Stanford Law Review: Volume 64, Issue 4 - April 2012

Stanford

Law Review

April 2012

Stanford Law Review

Smashwords edition. Published by Quid Pro Books, at Smashwords. Copyright © 2012 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. This work or parts of it may not be reproduced, copied, or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher.

The publisher of various editions is the Stanford Law Review, who authorized Quid Pro Books exclusively to produce this ebook edition: Digitally published in such editions, for the Stanford Law Review, by Quid Pro Books. Available in major digital formats and at leading ebook retailers and booksellers. Previous and later issues of this volume (64, issues 1-6), as well as all six issues of Volume 63, are available in ebook formats.

QUID PRO BOOKS

Quid Pro, LLC

5860 Citrus Blvd., suite D-101

New Orleans, Louisiana 70123

www.quidprobooks.com

Cataloging for the digital edition of Volume 64, Issue 4 - April 2012:

ISBN 978-1-61027-949-9 (ePUB)

CONTENTS

ARTICLES

The Tragedy of the Carrots: Economics and Politics in the Choice of Price Instruments

by Brian Galle

(64 STAN. L. REV. 797)

They Saw a Protest: Cognitive Illiberalism and the Speech-Conduct Distinction

by Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans & Jeffrey J. Rachlinski

(64 STAN. L. REV. 851)

Constitutional Design in the Ancient World

by Adriaan Lanni & Adrian Vermeule

(64 STAN. L. REV. 907)

The Copyright-Innovation Tradeoff: Property Rules, Liability Rules, and Intentional Infliction of Harm

by Dotan Oliar

(64 STAN. L. REV. 951)

NOTES

Testing Three Commonsense Intuitions About Judicial Conduct Commissions

by Jonathan Abel

(64 STAN. L. REV. 1021)

Derivatives Clearinghouses and Systemic Risk: A Bankruptcy and Dodd-Frank Analysis

by Julia Lees Allen

(64 STAN. L. REV. 1079)

About the Stanford Law Review

Subscriptions: The Stanford Law Review (ISSN 0038-9765) is published six times a year (January, February, March, April, May, and June) by students of the Stanford Law School, Crown Quadrangle, 559 Nathan Abbott Way, Stanford, California 94305-8610. Subscriptions are $60 per year; for postage to a foreign address, add $5. All subscriptions are for the volume year and will be renewed automatically unless the subscriber provides timely notice of cancellation. Please contact Julie Yee at (650) 723-2747 for subscription information.

Postage: Periodicals Postage Paid at Palo Alto, California 94303, and additional mailing offices.

Postmaster: Mail change of address or other subscription information to Business Manager, Stanford Law Review, Crown Quadrangle, 559 Nathan Abbott Way, Stanford, California 94305-8610. Include name, new address (including zip code), and old address or mailing label. Please mail changes at least six to eight weeks before the publication date to ensure prompt delivery. The U.S. Postal Service will not forward copies unless additional postage is paid by the subscriber.

Single Issues: Issues (print) in the current volume are available from the Stanford Law Review for $22 each plus shipping and handling fees. For back issues, volumes, and sets (print), inquire of William S. Hein & Co., Inc., 1285 Main Street, Buffalo, New York 14209-1987. Orders may also be placed by calling Hein at (800) 828-7571, via fax at (716) 883-8100, or by e-mail at [email protected]. Back issues can be found in electronic format on HeinOnline (http://heinonline.org).

Manuscripts: The Stanford Law Review accepts the submission of unsolicited manuscripts through our website. For further information, please see http://www.stanfordlawreview.org/content/articles. Please include an e-mail address with all submissions.

Citations: The text and citations of the Stanford Law Review generally conform to The Bluebook: A Uniform System of Citation (19th ed. 2010), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and the Yale Law Journal.

Internet Address: The Stanford Law Review homepage is located at http://www.stanfordlawreview.org.

