Regulating Risks after ATA

Irreversible and Catastrophic

“…The tale of Ulysses and the Sirens is perhaps the most familiar example, 126 and the idea of precommitment has many legal applications. 127 In the environmental context, regulators might be willing to pay for precommitment strategies that will operate as a constraint on interest-group power, myopia, weakness of will, excessively high discount rate, cognitive biases, or other problems. Indeed, the conventional Precautionary Principle, understood to impose a thumb on the scales in favor of environmental protection, might be explained in these terms.…”

“…126 See Jon Elster, Ulysses and the Sirens (1982). 127 See Stephen Holmes, Passions and Constraint (1995) (emphasizing precommitment strategies in the constitutional domain) 128 in favor of delaying, rather than accelerating, environmental protection. Whether it does so depends on the magnitude and likelihood of the relevant effects.…”

Lives, Life-Years, and Willingness to Pay

“…People might reasonably distinguish, for example, between a risk of death from cancer and a risk of death from heart disease, and they might also distinguish among workplace risks, risks of motor vehicle accidents, and risks associated with air pollution. 127 If government were omniscient, it would individuate regulatory programs along all these dimensions. And if regulatory tools could be perfectly individuated, government might provide every individual with regulatory protection that perfectly matched his preferences and hence his situation-specific WTP-123 See Cass R. Sunstein, Risk and Reason (2002).…”

Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping Networks

“…The surprising aspect of the article was the rather detailed instructions it contained explaining how to obtain these file-swapping programs. 127 Thus, the most respected newspaper in the United States, owned by a corporation whose profits are largely derived from its copyrighted content, had essentially concluded that the public had a right to know how to obtain unauthorized copies of copyrighted sound recordings and motion pictures. Months after the Ninth Circuit's Napster decision, when the legality of such downloading was no longer subject to serious dispute, the New York Times implicitly acknowledged that unlawful downloading would remain alive and well.…”

“…126 Richtel, supra note 1, at A1. 127 Id. 128 conclusion, it is necessary to look at the polling that has been done with respect to the perceived morality of Napster's services.…”