Complexity theory, adaptation, and administrative law

Duke Law Journal

Volumn 54, Issue 4, 2005, Pages 913-960

  Hornstein, Donald T ^a  

^a UNIVERSITY OF NORTH CAROLINA   (United States)

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EID: 33747887027     PISSN: 00127086     EISSN: 00127086     Source Type: Journal    
DOI: None     Document Type: Article

References (403)

1. See, e.g., J.B. Ruhl, Complexity Theory as a Paradigm for the Dynamical Law-and-Society System: A Wake-Up Call for Legal Reductionism and the Modern Administrative State, 45 DUKE L.J. 849, 916-26 (1996) (using the metaphor of complex adaptive systems to model the administrative state and to call for fundamental doctrinal changes in the case law);
2. J.B. Ruhl & James Salzman, Mozart and the Red Queen: The Problem of Regulatory Accretion in the Administrative State, 91 GEO. L.J. 757, 806-09 (2003) (using the analogy of complex adaptive systems to explain system effects in the regulatory landscape). Professors Ruhl and Salzman claim there is a "recent explosion in [legal] scholarship employing complex systems theory."
3. Id. at 802.
4. On the use of complexity theory by legal scholars in areas other than "core" administrative law, see, for example, Mark J. Roe, Chaos and Evolution in Law and Economics, 109 HARV. L. REV. 641 (1996)
5. which uses features of chaos theory to explain comparative corporate law, and Vincent Di Lorenzo, Legislative Chaos: An Exploratory Study, 12 YALE L. & POL'Y REV. 425 (1994), which proposes use of chaos theory to seek the development of a model of legislation richer than pluralism and public choice theory provide.
6. See infra notes 3-7.
7. E.g., Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669 (1975).
8. E.g., Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511 (1992).
9. E.g., David B. Spence & Frank Cross, A Public Choice Case for the Administrative State, 89 GEO. L.J. 97 (2000).
10. E.g., CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT 31 (1999) ("Much of administrative law consists of an effort to ensure reason-giving by regulatory agencies . . . .");
11. Gary Coglianese & Gary E. Marchant, Shifting Sands: The Limits of Science in Setting Risk Standards, 152 U. PA. L. REV. 1255, 1256 (2004) ("Administrative law aspires to bring reason to agency policymaking.") .
12. E.g., Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431 (1989);
13. Eric A. Posner, Controlling Agencies with Cost-Benefit Analysis: A Positive Political Theory Perspective, 68 U. CHI. L. REV. 1137 (2001);
14. Pablo T. Spiller, A Positive Political Theory of Regulatory Instruments: Contracts, Administrative Law or Regulatory Specificity?, 69 S. CAL. L. REV. 477 (1996).
15. Claims for regulatory experimentation and adaptation, roughly speaking, tend to reflect three different types of administrative law reform projects. The first reflects a devolutionary project based on the premise that more localized decisionmakers will experiment with policymaking because they must react to competing and competitive pressures among local jurisdictions. See, e.g., Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 284 (1998) (arguing for local policymaking as more responsive and innovative in light of greater expert mental ism at the local decisionmaking level);
16. Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the Judicial Function, 114 HARV. L. REV. 1833, 1916 (2001) ("The leading scholarship on federalism describes the value of local participation in utilitarian and dignitary terms, associating political action at the local level with experimental and improved policymaking . . . ."). The second reflects a substantive neoclassical interest in attaining efficient outcomes in policymaking by use of experimental approaches to explore uncertainty.
17. See, e.g., John H. Davidson & Thomas Earl Geu, The Missouri River and Adaptive Management: Protecting Ecological Function and Legal Process, 80 NEB. L. REV. 816, 834-60 (2001) (analyzing the treatment of adaptive management as a decisionmaking strategy in the "Master Manual" for the Missouri River adopted by the U.S. Army Corps of Engineers). The third reflects a proceduralist interest in improving stakeholder participation, in part by allowing for provisional approaches.
18. See, e.g., Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1, 28-29 (1997)
19. (observing that provisionalism requires deliberation so as to avoid surprise to stakeholders). The categorization of administrative law into neoclassical and proceduralist camps is taken from Matthew D. Adler, Beyond Efficiency and Procedure: A Welfarist Theory of Regulation, 28 FLA. ST. U. L. REV. 241, 243-88 (2000), which criticizes this categorization.
20. See, e.g., Bradley C. Karkkainen, Adaptive Ecosystem Management and Regulatory Penalty Defaults: Toward a Bounded Pragmatism, 87 MINN. L. REV. 943, 943 (2003) ("Conservation ecologists and natural resource managers assert that integrated management of complex ecosystems requires an iterative and adaptive management approach.");
21. 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, 996 (1997) (noting that adaptive management establishes that a "failure to experiment. . . would be folly").
22. See, e.g., Freeman, supra note 8, at 22 ("Collaborative governance seeks to respond to the litany of criticisms about the quality, implementability, and legitimacy of rule making by reorienting the regulatory enterprise around joint problem solving . . . .").
23. ROBERT AXELROD, THE COMPLEXITY OF COOPERATION: AGENT-BASED MODELS OF COMPETITION AND COLLABORATION 3 (1997).
24. Id;
25. see also Ruhl, supra note 1, at 875 ("Chaos, emergence, and catastrophe can be explained using the examples of snowflakes, snow, and avalanches.").
26. AXELROD, supra note 11, at 3.
27. See ROBERT AXELROD & MICHAEL D. COHEN, HARNESSING COMPLEXITY: ORGANIZATIONAL IMPLICATIONS OF A SCIENTIFIC FRONTIER 117-18 (1999) (using natural selection as an example of a complex adaptive system, but also noting that natural selection has disadvantages when compared to other methods of adaptation).
28. See JOHN H. HOLLAND, EMERGENCE: FROM CHAOS TO ORDER 43-44 (1998) (noting that, even though "[c]haos theory is often cited as an explanation for the difficulty of predicting weather and other complex phenomena," in the short term there can be useful, predictive models of weather prediction);
29. Douglas A. Kysar, Climate Change, Cultural Transformation, and Comprehensive Rationality, 31 B.C. ENVTL. AFF. L. REV. 555, 568 (2004) ("[O]ur current understanding suggests that climate change may represent just such a chaotic system.").
30. See AXELROD & COHEN, supra note 11, at 29 (noting that Adam Smith's concept of the "hidden hand" in economics reflects what modern theorists would recognize as emergent properties of a complex system).
31. See infra notes 103-113 and accompanying text (discussing claims that complexity theory offers advantages over public choice analysis in explaining legislation and the legislative process).
32. See AXELROD & COHEN, supra note 14, at xiii (noting that computer scientists studying distributed and network-mediated computing are probing deeper questions of "what it takes to make systems of many agents work together and grow").
33. Id. at xiii-xiv.
34. See, e.g., Daniel A. Farber, Probabilities Behaving Badly: Complexity Theory and Environmental Uncertainty, 37 U.C. DAVIS L. REV. 145, 152-54 (2003) (stating that nonlinearity is a distinctive feature of complex adaptive systems);
35. Ruhl, supra note 1, at 878-79 (arguing that complexity theory "demolishes the centuries-old myth of predictability and time-symmetric determinism, and with it any idea of a clockwork universe"
36. (quoting PETER COVENEY & ROGER HIGHFIELD, THE ARROW OF TIME 37 (1990))).
37. See Farber, supra note 20, at 153: This attribute is known as "chaos" and involves extreme sensitivity to initial conditions, so that immeasurable variations in the current state of affairs can lead over time to arbitrarily large divergences in eventual outcomes. Such systems also produce a characteristic distribution of outcomes: "a high frequency of small fluctuations, punctuated by the occasional large shift in system conditions."
38. (footnote omitted) (quoting Ruhl, supra note 9, at 952).
39. Id;
40. see also Roe, supra note 1, at 642 (stating that the science of chaos involves systems in which "small changes in the original position make for very large changes in outcome").
41. See AXELROD & COHEN, supra note 14, at 7 (using the phrase "Complex Adaptive System" to refer to systems that "contain agents or populations that seek to adapt").
42. See id. at 14
43. ("What makes prediction especially difficult in these settings is that the forces shaping the future do not add up in a simple, systemwide manner. Instead, their effects include nonlinear interactions."). Not all nonlinear systems are complex systems; the standard exponential growth model, for example, is nonlinear but not "complex" as that term is typically used in the complexity literature. J. Barkley Rosser, Jr., Introduction to COMPLEXITY IN ECONOMICS, at x (J. Barkley Rosser, Jr. ed., 2004).
44. See Ruhl, supra note 1, at 857, 860, 866 (referring to a blend of features, including nonlinearity, that can lead to sustainability and adaptiveness in a system).
45. But see AXELROD & COHEN, supra note 14, at 18-19 (noting that not all complex adaptive systems necessarily achieve improved performance).
46. CHARLES DARWIN, ON THE ORIGIN OF SPECIES BY MEANS OF NATURAL SELECTION: OR THE PRESERVATION OF FAVOURED RACES IN THE STRUGGLE FOR LIFE (Castle Books ed., 2004) (1859).