EDITORIAL BOARD

VOLUME 64

Stanford University School of Law

OFFICERS OF ADMINISTRATION

John Hennessy, B.E., M.S., Ph.D., President of the University

John Etchemendy, B.A., M.A., Ph.D., Provost of the University

Larry D. Kramer, A.B., J.D., Dean and Richard E. Lang Professor of Law and Professor (by courtesy) of History

Mark G. Kelman, A.B., J.D., James C. Gaither Professor of Law and Vice Dean

Deborah R. Hensler, A.B., Ph.D., Judge John W. Ford Professor of Dispute Resolution and Associate Dean for

Graduate Studies Lawrence C. Marshall, B.A., J.D., Professor of Law, David and Stephanie Mills Director of Clinical Education, and Associate Dean for Public Interest and Clinical Education

Jane Schacter, A.B., J.D., William Nelson Cromwell Professor of Law and Associate Dean for Curriculum

F. Daniel Siciliano, B.A., J.D., Senior Lecturer in Law and Associate Dean for Executive Education and Special Programs

Frank F. Brucato, B.A., Senior Associate Dean for Administration and Chief Financial Officer

Diane T. Chin, B.A., J.D., Lecturer in Law and Associate Dean for Public Service and Public Interest Law

Faye Deal, A.B., Associate Dean for Admissions and Financial Aid

Catherine Glaze, A.B., J.D., Associate Dean for Student Affairs

Sabrina Johnson, B.A., Associate Dean for Communications and Public Relations

Susan C. Robinson, B.A., J.D., Associate Dean for Career Services

Julia Erwin-Weiner, B.A., M.A., Associate Dean for External Relations

FACULTY EMERITI

Barbara Allen Babcock, A.B., LL.B., LL.D. (hon.), Judge John Crown Professor of Law, Emerita

Paul Brest, A.B., LL.B., LL.D. (hon.), Professor of Law, Emeritus, and former Dean

Gerhard Casper, Referendar, LL.M., Dr. iur. utr., LL.D. (hon.), President Emeritus and Peter and Helen Bing Professor in Undergraduate Education, Professor of Law, Senior Fellow, Institute for International Studies, and Professor (by courtesy) of Political Science

William Cohen, B.A., LL.B., C. Wendell and Edith M. Carlsmith Professor of Law, Emeritus

Lance E. Dickson, B.A., LL.B., B.Com., M.L.S., Professor of Law, Emeritus, and former Director of Robert Crown Law Library

Marc A. Franklin, A.B., LL.B., Frederick I. Richman Professor of Law, Emeritus

William B. Gould IV, A.B., LL.B., LL.D. (hon.), Charles A. Beardsley Professor of Law, Emeritus

Thomas C. Grey, B.A., B.A., LL.B., LL.D. (hon.), Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law, Emeritus

Thomas C. Heller, A.B., LL.B., Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies, Emeritus

Miguel A. Méndez, A.A., B.A., J.D., Adelbert H. Sweet Professor of Law, Emeritus

John Henry Merryman, B.S., M.S., J.D., LL.M., J.S.D., Dr. h.c., Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law, Emeritus, and Affiliated Professor of Art, Emeritus

David Rosenhan, A.B., M.A., Ph.D., Professor of Law and Psychology, Emeritus

Kenneth E. Scott, A.B., M.A., LL.B., Ralph M. Parsons Professor of Law and Business, Emeritus

Michael S. Wald, A.B., M.A., LL.B., Jackson Eli Reynolds Professor of Law, Emeritus

PROFESSORS

Janet Cooper Alexander, B.A., M.A., J.D., Frederick I. Richman Professor of Law

Joseph M. Bankman, A.B., J.D., Ralph M. Parsons Professor of Law and Business

R. Richard Banks, B.A., M.A., J.D., Jackson Eli Reynolds Professor of Law

Juliet M. Brodie, A.B., J.D., Professor of Law

James Cavallaro, A.B., J.D., Professor of Law and Director, Stanford International Human Rights and Conflict Resolution Clinic

Joshua Cohen, B.A., M.A., Ph.D., Professor of Political Science, Philosophy, and Law

G. Marcus Cole, B.S., J.D., Wm. Benjamin Scott and Luna M. Scott Professor of Law

Richard Craswell, B.A., J.D., William F. Baxter-Visa International Professor of Law

Mariano-Florentino Cuéllar, A.B., A.M., J.D., Ph.D., Professor of Law and Deane F. Johnson Faculty Scholar

Robert M. Daines, B.S., B.A., J.D., Pritzker Professor of Law and Business and Professor (by courtesy) of Finance

