Saturday, November 30, 2013

NIce Way to End the Month of November

What do you do on a 50 degree day, with a strong south wind, at the end of November, and you don't have a lot of time? If you're me, you do hill repeats on hills bordering Griffy Lake. Six times up the south side, and once up the north side in 42 minutes. 1200 feet of climbing with normalized power of 237 Watts and a training stress score of 71. That's a pretty efficient training session. It's supposed to be nice out tomorrow as well, though not quite so warm. But Coach Bob is opening the gym in Indy; so I'll head up there for indoor training.

Thursday, November 28, 2013

What I've Been Writing

As noted in the last post, most of the reading I've been doing lately is in service of papers I'm in the process of writing. Those projects are like obstacles on a path - I've got to knock down each one in turn to get to or polish off the next.

Since the start of the semester (late August), I've written (or co-authored):

"The Problem of Shared Irresponsibility in International Climate Law," a chapter in a forthcoming, multi-volume collection on the concept of shared responsibility in international law (to be published by Cambridge University Press). The paper is available here. And here is the abstract:
States have treaty-based and customary international law-based responsibilities to ensure that greenhouse gas emissions emanating from their territory do not cause transboundary harm. However, those international legal responsibilities conflict with the observed behavior of states, which suggests a general rule of irresponsible treatment of the global commons. This paper, written for a conference (and eventual book) on shared responsibility in international law, examines that conflict and two potential mechanisms for resolving it: (1) international litigation and (2) various types of polycentric approaches to climate governance. 
Several international legal scholars have been advocating litigation as a means of compensating victims and creating incentives to mitigate emissions and negotiate more forceful international agreements. But they are like lawyers in search of clients. To date, no climate cases have been brought before the International Court of Justice (or any other international tribunal). The reason is that obstacles to successful international litigation are even more formidable than those that have caused all domestic (US) climate-related tort claims to fail. Even if international climate litigation could be successful, it could well have perverse impacts on international climate (and other) negotiations. Instead of inculcating shared responsibility, states might become more reluctant to enter into international agreements in the first place.
Contrary to the facile notion that "global problems require global solutions," this paper suggests that shared responsibility for greenhouse gas mitigation is likely to be spurred by linkable actions taken at national and sub-national levels. This argument is supported by an emerging literature on polycentric climate governance using various (compatible, rather than mutually-exclusive) approaches, including "regime complexes," "building blocks," and "tipping sets."
 "The Tragedy of Maladpated Institutions" or "Digging Deeper into Hardin's Pasture: The Complex Institutional Structure of 'The Tragedy of the Commons'" (we haven't settled on a title yet), co-authored with my Workshop colleagues Mike McGinnis and Graham Epstein. We will likely be posting the paper shortly on SSRN. The paper is now posted (here) on SSRN. Here is the abstract:
The institutional and ecological structure of Hardin’s “tragedy of the commons” appears deceptively simple: the open-access pasture eventually will be overexploited and degraded unless (i) it is privatized, (ii) the government regulates access and use, or (iii) the users themselves impose a common-property regime to regulate their own access and use. In this paper, we argue that the institutional structure of the “Herder Problem” (as it is known to game theorists) is far more complicated than it is usually portrayed. Specifically, it is not just about the pasture. It is equally about the grass that grows on the pasture and the cattle that consume the grass. Even Elinor Ostrom—a scholar known for embracing complexity—presented an overly simplistic portrayal of Hardin’s open-access pasture when she described its governance system as a null set of institutions. A more careful assessment of the situation, employing Ostrom’s Social-Ecological System (SES) framework, broadens the focus from the res communes omnium pasture to incorporate the res nullius grass that grows upon it and the res privatæ cattle grazing there. The “tragedy” arises from the combination and interactions of the resources and their governing institutions, not just from the absence of property in the pasture. If the grass was not subject to appropriation, the cattle were not privately owned, or if property- and contract-enforcement institutions supporting market exchange were absent, the “tragedy of the commons” probably would not arise regardless of the pasture’s open-access status.

"Building Mutual Trust by Building Blocks," a short essay I've just drafted for a conference next month at NYU Law School on Building Blocks and Climate Governance. In the essay, I argue that the main impediment to progress on mitigating greenhouse gas emissions, in what is essentially an "assurance game," is lack of mutual trust among major emitting parties. I posit that more frequent interactions and communications at a variety of levels and in a variety of fora, beyond the stilted, annual global UN-sponsored meetings, could over time facilitate trust-building, and thereby increased the subjectively perceived probabilities of mutual cooperation, increasing the payoffs to cooperation. Simply put, a chief value in polycentric approaches to climate change mitigation, including the "building blocks" approach advocated (here) by Dick Stewart and his co-authors, is to increase and diversify levels and fora of communication.

