The Volokh Conspiracy

I join those mourning the passing of Nobel Prize winner Elinor Ostrom. She will be greatly missed. In this 2009 post written soon after she won the prize, I described the significance of her pathbreaking work on collective action and tragedy of the commons problems, which has had a huge influence on economists, political scientists and legal scholars alike:

When Ostrom began writing in this field in the 1960s, the conventional wisdom in economics and political science was that the tragedy of the commons and other similar collective action problems could only be addressed through government intervention. Some dissenting economists (such as Ronald Coase) argued that they could often be addressed through privatization – converting common property into property owned by individuals, who would then have strong incentives not to overuse or destroy it. In a series of influential articles and books, Ostrom showed that there is a third way: often individuals can use social norms and informal institutions to manage common property resources and prevent tragedies of the commons. In many situations, Ostrom demonstrates, informal, decentralized approaches to managing common property resources are superior to government-imposed ones. The former take more account of the specialized local knowledge possessed by the people who actually use the resources and depend on them for their livelihoods....

Ostrom’s theories are often seen as an alternative to traditional libertarian thought, which emphasizes the importance of private property and markets. However, it actually fits well with libertarianism defined more broadly as advocacy of the superiority of private sector institutions over government. In some respects, Ostrom’s norm-based approach to dealing with tragedies of the commons is actually less dependent on government than the more traditional libertarian approach of relying on exclusive private property rights.....

Not all tragedies of the commons can be solved by the kinds of mechanisms studied by Ostrom. Her research shows that such approaches usually work well only in groups with no more than a few thousand members. Beyond that point, resource usage norms become hard to enforce and free-riding difficult to suppress. Informal norms and institutions probably cannot solve nationwide collective action problems such as rational political ignorance...., or worldwide ones such as global warming. Still, they can address a great many environmental and economic dangers that most experts once believed required government-imposed solutions.

Co-blogger Jonathan Adler points out several weaknesses in the collective action theory approach to interpreting constitutional federalism advocated by a number of academics, most notably Robert Cooter and Neil Siegel. The theory has been used as a tool for defending the constitutionality of the individual mandate, though I have argued that it may actually cut the other way because there is no collective action problem preventing individual states from enacting health insurance mandates of their own – at least not if the mandate has the beneficial effects that advocates ascribe to it.

Last year, I reviewed Cooter and Siegel’s excellent Stanford Law Review article on the subject for the Jotwell website. Although I called the article a major contribution to federalism scholarship, I also had several major reservations about their theory. Its most important flaws are that it doesn’t square with the text of the Constitution, and that it ignores the possibility that federal legislation can create collective action problems as well as solve them:

Despite its impressive strengths, Cooter and Siegel’s analysis also has a few problems. It is far from clear that Article I really gives Congress unfettered authority to solve any and all collective action problems among the states. If that were the case, why would the Founders have bothered to carefully enumerate seventeen separate powers plus the Necessary and Proper Clause, instead of a single catch-all “Collective Action Clause?” To their credit, Cooter and Siegel foresaw this issue and tried to address it by arguing that the enumerated powers are not meant to be an exhaustive list, but an illustrative one. Yet it seems unlikely that a merely illustrative list would be so long and precisely detailed. Moreover, treating the list as illustrative renders the Necessary and Proper Clause superfluous. Under that approach, Congress would already have had the power to enact any measures “necessary” to solve any collective action problem, even if they were not specifically listed.

Second, Cooter and Siegel’s framework might actually negate certain specifically enumerated powers if it turns out that they are not needed to solve any collective action problems. Consider Congress’ power to “establish post offices.” It is now clear that private firms such as Federal Express can deliver the mail just as effectively as the federal government, if not more so. And they can easily exclude would-be free riders who try to get away with not paying for postage. Does that render the US Postal Service unconstitutional?

Most importantly, Cooter and Siegel do not consider the possibility that the Constitution should be interpreted to curtail federal government policies that create “public bads,” as well as facilitate those that provide public goods. Just as Congress can solve collective action problems, it can also create them. To take one common case, it can enact special interest legislation that benefits small, well-organized groups at the expense of the general public. The repeal of such laws then becomes a nationwide collective action problem, one that the public often fails to solve because individual citizens and states have strong incentives to free ride on such matters....

Cooter and Siegel rightly argue that “[a] federal constitution ideally gives the central and state governments the power to do what each does best.” But a federal constitution must also protect against the dangers posed by both state and federal power. A powerful central government is often “best” at solving national collective action problems. But it is also often the “best” at creating them.

In a recent response to critics of his earlier column on the individual mandate case, Jeffrey Rosen claims that upholding the individual mandate would not lead to unlimited congressional power because “Congress [still] cannot use its commerce power to regulate activity that has no substantial effects on interstate commerce and where there are no collective action problems that make it impossible for the states to act on their own.”

If these two proposed constraints are interpreted in such a way as to allow the individual mandate, they would also allow any other mandate as well. In and of itself, the “activity” being regulated by the individual mandate – not having health insurance – has no “substantial effects on interstate commerce.” Not having health insurance does not involve purchasing any products across state lines or incentivizing anyone else to do so. It does, of course, have an effect on commerce in the sense that a person who doesn’t purchase health insurance could have made a different decision, which would have involved purchasing the product in question. That, however, is true of any decision to do or not do anything. A person who chooses to spend an hour reading a book at home could have instead used that time to earn income or buy a product, thereby affecting interstate commerce. The time I devoted to writing this post could have been spent doing consulting work for pay. Any decision to spend time on A is necessarily a decision not to do, B, C, or D. And the failure to do some of the latter is likely to have an effect on interstate commerce.

Rosen’s collective action limitation fares little better. If the Court seriously examines the individual mandate to determine if there is a collective action problem preventing states from adopting mandates of their own, it should find that no such problem exists for reasons I articulated in this article (pp. 90-94). If the mandate works as advertised – reducing health care costs and increasing access – both individuals and firms would be happy to be in states that adopt it, as Massachusetts did. Insurance companies, of course, have every reason to operate in states that require people to purchase their products. It is also strange to argue that the federal mandate solves a collective action problem between the states when 28 state governments are suing to have it overturned. That suggests that most states’ failure to enact a mandate is not caused by collective action problems, but by substantive opposition to the policy. If most states wanted a mandate, but could not enact one because of “race to the bottom” fears or the like, they would welcome the federal mandate instead of opposing it. I address these points in more detail in my article, as well as respond to various possible objections.

Of course the Court could find that the federal mandate solves a collective action problem if it chooses to defer to Congress’ assertions that it does. But such deference could be used to justify virtually any other mandate as well. For example, as I explain in the article, it could equally easily justify a federal broccoli purchase mandate:

The federal government could always posit that some sort of collective action problem inhibits state enactment of any mandate with enough political support to get through Congress. Indeed, the very fact that many states had not yet enacted a
mandate, or not enacted a strong enough version of it, could be cited as evidence for the “plausible” assumption that a collective action problem exists.

Under this minimal level of scrutiny, even the much-discussed broccoli mandate could probably be upheld. Increasing consumption of broccoli might lead to an improvement in public health that would reduce health care costs and increase economic productivity. But individual states face a collective action problem in enacting such a mandate. Any state that enacted a broccoli mandate on its own might face outmigration by residents who prefer a tastier, but less healthy, diet. As a result, its tax base would be eroded, while neighboring states that chose not to enact a mandate would benefit at the first state’s expense.
Even though the states as a group would be better off if all or most enacted a broccoli mandate, collective action problems prevent them from doing so without some form of federal intervention.