Michele Landis Dauber, B.S.W., J.D., Ph.D., Professor of Law, Bernard D. Bergreen Faculty Scholar, and Professor (by courtesy) of Sociology

John J. Donohue III, B.A., J.D., Ph.D., C. Wendell and Edith M. Carlsmith Professor of Law

David Freeman Engstrom, A.B., M.Sc., J.D., Ph.D., Assistant Professor of Law

Nora Freeman Engstrom, B.A., J.D., Assistant Professor of Law

George Fisher, A.B., J.D., Judge John Crown Professor of Law

Jeffrey L. Fisher, A.B., J.D., Associate Professor of Law

Richard Thompson Ford, A.B., J.D., George E. Osborne Professor of Law

Barbara H. Fried, B.A., M.A., J.D., William W. and Gertrude H. Saunders Professor of Law

Lawrence M. Friedman, A.B., J.D., LL.M., LL.D. (hon.), Marion Rice Kirkwood Professor of Law, Professor (by courtesy) of History, and Professor (by courtesy) of Political Science

Ronald J. Gilson, A.B., J.D., Charles J. Meyers Professor of Law and Business

Paul Goldstein, A.B., LL.B., Stella W. and Ira S. Lillick Professor of Law

Robert Gordon, B.A., J.D., Professor of Law

Henry T. Greely, A.B., J.D., Deane F. and Kate Edelman Johnson Professor of Law and Professor (by courtesy) of Genetics

Joseph A. Grundfest, B.A., M.Sc., J.D., W.A. Franke Professor of Law and Business

Deborah R. Hensler, A.B., Ph.D., Judge John W. Ford Professor of Dispute Resolution and Associate Dean for Graduate Studies

Daniel E. Ho, B.A., A.M., Ph.D., J.D., Professor of Law and Robert E. Paradise Faculty Fellow for Excellence in Teaching and Research

Pamela S. Karlan, B.A., M.A., J.D., Kenneth and Harle Montgomery Professor of Public Interest Law

Mark G. Kelman, A.B., J.D., James C. Gaither Professor of Law and Vice Dean

Amalia D. Kessler, A.B., M.A., J.D., Ph.D., Professor (by courtesy) of History, Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies.

Daniel P. Kessler, B.A., J.D., Ph.D., Professor of Law, Senior Fellow, Hoover Institution, and Professor of Health Research and Policy (by courtesy) of School of Medicine

Michael Klausner, B.A., M.A., J.D., Nancy and Charles Munger Professor of Business and Professor of Law

William S. Koski, B.B.A., J.D., Ph.D., Eric and Nancy Wright Professor of Clinical Education and Professor (by courtesy) of Education

Larry D. Kramer, A.B., J.D., Dean and Richard E. Lang Professor of Law and Professor (by courtesy) of History

Mark A. Lemley, B.A., J.D., William H. Neukom Professor of Law

Lawrence C. Marshall, B.A., J.D., Professor of Law, David and Stephanie Mills Director of Clinical Education, and Associate Dean for Public Interest and Clinical Education

Jenny S. Martinez, B.A., J.D., Warren Christopher Professor in the Practice of International Law and Diplomacy

Michael W. McConnell, B.A., J.D., Richard and Frances Mallery Professor of Law

Jay Mitchell, B.A., J.D., Associate Professor of Law and Director, Organizations and Transactions Clinic

Alison D. Morantz, A.B., M.Sc., J.D., Ph.D., Professor of Law and John A. Wilson Distinguished Faculty Scholar

Joan Petersilia, B.A., M.A., Ph.D., Adelbert H. Sweet Professor of Law

A. Mitchell Polinsky, A.B., Ph.D., M.S.L., Josephine Scott Crocker Professor of Law and Economics and Professor (by courtesy) of Economics

Robert L. Rabin, B.S., J.D., Ph.D., A. Calder Mackay Professor of Law

Dan Reicher, B.A., J.D., Professor of the Practice of Law

Deborah L. Rhode, B.A., J.D., Ernest W. McFarland Professor of Law

Jane Schacter, A.B., J.D., William Nelson Cromwell Professor of Law and Associate Dean for Curriculum

