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Gaming The Past: The Theory And Practice Of Historic Baselines In The Administrative State, J.B. Ruhl, Robin Craig
Gaming The Past: The Theory And Practice Of Historic Baselines In The Administrative State, J.B. Ruhl, Robin Craig
Vanderbilt Law School Faculty Publications
This article explores in detail the attributes and operation of historic baselines. That historic baselines are found throughout regulatory law is no accident. Particularly when the policy goal involves turning back the clock or halting an undesirable trend, historic baselines have distinct advantages compared to alternative techniques for standard setting. These advantages include rhetoric, familiarity, and flexibility. The use of the temporal reference point lies at the heart of what makes historic baselines distinct in this respect, yet it is also what makes them qualitatively different for purposes of gaming. Leveraging the past provides an additional dimension to the gaming …
General Design Principles For Resilience And Adaptive Capacity In Legal Systems--With Applications To Climate Change Adaptation, J.B. Ruhl
Vanderbilt Law School Faculty Publications
No force has put more pressure on the legal system than is likely to be exerted as climate change begins to disrupt the settled expectations of humans. Demands on the legal system will be intense and long-term, but is the law up to the task? If it is, it will at least in part be because the legal system proves to be resilient and adaptive. The question this Article explores, therefore, is how to think about designing legal instruments and institutions now with confidence they will be resilient and adaptive to looming problems as massive, variable, and long-term in scale …
Macro-Risks: The Challenge For Rational Risk Regulation, Michael P. Vandenbergh, Jonathan A. Gilligan
Macro-Risks: The Challenge For Rational Risk Regulation, Michael P. Vandenbergh, Jonathan A. Gilligan
Vanderbilt Law School Faculty Publications
Drawing on the recent financial crisis, we introduce the concept of macro-risk. We distinguish between micro-risks, which can be managed within conventional economic frameworks, and macro-risks, which threaten to disrupt economic systems so much that a different approach is required. We argue that catastrophic climate change is a prime example of a macro-risk. Research by climate scientists suggests disturbingly high likelihoods of temperature increases and sea level rises that could cause the kinds of systemic failures that almost occurred with the financial system. We suggest that macro-risks should be the principal concern of rational risk assessment and management, but they …