Complexity Theory, Adaptation, and Administrative Law

Recently, commentators have applied insights from complexity theory to legal analysis generally and to administrative law in particular. This Article focuses on one of the central problems that complexity. theory addresses, the importance and mechanisms of adaptation within complex systems. In Part I, the Article uses three features of complex adaptive systems-emergence from self-assembly, nonlinearity, and sensitivity to initial conditions-and explores the extent to which they may add value as a matter of positive analysis to the understanding of change within legal systems. In Part H, the Article focuses on three normative claims in public law scholarship that depend explicitly or implicitly on notions of adaptation: that states offer advantages over the federal government because experimentation can make them more adaptive, that federal agencies should themselves become more experimentalist using the tool of adaptive management, and that administrative agencies shou Id adopt collaborative mechanisms in policymaking. Using two analytic tools found in the complexity literature, the genetic algorithm and evolutionary game theory, the Article tests the extent to which these three normative claims are borne out

Accounting for Science: The Independence of Public Research in the New, Subterranean Administrative Law

The White House Office of Management and Budget (OMB) is putting the final touches on a system designed to account for the science used by federal agencies in their administrative missions. There are reasons for concern that OMB\u27s new programs could be used to skew the system by which regulatory science is generated in the first place

Public Investment in Climate Resiliency: Lessons from the Law and Economics of Natural Disasters

This Article takes issue with an important claim in the public choice and climate disaster literature: that American political markets will not allow appropriate investments in disaster preparedness and prevention, even when those investments are cost-benefit bargains. The claim is significant because the costs of climate disasters in the twenty-first century are estimated to be in the trillions of dollars due to the presence of legacy greenhouse gases in the atmosphere. Thus, even assuming a sustained, successful global campaign to limit future greenhouse gases, the ingredients for decades of droughts, wildfires, storms, and floods are already locked into the atmosphere. Yet, for fifteen years, public choice economists have modeled disaster politics as a political commons riddled with externalities that lead to tragic underinvestment in disaster preparedness and resiliency. This Article is the first to offer a sustained critique of the public choice claim. It argues that the claim has both theoretical and empirical limitations. As importantly, resiliency faces challenges that the public choice claim masks. These include the possibility of other institutional constraints standing in the way of optimal resiliency investments, as well as the possibility of resiliency haves and have-nots: of wealthier communities even going on resiliency “binges” while poorer communities suffer disinvestment and decades of disasteraugmented poverty. The Article invites a new wave of scholarly attention to resiliency’s prospects

Lessons From U.S. Coastal Wind Pools About Climate Finance and Politics

The financial costs of extreme weather are profound, not only in terms of the distress of those immediately affected but also in broader, more long-term macroeconomic and public budgetary effects. This Article focuses on the role that private and public insurance can play, both positively and negatively, on these effects. It also provides one of the most detailed analyses in the legal literature to date on the finances of three state residual-risk wind pools in the Gulf and Southeastern United States that have been created specifically with hurricane risks in mind