June 6, 2011
Hudson on How Federal Governments Create Tragedy of the Commons Problems
Blake Hudson (Stetson) has posted Federal Constitutions: The Keystone of Nested Commons Governance (Alabama Law Review) on SSRN. Here's the abstract:
The constitutional structure of a federal system of government can undermine effective natural capital management across scales, from local to global. Federal constitutions that grant subnational governments exclusive regulatory authority over certain types of natural capital appropriation - such as resources appropriated by private forest management or other land use-related economic development activities - entrench a legally defensible natural capital commons in those jurisdictions. For example, the same constitution that may legally entrench poor forest management practices by private landowners in the southeastern United States may complicate international negotiations related to forest management and climate change. Both the local and international issues may remain unaddressed because the national government is not constitutionally empowered to guide subnational policy formation and therefore may not bind subnational governments to certain types of international agreements related to private forests. Though there are around 160 unitary systems of government worldwide, compared to 25 federal systems, approximately 46 percent of the world’s land base is contained within the boundaries of federal nations. For certain types of natural capital, like forests, the numbers are even starker. Though federal systems comprise approximately 13 percent of the world’s governments, they maintain control over 70 to 80 percent of the world’s forests - a resource crucial for combating climate change.
Ultimately, national constitutional incapacity to participate in subnational natural capital management in federal systems legally entrenches three natural capital commons, one nested within another: 1) private individuals may rationally appropriate natural capital within the state commons in the absence of state government rules guiding sustainable resource appropriation; 2) state governments may rationally appropriate natural capital within the national commons because the national government is not constitutionally empowered to guide resource appropriation within states; and 3) national governments may rationally appropriate resources within the global commons because subnational governments constrain federal system participation in legally binding global governance of resources. This article introduces and describes the operation of nested natural capital commons created by certain federal structures and establishes a foundation for studying how keystone constitutions in federal systems may be fortified to allow more effective natural capital management across local, national, and global scales.
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