A communitarian green space betweenmarket and political rhetoric about environmental law

American Business Law Journal

Volumn 37, Issue 1, 1999, Pages 127-170

  Browne, M Neil ^a   Kubasek, Nancy K ^a  

^a NONE

Author keywords

[No Author keywords available]

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EID: 0040162436     PISSN: 00027766     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1744-1714.1999.tb00270.x     Document Type: Article

References (293)

1. 1998 Overview: Legislatively, Not a Bad Year for Business, 19 JUD./LEGIS. WATCH REP. 4 (Dec. 1998).
2. See GEORGE MYERSON, RHETORIC, REASON, AND SOCIETY (1994) (providing convincing portrayal of power of language to guide and restrain thought and discourse emerging from it).
3. See ROBERT KUTTNER, EVERYTHING FOR SALE: THE VIRTUES AND LIMITS OF MARKETS (1997) (discussing extent of market thinking and its deleterious impact on public debate); ROBERT E. LANE, THE MARKET EXPERIENCE (1991).
4. See ROBERT KUTTNER, EVERYTHING FOR SALE: THE VIRTUES AND LIMITS OF MARKETS (1997) (discussing extent of market thinking and its deleterious impact on public debate); ROBERT E. LANE, THE MARKET EXPERIENCE (1991).
5. KARL MANNHEIM, IDEOLOGY AND UTOPIA: AN INTRODUCTION TO THE SOCIOLOGY OF KNOWLEDGE (1951) (calling environmentalism in a market culture, a "utopian" idea, one that threatens status quo and consequently can expect wrath of those who benefit from or are comfortable with that status quo).
6. See Christopher Schroeder, Cool Analysis versus Moral Outrage in the Development of Federal Criminal Law, 35 WM. & MARY L. REV. 251 (1993). Schroeder argues that there are two competing approaches with respect to disputes over development of environmental standards: cool analysis and moral outrage. Cool analysis is based on the assumption that the main desire of most individuals is to improve their personal welfare so they make their choices with that end in mind. It is also based on the assumption that environmental values influence human desires in exactly the way other welfare-affecting values do. Thus, one will trade off environmental values against other values when to do so will increase one's welfare. Id. at 253. From the perspective of cool analysis, then, the role of government should be to formulate environmental policies that achieve the most welfare-enhancing mix of environmental protection and competing goods. One good tool for determining this mix is cost-benefit analysis. Id. Those who share the moral outrage perspective believe that people are not only concerned about their own welfare, but make independent commitments to values that do not necessarily enhance their own personal welfare. They will sometimes make choices that further these values at the expense of their own welfare. They further believe that environmental values are among these "special" values that people are sometimes willing to further. Id. Consequently, they believe that these values must be taken into account prior to engaging in any sort of cost-benefit analysis. Id. Those who advocate the dominant market-oriented approach would clearly feel more at home with those who prefer the cool analysis than those who share the assumptions of the moral outrage perspective.
7. This attempt to find a middle ground of sorts between autonomy and community is based on the same perceived danger of extreme modes of discourse that activates the approach of David B. Spence in Paradox Lost: Morality, and the Foundations of Environmental Law in the 21st Century, 20 COLUM. J. ENVTL. L. 145 (1995). Spence traces the influence of both the logic of economic analysis and the moral analysis of environmentalists and finds them to be substantive, productive influences on environmental policy. His conclusion is that the gains of environmental law may be lost if partisans of the two approaches remain unwilling to recognize the contributions of the others to sound environmental policy.
8. See AMITAI ETZIONI, THE ESSENTIAL COMMUNITARIAN READER xi (1998).
9. J. Scott Orr, New Congress Will Face Substantial Obstacles to Passing Legislation, PORTLAND OREGONIAN, Jan. 6, 1999, at 9B.
10. John J. Goodman, Chafee to Lead Effort for Bipartisan Managed Health Care Reform, Jan. 8, 1998 (press release).
11. J. Scott Orr, A Centrist Agenda Could Give Congress A Way Out of Gridlock, CLEVELAND PLAIN DEALER, Jan. 6, 1999, at 9B .
12. See ETZIONI, supra note 7, at x. Communitarians have coined the phrase "responsive community" to indicate their concern with the social obligations of individuals as well as their rights. Id. at xi.
13. Neoclassical economics has critics inside the economics profession who, although they are not explicitly linked to communitarian political theory, are nevertheless displeased with the lack of regard in mainstream economics for what Arendt calls "politics." See HANNA F. PITKIN, THE ATTACK OF THE BLOB: HANNAH ARENDT'S CONCEPT OF THE 'SOCIAL' (1998). According to these critics, neoclassical economics denigrates the relational aspects of our behavior. Especially significant is the critique of neoclassical principles by Amartya Sen, the most recent winner of the Nobel Prize in economics. Sen has presented a vigorous critique of economic rationality as blind to the social construction of property rights. See Amartya Sen, Rationality, Interest, and Identity, in DEVELOPMENT, DEMOCRACY, AND THE ART OF TRESPASSING 343-53 (Alexandra Foxley, et al. eds., 1986). Sen provides a framework that environmentalists can comfortably borrow. He highlights two departures from egoism: sympathy and commitment. The former corresponds to those instances where concern for others directly affects one's personal welfare. The second refers to those instances where one chooses to act in such a way as to benefit the community despite the perception that such action will be personally harmful. "Commitment" is especially useful for either communitarians or environmentalists because it permits one to have second order preferences that trump the first order preferences on which neoclassical economics is based. Amartya Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFFAIRS 317-44 (1977). The market mechanism confines its attention only to issues of congruence between the interests of various people, while ignoring those aspects of decision-making where interests conflict, as they surely do in environmental policy. Amartya Sen, The Profit Motive, LLOYD'S BANK REVIEW 6 (1983). By ignoring clashing interests, neoclassical economists can present a portrayal of resource allocation that appears to dodge the ethical discourse required to resolve conflicting property rights. AMARTYA SEN, ON ETHICS AND ECONOMICS (1987). Numerous other economists have also presented devastating critiques of economic rationality. They remind neoclassical economists of the short-term and delimited nature of preferences recorded in market demand curves. See J. Kevin Quinn, A Rhetorical Conception of Practical Rationality, 30 J. ECON. ISSUES 1127-42 (1996); MICHEL ALBERT, CAPITALISM VERSUS CAPITALISM (1993); ALBERT O. HIRSHMAN, RIVAL VIEWS OF MARKET SOCIETY (1992).
14. Neoclassical economics has critics inside the economics profession who, although they are not explicitly linked to communitarian political theory, are nevertheless displeased with the lack of regard in mainstream economics for what Arendt calls "politics." See HANNA F. PITKIN, THE ATTACK OF THE BLOB: HANNAH ARENDT'S CONCEPT OF THE 'SOCIAL' (1998). According to these critics, neoclassical economics denigrates the relational aspects of our behavior. Especially significant is the critique of neoclassical principles by Amartya Sen, the most recent winner of the Nobel Prize in economics. Sen has presented a vigorous critique of economic rationality as blind to the social construction of property rights. See Amartya Sen, Rationality, Interest, and Identity, in DEVELOPMENT, DEMOCRACY, AND THE ART OF TRESPASSING 343-53 (Alexandra Foxley, et al. eds., 1986). Sen provides a framework that environmentalists can comfortably borrow. He highlights two departures from egoism: sympathy and commitment. The former corresponds to those instances where concern for others directly affects one's personal welfare. The second refers to those instances where one chooses to act in such a way as to benefit the community despite the perception that such action will be personally harmful. "Commitment" is especially useful for either communitarians or environmentalists because it permits one to have second order preferences that trump the first order preferences on which neoclassical economics is based. Amartya Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFFAIRS 317-44 (1977). The market mechanism confines its attention only to issues of congruence between the interests of various people, while ignoring those aspects of decision-making where interests conflict, as they surely do in environmental policy. Amartya Sen, The Profit Motive, LLOYD'S BANK REVIEW 6 (1983). By ignoring clashing interests, neoclassical economists can present a portrayal of resource allocation that appears to dodge the ethical discourse required to resolve conflicting property rights. AMARTYA SEN, ON ETHICS AND ECONOMICS (1987). Numerous other economists have also presented devastating critiques of economic rationality. They remind neoclassical economists of the short-term and delimited nature of preferences recorded in market demand curves. See J. Kevin Quinn, A Rhetorical Conception of Practical Rationality, 30 J. ECON. ISSUES 1127-42 (1996); MICHEL ALBERT, CAPITALISM VERSUS CAPITALISM (1993); ALBERT O. HIRSHMAN, RIVAL VIEWS OF MARKET SOCIETY (1992).
15. Neoclassical economics has critics inside the economics profession who, although they are not explicitly linked to communitarian political theory, are nevertheless displeased with the lack of regard in mainstream economics for what Arendt calls "politics." See HANNA F. PITKIN, THE ATTACK OF THE BLOB: HANNAH ARENDT'S CONCEPT OF THE 'SOCIAL' (1998). According to these critics, neoclassical economics denigrates the relational aspects of our behavior. Especially significant is the critique of neoclassical principles by Amartya Sen, the most recent winner of the Nobel Prize in economics. Sen has presented a vigorous critique of economic rationality as blind to the social construction of property rights. See Amartya Sen, Rationality, Interest, and Identity, in DEVELOPMENT, DEMOCRACY, AND THE ART OF TRESPASSING 343-53 (Alexandra Foxley, et al. eds., 1986). Sen provides a framework that environmentalists can comfortably borrow. He highlights two departures from egoism: sympathy and commitment. The former corresponds to those instances where concern for others directly affects one's personal welfare. The second refers to those instances where one chooses to act in such a way as to benefit the community despite the perception that such action will be personally harmful. "Commitment" is especially useful for either communitarians or environmentalists because it permits one to have second order preferences that trump the first order preferences on which neoclassical economics is based. Amartya Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFFAIRS 317-44 (1977). The market mechanism confines its attention only to issues of congruence between the interests of various people, while ignoring those aspects of decision-making where interests conflict, as they surely do in environmental policy. Amartya Sen, The Profit Motive, LLOYD'S BANK REVIEW 6 (1983). By ignoring clashing interests, neoclassical economists can present a portrayal of resource allocation that appears to dodge the ethical discourse required to resolve conflicting property rights. AMARTYA SEN, ON ETHICS AND ECONOMICS (1987). Numerous other economists have also presented devastating critiques of economic rationality. They remind neoclassical economists of the short-term and delimited nature of preferences recorded in market demand curves. See J. Kevin Quinn, A Rhetorical Conception of Practical Rationality, 30 J. ECON. ISSUES 1127-42 (1996); MICHEL ALBERT, CAPITALISM VERSUS CAPITALISM (1993); ALBERT O. HIRSHMAN, RIVAL VIEWS OF MARKET SOCIETY (1992).
16. Neoclassical economics has critics inside the economics profession who, although they are not explicitly linked to communitarian political theory, are nevertheless displeased with the lack of regard in mainstream economics for what Arendt calls "politics." See HANNA F. PITKIN, THE ATTACK OF THE BLOB: HANNAH ARENDT'S CONCEPT OF THE 'SOCIAL' (1998). According to these critics, neoclassical economics denigrates the relational aspects of our behavior. Especially significant is the critique of neoclassical principles by Amartya Sen, the most recent winner of the Nobel Prize in economics. Sen has presented a vigorous critique of economic rationality as blind to the social construction of property rights. See Amartya Sen, Rationality, Interest, and Identity, in DEVELOPMENT, DEMOCRACY, AND THE ART OF TRESPASSING 343-53 (Alexandra Foxley, et al. eds., 1986). Sen provides a framework that environmentalists can comfortably borrow. He highlights two departures from egoism: sympathy and commitment. The former corresponds to those instances where concern for others directly affects one's personal welfare. The second refers to those instances where one chooses to act in such a way as to benefit the community despite the perception that such action will be personally harmful. "Commitment" is especially useful for either communitarians or environmentalists because it permits one to have second order preferences that trump the first order preferences on which neoclassical economics is based. Amartya Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFFAIRS 317-44 (1977). The market mechanism confines its attention only to issues of congruence between the interests of various people, while ignoring those aspects of decision-making where interests conflict, as they surely do in environmental policy. Amartya Sen, The Profit Motive, LLOYD'S BANK REVIEW 6 (1983). By ignoring clashing interests, neoclassical economists can present a portrayal of resource allocation that appears to dodge the ethical discourse required to resolve conflicting property rights. AMARTYA SEN, ON ETHICS AND ECONOMICS (1987). Numerous other economists have also presented devastating critiques of economic rationality. They remind neoclassical economists of the short-term and delimited nature of preferences recorded in market demand curves. See J. Kevin Quinn, A Rhetorical Conception of Practical Rationality, 30 J. ECON. ISSUES 1127-42 (1996); MICHEL ALBERT, CAPITALISM VERSUS CAPITALISM (1993); ALBERT O. HIRSHMAN, RIVAL VIEWS OF MARKET SOCIETY (1992).
17. Neoclassical economics has critics inside the economics profession who, although they are not explicitly linked to communitarian political theory, are nevertheless displeased with the lack of regard in mainstream economics for what Arendt calls "politics." See HANNA F. PITKIN, THE ATTACK OF THE BLOB: HANNAH ARENDT'S CONCEPT OF THE 'SOCIAL' (1998). According to these critics, neoclassical economics denigrates the relational aspects of our behavior. Especially significant is the critique of neoclassical principles by Amartya Sen, the most recent winner of the Nobel Prize in economics. Sen has presented a vigorous critique of economic rationality as blind to the social construction of property rights. See Amartya Sen, Rationality, Interest, and Identity, in DEVELOPMENT, DEMOCRACY, AND THE ART OF TRESPASSING 343-53 (Alexandra Foxley, et al. eds., 1986). Sen provides a framework that environmentalists can comfortably borrow. He highlights two departures from egoism: sympathy and commitment. The former corresponds to those instances where concern for others directly affects one's personal welfare. The second refers to those instances where one chooses to act in such a way as to benefit the community despite the perception that such action will be personally harmful. "Commitment" is especially useful for either communitarians or environmentalists because it permits one to have second order preferences that trump the first order preferences on which neoclassical economics is based. Amartya Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFFAIRS 317-44 (1977). The market mechanism confines its attention only to issues of congruence between the interests of various people, while ignoring those aspects of decision-making where interests conflict, as they surely do in environmental policy. Amartya Sen, The Profit Motive, LLOYD'S BANK REVIEW 6 (1983). By ignoring clashing interests, neoclassical economists can present a portrayal of resource allocation that appears to dodge the ethical discourse required to resolve conflicting property rights. AMARTYA SEN, ON ETHICS AND ECONOMICS (1987). Numerous other economists have also presented devastating critiques of economic rationality. They remind neoclassical economists of the short-term and delimited nature of preferences recorded in market demand curves. See J. Kevin Quinn, A Rhetorical Conception of Practical Rationality, 30 J. ECON. ISSUES 1127-42 (1996); MICHEL ALBERT, CAPITALISM VERSUS CAPITALISM (1993); ALBERT O. HIRSHMAN, RIVAL VIEWS OF MARKET SOCIETY (1992).
18. Neoclassical economics has critics inside the economics profession who, although they are not explicitly linked to communitarian political theory, are nevertheless displeased with the lack of regard in mainstream economics for what Arendt calls "politics." See HANNA F. PITKIN, THE ATTACK OF THE BLOB: HANNAH ARENDT'S CONCEPT OF THE 'SOCIAL' (1998). According to these critics, neoclassical economics denigrates the relational aspects of our behavior. Especially significant is the critique of neoclassical principles by Amartya Sen, the most recent winner of the Nobel Prize in economics. Sen has presented a vigorous critique of economic rationality as blind to the social construction of property rights. See Amartya Sen, Rationality, Interest, and Identity, in DEVELOPMENT, DEMOCRACY, AND THE ART OF TRESPASSING 343-53 (Alexandra Foxley, et al. eds., 1986). Sen provides a framework that environmentalists can comfortably borrow. He highlights two departures from egoism: sympathy and commitment. The former corresponds to those instances where concern for others directly affects one's personal welfare. The second refers to those instances where one chooses to act in such a way as to benefit the community despite the perception that such action will be personally harmful. "Commitment" is especially useful for either communitarians or environmentalists because it permits one to have second order preferences that trump the first order preferences on which neoclassical economics is based. Amartya Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFFAIRS 317-44 (1977). The market mechanism confines its attention only to issues of congruence between the interests of various people, while ignoring those aspects of decision-making where interests conflict, as they surely do in environmental policy. Amartya Sen, The Profit Motive, LLOYD'S BANK REVIEW 6 (1983). By ignoring clashing interests, neoclassical economists can present a portrayal of resource allocation that appears to dodge the ethical discourse required to resolve conflicting property rights. AMARTYA SEN, ON ETHICS AND ECONOMICS (1987). Numerous other economists have also presented devastating critiques of economic rationality. They remind neoclassical economists of the short-term and delimited nature of preferences recorded in market demand curves. See J. Kevin Quinn, A Rhetorical Conception of Practical Rationality, 30 J. ECON. ISSUES 1127-42 (1996); MICHEL ALBERT, CAPITALISM VERSUS CAPITALISM (1993); ALBERT O. HIRSHMAN, RIVAL VIEWS OF MARKET SOCIETY (1992).