47. Herbert Hovenkamp, Evolutionary Models in Jurisprudence, 64 TEX. L. REV. 645, 645 (1985).
48. See E. Donald Elliott, The Evolutionary Tradition in Jurisprudence, 85 COLUM. L. REV. 38 (1985).
49. FREDERICK VON SAVIGNY, OF THE VOCATION ON OUR AGE FOR LEGISLATION AND JURISPRUDENCE (Lawbook Exchange ed., 2002) (Abraham Hayward trans., 1831).
50. HENRY SUMNER MAINE, ANCIENT LAW: ITS CONNECTION WITH THE EARLY HISTORY OF SOCIETY AND ITS RELATION TO MODERN IDEAS (William S. Hein & Company ed., 1984) (1861).
51. See Elliott, supra note 28, at 46 ("[L]ike Savigny, Maine describes patterns of legal change without paying much attention to the processes that produce them. [He] asserts, for example, that there is a natural progression from heroic kingship to aristocracy, but does not tell us how or why.").
52. Id. at 43 (speaking of Savigny).
53. HERBERT SPENCER, SOCIAL STATICS (Robert Shackelford Publisher ed., 1995) (1892).
54. It was Herbert Spencer, not Charles Darwin, who coined the phrase "survival of the fittest." RICHARD HOFSTADTER, SOCIAL DARWINISM IN AMERICAN THOUGHT 39 (George Braziller, Inc. 1959) (1944).
55. See Hovenkamp, supra note 27, at 666 ("The evolutionary theory contained in the first edition of Social Statics was heavily Lamarckian, with God an active participant in the process. ");
56. see also Owen D. Jones, Evolutionary Analysis in Law: An Introduction and Application to Child Abuse, 75 N.C. L. REV. 1117, 1135 n.47 (1997) (observing that it is reproduction, not individual survival as emphasized by Spencer, that is important to the mechanism of biological evolution). Based on this theoretically weak starting point, the Social Darwinists built sweeping claims that human progress depended on relentless competition among individuals that would weed out the weak and the sick, free from interference by the state.
57. See Hovenkamp, supra note 27, at 667-70 ("Spencer viewed the state as an inefficient and potentially harmful instrument. It created an illusion of cooperation between individuals when in fact none existed .... Society survived only when every person had maximum freedom with a minimum of restrictions.") And it was, of course, to Spencer's assertions that Justice Holmes directed his famous dissent in Lochner v. New York, 198 U.S. 48 (1905), when he stated that "the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics,"
58. id. at 75 (Holmes, J., dissenting).
59. Elliott, supra note 28, at 54-55
60. (quoting Donald T. Campbell, Variation and Selective Retention in Socio-Cultural Evolution, in SOCIAL CHANGES IN DEVELOPING AREAS: A REINTERPRETATION OF EVOLUTIONARY THEORY 19, 26-27 (Herbert Barringer et al. eds., 1965)).
61. See HOLLAND, supra note 15, at 121-22 (describing emergence as interactions resulting in a system characterized by behavior that "cannot be obtained by summing the behaviors of its constituent parts").
62. AXELROD & COHEN, supra note 14, at 15.
63. See id. at 7 (describing how complex systems change strategies by means of selection).
64. Id. at 29.
65. Evolutionary biologist Stephan Jay Gould makes a similar observation, albeit without consciously invoking complexity theory, when he observes, "I believe that the theory of natural selection should be viewed as an extended analogy-whether conscious or unconscious on Darwin's part I do not know-to the laissez faire economics of Adam Smith." STEPHAN JAY GOULD, THE PANDA'S THUMB: MORE REFLECTIONS IN NATURAL HISTORY 66 (1980).
66. Paul H. Rubin, Why Is the Common Law Efficient?, 6 J. LEGAL STUD. 51 (1977).
67. George L. Priest, The Common Law Process and the Selection of Efficient Rules, 6 J. LEGAL STUD. 65 (1977).
68. See, e.g., E. Donald Elliott, Law and Biology: The New Synthesis?, 41 ST. LOUIS U. L.J. 595, 601 (1997) ("So if judges err-including because the internal selection system of legal doctrines is 'wrong'. . . then people in the community ... are going to keep coming back to the courts to test that rule, and that rule is more likely to be modified or abandoned eventually.");
69. see also Elliott, supra note 28, at 62-71 (discussing economic theories of legal evolution).
70. Elliott, supra note 13, at 600-01.
71. See, e.g., Robert Cooter, Models of Morality in Law and Economics: Self-Control and Self-Improvement for the "Bad Man" of Holmes, 78 B.U. L. REV. 903, 910 n.27 (1998) (discussing the Rubin/Priest models and the literature that challenges them);
72. Robert D. Cooler, Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant, 144 U. PA. L. REV. 1643, 1694 (1996)
73. [hereinafter Cooter, Decentralized Law] ("[S]elective-litigation pressure and blind evolution fail to explain the level of efficiency observed in common law.");
74. Robert Cooter & Lewis Kornhauser, Can Litigation Improve the Law Without the Help of Judges?, 9 J. LEGAL STUD. 139, 140 (1980) (finding that blind evolution only moderately influences legal improvements);
75. Elliott, supra note 28, at 62-71 (surveying the critical literature on economic theories of legal evolution);
76. Gillian K. Hadfield, Bias in the Evolution of Legal Rules, 80 GEO. L.J. 583, 594-96 (1992) (discussing "non-motivational" accounts of selective litigation pressures);
77. Thomas S. Ulen, The Prudence of Law and Economics: Why More Economics Is Better, 26 CUMB. L. REV. 773, 804 n.75 (1996) (discussing the selective litigation process).
78. Jason Scott Johnston, A Game-Theoretic Analysis of Alternative Institutions for Regulatory Cost-Benefit Analysis, 150 U. PA. L. REV. 1343 (2002).
79. Id. at 1358.
80. Id. at 1359.
81. See Matthew D. Adler, The Positive Political Theory of Cost-Benefit Analysis: A Comment on Johnston, 150 U. PA. L. REV. 1429, 1430-32 (2002) (summarizing Johnston's distinction between "benefits" statutes and "cost-benefit" statutes).
82. Johnston, supra note 46, at 1353-55.
83. See id. at 1366-68 (discounting what firms merely "tell" agencies about compliance expenditures as "cheap" talk).
84. Adler, supra note 49, at 1432-33.
85. Id. at 1433.
86. See id. at 1436 ("Because of firm lobbying and litigation, a statute that not only instructs the agency to apply a cost-benefit test, but also makes [cost benefit analysis] judicially reviewable, might nonetheless fail to induce the agency to sort between welfare-enhancing and welfare-reducing litigation."(emphasis added)).
87. See id. at 1429 (making numerous analytical suggestions but nonetheless calling Professor Johnston's model a "substantial contribution" to the positive political theory of regulation);
88. see also Daniel A. Farber, Building Bridges over Troubled Waters: Eco-pragmatism and the Environmental Prospect, 87 MINN. L. REV. 851, 871 (2003) (referencing Professor Johnston's article as shifting the debate on cost-benefit analysis "more on its institutional implementation, a topic that lends itself to more reasoned and constructive debate than the earlier battles over the morality of the technique");
89. Emerson H. Tiller, Resource-Based Strategies in Law and Positive Political Theory: Cost-Benefit Analysis and the Like, 150 U. PA. L. REV. 1453, 1470-71 (2002) (suggesting that Professor Johnston's analysis may produce even stronger results in more "political" versions of positive political theory).
90. It is worth noting, however, that in an article published several years before Professor Johnston's article, Professor Daniel Farber speculates on ways in which asymmetrical compliance costs could cause implementation of an agency rule to be felt first by firms with low compliance costs, and at least delayed for firms with high costs. See Daniel A. Farber, Taking Slippage Seriously: Noncompliance and Creative Compliance in Environmental Law, 23 HARV. ENVTL. L. REV. 297, 316 (1999) ("It is at least plausible that the most rapid compliance will involve sources with lower compliance costs or high environmental impacts, while the greatest delays will occur for sources with high costs or low impacts."). Although Professor Farber neither identifies nor specifies a mechanism by which this asymmetry might affect the ultimate distribution of costs and benefits, as does Professor Johnston, it is significant that Farber appreciated the same point made in the text above: that a legal doctrine (cost-benefit analysis) can be affected by mechanisms of adaptation.
91. See id. at 317 ("[I]t is at least clear that an assessment of existing regulations cannot ignore the dynamics of the implementation process.").
92. See DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 38-39 (1991)
93. (introducing Arrow's Theorem and noting that a summary of Arrow's work is found in DENNIS C.MUELLER, PUBLIC CHOICE II, at 384-99 (1989)).
94. See id. at 39 ("Arrow's Theorem presents a conceptual barrier to combining individual preferences into some overall measure of social welfare.").
95. Transitivity reflects the minimum rationality such that "[i]f society prefers outcome A to outcome B and outcome B to outcome C, then society prefers A over C." Id. at 38.
96. For further discussion of transitivity in economic analysis, see Donald T. Hornstein, Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis, 92 COLUM. L. REV. 562, 590-91, 598-603 (1992) (explaining, and critiquing, the use of transitivity in economic analysis involving incommensurable goods).