"The Program in Institutional Analysis of Social-Ecological Systems," another paper co-authored with Workshop colleagues Mike McGinnis and Graham Epstein, in which we attempt to refine and combine Lin Ostrom's two landmark frameworks for analyzing social-ecological systems - the Institutional Analysis and Development framework and the Social-Ecological Systems framework. The paper surveys the strengths and weakness of each framework, and attempts to maximize the utility of both by combining them into a single framework, which provides the paper's title (or "PIASES"). That title was actually the working label for a similar project Lin and Mike were engaged on prior to her death in 2012. Although the current approach differs substantially from the path she and Mike were on at the time, we have kept the title in honor of her memory and the legacy she left us. I don't expect a working-paper version of this project to be completed before spring.

"Structural Impediments to Successful Use of Price-Based Environmental Controls in China," a paper I'm writing with Zhu Yukun, a PhD student in public finance in China. In essence, this paper provides a note of caution about China's efforts to control domestic pollution using environmental fees, taxes, or cap-and-trade mechanisms, based on lessons from similar efforts at environmental protection in Eastern Europe under socialism (about which I wrote in my 1998 book, Institutional Environmental Protection: From Red to Green in Poland). Despite the big push towards economic liberalization in China over the past two decades (or longer), the Chinese economy still remains dominated by state-owned enterprises, which are subject to soft-budget constraints (on which see here) and regulatory conflicts of interest (where the state's interest in regulating for environmental protection is likely to be compromised by its ownership stake in the regulated enterprises). A working-paper version of this project will probably not be complete before late spring or summer.

I have some other projects in the pipeline as well, but they are not even at the drafting stage yet, and I have no idea when I'll find time to start writing them.

What I've Been Reading

Lately, I've mostly been reading for my writing (see the next post). But here are a few books I've been reading lately for fun:

Lauren Benton and Richard J. Ross, Legal Pluralism and Empires, 1500-1850 (NYU Press 2013). A collection chock full interesting historical and legal analyses of inevitably polycentric imperial legal systems. I found particularly interesting contributions that provided insights into overlapping conceptions of sovereignty, jurisdiction, and property (I've recently established a Working Group in the Ostrom Workshop on those three concepts).

Albert O. Hirschman, The Essential Hirschman (edited by Jeremy Adelman, with an Afterword by Emma Rothschild & Amartya Sen) (Princeton 2013). I read this new collection as part of my self-imposed obligation to read or re-read all of Hirschman's major works this year (in honor of his passing). Particularly enjoyable were his essays on "Political Economics and Possibilism," "The Search for Paradigms as a Hindrance to Understanding," and "Against Parsimony: Three Ways of Complicating Some Categories of Economic Discourse."

Ian McEwan, Amsterdam (Anchor Press 1999). I had been trying in vain to find good fiction to read lately, and happened across this book in the kitchen (I think my wife read it for her reading group). A really sharp. taut, and engrossing story of human fear, behavior, mistakes, and betrayal, told with a sharply dark comic wit.

This is the first, Pulitzer Prize-winning volume in Rick Atkinson's acclaimed "Liberation Trilogy," which I've been meaning to read for a long time. As it happens, I'm not reading it but listening to it on CDs in my car. The idea was that as long as I was driving up to Indy twice a week this winter for indoor cycling training, I could make the drives more productive and enjoyable by listening to some good history. And this is as good as history gets. It's so engrossing that I find myself listening to the book even for short commutes back and forth to school or to the market. The way Atkinson structures the story, and the quality of his writing, put this volume (and presumably the others) head and shoulders above other popular history volumes I've read in recent years.

Paolo Grossi, An Alternative to Private Property (Chicago 1981). The great Italian historian and legal scholar endeavors to correct the highly distorted, if not downright incorrect, view that individual private property is either natural or the evolutionary end of all land and resource governance. Grossi writes about "the emergence of alternative forms of ownership - substantially, of forms of collective apropriation - in the consciousness of men who affected the culture of a century dominated by extremely rigid canons of possessive individualism." The book is a translation of Grossi's 1977 'Un altro modo di possedere': L'emersione di forme alternative di proprietà alla conscienza giuridica postunitaria

Happy Thanksgivukkah!

