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This Essay proposes a private standards and certification system to induce media firms to provide more complete and accurate information. It argues that this new private governance system is a viable response to the channelized flow of information that is exacerbating political polarization in the United States. Specifically, this Essay proposes development of a new private fairness doctrine to replace the standard repealed by the Federal Communications Commission in 1987. A broad-based, multi-stakeholder organization could develop and implement this private fairness doctrine, and the certification process could harness market and social pressure to influence the practices of traditional and new media firms. A growing literature demonstrates how private governance initiatives can perform the functions of government in the environmental, labor, gun control, animal welfare, and fair trade areas. This Essay argues that private governance initiatives such as the new private fairness doctrine can also bolster the social checks and balances that support the processes of democratic governance. Any intervention into the flow of information creates risks, but so does inaction, and the private fairness doctrine holds out the possibility of improving the information available for public discourse while limiting the risks of government intervention. In the long term, the concept of private governance can also stimulate creative thinking on interventions to improve other core democratic processes, including campaign finance, voting, ballot security, and others.

This Essay proposes a private standards and certification system to induce media firms to provide more complete and accurate information. It argues that this new private governance system is a viable response to the channelized flow of information that is exacerbating political polarization in the United States. Specifically, this Essay proposes development of a new private fairness doctrine to replace the standard repealed by the Federal Communications Commission in 1987. A broad-based, multi-stakeholder organization could develop and implement this private fairness doctrine, and the certification process could harness market and social pressure to influence the practices of traditional and new media firms. A growing literature demonstrates how private governance initiatives can perform the functions of government in the environmental, labor, gun control, animal welfare, and fair trade areas. This Essay argues that private governance initiatives such as the new private fairness doctrine can also bolster the social checks and balances that support the processes of democratic governance. Any intervention into the flow of information creates risks, but so does inaction, and the private fairness doctrine holds out the possibility of improving the information available for public discourse while limiting the risks of government intervention. In the long term, the concept of private governance can also stimulate creative thinking on interventions to improve other core democratic processes, including campaign finance, voting, ballot security, and others.

Achieving the green economy requires taking into account divisive politics and distributive justice.

In response to the shrinking federal role in environmental protection, many policy advocates have focused on the role of states and cities, but this symposium focuses on another important source of sustainability initiatives: the private sector, including corporations, households, civic and cultural organizations, religious organizations, private hospitals, colleges and universities, and other organizations. States, cities, and local governments are increasingly important, but the limited geographic reach of subnational governments and widespread concerns about the size and intrusiveness of the public sector constrain their ability to address many environmental problems. Private governance initiatives offer an opportunity to bypass concerns about big government and fill the gap. Although private initiatives cannot draw on the coercive power and resources of government, if these initiatives can accelerate efficiency gains in the private sector, they can motivate mitigation efforts even absent government action. This brief keynote address explores the literature on the size of the efficacy gap and the implications for private climate mitigation initiatives.

The central problem confronting climate change scholars and policymakers is how to create incentives for China and the United States to make prompt, large emissions reductions. China recently surpassed the United States as the largest greenhouse gas emitter, and its projected future emissions far outstrip those of any other nation. Although the United States has been the largest emitter for years, China's emissions have enabled critics in the United States to argue that domestic reductions will be ineffective and will transfer jobs to China. These two aspects of the China Problem, Chinese emissions and their influence on the political process in the United States, result in a mutually supportive but ultimately destructive dance between the two countries. This article argues that a post-Kyoto international agreement and other measures are necessary but will not create sufficient incentives to induce China, and ultimately the United States, to act. Instead, the article draws on the fact that the United States and Europe account for 41% of Chinese exports to propose a novel means of changing both countries' incentives. The article suggests that private or public schemes in the United States and Europe to disclose product carbon emissions and corporate carbon footprints can create consumer and other pressure that will induce firms to impose supply chain requirements on Chinese and other suppliers. This form of global private governance can create market-based incentives for China and the United States to reduce emissions directly and to make credible emissions reduction commitments in the post-Kyoto era.

This Article tackles a leading problem confronting norms theorists and regulators: how can the law induce changes in behavior when the material costs to the individual outweigh the benefits and there is no close-knit community to impose sanctions for failure to change? Because private individuals and households are now surprisingly large contributors to environmental problems ranging from toxic pollution to climate change, environmental policy makers face compelling examples of these negative-payoff, loose-knit group situations. This Article suggests that internalized personal norms, rather than social norms, are the most important initial target of opportunity for influencing this kind of behavior. Drawing on the social psychological literature, the Article develops a theory of environmental norm activation that identifies the changes in beliefs necessary to activate personal norms. The Article goes on to suggest the contours of an innovative regulatory reform that will enable the norm activation process to occur. It urges the adaptation of an existing reporting scheme, originally developed for industrial polluters, to require publication of an annual profile of toxic releases by individuals and households. The dissemination of this information will address negative-payoff, loose-knit group situations by activating norms that affect behavior directly, and it will generate civic support for government investments that make behavior change less expensive and more convenient for individuals to adopt. The Article concludes by identifying the implications of its theory and methodology for a wide range of regulatory areas in which individuals are sources of social risks.

This Article proposes a new conception of the administrative regulatory state that accounts for the vast networks of private agreements that shadow public regulations. The traditional account of the administrative state assigns a limited role to private actors: private firms and interest groups seek to influence regulations, and after the regulations are finalized, regulated firms face a comply-or-defy decision. In recent years, scholars have noted that private actors play an increasing role in the traditional government standard setting, implementation and enforcement functions. This Article demonstrates that the private role in each of these regulatory functions is far greater than others have identified. Furthermore, the Article argues that only when this private regulation is considered can the accountability and efficacy of the administrative state be judged. Using environmental regulation as an example, the Article examines a wide range of empirical data to demonstrate that public law requirements spawn a vast body of private agreements. These second-order agreements range from corporate acquisition and credit agreements between private firms to "good neighbor agreements" and other agreements between private firms and non-profit groups. Second-order agreements often concern not only environmental regulation, but labor, worker safety, health care and other regulatory areas. The Article shows that second-order agreements alter the types of parties that have interests in regulatory outcomes, the incentives they face, and the performance of the regulatory regime. The recognition of second-order agreements thus suggests a new agenda for empirical and theoretical work on the public regulatory measures that will generate the optimal blend of public and private regulation.