97. FARBER & FRICKEY, supra note 57, at 39.
98. Id.
99. See P. ORDESHOOK, GAME THEORY AND POLITICAL THEORY: AN INTRODUCTION 71-82 (1986) (positing that Arrow's Theorem is important "because it compels us to acknowledge that [social preference] paradoxes can prevail with any preference aggregation mechanism")
100. cited in FARBER & FRICKEY, supra note 57, at 40 n.2;
101. Jim Chen, The Mystery and the Mastery of the Judicial Power, 59 MO. L. REV. 281, 299 (1994) (referring to "chaos theorem" as a corollary to Arrow's Impossibility Theorem);
102. David Luban, Social Choice Theory as Jurisprudence, 69 S. CAL. L. REV. 521, 542 (1996) (discussing Professors Richard McKelvey and Norman Schofield's use of "closely related [chaos] theorems whose importance may eclipse that of Arrow's Theorem itself).
103. See WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE 167 (1982) (highlighting the ineradicability of strategic voting in all voting systems).
104. See also FARBER & FRICKEY, supra note 57, at 40.
105. See William T. Mayton, The Possibilities of Collective Choice: Arrow's Theorem, Article I, and the Delegation of Legislative Power to Administrative Agencies, 1986 DUKE L.J. 948, 952 ("[R] elaxing Arrow's nondictatorship condition is of some appeal .... Such a dictatorship is today established, in the person of bureaucrats, by open-ended delegations of legislative power to agencies.");
106. Jeffrey Rosen, Overcoming Posner, 105 YALE L.J. 581, 595 (1995) (book review) ("Some scholars have invoked the Arrow Impossibility Theorem to support broad congressional delegation of lawmaking power to administrative agencies, relying on technocrat expertise to replace the irrationality of democratic decisionmaking.").
107. See Roe, supra note 1, at 641-43 (noting overlap between path dependence and sensitivity to initial conditions).
108. See JAMES GLEICK, CHAOS: MAKING A NEW SCIENCE 8 (1987) ("Tiny differences in input could quickly become overwhelming differences in output-a phenomenon given the name 'sensitive dependence on initial conditions.'");
109. Roe, supra note 1, at 642 ("Some phenomena are extremely sensitive to initial conditions: small changes in the original position make for very large changes in outcome.").
110. Roe, supra note 1, at 642
111. (citing GLEICK, supra note 66, at 8).
112. But see HOLLAND, supra note 15, at 43-44 (noting that, as for day-to-day changes in the weather, butterfly effects can be negligible in relation to huge movements of air masses, making relatively accurate predictions possible in the short term, when "chaos theory has little relevance").
113. The term is used in Elliott, supra note 43, at 598-99.
114. See also Stephen J. Gould & Richard C. Lewontin, The Spandrels of San Marcos and the Panglossian Paradigm: A Critique of the Adaptationist Programme, 205 PROC. ROYAL SOC'Y LONDON BIOLOGICAL SCI. 581, 581-98 (1979) (critiquing the adaptionist programme of understanding evolution).
115. See supra notes 33-35 and accompanying text (contrasting Spencer and Darwin).
116. Elliott, supra note 43, at 598-99 (noting that, unlike Herbert Spencer's bastardized notion of survival of "the" fittest, in biology "it is very rare that there is only one unique solution that will survive. . . . Most of the time .... [t]here is a very broad range of characteristics that can survive and exist within the population").
117. Roe, supra note 1, at 642.
118. Id. at 641.
119. Id. at 646-53.
120. Professor Roe's article has engendered a spirited debate over path dependence and adaptationism in corporate law. See, e.g., Lucien Arye Bebchuk & Mark. J. Roe, A Theory of Path Dependence in Corporate Ownership and Governance, 52 STAN. L. REV. 127 (1999) (discussing the role of path dependence in corporate ownership structures);
121. John C. Coffee, Jr., The Future as History: The Prospects for Global Convergence in Corporate Governance and Its Implications, 93 NW. U. L. REV. 64 (1999) (critiquing the traditional "Berle and Mean" paradigm and noting that "Professor Roe's work has been the dominant influence in this field");
122. Craig LaChance, Note, Nature v. Nurture: Evolution, Path Dependence and Corporate Governance, 18 ARIZ. J. INT'L & COMP. L 279, 287-88 (2001) (noting that Professor Roe's piece challenged the conventional "Berle and Mean" paradigm that "corporate structure in other countries would inevitably evolve into something similar to the U.S. system").
123. Roe, supra note 1, at 658.
124. Id.
125. Id.
126. See, e.g., Stephen M. Bainbridge, Insider Trading Regulation: The Path Dependent Choice Between Property Rights and Securities Fraud, 52 SMU L. REV. 1589, 1589-91 (1999) (concluding that, given the costs, insider trading regulation should be permitted to continue down its path-dependent course with only some modifications).
127. See, e.g., Gail Charnley & E. Donald Elliott, Risk Versus Precaution: Environmental Law and Public Health Protection, 32 Envtl. L. Rep. (Envtl. L. Inst.) 10363, 10365 (2002) ("Environmental health regulation is path-dependent: actions taken now affect the nature of actions taken later.");
128. Eric W. Orts, Reflexive Environmental Law, 89 NW. U. L. REV. 1227, 1334 n.458 (1995) ("One wonders in light of the history of securities regulation how much the heavily substantive approach of contemporary environmental law owes to path dependence concerning the choices of original legal strategies rather than to deliberative choice.").
129. See, e.g., Eric J. Gouvin, Banking in North America: The Triumph of Public Choice over Public Policy, 32 CORNELL INT'L L.J. 1, 16 (1998) ("The conflict between [the Federal Reserve and the Comptroller of the Currency] appears to be the path dependent result of historical policy decisions affecting branching in the United States.").
130. See Ruhl & Salzman, supra note 1, at 818 ("Over time, the accretion of rules will present more regulatory decision nodes, which will add to the path dependence of present regulatory positions, and will therefore limit the options for new rules.").
131. See Clayton P. Gillette, Lock-in Effects in Law and Norms, 78 B.U. L. REV. 813, 817 (1998) ("Although much of the literature has concerned technological development-ranging from typewriter keyboards to computer operating systems to light bulbs-lock-in may apply with equal force to ... law itself. Regulatory regimes-legal or extralegal-provide obvious analogies to technological standards." (footnotes omitted)).
132. See Hovenkamp, supra note 27, at 646 ("Today every theory of jurisprudence worth contemplating incorporates a theory of change.").
133. See, e.g., Francesco Parisi & Jonathan Klick, Functional Law and Economics: The Search for Value-Neutral Principles of Lawmaking, 79 CHI.-KENT L. REV. 431, 450 (2004) (arguing that "[t]hrough its ex ante perspective, the functional school focuses on mechanism design issues to explain the origins of law");
134. Fred S. McChesney, Positive Economics and All That-A Review of The Economic Structure of Corporate Law by Frank H. Easterbrook & Daniel R. Fischel, 61 GEO. WASH. L. REV. 272, 295 (1992) ("Landes and Posner's economic theory of tort law recognizes the need for a 'causal mechanism' to explain why judicial and legislative lawmakers do what they do.").
135. But see Wil Waluchow, In Pursuit of Pragmatic Legal Theory: The Practice of Principle by Jules Coleman, 15 CAN. J.L. & JURISPRUDENCE 125, 138 (2002) (book review) ("Coleman's principal objection to viewing economic theories as causal-functional explanations is that they post no plausible causal mechanism to explain why the rules and practices of tort law are structured to achieve economic goals.").
136. MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1965).
137. See Dan M. Kahan, The Logic of Reciprocity: Trust, Collective Action, and Law, 102 MICH. L. REV. 71, 71 (2003) ("The Logic of Collective Action has for decades supplied the logic of public-policy analysis. . . . [and] dominate[d] public-policy analysis and public policy itself across a host of regulatory domains . . . ." (footnotes omitted)).
138. See FARBER & FRICKEY, supra note 57, at 23 (discussing the free-rider problem and its organizational difficulties for large groups)
139. (citing OLSON, supra note 84, at 132-34).
140. See id. ("Thus, if Olson is correct, politics should be dominated by 'rent-seeking' special interest groups.").
141. Donald T. Hornstein, Lessons from Federal Pesticide Regulation on the Paradigms and Politics of Environmental Law Reform, 10 YALE J. ON REG. 369, 409-10 (1993) (footnotes omitted).
142. See FARBER & FRICKEY, supra note 57, at 24 ("[A]s the political science literature indicates, special interest groups do appear to play a major role in the legislative process.").
143. See, e.g., JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUTIONAL DEMOCRACY 288 (1962) ("Many modern students of pressure-group phenomena seem to rely on [there being an] 'equilibrium.'");
144. EARL LATHAM, THE GROUP BASIS OF POLITICS: A STUDY IN BASING-POINT LEGISLATION 36 (1952) ("What may be called public policy is the equilibrium reached in this struggle at any given moment, and it represents a balance which the contending factions of groups constantly strive to weight in their favor.").
145. See FARBER & FRICKEY, supra note 57, at 27-33 (noting the different types of challenges that have been brought);
146. see also infra notes 92-93 and accompanying text.
