One of the nice things about blogging and teaching law is that the two often complement each other. Yesterday while searching for additional readings for my first year public law class I stumbled across the fact that legendary US federal judge and incredibly prolific “law and economics” scholar Richard Posner has started his own blog in tandem with fellow L & E pioneer Gary Becker.
Despite being in awe of Posner’s formidable intellect and prodigious output, I’ve never been a major fan of public choice theory (on which L & E is mostly based), but maybe that’s because I don’t really understand it. It seems to me that, when you strip away the Coasian jargon, it doesn’t add very much to a standard pluralist analysis of political systems, except to demonise the interaction between interest groups and governments and suggest that everything would be much better sorted out by markets (which in only some cases is true).
To be candid, I’m hoping Jason Soon and others might go in to bat for public choice theory, and I’ll learn something. I’d have to concede that L & E/public choice can be a very useful tool in some situations, though, and analysis of the interaction between the various stakeholders in tort law is one of them. But I remain to be convinced that L & E has anything terribly useful to contribute to constitutional law, despite providing a link to this article in the Law and Economics Encyclopedia for my students.
I noticed while browsing Posner’s blog that he’s posted several times about global warming, one of my own occasional obsessions. The first post is here and there are several others in the December archives. Interestingly, Posner not only concludes that the Kyoto Protocol is a good thing, but that much stronger carbon taxes are needed (on what is basically a precautionary principle argument, flowing from the fact that the probability of an utterly catastrophic event – rapid major warming – can’t be calculated with present knowledge):
PS – Amanda points out in the comment box that there is a favourable review of Posner’s new book Catastrophe: Risk and Response in the latest New Scientist. Unfortunately it’s subscription access. But there is an earlier (January) NY Times review of Posner’s book by Peter Singer freely available.
But the Protocol, at least without the participation of the United States, is too limited a response to global warming if the focus is changed from gradual to abrupt global warming. …
Because of the enormous complexity of the forces that determine climate, and the historically unprecedented magnitude of human effects on the concentration of greenhouse gases, the possibility that continued growth in that concentration could precipitate¢â¬âand within the near rather than the distant future¢â¬âa sudden warming similar to that of the Younger Dryas cannot be excluded. Indeed, no probability, high or low, can be assigned to such a catastrophe. It may be prudent, therefore, to try to stimulate the rate at which economical substitutes for fossil fuels, and technology both for limiting the emission of carbon dioxide by those fuels when they are burned in internal-combustion engines or electrical generating plants, and for removing carbon dioxide from the atmosphere, are developed. This can be done, in part anyway, by stiff taxes on carbon dioxide emissions. Such taxes give the energy industries, along with business customers of them such as airlines and manufacturers of motor vehicles, a strong incentive to finance R&D designed to create economical clean substitutes for such fuels and devices to “trap” emissions at the source, before they enter the atmosphere. Given the technological predominance of the United States, it is important that these taxes be imposed on U.S. firms, which they would be if we ratified the Kyoto Protocol and by doing so became bound by it.
One advantage of the technology-forcing tax approach over public subsidies for R&D is that the government wouldn’t be in the business of picking winners¢â¬âthe affected industries would decide what R&D to support¢â¬âand another is that the brunt of the taxes could be partly offset by reducing other taxes, since emission taxes would raise revenue as well as inducing greater R&D expenditures. However, subsidies would be necessary for technologies that would have no market, such as technologies for removing carbon dioxide from the atmosphere. There would be no private demand for such technologies because, in contrast to ones that reduce emissions, technologies that remove already emitted carbon dioxide from the atmosphere would not reduce any emitter’s tax burden.