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 Healthy Workplace of the 21st Century: The Benefit of Organizational Wellness Programs on Employee Health and Absenteeism

Every year, obesity rates continue to rise and have reached epidemic proportions throughout the United States. The costs associated with obesity are staggering and many researchers feel that the workplace should be the new front line in the battle for a healthier workforce. Employers must take action to address this worsening health crisis and help reduce spiraling medical costs and absenteeism rates. This capstone reviews the current literature on wellness programs and discusses different companies' approaches to wellness programs that have special emphasis on nutrition and physical activity. It also provides strategies and recommendations for companies eager to initiate a comprehensive, dynamic and directed wellness program to improve the current and future health of their workforce.