Papers by Jason S Johnston
Social Science Research Network, 2005
This paper analyzes polluters' incentives to move from a traditional command and control (CAC) en... more This paper analyzes polluters' incentives to move from a traditional command and control (CAC) environmental regulatory regime to a tradable permits (TPP) regime. Existing work in environmental economics does not model how firms contest and bargain over actual regulatory implementation in CAC regimes, and therefore fail to compare TPP regimes with any CAC regime that is actually observed. This paper models CAC environmental regulation as a bargaining game over * I am grateful to the editors for helpful comments and suggestions, and to all of the participants in the August, 2003 UC Santa Barbara workshop for stimulating discussion after presentation of the initial draft of these ideas, and especially to Juan Pablo Montero and Nathaniel Keohane for suggestions on the more formal analysis. I received helpful comments on later versions of this paper from participants in the Law and Economics Workshop at the University of Chicago and the Agricultural and Resource Economics Department Colloquium at the University of Arizona. Doug Lichtman and Dean Lueck had especially helpful written comments and suggestions. I of course remain responsible for remaining errors.
University of Pennsylvania Law Review, 2007
's article, Climate Change and Animals, 1 has two objectives. The first is to present the argumen... more 's article, Climate Change and Animals, 1 has two objectives. The first is to present the argument that, in addition to being concerned about species loss due to climate change, people should (and at least some do) care about the suffering that climate change will inflict upon animals. As the authors only sketch this argument, 2 I focus here on their primary objective, which is to derive a dollar value for the expected loss to Americans from species extinctions caused by climate change. This analysis is easy to summarize: Hsiung and Sunstein take a number representing the number of species projected to be lost from climate change and then multiply this number by the estimated dollar loss per species. Under this basic methodology, when all kinds of value generated by species are included, they estimate that the global-warming-induced species loss would cost Americans between $162 and $399 billion per year, or 1.4% to 3.5% of GDP. 3 Even in the big-numbers world of the costs and benefits of climate change, this is a very big number. Indeed, Hsiung and Sunstein admit that their estimated cost of species lost due to climate change would alone justify the United States in incurring the $125 billion that Nord-† Robert G. Fuller, Jr. Professor and Director, Program on Law, the Environment and the Economy, University of Pennsylvania Law School. My thanks go to Symposium participants for many helpful and supportive remarks. 1 155 U. PA. L. REV. 1697 (2007). 2 Here I note only that the likelihood of conflicts between the objectives of protecting and recovering species and preventing animal suffering is much, much greater than Hsiung and Sunstein acknowledge. For example, the recent wave of predator reintroduction programs in the United States-such as the reintroduction of wolves to Yellowstone National Park-has clearly led to much suffering by various prey, including elk that inhabit the enormous land area into which the Yellowstone wolves have now migrated. However, environmentalists generally support such reintroduction programs because they allow the restoration of "natural" ecosystems with stable (albeit oscillating) predator-prey relationships, while promising something that some environmentalists want just as much: the elimination of human elk hunters from the ecosystem.
University of Pennsylvania Law Review, 2004
In Contracts Without Consent: Exploring a New Basis for Contractual Liability, 1 Omri Ben-Shahar,... more In Contracts Without Consent: Exploring a New Basis for Contractual Liability, 1 Omri Ben-Shahar, a talented and creative economic analyst of law, advocates a principle-which he calls the "no-retraction" principle 2-that is so at odds with the existing structure of the common law of contracts 3 as to basically turn contract law upside down. Ben-Shahar's no-retraction principle would radically alter the line between agreement and no agreement, between liability for unkept promises or assurances and no liability for such unkept promises or assurances. Indeed, under a no-retraction regime, there would be no line between agreement and no agreement, and contractual liability could exist even in the absence of any communication (or what Ben-Shahar calls a "proposal") 4 at all. Transactions could be forced upon parties who want nothing to do with them-either because they've walked away from failed negotiations or because they were never in any negotiations to begin with-but only on the terms that were or would have been demanded by the unwilling party. By incurring reliance expenditures early in a contractual negotiation (or, apparently, before a negotiation had even begun), a relying party could hold the other negotiating party liable for those reliance expenses, regardless of † Robert G. Fuller, Jr. Professor of Law and Director, Program on Law and the Environment, University of Pennsylvania Law School. 1 Omri Ben-Shahar, Contracts Without Consent Exploring a New Basis for Contractual Liability, 152 U. PA. L. REV. 1829 (2004). 2 See id. at 1838-53 (explaining the reasoning behind and the benefits of this principle). 3 Inasmuch as "[t]he central tenet of the civil law. .. is that promissory estoppel does not exist,"
