General Design Principles for Resilience and Adaptive
Transcript Of General Design Principles for Resilience and Adaptive
NORTH CAROLINA LAW REVIEW
Volume 89 Number 5 Adaptation and Resiliency in Legal Systems
Article 3
6-1-2011
General Design Principles for Resilience and Adaptive Capacity in Legal Systems - With Applications to Climate Change Adaptation
J. B. Ruhl
Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons
Recommended Citation
J. B. Ruhl, General Design Principles for Resilience and Adaptive Capacity in Legal Systems - With Applications to Climate Change Adaptation, 89 N.C. L. Rev. 1373 (2011). Available at: http://scholarship.law.unc.edu/nclr/vol89/iss5/3
This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]
GENERAL DESIGN PRINCIPLES FOR RESILIENCE AND ADAPTIVE CAPACITY IN LEGAL SYSTEMS - WITH APPLICATIONS TO
CLIMATE CHANGE ADAPTATION'
J.B. Ruhl"
As climate change begins to disruptthe settled expectations of humans, demands on the legal system will be intense and long term. Is the law up to the task? If it is, it will be at least in part because the legal system proves to be resilientand adaptive. This Article therefore explores how to think about designing legal instruments and institutions now with confidence they will be resilient and adaptive to looming problems as massive, variable, and long term in scale as climate change. Drawing from the body of resiliencetheory forged in naturaland socialsciences, this Article is the first to synthesize resilience theory in a framework relevant to lawyers and explore the general design principles it suggests for legalsystems. The Article opens by examining resilience-whatit is and how to design for it in legal systems. It explores the normative dimensions of resilience and makes important distinctions between resilience of legal systems, resilience of laws they produce, and resilience of the other social and natural systems law addresses. Similarly, this Article examines the theoretical context and design principles for adaptive capacity, focusing on adaptive management theory as an example for legal design. Fusing these two concepts, this Article suggests applicationsof these generalprinciplesto the challenge of designing law for respondingto climate change, arguingthat climate change adaptation law should draw from theories of adaptive management, dynamic federalism, new governance, and transgovernmentalnetworks.
INTRODUCTION I. RESILIENCE
.................................... ..................................
..... 1374
..... 1375
* @ 2011 J.B. Ruhl. ** Allen Chair in Law, Vanderbilt University Law School. I am thankful to the North Carolina Law Review for inviting me to participate in their 2010 symposium, Adaptation and Resiliency in Legal Systems; to the symposium participants; to Robin Craig and Ahjond Garmestani for helpful comments on drafts; and to my research assistant, Pete Matthews, Florida State University College of Law Class of 2012. Please direct any
comments or questions to [email protected]
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A. Defining System Resilience
............................1. 375
B. When Is a Legal System Resilient? ........... ..... 1379
C. Designingfor ResilientLegal Systems .................... 1385
II. ADAPTIVE CAPACITY
.......................
..... 1388
A. DefiningSystem Adaptive Capacity. ................ 1388
B. When Is a Legal System Adaptive? ........... ..... 1389
C. Designingfor Adaptive Law..........
.... ...... 1392
III. ENVISIONING RESILIENT AND ADAPTIVE CLIMATE CHANGE
ADAPTATION LAW .........................
..... 1393
CONCLUSION
......................................... 1402
INTRODUCTION
Climate change soon will begin to disrupt the settled expectations of humans. Rising sea levels, persistent drought where water has been abundant, longer growing seasons in some areas and invasive species elsewhere-the list of anticipated changes that will play out over the landscape for decades is long, and many inevitably will give rise to the need to formulate new policies and resolve new kinds of disputes.' Demands on the legal system will be intense and long term, but is the law up to the task? If it is, it will be at least in part because the legal system proves to be resilientand adaptive.
These two properties-resilience and adaptive capacity-have become central themes for researchers studying a wide array of ecological, social-ecological, and social systems under the banner of resilience theory.2 More broadly, they are important focal points of the science of complex adaptive systems as it has been applied in natural and social sciences.3 Legal scholars recently have begun to consider how these properties and the research from other disciplines might inform the design of laws for discrete legal application,' but no
1. For summaries of the legal and policy issues likely to come with climate change, including reviews and syntheses of science and law literature on the topic, see generally Robin Kundis Craig, "StationarityIs Dead"- Long Live Transformation:Five Principles for Climate Change Adaptation Law, 34 HARV. ENvTL. L. REv. 9 (2010); Robert L. Glicksman, Ecosystem Resilience to Disruptions Linked to Global Climate Change: An Adaptive Approach to FederalLand Management, 87 NEB. L. REv. 833 (2009); J.B. Ruhl, Climate Change Adaptation and the Structural Transformation of Environmental Law, 40 ENVTL. L. 363 (2010).
2. See, e.g., PANARCHY: UNDERSTANDING TRANSFORMATIONS IN HUMAN AND NATURAL SYSTEMS passim (Lance H. Gunderson & C.S. Holling eds., 2002).
3. See JOHN H. MILLER & SCoyr E. PAGE, COMPLEX ADAPTIVE SYSTEMS: AN INTRODUCTION TO COMPUTATIONAL MODELS OF SOCIAL LIFE 9-10, 27-31, 139-40, 236-37 (2007) (using the term "robustness" in the same manner as resilience).
4. See generally Barbara Cosens, Transboundary River Governance in the Face of Uncertainty: Resilience Theory and the ColumbiaRiver Treaty, 30 J. LAND RESOURCES &
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legal scholar has undertaken a broad theoretical treatment applying resilience theory to legal systems.
