E. Fisher, P. Pascual, and W. Wagner, "Understanding Environmental Models in Their Legal and Regulatory Context," Journal of Environmental Law 22(2):251-283 (2010).
Environmental models are playing an increasingly important role in most jurisdictions and giving rise to disputes. Despite this fact, lawyers and policy-makers have overlooked models and not engaged critically with them. This is a problematic state of affairs. Modelling is a semi-autonomous, interdisciplinary activity concerned with developing representations of systems and is used to evaluate regulatory behaviour to ensure it is legitimate. Models are thus relevant to lawyers and policy-makers but need to be engaged with critically due to technical, institutional, interdisciplinary, and evaluative complexities in their operation. Lawyers and policy-makers must thus think more carefully about models and in doing so reflect on the nature of their own disciplines and fields.W. Wagner, E. Fischer and P. Pascual, "Misunderstanding Models in Environmental and Public Health Regulation," N.Y.U. Environmental Law Journal 18:293-356 (2010).
Computational models are fundamental to environmental regulation, yet their capabilities tend to be misunderstood by policymakers. Rather than rely on models to illuminate dynamic and uncertain relationships in natural settings, policymakers too often use models as "answer machines." This fundamental misperception that models can generate decisive facts leads to a perverse negative feedback loop that begins with policymaking itself and radiates into the science of modeling and into regulatory deliberations where participants can exploit the misunderstanding in strategic ways. This paper documents the pervasive misperception of models as truth machines in U.S. regulation and the multi-layered problems that result from this misunderstanding. The paper concludes with a series of proposals for making better use of models in environmental policy analysis.These two excellent articles underscore a point that I have been arguing for a long time: legal scholars and lawyers must approach law-making and law-enforcement processes more like social scientists. This is true not only for administrative processes, such as environmental law-making, but for constitutional interpretation and common-law judging as well. Judges (as judges) rarely, if ever, engage in formal model-building as they seek to "discover" common-law rules and decide cases, but that hardly means they work without models, which, sometimes at least, can be inferred from their decisions. Ultimately, to understand the law, one must try, at least, to understand the models (formal or informal, shared or idiosyncratic) of the participants in law-making and law-enforcement processes.