19. Neoclassical economics has critics inside the economics profession who, although they are not explicitly linked to communitarian political theory, are nevertheless displeased with the lack of regard in mainstream economics for what Arendt calls "politics." See HANNA F. PITKIN, THE ATTACK OF THE BLOB: HANNAH ARENDT'S CONCEPT OF THE 'SOCIAL' (1998). According to these critics, neoclassical economics denigrates the relational aspects of our behavior. Especially significant is the critique of neoclassical principles by Amartya Sen, the most recent winner of the Nobel Prize in economics. Sen has presented a vigorous critique of economic rationality as blind to the social construction of property rights. See Amartya Sen, Rationality, Interest, and Identity, in DEVELOPMENT, DEMOCRACY, AND THE ART OF TRESPASSING 343-53 (Alexandra Foxley, et al. eds., 1986). Sen provides a framework that environmentalists can comfortably borrow. He highlights two departures from egoism: sympathy and commitment. The former corresponds to those instances where concern for others directly affects one's personal welfare. The second refers to those instances where one chooses to act in such a way as to benefit the community despite the perception that such action will be personally harmful. "Commitment" is especially useful for either communitarians or environmentalists because it permits one to have second order preferences that trump the first order preferences on which neoclassical economics is based. Amartya Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFFAIRS 317-44 (1977). The market mechanism confines its attention only to issues of congruence between the interests of various people, while ignoring those aspects of decision-making where interests conflict, as they surely do in environmental policy. Amartya Sen, The Profit Motive, LLOYD'S BANK REVIEW 6 (1983). By ignoring clashing interests, neoclassical economists can present a portrayal of resource allocation that appears to dodge the ethical discourse required to resolve conflicting property rights. AMARTYA SEN, ON ETHICS AND ECONOMICS (1987). Numerous other economists have also presented devastating critiques of economic rationality. They remind neoclassical economists of the short-term and delimited nature of preferences recorded in market demand curves. See J. Kevin Quinn, A Rhetorical Conception of Practical Rationality, 30 J. ECON. ISSUES 1127-42 (1996); MICHEL ALBERT, CAPITALISM VERSUS CAPITALISM (1993); ALBERT O. HIRSHMAN, RIVAL VIEWS OF MARKET SOCIETY (1992).
20. Neoclassical economics has critics inside the economics profession who, although they are not explicitly linked to communitarian political theory, are nevertheless displeased with the lack of regard in mainstream economics for what Arendt calls "politics." See HANNA F. PITKIN, THE ATTACK OF THE BLOB: HANNAH ARENDT'S CONCEPT OF THE 'SOCIAL' (1998). According to these critics, neoclassical economics denigrates the relational aspects of our behavior. Especially significant is the critique of neoclassical principles by Amartya Sen, the most recent winner of the Nobel Prize in economics. Sen has presented a vigorous critique of economic rationality as blind to the social construction of property rights. See Amartya Sen, Rationality, Interest, and Identity, in DEVELOPMENT, DEMOCRACY, AND THE ART OF TRESPASSING 343-53 (Alexandra Foxley, et al. eds., 1986). Sen provides a framework that environmentalists can comfortably borrow. He highlights two departures from egoism: sympathy and commitment. The former corresponds to those instances where concern for others directly affects one's personal welfare. The second refers to those instances where one chooses to act in such a way as to benefit the community despite the perception that such action will be personally harmful. "Commitment" is especially useful for either communitarians or environmentalists because it permits one to have second order preferences that trump the first order preferences on which neoclassical economics is based. Amartya Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory, 6 PHIL. & PUB. AFFAIRS 317-44 (1977). The market mechanism confines its attention only to issues of congruence between the interests of various people, while ignoring those aspects of decision-making where interests conflict, as they surely do in environmental policy. Amartya Sen, The Profit Motive, LLOYD'S BANK REVIEW 6 (1983). By ignoring clashing interests, neoclassical economists can present a portrayal of resource allocation that appears to dodge the ethical discourse required to resolve conflicting property rights. AMARTYA SEN, ON ETHICS AND ECONOMICS (1987). Numerous other economists have also presented devastating critiques of economic rationality. They remind neoclassical economists of the short-term and delimited nature of preferences recorded in market demand curves. See J. Kevin Quinn, A Rhetorical Conception of Practical Rationality, 30 J. ECON. ISSUES 1127-42 (1996); MICHEL ALBERT, CAPITALISM VERSUS CAPITALISM (1993); ALBERT O. HIRSHMAN, RIVAL VIEWS OF MARKET SOCIETY (1992).
21. See STEPHEN KELMAN, WHAT PRICE INCENTIVES? ECONOMISTS AND THE ENVIRONMENT (1981) (exploring the impact of repeated exposure to certain values and not others). Kelman points out that the persistent discussion of efficiency among neoclassical economists encourages blindness towards the equity impacts of environmental policies that rely on price incentives for enforcement. Kelman sees such incentives as endorsing the self-interested behavioral assumptions on which loyalty to market processes is based. The use of price incentives treats the motives of polluters with indifference and permits those who are financially comfortable a legitimate avenue for shifting the burden of environmental problems onto those who are less able to pay to escape the burden. Id.
22. See id. at xii.
23. See AMITAI ETZIONI, THE SPIRIT OF COMMUNITY (1994).
24. See id. at xxv.
25. See CASS SUNSTEIN, FREE MARKETS AND SOCIAL JUSTICE 5 (1997).
26. See id.
27. See id. Preferences are not abstractions. Except for certain basic human needs, preferences are constructed. They emerge as a result of complex webs of social interaction. Yet, markets, as they are discussed in mainstream economics, are not meant to be forums for desires represented by demand curves. Instead, preferences are assumed to exist prior to and apart from market activity. Their quality is unassailable. ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS 146 (1993). For an outstanding survey of the implications of assuming that preferences are endogenous, see Samuel Bowles, Endogenous Preferences: The Cultural Consequences of Markets and other Economic Institutions 36 J. ECON. LIT. 75-111 (1998).
28. See id. Preferences are not abstractions. Except for certain basic human needs, preferences are constructed. They emerge as a result of complex webs of social interaction. Yet, markets, as they are discussed in mainstream economics, are not meant to be forums for desires represented by demand curves. Instead, preferences are assumed to exist prior to and apart from market activity. Their quality is unassailable. ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS 146 (1993). For an outstanding survey of the implications of assuming that preferences are endogenous, see Samuel Bowles, Endogenous Preferences: The Cultural Consequences of Markets and other Economic Institutions 36 J. ECON. LIT. 75-111 (1998).
29. See SUNSTEIN, supra note 17, at 20.
30. See id. at 36-39.
31. See id. at 52-53.
32. See id.
33. See MICHAEL WALZER, SPHERES OF JUSTICE (1983). Walzer lists the set of blocked exchanges in the United States today: human beings; political power and influence; criminal justice; freedom of speech, press, religion, and assembly; marriage and procreation rights; political offices; the right to leave the political community; basic welfare services like police protection; desperate measures or "trades of last resort"; prizes and honors; divine grace; love and friendship; and those sales prohibited by our criminal laws. If indeed money were the universal metric, there would be no such blocked exchanges. Id. at 96-103.
34. See Robert N. Bellah, Community Properly Understood: A Defense of Democratic Communitarianism, in THE ESSENTIAL COMMUNITARIAN READER 15-19 (Amitai Etzioni ed., 1998).
35. Id. at 17.
36. Id. at 18.
37. Id. at 17-18. Communitarianism, as a philosophy, traces its roots back to a group of philosophers - Charles Taylor, Michael J. Sandel, and Michael Walzer - who challenged the liberal opposition to the concept of the common good. All three, however, have expressed a lack of comfort with the label "communitarian." That label, however, was embraced by a group of scholars in the late 1990s, who are sometimes referred to as the "new communitarians."
38. Id.
39. Id.
40. Id.
41. Id.
42. Tony Blair, A Third Way to Achieve Modern Social Democracy, HERALD INT'L TRIB., Sept. 28, 1998, at 10 (noting that old ideology had created false dilemma between public and private sectors). Blair said that his government's approach under this third way was neither laissez faire nor one of state interference. Critical to this third way is education and attaining a balance between rights and duties. He saw it as a restoration of faith in politics and a new alliance between progress and justice. Id.
43. ETZIONI, supra note 15, at 50.
44. David Luban, Book Review, The Legal Ethics of Radical Communitarianism, 60 TENN. L. REV. 589, 589 (1993) (reviewing THOMAS L. SHAFFER & MARY M. SHAFFER, THE LEGAL ETHICS OF RADICAL COMMUNITARIANISM (1991)).
45. Id. at 590; see also Philip Selznick, The Idea of a Communitarian Morality, 75 CAL. L. REV. 445, 447 (1987) (highlighting connection between sociology and communitarian perspective).
46. ETZIONI, supra note 15, at 177.
47. Id. at 180-81.
48. Id. at 181.
49. Id. at 189-90.
50. Economists are not all uniform. Environmental activists have allies within the economics community, despite the overwhelming predominance of neoclassical thought. Among those who support an economics more friendly to environmental protection are those who ridicule the current measures of economic progress as measures of total well-being. See HERMAN DALY, STEADY-STATE ECONOMICS (1991). John Miller, The Wrong Shade of Green: Orthodox Economics Put Profit before Sustainability, 185 DOLLARS AND SENSE 6-9 (1993), argues that "a country could deplete its petroleum reserves, destroy its forests, and erode its soil . . . before its national accounts even recognized the problem." Dissident voices within the discipline also are critical of the mainstream's valorization of growth. A past president of the American Economics Association, Kenneth Boulding, asserted that "anyone who believes that exponential growth can go on forever is either a madman or an economist." JOHN DRYZEK, RATIONAL ECOLOGY: ENVIRONMENT AND POLITICAL ECONOMY 73 (1987). Moreover, the mainstream's treatment of externalities has not been spared. See WILLIAM BAUMOL & WALLACE OATES, ECONOMICS, ENVIRONMENTAL POLICY AND THE QUALITY OF LIFE (1979) (arguing that externalities are not aberrations and in fact "are caused by a standard defect in free enterprise system"); E. K. HUNT, HISTORY OF ECONOMIC THOUGHT: A CRITICAL PERSPECTIVE 485 (1992) (calling externalities "totally pervasive").
51. Economists are not all uniform. Environmental activists have allies within the economics community, despite the overwhelming predominance of neoclassical thought. Among those who support an economics more friendly to environmental protection are those who ridicule the current measures of economic progress as measures of total well-being. See HERMAN DALY, STEADY-STATE ECONOMICS (1991). John Miller, The Wrong Shade of Green: Orthodox Economics Put Profit before Sustainability, 185 DOLLARS AND SENSE 6-9 (1993), argues that "a country could deplete its petroleum reserves, destroy its forests, and erode its soil . . . before its national accounts even recognized the problem." Dissident voices within the discipline also are critical of the mainstream's valorization of growth. A past president of the American Economics Association, Kenneth Boulding, asserted that "anyone who believes that exponential growth can go on forever is either a madman or an economist." JOHN DRYZEK, RATIONAL ECOLOGY: ENVIRONMENT AND POLITICAL ECONOMY 73 (1987). Moreover, the mainstream's treatment of externalities has not been spared. See WILLIAM BAUMOL & WALLACE OATES, ECONOMICS, ENVIRONMENTAL POLICY AND THE QUALITY OF LIFE (1979) (arguing that externalities are not aberrations and in fact "are caused by a standard defect in free enterprise system"); E. K. HUNT, HISTORY OF ECONOMIC THOUGHT: A CRITICAL PERSPECTIVE 485 (1992) (calling externalities "totally pervasive").
52. Economists are not all uniform. Environmental activists have allies within the economics community, despite the overwhelming predominance of neoclassical thought. Among those who support an economics more friendly to environmental protection are those who ridicule the current measures of economic progress as measures of total well-being. See HERMAN DALY, STEADY-STATE ECONOMICS (1991). John Miller, The Wrong Shade of Green: Orthodox Economics Put Profit before Sustainability, 185 DOLLARS AND SENSE 6-9 (1993), argues that "a country could deplete its petroleum reserves, destroy its forests, and erode its soil . . . before its national accounts even recognized the problem." Dissident voices within the discipline also are critical of the mainstream's valorization of growth. A past president of the American Economics Association, Kenneth Boulding, asserted that "anyone who believes that exponential growth can go on forever is either a madman or an economist." JOHN DRYZEK, RATIONAL ECOLOGY: ENVIRONMENT AND POLITICAL ECONOMY 73 (1987). Moreover, the mainstream's treatment of externalities has not been spared. See WILLIAM BAUMOL & WALLACE OATES, ECONOMICS, ENVIRONMENTAL POLICY AND THE QUALITY OF LIFE (1979) (arguing that externalities are not aberrations and in fact "are caused by a standard defect in free enterprise system"); E. K. HUNT, HISTORY OF ECONOMIC THOUGHT: A CRITICAL PERSPECTIVE 485 (1992) (calling externalities "totally pervasive").
53. Economists are not all uniform. Environmental activists have allies within the economics community, despite the overwhelming predominance of neoclassical thought. Among those who support an economics more friendly to environmental protection are those who ridicule the current measures of economic progress as measures of total well-being. See HERMAN DALY, STEADY-STATE ECONOMICS (1991). John Miller, The Wrong Shade of Green: Orthodox Economics Put Profit before Sustainability, 185 DOLLARS AND SENSE 6-9 (1993), argues that "a country could deplete its petroleum reserves, destroy its forests, and erode its soil . . . before its national accounts even recognized the problem." Dissident voices within the discipline also are critical of the mainstream's valorization of growth. A past president of the American Economics Association, Kenneth Boulding, asserted that "anyone who believes that exponential growth can go on forever is either a madman or an economist." JOHN DRYZEK, RATIONAL ECOLOGY: ENVIRONMENT AND POLITICAL ECONOMY 73 (1987). Moreover, the mainstream's treatment of externalities has not been spared. See WILLIAM BAUMOL & WALLACE OATES, ECONOMICS, ENVIRONMENTAL POLICY AND THE QUALITY OF LIFE (1979) (arguing that externalities are not aberrations and in fact "are caused by a standard defect in free enterprise system"); E. K. HUNT, HISTORY OF ECONOMIC THOUGHT: A CRITICAL PERSPECTIVE 485 (1992) (calling externalities "totally pervasive").
54. Economists are not all uniform. Environmental activists have allies within the economics community, despite the overwhelming predominance of neoclassical thought. Among those who support an economics more friendly to environmental protection are those who ridicule the current measures of economic progress as measures of total well-being. See HERMAN DALY, STEADY-STATE ECONOMICS (1991). John Miller, The Wrong Shade of Green: Orthodox Economics Put Profit before Sustainability, 185 DOLLARS AND SENSE 6-9 (1993), argues that "a country could deplete its petroleum reserves, destroy its forests, and erode its soil . . . before its national accounts even recognized the problem." Dissident voices within the discipline also are critical of the mainstream's valorization of growth. A past president of the American Economics Association, Kenneth Boulding, asserted that "anyone who believes that exponential growth can go on forever is either a madman or an economist." JOHN DRYZEK, RATIONAL ECOLOGY: ENVIRONMENT AND POLITICAL ECONOMY 73 (1987). Moreover, the mainstream's treatment of externalities has not been spared. See WILLIAM BAUMOL & WALLACE OATES, ECONOMICS, ENVIRONMENTAL POLICY AND THE QUALITY OF LIFE (1979) (arguing that externalities are not aberrations and in fact "are caused by a standard defect in free enterprise system"); E. K. HUNT, HISTORY OF ECONOMIC THOUGHT: A CRITICAL PERSPECTIVE 485 (1992) (calling externalities "totally pervasive").
55. See David George, The Rhetoric of Economic Texts, 24 J. ECON. ISSUES 861-78 (1990).
56. Certain values are emphasized most by mainstream economists. They value efficiency, that is, getting the most from a given amount of inputs or resources, and negative freedom, defined as acting without restriction from rules imposed by others. However, mainstream economists try to argue that their discipline is value-free. They claim that when economists make decisions, they make those decisions based on facts, not values. Understanding the value preferences of certain groups is important because those value preferences will influence policy formation. See, e.g., James A. Gross, The Kenneth M. Piper Lecture: The Broken Promises of the National Labor Relations Act and The Occupational Safety and Health Act: Conflicting Values and Conceptions of Rights and Justice, 73 CHI.-KENT. L. REV. 351, 372 (1998). Every economic system has historical roots and embodies value judgments about the individual person, law, private property, liberty, and the role of government. A particular system and theory are chosen because they yield policy implications compatible with some one's or some group's vision of what should be in the world. ... [Economists'] underlying value premises, however, are at least as important as the extent of their empirical knowledge of the real world or the validity of their mathematical analyses. Id. Not only should we recognize the values inherent in group beliefs, but we should also explicitly identify values in legal analysis. See, e.g., Caryn L. Beck-Dudley & Edward J. Conry, Legal Reasoning & Practical Reasonableness, 33 AM. Bus. L.J. 91 (1995) (concluding that natural law analysis is beneficial because, unlike positivism, it requires us to openly consider value conflicts.).
57. Certain values are emphasized most by mainstream economists. They value efficiency, that is, getting the most from a given amount of inputs or resources, and negative freedom, defined as acting without restriction from rules imposed by others. However, mainstream economists try to argue that their discipline is value-free. They claim that when economists make decisions, they make those decisions based on facts, not values. Understanding the value preferences of certain groups is important because those value preferences will influence policy formation. See, e.g., James A. Gross, The Kenneth M. Piper Lecture: The Broken Promises of the National Labor Relations Act and The Occupational Safety and Health Act: Conflicting Values and Conceptions of Rights and Justice, 73 CHI.-KENT. L. REV. 351, 372 (1998). Every economic system has historical roots and embodies value judgments about the individual person, law, private property, liberty, and the role of government. A particular system and theory are chosen because they yield policy implications compatible with some one's or some group's vision of what should be in the world. ... [Economists'] underlying value premises, however, are at least as important as the extent of their empirical knowledge of the real world or the validity of their mathematical analyses. Id. Not only should we recognize the values inherent in group beliefs, but we should also explicitly identify values in legal analysis. See, e.g., Caryn L. Beck-Dudley & Edward J. Conry, Legal Reasoning & Practical Reasonableness, 33 AM. Bus. L.J. 91 (1995) (concluding that natural law analysis is beneficial because, unlike positivism, it requires us to openly consider value conflicts.).
58. See DEBORAH STONE, POLICY PARADOX: THE ART OF POLITICAL DECISION MAKING 17 (1997). A market can be simply denned as a social system in which individuals pursue their own welfare by exchanging things with others whenever trades are mutually beneficial. Economists often begin their discussions of the market by conjuring up the Robinson Crusoe society, where two people on a lush tropical island swap coconuts and small game animals. They trade to make each person better off, but since each person always has the option of producing everything for himself, trading is never an absolute necessity for either one. Id. The theory of markets says that as long as exchanges meet these conditions of being both voluntary and fully informed . . . they lead to the goal of allocative efficiency: Resources always move in a direction that make people better off. This is because exchanges are choices. . . . Since no one would voluntarily exchange in a trade that made him or her worse off, and people would engage in trades only when at least one side was made better off, all voluntary exchanges must lead to situations where at least one person is better off and no one is worse off. ... [I] n the theory of markets, voluntary exchanges transform resources into something more valuable. Id. at 68; see also Gross, supra note 43, at 371-77 (describing assumptions of mainstream economists in context of NLRA and OSHA Act). See generally Martha Nussbaum, Flawed Foundations: The Philosophical Critique of (a Particular Type of) Economics, 64 U. CHI. L. REV. 1197, 1197-98 (1997) (describing how Law and Economics movement has been built on specific set of conceptual foundations which are from mainstream neoclassical economics).
