Examples from environmental law are used to illustrate that underlying feature of the law-and-society system's dynamics. A map of the various outcomes that the right side of the law-and-society system has produced for the management of human free will will identify points in the system playing space.
Chaos, Emergence, and Catastrophe as
The difference is in the extent of the disruption that the two behaviors cause the system. For example, enactment of the Clean Water Act (CWA) and Clean Air Act (CAA) in the early 1970s drew attention for the first time to "end-of-pipe" control strategies for pollutant emissions.'. What appears noble in the individual case appears to be questionable as a whole.
Like the plume of smoke, chaos, emergence and catastrophe in the legal and social system do not behave based on normative factors, and whether their manifestations are considered desirable or not in specific applications therefore depends on the observer. Surviving the surprises of chaos, emergence and disaster - promoting sustainability in the legal and social system.
Surviving the Surprises of Chaos, Emergence,
But for the law-and-society system – a system that we can largely design – it makes little sense to identify the dynamic qualities of the system without asking the normative questions. The first step in that direction is to use the model to understand what is happening in the system; The unifying theme of these lessons is that it is not just the rules of the system that matter, but the entire system structure.
34; much of the [environmental] legislation as currently constituted focuses on the disposal of hazardous waste rather than the use of hazardous products, on the recovery phase of water rather than the withdrawal phase, on damage from toxic unlawful actions rather than its occurrence") A strange attractor, as it were, remembers that the system has been disturbed in the past, and responds by changing its trajectory to adapt to the disturbance.
Fallacies of the Reductionist Creed
The irony of America's law-and-society system is that while we have the goal of sustainability in mind, we often seem to get greater amounts of chaos, emergence, and catastrophe as a result. American legal theory and institutions have not yet learned these characteristics, but will eventually have to do so if we are to understand and confront the dynamic qualities of the law-and-society system and swim back into the realm of complexity. The power of reductionism in this regard comes from its ability to provide an accurate approximation through the application of those central principles, so that 'one can approximately calculate the behavior of a system's initial conditions and an understanding of the laws of nature . But once the approximation is no longer good enough for the level of comfort we seek in our answers to the big questions, all dynamic behavior cannot be explained through these doctrines: Complexity theory represents an advance in science because it explains why This is also true in a unified theory.'' When we are confronted with this dynamic system sur-.
To understand why this particular reductionist premise is false requires an understanding of the mathematical theory of "incompleteness" developed through the work of Gregory Chaitin, who built on the work of Alan Turing and Kurt Goedel. Therefore, "[t]here exist numbers of complexity greater than any mathematical theory can prove." Id.
The Influence of Reductionism in
Of course, because legal formalism could not see through the dynamic qualities of the law and society system, it required more and more rules to deal with cases in which the manifestations of behavior analogous to chaos, emergence and catastrophe. opposed the explanation according to the existing set of reductionist principles. They have been more willing to confront the apparent contradictions of the law-society system, but have not understood those contradictions as inevitable manifestations of dynamic system qualities that cannot be appreciated by reductionist thought processes. Autopoiesis is nothing but the quality of emergent adaptation, one of the main ingredients in such complex systems.
Time, for example, is not changed by whatever trajectory the law-and-society system takes, and is therefore one of the environmental factors to which that system adapts. Indeed, "assuming the appropriateness of the autopoietic model for society, it is difficult to imagine an autopoietic subsystem of an autopoietic system." Jacobson, Autopoietic Law, supra note 10, at 1675.
Reductionism as the Governing Approach of
- Congress and the Nondelegation Doctrine
- Atomized Agencies
- Insulating the Outcomes Through
- The Result-The Modern American
The weakness of their approach is the inability to accept complications, such as human free will, as an essential part of the system and as unpredictable for the system. We know from the complexity theory of dynamic systems theory that such a trend takes the system from the complex region where sustainability is maximum into the region of excessive order and simplicity, exposing the system to the onslaught of chaos, emergence, and catastrophe . We retreat from the vastness and complexity of the law-and-society system into the deceptive safety of reductionism.