Drawing from the emerging research and scholarship on resilience theory, this Article is the first to synthesize resilience theory in a framework relevant to lawyers and explore general design principles for resilience and adaptive capacity in legal systems. Part I examines resilience-what it is and how to design for it in legal systems. It also addresses the normative dimensions of resilience theory and makes important*distinctions between resilience of legal systems, resilience of laws they produce, and resilience of the other social and natural systems law addresses. Part II provides the theoretical context and design principles for adaptive capacity, focusing on adaptive management theory as an example for legal design. Part III suggests applications of these general principles to the challenge of designing law for responding to climate change; it argues that climate change adaptation law should draw from theories of adaptive management, dynamic federalism, new governance, and transgovernmental networks.
I. RESILIENCE
Who doesn't want to be resilient? The ability to bounce back from illness or other setbacks is admirable in people, but what does it mean for a social system to be resilient? Even more, how can we design a social system to be resilient? To probe those questions for purposes of legal design, the following subparts outline the foundational principles of resilience theory and apply them to the legal system context.
A. Defining System Resilience
Although there are numerous variations, a good working definition of resilience as used in natural and social sciences is "the capacity of a system to experience shocks while retaining essentially
ENVrL. L. 229 (2010) (applying resilience theory to the management of multijurisdictional watersheds); Pierre de Vries, The Resilience Principles: A Framework for New ICT Governance, 9 J. ON TELECOMM. & HIGH TECH. L. 137 (2011) (applying resilience theory to the telecommunications industry); J.B. Ruhl, Regulation by Adaptive Management-Is It Possible?, 7 MINN. J. L. SCI. & TECH. 21 (2005) (recommending the use of adaptive capacity theory in environmental regulation). One of the earliest uses of resilience theory in a legal context was by a philosopher studying the contrasts between the Platonic emphasis on stability and modernity's emphasis on dynamism. See Alicia Juarrero-Roqud, Fail-Safe Versus Safe-Fail: Suggestions Toward an Evolutionary Model of Justice, 69 TEX. L. REV. 1745 passim (1991).
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the same function, structure, feedbacks, and therefore identity."' One hallmark of system resilience thus is the capacity to maintain a high level of consistency of behavioral structure in the face of a dynamic environment of change. In 1973 theoretical ecologist C.S. Holling introduced the idea that natural and social systems exhibiting this capacity could be described as resilient.6 His model, as refined and applied over time,' seeks to explain how such systems tolerate disturbance without changing their basic structural identity.'
Resilience theory has coalesced around several key features of Holling's model. First, one feature of resilience is recovery-the time required for a system to return to an equilibrium or steady state following a disturbance.9 Holling refers to this type of resilience as engineering resilience in order to convey that it draws on reliability, efficiency, quality control, and similar strategies to pursue a single objective-return to the equilibrium state. 0
Engineering resilience is distinct from ecological resilience." Ecological resilience is measured by the amount or magnitude of disturbance a system can absorb without having its fundamental
5. Brian Walker et al., A Handful of Heuristics and Some Propositions for UnderstandingResilience in Social-Ecological Systems, ECOLOGY & SOC'Y (June 2006), http://www.ecologyandsociety.org/volll/issl/artl3/ES-2005-1530.pdf.
6. See generally C.S. Holling, Resilience and Stability of Ecological Systems, 4 ANN. REV. ECOLOGY & SYSTEMATICS 1 (1973) (outlining the theory).
7. For a comprehensive review of the current theory of system resilience, see C.S. Holling & Lance H. Gunderson, Resilience and Adaptive Cycles, in PANARCHY, supra note 2, at 25, 25-62. For more concise reviews, see generally Lance H. Gunderson, Ecological Resilience-In Theory and Application, 31 ANN. REV. ECOLOGY & SYSTEMATICS 425 (2000), focusing on ecological resilience, and C.S. Holling, Understanding the Complexity of Economic, Ecological, and Social Systems, 4 ECOSYSTEMS 390 (2001), examining resilience in a variety of natural and social system contexts. Although the roots of resilience theory are in biological ecology, its influence has spread throughout natural sciences and, more recently, into the social sciences, though not with entirely uncritical reception. See generally Fiona Miller et al., Resilience and Vulnerability: Complementary or Conflicting Concepts?, ECOLOGY & SOC'Y (Sept. 2010), http://www.ecologyandsociety.org/voll5/iss3/artl1/ES-2010-3378.pdf (examining criticisms of resilience theory generally). One source of tension has been how resilience theory meshes, or does not mesh, with concepts of system vulnerability forged in disciplines focused on geophysical sciences, political economy, and disaster response. See id. (exploring ways of harmonizing the two theoretical perspectives).
8. See Gunderson,supra note 7, at 426. 9. See Isabelle M. C6t6 & Emily S. Darling, Rethinking Ecosystem Resilience in the Faceof Climate Change, 8 PLOS BIOLOGY 1, 1 (2010), availableat http://www.plosbiology .org/article/fetchObjectAttachment.action?uri=info%3Adoi%2F10.1371%2Fjournal.pbio. 1000438&representation=PDF. 10. See Gunderson,supra note 7, at 426; Holling & Gunderson, supra note 7, at 27-28. 11. See Gunderson,supra note 7, at 426-27; Holling & Gunderson, supranote 7, at 28.
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behavioral structure redefined, 2 a property known as resistance.' In contrast to engineering resilience, ecological resilience relies on adjustments to system processes as the means of managing overall system integrity.14
Engineering resilience, which favors recovery as the design goal, and ecological resilience, which favors resistance as the design goal, thus are alike in that both concepts envision a system that has been pushed off of its equilibrium state by a disturbance." They differ, however, in terms of the mechanisms and strategies the system uses to avoid being pushed so far as to be functionally restructured. The engineering resilience strategy is to devote all system resources to staying near the equilibrium, the goal being to snap back.'" By contrast, the ecological resilience strategy accommodates the possibility of fluctuating within a basin of attraction to equilibrium, with the goal of avoiding "flips" from one structural state to another.