59. See DEBORAH STONE, POLICY PARADOX: THE ART OF POLITICAL DECISION MAKING 17 (1997). A market can be simply denned as a social system in which individuals pursue their own welfare by exchanging things with others whenever trades are mutually beneficial. Economists often begin their discussions of the market by conjuring up the Robinson Crusoe society, where two people on a lush tropical island swap coconuts and small game animals. They trade to make each person better off, but since each person always has the option of producing everything for himself, trading is never an absolute necessity for either one. Id. The theory of markets says that as long as exchanges meet these conditions of being both voluntary and fully informed . . . they lead to the goal of allocative efficiency: Resources always move in a direction that make people better off. This is because exchanges are choices. . . . Since no one would voluntarily exchange in a trade that made him or her worse off, and people would engage in trades only when at least one side was made better off, all voluntary exchanges must lead to situations where at least one person is better off and no one is worse off. ... [I] n the theory of markets, voluntary exchanges transform resources into something more valuable. Id. at 68; see also Gross, supra note 43, at 371-77 (describing assumptions of mainstream economists in context of NLRA and OSHA Act). See generally Martha Nussbaum, Flawed Foundations: The Philosophical Critique of (a Particular Type of) Economics, 64 U. CHI. L. REV. 1197, 1197-98 (1997) (describing how Law and Economics movement has been built on specific set of conceptual foundations which are from mainstream neoclassical economics).
60. See DEBORAH STONE, POLICY PARADOX: THE ART OF POLITICAL DECISION MAKING 17 (1997). A market can be simply denned as a social system in which individuals pursue their own welfare by exchanging things with others whenever trades are mutually beneficial. Economists often begin their discussions of the market by conjuring up the Robinson Crusoe society, where two people on a lush tropical island swap coconuts and small game animals. They trade to make each person better off, but since each person always has the option of producing everything for himself, trading is never an absolute necessity for either one. Id. The theory of markets says that as long as exchanges meet these conditions of being both voluntary and fully informed . . . they lead to the goal of allocative efficiency: Resources always move in a direction that make people better off. This is because exchanges are choices. . . . Since no one would voluntarily exchange in a trade that made him or her worse off, and people would engage in trades only when at least one side was made better off, all voluntary exchanges must lead to situations where at least one person is better off and no one is worse off. ... [I] n the theory of markets, voluntary exchanges transform resources into something more valuable. Id. at 68; see also Gross, supra note 43, at 371-77 (describing assumptions of mainstream economists in context of NLRA and OSHA Act). See generally Martha Nussbaum, Flawed Foundations: The Philosophical Critique of (a Particular Type of) Economics, 64 U. CHI. L. REV. 1197, 1197-98 (1997) (describing how Law and Economics movement has been built on specific set of conceptual foundations which are from mainstream neoclassical economics).
61. In market thinking, the ultimate beneficiary of the economic process is the consumer. See M. NEIL BROWNE & JOHN H. HOAG, UNDERSTANDING ECONOMIC ANALYSIS 81 (1983). [P]rices represent consumer signals to producers concerning how many resources should be devoted to production of a particular good or service. Prices also provide consumers with information concerning the availability of resources for production. Consumer sovereignty refers to consumer control over what is produced and the form the production will take. Id.
62. See DAVID COLANDER, MICROECONOMICS 241 (3d ed. 1998); see also Chris Tilly, Shaking the Invisible Hand: The Uncertain Foundations of Free-Market Economics, in REAL WORLD MICRO 34 (Randy Albelda et al. Eds. 7th ed. 1997). "Buyers and sellers know everything there is to know about the goods being exchanged. Also, each is aware of the wishes of every other potential buyer and seller in the market." Id. at 35.
63. See DAVID COLANDER, MICROECONOMICS 241 (3d ed. 1998); see also Chris Tilly, Shaking the Invisible Hand: The Uncertain Foundations of Free-Market Economics, in REAL WORLD MICRO 34 (Randy Albelda et al. Eds. 7th ed. 1997). "Buyers and sellers know everything there is to know about the goods being exchanged. Also, each is aware of the wishes of every other potential buyer and seller in the market." Id. at 35.
64. See STONE, supra note 44, at 18. In the market model, individuals act only to maximize their own self-interest. Here 'self-interest' means their own welfare, however, they define that for themselves. It does not mean that they act 'selfishly1; their self-interest might include , for example, the well-being of their family and friends. The competitive drive to maximize one's own welfare stimulates people to be very resourceful, creative, cleaver, and productive, and ultimately raises the level of economic well-being of society as a whole. Id.; see also Tilly, supra note 46, at 35 ("In economic matters, each person cares only about his or her level of well-being.").
65. The individual, the focus of economic thought, is assumed to be an isolated, self-interested, calculating maximizer of utility. Economists have offered the following name for the individual in the market: "Homo Economicus." Rationality is emphasized most in mainstream economics.
66. But see SUNSTEIN, supra note 17, at 5 (arguing that humans do not always act as rational profit maximizers). At times, people choose to do things they know are not in their best interests. At other times, they rely on heuristic devices that cause them to misunderstand probabilities and facts, and consequently they act irrationally. Id.
67. Id.
68. Id. at 20.
69. Id. at 52-53.
70. See COLANDER, supra note 46, at 242. Barriers to entry are any things that prevent other firms from entering a market. They might be legal barriers such as exist when firms acquire a patent to produce a certain product. Barriers might be technological, such as when the minimum efficient scale of production allows only one firm to produce at the lowest average total cost. Or barriers might be created by social forces, such as when bankers will lend only to certain types of people and not to other types. Id.; see also STONE, supra note 44, at 71 ("In order for markets to yield efficiency, there must be numerous buyers and sellers of any resource, so that no person or firm can influence the market price.").
71. See COLANDER, supra note 46, at 242. Barriers to entry are any things that prevent other firms from entering a market. They might be legal barriers such as exist when firms acquire a patent to produce a certain product. Barriers might be technological, such as when the minimum efficient scale of production allows only one firm to produce at the lowest average total cost. Or barriers might be created by social forces, such as when bankers will lend only to certain types of people and not to other types. Id.; see also STONE, supra note 44, at 71 ("In order for markets to yield efficiency, there must be numerous buyers and sellers of any resource, so that no person or firm can influence the market price.").
72. See ELTON RAYACK, NOT SO FREE TO CHOOSE: THE POLITICAL ECONOMY OF MILTON FRIEDMAN AND RONALD REAGAN 11 (1987). Rayak describes Milton Friedman's economic thinking, which is representative of mainstream economic thought. [The] economic activity of literally millions of individuals and business firms [will be coordinated] through "voluntary exchanges [in a] free enterprise exchange economy-competitive capitalism." As long as freedom of exchange is maintained, the consumer is protected from coercion by the producer because of other consumers to whom he can sell and the employee is protected from coercion
73. See JOHN H. McMANUS, MARKET-DRIVEN JOURNALISM: LETTHE CITIZEN BEWARE 4-5 (1994).
74. Id.
75. Id.
76. Id.
77. Id.
78. See, e. g., Nussbaum, supra note 44, at 1198. Nussbaum suggests that the law and economics movement has ignored philosophical criticisms of the foundations of mainstream neoclassical economics. For example, she presents philosophical criticisms of commensurability and well-being. Id. at 1198-1206;
79. see also Kenneth G. Dau-Schmidt, The Prospects for an Interdisciplinary Discourse on Law, 1997 WIS. L. REV. 389, 418 (1997) (suggesting that sociology can help neoclassical economics "relax" it» assumptums). At least three such implications of sociology for the economic analysis of law seem readily apparent. First, it would seem important to take account of the fact that people are not always independent actors, but are members of groups, and that such membership can sometimes affect their actions. This fact seems particularly relevant in the analysis of the regulation of group-based activity such as racial discrimination. Second, people are inculcated with certain norm of cooperation, and these norms sometimes and these norms sometimes dictate actions that are not purely self-interested The acknowledgement of such norms for cooperation may be important in the analysis of a wide variety of legal issues including the doctrine of unconscionability the implied covenant of good faith and fair dealing, the duty to rescue, welfare programs and the voting behavior of citizens, politicians and judges. Finally, it is important to take account of the fact that the law is not merely a pricing mechanism, but is sometimes intended to "socialize" people and influence their preferences with respect to a particular activity.
80. Id. at 419. Christine Jolls et al., A Behavioral Approach to Law and Economics 50 STAN. L. REV. 1471, 1477-79 (1998) (discussing how individuals display bounded rationality, bounded willpower, and bounded self-interest).
81. Bounded rationality, an idea first introduced by Herbert Simon, refers to the obvious fact that human cognitive abilities are not infinite. We have limited computational skills and seriously flawed memories. People can respond sensibly to these failings; thus it might be said that people sometimes respond rationally to their own cognitive limitations, minimizing the sum of decision costs and error costs. [However,] human behavior differs in systematic ways from that predicted by the standard economic model of unbounded rationality. Id. at addition to bounded rationality, people often display bounded willpower This term refers to the fact that human beings often take actions that they know to be in conflict with their own long-term interests. . . . Finally, we use the term bounded self-interest to refer to an important fact about the utility function of most people: They care, or act as if they care, about others, even strangers, in some circumstances. In many market and bargaining settings, . . . people care about being treated fairly and want to treat others fairly if those others are themselves behavmg fairly. As a result of these concerns, the agents in a behavioral economic model are both nicer and (when they are not treated fairly) more spiteful than the agents postulated by neoclassical theory. Id. at 1479.
82. This questioning of rationality extends to the corporation. See, e.g., Michael B. Metzger & Dan R. Dalton, Seeing the Elephant: An Organizational Perspective on Corporate Moral Agency, 33 AM. Bus. L. J. 489, 538-46 (1996) (concluding that Rational Actor model is, at best, an incomplete picture of the corporation).
83. See, e.g., Jim Campen, Lending Insights: Hard Proof That Banks Discriminate, in REAL WORLD MICRO (Randy Albelda et al. eds. 7th ed. 1997) (describing how mortgage lenders discriminate when approving mortgage applications).
84. See COLANDER, supra note 46, at 119 (defining market failures as "situations where the market does not lead to a desired result"); Robert F. Goff, Note, Emphasizing Conduct over Context and Market Definition over Market Power: Short-Term Strategic Anticompetitive Behavior Absolved in Blue Cross v. Marshfield Clinic, 3 CONN. INS. L. J. 381, 385 (1996/1997) (suggesting that there are certain characteristics of health care and HMO markets that "present unusual opportunities for market distortion").
85. See COLANDER, supra note 46, at 119 (defining market failures as "situations where the market does not lead to a desired result"); Robert F. Goff, Note, Emphasizing Conduct over Context and Market Definition over Market Power: Short-Term Strategic Anticompetitive Behavior Absolved in Blue Cross v. Marshfield Clinic, 3 CONN. INS. L. J. 381, 385 (1996/1997) (suggesting that there are certain characteristics of health care and HMO markets that "present unusual opportunities for market distortion").
86. See Eric Schutz, Markets and Power, 29 J. ECON. ISSUES 1147 (1995) (emphasizing importance of considering role of power in market). Market societies are not essentially different from other developed societies in human history; they are pyramidal systems of personal and institutional status and privilege, inherently structured by arrangements of power in all spheres of activity including the allocation of resources. It is high time for mainstream economists . . . to rejoin the rest of the social sciences in recognizing that fact. Id. at 1166; see also ROBERT L. HEILBRONER, BEHIND THE VEIL OF ECONOMICS (1988) (discussing hidden power dimensions in market). See generally Eric W. Orts, Shirking and Sharking: A Legal Theory of the Firm, 16 YALE L. & POL'Y REV. 265 (1998) (concluding that the economic theory of the firm ignores the concept of power).
87. See Eric Schutz, Markets and Power, 29 J. ECON. ISSUES 1147 (1995) (emphasizing importance of considering role of power in market). Market societies are not essentially different from other developed societies in human history; they are pyramidal systems of personal and institutional status and privilege, inherently structured by arrangements of power in all spheres of activity including the allocation of resources. It is high time for mainstream economists . . . to rejoin the rest of the social sciences in recognizing that fact. Id. at 1166; see also ROBERT L. HEILBRONER, BEHIND THE VEIL OF ECONOMICS (1988) (discussing hidden power dimensions in market). See generally Eric W. Orts, Shirking and Sharking: A Legal Theory of the Firm, 16 YALE L. & POL'Y REV. 265 (1998) (concluding that the economic theory of the firm ignores the concept of power).
88. See Eric Schutz, Markets and Power, 29 J. ECON. ISSUES 1147 (1995) (emphasizing importance of considering role of power in market). Market societies are not essentially different from other developed societies in human history; they are pyramidal systems of personal and institutional status and privilege, inherently structured by arrangements of power in all spheres of activity including the allocation of resources. It is high time for mainstream economists . . . to rejoin the rest of the social sciences in recognizing that fact. Id. at 1166; see also ROBERT L. HEILBRONER, BEHIND THE VEIL OF ECONOMICS (1988) (discussing hidden power dimensions in market). See generally Eric W. Orts, Shirking and Sharking: A Legal Theory of the Firm, 16 YALE L. & POL'Y REV. 265 (1998) (concluding that the economic theory of the firm ignores the concept of power).
89. Moral hazard occurs when consumers or producers are tempted to be less than their best. We look to the market as a conflict resolution system. Producers would have the most opportunity to behave badly. The market is supposed to benefit the consumer.
90. See COLANDER, supra note 46, at 117. Colander defines an externality as "the effect that an action may have on a third party that the person who undertook that action did not take into account." Id. An externality can be positive (in which case society as a whole benefits even more than the two parties) or negative (in which case society as a whole benefits less than the two parties). . . . An example of a negative externality is pollution. For example, when people use air conditioners, they'll probably let loose a small amount of chlorofluorocarbons, which go up into the earth's atmosphere and contribute to the destruction of the ozone layer. . . . Neither the firms that produce the air conditioners nor the consumers who buy them pay for the negative effects those chlorofluorocarbons have on society. This means that the destruction of the ozone layer is an externality - the result of an action that is not taken into account by market participants. Id. Externalities are market failures because there is no mechanism by which the interests of the third party can be integrated into prices and output decisions. According to market theory, price represents the value of the resources that went into the production of a good. If the calculation of a price excludes third party effects, it does not reflect social value of resources. Consequently, resources are not properly allocated. In summary, when externalities occur, the market does not allocate resources correctly because the prices do not reflect the cost or value of the good to the consumers. See generally Christopher D. Stone, What To Do About Biodiversity: Property Rights, Public Goods, and the Earth's Biological Riches, 68 S. CAL. L. REV. 577 (1995) (presenting positive and negative externalities as applicable to environment and discussing idea of earth as public good).
91. See COLANDER, supra note 46, at 117. Colander defines an externality as "the effect that an action may have on a third party that the person who undertook that action did not take into account." Id. An externality can be positive (in which case society as a whole benefits even more than the two parties) or negative (in which case society as a whole benefits less than the two parties). . . . An example of a negative externality is pollution. For example, when people use air conditioners, they'll probably let loose a small amount of chlorofluorocarbons, which go up into the earth's atmosphere and contribute to the destruction of the ozone layer. . . . Neither the firms that produce the air conditioners nor the consumers who buy them pay for the negative effects those chlorofluorocarbons have on society. This means that the destruction of the ozone layer is an externality - the result of an action that is not taken into account by market participants. Id. Externalities are market failures because there is no mechanism by which the interests of the third party can be integrated into prices and output decisions. According to market theory, price represents the value of the resources that went into the production of a good. If the calculation of a price excludes third party effects, it does not reflect social value of resources. Consequently, resources are not properly allocated. In summary, when externalities occur, the market does not allocate resources correctly because the prices do not reflect the cost or value of the good to the consumers. See generally Christopher D. Stone, What To Do About Biodiversity: Property Rights, Public Goods, and the Earth's Biological Riches, 68 S. CAL. L. REV. 577 (1995) (presenting positive and negative externalities as applicable to environment and discussing idea of earth as public good).
92. See supra note 46 and accompanying text. Consumers are assumed to have full information in the market; however, if at any time the consumer does not hold full information about a product or a producer, the producer can use this advantage to influence the consumer's decision. If the producer is able to influence the consumer's decision, (e.g., through advertising), the consumer has not rationally made the decision. Economists have named this particular market failure "asymmetrical information." See STONE, supra note 44, at 71 ("Sellers may conceal features of their products that would hurt sales. Buyers may not have sufficient knowledge to understand information about products or even to ask the right questions."). For additional discussion of asymmetrical information see Gail B. Agrawal, Chicago Hope Meets the Chicago School, 96 MICH. L. REV. 1793, 1794 (1998) (reviewing MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS: THE LAW, ETHICS, AND THE ECONOMICS OF RATIONING MECHANISMS (1997)); Jon D. Hanson & Kyle D. Logue, The Costs of Cigarettes: The Economic Case for Ex Post Incentive-Based Regulation, 107 YALE L. J. 1163, 1181-86 (1998) (arguing that consumers cannot and do not take into account all the risks of cigarette smoking); J. Christopher Kojima, Product-Based Solutions to Financial Innovation: The Promise and Danger of Applying the Federal Securities Law to OTC Derivatives, 33 AM. Bus. L.J. 259, 279-82 (1995) (arguing that asymmetrical information is a market failure in the over-the-counter (OTC) derivatives market); Loretta M. Kopelman & Michael G. Palumbo, The U.S. Health Delivery System: Inefficient and Unfair to Children, 23 AM. J. L. & MED. 319, 333-37 (1997) (arguing that incomplete information in health care, especially for children, leads to inefficiency in the market, and concluding that "reliance on market forces to solve current health allocation problems will tend to worsen this inequity and inefficiency"); J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean up the Environment By Making a Mess of Environmental Law, 34 HOUS. L. REV. 933, 983 (1997); SUNSTEIN, supra note 17, at 368 (suggesting that statutes regarding federal pesticides and toxics regulations were designed to overcome "market failures" such as "an absence of sufficient information on the part of consumers, [or] harms to third parties").