147. See ALEXANDER J. FIELD, ALTRUISTICALLY INCLINED?: THE BEHAVIORAL SCIENCES, EVOLUTIONARY THEORY, AND THE ORIGINS OF RECIPROCITY 21-25 (2004) (arguing that humans show altruism by failing to harm other humans whom they do not know);
148. Kahan, supra note 85, at 71-74 ("Olsoris Logic [of Collective Action] is false. In collective-action settings, individuals adopt not a materially calculating posture but rather a richer, more emotionally nuanced reciprocal one.").
149. See, e.g., Reza Dibadj, Saving Antitrust, 75 U. COLO. L. REV. 745, 797 (2004) ("[D]espite empirical studies showing ideology to be a better predictor of legislative votes than economics, public choice ignores the ideology of politicians and bureaucrats." (footnote omitted));
150. Edward L. Rubin, Public Choice, Phenomenology, and the Meaning of the Modern State: Keep the Bathwater, but Throw Out That Baby, 87 CORNELL L. REV. 309, 335 (2002) ("Participants in social movements are even more obviously motivated by ideology, particularly in those movements that are unconnected with their personal well-being.").
151. Certainly one of the most forceful advocates of this view, as applied to administrative law in particular, is law professor J.B. Ruhl, who has found in complexity theory a "[w]ake-up [c]all for [l]egal [r]eductionism." See Ruhl, supra note 1, at 849.
152. See FARBER & FRICKEY, supra note 57, at 17 (finding that in the 1950s "a pluralistic interpretation of politics had emerged, in which legislative outcomes were said simply to mirror the equilibrium of competing group pressures").
153. See AXELROD &COHEN,supra note 14, at 14 (noting that "[w]hat makes prediction especially difficult in these settings is that the forces shaping the future do not add up in a simple, systemwide manner" but instead "include nonlinear interactions").
154. See, e.g., Gerald Andrews Emison, The Potential for Unconventional Progress: Complex Adaptive Systems and Environmental Quality Policy, 7 DUKE ENVTL. L. & POL'Y F. 167, 173 (1996) ("Any policy built on a view of the environment as not changing is likely to fall short of its stated objectives . . . .");
155. Alyson C. Flournoy, Preserving Dynamic Systems: Wetlands, Ecology and Law, 7 DUKE ENVTL. L. & POL'Y F. 105, 131 (1996) (noting that the term can be misapplied, but stating that one of the central lessons of the "new" ecology is greater appreciation of the role that "disturbance regimes play in sustaining ecological processes");
156. Jonathan Baert Wiener, Beyond the Balance of Nature, 7 DUKE ENVTL. L. & POL'Y F. 1, 11-12 (1996) (finding that "balance" in nature is a meaningless concept).
157. Fred Bosselman & A. Dan Tarlock, The Influence of Ecological Science on American Law: An Introduction, 69 CHI.-KENT L. REV. 847, 869-70 (1994)
158. quoted in Farber, supra note 20, at 152.
159. Farber, supra note 20, at 152-53.
160. See id. at 153 ("This unusual statistical distribution is the most significant feature of complexity.").
161. See Ruhl, supra note 1, at 878 ("That is catastrophe: a sudden qualitative change in a dynamical system brought about by a continuous change in a system variable.").
162. See id. at 864
163. While the system is on a particular orbit around a strange attractor, moreover, it is highly sensitive to small perturbations so that if "nudged" ever so slightly off the orbit path just a little bit, the system responds over time with an arbitrarily large trajectory shift. Strange attractors systems thus "amplify tiny differences hidden far along the decimal tail, well below any error threshold you may care to se t. (quoting JACK COHEN & IAN STEWART, THE COLLAPSE OF CHAOS 191 (1994)).
164. See, e.g., id. at 928 ("I confess-as any adherent of dynamical systems theory must-that I cannot predict the outcome of [proposed] reforms with precision . . . .").
165. See Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. ECON. & ORG. 59, 66 (1992) ("[P]olitics alternates between normal periods, in which public attention is weak, and extraordinary periods, in which the issue has high salience for the public. . . . Those periods are likely to be attended by new legislative initiatives responding to this public demand.");
166. Hornstein, supra note 88, at 418 ("[Environmental statutes are enacted not during the 'normal' political periods that are typically responsive to conventional interest group pressures, but rather during 'extraordinary moments' when broad segments of the population become intensely interested in environmental issues . . . .").
167. James Gray Pope, Republican Moments: The Role of Direct Popular Power in the American Constitutional Order, 139 U. PA. L. REV. 287, 291-93 (1990).
168. Glenn Harlan Reynolds, Is Democracy Like Sex?, 48 VAND. L. REV. 1635 (1995).
169. See id. at 1637-38 ("[T]he conclusions reached by evolutionary biologists regarding the advantages of sexual reproduction are likely to be applicable to complex dynamic systems that are not biological, including political systems.").
170. Id. at 1637.
171. Di Lorenzo, supra note 1.
172. Professor Di Lorenzo uses studies of congressional trade legislation during the period 1953-1963 conducted by Professors Raymond Bauer, Ithiel de Sola Pool, and Lewis Dexter, id. at 436-38;
173. Professor Martha Derthick's study of the Social Security Act, id. at 438-40; and a study of legislation affecting disabled persons by Professors Stephan Percy and Richard Scotch, id. at 440-43.
174. Id. at 433-35.
175. Id. at 434-35.
176. Id. at 435.
177. Id. at 443-44
178. (quoting Clifford Kraus, Liquor-Warning Bill Reflects Personal Impact on Public Policy, N.Y. TIMES, May 16, 1993, at A20).
179. GLEICK, supra note 66, at 262.
180. See, e.g., Thomas Earl Geu, Chaos, Complexity, and Coevolution: The Web of Law, Management Theory, and Law Related Services at the Millennium (pt 1), 65TENN. L. REV. 925, 926 (1998) (suggesting the overarching use of complexity theory to analyze features across economic and legal systems);
181. J.B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and Its Practical Meaning for Democracy, 49 VAND. L. REV. 1407, 1481-84 (1996) (calling for devolution of power to the states to reflect a "long jump" to a new fitness landscape);
182. Ruhl, supra note 1, at 923 (calling for ending deference to administrative agency decisions to take advantage of the more dynamical qualities of the judicial experience);
183. Ruhl, supra note 9, at 980 (claiming that environmental law must be "revolutionized" with complex adaptive systems as its model);
184. J.B. Ruhl & Harold J. Ruhl, Jr., The Arrow of the Law in Modern Administrative States: Using Complexity Theory to Reveal the Diminishing Returns and Increasing Risks the Burgeoning of Law Poses to Society, 30 U.C. DAVIS L. REV. 405, 467 (1997) (issuing a broad call to "break the cycle" of complex legal structures);
185. Ruhl & Salzman, supra note 1, at 806-09 (using an analogy of complex adaptive systems to explain the accretion of rules across the regulatory landscape);
186. James Salzman et al., Regulatory Traffic Jams, 2 WYO. L. REV. 253, 270-74 (2002) (identifying positive and negative feedback loops as features of complex adaptive systems in law generally).
187. See Roe, supra note 1, at 667 (noting, even after making the case that path dependence may explain comparative features of corporate governance structures, that, "[r]ight now, none of the three paradigms-chaos, evolution to the local hilltop, or path dependence-is developed enough to enable us to make explanatory predictions").
188. See Di Lorenzo, supra note 1, at 434-35 ("A recurring conclusion flowing from chaos theory is that change-from legislative inertia to action-is unpredictable. The very existence of some of the factors inducing change-e.g. chance and publicity-cannot be predicted even in the short-term.").
189. See infra notes 186-193 and accompanying text (expressing concern that special interest distortions could affect an experimentalist program of adaptive management).
190. See Dorf & Sabel, supra note 8, at 287-88 (arguing that the United States should create "linked systems" of local and interlocal governments to share information about local solutions to common problems).
191. Daniel A. Farber & Jody Freeman, Modular Environmental Regulation, 54 DUKE L.J. 795 (2005);
192. see also Karkkainen, supra note 9, at 951-52 (discussing broader conceptions of adaptive management that include "evolving institutional configurations").
193. See, e.g., Holly Doremus, Adaptive Management, the Endangered Species Act, and the Institutional Challenges of "New Age" Environmental Protection, 41 WASHBURN L.J. 50, 52 (2001) ("Perhaps the best concise definition of adaptive management is simply 'learning by doing.'");
194. Emison, supra note 97, at 190 ("We need to promote experimentation . . . .");
195. Karkkainen, supra note 9, at 948-49 (describing adaptive management as a form of scientific hypothesis-testing by which agencies could "identify areas of uncertainty, develop testable hypotheses, and use the implementation phase of the proposed action to verify and to field-test these hypotheses");
196. Bradley C. Karkkainen, Toward A Smarter NEPA: Monitoring and Managing Government's Environmental Performance, 102 COLUM. L. REV. 903, 938-40 (2002) (proposing that agencies "devise and implement a monitoring program . . . [and] be required to disclose postdecision monitoring data to the public, and, under [some] circumstances ... to adjust mitigation measures, modify their plans, or revise their environmental analysis in light of revealed conditions");
197. John M. Volkman, How Do You Learn from a River? Managing Uncertainty in Species Conservation Policy, 74 WASH. L. REV. 719, 739 (1999) ("Adaptive management does not call just for experimentation, but for experimentation that generates a measurable response.").
