes a much more significant target of environmental regulation. The paper concludes by summarizing the symposium articles, which range widely across disciplines and areas of focus, but which reflect a common belief that the carbon-constrained consumer is worthy of significant academic and policy attention.

Climate change, environmental law, consumer, consumption, individual behavior

Abstract:
Recent writings by Dan Farber and J.B. Ruhl have put forward a strong case for "eco-pragmatic" and "radical middle" approaches to environmental policymaking. Rather than debate the merits of such an approach, in this Article we examine whether eco-pragmatic policy development is likely in practice and where it might occur, given the tribal nature of public environmental advocacy. We use the remarkably polarized reaction to Bjorn Lomborg's book, "The Skeptical Environmentalist," as a vehicle to explore the seemingly fundamental divide that exists between warring parties within the environmental law and policy communities. By offering a more complete understanding of why parties involved in environmental policymaking exhibit such stark bipolarism, we seek to help proponents of pragmatic, inclusive approaches to environmental law and policy overcome the field's tribal dynamics.

While many commentators point to the apparently incompatible worldviews of "bean counters" and "tree huggers" as the primary explanation for the lack of a strong middle ground in environmental advocacy, the differences may prove less profound than commonly assumed. After all, like the public at large, bean counters and tree huggers seem to recognize the legitimacy of competing economic and environmental considerations. Thus, rather than simply speaking past one another, disagreement for many advocates seems to be more practical. This usually plays out in contrasting beliefs over the proper manner in which to weigh and compare economic and environmental values, not a dispute concerning the values' existence or their political validity. If this account is accurate, and the divide is less theological than commonly assumed, then space may well exist for some common, pragmatic agreement.

In practice, though, these divisions are widened by a number of social dynamics that frustrate effective public deliberation in the environmental policymaking arena. In particular, we examine the influences of (1) group polarization within environmental policymaking communities, (2) entrepreneurial efforts by interest groups to exploit cognitive heuristics and biases among the public, (3) disputes over proper sources of authority for scientific information, and, finally, (4) the possibility of empirical debates subsuming, and consequently obscuring, more fundamental disputes over cultural or social values. These four barriers act together as an effective "policy cutting gate," shunting advocates into one pen or the other and leaving little space in between for effective advocacy of pragmatic, middle approaches to policy problems.

As a result, we conclude that eco-pragmatists should concentrate their efforts not at the high-profile level of policy formation but, rather, at the level of policy implementation, where relevant actors are less severely influenced by the social dynamics of the cutting gate. Put differently, the target audience for appeals to eco-pragmatic decisionmaking may well be neither Earth First!, nor the Competitive Enterprise Institute, nor even the general public. Rather, the most fertile terrain for balanced, pragmatic governance likely lies below the advocacy radar screen at the level of administrative implementation of environmental policy.

Abstract:
This Article highlights the hazards of hindsight analysis of the causes of catastrophic events, focusing on theories of why the New Orleans levees failed during Hurricane Katrina in 2005 and particularly on the theory that the levee failures were "caused" by a 1977 National Environmental Policy Act (NEPA) lawsuit that resulted in a temporary injunction against the Army Corps of Engineers' hurricane protection project for New Orleans. The Article provides a detailed historical reconstruction of the decision process that eventuated in the New Orleans storm surge protection system, focusing both on the political and legal factors involved and on the "standard project hurricane" risk assessment model that lay at the heart of the Army Corps of Engineers' decisionmaking process. The Article then offers a detailed analysis of how and why Hurricane Katrina overcame the New Orleans levee system. As this analysis demonstrates, the argument that the NEPA lawsuit played a meaningful causal role in the Katrina disaster is not a serious one. Parallels lessons are then drawn for forward-looking disaster policy: The same problems of uncertainty and complexity that confound the attempt through hindsight to attribute causal responsibility for a disaster, also confound the attempt to predict through foresight the variety of outcomes, including potentially disastrous ones, that may flow from policy choices. Focusing narrowly on any single parameter of complex natural and human systems is likely to dramatically distort environmental, health, and safety decisionmaking - whether the parameter is a "standard project hurricane" when we are planning a hurricane protection plan, or the equally mythical "lawsuit that sunk New Orleans" when we are attempting to allocate responsibility for the plan's failure some forty years later.

environmental law, risk regulation, disaster, hurricane, cost-benefit analysis, precautionary principle, risk assessment, risk management

Abstract:
This paper provides a critical overview of several articles presented at the Intergenerational Discounting and Intergenerational Equity Conference held at the University of Chicago Law School on April 27-28, 2006. First, it demonstrates that conventional normative justifications offered for the use of discounting future costs and benefits for policy analysis in the intergenerational context do not withstand scrutiny. Second, it observes that the compensatory transfers that are sometimes thought to sanitize the cost-benefit procedure in the intergenerational context are deeply problematic, both in their theoretical construction and in their practical adequacy for the tasks they are being deployed to accomplish. Third, it argues that although some analysts have been careful to acknowledge the need to address questions of intergenerational equity directly through other policy mechanisms, these analysts have understated the difficulty of limiting discounted cost-benefit analysis to its proper sphere of competence.