This collective action argument would likely fail any form of rigorous scrutiny. But it would surely meet minimal standards of plausibility in a regime of heavy judicial deference to Congress.

[I have omitted a footnote citing studies showing substantial improvements in health from eating broccoli].

As Randy Barnett points out in his reply to Rosen, the Court is highly unlikely to adopt a rule that requires it to carefully scrutinize Congress’ collective action arguments. If it did so, many defenders of the mandate would probably accuse it of “conservative judicial activism.”

In any event, Rosen’s collective action limitation only seems to kick in if the court has already found that the “activity” at issue does not affect interstate commerce. But, as discussed above, if not having health insurance qualifies as such “activity,” so too would any other decision to do or not do anything.

There is an intellectually serious case for abolishing all judicially enforceable structural limits on congressional power. The most coherent defense for a judicial decision upholding the mandate would have to rely on that case rather than on potential limiting principles that either fail to actually limit anything or would require the Court to strike down the mandate itself.

UPDATE: I have addressed other aspects of Rosen’s earlier piece here and here.

UPDATE #2: I presented a more general critique of the “collective action” theory for interpreting the scope of congressional power here.

I congratulate Ilya Somin on the arrival of Willow.  My daughters stand ready to babysit your beautiful pooch.

In this post, I will clarify the theory of collective action federalism by offering four points about what the theory is and is not.

First, collective action federalism is not a comprehensive structural account of American constitutional federalism.  For example, whatever the implications of the theory for the proper interpretation of other constitutional provisions, a collective action approach does not explain the proper scope of federal powers authorized by the enforcement clauses of the Civil War Amendments.  

The 13th, 14th, and 15th Amendments dramatically changed the balance of power between the federal government and the states by authorizing congressional regulation of the internal policy choices of the states on certain subjects regardless of collective action problems among the states.  These amendments especially aimed to grant basic constitutional rights previously denied to minority groups.  Minorities had been excluded because collective action had succeeded for the majority, not because it had failed. 

Second, collective action federalism offers a structural account of Article I, Section 8, not the institutional roles of Congress and the Court in constitutional interpretation.  Those who endorse vigorous judicial review of federalism questions will interpret collective action federalism in terms of how courts should restrain Congress.  Those who do not will interpret the framework in terms of guidance for conscientious legislators and the political safeguards of federalism.

Third, to the extent courts engage in judicial review of federalism questions, people will disagree about how judges should evaluate congressional judgments about the existence and seriousness of collective action problems, and about the adequacy of Congress’s response.  Congress can always seek to justify legislation by asserting that a collective action problem exists; that its effects are significant; and that the law it has enacted addresses the problem effectively.  The evaluative question, therefore, is what degree of proof courts should require of Congress before they will defer to its judgment.  

Collective action federalism does not resolve disagreements over this question.  The theory is compatible with multiple approaches, which reflect different views about (1) the proper extent of judicial deference to Congress in federalism cases, and (2) the actual scope of interstate externalities and impediments to interstate markets.

The most likely approach in practice, and one I endorse, reflects the prevailing view that Congress possesses very broad but not limitless authority to legislate under the various clauses of Section 8.  This belief is reflected in the interpretive principle of loose construction first articulated by Chief Justice Marshall in McCulloch v. Maryland and recently reaffirmed by a majority of Justices in United States v. Comstock, which I discuss below.  

This standard of review would charge courts with inquiring whether Congress, in passing the law under review, had a reasonable basis to believe that it was ameliorating a significant problem of collective action involving two or more states.  If reasonable people could disagree (1) about the existence of a collective action problem, (2) about the seriousness of the problem, and (3) about the efficacy of the congressional response, then courts should uphold the law.  

Congress would have to offer a plausible basis for its judgments that there is a serious multistate problem of collective action and that the law addresses the problem to a non-trivial extent.  Courts would defer to plausible findings by Congress.  Such an approach to judicial review would “cue” the political branches to take seriously those federalism questions that are worth taking seriously, but it would not license federal courts to engage in Lochner-style invalidations of many federal laws and overrulings of precedent.

Fourth, the theory of collective action federalism is neither originalist nor wholly consequentialist.  It is, rather, an account of an important part of the American constitutional structure.  The theory seeks to interpret Section 8 by drawing inferences from the relevant structures and relationships that the Constitution establishes — namely, the maintenance of a federal system that presupposes the continued existence of the states and that endows the federal government with authority to solve problems that the states cannot address effectively on their own.  Using modern economics, collective action federalism pursues a consequentialist inquiry to identify the logic of such problems and to explain how federalism can ameliorate them.   

Resolution VI and the recorded statements of influential Framers matter to the theory because such materials provide important evidence of the federalist structure that was planned; they offer illuminating evidence of how an important component of the constitutional machine was supposed to function in practice.  The Federalist Papers, for example, are relevant to my structural account even though they had little impact on the ratification debate.  

It might have turned out that this original plan for the proper interpretation of Section 8 ceased to make sense over time.  But that is not what happened regarding the distinction between individual and collective action by states; it continues to make good sense of this part of the American constitutional structure today, as modern economics helps to confirm.  Consequences matter to collective action federalism not because its structural account is instrumentalist all the way down, but because structural accounts are always in part consequentialist, regardless of how they are presented.

Collective action federalism leverages a particular view about the constitutional structure to support and critique contemporary judicial doctrine.  In my previous post, I read the Court’s modern Commerce Clause jurisprudence as sensibly reflecting the distinction between individual and collective action by states.  

Another recent example is the collective action reasoning present in United States v. Comstock.  The Court there held that the Necessary and Proper Clause authorizes the federal government to civilly commit sexually dangerous federal prisoners after the completion of their sentences if no state will accept custody.  

A state that agrees to assume custody must pay all the costs associated with commitment while other states potentially enjoy the benefits from committing the individual, who might otherwise move out of state upon release.  The Comstock Court underscored evidence that states often refuse to assume custody, potentially free riding on another state’s decision to do so.  Both the Court and Justices Kennedy and Alito stressed the relationship between the federal statute and an interstate collective action problem, which the federal government helped to create (by housing inmates in remote federal prisons for many years) and is better situated to address than the states. 

Collective action federalism is also relevant to part of the doctrinal debate over the constitutionality of the individual mandate in the Affordable Care Act.  In a new paper, I argue that the distinction between individual and collective action by states is a much better place to look for appropriate limits on the commerce power than is the distinction between inactivity and activity.  This is because the Commerce Clause is best understood in light of the collective action problems — including free rider problems — that the nation faced under the Articles of Confederation, when Congress lacked the power to regulate interstate commerce.  

One way a collective action problem arises is when people benefit from collective action regardless of whether they contribute to it.  To overcome failures to participate in collective action whose effects spill across state borders, the clauses of Section 8 authorize Congress to require many kinds of private action.

This authorization includes requiring (or, more precisely, incentivizing) financially able individuals to obtain health insurance coverage instead of attempting to self-insure or free riding on benevolence by shifting costs to others.  To the extent that such free riders are deemed inactive, their inactivity is a problem, not a reason why Congress is powerless to offer a solution.  Congress can offer a solution under the commerce power when the states are separately incompetent to solve the problem on their own because of spillover effects.  

Economic theory and empirical evidence suggest that the states are separately incompetent to solve the free rider problem that the individual mandate aims to address.  The free rider problem also illuminates the difficulty of arguing directly that the mandate infringes individual liberty.