198. See, e.g., Emison, supra note 97, at 180-87 (linking key features of adaptive management systems to such features of complex adaptive systems as nonlinearity, emergence, and attractors);
199. Bradley C. Karkkainen, Collaborative Ecosystem Governance: Scale, Complexity, and Dynamism, 21 VA. ENVTL. L.J. 189, 196 (2002) (referring to "important and non-trivial insight from complexity theory, applicable across complex non-linear dynamic systems in general");
200. Ruhl, supra note 9, at 943-54, 996 (discussing the environment in terms of a complex adaptive system and then arguing for adaptive management as an appropriate policy device to be used by environmental managers).
201. See, e.g., Kenneth De Jong et al., A History of Evolutionary Computation, in HANDBOOK OF EVOLUTIONARY COMPUTATION § A2.3.1, § A2.3.3 (Thomas Back et al. eds., 1997) (recounting the history of evolutionary computing, including the development of the genetic algorithm).
202. See JOHN H. HOLLAND, ADAPTATION IN NATURAL AND ARTIFICIAL SYSTEMS 32-36 (1975) (explaining the basic concepts underlying genetic algorithms).
203. The text captures an oversimplified explanation of a genetic algorithm, leaving out features that are quite important in other contexts, such as the introduction of random mutations, the crossover point used in recombinations, and the number of agents. Excellent explanations of genetic algorithms are found in John H. Holland, Genetic Algorithms, SCI. AM., July 1992, at 66, 66-72
204. and John H. Holland, Adaptive Algorithms for Discovering and Using General Patterns in Growing Knowledge Bases, 4 INT'L J. POL'Y ANALYSIS & INFO. SYSTEMS 245, 245-68 (1980).
205. See EMANUEL FALKENAUER, GENETIC ALGORITHMS AND GROUPING PROBLEMS 25-34 (1998) (discussing the design and encoding of genetic algorithms in terms of such biological features as genes, genotypes, and phenotypes).
206. AXELROD, supra note 11, at 17.
207. Id.
208. Id.
209. Id.
210. See infra note 140 (referencing a real-time applet that demonstrates the algorithm's speed).
211. The reader can see how a genetic algorithm works in real time with an easy-to-use demonstration applet found at http://math.hms.edu/xJava/GA/.
212. See Thomas Earl Geu, The Tao of Jurisprudence: Chaos, Brain Science, Synchronicity, and the Law, 61 TENN. L. REV. 933, 953-54 (1994) (describing genetic algorithms to include the process whereby, "[i]f an existing network does not satisfactorily solve the novel problem, the computer will recombine strong if-then statements into new networks of connections and test these new networks as a solution to the problem").
213. M. See FALKENAUER, supra note 126, at 29-30 (describing genetic algorithms as a method by which an initial population of solutions first is applied to the search space, then subjected to a fitness evaluation for each individual in the population, with the more fit individuals then selected to form a parental set that are recombined to produce offspring).
214. Id.
215. See id. at 438 (describing the format and goal of the TSP).
216. The total number of possible routes in an n-city tour is n! (n factorial). See ADIT Software, Travelling Salesman, at http://www.adit.co.uk/ html/travelling_ salesman.html (last visited Jan. 27, 2005) (on file with the Duke Law Journal) ("With five cities the number of possible alternative routes is 5! (five factorial) which is 1 *2*3*4*5=120... .").
217. See id. (finding that the number of possible routes in a thirty-city tour is 30! (thirty factorial), which is 2.65 × 1032);
218. Michael LaLena, Travelling Salesman Problems Using Genetic Algorithms, at http://www.lalena.com/ai/tsp/ (last visited Jan. 27, 2005) (on file with the Duke Law Journal) (calculating the number of possible combinations in a thirty-city tour as 2.65 × 1032).
219. LaLena, supra note 138;
220. see also Eric Kades, The Laws of Complexity and the Complexity of Laws: The Implications of Computational Complexity Theory for the Law, 49 RUTGERS L. REV. 403, 436 (1997) (noting that the power of exponentiation can cause the total number of possible calculations in a four-by-four puzzle to "equal [] the number of microseconds . . . since the Big Bang").
221. The reader can see a demonstration in real time (the three-second part) of a genetic algorithm applied to a TSP at http://www.ads.tuwien.ac.at/ ~guenther/tspga/TSPGA.html.
222. Of course, because the genetic algorithm finds only an approximate solution, albeit a highly accurate approximation, its power can be overstated by comparing it only to the complete computational solution that would be found after an exhaustive search of all thirty-factorial tours. A full appreciation of the genetic algorithm's powers would have to include a comparison with other approximation algorithms that have been applied to the TSP. See THOMAS CORMEN ET AL., INTRODUCTION TO ALGORITHMS 1022-33 (2d ed. 2001) ("[I]t is unlikely that we can find a polynomial-time algorithm for solving this [Traveling Salesman] problem exactly. We therefore look instead for good approximation algorithms."). I am indebted to my colleague Andrew Chin for this insight.
223. See id. at 1032 (explaining that this problem can affect the ability of a genetic algorithm to guarantee close approximate solutions in the most general case of TSP);
224. see also FALKENAUER, supra note 126, at 41 (noting that, in the absence of a "mutation operator," a genetic algorithm can converge toward a local maximum).
225. See, e.g., Cooter, Decentralized Law, supra note 45, at 1687-88 (contrasting "local maxim[a]" and "global maxim[a]").
226. Id.
227. Id.;
228. see also Roe, supra note 1, at 643 ("To achieve the next, much higher summit in the chain of hills ... we would have to go down this hill, and then up the next one. But natural selection, by selecting only upward-bound characteristics, stymies us from going down the hill. We are stuck in a local equilibrium . . . .").
229. See FALKENAUER, supra note 126, at 41 (noting that, to avoid undue convergence on a local maximum, "it is the mutation operator which is in charge of reintroducing those missing alleles back into the genetic pool").
230. Id.;
231. see also LaLena, supra note 138 ("Mutation is when the [genetic algorithm] randomly changes one of the solutions. Sometimes a mutation can lead to a better solution that a crossover would not have found.").
232. The exploration/exploitation dilemma is not unique to genetic algorithms but also affects "greedy" algorithms generally. See CORMEN ET AL., supra note 140, at 370 (discussing the effect on "greedy" algorithms, which make the choice that appears optimal at every opportunity). I am again indebted to my colleague Andrew Chin for this observation.
233. Legal analysis too has been informed by the use of, and difficulties presented by, local and global maxima. In addition to Cooter, Decentralized Law,
234. See, e.g. Adrian Vermeule, Judicial Review and Institutional Choice, 43 WM. & MARY L. REV. 1557, 1563 (2002) (arguing that a regime of judicial review could "constitute a local-maximum trap, akin to the problem facing subsistence farmers who are unable to switch to more productive technologies because they will starve to death in the meantime").
235. AXELROD & COHEN, supra note 14, at 32.
236. See, e.g., Michael C. Dorf, The Limits of Socratic Deliberation, 112 HARV. L. REV. 4, 60 (1998 ) (referring to Justice Brandeis' oft-repeated characterization of the states as experimental "laboratories" (quoting New State Ice Co. v. Liebmann, 285 U.S. 262, 310-11 (1932) (Brandeis, J. dissenting)));
237. Brandon L. Garrett & James S. Liebman, Experimentalist Equal Protection, 22 YALE L. &POL'Y REV. 261, 276-77 (2004) (describing as "'experimentalist innovations'. . . a variety of administrative arrangements characterized by continuous, interactive cycles of local innovation and central monitoring");
238. Sarah C. Rispin, Comment, Cooperative Federalism and Constructive Waiver of State Sovereign Immunity, 70 U. CHI. L. REV. 1639, 1662 (2003) (finding that cooperative federalism is often touted as a means to allow "for more innovation and experimentation in government" (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991))).
239. But see Fernando R. LaGuarda, Note, Federalism Myth: States as Laboratories of Health Care Reform, 82 GEO. L.J. 159, 160 (1993) (identifying, and then challenging, the notion that states offer loci of robust policy experimentation).
240. Dorf & Sabel, supra note 8, at 303;
241. see also S. Candice Hoke, Preemption Pathologies and Civic Republican Values, 71 B.U. L. REV. 685, 712 (1991) (arguing that devolution would "permit[] subnational governments to engage in regulatory experimentation" to reflect a broad diversity of community cultures).
242. Gary C. Bryner, Policy Devolution and Environmental Law: Exploring the Transition to Sustainable Development, 26 ENVIRONS ENVTL. L. & POL'Y J. 1, 8 (2002).
243. Jonathan H. Adler, Free & Green: A New Approach to Environmental Protection, 24 HARV. J.L. & PUB. POL'Y 653, 694 (2001). There is, of course, a vibrant literature contesting the argument that states have been the source of "tremendous" innovation.