Chapter 1: Introduction by Jason Scott Johnston PART I. Institutions for Climate Science Assessme... more Chapter 1: Introduction by Jason Scott Johnston PART I. Institutions for Climate Science Assessment Chapter 2: The Cost of Cartelization: The IPCC Process and the Crisis of Credibility in Climate Science by Jason Scott Johnson Chapter 3: Adversarial versus consensus Processes for assessing scientific evidence: Should the IPCC operate more like a courtroom? by Ross McKitrick Part II. Taxonomy and Endangered Species Regulation Chapter 4: On The Origin Of Specious Species by Rob Roy Ramey II Chapter 5: Politics and Science in Endangered Species by Katrina Miriam Wyman Part III. Reforming the Role of Science in Environmental, Health, and Safety Regulation Chapter 6: Reconciling the Scientific & Regulatory Timetables by James W. Conrad, Jr. Chapter 7: Improving the Use of Science to Inform Environmental Regulation by Susan E. Dudley & George M. Gray Chapter 8: A Return to Expertise?: A Proposal for an Institute of Scientific Assessments by Gary E. Marchant
SSRN Electronic Journal, 2012
ABSTRACT
SSRN Electronic Journal, 2010
Legal scholarship has come to accept as true the various pronouncements of the Intergovernmental ... more Legal scholarship has come to accept as true the various pronouncements of the Intergovernmental Panel on Climate Change (IPCC) and other scientists who have been active in the movement for greenhouse gas (ghg) emission reductions to combat global warming. The only criticism that legal scholars have had of the story told by this group of activist scientists-what may be called the climate establishment-is that it is too conservative in not paying enough attention to possible catastrophic harm from potentially very high temperature increases. This paper departs from such faith in the climate establishment by comparing the picture of climate science presented by the Intergovernmental Panel on Climate Change (IPCC) and other global warming scientist advocates with the peer-edited scientific literature on climate change. A review of the peer-edited literature reveals a systematic tendency of the climate establishment to engage in a variety of stylized rhetorical techniques that seem to oversell what is actually known about climate change while concealing fundamental uncertainties and open questions regarding many of the key processes involved in climate change. Fundamental open questions include not only the size but the direction of feedback effects that are responsible for the bulk of the temperature increase predicted to result from atmospheric greenhouse gas increases: while climate models all presume that such feedback effects are on balance strongly positive, more and more peer-edited scientific papers seem to suggest that feedback effects may be small or even negative. The cross-examination conducted in this paper reveals many additional areas where the peer-edited literature seems to conflict with the picture painted by establishment climate science, ranging from the magnitude of 20 th century surface temperature increases and their relation to past temperatures; the possibility that inherent variability in the earth's non-linear climate system, and not increases in CO 2 , may explain observed late 20 th century warming; the ability of climate models to actually explain past temperatures; and, finally, substantial doubt about the methodological validity of models used to make highly publicized predictions of global warming impacts such as species loss.
American Law & Economics …, 2008
State Consumer Protection Acts (CPAs) were adopted in the 1960s and 1970s to protect consumers fr... more State Consumer Protection Acts (CPAs) were adopted in the 1960s and 1970s to protect consumers from unfair and deceptive practices that would not be redressed but for the existence of the acts. In this sense, CPAs were designed to fill existing gaps in market, legal and regulatory protections of consumers. CPAs were designed to solve two simple economic problems: 1) individual consumers often do not have the incentive or means to pursue individual claims against mass marketers who engage in unfair and deceptive practices; and, 2) because of the difficulty of establishing elements of either common law fraud or breach of promise, those actions alone are too weak an instrument to deter seller fraud and deception. The most striking lesson of our analysis is that the typical state CPA-with relaxed rules for establishing liability, statutory damages, damage multipliers, attorneys fees and costs, and class actions-solves the basic economic problem that CPAs were intended to address several times over. The effect of this redundancy in solutions is that CPAs can deter the provision of valuable information to consumers and, thus, harm consumers. That is, as currently applied state Consumer Protection Acts harm consumers. This need not be th
Cornell L. Rev., 1990
Llewellyn felt that as judges became more open and explicit about the "real" reasons be... more Llewellyn felt that as judges became more open and explicit about the "real" reasons behind their decisions and abandoned rigid for-malistic categories (the jurisprudence of rules) in favor of a more flexible, open-textured and policy-oriented approach (the jurispru-dence of ...
