By J.B. Ruhl
Post 10: Designing the Complex Adaptive Legal System
August 2, 2006
I agree with Dan’s observation in his 8/1 post that it’s time to explore practical applications of complexity theory in the legal system. So, let’s bite off a problem for law. There’s no shortage of them: habitat loss, identity theft, sprawl, criminal rights, and so on—just pick one. Taking all that the theory of complex adaptive systems (CAS) suggests about the behavior of such problems and of the legal system, how would we go about designing legal instruments and institutions to deal with the problem?
One practical consequence of CAS properties is that, as we build our model of the problem and of possible legal responses, we must keep in mind that neither the problem nor the response is “closed.” Both co-evolve in context, and thus a model built today must be designed to evolve as well, to be a working model that takes new information into account over time. This means that the two workhorses of conventional regulatory law—cost-benefit analysis and impact assessment—will have limited utility over time in guiding decisions if they are not used as part of a working model. In particular, the more we attempt at the “front end” to use these techniques to formulate decisions intended to apply over significant time frames, without building in assessment and adjustment mechanisms at the “back end,” the more likely the decision eventually will diverge from reality. (See the work of Sid Shapiro and Rob Glicksman on the “front end/back end” distinction) Yet, this is precisely how we approach many problems in law.
The National Environmental Policy Act (NEPA), for example, is based on the premise that an agency can predict all of the direct and indirect environmental, economic, and social impacts of a discrete decision (e.g., to build a levee system, or a highway) long into the future, evaluate and compare them in the present, and provide the analysis in a neat package (a/k/a the Environmental Impact Statement) for public consumption. Conveniently, NEPA includes no requirement that the agency ever look back and assess the accuracy of the EIS and imposes no consequences if the EIS proves to have been even wildly mistaken. For these and other reasons recent studies of NEPA suggest the need to make it more adaptive. Likewise, I’m not suggesting that cost-benefit analysis and impact assessments have no place in legal decision making; rather, if we must build and use working models, we cannot employ versions of these techniques that rely on static conceptions of the underlying problem.
Probably because its subject matter unquestionably is a CAS, environmental law has seen the most movement toward more dynamic, adaptive models of problems and of legal decisions. So-called “command-and-control” approaches, while unquestionably effective at reaching the low hanging fruit, have proven far less so in dealing with complex problems such as sprawl, non-point source pollution, and habitat loss. Leading thinkers of regulatory innovation such as Dick Stewart, Dennis Hirsch, and Jody Freeman have suggested that information-based, market-based, contractarian, and collaborative approaches will be more efficient and of more lasting utility in handling problems of that nature. And C.S. Holling and Lance Gunderson have forged the overarching model of adaptive management as the method for implementing such instruments. Even if you believe only that law must manage CAS problems (the “law and” position), you ought to find some merit in approaches that reject static models and decisions. Of course, if you also believe that the legal system itself is a CAS (the “law as” position), these ought to be even more attractive to you.
I realize that I’ve thrown a big box on the table without much discussion of what’s inside, and the “second generation” movement in environmental law is certainly not without its detractors. So this is a good turning point for moving from the theoretical to the practical. In my next post, therefore, I will wrap up this initial series on complexity theory and outline where I plan to go from there to keep the theoretical discussion alive but focus more attention on the practical implications and applications.