I thank Eugene Volokh for inviting me to blog about my work in this highly regarded venue.  Today, I will present the theory of collective action federalism, which I have developed with Robert Cooter of Berkeley Law in a recent article.  Tomorrow, I will clarify what the theory is and is not.  Later in the week, I will offer some thoughts in response to Prof. Kurt Lash’s important new paper.

According to many respected histories, the Framers of the U.S. Constitution met in Philadelphia during the Summer of 1787 and wrote Article I, Section 8, primarily in order to address several collective action problems facing the United States during the 1780s.  They especially wanted to protect the states from commercial warfare against one another and from military warfare by foreigners.  In the Critical Period, the states often acted individually when they needed to act collectively, discriminating against interstate commerce and free riding off the contributions of other states to the federal treasury and the U.S. military.  Moreover, Congress lacked power under the Articles of Confederation to address these problems.

James Madison saw the difficulty in his Vices of the Political System of the United States. Recording various problems with the Articles, Madison underscored “want of concert in matters where common interest requires it,” a “defect . . . strongly illustrated in the state of our commercial affairs.  How much has the national dignity, interest, and revenue suffered from this cause?”  When activities spilled over from one state to another, Madison and other nationalist Framers recognized that the actions of individually rational states produced irrational results for the nation.  

This is the definition of a collective action problem.  The solution lay with the establishment of a more comprehensive unit of government.  The federal government would require the authority to tax, regulate interstate and international commerce, raise and support a military, and act directly on individuals.

The delegates at the Philadelphia Convention, in considering the scope of congressional power that would become Section 8, focused on collective action problems among the states.  The Convention instructed the midsummer Committee of Detail that Congress would have authority “to legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.”  This language, particularly the astute reference to separate state incompetence, apprehends the need to address collective action problems facing the states.  When the Committee made its report ten days later, it had changed this language, derived from Resolution VI of the Virginia Plan, into an enumeration of powers closely resembling Section 8 in its final form.

This enumeration was uncontroversial among the delegates; the Convention accepted it without discussion.  The delegates apparently grasped the link between the general principles stated in Resolution VI and the specific powers conferred in Section 8.  As Robert Stern, Donald Regan, Akhil Amar, Jack Balkin, Andrew Koppelman, and other scholars have concluded, the Committee was embracing, not rejecting, the Resolution’s concern about interstate collective action problems when it provided an enumeration. 

Robert Cooter and I have observed that the eighteen clauses of Section 8 mostly concern collective action problems created by two kinds of spillovers: interstate externalities and national markets.  Clauses 1 and 10 through 16 give Congress the power to internalize the externalities associated with funding the national government, providing for the common defense, establishing a postal network, and securing intellectual property rights.  Clauses 3 through 6 give Congress the power to combat impediments to the successful operation of interstate markets.

The theory of collective action federalism draws from this history, from this evidence in the constitutional text, from subsequent historical understandings and mistakes, and from modern economics to provide a structural account of the American federal system established in part by Section 8.  Its various clauses form a coherent set, not a collection of unrelated powers.  Coherence comes from the connection that the specific powers have to collective action problems that the federal government can address more effectively than the states can address by acting alone.  

The states often cannot achieve an end when doing so requires multiple states to cooperate.  According to collective action federalism, the clauses of Section 8 empower Congress to solve collective action problems that predictably frustrate the states.  In the language of the Commerce Clause in particular, such problems are “among the several States.”

Conversely, governmental activities that do not pose collective action problems for the states are internal to a state or local.  They are beyond the scope of federal power.  Thus the foundation of federalism in Section 8 flows from the relative advantages of the federal government and the states.  The theory of collective action federalism reads the clauses of Section 8 as giving the federal and state governments the power to do what each does best.

The distinction between individual and collective action by states gives independent, sensible meaning to the phrase “among the several States” in the Commerce Clause.  According to collective action federalism, this phrase references a problem of collective action involving two or more states.  This is the key inquiry in determining whether “Commerce,” understood by the Court in terms of its economic/noneconomic categorization, is interstate and thus regulable under Clause 3, or is intrastate and thus beyond the scope of the commerce power.  Regardless of whether the economic/noneconomic categorization suffices as a definition of “Commerce,” a question on which collective action federalism takes no view, this categorization cannot define when such commerce is “among the several States” and when it is internal to one state.

The distinction between activities that pose collective action problems for the states and those that do not best explains why Congress may not usually use its commerce power to regulate such crimes as assault or gun possession in schools, but may regulate an interstate market for guns, wheat, or drugs.  That is, collective action federalism offers a way to distinguish the “truly national” from the “truly local” in the context of the Commerce Clause, justifying the outcomes in Wickard v. Filburn, United States v. Lopez, United States v. Morrison, and Gonzales v. Raich.

The Rehnquist Court implicitly considered collective action problems in determining the constitutionality of congressional regulation.  Chief Justice Rehnquist wrote in Lopez that the Gun-Free School Zones Act “is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” This statement suggests that the absence of regulation of guns near schools in one state would not undercut the effectiveness of regulations prohibiting them in other states.  Justice Kennedy similarly wrote that if a state or local government “determines that harsh criminal sanctions are necessary and wise to deter students from carrying guns on school premises, the reserved powers of the States are sufficient to enact those measures.”

The key question presented by these cases is whether there is a spillover of welfare that causes a collective action problem.  For example, enforcing a prohibition on guns within school zones seems the opposite of a problem requiring coordination among law enforcement in different states.  It seems local: local officials presumably have better information concerning who might carry firearms near schools and better incentives to do something about the problem.

Raich, by contrast, did involve a potential spillover problem.  Because it is impossible to distinguish marijuana used for medicinal purposes from marijuana used for other purposes, and because the market for marijuana disrespects state borders, California’s authorization of marijuana use for medicinal purposes might make it more difficult for other states to ban marijuana use.  If there is no spillover problem for state policing, states should be permitted to go their own way as far as the commerce power is concerned.  But if there is a spillover — for instance, medical marijuana use in California makes it more difficult to police drug traffickers at the Arizona border — there is a rationale for federal intervention.

Like Eugene Volokh, I too look forward to the upcoming guest-blogging stints by Kurt Lash and Neil Siegel. It so happens that I recently reviewed Robert Cooter and Neigl Siegel’s outstanding article “Collective Action Federalism” on Jotwell, a website where legal scholars review important new scholarship. Here’s an excerpt from what I said:

Robert Cooter and Neil Siegel’s Collective Action Federalism is probably the most important academic article on constitutional federalism in several years.....

In Collective Action Federalism, Cooter and Siegel argue that the congressional powers enumerated in Article I, Section 8 of the Constitution should be interpreted in light of the goal of giving Congress the authority it needs to address collective action problems among the states. A collective action problem arises when members of a group want a good, but have little or no incentive to contribute to its production, because they can instead try to free ride on the efforts of others.....

The authors argue that Article I, Section 8 should be treated as a “unified whole” rather than as a discrete set of unconnected individual powers. And they propose collective action theory as a unifying framework for interpreting that whole. Where there is an interstate collective action problem, they would give Congress the power to address it. Where no such problem exists, state power should be allowed to prevail....

The greatest strength of Cooter and Siegel’s analysis is that it accounts for the interconnections between the various congressional powers and expresses their underlying unity. As they point out, this has advantages under both originalist and nonoriginalist theories of interpretation....