Resilience theorists use the heuristic of a ball in a bowl on a table to capture this distinction." Engineering resilience strategies can be represented by a ball at the bottom of a tall, narrow bowl, like a vase with steep sides; ecosystem resilience strategies produce a shallow, wide bowl, like a saucer with a wide surface. At rest, the balls in both bowls sit still at the bottom, at equilibrium. As the table is jiggled, the balls roll around, but they do not roll in the same way. The ball in the tall, narrow vase stays near the bottom and has quick recovery, while the ball in the shallow, wide saucer might roll all around and reach far from the bottom but resist spilling over the rim. The objective of resilience design is to keep the balls in the bowls, but one can imagine how different disturbances might produce different results between the two bowls. A strong wind might knock over the tall vase but not the shallow saucer. An earthquake might bounce the ball out of the shallow saucer but not out of the tall vase.
To translate that heuristic back into resilience theory terminology, the bowls represent the "basin of attraction" for the balls, 9 which represent the current system behavioral state. The
12. See Gunderson,supranote 7, at 426-27; Holling & Gunderson, supra note 7, at 28. 13. See C6t6 & Darling, supranote 9, at 1. 14. See Holling & Gunderson, supra note 7, at 28. 15. See Gunderson,supra note 7, at 426-27; Holling & Gunderson, supra note 7, at 27. 16. See Gunderson,supranote 7, at 426. 17. See id. at 427. 18. See id. 19. The terminology described in this paragraph is widely used in resilience and
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bottom of the bowl represents the "attractor" to the equilibrium state, whereas the form of the basin defines the "latitude" within which the system state can move before crossing a threshold which, if breached, makes recovery to the equilibrium state difficult or impossible. The wider the basin the greater the number of system states that can be experienced without crossing a threshold. The "precariousness" of the system defines how close the current state of the system is to such a threshold. To avoid reaching a high level of precariousness, engineering resilience strategies rely on strong attractors and limited latitude, whereas ecological resilience strategies tolerate weaker attractors in favor of more latitude.20
Another difference between the two strategies has to do with what resilience theory calls the response diversity of the system, which is "the diversity of responses to disturbance among species or actors contributing to the same function in the social-ecological system."21 Because it opens up options, response diversity enhances resilience. Response diversity is more likely to be brought about, however, by ecological resilience strategies because engineering resilience strategies such as efficiency tend to remove what at the design stage are apparently wasteful redundancies.22 If new kinds of problems arise that are not anticipated at the design stage, however, the assumptions on which the sleek system design was based could prove overwhelmed. Redundancy in the form of alternative response options, while not efficient, could prove valuable in such cases.
Engineering resilience and ecosystem resilience thus are two distinct strategies with potentially large differences in design orientation and performance outcome. Indeed, they pose "contrasts so .. . fundamental that they can become alternative paradigms whose devotees reflect traditions of a discipline or of an attitude more than of a reality of nature."23 Yet, resilience theory literature often fails to distinguish between the two properties.24 Before examining how they differ for legal systems, however, we must first consider when legal systems display resilience and whether it is always desirable.
complex adaptive systems theory. See generally Brian Walker et al., Resilience, Adaptability and Transformabilityin Social-EcologicalSystems, ECOLOGY & SOC'Y (Dec. 2004), http://www.ecologyandsociety.org/vol9/iss2/art5/print.pdf (providing a summary of resilience and adaptation theories).
20. See id. 21. See Walker et al., supra note 5. This feature is also known as functional
redundancy. Id. 22. See id. 23. Holing & Gunderson, supra note 7, at 28. 24. See C6t6 & Darling, supra note 9, at 1.
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B. When Is a Legal System Resilient?
Legal scholars have used terms like resilient and resilience to describe positive qualities of a legal system.' Although not articulating any formal theory of resilience, these scholars seem to mean what ecologists, social scientists, and complex systems researchers mean-that a resilient legal system enjoys consistency in overall behavioral structure notwithstanding continuous change of external and internal conditions. This Article performs the theoretical exercise of asking how we might map resilience theory principles onto legal systems in order to better understand when legal systems are and are not resilient.26
The legal system, like any system, can be defined by its structure (e.g., constitutional division of powers) and processes (e.g., administrative decision procedures). Structure and process thus define the shape of the basin of attraction (the "bowl") and produce system behavior in the form of actual decisions of executives, legislatures, courts, and agencies (e.g., the ruling in a case), which is where the "ball" is at any time. Different configurations of structure and processes-different basin shapes-produce different behavioral outcomes in response to changes in internal and external conditions. The design configuration also affects how the system withstands changes of different quality and magnitude over time. Some configurations could rely on engineering resilience strategies to build a very efficient set of reliable structural and process components, while others could use ecological resilience strategies to build
25. The classic example is from KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 513 (1960) ("[A]n adequately resilient legal system can on occasion, or even almost regularly, absorb the particular trouble and resolve it each time into a new, usefully guiding, forward-looking felt standard-for-action or even rule-oflaw."); see also Joni S. Charme, The Interim Obligation of Article 18 of the Vienna Convention on the Law of Treaties: Making Sense of an Enigma, 25 GEO. WASH. J. INT'L L. & ECON. 71, 104 (1992) (referring to "the flexibility and resilience of the international legal system"); Juarrero-Roqu6, supra note 4, at 1777 (referring to "the resilience and adaptability of the United States' legal system"); Janet C. Neuman, Drought Proofing Water Law, 7 U. DENv. WATER L. REv. 92, 106 (2003) (discussing how to "improve the resilience of the system" of water law); Oren Perez, Purity Lost: The ParadoxicalFaceof the New TransnationalLegal Body, 33 BROOK. J. INT'L L. 1, 48 (2007) (referring to "the resilience of the global legal system").
