399 research outputs found

    Stakeholder Collaboration as an Alternative to Cost-Benefit Analysis

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    This Article compares and contrasts cost-benefit analysis with “collaborative analysis” in agency decision-making. While mathematical models drive cost-benefit analysis, ongoing stakeholder negotiations drive collaborative analysis. Cost-benefit analysis relies on economists inputting numerical values into a model, whereas collaborative analysis relies on the diverse perspectives of groups and individuals affected by an agency’s decision. Administrative law scholars have exhaustively researched cost-benefit analysis while overlooking widespread agency reliance on collaborative analysis. This Article advances the novel observation that legislatures and courts sometimes treat collaborative analysis and cost-benefit analysis as interchangeable. Administrative law scholars might find it unorthodox, even irresponsible, to equate the deliberative process of average citizens with numerical calculations performed by economists. Yet, collaborative analysis works well in several contexts when numerical analysis does not: where data are scarce, burdens are unevenly distributed, normative values are at stake, and conditions are changing. Under such circumstances, agency officials report that collaborative analysis creates better outcomes, secures ex ante social approval of policies, provides adaptive decisionmaking, and reduces conflict and litigation risk relative to alternative tools. Despite the benefits of collaborative analysis and its surprisingly widespread use, its potential remains largely untapped. In identifying and defining collaborative analysis for the first time, this Article provides agencies, stakeholders, and courts the tools necessary to understand collaborative analysis and tap into its benefits

    Animal Property Rights

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    The animal rights movement largely focuses on protecting species whose suffering is most visible to humans, such as pets, livestock, and captive mammals. Yet, we do not observe how unsustainable land development and fishing practices are harming many species of wildlife and sea creatures. Fish and wildlife populations have recently suffered staggering losses, and they stand to lose far more. This Article proposes a new legal approach to protect these currently overlooked creatures. I suggest extending property rights to animals, which would allow them to own land, water, and natural resources. Human trustees would manage animal-owned trusts managed at the ecosystem level-a structure that fits within existing legal institutions. Although admittedly radical, an animal property rights regime would create tremendous gains for imperiled species with relatively few costs to humans

    Human as Animals - Pluralizing Humans

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    Species-based inequality is embedded in our institutions of law, government, and property. Legal distinctions between people and animals drive biodiversity loss. Recent environmental movements—including the rights of nature, animal rights, and wildlife property ownership—seek to lessen the gap in law’s unequal treatment of humans and other living things. Despite growing popular support for such reforms, legal scholars have yet to directly grapple with the mindset underlying the legal status quo. This Article identifies and challenges institutionalized speciesism in law. It critically examines the legal treatment of non-human animals. It also presents an alternative legal worldview—one informed by scientific, cultural, and religious inputs. Current legal discussions operate in terms of “humans and animals”; such conceptions should shift towards a conception of “humans as animals.” Laws do not merely govern human relationships with one another; they also govern human relationships with the broader natural world—which is itself alive and filled with other sentient beings. Human-created legal institutions are artificially limited in scope to human concerns. Such narrowness conflicts with biological reality, in which we exist within a broader natural context. This creates a fundamental mismatch between our too-narrow institutions and the real world, a world in which humankind lives in constant relationship with all other living things. Anthropocentric institutions artificially stripped of biological context unwittingly drive widespread devastation by systemically failing to account for non-human interests. Until humans broaden our institutions to reflect biological reality, we are doomed to continue decimating the world at ever-increasing rates. Only radically reforming institutions blind to other species will end this cycle, and thus, paradoxically, prevent humankind from indirectly, unintentionally destroying ourselves by destroying the environment upon which we depend. Law must begin to forthrightly engage questions of equality and distribution between humans and other living things. Our fate is inexorably intertwined with the fate of other living things. To save ourselves requires “saving” the natural world. We must apply the talents of our species—law among them—in a manner better aligned with reality. Shifting to an understanding of humans as animals is not a merely linguistic or philosophical move—it is the linchpin of an emerging conception of law harmonized with the natural world