93. See supra note 46 and accompanying text. Consumers are assumed to have full information in the market; however, if at any time the consumer does not hold full information about a product or a producer, the producer can use this advantage to influence the consumer's decision. If the producer is able to influence the consumer's decision, (e.g., through advertising), the consumer has not rationally made the decision. Economists have named this particular market failure "asymmetrical information." See STONE, supra note 44, at 71 ("Sellers may conceal features of their products that would hurt sales. Buyers may not have sufficient knowledge to understand information about products or even to ask the right questions."). For additional discussion of asymmetrical information see Gail B. Agrawal, Chicago Hope Meets the Chicago School, 96 MICH. L. REV. 1793, 1794 (1998) (reviewing MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS: THE LAW, ETHICS, AND THE ECONOMICS OF RATIONING MECHANISMS (1997)); Jon D. Hanson & Kyle D. Logue, The Costs of Cigarettes: The Economic Case for Ex Post Incentive-Based Regulation, 107 YALE L. J. 1163, 1181-86 (1998) (arguing that consumers cannot and do not take into account all the risks of cigarette smoking); J. Christopher Kojima, Product-Based Solutions to Financial Innovation: The Promise and Danger of Applying the Federal Securities Law to OTC Derivatives, 33 AM. Bus. L.J. 259, 279-82 (1995) (arguing that asymmetrical information is a market failure in the over-the-counter (OTC) derivatives market); Loretta M. Kopelman & Michael G. Palumbo, The U.S. Health Delivery System: Inefficient and Unfair to Children, 23 AM. J. L. & MED. 319, 333-37 (1997) (arguing that incomplete information in health care, especially for children, leads to inefficiency in the market, and concluding that "reliance on market forces to solve current health allocation problems will tend to worsen this inequity and inefficiency"); J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean up the Environment By Making a Mess of Environmental Law, 34 HOUS. L. REV. 933, 983 (1997); SUNSTEIN, supra note 17, at 368 (suggesting that statutes regarding federal pesticides and toxics regulations were designed to overcome "market failures" such as "an absence of sufficient information on the part of consumers, [or] harms to third parties").
94. See supra note 46 and accompanying text. Consumers are assumed to have full information in the market; however, if at any time the consumer does not hold full information about a product or a producer, the producer can use this advantage to influence the consumer's decision. If the producer is able to influence the consumer's decision, (e.g., through advertising), the consumer has not rationally made the decision. Economists have named this particular market failure "asymmetrical information." See STONE, supra note 44, at 71 ("Sellers may conceal features of their products that would hurt sales. Buyers may not have sufficient knowledge to understand information about products or even to ask the right questions."). For additional discussion of asymmetrical information see Gail B. Agrawal, Chicago Hope Meets the Chicago School, 96 MICH. L. REV. 1793, 1794 (1998) (reviewing MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS: THE LAW, ETHICS, AND THE ECONOMICS OF RATIONING MECHANISMS (1997)); Jon D. Hanson & Kyle D. Logue, The Costs of Cigarettes: The Economic Case for Ex Post Incentive-Based Regulation, 107 YALE L. J. 1163, 1181-86 (1998) (arguing that consumers cannot and do not take into account all the risks of cigarette smoking); J. Christopher Kojima, Product-Based Solutions to Financial Innovation: The Promise and Danger of Applying the Federal Securities Law to OTC Derivatives, 33 AM. Bus. L.J. 259, 279-82 (1995) (arguing that asymmetrical information is a market failure in the over-the-counter (OTC) derivatives market); Loretta M. Kopelman & Michael G. Palumbo, The U.S. Health Delivery System: Inefficient and Unfair to Children, 23 AM. J. L. & MED. 319, 333-37 (1997) (arguing that incomplete information in health care, especially for children, leads to inefficiency in the market, and concluding that "reliance on market forces to solve current health allocation problems will tend to worsen this inequity and inefficiency"); J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean up the Environment By Making a Mess of Environmental Law, 34 HOUS. L. REV. 933, 983 (1997); SUNSTEIN, supra note 17, at 368 (suggesting that statutes regarding federal pesticides and toxics regulations were designed to overcome "market failures" such as "an absence of sufficient information on the part of consumers, [or] harms to third parties").
95. See supra note 46 and accompanying text. Consumers are assumed to have full information in the market; however, if at any time the consumer does not hold full information about a product or a producer, the producer can use this advantage to influence the consumer's decision. If the producer is able to influence the consumer's decision, (e.g., through advertising), the consumer has not rationally made the decision. Economists have named this particular market failure "asymmetrical information." See STONE, supra note 44, at 71 ("Sellers may conceal features of their products that would hurt sales. Buyers may not have sufficient knowledge to understand information about products or even to ask the right questions."). For additional discussion of asymmetrical information see Gail B. Agrawal, Chicago Hope Meets the Chicago School, 96 MICH. L. REV. 1793, 1794 (1998) (reviewing MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS: THE LAW, ETHICS, AND THE ECONOMICS OF RATIONING MECHANISMS (1997)); Jon D. Hanson & Kyle D. Logue, The Costs of Cigarettes: The Economic Case for Ex Post Incentive-Based Regulation, 107 YALE L. J. 1163, 1181-86 (1998) (arguing that consumers cannot and do not take into account all the risks of cigarette smoking); J. Christopher Kojima, Product-Based Solutions to Financial Innovation: The Promise and Danger of Applying the Federal Securities Law to OTC Derivatives, 33 AM. Bus. L.J. 259, 279-82 (1995) (arguing that asymmetrical information is a market failure in the over-the-counter (OTC) derivatives market); Loretta M. Kopelman & Michael G. Palumbo, The U.S. Health Delivery System: Inefficient and Unfair to Children, 23 AM. J. L. & MED. 319, 333-37 (1997) (arguing that incomplete information in health care, especially for children, leads to inefficiency in the market, and concluding that "reliance on market forces to solve current health allocation problems will tend to worsen this inequity and inefficiency"); J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean up the Environment By Making a Mess of Environmental Law, 34 HOUS. L. REV. 933, 983 (1997); SUNSTEIN, supra note 17, at 368 (suggesting that statutes regarding federal pesticides and toxics regulations were designed to overcome "market failures" such as "an absence of sufficient information on the part of consumers, [or] harms to third parties").
96. See supra note 46 and accompanying text. Consumers are assumed to have full information in the market; however, if at any time the consumer does not hold full information about a product or a producer, the producer can use this advantage to influence the consumer's decision. If the producer is able to influence the consumer's decision, (e.g., through advertising), the consumer has not rationally made the decision. Economists have named this particular market failure "asymmetrical information." See STONE, supra note 44, at 71 ("Sellers may conceal features of their products that would hurt sales. Buyers may not have sufficient knowledge to understand information about products or even to ask the right questions."). For additional discussion of asymmetrical information see Gail B. Agrawal, Chicago Hope Meets the Chicago School, 96 MICH. L. REV. 1793, 1794 (1998) (reviewing MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS: THE LAW, ETHICS, AND THE ECONOMICS OF RATIONING MECHANISMS (1997)); Jon D. Hanson & Kyle D. Logue, The Costs of Cigarettes: The Economic Case for Ex Post Incentive-Based Regulation, 107 YALE L. J. 1163, 1181-86 (1998) (arguing that consumers cannot and do not take into account all the risks of cigarette smoking); J. Christopher Kojima, Product-Based Solutions to Financial Innovation: The Promise and Danger of Applying the Federal Securities Law to OTC Derivatives, 33 AM. Bus. L.J. 259, 279-82 (1995) (arguing that asymmetrical information is a market failure in the over-the-counter (OTC) derivatives market); Loretta M. Kopelman & Michael G. Palumbo, The U.S. Health Delivery System: Inefficient and Unfair to Children, 23 AM. J. L. & MED. 319, 333-37 (1997) (arguing that incomplete information in health care, especially for children, leads to inefficiency in the market, and concluding that "reliance on market forces to solve current health allocation problems will tend to worsen this inequity and inefficiency"); J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean up the Environment By Making a Mess of Environmental Law, 34 HOUS. L. REV. 933, 983 (1997); SUNSTEIN, supra note 17, at 368 (suggesting that statutes regarding federal pesticides and toxics regulations were designed to overcome "market failures" such as "an absence of sufficient information on the part of consumers, [or] harms to third parties").
97. See supra note 46 and accompanying text. Consumers are assumed to have full information in the market; however, if at any time the consumer does not hold full information about a product or a producer, the producer can use this advantage to influence the consumer's decision. If the producer is able to influence the consumer's decision, (e.g., through advertising), the consumer has not rationally made the decision. Economists have named this particular market failure "asymmetrical information." See STONE, supra note 44, at 71 ("Sellers may conceal features of their products that would hurt sales. Buyers may not have sufficient knowledge to understand information about products or even to ask the right questions."). For additional discussion of asymmetrical information see Gail B. Agrawal, Chicago Hope Meets the Chicago School, 96 MICH. L. REV. 1793, 1794 (1998) (reviewing MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS: THE LAW, ETHICS, AND THE ECONOMICS OF RATIONING MECHANISMS (1997)); Jon D. Hanson & Kyle D. Logue, The Costs of Cigarettes: The Economic Case for Ex Post Incentive-Based Regulation, 107 YALE L. J. 1163, 1181-86 (1998) (arguing that consumers cannot and do not take into account all the risks of cigarette smoking); J. Christopher Kojima, Product-Based Solutions to Financial Innovation: The Promise and Danger of Applying the Federal Securities Law to OTC Derivatives, 33 AM. Bus. L.J. 259, 279-82 (1995) (arguing that asymmetrical information is a market failure in the over-the-counter (OTC) derivatives market); Loretta M. Kopelman & Michael G. Palumbo, The U.S. Health Delivery System: Inefficient and Unfair to Children, 23 AM. J. L. & MED. 319, 333-37 (1997) (arguing that incomplete information in health care, especially for children, leads to inefficiency in the market, and concluding that "reliance on market forces to solve current health allocation problems will tend to worsen this inequity and inefficiency"); J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean up the Environment By Making a Mess of Environmental Law, 34 HOUS. L. REV. 933, 983 (1997); SUNSTEIN, supra note 17, at 368 (suggesting that statutes regarding federal pesticides and toxics regulations were designed to overcome "market failures" such as "an absence of sufficient information on the part of consumers, [or] harms to third parties").
98. See supra note 46 and accompanying text. Consumers are assumed to have full information in the market; however, if at any time the consumer does not hold full information about a product or a producer, the producer can use this advantage to influence the consumer's decision. If the producer is able to influence the consumer's decision, (e.g., through advertising), the consumer has not rationally made the decision. Economists have named this particular market failure "asymmetrical information." See STONE, supra note 44, at 71 ("Sellers may conceal features of their products that would hurt sales. Buyers may not have sufficient knowledge to understand information about products or even to ask the right questions."). For additional discussion of asymmetrical information see Gail B. Agrawal, Chicago Hope Meets the Chicago School, 96 MICH. L. REV. 1793, 1794 (1998) (reviewing MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS: THE LAW, ETHICS, AND THE ECONOMICS OF RATIONING MECHANISMS (1997)); Jon D. Hanson & Kyle D. Logue, The Costs of Cigarettes: The Economic Case for Ex Post Incentive-Based Regulation, 107 YALE L. J. 1163, 1181-86 (1998) (arguing that consumers cannot and do not take into account all the risks of cigarette smoking); J. Christopher Kojima, Product-Based Solutions to Financial Innovation: The Promise and Danger of Applying the Federal Securities Law to OTC Derivatives, 33 AM. Bus. L.J. 259, 279-82 (1995) (arguing that asymmetrical information is a market failure in the over-the-counter (OTC) derivatives market); Loretta M. Kopelman & Michael G. Palumbo, The U.S. Health Delivery System: Inefficient and Unfair to Children, 23 AM. J. L. & MED. 319, 333-37 (1997) (arguing that incomplete information in health care, especially for children, leads to inefficiency in the market, and concluding that "reliance on market forces to solve current health allocation problems will tend to worsen this inequity and inefficiency"); J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean up the Environment By Making a Mess of Environmental Law, 34 HOUS. L. REV. 933, 983 (1997); SUNSTEIN, supra note 17, at 368 (suggesting that statutes regarding federal pesticides and toxics regulations were designed to overcome "market failures" such as "an absence of sufficient information on the part of consumers, [or] harms to third parties").
99. See supra note 46 and accompanying text. Consumers are assumed to have full information in the market; however, if at any time the consumer does not hold full information about a product or a producer, the producer can use this advantage to influence the consumer's decision. If the producer is able to influence the consumer's decision, (e.g., through advertising), the consumer has not rationally made the decision. Economists have named this particular market failure "asymmetrical information." See STONE, supra note 44, at 71 ("Sellers may conceal features of their products that would hurt sales. Buyers may not have sufficient knowledge to understand information about products or even to ask the right questions."). For additional discussion of asymmetrical information see Gail B. Agrawal, Chicago Hope Meets the Chicago School, 96 MICH. L. REV. 1793, 1794 (1998) (reviewing MARK A. HALL, MAKING MEDICAL SPENDING DECISIONS: THE LAW, ETHICS, AND THE ECONOMICS OF RATIONING MECHANISMS (1997)); Jon D. Hanson & Kyle D. Logue, The Costs of Cigarettes: The Economic Case for Ex Post Incentive-Based Regulation, 107 YALE L. J. 1163, 1181-86 (1998) (arguing that consumers cannot and do not take into account all the risks of cigarette smoking); J. Christopher Kojima, Product-Based Solutions to Financial Innovation: The Promise and Danger of Applying the Federal Securities Law to OTC Derivatives, 33 AM. Bus. L.J. 259, 279-82 (1995) (arguing that asymmetrical information is a market failure in the over-the-counter (OTC) derivatives market); Loretta M. Kopelman & Michael G. Palumbo, The U.S. Health Delivery System: Inefficient and Unfair to Children, 23 AM. J. L. & MED. 319, 333-37 (1997) (arguing that incomplete information in health care, especially for children, leads to inefficiency in the market, and concluding that "reliance on market forces to solve current health allocation problems will tend to worsen this inequity and inefficiency"); J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean up the Environment By Making a Mess of Environmental Law, 34 HOUS. L. REV. 933, 983 (1997); SUNSTEIN, supra note 17, at 368 (suggesting that statutes regarding federal pesticides and toxics regulations were designed to overcome "market failures" such as "an absence of sufficient information on the part of consumers, [or] harms to third parties").
100. See, e.g., Thomas G. Donlan, Editorial Commentary: The Pursuit of Power, BARRON'S, Mar 9, 1998, at 63 (discussing Microsoft's battle with Justice Department concerning allegations that the company is a monopoly).
101. See COLANDER, supra note 46, at 117 (describing public goods as "goods whose consumption by one individual does not prevent their consumption by other individuals," such as national defense); see also Alan Randall, The Problem of Market Failure, 23 NAT'L RESOURCES J. 131 (1983). For a more radical view of what constitutes a public good, see Nancy Folbre, Children As Public Goods, 84 AM. ECON. REV. 86 (1994); SYLVIA ANN HEWLETT & CORNEL WEST, THE WAR AGAINST PARENTS 93 (1998) (suggesting that society increasingly expects parents to spend extraordinary amounts of time, money, and energy on raising their children when it is society who reaps the material rewards). See generally JOHN KENNETH GALBRAITH, THE AFFLUENT SOCIETY (4th ed. 1984) (arguing that in market culture, private goods will always be over-allocated while public goods are always under-allocated). When public goods are involved, the free rider problem arises. Colander states that a free rider is "a person who participates in something for free because others have already paid for it." See COLANDER, supra note 46, at 118 ("Self-interested people would like to enjoy the benefits of defense while letting someone else pay for it. . . . Everyone has an incentive to be a free rider, but if everyone is a free rider, there won't be any defense.").
102. See COLANDER, supra note 46, at 117 (describing public goods as "goods whose consumption by one individual does not prevent their consumption by other individuals," such as national defense); see also Alan Randall, The Problem of Market Failure, 23 NAT'L RESOURCES J. 131 (1983). For a more radical view of what constitutes a public good, see Nancy Folbre, Children As Public Goods, 84 AM. ECON. REV. 86 (1994); SYLVIA ANN HEWLETT & CORNEL WEST, THE WAR AGAINST PARENTS 93 (1998) (suggesting that society increasingly expects parents to spend extraordinary amounts of time, money, and energy on raising their children when it is society who reaps the material rewards). See generally JOHN KENNETH GALBRAITH, THE AFFLUENT SOCIETY (4th ed. 1984) (arguing that in market culture, private goods will always be over-allocated while public goods are always under-allocated). When public goods are involved, the free rider problem arises. Colander states that a free rider is "a person who participates in something for free because others have already paid for it." See COLANDER, supra note 46, at 118 ("Self-interested people would like to enjoy the benefits of defense while letting someone else pay for it. . . . Everyone has an incentive to be a free rider, but if everyone is a free rider, there won't be any defense.").
103. See COLANDER, supra note 46, at 117 (describing public goods as "goods whose consumption by one individual does not prevent their consumption by other individuals," such as national defense); see also Alan Randall, The Problem of Market Failure, 23 NAT'L RESOURCES J. 131 (1983). For a more radical view of what constitutes a public good, see Nancy Folbre, Children As Public Goods, 84 AM. ECON. REV. 86 (1994); SYLVIA ANN HEWLETT & CORNEL WEST, THE WAR AGAINST PARENTS 93 (1998) (suggesting that society increasingly expects parents to spend extraordinary amounts of time, money, and energy on raising their children when it is society who reaps the material rewards). See generally JOHN KENNETH GALBRAITH, THE AFFLUENT SOCIETY (4th ed. 1984) (arguing that in market culture, private goods will always be over-allocated while public goods are always under-allocated). When public goods are involved, the free rider problem arises. Colander states that a free rider is "a person who participates in something for free because others have already paid for it." See COLANDER, supra note 46, at 118 ("Self-interested people would like to enjoy the benefits of defense while letting someone else pay for it. . . . Everyone has an incentive to be a free rider, but if everyone is a free rider, there won't be any defense.").