Three features of the legal side of the system provide essential support for this effect: the so-called non-delegation doctrine; dividing the administration into several agencies with separate responsibilities; and doctrines requiring legislative and judicial deference to administrative decisions. 34;arbitrary and capricious" standards of review prescribed in the Administrative Procedure Act (APA);"68 the courts have compelled Congress by rejecting the legislative veto mechanism;6 and the courts have limited themselves by the so-called Chevron doctrine, which requires deference to the administrative interpretation of legislative guidance .70 With these limitations, the system has
Where Reductionism Leads Legal Reform
A COMPLEXITY THEORY PARADIGM FOR REFORMING
With a greater understanding of the dynamic system model of law and society comes the dilemma of knowing that the system can be changed, but that we cannot be sure whether it is for better or worse. If we are to take our chances, however, it is preferable to do so with the system's dynamic qualities in mind rather than continue blindly down the reductionist path. Assuming agreement on the goals of such awareness-raising sustainability of the system - it is difficult to say what will work in that regard.
Maybe very little change would be felt;. the whole system might collapse - it's hard to even imagine where this approach would lead the system. I can't predict what rules will come out of the system if it changes as I propose - whether there will be more or fewer rules (my guess is fewer) or whether they will be simple or complex (my guess is simple) - but it not the point.
Make Common Law, Rights-Based Legal
The common law takes issues as they come, keeps them whole and decides them in their context. On the other hand, common law is adaptive and therefore possesses some chaotic characteristics. Finally, the common law operates at the component interaction level, while the administrative state operates on the upper surface and tackles the problems brought about by the lower levels' interactions.
The common law is thus more likely to 'see' the component interactions before the administrative state does, and adapt to them more efficiently. On the whole, the fundamental qualities of the common law seem more suited to the purpose of adaptability than those of the administrative state.
Where Regulation Is Necessary, Require
I have accused the lax enforcement of the doctrine of non-delegation as one of the conspirators in this regard, and therefore propose the more vigorous enforcement of that doctrine as a means of reversing the trend. Chief Justice Rehnquist opined that "[w]e should not shirk our judicial duty to invalidate unconstitutional delegations of legislative authority merely because of the concern that in doing so we should revive the discredited constitutional doctrines of the pre- New Deal". Industrial Union Professor Glenn Harlan Reynolds notes that the non-delegation doctrine “prevented Congress from asking important questions (and responsibility for important decisions) by assigning them to administrative agencies.
Furthermore, Congress has plenary jurisdiction that can use low-level system interactions while agencies apply "agency expertise" to their respective parts of the socio-legal dimension. He believes, based on a complexity theory analysis, that the relaxed non-delegation doctrine thus led to "an increase in the power of unelected officials to make decisions and an increased opportunity for special interests to influence those decisions." . Id.
Where Substantive Administrative Discretion Is
Modify the Standards of Review
Where substantive administrative discretion is required, minimize legal and regulatory implications for administrative decisions. However, it is difficult for a court to subject agency decisions to the "hard stare" when the substantial evidence test is staring the court in the eye.
Reverse Chevron
Chevron inverts that principle by making legislative ambiguity an indicator of legislative delegation. By insulating the agencies from judicial oversight of how they use that power, Chevron creates anti-majority power within the agencies and allows them to divert policy from the actual policy intended by Congress.3 By Agencies to explain why their interpretations. Instead of requiring the courts to accept any "rational" policy emanating from the administrative spirit, we would restore the courts to their role as the primary interpreters of law and thus benefit from the more dynamic qualities of judicial experience.2'.
Reverse Chadha
McCutchen has stated, “[T]he legislative veto is a legitimate second-best solution to the error created by excessive delegation of legislative power to administrative agencies.” Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward A Constitutional Theory of the Second Best, 80 CORNELL L. Chadha without strengthening enforcement of the nondelegation doctrine may be the next best thing, but only in the long term.
For legal theory and legal institutions, if they ignore the findings of dynamic systems theory, they remain ignorant of the basic features and development of the model of the system of law and society. I also took a risk, probably long before such a justifiable assessment of the full dynamic dimension of the model of the system of law and society, and took the first steps to transform the system in the direction of non-reductionist structures intended to transmit law and society. system towards the area of dynamic complexity.