244. See, e.g., Rena I. Steinzor, Devolution and the Public Health, 24 HARV. ENVTL. L. REV. 351, 382-400 (2000) (noting that the failures of state environmental regulation have been well-documented);
245. Kirsten H. Engel, State Environmental Standard-Setting: Is There a "Race" and Is It "To the Bottom"?, 48 HASTINGS L. J. 271, 294-295 (1997) (stating that one concern of federal environmental legislation is laxity of state standards resulting from interstate competition);
246. Andrew Hecht, Note, Obstacles to the Devolution of Environmental Protection: States' Self-Imposed Limitations on Rulemaking, 15 DUKE ENV. L. & POL'Y F. 105, 198 (2004) (arguing that state environmental agencies are hampered by legal limitations in adopting protective rules).
247. See, e.g., James G. March, Exploration and Exploitation in Organizational Learning, 2 ORG. SCI. 71, 71 (1991) ("A central concern of studies of adaptive processes is the relation between the exploration of new possibilities and the exploitation of old certainties.").
248. AXELROD & COHEN, supra note 14, at 43.
249. Id.;
250. see also March, supra note 154, at 71 ("Both exploration and exploitation are essential for organizations, but they compete for scarce resources.").
251. See AXELROD & COHEN, supra note 14, at 51 (developing conditions under which exploration may be justified, citing problems that have a "low risk of catastrophe from exploration");
252. see also Doremus, supra note 121, at 67 (noting that robust agency experimentation on the Columbia River was dampened by concern over effects on already endangered salmon runs);
253. infra notes 186-193 and accompanying text.
254. The literature on this feature of cooperative federalism, although not explicitly recognizing either complexity theory or the exploration/exploitation dilemma, is large. See, e.g., Dorf & Sabel, supra note 8, at 434-35 (suggesting that Congress has used cooperative federalism in the Federal Clean Air Act and in "other areas as well");
255. Michael S. Greve, Against Cooperative Federalism, 70 MISS. L.J. 557, 561-62 (2000) (comparing and critiquing cooperative federalism in Germany and the United States);
256. Philip J. Weiser, Cooperative Federalism and Its Challenges, 2003 MICH. ST. L. REV. 727, 728-29 (noting aspects of cooperative federalism of the 1996 Telecommunications Act but recognizing that, "[a]though relatively new to the telecommunications industry, cooperative federalism is a familiar feature in other regulatory regimes");
257. Michael L. Gallo, Note, AT&T Corp. v. Iowa Utilities Board, 15 BERKELEY TECH. L.J. 417, 431 (2000) ("In spite of the Supreme Court's comment [in AT&T v. Iowa Utilities Board] that 'a federal program administered by 50 independent state agencies is surpassing strange,' this sort of 'cooperative federalism' characterizes many laws . . . ." (footnote omitted)).
258. See, e.g., Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210, 1236-44 (1992) (arguing that, as a result of competition, states will maximize social welfare to attract citizens and businesses and thus will refrain from adopting suboptimally lax regulations-contrary to the traditional race-to-the-bottom dynamic).
259. See, e.g., Kirsten H. Engel, supra note 153, at 278 (questioning the assumption of perfect competition among states);
260. Kirsten Engel, Reconsidering the National Market in Solid Waste: Trade-Offs in Equity, Efficiency, Environmental Protection, and State Autonomy, 73 N.C. L. REV. 1481, 1505-06 (1995) (arguing that immobility and lack of information undermine the existence of a market in citizens sufficient to insulate states from an inefficient race to the bottom).
261. But see Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 MINN. L. REV. 535, 549-51 (1997) (claiming that an interstate market for citizens and firms does function competitively).
262. See supra note 158 and accompanying text (noting the widespread use of cooperative-federalism designs in federal statutes across a wide programmatic spectrum).
263. See supra note 158 (describing how frequently federal statutes enlist states in regulatory endeavors characterized by cooperative-federalism).
264. See, e.g., Farber, supra note 56, at 309-10 ("[T]he idea is to excuse some supposedly less significant regulatory violations in exchange for agreements to transcend the standards in more important respects . . . .");
265. Freeman, supra note 8, at 55-66 (describing the implementation of two XL agreements);
266. Beth S. Ginsberg & Cynthia Cummis, EPA's Project XL: A Paradigm for Promising Regulatory Reform, 26 Envtl. L. Rep. (Envtl. L. Inst.) 10059, 10060-61 (1996) (comparing Project XL to other legislative reform initiatives). In highlighting the Agency's "Project XL" experiment, I do not seek to endorse its effectiveness. Indeed, there are reasons to think that, in practice, it may be highly ineffective.
267. See, e.g., Rena I. Steinzor, Regulatory Reinvention and Project XL: Does the Emperor Have Any Clothes?, 26 Envtl. L. Rep. (Envtl. L. Inst.) 10527, 10529-30 (1996) (describing Project XL as a "free-for-all" of unrelated exemptions and firm "wish lists" that do not, in fact, receive effective agency review). My point is that, with the exploitation/exploration insight from complexity theory, it is at least understandable why regulatory experimentation took this form, and should have taken this form, over a more radical devolutionary approach.
268. See Robert L. Glicksman & Sidney A. Shapiro, Improving Regulation Through Incremental Adjustment, 52 KAN. L. REV. 1179, 1187 (2004) (providing examples of five statutes that allow federal agencies flexibility to adjust the application of the statutes at the "back end"). Undoubtedly the most discussed of such mechanisms, at least in the adaptation-through-experimentation literature, are the provisions for Habitat Conservation Plans (HCPs) under the Federal Endangered Species Act.
269. See, e.g., David A. Dana, The New "Contractarian"Paradigm in Environmental Regulation, 2000 U. ILL. L. REV. 35, 38-39 (discussing the origin and purpose of HCPs);
270. Doremus, supra note 121, at 68-74 (discussing the history and application of HCPs);
271. Donald C. Baur & Karen L. Donovan, The No Surprises Policy: Contracts 101 Meets the Endangered Species Act, 27 ENVTL. L. 767, 767-89 (discussing the qualities of HCPs).
272. Karkkainen, supra note 9, at 967. To illustrate such default rules, Professor Karkkainen points to the Federal Endangered Species Act's "incidental take" permits, by which land developers who implement federally approved HCPs can avoid the Act's strict regulatory default provision prohibiting private landowners from "taking" the habitat of listed species." Id at 970-75.
273. See, e.g., Joel A. Mintz, Some Thoughts on the Merits of Pragmatism as a Guide to Environmental Protection, 31 B.C. ENVTL. AFF. L. REV. 1, 1-13 (2004) (noting the resurgence of pragmatism in legal thought and also noting difference among different schools of pragmatic philosophy).
274. See, e.g., Jamie A. Grodsky, The Paradox of (Eco) pragmatism, 87 MINN. L. REV. 1037, 1046 (2003) ("[T]he political process itself may exhibit many attributes of pragmatism-in particular, a reliance on experimentation and feedback as an approach to problem solving . . . .");
275. Mintz, supra note 166, at 5 (finding that pragmatism emphasizes experimentation among other values);
276. Volkman, supra note 121, at 739-55 ("Adaptive management does not call just for experimentation, but for experimentation that generates a measurable response.").
277. See, e.g., Doremus, supra note 121, at 52 ("The essence of adaptive management . . . is simply 'learning by doing.'");
278. Farber, supra note 55, at 882 (asserting that institutions for eco-pragmatism will require careful design to allow for "flexible, experimental management");
279. Ana M. Parma et al., What Can Adaptive Management Do for Our Fish, Forests, Food, and Biodiversity?, 1 INTEGRATIVE BIOLOGY 16, 19 (1998) ("[A]daptive management consists of managing according to a plan by which decisions are made and modified as a function of what is known and learned about the system, including information about the effect of previous management actions.").
280. Doremus, supra note 121, at 52.
281. NAT'L RESEARCH COUNCIL, ADAPTIVE MANAGEMENT FOR WATER RESOURCES PROJECT PLANNING (2004).
282. The Panel was clear in establishing that adaptive management does not postpone action until "enough" is known, id. at 19, and that there must be some level of agreement among management objectives if the undertaking should even begin, id. at 24.
283. When possible, adaptive management envisions the simultaneous implementation of "two or more carefully monitored actions [that] can allow for rapid discrimination among competing models." Id. at 26.
284. The Panel was clear that adaptive management will not achieve improved policymaking unless there is a "mechanism to integrate knowledge gained in monitoring into management actions" and "the political will to act upon knowledge gained from monitoring." Id. at 27.
285. The Panel stressed that, precisely because adaptive management was intended to operate in areas of high uncertainty, "complete or perfect . . . models . . . [would] not need to be crafted in order to support decisions." Id. at 25.
286. The Panel emphasized that "[m]onitoring systems should be an integral part of program design at the outset and not simply added post hoc after implementation." Id. at 26.
287. Id. at 22.
288. Id. at 24.
289. Id. at 22.
290. Id. at 24.
291. See supra notes 125-133 and accompanying text.
292. Proponents of adaptive regulation do, however, allude regularly to complexity theory for general support. See, e.g., Lee P. Breckinridge, Nonprofit Environmental Organizations and the Restructuring of Institutions for Ecosystem Management, 25 ECOL. L.Q. 692, 703 n.32 (1999) (citing to the literature on complexity theory as relevant to institutions for collaborative governance);
293. Jon Cannon, Choices and Institutions in Watershed Management, 25 WM. & MARY ENVTL. L & POL'Y REV. 379, 382 & n. 16 (2000) (noting the importance of underlying adaptability in complex adaptive systems to institutions for collaborative governance);
294. Emison, supra note 97, at 167 (identifying the need to model environmental management institutions themselves as complex adaptive systems);
295. Farber, supra note 55, at 880 (making the case for pragmatism in part because of the nature of "complex dynamic systems").
