SUSTAINABILITY, DISTRIBUTION, AND THE MACROECONOMIC ANALYSIS OF LAW DOUGLAS H. KYSAR* Abstract: Legal economic analysis has traditionally focused on the application of microeconomic theory to questions of legal import. Scholars have generally regarded macroeconomic effects of legal rules as lying beyond the purview of the legal decisiomnaker's jurisdiction. This Article argues that such exclusion of macroeconomic subject matter from legal analysis may rest on a scientifically erroneous view of - the economic process. The conventional understanding of the economic process presumes an unlimited supply of material inputs and an infinite natural capacity to absorb waste outputs. Fundamental scientific principles suggest that this understanding is flawed. The economic process must necessarily be limited in scale by the capacity of the ecological superstructure to sustain it. Thus, in addition td the efficient allocation of resources, legal economic analysis also should be concerned with the sustainable maintenance of scale. Consideration of scale effects by legal decisionmakers cannot be safely ignored in the way that distributive effects have been, given that no political mechanism analogous to the tax and transfer system exists to regulate the scale of the macroeconomy. INTRODUCTION "[T]he true rationalism must always transcend itself by recurrence to the concrete in search of inspiration. A self-satisfied rationalism is in effect a form of anti-rationalism. It means an arbitrary halt at a particular set of abstractions."1 * Assistant Professor of Law, Cornell University. BA, 1995, Indiana University. ID., 1998, Harvard University. For helpful continents on earlier drafts, I thank Robert Bone, Ronald Cass, Herman Daly, Kenneth Dau-Schmidt, Michael Harper, slot' Hanson, Lisa Heinzerling, Keith Hylton, James Salzman., Theodore Sims, and attendees at the Environ- mental Law Workshop at the Georgetown, University Law Center and the Feminism, Cor- porations, and Capitalism Workshop at the Baldy Center for Law and Social Policy of SUNY-Buffalo. l especially thank Jeffrey Rachlinski and Stewart Schwab for their generosity in providing extensive comments and discussing at length the issues addressed herein. All misjudgments, errors, and omissions arc my own. I ALERED NORM I WHITEHEAD, SCIENCE AND THE MODERN WORLD 288-89 (1925). 2 Boston College Law Review [Vol. 43:1 In January of 1999, geologist Peter Barrett from Victoria Univer- sity in Wellington, New Zealand, made a startling announcement at a gathering of international climate experts considering the effects of greenhouse emissions on global warming. 2 According to Barrett, the West Antarctic ice-sheet, which is approximately the size of Mexico and is currently grounded below sea level, was showing signs of be- coming unstable and potentially breaking away.3 Scientists have sus- pected since at least the mid-1990s that Antarctic ice-shelves, which float on the ocean surface and are attached to the grounded ice- sheets, are retreating at rapid rates.4 In early 1999, researchers at the University of Colorado at Boulder's National Snow and Ice Data Cen- ter and the British Antarctic Survey confirmed this hypothesis by us- ing satellite photos to identify a loss of nearly 3000 square kilometers from protective ice shelves around the Antarctic Peninsula in the last year alone.5 Compared to the total loss of only 7000 square kilometers in the previous fifty years, these latest fractures suggested that the 4.5 degree increase in mean temperature in Antarctica since the 1940s has had an escalating effect on glacial instability. 6 What Barrett found more troubling, however, is the relationship between the "full retreat" 7 of the ice-shelves and the crumbling of the West Antarctic ice-sheet. Melting ice-shelves have little net effect on sea levels because the shelves float on the ocean surface, displacing approximately the amount of water they contain. 8 Ice-sheets, on the other hand, threaten to substantially increase global sea levels if they melt—a prospect rendered more likely by the steady disappearance of surrounding ice-shelves. 9 Scientists estimate that complete melting of the West Antarctic ice-sheet could result in a six-meter rise in sea lev- els. 10 A rise of just one meter would affect 3% of the total land area of the planet, including such major cities as New York, London, and Bangkok, and as much as 30%. of the world's cropland." 2 See Grover Foley, The Threat of Rising Seas, 29 EcoLocasT 76, 76 (1999). 3 See id. 4 See id. 5 See Jim Kirksey, Warming Puts Antarctic Ice Shelves in Full Reheat, DENVER POST, Apr. 10, 1999, at A27. C Seeid. ' Id. A See Foley, supra note 2, at 77 9 See id. '° See " See id. 20011 Macroeconomic Analysis of Law 3 Of course, there is much uncertainty over this prognosis and, in- deed, some debate over whether the observed phenomena are significantly correlated with greenhouse emissions. Nevertheless, the hypothetical disintegration of the West Antarctic ice-sheet reveals many ways in which current global market mechanisms struggle to respond to ecological crises. Assuming that the next century will see the unhinging of the West Antarctic ice-sheet amidst unprecedented climate change, how would the market react? Because no private en- tity "owns" Antarctica, no property rights-holder has a financial incen- tive to prevent its steady disappearance. Nor would privatization of Antarctica alleviate this dilemma given that the instrumental value of the frozen land mass (climate stabilization) accrues to all of humanity, not simply its "owner." 