A cosmic (really, just institutional) coincidence of inestimable insignificance. But Thanksgiving remains my favorite holiday; and I can still recite the prayers for lighting the Chanukah candles (even if I don't possess a religious bone in my body).

Sunday, November 24, 2013

I Guess We Don't Have to Worry About Climate Change Anymore

Here's the headline from the UNFCCC's official website (here): "The Warsaw Climate Change Conference 2013 concluded successfully!"

It's amazing what counts as "success" for the international climatocrats these days.

Kind of reminds me of this:

My Visit to the UDP Faculty of Law in Santiago

Many thanks to the Rector of the University Diego Portales (UDP) in Santiago, Carlos Peña González, as well as Matias Guilof and Dominique Herve of the UDP Faculty of Law, for organizing and hosting a conference around my work relating to property systems and environmental protection last Friday. In addition to the Rector's thoughtful and erudite opening remarks, the interdisciplinary groups of panelists were all excellent (as were the contemporaneous translators). I learned a lot about issues relating to Chile's various systems of property.

Dominique and Matias also went above and beyond the call of duty in taking great care of my wife and me during the visit. The took us to a few of Santiago's many great restaurants (including Rivoli, which is highly recommended), and made sure we sampled a number of great Chilean wines, including, most notably a particularly fine Carmenere from the von Stiebenthal winery (located to the north of Santiago). On Saturday, they drove us out to Valparaiso on the coast for some sight-seeing and another fine meal, before our plane left late Saturday night.

Santiago is a fun and lively city, full of joggers, cyclists, walkers, shoppers, and diners. Filled with cafes bordering tree-lined streets, museums, many nice parks, and lots of shopping, it's well worth a visit.

The Law Faculty at UDP

Friday, November 22, 2013

Globalization and Quality: A Casual Observation of Cafes in One Santiago Neighborhood

This morning, following a mediocre cup of coffee at my (small, locally-owned, non-chain) hotel, I walked down the block to Starbucks, which was far more crowded than several other cafes in the neighborhood. Apparently, many of the residents of this particular (mixed) neighborhood consider Starbucks coffee superior.

It does not surprise me that Starbucks provides superior coffee in places like the US and the UK. But I'm very surprised that it does so (according to the very limited evidence at hand) in Chile.

Thursday, November 21, 2013

Ezra Klein on Today's Partial Demolition of the Senate Filibuster

Here in the New York Times. The take-home point:
Today, the political system changed its rules to work more smoothly in an age of sharply polarized parties. If American politics is to avoid collapsing into complete dysfunction in the years to come, more changes like this one will likely be needed.
And here's a neat graph from the piece showing how abuse of the filibuster is a relatively recent phenomenon:

killing filibuster

Wednesday, November 20, 2013

First Trip to Chile

I'm flying to Santiago later today to give an invited lecture Friday at the Faculty of Law of Diego Portales University. My talk is called "Property 2.0," and it combines and adapts elements of my 2002 book Pollution and Property (see here) and a more recent book chapter I co-authored with Lin Ostrom on "The Varieties of Property Systems and Rights in Resources" (see here). Dominique Herve, Director of UPD's Program in Environmental Law and Policy, will comment on my presentation, and two panels will address various issues at the intersection of property and environmental law.

In addition to the conference, I'm looking forward to sightseeing around Santiago, and perhaps a side trip to Valparaiso, and especially sampling some fine Chilean wines.

Tuesday, November 19, 2013

Record Turnout at Brooks Integrative Training

Coach Bob had record attendance at this evening's training session - 36 cyclists lined up in two long rows. And he put us through our paces. Word's getting around about BIT.

Feeling ready for a long flight to Chile tomorrow.

Monday, November 18, 2013

What's the Difference Between a Tax and a Regulatory Charge?

Functionally, there may be no difference at all. But legally, the difference can be acute. Last week, the California Superior Court for the County of Sacramento upheld (here) a regulation of the California Air Resources Board (CARB) requiring auctioning (rather than free allocation) of emissions allowances to regulated carbon emitters under AB32, California's "Global Warming Solutions Act" of 2006. The auctions are expected to raise $12 billion to $70 billion in revenues for the State over the life of the program, which (pursuant to other legislation) will be earmarked for programs to reduce greenhouse gas emissions throughout the state.

