Over the last four decades, a variety of legal movements and theories have evolved to make the study of law less autonomous and more open.(1) These several academic movements advocate different jurisprudential discourses and understandings of modern law, and have impacted public policy in different ways and magnitudes. Each movement writes and thinks about law and public policy differently; each maintains a different conception of the role of the State. Among the more dominant of these movements are the several schools of thought comprising Law & Economics.(2) Law & Economics has developed from a small and rather esoteric branch of research within both economics and legal studies to what is now a substantial movement that has helped redefine the study of law and help fashion public policy.
Law & Economics is not a homogeneous movement, but instead is composed of several traditions, sometimes competing and sometimes complementary. As Figure 1 illustrates, it includes: Chicago Law and Economics, Public Choice Theory, American Institutional Law and Economics, Neoinstitutional Law and Economics, the New Haven School, and Modern Civic Republicanism.(3)
The purpose of this article is twofold. The first is to set forth a comparative institutional approach for analyzing natural resource and environmental policy. Such an approach is consistent with the ideas and ideals that emanate from both institutional economics and American Institutional Law and Economics.(4) The second is to suggest six performance indicators for use in assessing institutional alternatives and for informing choice with respect to natural resource and environmental policy.
However admirable it may seem to argue for maintaining the quality of the environment or for displaying concern over the dissipation of a nation's natural resources, few areas of public policy have produced conflicts of such a heightened magnitude within nations as well as between nations. One mechanism for channeling environmental conflicts and for informing choice is the use of what is termed here as a comparative institutional approach to public policy.(5) Within this approach, society is perceived as a cooperative venture for mutual advantage where and when an identity of interests exists among actors. At the same time, society is an arena of conflict where there exists a mutual interdependence of incompatible claims or interests. The manner in which a society structures its political/legal institutions helps shape the character of life in that society. Thus, society structures its institutions in order to: i) enhance the scope of its cooperative natural resource and environmental endeavors, ii) channel internal natural resource and environmental conflicts toward resolution, and iii) institutionalize mechanisms for changing existing law and policy.
It is important to understand the role of individuals in a comparative institutional approach to public policy. They are assumed to take actions both individually and collectively. It is posited that individual actions are taken to advance individual interests or to advance individual or group perceptions of the public interest. The manifestation of one political/legal institution or structure of rights in a society over another in response to the natural resource and environmental issues confronting it--and the legitimacy of that institution or rights regime--can be interpreted, in part, as an expression (at the most fundamental level) of those who prevailed in the choice-making processes.
II. COMPARATIVE INSTITUTIONAL APPROACH TO ENVIRONMENTAL POLICY(6)
A. Stages of Choice
The selection or establishment of a specific set of institutions, and thus the character of life in a society, is the product of choice. What the field of American Institutional Law and Economics has to say about some of these matters is pertinent to a wide array of issues. …