Wednesday, August 02, 2006

Designing the Complex Adaptive Legal System

The Simply Complex Law
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.


Anonymous Anonymous said...

I've sometimes wondered if some of the sillier legislation of recent times is linked to the fact that there are now very few lawyers in Congress or the state legislatures who have ever spent any significant time in private practice. I don't think that there are any who have been serious law professors. One gets a feeling that our legislators really don't have much idea of how many of the laws they enact will actually affect human behavior.

Some laws, like minimum wage for example, operate relatively directly on people, and anyone who has ever been an employee or business manager, or owner, can get an idea of how the society is likely to react to them. Even these, though, have federalism and preemption issues that most non-lawyers don't really focus on. Most laws which deal with standing, evidentiary issues, etc. (like the latest revisions to the bankruptcy code, or pollution regulation) operate through the mediation of the court system, in ways which legislators have never directly experienced. I suppose this is just a result of increasing specialization over time - a separation of the functions of government into ever-finer subspecialities. Still, one gets the idea that these people have no idea what they're doing, which is disconcerting, and not a very usual result of specialization.

It is also interesting to me that there is usually some egghead group or other which actually gets a hearing and explains pretty well the predictable practical effects of any proposed legislation (eg the American Library Association on copyright law), but this information is not deemed nearly as relevant as the impassioned testimony of the groups most directly affected.

Just some thoughts. Thanks for the excellent blog - I'm enjoying it.

Paul Eberhardt

8/02/2006 5:22 PM  

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