Over the past twenty odd years, Judge Richard Posner has established himself as one of the most c... more Over the past twenty odd years, Judge Richard Posner has established himself as one of the most creative and influential thinkers in the history of American law. His work divides into two parts: the prejudicial corpus, which is devoted almost entirely to the comprehensive economic analysis of law,\u27 and the postjudicial corpus, which treats issues involving what may be called the theory of judging and courts--that is, the normative theory of how judges should decide cases and how courts should be organized. This division is rough and wavering, for Posner\u27s work prior to his appointment to the federal bench often dealt with topics relevant to the theory of judging,\u27 and his work in law and economics has continued since his appointment. But while such a water- color boundary may fail in cartography, my purpose here is not map making but rather map reading. The map, Judge Posner\u27s recent book The Problems of Jurisprudence, ostensibly covers terrain on the postjudicial side o...
Back in 1995, Professor Epstein famously termed such use of the permit power a “racket,” and as o... more Back in 1995, Professor Epstein famously termed such use of the permit power a “racket,” and as observed very recently by Dave Owen, still today many landowners and conservative critics would agree with the Supreme Court’s description of the process (in Nollan v. California Coastal Commission) as an “out-and-out plan of extortion.” However extortionate such deals may be, regulators with permit power may require landowners to bargain with them before developing their land or else face legal sanctions. This Essay explores in more detail how such bargaining has played out under two of the most important permit regimes in federal environmental regulation: wetlands permits under section 404 of the Clean Water Act and incidental take permits under Section 10 of the Endangered Species Act
1460871. 289 Raphael W. Bostic et al., Mortgage Product Substitution and State Anti-Predatory Len... more 1460871. 289 Raphael W. Bostic et al., Mortgage Product Substitution and State Anti-Predatory Lending Laws: Better Loans and Better Borrowers?, 40 ATLANTIC ECON. J. 273, 289 (2012). 2016]
Texas A&M Law Review, 2018
This Article sets out an informal political economic theory which explains the relative permanenc... more This Article sets out an informal political economic theory which explains the relative permanence of regulatory carrots—legislative subsidies and mandates for product use—versus the transience of regulatory sticks—traditional costly regulatory requirements. After setting out the elements of this theory, I illustrate it with the dramatic rise in the Obama Administration and abrupt cessation in the Trump Administration of attempts to use conventional U.S. environmental regulatory sticks to end the U.S. coal industry. The Article turns then to describe a concrete example of a regulatory carrot—the U.S. corn ethanol mandate—that has survived despite overwhelming evidence that its environmental benefits, if any, are far outweighed by its environmental and economic costs. This Article concludes by discussing subsidies for solar energy.
This Article sets out a positive theory that explains the late twentieth-century federalization o... more This Article sets out a positive theory that explains the late twentieth-century federalization of American environmental law. On this theory, federalization occurred not because states had failed to regulate to reduce air and water pollution, but because older and heavily developed states moving toward such regulation gained a relative competitive advantage by imposing minimum standards on less developed and less polluted states (in the case of air), and by receiving subsidies from such regions (for water pollution reduction). The failure of federalization in the case of climate change is directly explained by this theory: the majority of states would be certain short and medium term net losers from such legislation.
SSRN Electronic Journal, 2015
The Consumer Financial Protection Bureau's Arbitration Study: Report to Congress 2015 does not su... more The Consumer Financial Protection Bureau's Arbitration Study: Report to Congress 2015 does not support the case for ex ante regulation of mandatory consumer arbitration clauses. It contains no data on the typical arbitration outcome-a settlement-and it is these arbitral settlements, and not arbitral awards, that should be compared to class action settlements. It does not address the public policy question of whether, by resolving disputes more accurately on the merits, arbitration may prevent class action settlements induced solely by defendants' incentive to avoid massive discovery costs. It shows that in arbitration consumers often get settlements or awards, are typically represented by counsel, and achieve good results even when they are unrepresented. In class action settlements, the Consumer Financial Protection Bureau reports surprisingly high payout rates to class members and low attorneys' fees relative to total class payout. These aggregated average numbers reflect the results in a very small number of massive class action settlements. Many class action settlements have much lower payout rates and higher attorneys' fees.
SSRN Electronic Journal, 2015
17 Dodd-Frank amended both the Truth in Lending Act ("TILA") and the Real Estate Settlement Proce... more 17 Dodd-Frank amended both the Truth in Lending Act ("TILA") and the Real Estate Settlement Procedures Act ("RESPA") by giving the CFPB exclusive authority to issue rules governing mortgage disclosures and requiring that the CFPB "publish a single, integrated disclosure for mortgage loan transactions" that includes all the terms required to be disclosed by both TILA and RESPA. Dodd-Frank Act,
In the spring of 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA that the U.S. Environ... more In the spring of 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA that the U.S. Environmental Protection Agency (EPA) must promulgate automobile tailpipe C02 emission standards under Section 202 of the Clean Air Act (CAA). American environmentalists hailed the Supreme Court's decision as an important victory in the battle to curb global warming. This article argues to the contrary that: 1) a large body of economic work demonstrates that the likely pattern of costs and benefits from climate change in the United States bears no resemblance to the pollution problems that Congress intended to deal with in the Clean Air Act, with moderate climate change predominantly benefiting, rather than harming, the U.S. -- so that that the Clean Air Act cannot reasonably be interpreted to cover greenhouse gas emissions; 2) By effectively forcing the EPA to regulate ghg emissions under a statute that was never intended to cover the very different problem of climate change, the Court has...
