William H. Rodgers, Jr., The Lesson of the Red Squirrel: Consensus and Betrayal in the Environmental Statutes, 5 J. Contemp. Health L. & Pol'y 161 (1989), https://digitalcommons.law.uw.edu/faculty-articles/264
Journal of Contemporary Health Law and Policy
The subjects of legislation and legislative change are undergoing a revival of sorts in United States' law schools. The academic community has offered a variety of theoretical visions on the nature of legislation—purposive and rational, irrational and political, the accidental outcome of competing interests, the imperfect product of high philosophy; the legislative process—formal and ritualistic, markets and auctions, plots and cabals, or publicregarding negotiations; and the individual legislators themselves—ritual players, auctioneers, maximizers of political gain, profiteers, and philosopher kings in shiny suits.
This author's personal approach to legal affairs of this sort is to draw on the laws of biology (loosely construed to include a range of sciences) to gain insights into the workings of complex social systems. This is familiar ground for students of environmental law since the classical conservation writers (including George Perkins Marsh and Aldo Leopold) often applied the lessons of a dynamic physical environment to human cultural choices.
The centerpiece of this type of analysis is game theory. This analytical approach is premised on the idea that "the choice of the 'best' is not formal and definitive" but "is uniquely dependent upon what the other players do." A simple illustration will suffice: the red squirrel developed a chattering strategy to discourage predators like the great homed owl; it was a good strategy because owls don't waste their time pursuing prey that is alert and prepared. Unfortunately now, there is a new predator on the block—humans armed with rifles. Chattering is no longer a good strategy for red squirrels.
What do legislators have in common with chattering red squirrels? More perhaps than we would care to admit. It should be emphasized, however, that legislators (and we are interested specifically in the ones who are enacting the environmental statutes) do their best to get along in two distinctly different environments. In environment one, the statute is assembled in a small-numbers bargaining game between key legislators and representatives of interest groups; this game requires trades and exchanges. It is played over time, and yields a legislative product with "consensus" features (evidences of trading among players who prefer legislation to no legislation).
This legislative gaming, however, has definite termination points (e.g., when the bill is reported out of committee or enacted). This closing phase marks the onset of environment two. In the second environment, many of the bonds of cooperative solidarity developed in environment one are suddenly loosened. This legislative gaming yields a product with "betrayal" features (evidence of unilateral gain-seeking by players now free of the constraints of cooperation).
These two environments come equipped with the lesson of the red squirrel: today's "best" for these players may not look so good in tomorrow's changed environment.
[This article derives from a Brendan F. Brown Lecture delivered at The Catholic University of America, The Columbus Law School, Washington, DC, November 19,1987.]