296. See FALKENAUER, supra note 126, at 45-53 (describing strategies for the selection of fitness).
297. Id. at 29-30.
298. See Cary Coglianese & Lori Snyder Bennear, Evaluating Environmental Policies, 47 ENVIRONMENT (forthcoming 2005) (manuscript at 2, on file with the Duke Law Journal) (noting that "program evaluation research has been remarkably scarce").
299. Id. (manuscript at 15).
300. See Doremus, supra note 121, at 82 (claiming that "[m]onitoring data are likely to be ambiguous, difficult to interpret, and at the frontiers of scientific knowledge . . . . [and] disagreement among the experts within the agency[] is likely to exacerbate the tendency to interpret data according to political, rather than scientific, signals").
301. See generally Donald T. Hornstein, Accounting for Science: The Independence of Public Research in the New, Subterranean Administrative Law, 66 LAW & CONTEMP. PROBS. 227, 228 (Fall 2003) (discussing new features in administrative law, the Shelby Amendment and Data Quality Act, as "a new subterranean, battleground . . . in which the scent of future regulation is caught by stakeholders who then battle to shape the scientific facts on which future regulation may be based").
302. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385, 1420 (1992).
303. See, e.g., NAT'L RESEARCH COUNCIL, supra note 170, at 26-27 (describing the role of experimentation in adaptive management).
304. See id. at 25-27 (noting that adaptive management is intended to operate in areas of high uncertainty in which there is a mechanism for integrating knowledge gained from monitoring into management actions).
305. This insight was applied to courts in Hadfield, supra note 45, at 593-94, which concluded that the greater a court's confidence that its prior rule had value in preventing harm, the more heavily it will discount relaxing that rule to gather information that might be helpful in designing a better one.
306. See id. (concluding that courts would similarly discount the value of experimentation in the development of common-law doctrine).
307. See generally Volkman, supra note 121 (discussing the case history of adaptive management on the Columbia River).
308. Doremus, supra note 121, at 67.
309. See, e.g., Fred Bosselman, A Role for State Planning: Intergenerational Equity and Adaptive Management, 12 J.L. & PUB. POL'Y 311, 320 (2001) ("The growing support for adaptive management as a planning system is a reaction to our increasing recognition that we are living in an unstable environment.");
310. Davidson & Geu, supra note 8, at 818 n.7 (citing literature on adaptive management);
311. Farber, supra note 20, at 148 ("Adaptive management can prevent the worst consequences of a power law from being realized.");
312. Karkkainen, supra note 9, at 943 ("Conservation ecologists and natural resource managers assert that integrated management of complex ecosystems requires an iterative and adaptive management approach.");
313. Wiener, supra note 97, at 21-22 (discussing interest in adaptive management);
314. see also Freeman, supra note 8, at 22 (noting that collaborative governance is supported in part because of its advantages under conditions of uncertainty involving continuous monitoring and evaluation);
315. Karkkainen, supra note 122, at 193 (supporting collaborative governance in part to respond to underlying dynamism and uncertainty in ecosystems).
316. See, e.g., STEFAN H. THOMKE, EXPERIMENTATION MATTERS 4, 10-14 (2003) (noting that "experimentation is not an isolated phenomenon but part of a larger organizational effort toward innovation" and suggesting six design principles to guide successful experimentation programs).
317. See Doremus, supra note 121, at 88 ("Adaptive management can be used as a smokescreen to conceal political accommodations that sacrifice the protection of species or natural systems.").
318. Of course, attention to real-world conditions will require more than attention to decisional strategies designed to provide good information and opportunities to learn. Administrative law involves more than simply reaching substantive results. It also reflects critical political values-accountability, transparency, and fairness. Therefore, even coherently designed adaptive regulatory structures will challenge administrative law. For example, as a matter of basic political legitimacy, to what extent may an agency with the statutory obligation to take action choose instead a program self-consciously designed to be experimental? Are agency policy choices "final" for purposes of judicial review when regulators may see such choices merely as adjusting a variable in an overarching program of experimental probing? If judicial review is available, what should be its scope? How is the public to gather information and participate in an agency's program of policy experimentation and adaptation, especially those members of the public who may see in the agency's experimental approach a transformation of their own status from regulatory beneficiary to guinea pig? Questions such as these are beyond the focus on this Article but are plainly noteworthy.
319. See, e.g., Freeman, supra note 8, at 6 (arguing that parties need to share responsibility for policymaking);
320. Karkkainen, supra note 122, at 238 (noting that participation is a deeper process than the term "stakeholder" involvement suggests, and arguing for such deep participatory involvement).
321. NAT'L RESEARCH COUNCIL, supra note 170, at 24
322. (quoting Kai. N. Lee, Appraising Adaptive Management, 3 CONSERVATION ECOLOGY Art. 3, Dec. 1999, at http://www.ecologyandsociety.org/vol3/iss2/art3).
323. Freeman, supra note 8, at 23.
324. Id. at 23-24.
325. Id. at 27-29.
326. The Federal Occupational Health and Safety Administration (OSHA), for example, implemented in the early 1990s a Voluntary Protection Program whereby firms with strong safety records were exempted from regular agency inspection and given primary responsibility for monitoring compliance with OSHA regulations. Clifford Rechtschaffen, Deterrence vs. Cooperation and the Evolving Theory of Environmental Enforcement, 71 S. CAL. L. REV. 1181, 1209-10 (1998). In 1995, the Federal Environmental Protection Agency (EPA) adopted incentives for self-policing designed to reduce penalties for firms that discover, report, and correct regulatory violations. Incentives for Self Policing; Discovery, Disclosure, Correction and Prevention of Violations, 60 Fed. Reg. 66,706, 66,711-66 (Dec. 22, 1995). EPA also began a voluntary program, known as the "33/50 program," to induce firms to reduce the emissions of toxic chemicals by 33 percent in a first phase and by 50 percent in a second phase.
327. Arora Seema & Timothy N. Carson, An Experiment in Voluntary Environmental Regulation: Participation in EPA's 33/50 Program, 28 J. ENVTL. ECON. & MGMT. 271, 271 (1995). More generally, the Federal Sentencing Guidelines reward corporations for postoffense cooperation.
328. William S. Laufer, Corporate Prosecution, Cooperation, and the Trading of Favors, 87 IOWA L. REV. 643, 644-45 (2002).
329. In addition to the habitat-conservation-plan program under the Endangered Species Act, see supra note 164, such efforts would include the encouragement of regulatory negotiation (so-called "regneg") by which stakeholders play a significant role in the development of agency regulations,
330. Freeman, supra note 8, at 36-55, as well as such "place-based" efforts as the multistate Chesapeake Bay Program to address nonpoint pollution,
331. Daniel A. Farber, Triangulating the Future of Reinvention: Three Emerging Models of Environmental Protection, 2000 U. ILL. L. REV. 61, 72-73, and the multistakehol der CALFED process for managing water and ecological resources in the Bay-Delta system near San Francisco,
332. Farber & Freeman, supra note 120, at 838.
333. See, e.g., Rechtschaffen, supra note 203, at 1211 ("In the end, in the absence of more supporting evidence, those advocating a wholesale departure from a deterrence-based approach bear some burden of persuasion . . . .");
334. Mark Seidenfeld, Empowering Stakeholders: Limits on Collaboration as the Basis for Flexible Regulation, 41 WM. & MARY L. REV. 411, 500 (2000) (noting potential problems with empowering stakeholders as a means of creating collaborative government);
335. Sidney A. Shapiro, Outsourcing Government Regulation, 53 DUKE L.J. 389, 426-29 (2003) (noting how firms' opportunistic behavior can increase agency transaction costs in monitoring firm self-regulation);
336. Rena I. Steinzor, Reinventing Environmental Regulation: The Dangerous Journey from Command to Self-Control, 22 HARV. ENVTL. L. REV. 103, 201 (1998) (noting that genuine efforts to "reinvent" environmental regulation has not been shown to be supported by firms' self interest);
337. Stephen M. Nickelsburg, Note, Mere Volunteers? The Promise and Limits of Community-Based Environmental Protection, 84 VA. L. REV. 1371, 1382-89 (1998) (using bargaining theory to identify potential obstacles to agreement).
338. E.g., Shapiro, supra note 205, at 426-429;
339. Nickelsburg, supra note 205, at 1382-89.
340. Karkkainen, supra note 122, at 226.
341. Id.
342. See Karkkainen, supra note 9, at 966 n.75 (citing works that discuss the possibilities for collaboration under evolutionary game theory).
343. See ROBERT AXELROD, THE EVOLUTION OF COOPERATION 19-20 (1984) (introducing the idea that cooperation can emerge in an iterated Prisoner's Dilemma).
344. See generally DOUGLAS G. BAIRD ET AL., GAME THEORY AND THE LAW 6-11 (1994);
345. SHAUN P. HARGREAVES HEAP & YANIS VAROUFAKIS, GAME THEORY 41-79 (1995).
346. For an excellent history of the development of the Prisoner's Dilemma, see WILLIAM POUNDSTONE, PRISONER'S DILEMMA (1992). The legal literature on the Prisoner's Dilemma is large and varied.