26. By "we" I mean the actors in the legal system. References to "actors" and "design" in resilience theory do not assume a sentient system designer. An actor in an ecosystem, for example, could be a bird, and the design of an ecosystem could be a result of purely natural processes. When aimed at social-ecological and social systems, of course, resilience theory has both the luxury and complication of being applied by humans to achieve particular normative goals.
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extensive response diversity into the system. These design choices take place at different scales and for different subsystems. What the legal community calls environmental law, for example, may be different in structure and process from criminal law.
Indeed, a resilience theorist surely would interpret some features of the American legal system as displaying strong versions of engineering resilience strategies. The Constitution, for example, displays little tolerance for structural or process change. It was designed to be hard to alter in design27 and has proven so,a and efforts to effect change through judicial interpretation, while persistent, remain controversial.29 Because of its division of powers, moreover, opportunities for response diversity are at a premium in our constitutional system. To be sure, the behavioral state of constitutional doctrine has moved over the past 200 years, but the latitude allowed by the Constitution's "bowl" is more that of a vase than a saucer.o Yet it is resilient. Its highly engineered structure and
27. See U.S. CONST. art. V. For discussions of the Article V amending procedures as an obstacle to new amendments, see generally RESPONDING TO IMPERFEcTION: THE
THEORY AND PRACriCE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995); JOHN R. VILE, CONSTITUTIONAL CHANGE INTHE UNITED STATES 1-13 (1994); Donald J. Boudreaux & A.C. Pritchard, Rewritingthe Constitution:An Economic Analysis
of the Constitutional Amendment Process, 62 FORDHAM L. REV. 111 (1993); Walter
Dellinger, The Legitimacy of ConstitutionalChange:Rethinking the Amendment Process, 97 HARV. L. REV. 386 (1983); Kris W. Kobach, Rethinking Article V: Term Limits and the
Seventeenth and Nineteenth Amendments, 103 YALE L.J. 1971 (1994). For a survey of procedures for amending various state and national constitutions, see Elai Katz, On Amending Constitutions: The Legality and Legitimacy of ConstitutionalEntrenchment, 29
COLUM. J.L. & SOC. PROBS. 251, 256-64 (1996). 28. There have been over 11,500 proposed amendments to the Constitution, very few
of which have made it through the gauntlet of Article V. See JOHN R. VILE, ENCYCLOPEDIA OF CONSTITUTIONAL AMENDMENTS, PROPOSED AMENDMENTS, AND AMENDING ISSUES, 1789-2010, at xx, 344 (3d ed. 2010) (collating proposals by year).
29. Compare Randy E. Barnett, Trumping Precedent with OriginalMeaning: Not As RadicalAs It Sounds, 22 CONST. COMMENT. 257, 258-62 (2005) (favoring "original public
meaning" as normatively superior to and more candid than the doctrine of precedent), with David A. Strauss, Originalism,Precedent,and Candor, 22 CONST. COMMENT. 299, 299-301 (2005) (favoring a common law notion of precedent over originalism, asserting that it provides a workable and more candid framework for full consideration of "morality, policy, [and] fairness"). See generally ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997) (criticizing the use of subjective intent in judicial interpretation); DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010) (subscribing to the theory that constitutional interpretation must
change over time). 30. When only one equilibrium state exists for a system, or if all other states are
considered equivalent to disaster, engineering resilience strategies may be the superior design preference. See Gunderson,supra note 7, at 426.
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process design is so enduring that flips to new equilibrium states-the so-called "constitutional moments"-are quite rare."
By contrast, the American common law system offers an example of ecological resilience: it is a highly dispersed structure of courts throughout the nation, all working to craft doctrine under a loose set of process rules. Response diversity is high, as courts from different states may reach different doctrinal answers for the same legal issues. The result is a high capacity for swings in behavior in response to changing conditions without altering the system's basic structure and process design. Outcomes can move responsively to changed conditions, sometimes dramatically so and other times over long periods of judicial tinkering, without the system's structure and process design changing.32
For example, under the common law of nuisance, "changed circumstances or new knowledge may make what was previously permissible no longer so."33 Examples of such change are numerous. At one time the United States Supreme Court declared: "If there is any fact which may be supposed to be known by everybody, and therefore by courts, it is that swamps and stagnant waters are the cause of malarial and malignant fevers, and that the police power is never more legitimately exercised than in removing such nuisances."3 4 Today, by contrast, it would be unheard of for a court to condemn a wetland area as a nuisance; indeed, some courts now consider the draining or filling of a wetland to constitute a nuisance.35 The modern science of wetland ecology changed public perceptions and encouraged a 180-degree turn in the application of nuisance law to wetlands,3 6 but by no means would anyone consider the common law of nuisance to have been restructured as a system.37
31. See generally BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991) (developing the concept of constitutional moments); Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996) (examining the concept of constitutional moments).
32. See STUART KAUFFMAN, AT HOME INTHE UNIVERSE: THE SEARCH FOR LAWS OF SELF-ORGANIZATION AND COMPLEXITY 169 (1995) (pointing to these attributes of the common law as evidence of its resilience as a system).
33. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1031 (1992). 34. Leovy v. United States, 177 U.S. 621, 636 (1900). 35. Palazzolo v. State, No. WM 88-0297, 2005 WL 1645974, at *5 (R.I. Super. Ct. July 5, 2005) (finding a development that would fill a wetland a public nuisance based on "evidence as to various effects that the development will have including increasing nitrogen levels in the pond, both by reason of the nitrogen produced by the attendant residential septic systems, and the reduced marsh area which actually filters and cleans runoff"). 36. For reviews of this doctrinal shift, see Michael C. Blumm & J.B. Ruhl,
Volume 89 Number 5 Adaptation and Resiliency in Legal Systems
Article 3
6-1-2011
General Design Principles for Resilience and Adaptive Capacity in Legal Systems - With Applications to Climate Change Adaptation
J. B. Ruhl
Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons
Recommended Citation
J. B. Ruhl, General Design Principles for Resilience and Adaptive Capacity in Legal Systems - With Applications to Climate Change Adaptation, 89 N.C. L. Rev. 1373 (2011). Available at: http://scholarship.law.unc.edu/nclr/vol89/iss5/3
This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]
GENERAL DESIGN PRINCIPLES FOR RESILIENCE AND ADAPTIVE CAPACITY IN LEGAL SYSTEMS - WITH APPLICATIONS TO
CLIMATE CHANGE ADAPTATION'
J.B. Ruhl"
As climate change begins to disruptthe settled expectations of humans, demands on the legal system will be intense and long term. Is the law up to the task? If it is, it will be at least in part because the legal system proves to be resilientand adaptive. This Article therefore explores how to think about designing legal instruments and institutions now with confidence they will be resilient and adaptive to looming problems as massive, variable, and long term in scale as climate change. Drawing from the body of resiliencetheory forged in naturaland socialsciences, this Article is the first to synthesize resilience theory in a framework relevant to lawyers and explore the general design principles it suggests for legalsystems. The Article opens by examining resilience-whatit is and how to design for it in legal systems. It explores the normative dimensions of resilience and makes important distinctions between resilience of legal systems, resilience of laws they produce, and resilience of the other social and natural systems law addresses. Similarly, this Article examines the theoretical context and design principles for adaptive capacity, focusing on adaptive management theory as an example for legal design. Fusing these two concepts, this Article suggests applicationsof these generalprinciplesto the challenge of designing law for respondingto climate change, arguingthat climate change adaptation law should draw from theories of adaptive management, dynamic federalism, new governance, and transgovernmentalnetworks.
INTRODUCTION I. RESILIENCE
.................................... ..................................
..... 1374
..... 1375
* @ 2011 J.B. Ruhl. ** Allen Chair in Law, Vanderbilt University Law School. I am thankful to the North Carolina Law Review for inviting me to participate in their 2010 symposium, Adaptation and Resiliency in Legal Systems; to the symposium participants; to Robin Craig and Ahjond Garmestani for helpful comments on drafts; and to my research assistant, Pete Matthews, Florida State University College of Law Class of 2012. Please direct any
comments or questions to [email protected]
1374
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[Vol. 89
A. Defining System Resilience
............................1. 375
B. When Is a Legal System Resilient? ........... ..... 1379
C. Designingfor ResilientLegal Systems .................... 1385
II. ADAPTIVE CAPACITY
.......................
..... 1388
A. DefiningSystem Adaptive Capacity. ................ 1388
B. When Is a Legal System Adaptive? ........... ..... 1389
C. Designingfor Adaptive Law..........
.... ...... 1392
III. ENVISIONING RESILIENT AND ADAPTIVE CLIMATE CHANGE
ADAPTATION LAW .........................
..... 1393
CONCLUSION
......................................... 1402
INTRODUCTION
Climate change soon will begin to disrupt the settled expectations of humans. Rising sea levels, persistent drought where water has been abundant, longer growing seasons in some areas and invasive species elsewhere-the list of anticipated changes that will play out over the landscape for decades is long, and many inevitably will give rise to the need to formulate new policies and resolve new kinds of disputes.' Demands on the legal system will be intense and long term, but is the law up to the task? If it is, it will be at least in part because the legal system proves to be resilientand adaptive.
These two properties-resilience and adaptive capacity-have become central themes for researchers studying a wide array of ecological, social-ecological, and social systems under the banner of resilience theory.2 More broadly, they are important focal points of the science of complex adaptive systems as it has been applied in natural and social sciences.3 Legal scholars recently have begun to consider how these properties and the research from other disciplines might inform the design of laws for discrete legal application,' but no
1. For summaries of the legal and policy issues likely to come with climate change, including reviews and syntheses of science and law literature on the topic, see generally Robin Kundis Craig, "StationarityIs Dead"- Long Live Transformation:Five Principles for Climate Change Adaptation Law, 34 HARV. ENvTL. L. REv. 9 (2010); Robert L. Glicksman, Ecosystem Resilience to Disruptions Linked to Global Climate Change: An Adaptive Approach to FederalLand Management, 87 NEB. L. REv. 833 (2009); J.B. Ruhl, Climate Change Adaptation and the Structural Transformation of Environmental Law, 40 ENVTL. L. 363 (2010).
2. See, e.g., PANARCHY: UNDERSTANDING TRANSFORMATIONS IN HUMAN AND NATURAL SYSTEMS passim (Lance H. Gunderson & C.S. Holling eds., 2002).
3. See JOHN H. MILLER & SCoyr E. PAGE, COMPLEX ADAPTIVE SYSTEMS: AN INTRODUCTION TO COMPUTATIONAL MODELS OF SOCIAL LIFE 9-10, 27-31, 139-40, 236-37 (2007) (using the term "robustness" in the same manner as resilience).
4. See generally Barbara Cosens, Transboundary River Governance in the Face of Uncertainty: Resilience Theory and the ColumbiaRiver Treaty, 30 J. LAND RESOURCES &
2011]
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legal scholar has undertaken a broad theoretical treatment applying resilience theory to legal systems.
