LAW, ENVIRONMENT, AND VISION
Douglas A. Kysar
[A]nalytic effort is of necessity preceded by a preanalytic cognitive act that
supplies the raw material for the analytic effort . . . .
[T]his preanalytic cogni-
tive act will be called Vision.
Environmental law rests uncomfortably between competing visions.
Once driven by essentially “moral, cultural, aesthetic, and political purpos-
the environmental regulatory agenda now seems, like other aspects of
the emerging “cost-benefit state,”
to be emphatically instrumentalist.
though the environmental law framework established during the predomi-
nant ethical environmentalism of the 1970s remains largely intact,
commentators today agree that this framework represents “a failing para-
The future of environmental regulation, instead, lies in such effi-
ciency-oriented instruments as tradable permits, corrective taxes, disclosure
schemes, and other tools designed to replicate the conditions of a well-
Indeed, scholars have labeled tradable permits “the
Assistant Professor of Law, Cornell Law School.
B.A., 1995, Indiana University.
For helpful comments on earlier drafts, I thank Gregory Alexander, Steven Clymer,
George Hay, Lisa Heinzerling, Jeffrey Rachlinski, Mark Sagoff, James Salzman, Steven Shiffrin, David
Spence, and participants of the Stanford/Yale Junior Faculty Forum, the Environmental Research Work-
shop at the Georgetown University Law Center, the Public Policy Research/Law and the Behavioral
Sciences Programs Workshop at the University of California, San Diego, and a faculty workshop at
Cornell Law School.
I especially thank Vicki Been and Buzz Thompson for their generosity in provid-
ing extensive comments and discussing at length the issues addressed herein.
All misjudgments, errors,
and omissions are my own.
JOSEPH A. SCHUMPETER, HISTORY OF ECONOMIC ANALYSIS 41 (1954).
MARK SAGOFF, THE ECONOMY OF THE EARTH 6 (1988).
CASS R. SUNSTEIN, THE COST-BENEFIT STATE, at ix (2002) (“Gradually, and in fits and starts,
American government is becoming a cost-benefit state.”).
Richard B. Stewart,
A New Generation of Environmental Regulation?
, 29 CAP. U. L. REV. 21,
Richard B. Stewart,
United States Environmental Regulation:
A Failing Paradigm
COM. 585 (1996).
Jonathan Baert Wiener,
Global Environmental Regulation: Instrument Choice in Legal
, 108 YALE L.J. 677, 682 (1999) (noting consensus among analysts “that incentive-based instru-
ments such as taxes and tradeable allowances should generally be chosen over technology requirements
and fixed emissions standards because the incentive-based instruments are typically far more cost-
effective and innovation-generating than their alternatives”).