Cooter and Siegel’s analysis also has a few problems. It is far from clear that Article I really gives Congress unfettered authority to solve any and all collective action problems among the states. If that were the case, why would the Founders have bothered to carefully enumerate seventeen separate powers plus the Necessary and Proper Clause, instead of a single catch-all “Collective Action Clause?” To their credit, Cooter and Siegel foresaw this issue and tried to address it by arguing that the enumerated powers are not meant to be an exhaustive list, but an illustrative one. Yet it seems unlikely that a merely illustrative list would be so long and precisely detailed. Moreover, treating the list as illustrative renders the Necessary and Proper Clause superfluous. Under that approach, Congress would already have had the power to enact any measures “necessary” to solve any collective action problem, even if they were not specifically listed.

Second, Cooter and Siegel’s framework might actually negate certain specifically enumerated powers if it turns out that they are not needed to solve any collective action problems. Consider Congress’ power to “establish post offices.” It is now clear that private firms such as Federal Express can deliver the mail just as effectively as the federal government, if not more so. And they can easily exclude would-be free riders who try to get away with not paying for postage. Does that render the US Postal Service unconstitutional?

Most importantly, Cooter and Siegel do not consider the possibility that the Constitution should be interpreted to curtail federal government policies that create “public bads,” as well as facilitate those that provide public goods. Just as Congress can solve collective action problems, it can also create them. To take one common case, it can enact special interest legislation that benefits small, well-organized groups at the expense of the general public. The repeal of such laws then becomes a nationwide collective action problem, one that the public often fails to solve because individual citizens and states have strong incentives to free ride on such matters. Curtailing such interest group legislation is one possible rationale for interpreting Congress’ enumerated powers relatively narrowly. Obviously, state governments often enact harmful special interest legislation of their own. But only Congress can impose such a law on the entire nation at one fell swoop....

Cooter and Siegel rightly argue that “[a] federal constitution ideally gives the central and state governments the power to do what each does best.” But a federal constitution must also protect against the dangers posed by both state and federal power. A powerful central government is often “best” at solving national collective action problems. But it is also often the “best” at creating them.... A more comprehensive collective action approach to constitutional federalism must consider both sides of this dilemma.

Co-Conspirator Jonathan has already remarked below on the seeming collapse of the media-academic-NGO-international organization-et al. global warming coalition in-between last year’s Copenhagen meeting and this year’s much-subdued Cancun event.  I broadly agree with Jonathan, and with Margaret Wente, on whom he comments, on the policy merits.

I also think the right approach to climate change is not some massive project for the most far-reaching, long-term, costly, uncertain attempt at governance through the demands of climate for the whole globe.  It is wrong as a global political project, doomed not to just fail but to transmute into some set of spectacularly bad unintended consequences, and wrong as a question of management of long-run uncertainties.  It is noteworthy that even the voice of the global establishment, bien pensant global opinion, the Economist, is now saying what should have been said a decade ago – you have to manage the problems as they arise through mitigation, not some exercise in doomed global political glory to seek to head it off on the front end.

I say all that as background, not to try and persuade anyone, but simply to be clear what the starting point of the discussion is for me (be warned, this is a long post).  As far as the future of the global project over climate change is, I would point you to Walter Russell Mead’s new blog essay on Cancun (h/t Instapundit) (for the glass-half-filled view, see this news story from the NYT; note that it is filed from DC and NY, not Cancun).  It is useful in large part because it lays out something on which I have commented occasionally in the course of writing about the UN and its member states as a (non-) governance mechanism, and its “public choice” pathways of rent-seeking, income extraction, and wealth transfer under the banner of climate change.  Mead offers a comprehensive essay in a relatively short space and it is worth reading closely.  But on the daunting problems of collective action at Copenhagen and UN mechanisms generally, Mead notes, a Copenhagen climate treaty

was intended to be the successor to the ineffective and expiring Kyoto Protocol, and was conceived of as a ‘grand bargain.’  The US Senate had in effect rejected Kyoto 95-0 because the Protocol limited US emissions without placing restrictions on the rapidly growing economies of the developing world.  Son of Kyoto (call it SOK for short) would get around this by placing limits of some kind on all the world’s countries.  The geniuses behind SOK framed the problem this way: how do we get the developing countries to sign on to carbon limits strict enough that the US Senate would ratify the next global treaty?

The answer was obvious: bribe them.  Put enough rich country taxpayer money on the table and even the most corrupt and shortsighted rentier regimes in the developing world will experience an extraordinary upsurge in green conviction.  The dream was that the developing countries properly and appropriately compensated would sign on to emission limits of their own, the US Senate would ratify and as Barack Obama explained it to us, the earth would begin to cool and the seas start to recede.

In the diplomatic negotiating event, the “experts and enthusiasts” of the northern environmental lobby departed, predictably, from anything the rich country publics, in the midst of financial crisis on top of everything else, might have been expected to support.  The elites of the climate change movement, raised on the statist milk of the EU breast, figured they were doing God and Gore’s work on behalf of once and future voters, and devoted themselves to negotiating with the developing countries, seemingly without regard for the willingness of said publics to pay the price.  On the developing country side, the question was how much and how fast:

Northern green activists lobbied to get strict carbon targets adopted.  Developing country diplomats focused on ‘appropriate compensation’.  Just how green did the North want the South to become, and just how much money was the North willing to pay to make this happen?  Negotiators played with rich country aid budgets like kids with Monopoly money, and issued vague and intoxicating pledges that, in an era of austerity, will never be honored.

In the hothouse fantasy land of UN negotiations, the path to compromise looked simple.  Soon enough, the numbers began to come clear: northern activists developed a formula for carbon restriction that they liked and the southern diplomats found a number that worked for them:  a $100 billion sweetener to start, ultimately rising to $100 billion a year to be paid by the advanced countries to the developing ones in order to compensate them for pain and suffering.

But now a couple of additional observations that take things a step further than Mead does.  In the past I have remarked (and say in my little book manuscript now in copy editing on UN-US relations) – that the environmental intellectuals and campaigners might have done better to have paid less attention to their own favored issue and more attention to the incentives as evidenced by the history of the UN not just on this issue, but a long list stretching back decades.  They might have learned that the UN follows a well-laid out path of embracing an issue to see how much institutional leverage toward “governance” it might yield, combined with the rent-seeking interests of the UN-complex and member states.

The UN believes – Ban Ki Moon, for example – fervently that climate change is every bit as important as it is to Al Gore.  And, “serial absolutist believer” that the UN is, it will believe so ... until it perceives that it has got whatever it can get in the way of leverage toward its own notions of global governance at the UN, and member state rent-seeking.  Whereupon – as is unfolding now – this issue is down the memory hole that is so crucial to being a “serial absolutist” and on to the Next Big UN Thing that promises an accretion of global governance at the UN and more money for member states.  The environmental lobbyists could have learned from considering their issue as the UN does – not as the sole issue in the history of the human race, but instead as simply a succession of possible political levers for the UN. Continue reading ‘Cancun and Copenhagen, and Carbon as Pure Regulatory Object’ »

The recent Copenhagen Conference on global warming has led to renewed claims that we cannot effectively combat global warming without “global governance,” or perhaps even a full-fledged world government. UN Secretary General Ban Ki-Moon recently claimed that “A [climate change] deal must include an equitable global governance structure” and many other political leaders and environmental activists have expressed similar views. Political scientist Campbell Craig summarized the standard argument for global governance to address climate change in this 2008 article:

[O]ne of the most evident failures of the nation-state system in recent years has been its inability to deal successfully with problems that endanger much or most of the world’s population. As the world has become more globalized—economically integrated and culturally interconnected—individual countries have become increasingly averse to dealing with international problems that are not caused by any single state and cannot be fixed even by the focused efforts of individual governments. Political scientists refer to this quandary as the “collective action problem,” by which they mean the dilemma that emerges when several actors have an interest in eradicating a problem that harms all of them, but when each would prefer that someone else do the dirty work of solving it. If everyone benefits more or less equally from the problem’s solution, but only the actor that addresses it pays the costs, then all are likely to want to “free ride” on the other’s efforts. The result is that no one tackles the problem, and everyone suffers.

