Information may be a bad choice of a name

1. Information may be a bad choice of a name • Common to all policy mechanisms: rights, regulations, incentives all involve information • Price signals • Human Rights Declaration, Voting Rights Act • Securities Regulation focuses on information • New work and reforms: in a complex world information about practices can have a regulatory effect without enforcing compliance

2. Citizen’s Right to Know • Emergency Planning and Community Right-to-Know Act of1986 (EPCRA) and the Pollution Prevention Act of1990.“Every American has the right to know the chemicals to which they may be exposed in their daily living. Right-to-Know laws provide information about possible chemical exposures. “(http://www.epa.gov/epahome/r2k.htm) • The Toxics Release Inventory (TRI) is a “publicly available EPA database that contains information on toxic chemical releases and other waste management activities .”(http://www.epa.gov/epahome/r2k.htm) • Bureaucratic support of “concerned citizens right to know” • Civic networks RTK Net (www.rtk.net)

3. New generation information based policies • TRI produces ‘ratcheting up’ of performance through diffuse pattern of action • Toxic programs. MA Toxics Use Reduction Act • Self-regulation. From private contracting relationships. ISO standards • Medical right to know networks • International labor standards and regulation of sweatshops: diffuse pressure and non-compulsory standards

4. What questions does information raise? • Who • How--transparency • How does information focus attention? • Can institutions keep up: innovation and reframing

5. Rights: These distinctions should be familiar. • Positive versus normative • Procedural versus substantive • Negative versus positive • Sources: constitutions, legislatures, administrative agencies, courts. Others? • Mechanisms: formal statement, grievance process, compliance mechanism (enforcement)

6. Some general characteristics of rights • Inhere in individuals and provide them with a basis for invoking the power of the state and the protection of process • Like information, a diffuse mechanism • Require standing and harm (current or historical) that infringes on rights • Judicial or quasi-judicial enforcement • Test cases used in policy to manage boundary between individuals and groups • Substantive enforcement is elusive

7. Normative Basis is recognized but outside the state: Moral basis Can have them without claiming them: inalienable rights Provides basis for appeals and justifying claims “Life, liberty and the pursuit of happiness” Positive Articulated rights Backed by authority of the state People claim them Interpreted in official processes Property rights Normative vs. Positive

8. Procedural Spell out a characteristics of an acceptable process of decision-making or reviewing appeals Fair trial Substantive Specify entitlements and actions that are required Education Procedural vs. Substantive

9. Negative Free from restraint No one can infringe on your enjoyment Enjoy your property Freedom of speech of movement Positive Create affirmative obligations to provide conditions that fulfill the right Entitlement programs: nutrition, housing, level of welfare Negative vs. Positive

10. Mechanisms: • Formal statement • Grievance process: settlement vs review and reinterpretation • Compliance mechanisms

11. Who are the players • Repeat vs single play • Repeat: organizations, interest in precedent, greater resources • Single play: individuals, focus on case at hand • Test Cases

12. Affirmative Action: Players • Universities (admissions, research) • Individual plaintiffs • Groups: NAACP, Center for Individual Rights, Center for Equal Opportunity,

13. Affirmative Action • What is the issue at hand? • How would we classify this using Stone’s vocabulary of rights? • What is the broader policy question? • Does rights frame this in a helpful way?

14. Affirmative Action: Synopsis • We used the rights vocabulary and our policy framework to unpack the case and saw the following. First, what was in dispute was a set of policies by universities that constitute solutions in our framework. These solutions respond to the problem of discrimination and lack of equal opportunities for African Americans and other minorities in education and hiring. The negative procedural rights to be free from discrimination did not provide equal opportunity or its new cousin, diversity. [Think about how the transition from equal opportunity moves from a goal for one group to a shared goa.] The article and our discussion highlighted numerous ways in which this transition might be subverted. This led to efforts such a the University of Michigan’s to give these rights substantive expression, or “fair value.” The problem was created when this effort conflicted with the student’s negative procedural right to be free from discrimination in admissions decisions. As we noted this was a test case, and Ms. Grosz was chosen by the a group that brought longstanding concerns and resources to the controversy, not the other way around.

15. To test your understanding, consider: • UN Declaration on Human Rights (www.unhchr.ch) • Are the rights articulated: positive or normative? procedural or substantive? negative or positive? • How does the Declaration fit in Stone’s scheme? • How would you interpret implementation initiatives? • Is the international case more similar to or different from the national case?

16. Rights in Property • Created and limited government in real and intellectual property. • Policy limits: zoning restrictions, building codes, pursuant to health safety and welfare. Endangered Species Act. • Reinterpreted over time: Coastal access in California

17. Creating Property Rights: Tradeable permits • Mixed type: exchange requires creation of a right in property • EPA SO2 and NOx • Attention for climate change • OECD Tradeable Renewable Energy Certificates

18. Basics of tradeable permits • Scarcity created by a regulatory cap on emissions • Allowance is a property right to emit a fixed amount • Polluters have increased flexibility • Polluters and non-polluters can trade allowances • Still requires monitoring and compliance mechanisms