The University of Chicago Law School Faculty Blog

Redistributing Wealth Through Greenhouse Gas Abatement Efforts

In his invaluable blog, Larry Solum makes the following criticism of a paper recently posted with SSRN by me and Cass Sunstein.  His focus is our claim that unilateral or multilateral greenhouse gas abatement is not a sensible way of redistributing wealth from rich nations to poor nations.  He begins by quoting us:

It is possible that the more direct methods [of redistributing wealth from rich countries to poor countries] are inferior, for example because it is not feasible to provide that direct aid; but this argument has not been made out.

Then he makes the following argument:

It seems to me that the "feasibility" issue is, in some sense, the core of the dispute.  The salience of distributive justice to the distribution of the costs of ameliorating climate change arises because direct aid to the poor is perceived as outside the feasible choice set, whereas concentrating the burden of greenhouse gas reduction on wealthier nations is sometimes perceived as inside the feasible choice set.  Sunstein and Posner are surely right when they suggest that we really need evidence on this question, but I don't really see why their burden-shifting move is adequate.  It is their argument: shouldn't they at least attempt to provide evidence that their proffered alternative (direct aid to the poor) is inside the feasible choice set?

I think the answer is no.  Suppose, first, that that direct aid is within the feasible choice set.  (It probably is: the United States and other wealthy states already give direct aid to poor countries.  As has been frequently pointed out, the amount of aid is not great, and much but not all of it is tied to strategic interests.  Nonetheless, at least some of it appears to be purely altruistic.)  Let's call the amount of aid that is purely altruistic, and not tied to anything else, X.  If (say) the United States already gives X to poor states, and then finds itself providing additional implicit aid, Y, in the form of greenhouse gas abatement efforts, should we expect X to remain the same or go down?  If the United States has a budget, then either X will go down, offsetting Y, or there will be less spending on Americans--more likely the former.  Unless Americans either spontaneously become more generous or stop paying attention to the budget, direct aid will go down even though it is (as we explain in the paper) superior to indirect aid.

Second, consider the possibility that the United States does not give any "real" aid to other countries: it is all tied to strategic interests.  That is, direct aid is outside the feasible choice set.  If this is the case, then there is no reason to believe that such a selfish country would start giving aid in the form of disproportionate climate treaty obligations.  Why would climate change treaty negotiations convert the U.S. from a selfish state into a generous state? It is hard to see why Americans would become more altruistic than they have been in the past, in the course of determining greenhouse gas policy.  So if direct aid is outside the feasible choice state, indirect aid is as well.

The bottom line is that we assume merely that states treat different types of aid flows consistently, that is, they treat direct and indirect aid the same.  This seems like a plausible enough assumption to throw the burden of proof on those who think that, in this context, governments would systematically misunderstand the costs of their activities.

Are Appointed Judges Better Than Elected Judges?

Everyone assumes that the answer is yes, but the evidence suggests (maybe) otherwise.  See this paper, and the abstract below.

Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary

STEPHEN J. CHOI New York University - School of Law G. MITU GULATI Duke University - School of Law ERIC A. POSNER University of Chicago Law School; University of Chicago Press August 2007

Abstract:      Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).

Climate Change Justice

Papua, Indonesia, says that if other countries are concerned about global warming, they should pay Papua not to cut down its forests. For Papua, short-term development is more important than the long-term cost of global warming. China has made a similar argument. Global warming is a serious problem but China has a “right to development,” and until hundreds of millions of Chinese make more than $1 per day, China is right to avoid being entangled in international climate control commitments. If the rich countries want to avoid being swamped by rising seas, they will have to pay China to cut back on greenhouse gas emissions.

Symposium on Terror in the Balance

Adrian Vermeule and I are defending our book, Terror in the Balance, in an online symposium over at Opinio Juris.  Below is a taste.  If you have comments, please post them at Opinio Juris, where the debate is in full swing.