Several such collective action problems dominate much of international politics today, and scholars of course debate their importance and relevance to world government. Nevertheless, a few obvious ones stand out, notably the imminent danger of climate change....

Essentially, the argument is that global warming is a collective action problem that only an international entity will have incentives to solve. If not a world government, it will have to be a “global governance” structure that is to a large degree independent of individual governments and has the power to compel them to take necessary measures, such as reducing carbon dioxide emissions.

In my view, such global governance is neither necessary nor sufficient to prevent global warming. As co-blogger Eric Posner points out, an effective climate change deal requires the agreement of only about 20 or so major emitting nations, such as the US, China, India, Russia, and several major European states. Obviously, most of these states would suffer serious harm if catastrophic global warming scenarios turn out to be true. They therefore have strong incentives to reach a deal. Collective action problems are not a serious danger when a solution only requires the cooperation of a few major actors, each of whom knows that their participation is essential to the success of the overall project. There is little incentive to free-ride if the potential “free-rider” knows that the problem can’t be solved without his participation. I have spelled this logic and its application to global problems in more detail here. For a more extended treatment, see Todd Sandler’s book Global Collective Action, which, among other things, shows how cooperation between a few big powers was enough to address the problem of ozone layer deterioration in the 1980s.

Of course, big power cooperation isn’t guaranteed to solve the global warming problem. It has several potential flaws. In each case, however, global governance has similar or even worse weaknesses.

One potential problem is that national governments aren’t always representative of the interests of their people and therefore won’t take full account of the dangers that global warming poses to them. However, any global governance structure is likely to be even less democratic and less representative than national governments are, especially those of liberal democracies such as the US. As John McGinnis and I explain here and here, the existing international institutions that influence the content of international law are highly undemocratic, and any new global governance structure is likely to be the same. The personnel of any such entity will be chosen either by relatively unaccountable international elites, or by national governments (with a hefty dose of influence by authoritarian states).

A second danger is that one or more important governments will decide that the benefits of preventing global warming aren’t worth the costs. For example, China and India might decide that severe emissions restrictions pose too great a risk to their economies, and Western nations might be unwilling to make large enough payments to them to get them to change their minds. Obviously however, a world government or global governance agency could also decide that the costs of preventing warming outweigh the benefits. Any such structure would have to take Chinese and Indian interests into account. Moreover, we wouldn’t want to foreclose the possibility of such a decision. The costs of greatly reducing emissions are substantial, potentially even catastrophic. Even to those who, like me, believe that global warming is a genuine danger, it’s not obvious that those costs are necessarily worth paying.

Finally, national governments could underestimate the dangers of climate change; for example by buying into flawed scientific analyses. Here too, a global governance structure could make similar mistakes. Moreover, this risk has to be balanced against the danger that either national governments or the global governance decision-makers could err in the opposite direction: buying into an overly pessimistic view of global warming, and therefore enacting costly measures that turn out to be excessive. Overall, I think analytical error is less likely if we allow different nation-states to reach independent conclusions and make a compromise than if the decision is left up to a single global entity that is more likely to fall prey to groupthink. The recent Climategate scandal underlines the dangers of like-minded small groups falsifying evidence and excluding opposing views. A system of global governance over climate change issues would make this danger more severe, not less. If, at the end of the day, governments continue to disagree over the severity of the global warming danger, those with more pessimistic views could potentially offer side payments to convince the doubters to take more aggressive preventive measures.

The movement to institute global governance as a response to climate change wouldn’t be problematic if such governance did not pose any risks of its own. In fact, however, global governance itself would create potentially grave longterm threats to the future of humanity. These risks might be acceptable if there was no other way to prevent worldwide catastrophe. In fact, however, we don’t need global governance to combat global warming.

From Wired:

Any number of undiscovered near-Earth objects could one day careen into the Earth, and there is a lot of talk here at the American Geophysical Union meeting about tracking them. So far, though, only one discovered object has seemed even mildly likely to hit our planet.That asteroid is Apophis, a 900-foot asteroid. Calculations released on Christmas Eve 2004 appeared to show that there was a greater than 2 percent chance the asteroid would hit the Earth in 2029. The asteroid appeared ready to give the Earth its closest shave since astronomers began looking for such things. It was judged a 4 on the Torino Impact Hazard Scale for a short time, the highest rating any near-Earth object has received.

As it turned out, more precise observations brought the risk of collision down to just 1 in 250,000, but the scare sparked greater interest and study in the fields of asteroid detection and defense.

While  the risk remains small, this might provide a test of Eric’s hypothesis, though it appears there are distributional consequences (and hence diplomatic obstacles) to asteroid deflection just as there are for climate change.

(Links via Instapundit)

(Updated below ...  Give me global oligopoly or give me climate death!)

I

Post-Copenhagen.  At bottom, the question is legitimacy.  The global New Class met in Copenhagen, convinced, as ever, that it had legitimacy to act as it proposed to act, with the UN as its vehicle, because legitimacy was conferred by “expertise.”  The UN bureaucracy, its permanent culture of functionaries, endorsed the global New Class elites and their claim of legitimacy through expertise, because, after all, the experts were using the UN as the vehicle and thereby conferring upon it governance legitimacy – if you are Ban Ki Moon, what’s not to like about that?  Together, they thought they had found the formula to buy off the poor world through the climate fund.  They also thought they had found a formula that would bring the BRICs on board, by endorsing the Kyoto formula of encouraging industry to move from the rich world to China and India.  Obama and the Democrats would deliver the United States.

In the event, it turned out that the BRICS and the developing world decided to exercise their particular forms of legitimacy – the legitimacy of the sovereign equality of member states at the UN – in order to demand more for relaxing their “hold-up.”  Global New Class legitimacy at the UN encountered  that other form of global governance legitimacy, that of the mass of member states.  Whose legitimacy matters and for what?  And what does it mean to say that a climate change deal requires, in Secretary General Ban’s words, an “equitable global governance structure” to administer it – especially given the many, many, many, many, many, many, many, many things that are apparently to fall under its tent, from global free trade to ice water in our glasses?  What is this global governance, anyway?  What makes it “equitable” and supposedly, therefore, legitimate?  Is it legitimate to do a deal of global proportions, on climate change or anything else, and not involve everyone?  Is “expertise” enough grounds for global legitimacy, the legitimacy required to remake relations from the top to the bottom, trade, jobs, lifestyles, you name it?

II

If your issue is simply the substance of climate change policy, and not UN politics, then you perhaps don’t much care about these abstract issues of legitimacy, global governance, and the UN.  Until the end of Copenhagen, however, because it turns out that (given the breathtaking scope of things to be governed under the rubric of climate change, starting, really, with the whole global economy, as it affects ordinary people) that the meanings of global governance, legitimacy, and the UN matter after all.

What we call “legitimacy” and what Ban called “equitable,” after all, translated in the event, among other things, into a hold-up premium for the G-77 and a corresponding unwillingness of the G-rest to pay up past a certain point.  Global governance, but “legitimate global governance,” meaning, it appears from Copenhagen, not just solemn obeisance to experts, but solemn obeisance to the ‘sovereign equality of states’ – which is to say, the UN and, in particular, the countries of the General Assembly.