Drawing from the emerging research and scholarship on resilience theory, this Article is the first to synthesize resilience theory in a framework relevant to lawyers and explore general design principles for resilience and adaptive capacity in legal systems. Part I examines resilience-what it is and how to design for it in legal systems. It also addresses the normative dimensions of resilience theory and makes important*distinctions between resilience of legal systems, resilience of laws they produce, and resilience of the other social and natural systems law addresses. Part II provides the theoretical context and design principles for adaptive capacity, focusing on adaptive management theory as an example for legal design. Part III suggests applications of these general principles to the challenge of designing law for responding to climate change; it argues that climate change adaptation law should draw from theories of adaptive management, dynamic federalism, new governance, and transgovernmental networks.
I. RESILIENCE
Who doesn't want to be resilient? The ability to bounce back from illness or other setbacks is admirable in people, but what does it mean for a social system to be resilient? Even more, how can we design a social system to be resilient? To probe those questions for purposes of legal design, the following subparts outline the foundational principles of resilience theory and apply them to the legal system context.
A. Defining System Resilience
Although there are numerous variations, a good working definition of resilience as used in natural and social sciences is "the capacity of a system to experience shocks while retaining essentially
ENVrL. L. 229 (2010) (applying resilience theory to the management of multijurisdictional watersheds); Pierre de Vries, The Resilience Principles: A Framework for New ICT Governance, 9 J. ON TELECOMM. & HIGH TECH. L. 137 (2011) (applying resilience theory to the telecommunications industry); J.B. Ruhl, Regulation by Adaptive Management-Is It Possible?, 7 MINN. J. L. SCI. & TECH. 21 (2005) (recommending the use of adaptive capacity theory in environmental regulation). One of the earliest uses of resilience theory in a legal context was by a philosopher studying the contrasts between the Platonic emphasis on stability and modernity's emphasis on dynamism. See Alicia Juarrero-Roqud, Fail-Safe Versus Safe-Fail: Suggestions Toward an Evolutionary Model of Justice, 69 TEX. L. REV. 1745 passim (1991).
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the same function, structure, feedbacks, and therefore identity."' One hallmark of system resilience thus is the capacity to maintain a high level of consistency of behavioral structure in the face of a dynamic environment of change. In 1973 theoretical ecologist C.S. Holling introduced the idea that natural and social systems exhibiting this capacity could be described as resilient.6 His model, as refined and applied over time,' seeks to explain how such systems tolerate disturbance without changing their basic structural identity.'
Resilience theory has coalesced around several key features of Holling's model. First, one feature of resilience is recovery-the time required for a system to return to an equilibrium or steady state following a disturbance.9 Holling refers to this type of resilience as engineering resilience in order to convey that it draws on reliability, efficiency, quality control, and similar strategies to pursue a single objective-return to the equilibrium state. 0
Engineering resilience is distinct from ecological resilience." Ecological resilience is measured by the amount or magnitude of disturbance a system can absorb without having its fundamental
5. Brian Walker et al., A Handful of Heuristics and Some Propositions for UnderstandingResilience in Social-Ecological Systems, ECOLOGY & SOC'Y (June 2006), http://www.ecologyandsociety.org/volll/issl/artl3/ES-2005-1530.pdf.
6. See generally C.S. Holling, Resilience and Stability of Ecological Systems, 4 ANN. REV. ECOLOGY & SYSTEMATICS 1 (1973) (outlining the theory).
7. For a comprehensive review of the current theory of system resilience, see C.S. Holling & Lance H. Gunderson, Resilience and Adaptive Cycles, in PANARCHY, supra note 2, at 25, 25-62. For more concise reviews, see generally Lance H. Gunderson, Ecological Resilience-In Theory and Application, 31 ANN. REV. ECOLOGY & SYSTEMATICS 425 (2000), focusing on ecological resilience, and C.S. Holling, Understanding the Complexity of Economic, Ecological, and Social Systems, 4 ECOSYSTEMS 390 (2001), examining resilience in a variety of natural and social system contexts. Although the roots of resilience theory are in biological ecology, its influence has spread throughout natural sciences and, more recently, into the social sciences, though not with entirely uncritical reception. See generally Fiona Miller et al., Resilience and Vulnerability: Complementary or Conflicting Concepts?, ECOLOGY & SOC'Y (Sept. 2010), http://www.ecologyandsociety.org/voll5/iss3/artl1/ES-2010-3378.pdf (examining criticisms of resilience theory generally). One source of tension has been how resilience theory meshes, or does not mesh, with concepts of system vulnerability forged in disciplines focused on geophysical sciences, political economy, and disaster response. See id. (exploring ways of harmonizing the two theoretical perspectives).
8. See Gunderson,supra note 7, at 426. 9. See Isabelle M. C6t6 & Emily S. Darling, Rethinking Ecosystem Resilience in the Faceof Climate Change, 8 PLOS BIOLOGY 1, 1 (2010), availableat http://www.plosbiology .org/article/fetchObjectAttachment.action?uri=info%3Adoi%2F10.1371%2Fjournal.pbio. 1000438&representation=PDF. 10. See Gunderson,supra note 7, at 426; Holling & Gunderson, supra note 7, at 27-28. 11. See Gunderson,supra note 7, at 426-27; Holling & Gunderson, supranote 7, at 28.
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behavioral structure redefined, 2 a property known as resistance.' In contrast to engineering resilience, ecological resilience relies on adjustments to system processes as the means of managing overall system integrity.14
Engineering resilience, which favors recovery as the design goal, and ecological resilience, which favors resistance as the design goal, thus are alike in that both concepts envision a system that has been pushed off of its equilibrium state by a disturbance." They differ, however, in terms of the mechanisms and strategies the system uses to avoid being pushed so far as to be functionally restructured. The engineering resilience strategy is to devote all system resources to staying near the equilibrium, the goal being to snap back.'" By contrast, the ecological resilience strategy accommodates the possibility of fluctuating within a basin of attraction to equilibrium, with the goal of avoiding "flips" from one structural state to another.
