Law Commons^™

In Defense Of, Or Offensive To Farms? Hog Farming And The Changing American Agricultural Industry, Shi-Ling Hsu

Shi-Ling Hsu

American agriculture is inexorably concentrating into the hands of a small number of large conglomerates. Expanding farms pursuing scale economies would also normally have to abide by a system of environmental and other laws that would, in theory, require farms to account for negative externalities. If those laws were observed and enforced, they would help strike a balance between the greater profitability and the larger externalities of larger farms. But these laws are not widely observed and not rigorously enforced, upsetting this balance and giving large-scale farms a cost advantage while insulating them from corresponding responsibilities.

Perhaps nowhere in agriculture …

International Trade And Investment Law And Carbon Management Technologies, Shi-Ling Hsu, Nigel Bankes, Anatole Boute, Sarah Mccalla, Steve Charnovitz, Liz Whitsitt, Nicholas Rivers

Shi-Ling Hsu

Reducing emissions of greenhouse gases will require the development of carbon management technologies that are not currently available or that are not currently cost-effective. While market mechanisms such as carbon pricing must play a central role in stimulating the development of these technologies, governmental policy aimed at fostering carbon management technologies and lowering their costs must also play a part. Both types of policies will form part of an optimal greenhouse gas control portfolio.

This article develops a framework of international trade and investment law insofar as they may affect carbon management technologies. While it is commonly perceived that international …

International Trade And Investment Law And Carbon Management Technologies, Shi-Ling Hsu

Shi-Ling Hsu

Reducing emissions of greenhouse gases will require the development of carbon management technologies that are not currently available or that are not currently cost-effective. While market mechanisms such as carbon pricing must play a central role in stimulating the development of these technologies, governmental policy aimed at fostering carbon management technologies and lowering their costs must also play a part. Both types of policies will form part of an optimal greenhouse gas control portfolio.

This article develops a framework of international trade and investment law insofar as they may affect carbon management technologies. While it is commonly perceived that international …

A Game-Theoretic Model Of International Climate Change Negotiations, Shi-Ling Hsu

Shi-Ling Hsu

Exactly why the nations of the world have had difficulty in reaching agreement on reducing greenhouse gases that cause climate change is something of a puzzle. Although the future generations that will suffer the greater costs from climate change will probably be wealthier, the non-trivial risks that climate change will be catastrophic would seem to merit the collective purchase of some insurance in the form of greenhouse gas mitigation. Political economy, collective action, and psychological explanations all play a part in accounting for the international impasse, but all are incomplete. This article presents a simple game-theoretic model that illustrates the …

A Prediction Market For Climate Outcomes, Shi-Ling Hsu

Shi-Ling Hsu

This article proposes a way of introducing some organization and tractability in climate science, generating more widely credible evaluations of climate science, and imposing some discipline on the processing and interpretation of climate information. I propose a two-part policy instrument consisting of (1) a carbon tax that is indexed to a "basket" of climate outcomes, and (2) nested inside this carbon tax, a cap-and-trade system of emissions permits that can be redeemed in lieu of paying the carbon tax. The amount of the carbon tax in this proposal would be set each year on the basis of some objective, non-manipulable …

Carbon Taxation In Theory And In Practice, David Duff, Shi-Ling Hsu

Shi-Ling Hsu

There are a number of regulatory approaches to addressing the problem of global climate change, but four stand out: (i) carbon taxation, (ii) cap-and-trade programs, (iii) government subsidies, and (iv) so-called command-and-control regulation. This paper sets out a list of economic, political, and legal reasons for favouring carbon taxation over all of the other options. We do not argue that carbon taxation is the only solution to climate change, but that it should serve as the centerpiece of national governmental responses to the problem of climate change. Indeed, one reason we favour carbon taxation is precisely because it leaves room …

The Politics And Psychology Of Gasoline Taxes: An Empirical Study, Shi-Ling Hsu

Shi-Ling Hsu

No abstract provided.

Psychological Barriers To Gasoline Taxation, Shi-Ling Hsu

Shi-Ling Hsu

No abstract provided.

Regulating Greenhouse Gases In Canada: Constitutional And Policy Dimensions, Shi-Ling Hsu, Robin Elliot

Shi-Ling Hsu

Canada’s greenhouse gas emissions have risen dramatically since the 1997 negotiation of the Kyoto Protocol, and that rise has continued through Canada’s 2002 ratification of the Protocol. Along with economic dislocation, constitutional barriers to regulation have sometimes been cited as the reason for caution in regulating greenhouse gases. This article critically evaluates the constitutional arguments and examines the policy considerations surrounding various regulatory instruments that might be used to reduce greenhouse gases. We conclude that the Canadian constitution does not present any significant barriers to federal or provincial regulation and that policy considerations strongly favour the use of two instruments: …

A Realistic Evaluation Of Climate Change Litigation Through The Lens Of A Hypothetical Lawsuit, Shi-Ling Hsu

Shi-Ling Hsu

Several dozen cases that can be classified as "climate change litigation" have been filed worldwide, and legal scholars have already generated a considerable amount of writing on the phenomenon. The debate and scholarship has sometimes gotten ahead of itself, reflecting on the normative implications of outcomes that are still speculative at this point. This article seeks to ground this debate by analyzing the actual legal doctrines that may serve as bases for liability, and seeks to make a realistic evaluation of the likelihood of success of these types of suits. Climate change litigation, in its various forms, raises issues of …

