Commodifying Environmental Resources

grand canyonMany people value certain environmental resources even if they have never actually visited or “used” those resources.  For example, a person might assign what economists call “nonuse values” to the Grand Canyon, the Great Barrier Reef, or a particular endangered animal species even if she has never hiked the Canyon, gone scuba diving on the Reef, or personally encountered that endangered species.   Some scholars have categorized nonuse values into three types: the “option value” is the value a person places on preserving an environmental resource so that she has the option of using it in the future; the “bequest value” is the value the person places on being able to preserve the resource for the enjoyment of future generations; and the “existence value” is the value the person places on the mere knowledge that the resource exists. 

Consensus has proved elusive on whether and how nonuse values should be considered in cost-benefit analysis of new environmental projects or regulations.  In economic terms, such valuation will have the positive effect of incentivizing people not to destroy the resource.  But economists have struggled to assign actual dollar values suitable for use in such a calculus.  One widely used but controversial method called “contingent valuation” involves the use of surveys to find out what individuals would pay to preserve environmental resources.  Survey results are then averaged and generalized across entire populations.  The design of the survey questions is controversial, and the results are often rigidly contested or even rejected out of hand.  One famous CV study estimated the nonuse harm of the Exxon Valdez disaster at between two and eight billion dollars. 

Quite apart from the raging debate over the validity of contingent valuation, other scholars are waging a separate struggle over whether it is harmful for society to “commodify” or “commoditize” certain things. 

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The Real Value in Appellate Oral Argument

moot-court_trimmedDoes appellate oral argument still matter?  In some courts with exceptionally heavy caseloads, such as the Wisconsin Court of Appeals, oral argument is vanishingly rare.  But even in courts that regularly hold oral argument, some observers claim that it has devolved into a dog-and-pony show unlikely to move judges who have already reached unspoken decisions based on often-voluminous briefing.

It may surprise some practitioners to learn that certain appellate courts have even taken to issuing “tentative” opinions prior to oral argument.  Certain branches of the California appellate courts have been among the leaders in this regard; the web page for the 4th District, 2nd Division claims that “the justices do not sense that their deliberations are any less objective than before the tentative opinion program began” and that “counsel almost unanimously praise the program.”

Proponents of the practice contend that it has several distinct advantages. 

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The “Statisticization” of Death: From Stalin to “The Box”

stalinWhile discussing with other Allied leaders the potential deaths of tens of thousands of Allied soldiers during the planned invasion of France during World War II, former Soviet leader Joseph Stalin is said to have remarked, “A single death is a tragedy; the death of thousands is a statistic.”  Whether or not the quote is apocryphal (some attribute it to the writer Erich Maria Remarque), it seems to me that we increasingly find ourselves in the perhaps unenviable position of revealing more than a kernel of truth to the sentiment.

Today, the “statisticization” of death has been reduced to a regulatory art form as part of analyses that agencies undertake to determine whether the cost of a regulation is justified by its benefits, including the number of lives it might save.  This procedure is championed by legal economists such as Cass Sunstein and Kip Viscusi, and the mathematics involved can be difficult to penetrate.  The density and abstraction of the calculations is probably for the better, because few of us could rationally and openly assign a numerical value to our own life or to the lives of our friends and family.  Viewing multiple lives in the statistical abstract, as Stalin may have done, perhaps seems to us less stomach-turning.  This concept is really nothing new: over two hundred years ago, Adam Smith theorized that sympathy was attenuated by distance.

I am not uncomfortable with cost-benefit analysis as a regulatory instrument, so long as it remains one tool in the regulator’s box and not a be-all, end-all directive that cannot be countermanded. 

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