Discounting, Intergenerational Equity, Intergenerational Justice, Environmental Law, Risk Regulation, Cost-benefit Analysis, Welfare Economics

Abstract:
For the past few decades, cognitive psychologists and behavioral researchers have been steadily uncovering evidence that human decisionmaking processes are prone to nonrational, yet systematic, tendencies. These researchers claim not merely that we sometimes fail to abide by rules of logic, but that we fail to do so in predictable ways.

With a few notable exceptions, implications of this research for legal institutions were slow in reaching the academic literature. Within the last few years, however, we have seen an outpouring of scholarship addressing the impact of behavioral research over a wide range of legal topics. Indeed, one might predict that the current behavioral movement eventually will have an influence on legal scholarship matched only by its predecessor, the law and economics movement. Ultimately, any legal concept that relies in some sense on a notion of reasonableness or that is premised on the existence of a reasonable or rational decisionmaker will need to be reassessed in light of the mounting evidence that humans are "a reasoning rather than a reasonable animal."

This Article contributes to that reassessment by focusing on the problem of manipulability. Our central contention is that the presence of unyielding cognitive biases makes individual decisionmakers susceptible to manipulation by those able to influence the context in which decisions are made. More particularly, we believe that market outcomes frequently will be heavily influenced, if not determined, by the ability of one actor to control the format of information, the presentation of choices, and, in general, the setting within which market transactions occur. Once one accepts that individuals systematically behave in nonrational ways, it follows from an economic perspective that others will exploit those tendencies for gain.

That possibility of manipulation has a variety of implications for legal policy analysis that have heretofore gone unrecognized. This article highlights some of those implications and makes several predictions that are tested in other work.

law and economics, economics, economic behavioralism, behavioralism, law and behavioralism, manipulation, market manipulation, heuristic, biases, products liability

Abstract:
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 individual's 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.

Abstract:
Using the examples of invasive species and transpacific air pollution, this essay outlines challenges to U.S. domestic environmental law and policy posed by global dimensions of sociolegal and biophysical systems. As will be seen, the deep interconnectivity of such systems suggests that significant determinants of environmental sustainability will always remain outside the predictive and protective capacities of U.S. regulators, even with respect to matters that conventionally have been regarded as primarily domestic environmental problems. This irreducible interdependency in turn suggests an underappreciated shortcoming of the risk-assessment/cost-benefit analysis paradigm that currently dominates the United States environmental policymaking discussion: By implying that the normativity of national environmental policy can be determined by empirical assessment of individual welfare consequences, such a paradigm fails to promote an ethos of national subjectivity, in which nation-states such as the United States recognize themselves as responsible actors on the global stage, standing in relations of moral and political obligation with other sovereigns, other generations, and other communities of life. Such an ethos, this essay concludes, is essential to successful environmental governance, whether or not nominally domestic in orientation.

environmental law, cost-benefit analysis, extraterritoriality, invasive species, transpacific air pollution

Abstract:
Using California's self-consciously internationalist approach to climate change regulation as a primary example, this Article examines constitutional limitations on state foreign affairs activities. In particular, by focusing on the prospect of California's establishment of a greenhouse gas (GHG) emissions trading system and its eventual linkage with comparable systems in Europe and elsewhere, this Article demonstrates that certain constitutional objections to extrajurisdictional linkage of state GHG emissions trading systems and the response that these objections necessitate may be more complicated than previously anticipated. First, successfully combatting the Bush Administration's potential claim that state-level climate change activities interfere with a federal executive position of withholding binding domestic GHG reductions in advance of a multilateral agreement including key developing nations, will require demonstrating that the executive branch is not acting with congressional support and has, furthermore, declared its position too informally to constitute an exercise of any of the president's independent constitutional powers. Second, state efforts to link GHG emissions trading systems with those of other nations may well take them into territory abutting that which is constitutionally impermissible under the foreign affairs and Foreign Commerce Clause doctrines. Finally, state efforts to integrate with other trading schemes or to otherwise protect the integrity of their own trading schemes must be carefully constructed lest they invite challenge as being discriminatory or overreaching, in light of more conventional dormant Commerce Clause constraints on state regulation.

environment, greenhouse gas emissions, federalism, executive power, commerce clause, foreign affairs power

Abstract:
Over the years, the census has provoked a number of social, political, and economic controversies. Little attention, however, has been given to the role of the census in fostering the creation and maintenance of markets for consumer goods. This Review takes an inquisitive tour through the 2000 Census on Population and Housing, focusing especially on its role as the statistical foundation of marketing efforts by retail firms. The underlying motivation for the project is a suspicion that, at least if the consumer product industry's own words before Congress are to be believed, the decennial census confers a significant positive externality (some might say a hidden subsidy) on retail and marketing firms. Combined with the multi-billion dollar "private sociology" of retail and marketing firms, the census data are transformed by marketers into nuanced descriptions of identifiable and predictable consumer lifestyles, motivations, and behaviors. These descriptions allow product manufacturers and retailers to define and access numerous consumer substrata within the population at large, providing an indispensable aid in the design of consumer goods and accompanying promotional materials.