12 Or, put another way, because the two billion people who live within one hundred kilometers of a vulnerable coast- line" face nearly insurmountable problems of coordination and im- perfect information, collective market action to reverse global warm- ing trends is unlikely. Indeed, because the people likely to face the most severe consequences of greenhouse emissions have yet to be born, few market actors currently exist to object out of that most powerful economic force: self-interest. Political action is also hindered by the current market ethos. Be- cause present beneficiaries of the market's failure to internalize the costs of global warming will invest their rents in opposition to any ef- forts to force internalization, proponents of such market-corrective changes face a daunting political battle. Also, because attempts to price the environmental costs of global atmospheric change are sci- entifically complex and ethically controversial, market-corrective poli- cies, even when enacted, are imperfect economic instruments. Finally, given that the global warming problem raises issues of international distributive equity that cannot be resolved by an increase in global economic activity (which, at least under current industrial practices, would exacerbate the global warming problem), developed nations accustomed to economic growth as a response to all questions of eq- 12 "Free market environmentalists" advocate the creation and clarification of property rights as a means of overcoming a variety of environmental problems. See, e.g., Terry L. AIIIICrS011 & Donald R. Leal, Free Market Environmentalism: Hindsight and Foursight, 8 Cox- NELL J.L. & Pun. Pot.'v 111,112 (1998). However, they do not typically advocate such solu- tions with respect to environmental goods and services that cannot he narrowly defined or easily withheld from free-riders. See id. at 128-30. t3 Platt McGinn, Charting a New Cowie for Oceans, in STATE OF TIM WoRtn 78, 78 (Lester R. Brown et al. eds., 1999). 4 Boston College Law Review [Vol. 43:1 uity must undergo nothing short of a political and cultural transfor- mation—a prospect rendered dim by the continued refusal of the United States to adopt the Kyoto Protocol." For these and other reasons, conventional economic policy struggles to respond to ecological crises such as the problem of global warming. This Article attempts to locate the cause of that struggle in the conceptual underpinnings of macroeconomic theory. Put simply, standard macroeconomics utilizes assumptions about the relationship between human and ecological activity that may well lack a sound sci- entific basis. Moreover, once alternative assumptions are put into place, the course of macroeconomic theory shifts in ways that carry dramatic implications for legal economic analysis. Most notably, the revised theory raises questions about the justification generally given for excluding macroeconomic subject matter from the study of law and economics. Since its inception, law and economics has attracted criticism from scholars who find its assumptions unrealistic.15 For a long time, this response was purely critical in form, exposing as flawed the be- havioral assumptions of law and economics without proposing corre- sponding changes to increase its veracity. In recent years, however, a group of scholars has devoted considerable insight and energy to the project of behavioral law and economics. 16 This emerging subdisci- " The Kyoto Protdcol is an agreement reached by member nations of the United Na- tions Framework Convention on Climate Change to reduce global emissions of carbon dioxide and other greenhouse gases. See Third Conference of the Parties (COP-3) to the United Nations Framework Convention 011 Climate Change, Dec. 11, 1997, 37 I.L.M. 22. AlthOugh President Clinton signed the treaty in 1997, the United States Senate failed to ratify it and the Bush Administration later refuted U.S. agreement with the treaty's princi- ples. 15 See, e.g., Mark Kelman, Choice and Utility, 1979 Wis. L. REV. 769 (1979); Mark Kel- man, Consumption Thew); Production Theory, and Ideology in the Goose Theorem, 52 S. CAL. L. REV. 669 (1979); Duncan Kennedy, Cost-Benefit Analysis of Entitlement Problems: A Critique, 33 STAN. L. REV. 387 (1981); Arthur Allen Leff, Economic Analysis of Law: Some Realism About Nominalism, 60 V. L. REV. 451 (1974); Richard H. Hides & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Polities, 90 Comm. L. REv. 2121 (1990); Donald H. Regan, The Problem of Social Cost Revisited, 15 ..11.