104. See COLANDER, supra note 46, at 117 (describing public goods as "goods whose consumption by one individual does not prevent their consumption by other individuals," such as national defense); see also Alan Randall, The Problem of Market Failure, 23 NAT'L RESOURCES J. 131 (1983). For a more radical view of what constitutes a public good, see Nancy Folbre, Children As Public Goods, 84 AM. ECON. REV. 86 (1994); SYLVIA ANN HEWLETT & CORNEL WEST, THE WAR AGAINST PARENTS 93 (1998) (suggesting that society increasingly expects parents to spend extraordinary amounts of time, money, and energy on raising their children when it is society who reaps the material rewards). See generally JOHN KENNETH GALBRAITH, THE AFFLUENT SOCIETY (4th ed. 1984) (arguing that in market culture, private goods will always be over-allocated while public goods are always under-allocated). When public goods are involved, the free rider problem arises. Colander states that a free rider is "a person who participates in something for free because others have already paid for it." See COLANDER, supra note 46, at 118 ("Self-interested people would like to enjoy the benefits of defense while letting someone else pay for it. . . . Everyone has an incentive to be a free rider, but if everyone is a free rider, there won't be any defense.").
105. See COLANDER, supra note 46, at 117 (describing public goods as "goods whose consumption by one individual does not prevent their consumption by other individuals," such as national defense); see also Alan Randall, The Problem of Market Failure, 23 NAT'L RESOURCES J. 131 (1983). For a more radical view of what constitutes a public good, see Nancy Folbre, Children As Public Goods, 84 AM. ECON. REV. 86 (1994); SYLVIA ANN HEWLETT & CORNEL WEST, THE WAR AGAINST PARENTS 93 (1998) (suggesting that society increasingly expects parents to spend extraordinary amounts of time, money, and energy on raising their children when it is society who reaps the material rewards). See generally JOHN KENNETH GALBRAITH, THE AFFLUENT SOCIETY (4th ed. 1984) (arguing that in market culture, private goods will always be over-allocated while public goods are always under-allocated). When public goods are involved, the free rider problem arises. Colander states that a free rider is "a person who participates in something for free because others have already paid for it." See COLANDER, supra note 46, at 118 ("Self-interested people would like to enjoy the benefits of defense while letting someone else pay for it. . . . Everyone has an incentive to be a free rider, but if everyone is a free rider, there won't be any defense.").
106. See COLANDER, supra note 46, at 117 (describing public goods as "goods whose consumption by one individual does not prevent their consumption by other individuals," such as national defense); see also Alan Randall, The Problem of Market Failure, 23 NAT'L RESOURCES J. 131 (1983). For a more radical view of what constitutes a public good, see Nancy Folbre, Children As Public Goods, 84 AM. ECON. REV. 86 (1994); SYLVIA ANN HEWLETT & CORNEL WEST, THE WAR AGAINST PARENTS 93 (1998) (suggesting that society increasingly expects parents to spend extraordinary amounts of time, money, and energy on raising their children when it is society who reaps the material rewards). See generally JOHN KENNETH GALBRAITH, THE AFFLUENT SOCIETY (4th ed. 1984) (arguing that in market culture, private goods will always be over-allocated while public goods are always under-allocated). When public goods are involved, the free rider problem arises. Colander states that a free rider is "a person who participates in something for free because others have already paid for it." See COLANDER, supra note 46, at 118 ("Self-interested people would like to enjoy the benefits of defense while letting someone else pay for it. . . . Everyone has an incentive to be a free rider, but if everyone is a free rider, there won't be any defense.").
107. See, e.g., RANDY ALBELDA, UNLEVEL PLAYING FIELDS: UNDERSTANDING WAGE INEQUALITY AND DISCRIMINATION (1997); Robert Cooter, Market Affirmative Action, 31 SAN DIEGO L. REV. 133 (1994) (describing how perfect competition forces discriminators to pay costs of discrimination; however, when market failures occur, cost of discrimination is shifted to victim of discrimination).
108. See, e.g., RANDY ALBELDA, UNLEVEL PLAYING FIELDS: UNDERSTANDING WAGE INEQUALITY AND DISCRIMINATION (1997); Robert Cooter, Market Affirmative Action, 31 SAN DIEGO L. REV. 133 (1994) (describing how perfect competition forces discriminators to pay costs of discrimination; however, when market failures occur, cost of discrimination is shifted to victim of discrimination).
109. See, e.g., Thomas L. Greaney, How Many Libertarians Does It Take to Fix the Health Care System?, 96 MlCH. L. REV. 1825, 1830-31 (reviewing RICHARD A. EPSTEIN, MORTAL PERIL: OUR INALIENABLE RIGHT TO HEALTH CARE? (1997)). While market forces have undoubtedly fostered cost savings and efficiency-enhancing improvements, there is abundant evidence suggesting that health care markets perform less optimally than others. Those who would resist regulatory efforts to improve competition in the health care sector (or would withdraw from government all regulatory functions) might be expected to address these documented failures of the private market. Astonishingly, Epstein says almost nothing about how the competitive market in health care has developed so far. The following empirical observations underscore the point that persistent market imperfections undermine the efficient functioning of health care markets. Together they support the contention that government intervention to promote an infrastructure conducive to competition could produce superior economic outcomes. Id. See generally Gross, supra note 43, at 386 (describing need for government regulation to protect powerless workers); Kojima, supra note 67, at 281-82 ("Informational disparities between dealers and end-users, as well as the dealers' likely failure to internalize the complete costs of their risk-taking activities, suggest that government involvement in the OTC derivatives may be neither misguided nor undesirable.").
110. See, e.g., Thomas L. Greaney, How Many Libertarians Does It Take to Fix the Health Care System?, 96 MlCH. L. REV. 1825, 1830-31 (reviewing RICHARD A. EPSTEIN, MORTAL PERIL: OUR INALIENABLE RIGHT TO HEALTH CARE? (1997)). While market forces have undoubtedly fostered cost savings and efficiency-enhancing improvements, there is abundant evidence suggesting that health care markets perform less optimally than others. Those who would resist regulatory efforts to improve competition in the health care sector (or would withdraw from government all regulatory functions) might be expected to address these documented failures of the private market. Astonishingly, Epstein says almost nothing about how the competitive market in health care has developed so far. The following empirical observations underscore the point that persistent market imperfections undermine the efficient functioning of health care markets. Together they support the contention that government intervention to promote an infrastructure conducive to competition could produce superior economic outcomes. Id. See generally Gross, supra note 43, at 386 (describing need for government regulation to protect powerless workers); Kojima, supra note 67, at 281-82 ("Informational disparities between dealers and end-users, as well as the dealers' likely failure to internalize the complete costs of their risk-taking activities, suggest that government involvement in the OTC derivatives may be neither misguided nor undesirable.").
111. See, e.g., Thomas L. Greaney, How Many Libertarians Does It Take to Fix the Health Care System?, 96 MlCH. L. REV. 1825, 1830-31 (reviewing RICHARD A. EPSTEIN, MORTAL PERIL: OUR INALIENABLE RIGHT TO HEALTH CARE? (1997)). While market forces have undoubtedly fostered cost savings and efficiency-enhancing improvements, there is abundant evidence suggesting that health care markets perform less optimally than others. Those who would resist regulatory efforts to improve competition in the health care sector (or would withdraw from government all regulatory functions) might be expected to address these documented failures of the private market. Astonishingly, Epstein says almost nothing about how the competitive market in health care has developed so far. The following empirical observations underscore the point that persistent market imperfections undermine the efficient functioning of health care markets. Together they support the contention that government intervention to promote an infrastructure conducive to competition could produce superior economic outcomes. Id. See generally Gross, supra note 43, at 386 (describing need for government regulation to protect powerless workers); Kojima, supra note 67, at 281-82 ("Informational disparities between dealers and end-users, as well as the dealers' likely failure to internalize the complete costs of their risk-taking activities, suggest that government involvement in the OTC derivatives may be neither misguided nor undesirable.").
112. See RAYACK, supra note 54, at 9 (focusing specifically on Milton Friedman's thinking, but characterizing mainstream economic thought); see also Tilly, supra note 46, at 36 (offering a parable that demonstrates benefits of free trade).
113. See RAYACK, supra note 54, at 9 (focusing specifically on Milton Friedman's thinking, but characterizing mainstream economic thought); see also Tilly, supra note 46, at 36 (offering a parable that demonstrates benefits of free trade).
114. See RAYACK, supra note 54, at 11-12.
115. See id. at 10.
116. But see WALZER supra note 24, at 96-103 (discussing blocked exchanges).
117. See STONE, supra note 44, at 17 ("In searching for the elements of politics, it is helpful to use the market model as a foil because of its predominance in contemporary policy discussions. The contrast between the models of political and market society will illuminate the ways the market model grossly distorts political life.").
118. See id. at 18.
119. See id. at 20 (analogizing relationship between public interest and polis to relationship between self-interest and market).
120. See id. at 22.
121. See id.
122. See id. at 23; SUNSTEIN, supra note 13, at 18 (describing shifting preferences).
123. See id. at 23; SUNSTEIN, supra note 13, at 18 (describing shifting preferences).
124. See STONE, supra note 44, at 24 ("Influence sometimes spills over into coercion, and the line between them is fuzzy at best.").
125. See id. at 26. "In the ideal market, a buyer will switch suppliers in response to price or quantity change, rather than stick with the previous supplier. There is no 'glue' in buyer-seller relations. In politics, relationships are not so fluid. They involve gifts, favors, support, and most of all, future obligations." Id.
126. See id. at 27.
127. See STONE, supra note 44, at 25 (asserting that cooperation is just as important as competition in political thinking). See generally Saul Levmore, Essay: Competition and Cooperation, 97 MICH. L. REV. 216, 220-25 (1998) (exploring relationship between competition and cooperation and describing benefits of cooperation between competitors).
128. See STONE, supra note 44, at 25 (asserting that cooperation is just as important as competition in political thinking). See generally Saul Levmore, Essay: Competition and Cooperation, 97 MICH. L. REV. 216, 220-25 (1998) (exploring relationship between competition and cooperation and describing benefits of cooperation between competitors).
129. See STONE, supra note 44, at 32 ("In the market model, change is driven by exchange, which is in turn motivated by the individual quest to improve one's own welfare. Through exchanges, the use and distribution of resources is changed.").
130. See id. ("In the polis, change occurs through the interaction of mutually defining ideas and alliances. Ideas about politics shape political alliances. . . . The passion in politics comes from conflicting senses of fairness, justice, rightness, and goodness. . . . Every idea about policy draw boundaries. It tells what or who is included or excluded in a category.").
131. See id. at 373 ("Inspired by a vague sense that reason is clean and politics is dirty, Americans yearn to replace politics with rational decision-making. Contemporary writings about politics, even those by political scientists, characterize it as 'chaotic', 'the ultimate maze', or 'organized anarchy.' "). It is important to distinguish here between using the market to help solve environmental problems designated by political debate in a fashion set up by democratic forces and using the alleged magic of market processes to solve problems as market players see fit to solve them. The former should be in the arsenal of every environmentalist. If the market can be instrumental toward achieving environmentalists' ends, then by all means for that specific purpose, we should all champion markets. Mainstream economists make up the overwhelming majority of the economics profession. However, heterodox (non-neo-classical) economists are typically left-wing thinkers and thus have a preference for political solutions in the economics domain. Therefore, heterodox economists are more likely to recognize and highlight the importance of market failures. See supra notes 18-23 (discussing market failures).
132. See Edward S. Herman, Privatization: Downsizing Government for Principle and Profit, in REAL WORLD MICRO, supra note 46, at 6, 10 (arguing that privatization is often less efficient and socially harmful than public enterprise).
133. See STONE, supra note 44, at 59. See generally Caryn L. Beck-Dudley & James E. Macdonald, Lucas v. South Carolina Coastal Council, Takings, and the Search for the Common Good, 33 AM. BUS. L.J. 153 (1995) (discussing various concepts of property).
134. See ALBERT O. HIRSCHMAN, THE RHETORIC OF REACTION 7 (1991).
135. "Unintended consequences" can also be phrased as "unintended outcomes." See, e.g., CHARLES MURRAY, LOSING GROUND 179, 212-16 (1984).
136. See HIRSCHMAN, supra note 93, at 11.
137. Id. (noting that perversity thesis is often invoked as perverse effect of some "progressive" or "well-intentioned" public policy).
138. Id. at 27 ("Even economists who are favorable to some measures of income and wealth redistribution tend to regard the most obvious 'populist' measures of that sort as counterproductive. ").
139. See, e.g., Stephen M. Bainbridge, Community And Statism: A Conservative Contractarian Critique of Progressive Corporate Law Scholarship, 82 CORNELL L. REV. 856, 899 (1997) (reviewing PROGRESSIVE CORPORATE LAW (Lawrence E. Mitchell ed., 1995)) (discussing unintended effects of economic regulation); Linda C. McClain, "Irresponsible" Reproduction, 47 HASTINGS L.J. 339, 377 (1996) (discussing unintended consequences of liberal regulation); Danielle R. Oddo, Note, Removing Confidentiality Protections and the "Get Tough" Rhetoric: What Has Gone Wrong With The Juvenile Justice System?, 18 B.C. THIRD WORLD L.J. 105 (1998) (considering unintended consequences of changes in confidentiality protections in juvenile justice system); Cass Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1391 (1994) (outlining some harmful but unintended consequences of campaign finance restrictions).
140. See, e.g., Stephen M. Bainbridge, Community And Statism: A Conservative Contractarian Critique of Progressive Corporate Law Scholarship, 82 CORNELL L. REV. 856, 899 (1997) (reviewing PROGRESSIVE CORPORATE LAW (Lawrence E. Mitchell ed., 1995)) (discussing unintended effects of economic regulation); Linda C. McClain, "Irresponsible" Reproduction, 47 HASTINGS L.J. 339, 377 (1996) (discussing unintended consequences of liberal regulation); Danielle R. Oddo, Note, Removing Confidentiality Protections and the "Get Tough" Rhetoric: What Has Gone Wrong With The Juvenile Justice System?, 18 B.C. THIRD WORLD L.J. 105 (1998) (considering unintended consequences of changes in confidentiality protections in juvenile justice system); Cass Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1391 (1994) (outlining some harmful but unintended consequences of campaign finance restrictions).
141. See, e.g., Stephen M. Bainbridge, Community And Statism: A Conservative Contractarian Critique of Progressive Corporate Law Scholarship, 82 CORNELL L. REV. 856, 899 (1997) (reviewing PROGRESSIVE CORPORATE LAW (Lawrence E. Mitchell ed., 1995)) (discussing unintended effects of economic regulation); Linda C. McClain, "Irresponsible" Reproduction, 47 HASTINGS L.J. 339, 377
142. See, e.g., Stephen M. Bainbridge, Community And Statism: A Conservative Contractarian Critique of Progressive Corporate Law Scholarship, 82 CORNELL L. REV. 856, 899 (1997) (reviewing PROGRESSIVE CORPORATE LAW (Lawrence E. Mitchell ed., 1995)) (discussing unintended effects of economic regulation); Linda C. McClain, "Irresponsible" Reproduction, 47 HASTINGS L.J. 339, 377 (1996) (discussing unintended consequences of liberal regulation); Danielle R. Oddo, Note, Removing Confidentiality Protections and the "Get Tough" Rhetoric: What Has Gone Wrong With The Juvenile Justice System?, 18 B.C. THIRD WORLD L.J. 105 (1998) (considering unintended consequences of changes in confidentiality protections in juvenile justice system); Cass Sunstein, Political Equality and Unintended Consequences, 94 COLUM. L. REV. 1390, 1391 (1994) (outlining some harmful but unintended consequences of campaign finance restrictions).
143. See HIRSCHMAN, supra note 93, at 39.
144. See id. at 43 ("The attempt at change will be surface . . . as the 'deep' structures of society remain wholly untouched.").
145. See id. at 62.
146. See id. at 84 (similar to slippery slope argument).
147. See id. at 134.
148. Id. at 151.
149. Id. at 153.
150. See JOHN KENNETH GALBRAITH, THE CULTURE OF CONTENTMENT (1992).
151. Id. at 18 (describing culture of contentment and contented majority).
152. Id. at 20; see also David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 ECOL. L.Q. 545, 614 (1997) (emphasizing importance of long-term considerations, particularly in context of environmental protection). See generally Frank B. Cross, Making Risk Policy in the Face of Expert / Public Conflicts: The Subtle Vices Behind Environmental Values, 8 DUKE ENVT'L & POL'Y F. 151 (1997) (concluding that public values generally should not be relied upon for risk regulation).
153. Id. at 20; see also David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 ECOL. L.Q. 545, 614 (1997) (emphasizing importance of long-term considerations, particularly in context of environmental protection). See generally Frank B. Cross, Making Risk Policy in the Face of Expert / Public Conflicts: The Subtle Vices Behind Environmental Values, 8 DUKE ENVT'L & POL'Y F. 151 (1997) (concluding that public values generally should not be relied upon for risk regulation).
154. But see Joshua D. Sarnoff, The Continuing Imperative (But Only from a National Perspective) for Federal Environmental Protection, 7 DUKE ENVT' L & POL'Y F. 225 (1997) (suggesting that we should tailor legislation to citizens' preferences).
155. See GALBRAITH, supra note 107, at 51.
156. See RAYACK, supra note 54, at 78.
157. See ROBERT A. SOLOW, THE POSITIVE STATE 60 (1982).
158. See Amy Blaymore, Retroactive Application of Superfund: Can Old Dogs be Taught New Tricks, 12 B.C. ENVTL. AFF. L. REV. 1, 1 (1985) (according to EPA, in 1981 alone, Americans produced more than 150 million metric tons of hazardous waste).
159. In the early 1980's, the EPA estimated that approximately ninety percent of wastes were disposed of improperly. B. BROWN, LAYING WASTE - THE POISONING OF AMERICA BY TOXIC CHEMICALS 2 (3d ed. 1980).
160. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988); HRW Sys. v. Washington Gas, 823 F. Supp. 318 (D. Md. 1993); City of Philadelphia v. Stepan Chem., 748 F. Supp. 283 (E.D. Pa. 1990); Kelley v. Thomas Solvent Co., 714 F. Supp. 1439 (W.D. Mich. 1989); O'Neil v. Picillo, 682 F. Supp. 706 (D.R.I. 1988). See Blaymore, supra note 112, at 49 (concluding that CERCLA's goal makes retroactive application necessary). But see George Clemon Freeman Jr., A Public Policy Essay: Superfund Retroactivity Revisited, 50 BUS. LAW. 663, 664 (1995) (arguing for repeal of retroactive application of CERCLA).
161. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988); HRW Sys. v. Washington Gas, 823 F. Supp. 318 (D. Md. 1993); City of Philadelphia v. Stepan Chem., 748 F. Supp. 283 (E.D. Pa. 1990); Kelley v. Thomas Solvent Co., 714 F. Supp. 1439 (W.D. Mich. 1989); O'Neil v. Picillo, 682 F. Supp. 706 (D.R.I. 1988). See Blaymore, supra note 112, at 49 (concluding that CERCLA's goal makes retroactive application necessary). But see George Clemon Freeman Jr., A Public Policy Essay: Superfund Retroactivity Revisited, 50 BUS. LAW. 663, 664 (1995) (arguing for repeal of retroactive application of CERCLA).
162. See, e.g., United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988); HRW Sys. v. Washington Gas, 823 F. Supp. 318 (D. Md. 1993); City of Philadelphia v. Stepan Chem., 748 F. Supp. 283 (E.D. Pa. 1990); Kelley v. Thomas Solvent Co., 714 F. Supp. 1439 (W.D. Mich. 1989); O'Neil v. Picillo, 682 F. Supp. 706 (D.R.I. 1988). See Blaymore, supra note 112, at 49 (concluding that CERCLA's goal makes retroactive application necessary). But see George Clemon Freeman Jr., A Public Policy Essay: Superfund Retroactivity Revisited, 50 BUS. LAW. 663, 664 (1995) (arguing for repeal of retroactive application of CERCLA).
163. The Love Canal, an abandoned waste site in Niagra Falls, New York, is considered the Congressional stimulation for CERCLA. A government decree on the Love Canal area evacuated the entire neighborhood after residents around the site noticed chemicals pouring into their homes. Although no "credible"scientific evidence ever confirmed suspicions that the chemicals posed serious health risks on the residents, the government finally took seriously the severity of such sites. Richard L. Stroup, Superfund: The Shortcut That Failed, in BREAKING THE ENVIRONMENTAL POLICY GRIDLOCK 115-16 (Terry L. Anderson ed., 1997). The lack of scientific evidence to confirm the potential health problems that Superfund sites may pose is one of the criticisms of CERCLA. See Jeffrey Lybarger Agency for Toxic Substances & Disease Registery, Superfund Sites: Adverse Health Impacts, Congressional Testimony Before the Subcommittee on Superfund Recycling, and Solid Waste Managment, (Apr. 12, 1993), 〈http-//atsdr1.atsdr.cdc.gov.8080/cxcx7.html〉 (stating that "[o]ne of the major gaps is the general lack of knowledge about levels of exposure experienced by persons near Superfund sites . . . for many communities concerned about their health, the numbers ot persons at potential risk of exposure are small, thus making epidemiological comparisons quite difficult").
164. The Love Canal, an abandoned waste site in Niagra Falls, New York, is considered the Congressional stimulation for CERCLA. A government decree on the Love Canal area evacuated the entire neighborhood after residents around the site noticed chemicals pouring into their homes. Although no "credible"scientific evidence ever confirmed suspicions that the chemicals posed serious health risks on the residents, the government finally took seriously the severity of such sites. Richard L. Stroup, Superfund: The Shortcut That Failed, in BREAKING THE ENVIRONMENTAL POLICY GRIDLOCK 115-16 (Terry L. Anderson ed., 1997). The lack of scientific evidence to confirm the potential health problems that Superfund sites may pose is one of the criticisms of CERCLA. See Jeffrey Lybarger Agency for Toxic Substances & Disease Registery, Superfund Sites: Adverse Health Impacts, Congressional Testimony Before the Subcommittee on Superfund Recycling, and Solid Waste Managment, (Apr. 12, 1993), 〈http-//atsdr1.atsdr.cdc.gov.8080/cxcx7.html〉 (stating that "[o]ne of the major gaps is the general lack of knowledge about levels of exposure experienced by persons near Superfund sites . . . for many communities concerned about their health, the numbers ot persons at potential risk of exposure are small, thus making epidemiological comparisons quite difficult").
165. Pub. L. No. 95-510, 94 Stat. 2767 (1980) (codified as amended at 42 U.S.C. §§ 9601-9675 (1994)) [hereinafter CERCLA].
166. Because "hazardous substances" had been defined in several other existing acts, CERCLA references those acts for the definition of this term. Id. § 9601 (14).
167. Eighty-seven and a half percent of the initial $1.6 billion dollar fund was provided by a tax levied on the chemical and petroleum industries, which were thought to be primary dumpers. The other twelve and a half percent of the fund was provided from federal revenues. NANCY KUBASEK, ENVIRONMENTAL LAW 208 (2d ed. 1997). It soon became apparent that the initial funding amount would be inadequate to address the severity of the problem.
168. Environmental Health & Safety Online, (last modified Oct. 7, 1998), 〈http://ehso.com/RSSGuide.htm〉.
169. CERCLA required the EPA to develop a hazardous ranking system that evaluated and ordered sites based on relative risk posed to human health. The National Priorities List (NPL) comprises those sites ranked the highest or the most in need of immediate remedial action. As of February 10, 1998, the EPA reports that there are 1,191 sites on the NPL. Environmental Protection Agency, Superfund: Frequently Asked Questions, (last modified Oct. 6, 1998), 〈http://www.epa.gov/superfund/faqs/sf_faqs.htm〉. Superfund opponents criticize the program as inefficient, citing the relatively small portion of recovered NPL sites. Only 178 sites have been deleted from the NPL since the enactment of CERCLA. Environmental Protection Agency, Superfund: Sites Deleted from the National Priorities List, (last modified Oct. 8, 1998), 〈http://www.epa.gov/superfund/sites/npl/npldel.htm〉.
170. CERCLA required the EPA to develop a hazardous ranking system that evaluated and ordered sites based on relative risk posed to human health. The National Priorities List (NPL) comprises those sites ranked the highest or the most in need of immediate remedial action. As of February 10, 1998, the EPA reports that there are 1,191 sites on the NPL. Environmental Protection Agency, Superfund: Frequently Asked Questions, (last modified Oct. 6, 1998), 〈http://www.epa.gov/superfund/faqs/sf_faqs.htm〉. Superfund opponents criticize the program as inefficient, citing the relatively small portion of recovered NPL sites. Only 178 sites have been deleted from the NPL since the enactment of CERCLA. Environmental Protection Agency, Superfund: Sites Deleted from the National Priorities List, (last modified Oct. 8, 1998), 〈http://www.epa.gov/superfund/sites/npl/npldel.htm〉.
171. Cleanup costs are estimated to range from an average of $25 million to $50 million. See Michael L. Italiano et al., Environmental Due Diligence During Mergers and Acquisitions, 10 NAT. RESOURCES & ENV'T 17 (1996).
172. Persons who own and operate the hazardous waste land, those who dispose of waste at a site (generators), and persons who transport waste to a site are among those who may be held liable as PRPs. 42 U.S.C. §§ 9607a-1 to 9607a-4 (1999). Furthermore, in addition to cleanup costs, a PRP may also have to pay for damage to natural resources. 42 U.S.C. § 9607(a)(4)(c) (1999).
173. See supra note 114.
174. Some proponents of CERCLA reform argue that the liability provision, as it is currently enforced, is so onerous that it detracts from the purpose of the Act, which is to clean up contaminated sites. See Susan R. Poulter, Cleanup and Restoration: Who Should Pay?, 18 J. LAND RESOURCES & ENVTL. L. 77, 79 (1998). But see William N. Hedelman et al., Superfund Transaction Costs: A Critical Perspective on the Superfund Liability Scheme, 21 ENVTL. L. REP. 10,413, 10,415 (1991) ("Transaction costs are the millions of dollars in administrative, legal, engineering, consulting, and other management costs borne by the EPA, private industry, and local governments that do not directly result in cleaning up the waste site but are nonetheless inevitable in establishing liability for cleaning up a site.").
175. Some proponents of CERCLA reform argue that the liability provision, as it is currently enforced, is so onerous that it detracts from the purpose of the Act, which is to clean up contaminated sites. See Susan R. Poulter, Cleanup and Restoration: Who Should Pay?, 18 J. LAND RESOURCES & ENVTL. L. 77, 79 (1998). But see William N. Hedelman et al., Superfund Transaction Costs: A Critical Perspective on the Superfund Liability Scheme, 21 ENVTL. L. REP. 10,413, 10,415 (1991) ("Transaction costs are the millions of dollars in administrative, legal, engineering, consulting, and other management costs borne by the EPA, private industry, and local governments that do not directly result in cleaning up the waste site but are nonetheless inevitable in establishing liability for cleaning up a site.").
176. See Glenn Hess, Superfund Judgments Generated $790 Million in Cleanups Last Year, CHEM. MARKET REP., Mar. 17, 1997, at 1 (reporting that in 1996, the Justice Department generated a record amount of Superfund collections - over $790 million); see also Nanette Byrnes, The Smoke at General Electric, FIN. WORLD, Aug. 16, 1994, at 32-34 (reporting that as of 1994, General Electric had paid over $500 million in Superfund fines since CERCLA's enactment and was named as a PRP in 72 Superfund sites in 1994).
177. See Glenn Hess, Superfund Judgments Generated $790 Million in Cleanups Last Year, CHEM. MARKET REP., Mar. 17, 1997, at 1 (reporting that in 1996, the Justice Department generated a record amount of Superfund collections - over $790 million); see also Nanette Byrnes, The Smoke at General Electric, FIN. WORLD, Aug. 16, 1994, at 32-34 (reporting that as of 1994, General Electric had paid over $500 million in Superfund fines since CERCLA's enactment and was named as a PRP in 72 Superfund sites in 1994).
178. See Jeff Johnson, Democrats Blast Revised Superfund, CHEM. & ENG'G NEWS, Sept. 15, 1997, at 22 (noting that it is unfair to reach back in time and punish company for doing something that was legal at the time); see also United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726, 732-33 (8th Cir 1986) [hereinafter Northeastern] (noting that Congress intended CERCLA to have retroactive effect); see Antonio Olivo, Carwashes Get Huge Bills for Superfund Cleanup, L.A. TIMES, Oct. 19, 1998, at A1 (discussing EPA's attempt to impose liability on car dealer who shipped dirt from car wash to disposal site later determined to be Superfund site.).
179. See Jeff Johnson, Democrats Blast Revised Superfund, CHEM. & ENG'G NEWS, Sept. 15, 1997, at 22 (noting that it is unfair to reach back in time and punish company for doing something that was legal at the time); see also United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726, 732-33 (8th Cir 1986) [hereinafter Northeastern] (noting that Congress intended CERCLA to have retroactive effect); see Antonio Olivo, Carwashes Get Huge Bills for Superfund Cleanup, L.A. TIMES, Oct. 19, 1998, at A1 (discussing EPA's attempt to impose liability on car dealer who shipped dirt from car wash to disposal site later determined to be Superfund site.).
180. See Jeff Johnson, Democrats Blast Revised Superfund, CHEM. & ENG'G NEWS, Sept. 15, 1997, at 22 (noting that it is unfair to reach back in time and punish company for doing something that was legal at the time); see also United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726, 732-33 (8th Cir 1986) [hereinafter Northeastern] (noting that Congress intended CERCLA to have retroactive effect); see Antonio Olivo, Carwashes Get Huge Bills for Superfund Cleanup, L.A. TIMES, Oct. 19, 1998, at A1 (discussing EPA's attempt to impose liability on car dealer who shipped dirt from car wash to disposal site later determined to be Superfund site.).
181. See Poulter, supra note 124, at 90-91 (charging that CERCLA's application of liability is unfair and arbitrarily determined).
182. See Stroup, supra note 115, at 120 (arguing that allocation by EPA can be without sound scientific or factual basis and the only defense PRP can offer in court is that EPA's actions were "arbitrary and capricious" which is virtually impossible to prove).
183. But see Peter K. Johnson, Mr. Smith Goes To Washington: 1997 Superfund Amendments - Will It Solve the Liability Problem and How Will This Affect Massachusetts?, 31 NEW ENG. L. REV. 1269, 1313 (1997) (noting how PRPs could still avoid paying their equitable share).
184. See Water Resources and Environment: Hearings Before the Subcomm. on Water Resources and the Environment of the House Comm. on Trans., 105th Congress, available in 1997 WL 115055 (statement of Rep. Sherwood Boehlert) (stating that over one-third of $60 billion spent on Superfund sites since 1980 has gone to transaction costs).
185. See, e.g., The Accelerated Cleanup and Environmental Restoration Act of 1995, S. 1285, 104th Cong. (1995) (exempting liability for small businesses, household contributors, and other disposers whose contributory portion of the contamination was relatively insignificant).
186. See, e.g., James E. Satterfield, A Funny Thing Happened on the Way to the Revolution: The Environmental Record of the 104th Congress, 27 ENVT'L L. REP. 10019, 10028-30 (1997) (summarizing reform proposals in 104th Congress).
187. See supra note 114.
188. 562 F. Supp. 1300 (N.D. Ohio 1983).
189. See id. at 1311.
190. Id. at 1313-14.
191. For a review of the case law on this issue, see Nancy Kubasek et al., Retroactive Liability Under the Superfund: Time to Settle the Issue, 13 J. OF ENVT'L. L. & LAND USE 197 (1997).
192. 927 F. Supp. 1502 (S.D. Ala. 1996).
193. Id. at 1511-12.
194. 107 F.3d 1506 (1997).
195. See Federal Government Rebuts ASARCO's Challenge to CERCLA Retroactive Liability, 12 No. 3 MEALEY'S LITIG. REP.: SUPERFUND 24 (1998).
196. See H.R. 2500, 104th Cong. (1995).
197. See S. 1285, 104th Cong. § 701(b) (1995).
198. See H.R. 3000, 105th Cong. (1997).
199. See id. § 201 (a).
200. See Allan Freedman, Superfund Rewrite Focuses on Retroactive Liability, 53 CONG. Q. WKLY. REP. 1173 (1995).
201. See id.
202. United States v. ASARCO, Inc., 28 F. Supp. 2d 1170 (D. Idaho 1998).
203. See Leovy v. United States, 177 U.S. 621, 636 (1900) (asserting that "swamps and stagnant waters are the cause of malarial and malignant fevers, and that the police power is never more legitimately exercised than in removing such nuisances").
204. Environmental Protection Agency, America's Wetlands, (last modified May 29, 1997), 〈http://www.epa.gov/OWOW/wetlands/vital/toc.html〉. See James J.S. Johnson et al., Bogged Down Trying to Define Federal Wetlands, 2 TEX. WESLEYAN L. R. 481 (1996) (discussing factors that are supposed to delineate a wetland, but noting that Congress exacerbated the definitional problem by passing criminal lawmaking authority - the right to designate wetlands, issue permits, and enforce wetland protection - to regulatory agency such as Army Corps).
205. Environmental Protection Agency, America's Wetlands, (last modified May 29, 1997), 〈http://www.epa.gov/OWOW/wetlands/vital/toc.html〉. See James J.S. Johnson et al., Bogged Down Trying to Define Federal Wetlands, 2 TEX. WESLEYAN L. R. 481 (1996) (discussing factors that are supposed to delineate a wetland, but noting that Congress exacerbated the definitional problem by passing criminal lawmaking authority - the right to designate wetlands, issue permits, and enforce wetland protection - to regulatory agency such as Army Corps).
206. See, e.g., Environmental Protection Agency, Wetlands & People, (visited Dec. 18, 1998), 〈http://www.epa.gov/OWOW/wetlands/vital/people.html〉.
207. See Gary A. Lieberman & Evalyn S. Strauss, Development of Wetlands: A Call for More Effective Guidelines, REAL ESTATE FIN., Spring 1989, at 94 (also reporting that approximately 100 million acres of wetlands still exist).
208. KUBASEK, supra note 118, at 239.
209. 33 U.S.C. §§ 1251-1387 (1994) [hereinafter CWA].
210. See 33 C.F.R. § 325.2 (1995). But see Bradley C. Karkkainen, Biodiversity and Land, 83 CORNELL L. REV. 1, 65 (1997) (noting that section 404 does not prohibit all work and that permit requests deemed to have very little adverse impact on wetlands and/or surrounding environment are usually allowed, but proposed projects where wetland conversion is determined to have profound, negative effect on environment and for which there exists "practical alternatives" will be denied).
211. See 33 C.F.R. § 325.2 (1995). But see Bradley C. Karkkainen, Biodiversity and Land, 83 CORNELL L. REV. 1, 65 (1997) (noting that section 404 does not prohibit all work and that permit requests deemed to have very little adverse impact on wetlands and/or surrounding environment are usually allowed, but proposed projects where wetland conversion is determined to have profound, negative effect on environment and for which there exists "practical alternatives" will be denied).
212. See 33 U.S.C. § 1318.
213. KUBASEK, supra note 118, at 239.
214. Royal C. Gardner, Banking on Entrepreneurs: Wetlands, Mitigation Banking, and Takings, 81 IOWA L. REV. 527, 529 (1996) (proposing called mitigation banking). For a discussion on the effectiveness of mitigation banking, see Jonathan Silverstein, Taking Wetlands to the Bank: The Role of Wetland Mitigation Banking in a Comprehensive Approach to Wetlands Protection, 22 B.C. ENVTL. AFF. L. REV. 129 (1994). See also Rob Shapard, Swamp Things: Handling Local Wetlands Issues, THE AMERICAN ClTY & COUNTY, Nov. 1997, at 28-36 (proposing that local governments establish public or private mitigation management program).