The Race to the Arctic and International Law

News items:

1. On August 2, a Russian mini-sub planted a titanium flag on the seabed of the North Pole. The sub’s voyage was supposedly a part of a scientific mission to determine whether Russia’s claim to an enormous portion of the Arctic seabed is valid. But if the science is in doubt, why plant a flag?

Showdown!

Recent headlines have been full of references to “constitutional showdowns,” as the President asserts executive privilege against a Congressional investigation of the firing of U.S. Attorneys, and as Congress threatens to restrict the President’s discretion to deploy troops in Iraq.  See (for example) here, here, and here.

The constitutional showdown is a category with real-world importance, but no theoretical backbone.  What is a showdown, and are they bad, or good?  Why and under what conditions? 

The New Race for the Arctic

Melting polar ice and the high cost of energy are creating a new battleground at the top of the world. Yesterday a Russian mini-sub released a capsule containing a Russian flag onto the seabed at the North Pole. This was the climax of a research expedition whose purpose is to support Russia's claim to what could be billions of tons of oil and gas reserves in an area of the Arctic twice the size of France. Russia has already been setting up new military and civilian posts, such as in the Zemlya Frantsa Iosifa archipelago in the northeastern Barents Sea.

Meanwhile, Canada has reasserted its claim over the melting Northwest Passage, a portion of the Arctic Ocean linking the Atlantic and Pacific Oceans. Its recent announcement that it will build patrol vessels in order to establish sovereignty over the passage had a belligerent tone uncharacteristic of our peaceful neighbor.

Should China (and the U.S.) Be Paid To Abate Greenhouse Gas Emissions?

Suppose that a country, Y, is threatened by a natural phenomenon, such as flooding.  Y lacks the technological know-how to build sea walls, so it pays another country, Z, to build the sea walls for it.  We would not normally criticize Z for charging Y to build the sea walls, even if Y is a poor country.

Now imagine that Y and Z share the coastline.  The expected flooding imposes different costs on both countries: $90 million for Y, and $10 million for Z.  And imagine that a single flood warning system would be the most efficient way to minimize these costs.  A high-quality system would eliminate all of the losses but would cost $30 million.  A low-quality system would halve the losses but cost only $2 million.  Which system should be built?

Bickel, Jackson – and Bush

Recently the Bush administration has submitted its warrantless surveillance program to examination by the Foreign Intelligence Surveillance Court, after maintaining vigorously that it need not do so.  It is unclear what, exactly, the administration is asking the Court to do, and the administration refers obscurely to “new legal developments”; but let us suppose that at least part of the administration’s motive is to avoid a judicial and legislative test of the program’s legality, by rendering litigation moot and dampening the impetus for congressional oversight.  In litigation over the detention of enemy combatants, the administration has sometimes pulled off a similar maneuver, as when it transferred Jose Padilla from military detention to the criminal justice system in order to moot pending litigation.  Many critics find these actions objectionable.  Are they?

Three Views of National Security and the Constitution

Just as Gaul was divided into three parts, so too judges and constitutional lawyers interested in national security tend to fall into one of three broad camps:

(1) Executive unilateralists, who believe that courts and legislatures do and should defer heavily to the executive during wars and emergencies. Our book, Terror in the Balance, stakes out this view, which has only a few other defenders in the legal academy.

(2) Democratic process theorists, who are most worried about the separation of legislative and executive powers, and who want above all that executive action during emergencies should be authorized by Congress. (A variant of this view is Bruce Ackerman’s proposal for a “framework statute,” to be enacted before the next attack, that would structure executive emergency powers). For democratic theorists, the central text is Justice Robert Jackson’s concurrence in the Steel Seizure case, which suggests that the president’s powers are at their high-water mark when he acts with congressional approval, and at low ebb when he acts against congressional instructions.

(3) Civil libertarians, who typically want courts to examine emergency action to ensure that it does not violate constitutional rights.