Resilience theorists use the heuristic of a ball in a bowl on a table to capture this distinction." Engineering resilience strategies can be represented by a ball at the bottom of a tall, narrow bowl, like a vase with steep sides; ecosystem resilience strategies produce a shallow, wide bowl, like a saucer with a wide surface. At rest, the balls in both bowls sit still at the bottom, at equilibrium. As the table is jiggled, the balls roll around, but they do not roll in the same way. The ball in the tall, narrow vase stays near the bottom and has quick recovery, while the ball in the shallow, wide saucer might roll all around and reach far from the bottom but resist spilling over the rim. The objective of resilience design is to keep the balls in the bowls, but one can imagine how different disturbances might produce different results between the two bowls. A strong wind might knock over the tall vase but not the shallow saucer. An earthquake might bounce the ball out of the shallow saucer but not out of the tall vase.
To translate that heuristic back into resilience theory terminology, the bowls represent the "basin of attraction" for the balls, 9 which represent the current system behavioral state. The
12. See Gunderson,supranote 7, at 426-27; Holling & Gunderson, supra note 7, at 28. 13. See C6t6 & Darling, supranote 9, at 1. 14. See Holling & Gunderson, supra note 7, at 28. 15. See Gunderson,supra note 7, at 426-27; Holling & Gunderson, supra note 7, at 27. 16. See Gunderson,supranote 7, at 426. 17. See id. at 427. 18. See id. 19. The terminology described in this paragraph is widely used in resilience and
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bottom of the bowl represents the "attractor" to the equilibrium state, whereas the form of the basin defines the "latitude" within which the system state can move before crossing a threshold which, if breached, makes recovery to the equilibrium state difficult or impossible. The wider the basin the greater the number of system states that can be experienced without crossing a threshold. The "precariousness" of the system defines how close the current state of the system is to such a threshold. To avoid reaching a high level of precariousness, engineering resilience strategies rely on strong attractors and limited latitude, whereas ecological resilience strategies tolerate weaker attractors in favor of more latitude.20
Another difference between the two strategies has to do with what resilience theory calls the response diversity of the system, which is "the diversity of responses to disturbance among species or actors contributing to the same function in the social-ecological system."21 Because it opens up options, response diversity enhances resilience. Response diversity is more likely to be brought about, however, by ecological resilience strategies because engineering resilience strategies such as efficiency tend to remove what at the design stage are apparently wasteful redundancies.22 If new kinds of problems arise that are not anticipated at the design stage, however, the assumptions on which the sleek system design was based could prove overwhelmed. Redundancy in the form of alternative response options, while not efficient, could prove valuable in such cases.
Engineering resilience and ecosystem resilience thus are two distinct strategies with potentially large differences in design orientation and performance outcome. Indeed, they pose "contrasts so .. . fundamental that they can become alternative paradigms whose devotees reflect traditions of a discipline or of an attitude more than of a reality of nature."23 Yet, resilience theory literature often fails to distinguish between the two properties.24 Before examining how they differ for legal systems, however, we must first consider when legal systems display resilience and whether it is always desirable.
complex adaptive systems theory. See generally Brian Walker et al., Resilience, Adaptability and Transformabilityin Social-EcologicalSystems, ECOLOGY & SOC'Y (Dec. 2004), http://www.ecologyandsociety.org/vol9/iss2/art5/print.pdf (providing a summary of resilience and adaptation theories).
20. See id. 21. See Walker et al., supra note 5. This feature is also known as functional
redundancy. Id. 22. See id. 23. Holing & Gunderson, supra note 7, at 28. 24. See C6t6 & Darling, supra note 9, at 1.
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B. When Is a Legal System Resilient?
Legal scholars have used terms like resilient and resilience to describe positive qualities of a legal system.' Although not articulating any formal theory of resilience, these scholars seem to mean what ecologists, social scientists, and complex systems researchers mean-that a resilient legal system enjoys consistency in overall behavioral structure notwithstanding continuous change of external and internal conditions. This Article performs the theoretical exercise of asking how we might map resilience theory principles onto legal systems in order to better understand when legal systems are and are not resilient.26
The legal system, like any system, can be defined by its structure (e.g., constitutional division of powers) and processes (e.g., administrative decision procedures). Structure and process thus define the shape of the basin of attraction (the "bowl") and produce system behavior in the form of actual decisions of executives, legislatures, courts, and agencies (e.g., the ruling in a case), which is where the "ball" is at any time. Different configurations of structure and processes-different basin shapes-produce different behavioral outcomes in response to changes in internal and external conditions. The design configuration also affects how the system withstands changes of different quality and magnitude over time. Some configurations could rely on engineering resilience strategies to build a very efficient set of reliable structural and process components, while others could use ecological resilience strategies to build
25. The classic example is from KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 513 (1960) ("[A]n adequately resilient legal system can on occasion, or even almost regularly, absorb the particular trouble and resolve it each time into a new, usefully guiding, forward-looking felt standard-for-action or even rule-oflaw."); see also Joni S. Charme, The Interim Obligation of Article 18 of the Vienna Convention on the Law of Treaties: Making Sense of an Enigma, 25 GEO. WASH. J. INT'L L. & ECON. 71, 104 (1992) (referring to "the flexibility and resilience of the international legal system"); Juarrero-Roqu6, supra note 4, at 1777 (referring to "the resilience and adaptability of the United States' legal system"); Janet C. Neuman, Drought Proofing Water Law, 7 U. DENv. WATER L. REv. 92, 106 (2003) (discussing how to "improve the resilience of the system" of water law); Oren Perez, Purity Lost: The ParadoxicalFaceof the New TransnationalLegal Body, 33 BROOK. J. INT'L L. 1, 48 (2007) (referring to "the resilience of the global legal system").