215. Royal C. Gardner, Banking on Entrepreneurs: Wetlands, Mitigation Banking, and Takings, 81 IOWA L. REV. 527, 529 (1996) (proposing called mitigation banking). For a discussion on the effectiveness of mitigation banking, see Jonathan Silverstein, Taking Wetlands to the Bank: The Role of Wetland Mitigation Banking in a Comprehensive Approach to Wetlands Protection, 22 B.C. ENVTL. AFF. L. REV. 129 (1994). See also Rob Shapard, Swamp Things: Handling Local Wetlands Issues, THE AMERICAN ClTY & COUNTY, Nov. 1997, at 28-36 (proposing that local governments establish public or private mitigation management program).
216. Royal C. Gardner, Banking on Entrepreneurs: Wetlands, Mitigation Banking, and Takings, 81 IOWA L. REV. 527, 529 (1996) (proposing called mitigation banking). For a discussion on the effectiveness of mitigation banking, see Jonathan Silverstein, Taking Wetlands to the Bank: The Role of Wetland Mitigation Banking in a Comprehensive Approach to Wetlands Protection, 22 B.C. ENVTL. AFF. L. REV. 129 (1994). See also Rob Shapard, Swamp Things: Handling Local Wetlands Issues, THE AMERICAN ClTY & COUNTY, Nov. 1997, at 28-36 (proposing that local governments establish public or private mitigation management program).
217. 16 U.S.C. §§ 3801-3862 (1994). The courts have virtually ignored most landowners' pleas where wetland protection has affected the status of their land. See, e.g., Gunn v. United States Dept. of Agric., 118 F.3d 1233 (8th Cir. 1997) (denying relief to landowner whose property had been converted to wetlands by public actions). 160 The Swampbuster provision has been included and reformulated in three farm bills-the Food Security Act of 1985, Pub. L. No. 99-198, 99 Stat. 1504; the Food, Agriculture, Conservation, and Trade Act of 1990, Pub. L. No. 101-624, 104 Stat. 3359; and the Federal Agriculture Improvement and Reform Act of 1996, Pub. L. No. 104-127, 110 Stat. 888.
218. 16 U.S.C. § 3821(b) (1994).
219. Id. at §§ 3801, 3821-3823.
220. Dalana W. Johnson, Saving the Wetlands from Agriculture: An Examination of Section 404 of the Clean Water Act and the Conservation Provisions of the 1985 and 1990 Farm Bills, 7 J. LAND USE & ENVTL. L. 299, 309-10 (1992).
221. See Karkkainen, supra note 155, at 67.
222. But see id. at 67-68 (discussing how the 1996 revisions to Swampbuster are likely to reduce its long-term potency).
223. 33 U.S.C. §§ 1401-45 (1994).
224. Id. § 1433 (a)(2).
225. KUBASEK, supra note 118, at 239.
226. 33 U.S.C. § 1431 (a).
227. KUBASEK, supra note 118, at 239.
228. See Karkkainen, supra note 155, at 5 (commenting that many environmental proponents "argue that because species and ecosystems are interdependent in ways we neither understand nor control, their loss may take on a 'snowball' or 'cascading' effect, potentially producing conditions substantially more adverse to human life"); see also THE ENVIRONMENTAL CRISIS (Neal Bernards ed., 1991) (presenting dichotomies of opinions on several important environmental issues). Two articles presented in this book specifically address the issue of whether there is such a thing as an "environmental crisis." Id. at 17-32.
229. Curtis J. Richardson, Ecological Functions and Human Values in Wetlands: A Framework for Assessing Forestry Impacts, 14 WETLANDS 1, 3 (1994).
230. DAVID PEPPER, MODERN ENVIRONMENTALISM: AN INTRODUCTION 15 (1996).
231. U.S. CONST, amend. V. See, e.g., Dawn S. Spratley, Constitutional Law-Regulatory Takings - The Meaning of a Taking Under the Fifth Amendment and the Definition of Just Compensation Entitle Property Owners Regulated by the Wetlands Protection Act to Judicially Defined Compensation for Both Temporary and Permanent Takings, 75 U. DET. MERCY L. REV. 467 (1998). However, several courts have addressed this issue and several, but not all, plaintiffs have left the courtroom without any compensation. See, e.g., Florida Rock Indus, v. United States, 18 F.3d 1560 (Ct. Cl. 1994) (defendants arguing that Army Corps denial of permit amounted to a taking). On appeal, the Third Circuit disagreed that a taking had occurred and remanded the case back to the Claims Court. Florida Rock Indus., Inc. v. United States, 791 F.2d 893 (Fed. Cir. 1986). On remand, the Claims Court sided with the company again and awarded it the $1,029,000 once more. Florida Rock Indus., Inc. v. United States, 21 Cl. Ct. 161 (1990). On second appeal, the Third Circuit again stated that the record did not support Florida Rock's accusation that the permit denial eliminated all valuable economic use of the land. Florida Rock Indus., 18 F.3d at 1572-73. In Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994), however, the plaintiff was successful in claiming that the Corps of Engineers' order prohibiting construction on a wetlands was a regulatory taking. The property at issue in this case was a 12.5 acre parcel, consisting of 11.5 acres of wetlands and one acre of filled land on Long Beach Island, New Jersey. To develop the wetlands for residential use, Loveladies needed a permit to fill in the wetlands, which it was denied. Ultimately, the court found that the fair market value of the parcel prior to the permit denial was $2,658,000, whereas the value after the permit denial was $12,500, a diminution in value of over 99%. Given this significant diminution in value, the court was able to find a regulatory taking. In Lucas v. South Carolina, 505 U.S. 1003 (1992), the Supreme Court stated that a deprivation of all economically viable use was a per se taking, unless the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with." Id. at 1027. For further discussion on Lucas' impact on wetlands, see Richard C. Ausness, Regulatory Takings and Wetland Protection in the Post-Lucas Era, 30 LAND & WATER L. REV. 349 (1995); Hope M. Babcock, Has the Supreme Court Finally Drained the Swamp of Takings Jurisprudence?: The Impact of Lucas v. South Carolina Coastal Council on Wetlands and Coastal Barrier Beaches, 19 HARV. ENVTL. L. REV. 1 (1995); Paul Sarahan, Wetlands Protection Post-Lucas: Implications of the Public Trust Doctrine on Takings Analysis, 13 VA. ENVTL. L.J. 537, 557 (1994).
232. U.S. CONST, amend. V. See, e.g., Dawn S. Spratley, Constitutional Law-Regulatory Takings - The Meaning of a Taking Under the Fifth Amendment and the Definition of Just Compensation Entitle Property Owners Regulated by the Wetlands Protection Act to Judicially Defined Compensation for Both Temporary and Permanent Takings, 75 U. DET. MERCY L. REV. 467 (1998). However, several courts have addressed this issue and several, but not all, plaintiffs have left the courtroom without any compensation. See, e.g., Florida Rock Indus, v. United States, 18 F.3d 1560 (Ct. Cl. 1994) (defendants arguing that Army Corps denial of permit amounted to a taking). On appeal, the Third Circuit disagreed that a taking had occurred and remanded the case back to the Claims Court. Florida Rock Indus., Inc. v. United States, 791 F.2d 893 (Fed. Cir. 1986). On remand, the Claims Court sided with the company again and awarded it the $1,029,000 once more. Florida Rock Indus., Inc. v. United States, 21 Cl. Ct. 161 (1990). On second appeal, the Third Circuit again stated that the record did not support Florida Rock's accusation that the permit denial eliminated all valuable economic use of the land. Florida Rock Indus., 18 F.3d at 1572-73. In Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994), however, the plaintiff was successful in claiming that the Corps of Engineers' order prohibiting construction on a wetlands was a regulatory taking. The property at issue in this case was a 12.5 acre parcel, consisting of 11.5 acres of wetlands and one acre of filled land on Long Beach Island, New Jersey. To develop the wetlands for residential use, Loveladies needed a permit to fill in the wetlands, which it was denied. Ultimately, the court found that the fair market value of the parcel prior to the permit denial was $2,658,000, whereas the value after the permit denial was $12,500, a diminution in value of over 99%. Given this significant diminution in value, the court was able to find a regulatory taking. In Lucas v. South Carolina, 505 U.S. 1003 (1992), the Supreme Court stated that a deprivation of all economically viable use was a per se taking, unless the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with." Id. at 1027. For further discussion on Lucas' impact on wetlands, see Richard C. Ausness, Regulatory Takings and Wetland Protection in the Post-Lucas Era, 30 LAND & WATER L. REV. 349 (1995); Hope M. Babcock, Has the Supreme Court Finally Drained the Swamp of Takings Jurisprudence?: The Impact of Lucas v. South Carolina Coastal Council on Wetlands and Coastal Barrier Beaches, 19 HARV. ENVTL. L. REV. 1 (1995); Paul Sarahan, Wetlands Protection Post-Lucas: Implications of the Public Trust Doctrine on Takings Analysis, 13 VA. ENVTL. L.J. 537, 557 (1994).
233. U.S. CONST, amend. V. See, e.g., Dawn S. Spratley, Constitutional Law-Regulatory Takings - The Meaning of a Taking Under the Fifth Amendment and the Definition of Just Compensation Entitle Property Owners Regulated by the Wetlands Protection Act to Judicially Defined Compensation for Both Temporary and Permanent Takings, 75 U. DET. MERCY L. REV. 467 (1998). However, several courts have addressed this issue and several, but not all, plaintiffs have left the courtroom without any compensation. See, e.g., Florida Rock Indus, v. United States, 18 F.3d 1560 (Ct. Cl. 1994) (defendants arguing that Army Corps denial of permit amounted to a taking). On appeal, the Third Circuit disagreed that a taking had occurred and remanded the case back to the Claims Court. Florida Rock Indus., Inc. v. United States, 791 F.2d 893 (Fed. Cir. 1986). On remand, the Claims Court sided with the company again and awarded it the $1,029,000 once more. Florida Rock Indus., Inc. v. United States, 21 Cl. Ct. 161 (1990). On second appeal, the Third Circuit again stated that the record did not support Florida Rock's accusation that the permit denial eliminated all valuable economic use of the land. Florida Rock Indus., 18 F.3d at 1572-73. In Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994), however, the plaintiff was successful in claiming that the Corps of Engineers' order prohibiting construction on a wetlands was a regulatory taking. The property at issue in this case was a 12.5 acre parcel, consisting of 11.5 acres of wetlands and one acre of filled land on Long Beach Island, New Jersey. To develop the wetlands for residential use, Loveladies needed a permit to fill in the wetlands, which it was denied. Ultimately, the court found that the fair market value of the parcel prior to the permit denial was $2,658,000, whereas the value after the permit denial was $12,500, a diminution in value of over 99%. Given this significant diminution in value, the court was able to find a regulatory taking. In Lucas v. South Carolina, 505 U.S. 1003 (1992), the Supreme Court stated that a deprivation of all economically viable use was a per se taking, unless the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with." Id. at 1027. For further discussion on Lucas' impact on wetlands, see Richard C. Ausness, Regulatory Takings and Wetland Protection in the Post-Lucas Era, 30 LAND & WATER L. REV. 349 (1995); Hope M. Babcock, Has the Supreme Court Finally Drained the Swamp of Takings Jurisprudence?: The Impact of Lucas v. South Carolina Coastal Council on Wetlands and Coastal Barrier Beaches, 19 HARV. ENVTL. L. REV. 1 (1995); Paul Sarahan, Wetlands Protection Post-Lucas: Implications of the Public Trust Doctrine on Takings Analysis, 13 VA. ENVTL. L.J. 537, 557 (1994).
234. U.S. CONST, amend. V. See, e.g., Dawn S. Spratley, Constitutional Law-Regulatory Takings - The Meaning of a Taking Under the Fifth Amendment and the Definition of Just Compensation Entitle Property Owners Regulated by the Wetlands Protection Act to Judicially Defined Compensation for Both Temporary and Permanent Takings, 75 U. DET. MERCY L. REV. 467 (1998). However, several courts have addressed this issue and several, but not all, plaintiffs have left the courtroom without any compensation. See, e.g., Florida Rock Indus, v. United States, 18 F.3d 1560 (Ct. Cl. 1994) (defendants arguing that Army Corps denial of permit amounted to a taking). On appeal, the Third Circuit disagreed that a taking had occurred and remanded the case back to the Claims Court. Florida Rock Indus., Inc. v. United States, 791 F.2d 893 (Fed. Cir. 1986). On remand, the Claims Court sided with the company again and awarded it the $1,029,000 once more. Florida Rock Indus., Inc. v. United States, 21 Cl. Ct. 161 (1990). On second appeal, the Third Circuit again stated that the record did not support Florida Rock's accusation that the permit denial eliminated all valuable economic use of the land. Florida Rock Indus., 18 F.3d at 1572-73. In Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994), however, the plaintiff was successful in claiming that the Corps of Engineers' order prohibiting construction on a wetlands was a regulatory taking. The property at issue in this case was a 12.5 acre parcel, consisting of 11.5 acres of wetlands and one acre of filled land on Long Beach Island, New Jersey. To develop the wetlands for residential use, Loveladies needed a permit to fill in the wetlands, which it was denied. Ultimately, the court found that the fair market value of the parcel prior to the permit denial was $2,658,000, whereas the value after the permit denial was $12,500, a diminution in value of over 99%. Given this significant diminution in value, the court was able to find a regulatory taking. In Lucas v. South Carolina, 505 U.S. 1003 (1992), the Supreme Court stated that a deprivation of all economically viable use was a per se taking, unless the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with." Id. at 1027. For further discussion on Lucas' impact on wetlands, see Richard C. Ausness, Regulatory Takings and Wetland Protection in the Post-Lucas Era, 30 LAND & WATER L. REV. 349 (1995); Hope M. Babcock, Has the Supreme Court Finally Drained the Swamp of Takings Jurisprudence?: The Impact of Lucas v. South Carolina Coastal Council on Wetlands and Coastal Barrier Beaches, 19 HARV. ENVTL. L. REV. 1 (1995); Paul Sarahan, Wetlands Protection Post-Lucas: Implications of the Public Trust Doctrine on Takings Analysis, 13 VA. ENVTL. L.J. 537, 557 (1994).
235. Dolan v. City of Tigard, 114 S.Ct. 2309 (1994) ("A strong public desire to improve the public condition [will not] warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.").
236. National Wildlife Federation, Nationwide Permit Proposal: An Overview, (accessed Jan.21, 1996), 〈http://www.nwf/wetlands/nwp/overview.html〉.
237. Id.
238. Sally Deneen, Paradise Lost: America's Disappearing Wetlands, 1998 WL 16883746 (Nov. 1, 1998).
239. Under the new proposal, there would be six so-called "quickie" permits: (1) NWPA, which would authorize the filling of non-tidal wetlands and other waters for the purposes of residential, commercial and institutional activities and "associated infrastructure;" (2) NWPB, which would authorize the fill of up to 10 acres of non-tidal waters for the construction or expansion of master planned developments of at least 100 total acres; (3) NWPC, which would authorize the construction and maintenance of stormwater management facilities, with a limit of the destruction of 2 acres for new facilities, but no limit on maintenance activities; (4) NWPD, which would authorize the destruction of up to one acre of non-tidal water for the constriction of passive recreational facilities for hiking, hiking, running, walking, golfing, and skiing, as well as support facilities for these activities such as parking lots, roads and buildings; (5) NWPE, which would authorize the destruction of two or thre acres of waters for a broad range of mining activities; and (6) NWPF, which would authorize the reshaping of existing drainage ditches through wetlands and other waters. National Wildlife Foundation, NWF Official Comments, (accessed Jan.20, 1999), 〈http://nwf.org/nwf/wetlads/nwp/replace.html〉.
240. Under the new proposal, there would be six so-called "quickie" permits: (1) NWPA, which would authorize the filling of non-tidal wetlands and other waters for the purposes of residential, commercial and institutional activities and "associated infrastructure;" (2) NWPB, which would authorize the fill of up to 10 acres of non-tidal waters for the construction or expansion of master planned developments of at least 100 total acres; (3) NWPC, which would authorize the construction and maintenance of stormwater management facilities, with a limit of the destruction of 2 acres for new facilities, but no limit on maintenance activities; (4) NWPD, which would authorize the destruction of up to one acre of non-tidal water for the constriction of passive recreational facilities for hiking, hiking, running, walking, golfing, and skiing, as well as support facilities for these activities such as parking lots, roads and buildings; (5) NWPE, which would authorize the destruction of two or three acres of waters for a broad range of mining activities; and (6) NWPF, which would authorize the reshaping of existing drainage ditches through wetlands and other waters. National Wildlife Foundation, NWF Official Comments, (accessed Jan.20, 1999), 〈http://nwf.org/nwf/wetlads/nwp/replace.html〉.
241. Supra note 178.
242. Id.
243. Id.
244. EVERETT CARLL LADD & KARLYN H. BOWMAN, ATTITUDES TOWARD THE ENVIRONMENT TWENTY-FIVE YEARS AFTER EARTH DAY 40 (1995).
245. Id.
246. Id.
247. Id.
248. James V. Grimaldi, Endangered Species Act in Danger Itself, ORANGE COUNTY REG., July 31, 1994, at A1 (citing study conducted by Center for Responsive Politics, nonpartisan organization that tracks political contributions); Ike C. Sugg, Caught in the Act: Evaluating the Endangered Species Act, Its Effects on Man and Prospects for Reform, 24 CUMB. L. REV. 1, 37 (1994). See The Thoreau Institute, History of the Endangered Species Act, (last modified Jan. 29, 1998), 〈http://www.ti.org/History.html〉. Habitat Conservation Plans (HCPs) are one type of Voluntary Conservation Agreements (VCAs). HCPs were incorporated into the Endangered Species Act in 1982 when Congress amended section 10 of the Act. Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, 96 Stat. 1411, 1422 (codified at 16 U.S.C. § 1539 (1994)). The amendment provided: "The Secretary may permit...any taking otherwise prohibited...if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539 (a) (1) (B). However, a prerequisite to anyone obtaining one of these permits is that he or she develop an HCP. The permit is to be approved if the HCP minimizes the incidental taking, can be adequately funded, and "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." Id. § 1539 (a) (2) (B). Some academics have proposed that the HCPs could be more effective if they too could be applied to proposed and candidate species. See Andrew G. Frank, Reforming the Endangered Species Act: Voluntary Conservation Agreements, Government Compensation and Incentives for Private Action, 22 COLUM. J. ENV'TL L. 137, 146 (1997).
