The Problem of Shared Irresponsibility in International Climate Law

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

Laws, Norms, and the Institutional Analysis and Development Framework

Elinor Ostrom’s Institutional Analysis and Development (IAD) framework has been described as ‘one of the most developed and sophisticated attempts to use institutional and stakeholder assessment in order to link theory and practice, analysis and policy’. But not all elements in the framework are sufficiently well developed. This paper focuses on one such element: the ‘rules-in-use’ (a.k.a. ‘rules’ or ‘working rules’). Specifically, it begins a long-overdue conversation about relations between formal legal rules and ‘working rules’ by offering a tentative and very simple typology of relations. Type 1: Some formal legal rules equal or approximate the working rules; Type 2: Some legal rules plus (or emended by) widely held social norms equal or approximate the working rules; and Type 3: Some legal rules bear no evident relation to the working rules. Several examples, including some previously used by Ostrom, are provided to illustrate each of the three types, which can be conceived of as nodes or ranges along a continuum. The paper concludes with a call for empirical research, especially case studies and meta-analyses, to determine the relevant scope of each of these types of relations, and to provide data for furthering our understanding of how different types of rules, from various sources, function (or not) as institutions

Political Institutions, Judicial Review, and Private Property: A Comparative Institutional Analysis

Since Madison, jurists of all ideological stripes have more or less casually presumed that constitutional judicial review is absolutely necessary to protect private property rights against over-regulation by political bodies. During the twentieth century, this presumption led directly to the institution of regulatory takings doctrine. Recently, the economist William Fischel and the legal scholar Neil Komesar have raised important questions about, respectively, the utility and the sufficiency of constitutional judicial review for protecting private property. This article supports their arguments with theoretical and historical evidence that constitutional judicial review (1) is not strictly necessary for protecting private property rights, and (2) may have substantially less marginal social utility than most jurists presume. The theoretical evidence comes from positive political-economic theories of property rights, according to which political institutions can be expected to substantially protect property rights in order to secure political and military support and generate tax revenues. The historical evidence comes primarily from the United Kingdom, where property rights have never been judicially protected against intentional and uncompensated parliamentary expropriation or regulation, but where Parliament has imposed substantial limits, including compensation requirements, upon itself. Further evidence comes from several American states that have enacted takings statutes. The evidence presented in this article supports William Fischel\u27s normative conclusion that judicial review is more important for protecting private property against the depredations of local governments than state or federal governments. It also provides reason to believe that property rights will be protected even if Neil Komesar is right that the courts are institutionally incapable of doing so. Finally, the article carries possible normative implications for regulatory takings doctrine

An Unqualified Human Good : E.P. Thompson and the Rule of Law

The late EP Thompson described himself as a historian in the Marxist tradition. But when he embraced the Rule of Law (in Whigs and Hunters), many of his colleagues on the left ostracized him as an apostate. This essay argues that Thompson\u27s critics have largely misunderstood what he meant by the Rule of Law. His was a minimal and historical conception, which merely sought to distinguish states whose rulers had unfettered discretion from states whose rulers were constrained by legal rules, whatever their source and contents. Also, in contrast to other radical theorists, Thompson recognized that law would be a necessary feature of any complex society, no matter what its economic basis, for mediating social relations. The essay concludes with some thoughts about the relevancy of Thompson\u27s conception of the Rule of Law for ongoing efforts to revitalize a more radical liberalism