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.

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