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Governance and Uncertainty

72 Pages Posted: 9 Apr 2015 Last revised: 3 Nov 2015

Justin R. Pidot

University of Denver Sturm College of Law

Date Written: April 7, 2015

Abstract

Government actors create law against a backdrop of uncertainty. Limited information, unpredictable events, and lack of understanding interfere with accurately predicting a legal regime’s costs, benefits, and effects on other legal and social programs and institutions. Does the availability of no-fault divorce increase the number of terminated marriages? Will bulk-collection of telecommunications information about American citizens reveal terrorist plots? Can a sensitive species breed in the presence of oil and gas wells? The answers to these questions are far from clear, but lawmakers must act nonetheless.

The problems posed by uncertainty cut across legal fields. Scholars and regulators in a variety of contexts recognize the importance of uncertainty, but no systematic, generally-applicable framework exists for determining how law should account for gaps in information.

This Article suggests such a framework and develops a typology of strategies for accounting for uncertainty in governance. This typology includes “static law,” as well as three varieties of “dynamic law.” “Static law” is a legal rule initially intended to last in perpetuity. “Dynamic law” is intended to change, and includes: (1) durational regulation, or fixed legal rules with periodic opportunities for amendment or repeal; (2) adaptive regulation, or malleable legal rules with procedural mechanisms allowing rules to change; and (3) contingent regulation, or malleable legal rules with triggering mechanisms to substantively change the rules.

Each of these strategies, alone or in combination, may best address the uncertainty inherent in a particular lawmaking effort. This Article provides a diagnostic framework that lawmakers can use to identify optimal strategies. Ultimately, this approach to uncertainty yields immediate practical benefits by enabling lawmakers to better structure governance.

Suggested Citation

Pidot, Justin R., Governance and Uncertainty (April 7, 2015). 37 Cardozo Law Review 113 (2015); U Denver Legal Studies Research Paper No. 15-20. Available at SSRN: https://ssrn.com/abstract=2591642

Justin Pidot (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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