The California Chamber of Commerce and other plaintiffs claimed that the auctioning rules exceeded CARB's scope of authority under AB32 and violated California's Proposition 13, which requires a 2/3 supermajority vote of the legislature to increase state taxes for the purpose of raising revenues. The court concluded that the auctions were consistent with AB32 and did not violate Proposition 13 because they are not a tax but revenues generated by sales of valuable commodities (emissions allowances).

Needless to say, I'm am very pleased with the court's ruling, and hope it survives on appeal. I agree with its distinction between a tax and a sale, though it's clear that auctioning of emissions allowances functions just like a tax. In a way, it's ironic that Justice Roberts of the US Supreme Court had to work so hard to characterize the Affordable Care Act as a tax in order to preserve the legality of the "individual mandate" under the US Constitution, while in this case the California court had to avoid treating a very similar kind of instrument as a tax in order preserve its legality under the state constitution.

Terrific Interview with Steve Reich

One of my favorite contemporary composers, here, at The Gothamist.

Saturday, November 16, 2013

Adventure Ride Saturday

I rode over to Dr. Jim's house and from there we hit the SW side of Bloomington. The wind was gusting to 25 mph from the south, and that proved to be the least of our problems. At one point, we had to portage our bikes over mounds of debris at an I-69 construction site, and then we rode some gravel roads on the way in (fortunately no punctures, but quite an upper-body workout). Not the fastest ride ever, but 45 miles and just under 4000 total feet of climbing. I'm sure I'll feel it when I get up tomorrow morning.

Friday, November 15, 2013

Exporting TSA Inefficiencies to Canadian Airports

It took me nearly 1.5 hours to get through US preclearance passport control and security at Toronto's Pearson Airport today. Fortunately, I had gotten to the airport early enough to make my flight. Other travelers in the security lines were not so lucky.

Would this be a bad time to renew my plea for most cost-benefit balancing in our national insecurity apparatus?

Wednesday, November 13, 2013

Off to Toronto

I've a presentation tomorrow afternoon at the University of Toronto Law School. The event announcement is here. The paper I'm presenting can be downloaded here.

A Photo from Last Saturday's Group Ride

By Lake Lemon:

Tuesday, November 12, 2013

COP19 startuje we Warszawie

The global roving cocktail party known as the Conference of the Parties to the United Nations Framework Convention on Climate Change has opened in Warsaw, Poland. This is good news for the local economy, and for conference delegates who enjoy good vodka and kabanosy (as I do), but not much else.

I long ago gave up hope that global negotiations involving thousands of people might lead to substantive breakthroughs in climate policy. At least this time around the parties aren't promising any breakthroughs; they're merely trying to keep up their largely pretended momentum toward a new climate agreement next year.

Whatever the newspapers say, the UN's COP is a sideshow. The only climate talks of potential import and interest are those taking place bilaterally between the US and China. If those two countries can make a significant deal in the next couple of years, they could well tip global climate negotiations into a much more cooperative and productive equilibrium.

Sunday, November 10, 2013

Who Are Those Guys Wearing Colts Uniforms?

They're can't be the real Colts, getting stomped by the Rams (and their own mistakes). They look worse today than during the horror days of the Curtis Painter season.

Among other things, from week to week it's looking as if the Browns made a savvy deal getting a first-round draft choice in exchange for the ponderous Trent Richardson. And Darius Heyward-Bey continues to display the stone hands of a boxer.

Is today's game a signal that the Colts have been vastly overrated, or is it just a wake-up call to a team coasting on the strength of its good publicity?

Man U 1 - Arsenal 0

All credit to Manchester United. They really pressed the Gunners, who simply were unable to get their offensive attack out of neutral.

Per Mertesacker and Thomas Rosicky were missing because of illness. In truth, the entire team looked flu-ridden.

Saturday, November 9, 2013

Rare Saturday Group Ride in B-town

Several of my cycling buddies (nearly half of Team Treachery & Deceit) drove down from Indy today to ride the hills with Dr. Jim and me this afternoon. We rode both sides of Lake Lemon, Shilo Road, and up into the Morgan-Monroe State Forest on Beanblossom, for a total of nearly 44 miles and more than 3200 feet of climbing. Thanks to David, Larry, Kenny, Big Frank, Ed (and his son Ryan, a former Little 5 rider), Bill, and Terry for making the drive down for a very pleasant, if windy, Saturday ride. I hope I tempted them all to come back again soon with a post-ride feast featuring Aver's pizza and Fat Tire.