The Identifiability Bias In Environmental Law, Shi-Ling Hsu

Shi-Ling Hsu

The identifiability effect is the human propensity to have stronger emotions regarding identifiable individuals or groups rather than abstract ones. The more information that is available about a person, the more likely this person's situation will influence human decision-making. This human propensity has biased law and public policy against environmental and ecological protection because the putative economic victims of environmental regulation are usually easily identifiable workers that lose their jobs, while the beneficiaries – people who avoid a premature death from air or water pollution, people who would be saved by medicinal compounds available only in rare plant and animal …

Pollution Tax Heuristics: An Empirical Study Of Willingness To Pay For Higher Gasoline Taxes, Shi-Ling Hsu, Joshua Walters, Anthony Purgas

Shi-Ling Hsu

Economists widely agree that in concept, pollution taxes are the most cost-effective means of reducing pollution. With the advent of monitoring and enforcement technologies, the case for pollution taxation is generally getting stronger on the merits. Despite widespread agreement among economists, however, pollution taxes remain unpopular, especially in North America. Some oppose pollution taxes because of a suspicion that government would misspend the tax proceeds, while others oppose pollution taxes because they would impose economic hardships upon certain individuals, groups, or industries. And there is no pollution tax more pathologically hated as the gasoline tax. This is unfortunate from an …

Some Quasi-Behavioral Arguments For Environmental Taxation, Shi-Ling Hsu

Shi-Ling Hsu

For decades, economists have advocated for the adoption of environmental taxes to reduce pollution at least cost. While this campaign has largely succeeded in Europe, where a wide variety of environmental taxes are in effect, environmental taxes are few and far between in North America, as economists have failed to persuade policymakers to make any significant policy use of environmental taxes. This paper presents three new arguments that draw heavily upon the behavioralist and organizational literatures, and augment the economic arguments proffered thus far in favor of environmental taxes.

First, environmental taxation creates conditions under which firms undertake creative processes …

Litigating Canada-U.S. Transboundary Pollution: International Environmental Lawmaking And The Threat Of Extraterritorial Reciprocity, Shi-Ling Hsu, Austen Parrish

Shi-Ling Hsu

This Article joins a spirited debate ongoing among international law scholars. Numerous articles have debated the changing nature of interna-tional law and relations: the impact of globalization, the decline of territorial-sovereignty, the ever important role that non-state actors play, and the growing use of domestic laws to solve transboundary problems. That scholarship, however, often speaks only in general theoretical terms, and has largely ignored how these changes are playing out in countries outside the United States in ways that impact American interests.

This Article picks up where that scholarship leaves off. It examines one of the perennial challenges for international …

The Real Problem With New Source Review, Shi-Ling Hsu

Shi-Ling Hsu

No abstract provided.

On The Role Of Cost-Benefit Analysis In Environmental Law, Shi-Ling Hsu

Shi-Ling Hsu

Legal scholarship on the role of cost-benefit analysis in environmental law is often stimulating, but does not seem to be changing anybody's mind. The entrenchment of a camp of detractors and a camp of advocates of cost-benefit analysis parallels the impasse that has stymied environmental law for over a decade. Professors Lisa Heinzerling and Frank Ackerman have co-authored a book that captures most of the arguments from the detractor side, and have done so skillfully and powerfully. However, this review criticizes the book's contribution to perpetuating this intellectual stalemate. The book does this by focusing on an environmental theory of …

Fairness Versus Efficiency In Environmental Law, Shi-Ling Hsu

Shi-Ling Hsu

Like many other areas of law, the development of environmental law has been strongly influenced by notions of fairness. This should not be surprising, since environmental law has been developed by lawyers, who are self-selected to be fairness-oriented and trained to think in terms of fairness. While large environmental gains have been achieved in the thirty-year history of environmental law, progress seems to have reached a plateau. Partisanship has poisoned the debate on how best to proceed in making further environmental progress. I attribute the failings and the current stalemate in environmental law to our obsession with fairness. Fairness-thinking has …

A Two-Dimensional Framework For Analyzing Property Rights Regimes, Shi-Ling Hsu

Shi-Ling Hsu

This article proposes an integrative framework wherein all property regimes can be expressed as a function of two fundamental characteristics: (i) whether the dominant right is a use right or an exclusion right (or some degree thereof), and (ii) the size of the party jointly holding the dominant right. This article will show how all property regimes can be characterized by these two variables. By analyzing property regimes in such a framework, property regimes can be related to each other, and conditions can be identified under which the regimes function best. I introduce four fundamental property regimes: the Individual Use, …

A Game-Theoretic Approach To Regulatory Negotiation And A Framework For Empirical Analysis, Shi-Ling Hsu

Shi-Ling Hsu

While regulatory agencies have been engaging in negotiation with regulated parties and other stakeholders for decades now, careful study of the implications of such negotiations have lagged. In particular, while several commentators have now staked out intellectual ground on the theoretical ramifications of regulatory negotiation, empirical analyses of regulatory negotiations have been lacking. This article analyzes the implications of regulatory "reinvention" as the latest in a series of administrative initiatives aimed at achieving better rulemaking and adjudication through negotiations. Reinvention is commonly understood to mean those programs that utilize negotiated agreements to implement regulatory requirements imposed by various environmental statutes. …