    New Governance and Industry Culture

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    New governance scholarship argues that a blend of public and private regulation is playing an increasing role in influencing firm behavior. Despite its burgeoning growth, new governance scholarship is critiqued as lacking practical examples. This Article begins to fill that void by conducting a new institutional economics analysis of forest sustainability certifications, an example of new governance. This Article analyzes the features of the domestic forest industry to trace why new governance emerged within it and has persisted for over seventy years. The industrial characteristics that contribute to this longstanding new governance regime include strong norms within the industry, a resource-type that favors user-developed rules, and robust competition among private actors to regulate the industry. These findings suggest that new governance may emerge as a regulatory tool to address environmental problems in other industries that possess similar characteristics. The Article also sheds light into the broader discussion of how to measure the “success” of new governance regimes. It identifies stakeholder involvement relative to the democratic process and displacement of other regulatory tools as two key considerations in evaluating new governance approaches

    New Governance and Industry Culture

    Get PDF
    New governance scholarship argues that a blend of public and private regulation is playing an increasing role in influencing firm behavior. Despite its burgeoning growth, new governance scholarship is critiqued as lacking practical examples. This Article begins to fill that void by conducting a new institutional economics analysis of forest sustainability certifications, an example of new governance. This Article analyzes the features of the domestic forest industry to trace why new governance emerged within it and has persisted for over seventy years. The industrial characteristics that contribute to this longstanding new governance regime include strong norms within the industry, a resource-type that favors user-developed rules, and robust competition among private actors to regulate the industry. These findings suggest that new governance may emerge as a regulatory tool to address environmental problems in other industries that possess similar characteristics. The Article also sheds light into the broader discussion of how to measure the “success” of new governance regimes. It identifies stakeholder involvement relative to the democratic process and displacement of other regulatory tools as two key considerations in evaluating new governance approaches

    Development of a Coastal Resources Certificate Program for Marine Contractors & Consultants

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    The Center for Coastal Resources Management at VIMS has been engaged with continuing education and training for a mixed audience over the past 35 years. Marine contractors and consultants play an important role in the evolving field of tidal shoreline management. This Creative Adaptation Fund project investigated the unique training needs of this private sector audience and attempted to define the best format and delivery for a Coastal Resources Certificate Program. It was determined that training needs for shoreline professionals can be met with a multi‐day short course that includes both classroom and field settings. This private sector audience expressed a willingness to pay for training that is comparable to estimated course tuition. Supplemental funds may still be necessary to support all program costs. The proposed pilot course has not been held yet because essential course content and revisions to the training manual are still underway. We are also pursuing a broader public‐private partnership that supports and endorses the course and its contents to enhance the credibility and popularity of the certificate program

    Agency Coordination of Private Action: The Role of Relational Contracting

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    This Article explores the previously overlooked role of relational contracting in forming and maintaining public-private partnerships. Relational contracting generally describes firms using formal but legally non-binding agreements to collaborate on shared objectives. Why do parties invest in forming elaborate contracts that they do not—and cannot—enforce in court? Contract theory suggests that the very act of contracting is relationship-building; it generates commitment, trust, cooperation, a win-win philosophy, and strengthened communication. Writing down goals and intentions allows parties to clarify expectations while maintaining flexibility for unforeseen conditions. This Article demonstrates that agencies also use relational contracting— creating unenforceable written agreements to build relationships with external actors. To shed light on agencies’ use of relational contracting, this Article provides a novel review of the recovery planning process required by the Endangered Species Act. A surprising finding emerges: private groups are providing crucial resources and logistical support to prevent the extinction of endangered species. Tribes, states, nongovernmental organizations, and sportsmen’s groups are providing necessary resources to further agency action. By orchestrating private action through recovery planning documents, the agency can garner the resources necessary to undertake species translocations, which it could not unilaterally facilitate. Although the plans are not judicially enforceable, they nevertheless play a coordinating and commitment-generating role in facilitating private actors to engage in recovery efforts. This example highlights the broader trend of relational contracting building and formalizing relationships between agency and non-agency actors. Environmental impact statements, forest management plans, and recovery plans for endangered species are all examples of such “relational contracts” governing inter-agency and private-public collaborations. Viewed in this light, seemingly prosaic planning documents are, in fact, a crucial component in facilitating many agency collaborations. Descriptively, this account adds institutional detail to literatures on new governance and public-private partnerships. Normatively, it raises questions about whether the benefits of contracting offsets the potential distributional inequities and mechanisms to shroud government actions created by the practice
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