26. By "we" I mean the actors in the legal system. References to "actors" and "design" in resilience theory do not assume a sentient system designer. An actor in an ecosystem, for example, could be a bird, and the design of an ecosystem could be a result of purely natural processes. When aimed at social-ecological and social systems, of course, resilience theory has both the luxury and complication of being applied by humans to achieve particular normative goals.
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extensive response diversity into the system. These design choices take place at different scales and for different subsystems. What the legal community calls environmental law, for example, may be different in structure and process from criminal law.
Indeed, a resilience theorist surely would interpret some features of the American legal system as displaying strong versions of engineering resilience strategies. The Constitution, for example, displays little tolerance for structural or process change. It was designed to be hard to alter in design27 and has proven so,a and efforts to effect change through judicial interpretation, while persistent, remain controversial.29 Because of its division of powers, moreover, opportunities for response diversity are at a premium in our constitutional system. To be sure, the behavioral state of constitutional doctrine has moved over the past 200 years, but the latitude allowed by the Constitution's "bowl" is more that of a vase than a saucer.o Yet it is resilient. Its highly engineered structure and
27. See U.S. CONST. art. V. For discussions of the Article V amending procedures as an obstacle to new amendments, see generally RESPONDING TO IMPERFEcTION: THE
THEORY AND PRACriCE OF CONSTITUTIONAL AMENDMENT (Sanford Levinson ed., 1995); JOHN R. VILE, CONSTITUTIONAL CHANGE INTHE UNITED STATES 1-13 (1994); Donald J. Boudreaux & A.C. Pritchard, Rewritingthe Constitution:An Economic Analysis
of the Constitutional Amendment Process, 62 FORDHAM L. REV. 111 (1993); Walter
Dellinger, The Legitimacy of ConstitutionalChange:Rethinking the Amendment Process, 97 HARV. L. REV. 386 (1983); Kris W. Kobach, Rethinking Article V: Term Limits and the
Seventeenth and Nineteenth Amendments, 103 YALE L.J. 1971 (1994). For a survey of procedures for amending various state and national constitutions, see Elai Katz, On Amending Constitutions: The Legality and Legitimacy of ConstitutionalEntrenchment, 29
COLUM. J.L. & SOC. PROBS. 251, 256-64 (1996). 28. There have been over 11,500 proposed amendments to the Constitution, very few
of which have made it through the gauntlet of Article V. See JOHN R. VILE, ENCYCLOPEDIA OF CONSTITUTIONAL AMENDMENTS, PROPOSED AMENDMENTS, AND AMENDING ISSUES, 1789-2010, at xx, 344 (3d ed. 2010) (collating proposals by year).
29. Compare Randy E. Barnett, Trumping Precedent with OriginalMeaning: Not As RadicalAs It Sounds, 22 CONST. COMMENT. 257, 258-62 (2005) (favoring "original public
meaning" as normatively superior to and more candid than the doctrine of precedent), with David A. Strauss, Originalism,Precedent,and Candor, 22 CONST. COMMENT. 299, 299-301 (2005) (favoring a common law notion of precedent over originalism, asserting that it provides a workable and more candid framework for full consideration of "morality, policy, [and] fairness"). See generally ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997) (criticizing the use of subjective intent in judicial interpretation); DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010) (subscribing to the theory that constitutional interpretation must
change over time). 30. When only one equilibrium state exists for a system, or if all other states are
considered equivalent to disaster, engineering resilience strategies may be the superior design preference. See Gunderson,supra note 7, at 426.
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process design is so enduring that flips to new equilibrium states-the so-called "constitutional moments"-are quite rare."
By contrast, the American common law system offers an example of ecological resilience: it is a highly dispersed structure of courts throughout the nation, all working to craft doctrine under a loose set of process rules. Response diversity is high, as courts from different states may reach different doctrinal answers for the same legal issues. The result is a high capacity for swings in behavior in response to changing conditions without altering the system's basic structure and process design. Outcomes can move responsively to changed conditions, sometimes dramatically so and other times over long periods of judicial tinkering, without the system's structure and process design changing.32
For example, under the common law of nuisance, "changed circumstances or new knowledge may make what was previously permissible no longer so."33 Examples of such change are numerous. At one time the United States Supreme Court declared: "If there is any fact which may be supposed to be known by everybody, and therefore by courts, it is that swamps and stagnant waters are the cause of malarial and malignant fevers, and that the police power is never more legitimately exercised than in removing such nuisances."3 4 Today, by contrast, it would be unheard of for a court to condemn a wetland area as a nuisance; indeed, some courts now consider the draining or filling of a wetland to constitute a nuisance.35 The modern science of wetland ecology changed public perceptions and encouraged a 180-degree turn in the application of nuisance law to wetlands,3 6 but by no means would anyone consider the common law of nuisance to have been restructured as a system.37
31. See generally BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991) (developing the concept of constitutional moments); Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247 (1996) (examining the concept of constitutional moments).
32. See STUART KAUFFMAN, AT HOME INTHE UNIVERSE: THE SEARCH FOR LAWS OF SELF-ORGANIZATION AND COMPLEXITY 169 (1995) (pointing to these attributes of the common law as evidence of its resilience as a system).
33. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1031 (1992). 34. Leovy v. United States, 177 U.S. 621, 636 (1900). 35. Palazzolo v. State, No. WM 88-0297, 2005 WL 1645974, at *5 (R.I. Super. Ct. July 5, 2005) (finding a development that would fill a wetland a public nuisance based on "evidence as to various effects that the development will have including increasing nitrogen levels in the pond, both by reason of the nitrogen produced by the attendant residential septic systems, and the reduced marsh area which actually filters and cleans runoff"). 36. For reviews of this doctrinal shift, see Michael C. Blumm & J.B. Ruhl,