Governance and Uncertainty

Government actors create law against a backdrop of uncertainty. Limited information, unpredictable events, and lack of understanding interfere with accurately predicting a legal regime’s costs, benefits, and effects on other legal and social programs and institutions. Does the availability of no-fault divorce increase the number of terminated marriages? Will bulk-collection of telecommunications information about American citizens reveal terrorist plots? Can a sensitive species breed in the presence of oil and gas wells? The answers to these questions are far from clear, but lawmakers must act nonetheless. The problems posed by uncertainty cut across legal fields. Scholars and regulators in a variety of contexts recognize the importance of uncertainty, but no systematic, generally-applicable framework exists for determining how law should account for gaps in information. This Article suggests such a framework and develops a novel typology of strategies for accounting for uncertainty in governance. This typology includes “static law,” as well as three varieties of “dynamic law.” “Static law” is a legal rule initially intended to last in perpetuity. “Dynamic law” is intended to change, and includes: (1) durational regulation, or fixed legal rules with periodic opportunities for amendment or repeal; (2) adaptive regulation, or malleable legal rules with procedural mechanisms allowing rules to change; and (3) contingent regulation, or malleable legal rules with triggering mechanisms to substantively change to the rules. Each of these strategies, alone or in combination, may best address the uncertainty inherent in a particular lawmaking effort. This Article provides a diagnostic framework that lawmakers can use to identify optimal strategies. Ultimately, this approach to uncertainty yields immediate practical benefits by enabling lawmakers to better structure governance.

The Effects of Oil and Gas Exploration on Greater Sage Grouse Populations

Energy production throughout the greater Rocky Mountain Region has increased dramatically in the past decade. Pristine habitat areas historically home to the greater sage grouse are being impaired by these energy development actions. Ongoing studies by state and federal biologists have shown a decrease in overall reproductive activity and a decrease in population on historical mating grounds. This project identifies actions to conserve and restore the habitat of sage grouse populations and reverse the decline of the species. Recommended measures presented in this project include using directional drilling of multiple wells from one single drill pad, creating a GIS mapping data base, funding additional scientific studies regarding impacts from energy development and improved cooperation between state, federal and private agencies.