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.

When Wells Run Dry: Water and Tourism Along the Western Coast of Nicaragua

This dissertation uses a political ecology approach to examine the relationship between tourism development and groundwater in southwest Nicaragua. Tourism in Nicaragua is a booming industry bolstered by ‘unspoiled’ natural beauty, low crime rates, and government incentives. This growth has led to increased infrastructure, revenue, and employment opportunities for many local communities along the Pacific coast. Not surprisingly, it has also brought concomitant issues of deeper poverty, widening gaps between rich and poor, and competition over natural resources. Adequate provisions of freshwater are necessary to sustain the production and reproduction of tourism; however, it remains uncertain if groundwater supplies can keep pace with demand. The objective of this research is to assess water supply availability amidst tourism development in the Playa Gigante area. It addresses the questions: 1) are local groundwater supplies sufficient to sustain the demand for freshwater imposed by increased tourism development? and 2) is there a power relationship between tourism development and control over local freshwater that would prove inequitable to local populations? Integrating the findings of groundwater monitoring, geological mapping, and ethnographic and survey research from a representative stretch of Pacific coastline, this dissertation shows that diminishing recharge and increased groundwater consumption is creating conflict between stakeholders with various levels of knowledge, power, and access. Although national laws are structured to protect the environment and ensure equitable access to groundwater, the current scramble to secure water has powerful implications on social relations and power structures associated with tourism development. This dissertation concludes that marginalization due to environmental degradation is attributable to the nexus of a political promotion of tourism, poorly enforced state water policies, insufficient water research, and climate change. Greater technical attention to hydrological dynamics and collaboration amongst stakeholders are necessary for equitable access to groundwater, environmental sustainability, and profitability of tourism.