For some of Copenhagen’s participants who believe(d) both that

• climate change is the existential problem of now and the future, but who are (were) also
• committed to global governance as an activity of the world together, and so committed to the legitimacy that comes with the UN over any nation-state that might act unilaterally, or little conspiracies of the great powers foisting off their oligopolistic deals on the rest of the world

... for them, legitimacy, particularly via the sovereign equality of states, is a problem.   Continue reading ‘Copenhagen as UN Politics, Not Climate Change Substance’ »

Ever since the Copenhagen conference got going, and rapidly turned into an argument over wealth transfer from the rich world to the poor world, it has seemed to me that the exercise is best understood not as an argument about climate change, but instead about internaitonal economic development policy.

That is, the basic problem with international development policy is not the usual collective action problem.  The usual collective action problem is that which bedevils a Copenhagen deal to replace Kyoto, if one makes the assumptions about the science that, apparently, is beyond question:  even if everyone agrees as to the problem and the desirable collective solution, temptations to defect and to free-riding wreck it, either at the front end because no one agrees or at the back end.  Everyone has an interest; you just can’t get them all past the prisoners dilemma (or variant thereof) problem.

Many clever international lawyer-academics have quite patiently explained to me how that problem is solved this time around; none of them has convinced me.  On the contrary, my lens on this is not as someone coming to this from environmental law – but instead from watching iteration after iteration of crises at the UN that are, in each and every instance, something like the end of the world if the conference does not come to some agreement ... and then it’s not.

The last time around for this pattern was, what, the 2005 UN reform summit.  Anyone besides John Bolton, Kofi Annan, and me remember it?  I realize that if you are an environmental law person or activist or student or etc., what happened at some unrelated UN confab does not seem at all relevant to a conference in which the Fate of the Planet Hangs in the Balance.  But believe me, whatever this is as an environmental matter, it is also, just as importantly, a UN event.  It follows, and is following as we speak, a certain UN pattern of “perpetual crisis” that never turns out to be the crisis that was foretold.

The institutional nature of the UN is an institution that follows a track of ‘punctuated equilibrium’.  It lurches along, largely but not completely epiphenomenal to the real world, and then goes through periodic spasms in which all will be lost if the UN does not act.  Sometimes it acts, which is to say, it puts words down on a paper.  And that is largely the end of it, and it is considered rude and tactless to do, when the next crisis comes up, precisely what I am doing now, pointing out that the breathless sense of urgent crisis was the same five years ago.  Again, I realize that if your point of reference is that this conference is about something different and unique and like no other in human history or at least UN history, then none of this will strike you as relevant experience.  But bear in mind, again, that this is as much UN as climate, and the UN has a long track record of perpetual crisis that isn’t truly a crisis.  The climate change movement has hitched itself to a process and institution that has its own history, own dynamics, and while the NGO activists think that they own it, it is just as much the other way around – hitched to the eternal nature of the UN, which is to be perpetually becoming but never actually getting there.

So this time around the collective action problem at the UN will at last be solved, though it was not solved in any earlier iteration of crisis.  But then comes the argument over the climate change fund.  It has a curious aspect to it.  At bottom, seen not from the glorious standpoint of climate change issues, but just as money and from the standpoint of the developing world governments (and others) clamoring for money, it looks for all of that like a development program.  A development program that involves transferring a large amount of money from rich governments to poor governments.

That is not a collective action problem, however, it is an altruism problem.  The rich countries do not see anything in it for them at the hard core, realistic, practical level – yes, climate justice, etc., but at bottom it looks like an altruistic transfer.  Those transfers don’t readily get made – they are even harder to manage than collective actions.

Seen as a development program, and ignoring climate change as such, then, the special feature about the Copenhagen talks is that they purport to get around the altruism problem by making it a problem of all the world – do this, or we all bake and fry and sizzle and simmer, together.  Everyone is in this together, and voila, suddenly it is not altruism, it’s a collective action problem.  That does not solve the collective action problem, which, even if it were true, remains as seemingly intractable as ever – but it recasts it as collective action, rather than altruism.

The problem, however, is that the rich countries don’t really believe we are really all in this together, and neither, come to that, do the poor countries.  Regardless of the speechifying in Copenhagen, this is seen as a transfer from rich to poor.  Which is to say altruism, not collective action.  Which is further to say, it’s functionally a development program.

Now, if all that is the case – and maybe it isn’t, I’m just spinning out my sense of this as a student of UN processes as well as pretty hard-boiled development person, not a climate change person – then I wonder, whatever happened to the UN’s famous Millennium Development Goals (MDGs)?  The famous MDGs, elaborated in 2000 by Jeffrey Sachs, the UN’s essentially command-and-control five year plans for cutting global poverty by leaps and bounds over a fifteen year period?  I have a stack of books under my desk (I’m finishing a book on the UN) and one on my desk titled, Achieving the Millennium Development Goals, extremely dry and heavy reading, and until not long ago, and despite the failures of funding of the MDGs, I thought I should read the technical literature (Palgrave-UN University Press 2008, it’ll set you back $90-100, and face it, I’m very sorry I got the school library to buy it).

Today, the MDGs no longer look especially relevant.  It looks, to my innocent eye, as though they are in the process of being replaced in Copenhagen.  Because, in very round numbers, the amounts talked about in this climate change fund look somewhat like the kinds of numbers called for in Sachs’ MDGs – tens to hundreds of billions annually.  So here’s my question ... is the climate fund, looked at without regard to, er, climate, really just the latest, crisis-driven version of the MDGs – which in any case have pretty much failed for lack of funding?

Sachs had an interesting op-ed in the Financial Times today (probably behind sub wall) in which he lamented, more or less, the fate of the MDGs (without giving up on them, however), on the grounds that they were an exercise in altruism, and countries didn’t pony up the amounts they said they would.  And he seems a bit surprised.  So he says that the way to avoid this is to use “assessed amounts” – voluntary payments, in the sense that they are not formal UN dues, but still assessed, meaning that there is an obligation undertaken in advance by which each country agrees with each other on a multilateral basis how much it will contribute.

UN Peacekeeping Operations notably works this way, and works reasonably well (and, yes, it does, even with procurement fraud and the not-small matter of sexual abuse by PKO forces in the field and other problems; it is a bright spot at the UN).  PKOs costs billions more than the regular UN budget, and it can’t work out successfully for precisely the reasons Sachs identifies, unless everyone knows in advance that the large sums needed as pooled sums are actually going to be there.  It works in PKO for three fundamental reasons.  First, although in one sense, it is altruism, in another sense it is seen by the donor states as outsourcing some basic global security functions that they would like to see performed, partly as altruism but partly as interest.  And, second, because the US sees it as being in its interest as the (still) security hegemon, the extra-collective-security hegemon.  Finally, conditioned by the first two reasons, there is a genuine aspect of reputation and repeat play in something, I stress, in which the basic condition of interest is met.

That was never true of the MDGs; one can call all one likes for assessed amounts, but the problem is much more fundamental, which is that these payments are seen as global altruism and not as essentially self-interested.  Create an assessment mechanism and perhaps reputation and repeat play matter modestly more; but at bottom, it is just another multilateral agreement to be ignored.  If one sees the climate change fund as a development program in that way, then Sachs’s idea of assessments for it has the same basic problem.

I suppose it is possible that the states involved will really see this as more than altruism, and so move the negotiations into the realm of collective action.  The collective action problems are as daunting as ever.  But with respect to transfers from rich to poor – my view is that it does not matter how much one recharacterizes them ideologically or as a matter of imagination, at bottom this is a development program, understood as altruism by donors and donees, and each will act accordingly.  It does seem very much like the replacement program for the failed MDGs – and in some sense, Sachs today said as much.