249. James V. Grimaldi, Endangered Species Act in Danger Itself, ORANGE COUNTY REG., July 31, 1994, at A1 (citing study conducted by Center for Responsive Politics, nonpartisan organization that tracks political contributions); Ike C. Sugg, Caught in the Act: Evaluating the Endangered Species Act, Its Effects on Man and Prospects for Reform, 24 CUMB. L. REV. 1, 37 (1994). See The Thoreau Institute, History of the Endangered Species Act, (last modified Jan. 29, 1998), 〈http://www.ti.org/History.html〉. Habitat Conservation Plans (HCPs) are one type of Voluntary Conservation Agreements (VCAs). HCPs were incorporated into the Endangered Species Act in 1982 when Congress amended section 10 of the Act. Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, 96 Stat. 1411, 1422 (codified at 16 U.S.C. § 1539 (1994)). The amendment provided: "The Secretary may permit...any taking otherwise prohibited...if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539 (a) (1) (B). However, a prerequisite to anyone obtaining one of these permits is that he or she develop an HCP. The permit is to be approved if the HCP minimizes the incidental taking, can be adequately funded, and "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." Id. § 1539 (a) (2) (B). Some academics have proposed that the HCPs could be more effective if they too could be applied to proposed and candidate species. See Andrew G. Frank, Reforming the Endangered Species Act: Voluntary Conservation Agreements, Government Compensation and Incentives for Private Action, 22 COLUM. J. ENV'TL L. 137, 146 (1997).
250. James V. Grimaldi, Endangered Species Act in Danger Itself, ORANGE COUNTY REG., July 31, 1994, at A1 (citing study conducted by Center for Responsive Politics, nonpartisan organization that tracks political contributions); Ike C. Sugg, Caught in the Act: Evaluating the Endangered Species Act, Its Effects on Man and Prospects for Reform, 24 CUMB. L. REV. 1, 37 (1994). See The Thoreau Institute, History of the Endangered Species Act, (last modified Jan. 29, 1998), 〈http://www.ti.org/History.html〉. Habitat Conservation Plans (HCPs) are one type of Voluntary Conservation Agreements (VCAs). HCPs were incorporated into the Endangered Species Act in 1982 when Congress amended section 10 of the Act. Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, 96 Stat. 1411, 1422 (codified at 16 U.S.C. § 1539 (1994)). The amendment provided: "The Secretary may permit...any taking otherwise prohibited...if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539 (a) (1) (B). However, a prerequisite to anyone obtaining one of these permits is that he or she develop an HCP. The permit is to be approved if the HCP minimizes the incidental taking, can be adequately funded, and "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." Id. § 1539 (a) (2) (B). Some academics have proposed that the HCPs could be more effective if they too could be applied to proposed and candidate species. See Andrew G. Frank, Reforming the Endangered Species Act: Voluntary Conservation Agreements, Government Compensation and Incentives for Private Action, 22 COLUM. J. ENV'TL L. 137, 146 (1997).
251. James V. Grimaldi, Endangered Species Act in Danger Itself, ORANGE COUNTY REG., July 31, 1994, at A1 (citing study conducted by Center for Responsive Politics, nonpartisan organization that tracks political contributions); Ike C. Sugg, Caught in the Act: Evaluating the Endangered Species Act, Its Effects on Man and Prospects for Reform, 24 CUMB. L. REV. 1, 37 (1994). See The Thoreau Institute, History of the Endangered Species Act, (last modified Jan. 29, 1998), 〈http://www.ti.org/History.html〉. Habitat Conservation Plans (HCPs) are one type of Voluntary Conservation Agreements (VCAs). HCPs were incorporated into the Endangered Species Act in 1982 when Congress amended section 10 of the Act. Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, 96 Stat. 1411, 1422 (codified at 16 U.S.C. § 1539 (1994)). The amendment provided: "The Secretary may permit...any taking otherwise prohibited...if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539 (a) (1) (B). However, a prerequisite to anyone obtaining one of these permits is that he or she develop an HCP. The permit is to be approved if the HCP minimizes the incidental taking, can be adequately funded, and "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild." Id. § 1539 (a) (2) (B). Some academics have proposed that the HCPs could be more effective if they too could be applied to proposed and candidate species. See Andrew G. Frank, Reforming the Endangered Species Act: Voluntary Conservation Agreements, Government Compensation and Incentives for Private Action, 22 COLUM. J. ENV'TL L. 137, 146 (1997).
252. 16 U.S.C. §§ 1531-1544 (1994) [hereinafter ESA]. Congress stated, The purposes of this Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section. Id. at § 1531 (b).
253. Id. § 1531 (a)(3). Some opponents of the ESA have argued that despite this protection, the government has abused its authority in enforcing the Act by "taking" private property without just compensation. See, e.g., Omnibus Property Rights Act of 1995: Hearings on S. 605 Before the Committee on the Judiciary, 104th Cong. 6 (1995) (statement of Phil Gramm, U.S. Senator from Texas); William K. Stevens, Battle Looms Over U.S. Policy on Species, N.Y. TIMES, Nov. 16, 1998, at C1 (noting argument that compensation would discourage government enforcement of species protection).
254. 16 U.S.C. § 1531 (a). See generally Kenneth Jost, Protecting Endangered Species, 6 CQ RESEARCHER 339, 340 (1996); STEPHEN R. KELLERT, THE VALUE OF LIFE : BIOLOGICAL DIVERSITY AND HUMAN SOCIETY (1995); EDWARD O. WILSON, THE DIVERSITY OF LIFE (1992).
255. 16 U.S.C. § 1531 (a). See generally Kenneth Jost, Protecting Endangered Species, 6 CQ RESEARCHER 339, 340 (1996); STEPHEN R. KELLERT, THE VALUE OF LIFE : BIOLOGICAL DIVERSITY AND HUMAN SOCIETY (1995); EDWARD O. WILSON, THE DIVERSITY OF LIFE (1992).
256. 16 U.S.C. § 1531 (a). See generally Kenneth Jost, Protecting Endangered Species, 6 CQ RESEARCHER 339, 340 (1996); STEPHEN R. KELLERT, THE VALUE OF LIFE : BIOLOGICAL DIVERSITY AND HUMAN SOCIETY (1995); EDWARD O. WILSON, THE DIVERSITY OF LIFE (1992).
257. 16 U.S.C. § 1531 (a). See generally Kenneth Jost, Protecting Endangered Species, 6 CQ RESEARCHER 339, 340 (1996); STEPHEN R. KELLERT, THE VALUE OF LIFE : BIOLOGICAL DIVERSITY AND HUMAN SOCIETY (1995); EDWARD O. WILSON, THE DIVERSITY OF LIFE (1992).
258. 16 U.S.C. § 1531 (b). One objection to the ESA is that it is too costly. But see Jost, supra note 190, at 341 (citing statistics from Fish & Wildlife Service - the least costly of the two ESA programs - that in 1995, its endangered species program cost only $79.3 million, which is less than the cost of building two miles of interstate highway).
259. According to The Consortium of Aquariums, Universities and Zoos web page, there are 896 (343 animals, 553 plants) endangered species and 230 (115 animals, 115 plants) threatened species (last modified Sept. 4, 1998) 〈http://www.selu.com/~bio/cauz/links/ endangered.html〉.
260. 16 U.S.C. § 1532 (6).
261. Id. § 1532 (20).
262. 5 U.S.C. § 553 (1994).
263. The Secretary of the Interior is charged with protecting terrestrial species, while the Secretary of Commerce determines the classification of aquatic wildlife.
264. An important but controversial distinction is the difference between protecting the species and protecting the species' habitat. See Michael Doyle Bee & Nancy Vogel, House Focuses on Species Protection, SACRAMENTO BEE, Sept. 8, 1995, at B1 (quoting former chairman of House Resources Committee, George Miller). See also Eric Fisher, Habitat Conservation Planning Under the Endangered Species Act: No Surprises & The Quest for Certainty, 67 COLO. L. REV. 371, 377 (1996)(arguing that narrow focus of ESA-protecting species only after they are deemed endangered or threatened-severely limits its efficacy).
265. An important but controversial distinction is the difference between protecting the species and protecting the species' habitat. See Michael Doyle Bee & Nancy Vogel, House Focuses on Species Protection, SACRAMENTO BEE, Sept. 8, 1995, at B1 (quoting former chairman of House Resources Committee, George Miller). See also Eric Fisher, Habitat Conservation Planning Under the Endangered Species Act: No Surprises & The Quest for Certainty, 67 COLO. L. REV. 371, 377 (1996)(arguing that narrow focus of ESA-protecting species only after they are deemed endangered or threatened-severely limits its efficacy).
266. An important but controversial distinction is the difference between protecting the species and protecting the species' habitat. See Michael Doyle Bee & Nancy Vogel, House Focuses on Species Protection, SACRAMENTO BEE, Sept. 8, 1995, at B1 (quoting former chairman of House Resources Committee, George Miller). See also Eric Fisher, Habitat Conservation Planning Under the Endangered Species Act: No Surprises & The Quest for Certainty, 67 COLO. L. REV. 371, 377 (1996)(arguing that narrow focus of ESA-protecting species only after they are deemed endangered or threatened-severely limits its efficacy).
267. 16 U.S.C. § 1533 (a) (1).
268. See Robert H. Nelson, Shoot, Shovel and Shut Up, FORBES, Dec. 4, 1995, at 82. But see Jost, supra note 190, at 341 (noting that 60 economists in the Northwest attributed industry downturn to over harvesting in prior years).
269. 16 U.S.C. § 1533 (b) (1) (A). However, Congress did permit the Secretary to consider economic factors when designating the critical habitat, "if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned." Id. § 1533 (b) (2).
270. Id. § 1538 (a)(1)(D).
271. Id. § 1532 (19). The inclusion of this word has sparked a great deal of controversy regarding its meaning within the Act. The problem arises because Congress, when writing the ESA, did not define what it meant by "harm." Consequently, in 1995, Secretary of the Interior Babbitt promulgated this definition via The Interior Department regulations: "Harm in the definition of "take" in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." 50 C.F.R. § 17.3 (1994). Businesses organizations, and families who were dependant on the forest industry in the Pacific Northwest and Southeast for their livelihood challenged this interpretation of the word "harm" in the act's definition of "taking," because the interpretation prevented them from engaging in certain logging activities in certain areas because these areas were critical habitats of the red-cockaded woodpecker, an endangered species, and the northern spotted owl, a threatened species. In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), the Supreme Court ruled that Babbitt's construction of "harm" was reasonable because the "ordinary understanding" and the dictionary definition of the word specifically means to kill or injure, but is not limited to direct and willful actions. Therefore, although respondents did not take willful action to directly kill the animals, their logging activities had the result of indirectly killing the species because the activities destroyed the animal's habitat. Id. at 697-98. Furthermore, the Court reasoned that if "harm" were restricted to direct actions, Congress would have been redundant to include it in the definition of "taking" because the remainder of the definition explicitly suggests direct injury. Id. at 697-98.
272. 16 U.S.C. § 1532 (5)(A).
273. See, e.g., Doyle & Vogel, supra note 178, at B1 (of the 960 species covered by the ESA, only eight have been deemed "recovered." See also Ray Vaughan, State of Extinction: The Case of the Alabama Sturgeon and Ways Opponents of the Endangered Species Act Thwart Protection for Rare Species, 46 ALA. L. REV. 569, 578 (1995) (noting that more than twenty years of work under the ESA have produced only a very limited number of instances where a species has recovered to the point where its survival is no longer threatened).
274. See, e.g., Doyle & Vogel, supra note 178, at B1 (of the 960 species covered by the ESA, only eight have been deemed "recovered." See also Ray Vaughan, State of Extinction: The Case of the Alabama Sturgeon and Ways Opponents of the Endangered Species Act Thwart Protection for Rare Species, 46 ALA. L. REV. 569, 578 (1995) (noting that more than twenty years of work under the ESA have produced only a very limited number of instances where a species has recovered to the point where its survival is no longer threatened).
275. See Martha F. Phelps, Candidate Conservation Agreements under the Endangered Species Act: Prospects and Perils of an Administrative Experiment, 25 B.C. ENVTL. AFF. L. REV. 175, 183 (1997). Additionally, the Act requires the Secretary to estimate the time and cost requirement necessary to complete the plan. 16 U.S.C. § 1533(f)(1)(B)(iii).
276. See Grimaldi, supra note 187, at A1 (commenting that supporters of the expired act were trying in 1994 to postpone reauthorization vote in hopes that 1995 votes would be more favorable for strengthening ESA); see also Nancy K. Kubasek et al., The Endangered Species Act: Time for a New Approach?, 24 ENVTL. L. 329, 339-51 (1994) (reviewing four bills proposed in 103rd Congress).
277. See Grimaldi, supra note 187, at A1 (commenting that supporters of the expired act were trying in 1994 to postpone reauthorization vote in hopes that 1995 votes would be more favorable for strengthening ESA); see also Nancy K. Kubasek et al., The Endangered Species Act: Time for a New Approach?, 24 ENVTL. L. 329, 339-51 (1994) (reviewing four bills proposed in 103rd Congress).
278. See, e.g., WILSON, supra note 190, at 285 (over twenty-five percent of all prescriptions dispensed in the U.S. come from plants, thirteen percent come from microorganisms, and three percent come from animals).
279. Rep. John Dingell, Foreword to DANIEL J. ROHLF, THE ENDANGERED SPECIES ACT: A GUIDE TO ITS PROTECTIONS AND IMPLEMENTATION 1 (1989). Dingell is a long-standing environmentalist in the House of Representatives. He introduced the bill that later became the Endangered Species Act.
280. ROBERT L. HEILBRONER, THE WORLDLY PHILOSOPHERS: THE LIVES, TIMES, AND IDEAS OF THE GREAT ECONOMIC THINKERS 49-50 (1953). Because of corporations' large sizes and vast power, they are able to overlook the public's preferences related to costs and effects (such as habitat destruction) that arise as a consequence of their producing goods and services.
281. 143 Cong. Rec. S4214 (May 4, 1998) (statement of Sen. Craig).
282. The ESA states: No permit may be issued by the Secretary authorizing any taking [of a listed species] unless the applicant therefor submits to the Secretary a conservation plan that specifies -(i) the impact which will likely result from such a taking; (ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps; (iii) what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized; and (iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan. 16 U.S.C. § 1539(a)(2)(A) (1999).
283. The "no surprises" clause states, (i) In general. - Each conservation plan developed under this subsection shall include a no surprises provision, as described in this paragraph. (ii) No surprises. - A person who has entered into, and is in compliance with, a conservation plan under this subsection may not be required to undertake any additional mitigation measures for species covered by such plan if such measures would require the payment of additional money, or the adoption of additional use, development, or management restrictions on any land, waters, or water-related rights that would otherwise be available under the terms of the plan without the consent of the permittee. The Secretary and the applicant, by the terms of the conservation plan, shall identify -(iii) other modifications to the plan; or (iv) other additional measures; if any, that the Secretary may require under extraordinary circumstances. S.1180, 105th Cong. § 5 (1997). See generally John J. Fialka, Endangered Species Act, Itself Endangered, May Have Found the Political Backing to Survive, WALL ST. J., Mar. 20, 1988, at A20 (reporting that Sen. Babbitt supports the use of a no surprises policy); Kimberley K. Walley, Opinion: Surprises Inherent in the No Surprises Policy, ENDANGERED SPECIES UPDATE, Oct. 1996, at 8. See also S. Rep. No. 105-128, at 59-60 (1997).
284. The "no surprises" clause states, (i) In general. - Each conservation plan developed under this subsection shall include a no surprises provision, as described in this paragraph. (ii) No surprises. - A person who has entered into, and is in compliance with, a conservation plan under this subsection may not be required to undertake any additional mitigation measures for species covered by such plan if such measures would require the payment of additional money, or the adoption of additional use, development, or management restrictions on any land, waters, or water-related rights that would otherwise be available under the terms of the plan without the consent of the permittee. The Secretary and the applicant, by the terms of the conservation plan, shall identify - (iii) other modifications to the plan; or (iv) other additional measures; if any, that the Secretary may require under extraordinary circumstances. S.1180, 105th Cong. § 5 (1997). See generally John J. Fialka, Endangered Species Act, Itself Endangered, May Have Found the Political Backing to Survive, WALL ST. J., Mar. 20, 1988, at A20 (reporting that Sen. Babbitt supports the use of a no surprises policy); Kimberley K. Walley, Opinion: Surprises Inherent in the No Surprises Policy, ENDANGERED SPECIES UPDATE, Oct. 1996, at 8. See also S. Rep. No. 105-128, at 59-60 (1997).
285. 143 CONG. REC. S9412 (1997).
286. DEFENDERS OF WILDLIFE, FRAYED SAFETY NETS: CONSERVATION PLANNING UNDER THE ENDANGERED SPECIES ACT vi -vii (1998).
287. S. REP. No. 105-128, at 59-60 (1997).
288. CARLL EVERITT LADD, THE AMERICAN IDEOLOGY: AN EXPLORATION OF THE ORIGINS, MEANING, AND ROLE OF AMERICAN POLITICAL IDEAS vi (1994).
289. E.K. HUNT, PROPERTY AND PROPHETS: THE EVOLUTION OF ECONOMIC INSTITUTIONS AND IDEAS 39-10 (7th ed. 1995) (providing excellent summary of psychological, political, and economic assumptions that wed individualism and markets).
290. Andrea Giampetro-Meyer, et al., Advancing the Rights of Poor and Working-Class Women in an Individualistic Culture, 2 LOYOLA POVERTY L. J. 41, n. 2 (1996).
291. Id. at 42, n.3.
292. See David Warner, Not So Great Expectations, 86 NATION'S BUS., Jan. 1998, at 26 (predicting repetition of the gridlock if normal Congressional habits are followed).
293. See generally Bruce A. Ackerman, Reforming Environmental Law: The Democratic Case for Market Incentives, 13 COL. J. ENVTL. LAW 171 (1988).