Special kudos to Ed, who got a new hip just last year, and still beats me up the hills at the youthful age of 68. Also, Kenny, who just turned 60, has really gotten stronger in the last year or so. I can't say that I could ever have beat Ken up the hills, but at least we used to ride them together. Not any more.

I'm still the slowest rider in the group (especially uphill), but at least I'm also still the heaviest. (I wonder whether those facts are correlated.)

Thursday, November 7, 2013

Judicial Review of EPA's New Regs on Carbon Emissions from New Coal-Fired Power Plants

Dan Farber sagely observes (here) that power companies will have trouble challenging the regulations in court because in order to establish standing they have to establish that they will be harmed by the regulations. But, as Dan points out, no power companies are building coal-fired plants these days; the fracking revolution has led to a wholesale switch to natural gas-fired plants, which will not be affected by the regulations. In the absence of actual plans to build coal-fired power plants anytime soon, the D.C. Circuit really should deny standing. Of course, courts don't always do what they should do under prevailing legal rules.

Sunday, November 3, 2013

A Few Observations About the Colts Win Over the Texans

1. Whoever thought that the Colts would not miss Reggie Wayne were kidding themselves. The Colts had no replacement slot receiver who could make the hot reads, and it showed throughout the game (and in Luck's first-half passing stats). In particular, if Darious Heyward-Bey is the answer, I don't know the question.

2. The refs had a terrible game, almost entirely to the detriment of the Colts (especially the missed roughing-the-kicker call and the wholly unjustified reversal of a correct call on a fumble by Houston).

3. The Texans played as if it were a playoff game, which it virtually was to them. Much credit to their young quarterback, Case Keenum, who didn't look like it was only his second start. His offensive line gave him great support, keeping the Colts pass rush at bay. (The same cannot be said of the Colts offensive line throughout most of the contest.)

4. At halftime, I thought there was no way the Colts were going to come back from an 18-point deficit playing away from home.

5. Andrew Luck's poise, self-belief and belief in his teammates, when the Colts are trailing, is simply amazing. This was his 10th fourth-quarter comeback victory in 23 professional starts.

6. Many thanks from Colts fans to the Houston kicker.

7. Finally, sincerely felt best wishes to Houston head coach Gary Kubiak, who collapsed at halftime and was taken to the hospital. The Texans had all the momentum going into the break, and it's hard to imagine that Kubiak's absence didn't demoralize them a bit. And he's also the team's offensive play-caller.

Protecting Cyclists from Negligent Motorists: A Tale of Two Countries

Bob Mionske compares what happens in the US and the Netherlands after a motorist kills a cyclist, here at It's long past time US police, juries, and legislators stopped casually accepting "I didn't see the cyclist" as an excuse.

Saturday, November 2, 2013

Arsenal 2 - Liverpool 0

Arsenal have made a great start to the Premier League season, but they haven't played any of the top contenders (among whom I do not count Spurs). But in the last week, Arsenal have lost two home games to top opponents: Dortmund in the Champions League and Chelsea in the League Cup (in the later match Wenger rested several of his starters). So, some fans were understandably nervous ahead of today's home match against a quality Liverpool squad.

They needn't have worried. Although Arsenal only occasionally hit their fluid best on a few occasions throughout the match, they pretty thoroughly dominated Liverpool. Santi Cazorla scored in the first half half-volleying a rebound off the crossbar of his own header from about 10 yards out. In the second half, Aaron Ramsey settled everyone's nerves with a second goal created from almost nothing. Ozil picked him out with a short cross just outside the box. Ramsey took one touch then calmly stoked the ball with the outside of his foot, curling it past the diving Liverpool goalkeeper. Such is his scoring form that just about anything Ramsey tries seems to fly in the net.

Arsenal's defense created a few nervy moments as time wound down, but Liverpool never seemed likely to climb back into the match. It was just what the Gunners needed: a good solid win against a quality opponent. Right now, Arsenal's midfield looks so strong that very few teams (either in the Premier League or the Champion's League) will be able to cope with them. In particular, Ozil seems to be improving his underestanding with Cazorla, Ramsey, Rosicky, and the others from one week to the next.

Saturday Ride

It's a beautiful homecoming Saturday here in B-town. So, Dr. Jim and I took advantage and went out for a 24-mile ride (the Orchard route). I hadn't ridden outdoors in nearly two weeks, and I'm still feeling the first two indoor training sessions with Coach Bob in my legs. Not surprisingly, a couple indoor training sessions really doesn't help with the hills. I think the only thing that helps with climbing are hill repeats (and a bit of weight loss wouldn't hurt either).