347. See, e.g., Thomas W. Merrill, Pluralism, The Prisoner's Dilemma, and the Behavior of the Independent Judiciary, 88 NW. U. L. REV. 396 (1998);
348. John W. Lam, Note, The Prisoner's Dilemma: Reassessment of Borrero v. Aljets and the Indefinite Detention of Inadmissible Aliens, 37 LOY. L.A. L. REV. 1297 (2004);
349. Daniel P. Petrov, Note, Prisoners No More: State Investment Relocation Incentives and the Prisoners' Dilemma, 33 CASE W. RES. J. INT'L L. 71 (2001);
350. Neil S. Siegel, Comment, State Sovereign Immunity and Stare Decisis: Solving the Prisoners' Dilemma Within the Court, 89 CAL. L. REV. 1165 (2001).
351. POUNDSTONE, supra note 212, at 118-20. In the original form from which the prisoner's dilemma gets its name, Two suspects are taken into custody and separated. The district attorney is certain that they are guilty of a specific crime, but he does not have adequate evidence to convict them at trial. He points out to each prisoner that each has two alternatives: to confess to the crime the police are sure they have done, or not to confess. If they both do not confess, then . . . they will both receive minor punishment [based on evidence that the police do have of more minor offenses]; if they both confess [to the major offense] they will be prosecuted, but he will recommend less than the most severe sentence; but if one confesses and the other does not, then the confessor will receive lenient treatment for turning state's evidence whereas the latter will get 'the book' slapped at him.
352. R. DUNCAN LUCE & HOWARD RAIFFA, GAMES AND DECISIONS: INTRODUCTION AND CRITICAL SURVEY 95 (1957).
353. See supra note 208 and accompanying text.
354. Garrett Hardin, The Tragedy of the Commons, 62 SCIENCE 1243, 1244 (1968).
355. ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION 2-5 (1990).
356. A player is tempted to defect either to seize the cheater's payoff (if the other cooperates) or to avoid the sucker's payoff (if the other defects). The resulting mutual defection leaves both worse off and suggests that government regulation is justified to rescue the unregulated marketplace from these poor outcomes.
357. See OSTROM, supra note 216, at 8-10.
358. See id. at 9-10 (representing Leviathan by assuming "that the central authority decides to impose a penalty of 2 profit units on anyone who is considered by that authority to be using a defect strategy").
359. Id. at 10. A would-be cooperator who would otherwise fear the sucker's payoff will not defect defensively because Leviathan's sanction for defectors (-2) is worse than the sucker's payoff itself (-1); conversely, a would-be defector seeking the cheater's payoff also will not defect because Leviathan's punishment for defection reduces the cheater's payoff from 11 to 9 and because the reward for cooperation (10) is greater than the newly adjusted cheater's payoff (9). Id.
360. See AXELROD, supra note 11, at 4 ("The main alternative to the assumption of rational choice is some form of adaptive behavior.").
361. AXELROD, supra note 210.
362. See, e.g., Russell B. Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law & Economics, 88 CAL. L. REV. 1051, 1138 n.355 (2000);
363. Eric A. Posner, The Regulation of Groups: The Influence of Legal and Nonlegal Sanctions on Collective Action, 63 U. CHI. L. REV. 133, 139 n. 12 (1996);
364. Kenneth A. Dursht, Note, From Containment to Cooperation: Collective Action and the Wassenaar Arrangement, 19 CARDOZO L. REV. 1079, 1093 n.96 (1997);
365. see also William H. Rodgers, Jr., Where Environmental Law and Biology Meet: Of Pandas' Thumbs, Statutory Sleepers, and Effective Law, 65 U. COLO. L. REV. 25, 41-42 (1993) (noting that Professor Axelrod's Evolution of Cooperation has been cited in more than one hundred law review articles).
366. See Robert Hoffman, Twenty Years On: The Evolution of Cooperation Revisited, 3(2) J. ARTIFICIAL SOCIETIES & SOC. SIMULATION para. 1.2 (2000), at http://www.soc.surrey.ac.uk/JASS/3/2/forum/1.html ("According to the Social Science Citation Index, [Axelrod's] work had been quoted more than one thousand times by 1992 and [has been cited] more than 2500 times to date." (citations omitted)).
367. See AXELROD, supra note 210, at 30-31 (noting that the tournament paired strategies against each other for two hundred moves and that the payoffs were "the familiar" ones taken from the Prisoner's Dilemma).
368. Id. at 30.
369. Id. at 31;
370. AXELROD, supra note 11, at 16.
371. See AXELROD, supra note 11, at 16 (describing the experimental design of his original experiment).
372. See, e.g., Clifford Rechtschaffen, Enforcing the Clean Water Act in the Twenty-First Century: Harnessing the Power of the Public Spotlight 1 (Center for Progressive Reg., White Paper No. 404, 2004), available at http://www. progressiveregulation.org/articles/Enforcement_WP_Oct_2004.pdf (reporting survey results showing that state enforcement of the Clean Water Act is "woefully inadequate").
373. States Slack Off on Environmental Enforcement, OMB WATCH, Feb. 20, 2002, at http://www.ombwatch.org/article/articleprint/413/-1/235/ (on file with the Duke Law Journal) (internal quotations omitted).
374. Rechtschaffen, supra note 229, at 1.
375. See Clifford Rechtschaffen, Competing Visions: EPA and the States Battle for the Future of Environmental Enforcement, 30 Envtl. L. Rep. (Envtl. L. Inst.) 10803, 10809 n.60 (2000) (reporting on an EPA study of state enforcement under the Federal Resource Conservation and Recovery Act).
376. See Rechtschaffen, supra note 229, at 1, 17 (discussing state capabilities for Clean Water Act enforcement).
377. Id. at 1.
378. Id. at 1, 3.
379. See IAN AYRES & JOHN BRAITHWAITE, RESPONSIVE REGULATION: TRANSCENDING THE DEREGULATION DEBATE 61 (1992) (modeling conditions under which agencies respond to evasion by firms with a "rule-oriented" deterrence posture).
380. Id. at 60-61 (describing agency behavior as involving "legalistic battles").
381. See id. (reproducing the Scholz enforcement dilemma).
382. Id. at 61 (describing a situation in which "the firm may cooperate by developing and implementing innovative pollution-saving production techniques only to have the agency insist later that the legally required scrubber be installed as well"
383. (quoting John T. Scholz, Deterrence, Cooperation, and the Ecology of Regulatory Enforcement, 18 LAW & SOC'Y REV. 179, 187 (1984))).
384. Id. at 62.
385. See id. at 60-61 (labeling the cooperate-cooperate outcome as "voluntary compliance").
386. Id.
387. See id. at 56 ("This then is the policy nut we seek to crack. How do we secure the advantages of the evolution of cooperation while averting the evolution of capture and corruption?").
388. Id. at 63-64.
389. Id. at 71-98.
390. See Rechtschaffen, supra note 203, at 1267 ("In return for this freedom [to participate in a program such as EPA's "Project XL"], regulated entities should be held closely accountable for their promises.").
391. Karkkainen, supra note 9, at 965-69.
392. See AXELROD & COHEN, supra note 14;
393. AXELROD, supra note 11.
394. AXELROD & COHEN, supra note 14, at 10-11;
395. AXELROD, supra note 11, at 55.
396. AXELROD, supra note 11, at 23 (finding, by using a genetic algorithm's ability to select successful behaviors over time, that "[a]s the reciprocators do well, they spread in the population, resulting in more and more cooperation and greater and greater effectiveness");
397. see also Randal C. Picker, Simple Games in a Complex World: A Generative Approach to the Adoption of Norms, 64 U. CHI. L. REV. 1225, 1226 (1997) (noting possible circumstances under which one norm will drive out a second).
398. Compare Raymond J. Burby, Coercive Versus Cooperative Pollution Control: Comparative Study of State Programs to Reduce Erosion and Sedimentation Pollution in Urban Areas, 19 ENVTL. MGMT. 359, 368 (1995) (finding that cooperative-only strategies by regulatory agencies were less effective than traditional deterrence strategies),
399. and Cherly E. Wasserman, Federal Enforcement: Theory and Practice, in INNOVATION IN ENVIRONMENTAL POLICY 21, 30 (T.H. Pietenberg ed., 1992) (finding that the EPA and the states were unsuccessful in bringing municipalities into compliance with the Clean Water Act using solely a compliance promotion approach),
400. with Douglas C. Michael, Cooperative Implementation of Federal Regulations, 13 YALE J. ON REG. 535, 559-60 (1996) (finding benefits from the Voluntary Protection Program of the Federal Occupational Health and Safety Administration)
401. and John T. Scholz, Cooperative Regulatory Enforcement and the Politics of Administrative Effectiveness, 85 AM. POL. SCI. REV. 115, 120, 128 (1991) (finding that increased cooperation by regulatory agencies can be measured by lower injury rates among workers).
402. See generally Rechtschaffen, supra note 229, at 15-20 nn.96-150 (collecting empirical studies and anecdotal evidence).
403. HOLLAND, supra note 15, at 2.