(Note:  Writing fast and I’m sure there some things I want to correct, but I will put this up and come back to it and make changes tomorrow.  What I put in blogs is first draft; this is super-first-draft.)

One of the minor brouhahas at Copenhagen has been over one of the many pieces of public art put up for the conference, Survival of the Fattest, sculpted by artist Jens Galschiot (2004), sponsored by sevenmeters.net.

(I am putting up an image from a blog I frequently read, the “I am a middle-aged gay libertarian Conservative, living in dignified isolation in rural Eastern Ontario, Canada” Diogenes Borealis blog.  It has a longer post on various pieces of art at the Copenhagen conference, titled “Hideous Public Art, Copenhagen Edition.” Eric has a good commentary on the problems of political art, activist art, looking not just at this piece but several others at Copenhagen as well.  Read the whole thing, as Glenn R. might say.  Reactions to art, and political art, differ, so if you want a different take than Eric’s, check out this post with lots of photos on the sculpture, as well as how it was vandalized by someone pushing it over into the water, and then set back up again with a crane.)

Rich world sits atop starving African man, sculpture at Copenhagen

The sculpture is accompanied by text, reading in part:

I’m sitting on the back of a man.
He is sinking under the burden.
I would do anything to help him.
Except stepping down from his back.

The website goes on to explain (in part):

The sculpture ’Survival of the Fattest’ is a symbol of the rich worlds (i.e. the fat woman, ‘Justitia’) self-complacent ‘righteousness’. With a pair of scales in her hand she sits on the back of starved African man (i.e. the third world), while pretending to do what is best for him.

The sculpture dates back to 2004, when it was exhibited in London.  On that occasion, it apparently was to symbolize the evils of globalization and free trade; it has morphed into a new message about climate change with apparently little need to change anything except the captions.  One wonders in what cause it will be re-deployed, with a quick change of the captions and text in a few years, in some other European city.  The rest of the statement accompanying the photo says that the rich world is responsible for what climate change will do, it says, to Africa.  (The sculpture itself?  In my view, while puerile as agit-prop, if completely stripped of the fashionable, and fashionably shifting, political references, it is an interesting piece as sculpture of the body.  If it were simply placed in a sculpture garden somewhere, without the pretentiousness of the politics, I would rather like it, particularly as a late derivative work in a declining tradition.) Continue reading ‘Survival of the Fattest and the Global Superfluous Poor in the Negotiations in Copenhagen’ »

Noah Sachs, over at PrafsBlawg, is kind enough to respond to my post on the Copenhagen meetings and collective action problems.  It is worth reading the whole thing, but here is a chunk of it.  (If you comment, please remember that Professor Sachs is my guest here, so be courteous.  And my thanks to him for weighing in.)

My question – directed to international law experts in these kinds of negotiations – is how this round of talks is supposed to get past the usual collective action problems.  It takes climate change by assumption, so the issue here is not the leaked memos, Climategate, etc., but a question not of climate science but instead of international law, institutions, negotiations, and collective action.  Professor Sachs’ response in part:

Anderson is too pessimistic.  After all, over 180 countries have already agreed to two prior climate treaties (The UN Framework Convention in 1992 and the Kyoto Protocol in 1997), as well detailed rules for implementation (Marrakech Accords in 2001), all of which are currently being implemented.  The UN Framework Convention remains the organizing document for continued international efforts to address climate change, and the majority of industrialized parties to Kyoto are expected to comply with their Kyoto commitments by the end of the first commitment period, in 2012 (with some notable exceptions, such as Canada).  The EU-15 are on track to exceedtheir Kyoto commitments by 2012.   Reports of the death of Kyoto are greatly exaggerated.

So why would any country agree to, let alone comply with, obligations that impose near-term national costs but bring longer-term benefits to the globe as a whole?  Let me count the ways:

• Self-interest in avoiding drought, sea-level rise, and hundred-degree summers
• A recognition that this particular prisoners dilemma calls for global cooperation rather than defection, coupled with the recognition that emissions monitoring can detect violators.
• A recognition of the historic responsibility of industrialized nations for the underlying problem
• Domestic political pressure not to tank a climate deal
• Reputational costs for major emitting countries for tanking a climate deal
• A recognition that a national commitment to energy efficiency and a low-carbon economy benefits national security and international competitiveness.
• The opportunity to participate in lucrative global carbon trading markets as a party to a post-Kyoto treaty.
• Translation of commitments made internationally into binding domestic legislation, as occurred in the EU.

I’m not saying that negotiations at Copenhagen will be easy, and few expect a final treaty to emerge from the conference — just that the underlying collective action problems here are not insurmountable.  I do expect a new international treaty to be concluded by the time the Kyoto Protocol’s first commitment period ends in 2012.  The price of every nation going-it-alone here is very, very high.

Let me leave aside for the moment all the leaked memos and stuff.  I would describe myself as a non-expert on climate issues who has been gradually persuaded to the following positions:

• Agnostic on the question of warming and human impact on it;
• Getting less agnostic as I read the emails and leaked materials;
• Unpersuaded that the CBA supports radical “front end” attempts to deal with a diffuse threat of uncertain likelihood far down the road, because the discount for uncertainty is too high;
• Persuaded by the Lomborg position that we should address real damage as it manifests, in the most prudent way;
• Persuaded by Lomborg that resources proposed for dealing with climate change must be weighed against other uses, particularly more immediate health and welfare issues such as malaria and AIDS; and
• Persuaded by Lomborg that climate change across a very long time frame must be weighed up, in resource terms, against much more immediate, unquestionable environmental damage not defined as CO2, but regular old air pollution, water pollution, etc., especially as it exists in the developing world, the cities of Asia, Mexico City, other places – and not set aside on the assumption that the developed world’s long term climate change issues should take precedence.

I’m not arguing for this, just letting you know where I’m coming from.  But let the rest of this post be on the assumption that all the climate change warming threats are real, if long term.  If that is so, then, leaving aside climate science and turning just to international law and  diplomacy and politics ...

Well, I do not understand how this Copenhagen conference manages to overcome the collective action failure problems that have been encountered in Kyoto and every other exercise in this area.  Extremely diffuse damage from a multitude of players, now and into the future; diffuse set of actors who must act in a coordinated way; individual states being tasked to take sacrificial actions that in the short and medium term at least are bad for their individual economies and their voting citizens; consistent record of failures not just in the nature of the promises made, but in their non-fulfillment even as they stand ... on what grounds does anyone plausibly think that Copenhagen might produce a different outcome?

I’m not asking about climate science here, I’m asking about collective action problems in international law and policy.  How is this exercise different from previous failures?  Even if new states are persuaded to say yes on paper, on what grounds does anyone think that these commitments will be fulfilled this time, particularly given the record of Kyoto?  The article linked here from the AP talks about “momentum building” and “legally binding agreements.” What does that mean and how?  Legally binding to prevent defection down the road, how?  This is not an attempt to get snarky, but complete puzzlement on my part.  How is this different from earlier attempts?

