The dominant approach to environmental policy endorsed by conservative and libertarian policy thinkers, so-called “free market environmentalism”, is grounded in the recognition and protection of property rights in environmental resources. Despite this normative commitment to property rights, most self-described FME advocates adopt a utilitarian, welfare-maximization approach to climate change policy, arguing that the costs of mitigation measures could outweigh the costs of climate change itself. Yet even if anthropogenic climate change is decidedly less than catastrophic, human-induced climate change is likely (...) to contribute to environmental changes that violate traditional conceptions of property rights. Viewed globally, the actions of some countries—primarily industrialized nations—are likely to increase environmental harms suffered by other countries—less developed nations that have not made any significant contribution to climate change. It may well be that aggregate human welfare would be maximized in a warmer, wealthier world, or that the gains from climate change will offset environmental losses. Yet such claims, even if demonstrated, would not address the normative concern that the consequences of anthropogenic global warming would infringe upon the rights of people in less-developed nations. As a consequence, this paper calls for a rethinking of FME approaches to climate change policy. (shrink)

Whereas conventional analyses characterize environmental problems as examples of market failure, proponents of free-market environmentalism (FME) consider the problem to be a lack of markets and, in particular, a lack of enforceable and exchangeable property rights. Enforcing property rights alleviates disputes about, as well as the overuse of, most natural resources. FME diagnoses of pollution are much weaker, however. Most FME proponents suggest that common-law tort suits can adequately protect private property and ecological resources from pollution. Yet such claims have (...) not been substantiated. Further research is needed before the common law, or regulatory reforms grounded in common-law principles, can be seen as a viable alternative to traditional environmental regulation. (shrink)

Whereas conventional analyses characterize environmental problems as examples of market failure, proponents of free-market environmentalism (FME) consider the problem to be a lack of markets and, in particular, a lack of enforceable and exchangeable property rights. Enforcing property rights alleviates disputes about, as well as the overuse of, most natural resources. FME diagnoses of pollution are much weaker, however. Most FME proponents suggest that common-law tort suits can adequately protect private property and ecological resources from pollution. Yet such claims have (...) not been substantiated. Further research is needed before the common law, or regulatory reforms grounded in common-law principles, can be seen as a viable alternative to traditional environmental regulation. (shrink)

In recent years, the Supreme Court appears to have taken a greater interest in "business" issues. Does this reflect a change in the Court's orientation, or is it the natural outcome of the appellate process? Is the Court "pro-business"? If so, in what ways do the Court's decisions support business interests and what does that mean for the law and the American public? Business and the Roberts Court provides the first critical analysis of the Court's business-related jurisprudence. In this volume, (...) prominent academics examine the Roberts Court's handling of business-related cases, through a series of empirical and doctrinal analyses. Issues covered include securities law, antitrust, labor law, preemption, and environmental law, among others. Business law and regulatory cases touch on many important legal doctrines and can have far-reaching effects. Understanding the bases upon which the Supreme Court decides business-related cases is of tremendous importance to practitioners and academics. It can also further greater understanding of one of the nation's most important government institutions. These issues are of interest to academics, but also of practical importance to Supreme Court and business practitioners. (shrink)

Climate Liberalism examines the potential and limitations of classical-liberal approaches to pollution control and climate change. Some successful environmental strategies, such as the use of catch-shares for fisheries, instream water rights, and tradable emission permits, draw heavily upon the classical liberal intellectual tradition and its emphasis on property rights and competitive markets. This intellectual tradition has been less helpful, to date, in the development or design of climate change policies. Climate Liberalism aims to help fill the gap in the academic (...) literature examining the extent to which classical-liberal principles, including an emphasis on property rights, decentralized authority and dynamic markets, can inform the debate over climate-change policies. The contributors in this book approach the topic from a range of perspectives and represent multiple academic disciplines. Chapters consider the role of property rights and common-law legal systems in controlling pollution, the extent to which competitive markets backed by legal rules encourage risk minimization and adaptation, and how to identify the sorts of policy interventions that may help address climate change in ways that are consistent with liberal values. (shrink)