In addition to providing a descriptive account of the population census and its various uses by commercial entities, this Review also attempts to provide a framework for determining whether more serious normative consideration of the census marketing externality is merited. It does so by outlining models of consumer sovereignty and consumer susceptibility that have dominated legal and academic treatments of consumer behavior, and by arguing that neither model adequately accounts for the cultural implications of consumption. As a consequence, neither model provides a complete account of the impact of census-based marketing. In contrast, this Review argues that a more textured, cultural understanding of consumption and its accompaniments might help determine whether the marketers' use of census data is designed to be informative and responsive, invasive and exploitative, or something else altogether.

Abstract:
An important lesson of behavioralist research is that individuals' perceptions and preferences are highly manipulable. This article presents empirical evidence of market manipulation, a previously unrecognized source of market failure. It surveys extensive qualitative and quantitative marketing research and consumer behavioral studies, reviews common practices in settings such as gas stations and supermarkets, and examines environmentally oriented and fear-based advertising. The article then focuses on the industry that has most depended upon market manipulation: the cigarette industry. Through decades of sophisticated marketing and public relations efforts, cigarette manufacturers have heightened consumer demand and lowered consumer risk perceptions. Such market manipulation may justify moving to enterprise liability, the regime advocated by the first generation of product liability scholars.

economic behavioralism, market manipulation, marketing, public relations, products liability, law and economics, tobacco industry, cigarette industry

Abstract:
This essay reviews Ted Nordhaus and Michael Shellenberger's recent book, Break Through: From the Death of Environmentalism to the Politics of Possibility, in which the authors argue that the future of environmentalism, and of American politics more broadly, lies not in stronger evidence, better science, and more reasoned appeals to the public, but instead in sheer marketing acumen, in forming and framing policy goals in a manner that activates the deeply embedded values and cognitive metaphors of the public. The essay first argues that Nordhaus and Shellenberger's critique of environmentalism overlooks the diversity that exists within the environmental movement and that, to a large extent, anticipates the themes they claim to be introducing. The essay then examines Nordhaus and Shellenberger's proposed alternative to environmentalism, a version of Richard Rorty - inspired romantic pragmatism that the authors dub the politics of possibility. The essay argues that Nordhaus and Shellenberger's alternative approach is ultimately self-undermining, in that virtually any policy aim on their account could be packaged and marketed to activate virtually any cultural worldview. Finally, the essay takes a more constructive turn, identifying the kinds of questions that a truly post-environmental politics would be required to answer in order to avoid the nightmare of Nordhaus and Shellenberger's republic of consultants.

Abstract:
To date, the turn toward market-based regulatory tools in the environmental, health, and safety context has tended to focus on taxes, tradable permits, and information disclosure rules, with comparatively little attention devoted to environmental assurance bonds. This paper argues that environmental assurance bonding offers a particularly attractive regulatory approach for contexts - such as the present state of nanoscale science and engineering - in which both the risk and the benefit sides of the regulatory equation are characterized by great uncertainty. Historical examples and existing scholarly analyses of environmental assurance bonding are reviewed, and the resulting lessons are situated within the larger debate over economic cost-benefit balancing and precautionary approaches to environmental law and policy. In particular, the paper argues that environmental assurance bonding displays the virtue of symmetric humility, paying due heed to the dynamism and complexity both of sociolegal systems such as markets and of biophysical systems such as aquatic ecosystems.

cost-benefit analysis, precautionary principle, risk regulation, nanotechnology, assurance bond

Abstract:
A group of academic economists filed this amicus brief in a pending Supreme Court case, Entergy v. Riverkeepers. The amicus brief addresses questions pertaining to the nature and limits of cost-benefit analysis (CBA) and thus contributes to the ongoing scholarly debate about CBA's role in environmental law. The case raises the question of whether EPA may consider CBA in writing standards based on the "best technology available for minimizing environmental impacts" from intake of water to cool industrial facilities. This intake kills fish and disrupts eco-systems. The brief explains that cost-benefit balancing may be inappropriate for an agency implementing foundational normative commitments embodied in the constitution or legislation. It then argues that engineering analysis identifies the best technology and financial analysis comparing costs to the regulated industry's economic capabilities (rather than to benefits) assesses a technology's availability. Finally, the brief explains that the radical incompleteness of the CBA done in this case could have been avoided by using a traditional technology-based approach.

cost-benefit analysis, BAT, technology-based standards, water pollution, supreme court, feasibility