The one thing that might be different, so far as I can tell, is that the meeting might make moves toward the global fund for the developing world.  Which would suggest, however, that the world has largely accepted that it won’t really do anything about the problem on the front end, but might do things to address concrete damage in the developing world.  Or perhaps will simply hand out the money as a sort of buy-off and global welfare transfer payment.  That seems to me to be the most likely outcome of Copenhagen, at most, and maybe or maybe not an agreement that, on the basis of past experience, will be invoked in op-ed pages and law review articles and politely sidelined as discussions get underway for the next round of agreements.  Copenhagen (apart from the speeches and expressions of concern and photo ops and opportunity for the Secretary General to re-cast himself as a little bit of a rock star) appears to me mostly about the fund.  It might have similar collective action problems in collecting for it, but that is a lot easier as a tradeoff than actually doing any of the stuff that might be proposed or even agreed to on the issue of climate change itself.

But there are lots of very smart people working on this issue in international law who, obviously, have thought long and hard about these problems.  How are the collective action problems believed to be overcome in this round?

(Update: I could be persuaded that the “real” common ground among governments is the desire for more government, and perhaps even the desire for global governance, as the best, or most likely, explanation for the pursuit of a process that, at least so far, I can’t see is supported by an account of how to overcome collective action failures.  However, it is not clear how that would overcome collective action problems, either, if it were true that the common policy sought were best understood not as “addressing climate change as such” but instead “increasing the size and powers of government using climate change as an opportunity.”  The interests of governments, to start with, are “parallel” rather than “common.”  And even if common, it is unclear what would prevent defection; in order for governments to seize these powers, would they not have to act on them and actually do something regarding climate change?

However, here is one way it could work.  One could see the desire to increase government size as a form of positive feedback loop, governments feeding and feeding off each other, toward the ends of larger governments.  In that case, one might say that governments expand not because they necessarily actually act to address climate change, whatever that actually means, but instead because they simply seize the powers that might address those things, but at bottom simply seize powers, whatever they actually do with them.

If the boys don’t stand to benefit from the vaccine, then are we making boys into The Island? Well, that’s an awfully inflammatory way to start out, I grant you.  Here’s another inflammatory way to start out ... would forcing boys to be vaccinated against their will but without any medical benefit to them, with the benefits accruing instead to girls, violate Roe v Wade? Our boy-bodies, ourboyselves?  For that matter, should pre-teen girls be forced to be Nudgily inoculated because their parents systematically underestimate the extent to which they will engage in sexual activity and have a tendency to acquire the disease?  Something here to offend almost everyone in this debate, if one takes it very far down to fundamentals.

Update: Thanks, Glenn, for the Instalanche! While I am thinking of this, please note that I am not the Dr. Kenneth Anderson, MD, Harvard Medical School, who is a real expert on vaccines and viruses and appears to have done some interviews and other media stuff on Gardasil.  I gather from a couple of comments that I have either tried some readers’ patience or else exceeded their attention spans.  There is not a lot of careful organization of this post, because I inserted paragraphs in between editing something unrelated; this is not my day job.  However, to the extent there is a structure, it is this:

• (a) Opening that you might find clever or not, but is designed to raise at least three multiple, indeed really different, ways in which mandatory vaccinations of either all girls, or all boys, or all girls and boys, with Gardasil could raise liberty and rights issues.
• (b) A short mention of what Gardasil is and why it was controversial back in 2006 when it was introduced, for those who haven’t closely followed it.
• (c) An introduction to the current issue, which is the introduction of Gardasil as safe for boys for genital warts which, according to the WSJ news article, are rare and not a big deal (I gather from comments that readers dispute this factual claim), whereas the true reason for vaccinating boys is for the benefit of girls.
• (d)  A discussion of the general issue of mandatory vaccination and why it is ethically justified for everyone who would benefit from what amounts to social insurance, and the wickedness of free riding, both as its own ethically bad thing as well as for the extra social social harms it causes by undermining the “herd immunity.”
• (e)  A discussion of the special case of religious claims for exemption from mandatory vaccination which are also free-riding, and my undefended (because arising from another kind of argument) claim that we should no longer allow religious claims of exemption.
• (f)  A shift in discussion from the general justification, even on libertarian grounds, for mandatory vaccination that benefits everyone to the special case of Gardasil, if one accepts the factual premise that it only benefits the girls, and not the boys.
• (g) An argument that requiring the boys to be vaccinated in that case violates their rights, and uses them merely as means to other social ends of social utility.
• (h) Consideration of a possible real-world counterexample in the form of other cases where we use a non-benefiting pool to benefit another group – rubella vaccinations; my suggestion is that it is not a good analogy.
• (i) A final (undefended) claim that we would not be discussing this at all if the situation were flipped, and we were talking about mandatory vaccination of girls to prevent testicular cancers.
• (j)  Then some side remarks, including a comment that one need not look at this from either a strong utilitarian or strong rights-based view; one might, for example, adopt views from Catholic social thought on the doctrine of love in the commonweal.

It might well be that the facts are different from what the WSJ news story quoted below suggests; in that case read this as a hypothetical around the question of whether it is permissible to require mandatory vaccination of one group in order to benefit another.  Several commenters have stated that men, gay men particularly, are at much greater cancer risk than the article says, for example.  I make no claim to being a doctor or public health specialist or expert in the facts of these medical issues.  So:

Gardasil is a vaccine against the sexually transmitted HPV virus that is a leading cause of cervical cancer in women.  It was approved by the FDA for use in women in 2006.

Approval was not without some controversy in 2006 – arguments over whether the manufacturer had overstated the extent and variety of protection, and whether the manufacturer’s massive spending on promoting the vaccine to health officials had shifted public officials’ objective judgment about safety and effectiveness.  There were independently arguments over the high monetary cost of the vaccine and its administration in relation to benefits.  This discussion skips over the monetary cost issues, the ethics of Merck’s campaign, and similar “money” issues.  However, this WSJ article describes that 2006 controversy this way:

After the FDA approved Gardasil’s use for girls and young women in 2006, the vaccine’s maker, Merck & Co., was criticized for lobbying aggressively to get states to make inoculation a requirement for pre-teenage girls. Its high price — $390 for the three-dose regimen — also came under attack ...  The FDA ruling on Gardasil came the same day that the agency approved a rival vaccine designed to protect against cervical cancer in women. GlaxoSmithKline PLC’s Cervarix vaccine was approved for use in girls and women ages 10 to 25 ...  While Cervarix, like Gardasil, protects against two HPV strains that are linked to about 70% of cervical-cancer cases in the U.S., the Cervarix vaccine doesn’t offer protection against the HPV strains that can cause genital warts.

I mention the 2006 controversy this despite having had a daughter get the vaccine; my wife and I thought it pretty clear that if you were a girl, the benefits outweighed the risks heavily even if it didn’t prevent against every form.  (And I mention this personal item because I don’t want anyone to think that I’m actually simply covertly opposed to vaccination, or to brand-new vaccines, etc.  I’m not, and whatever your views on that, I’m coming here from a standpoint of being perfectly comfortable with vaccination and, as discussed below, very willing to make vaccinations mandatory – and think it consistent with a generally libertarian outlook.) At least as the pediatrician explained it, for it to make a substantial difference, it needed to be given early on in adolescence, which, put more directly, before a girl became sexually active and might acquire the virus.  (Experts out there – and I am not one and only followed this via our pediatrician – can correct any of this.)

What’s new?  The vaccine has just now been approved for use in boys as well.  As the same Wall Street Journal story notes, there is controversy over whether boys ought to be vaccinated, whether there should be mandatory public health vaccination of boys, and whether there is a medical ethics question involved.  The controversy comes down to whether the vaccine benefits boys in any way except very minimally (fewer than 1% get the non-threatening genital warts, and of course none get cervical cancer).

Continue reading ‘Gardasil Vaccinations for Boys?’ »