SSRN Electronic Journal, 2007
This paper identifies and evaluates, from an economic point of view, the role of the judiciary th... more This paper identifies and evaluates, from an economic point of view, the role of the judiciary the steady shift of environmental regulatory authority to higher, more centralized levels of government in both the U.S. and Europe. We supply both a positive analysis of how the decisions made by judges have affected the incentives of both private and public actors to pollute the natural environment, and normative answers to the question of whether judges have acted so as to create incentives that move levels of pollution in an efficient direction, toward their optimal, cost-minimizing (or net-benefit-maximizing) levels. Highlights of the analysis include the following points: 1) Industrial-era local (state or national) legislation awarding entitlements to pollute was almost certainly inefficient due to a fundamental economic obstacle faced by those who suffer harm from the overpollution of publicly owned natural resources: the inability to monetize and credibly commit to repay the future economic value of reducing pollution. 2) When industrial era pollution spilled across state lines in the US, the federal courts, in particular the Supreme Court, fashioned a federal common law of interstate nuisance that set up essentially the same sort of blurry, uncertain entitlements to pollute or be free of pollution that had been created by the state courts in resolving local pollution disputes. We argue that for the typical pollution problem, a legal regime of blurry interstate entitlements-with neither jurisdiction having a clear right either to pollute or be free of pollution from the other-is likely to generate efficient incentives for interjursidictional bargaining, even despite the public choice problems besetting majority-rule government. Interestingly, a very similar system of de facto entitlements arose and often stimulated interjursidictional bargaining in Europe as well as in the U.S. 3) The US federal courts have generally interpreted the federal environmental statutes in ways that give clear primacy to federal regulators. Through such judicial interpretation, state and local regulators face a continuing risk of having their decisions overridden by federal regulators. This reduces the incentives for regulatory innovation at the state and local level. Judicial authorization of federal overrides has thus weakened the economic rationale for cooperative federalism suggested by economic models of principalagent relationships. As a result of the principle of attribution, there is less risk in Europe that (like in the US) courts would enlarge the federal purview and thereby limit the powers of the Member States. Despite this principle, the power of the European bureaucracy (that is, the European Commission) has steadily increased and led to a steady shift of environmental regulatory competencies to the European level. This shift is only sometimes normatively desirable, and yet there is little that the ECJ can or will do to slow it.
SSRN Electronic Journal, 2008
This article describes the evolution and key features of the centralized environmental regulatory... more This article describes the evolution and key features of the centralized environmental regulatory systems that emerged in the United States and Europe during the latter half of the twentieth century. It applies insights from the positive economic analysis of regulatory centralization in an attempt to explain a striking paradox found in both the European and American centralized environmental regulatory regimes: that in both systems, centralized environmental regulation has been adopted not as a solution for transboundary pollution (inter-jurisdictional externalities), but rather for pollution that is primarily local. The paper explains that the tendency of centralized environmental regulation to focus so paradoxically on localized pollution is due to inherent pressures for regional protectionism and redistribution within a (federalized) political system. Normatively, we provide an up-to-date survey of the theoretical and empirical work on race-to-thebottom theory, and then apply normative economics to develop insight into the relative normative desirability of environmental regulatory centralization in the U.S. versus Europe. We believe that the relatively less centralized European system may have economic justification. On the other hand, the enlargement and increased economic integration of Europe raise both normative questions regarding the desirability of centralized European environmental regulation, and positive questions regarding the future of European environmental law. * We are grateful to Ryan Brown (University of Pennsylvania) and Wanchi Tang (Maastricht University) for useful research assistance and to Anna Rita Germani, as well as to the participants in the annual conference of the European Association for Law and Economics in Copenhagen (September 2007), for useful comments.
SSRN Electronic Journal, 2005
9 In the case of Kysar, consumer product markets, and in the case of Vandenbergh, markets for cor... more 9 In the case of Kysar, consumer product markets, and in the case of Vandenbergh, markets for corporations and their assets. 10 See Kysar, supra note __ at 579-640 (discussing implications of consumer process preferences for international trade and product disclosure laws).
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Papers by Jason S Johnston