Deborah A. Sivas, A.B., M.S., J.D., Luke W. Cole Professor of Environmental Law

Norman W. Spaulding, B.A., J.D., Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law

Jayashri Srikantiah, B.S., J.D., Associate Professor of Law

James Frank Strnad II, A.B., J.D., Ph.D., Charles A. Beardsley Professor of Law

Kathleen M. Sullivan, B.A., B.A., J.D., Stanley Morrison Professor of Law and former Dean

Alan O. Sykes, B.A., J.D., Ph.D., James and Patricia Kowal Professor of Law

Barton H. Thompson, Jr., A.B., J.D., M.B.A., Robert E. Paradise Professor of Natural Resources Law, Director, Woods Institute for the Environment, and Senior Fellow (by courtesy), Freeman Spogli Institute for International Studies

Barbara van Schewick, Ph.D., Associate Professor of Law

Michael Wara, B.A., Ph.D., J.D., Assistant Professor of Law and Fellow, Woods Institute for the Environment

Robert Weisberg, A.B., A.M., Ph.D., J.D., Edwin E. Huddleson, Jr. Professor of Law

SENIOR LECTURERS

Margaret R. Caldwell, B.S., J.D., Senior Lecturer in Law and Executive Director, Center for Ocean Solutions and Senior Lecturer, Woods Institute for the Environment

Janet Martinez, B.S., J.D., M.P.A., Senior Lecturer in Law

David W. Mills, B.A., J.D., Senior Lecturer in Law

F. Daniel Siciliano, B.A., J.D., Professor of the Practice of Law and Associate Dean for Executive Education and Special Programs

Allen S. Weiner, A.B., J.D., Senior Lecturer in Law

VISITING PROFESSORS & AFFILIATED FACULTY

Michael Asimow, B.S., J.D., Visiting Professor of Law

David W. Ball, J.D., Visiting Assistant Professor of Law

Kate Bundorf, M.B.A., Ph.D., Affiliated Faculty of Law

Nita Farahany, M.A., J.D., Ph.D., Visiting Associate Professor of Law

Siegfried Fina, J.D., J.S.D., Visiting Associate Professor of Law

Tamar Herzog, Ph.D., Affiliated Faculty

Joy Ishii, A.B., A.M., Ph.D., Affiliated Faculty of Law

Edward Larson, B.A., M.A., J.D., Ph.D., Visiting Professor of Law

Robert MacCoun, B.A., M.A., Ph.D., Visiting Professor of Law

Jose Maldonado, M.D., F.A.P.M., F.A.C.F.E., Professor (by courtesy) of Law

Avishai Margalit, Visiting Professor of Law

Peter S. Menell, S.B., M.A., J.D., Ph.D., Visiting Professor of Law

Maria Ogneva, B.S., M.S., Ph.D., Affiliated Faculty of Law

Rogelio Perez-Perdomo, Ph.D., Visiting Professor of Law

Paul C. Pfleiderer, B.A., M.Phil., Ph.D., Professor (by courtesy) of Law

Madhav Rajan, B.A., M.S., M.B.A., Ph.D., Professor (by courtesy) of Law

Jack Rakove, A.B., Ph.D., Professor (by courtesy) of Law

Stefan Reichelstein, Affiliated Faculty of Law

Scott Sagan, Ph.D., Affiliated Faculty of Law

William Simon, A.B., J.D., Visiting Professor of Law

David A. Sklansky, A.B., J.D., Visiting Professor of Law

Helen Stacy, LL.B., Ph.D., Affiliated Faculty of Law

J. W. Verret, B.S., M.A., J.D., Visiting Assistant Professor of Law

Jonathan Zittrain, B.S., M.P.A., J.D., Visiting Professor of Law

LECTURERS AND TEACHING FELLOWS

Simao J. Avila, J.D.

Daniel Barton, J.D.

Marilyn M. Bautista, J.D.

Jeanine Becker, J.D.

Karen Biestman, J.D.

Byron Bland. M.A., M.Div.

M. Ryan Calo, J.D.

Viola Canales, J.D.

Nathan Chapman, J.D., M.T.S.

Diane T. Chin, J.D.

Laurent Cohen-Tanugi, J.D., LL.M.

Daniel Cooperman, J.D., M.B.A.

Elizabeth de la Vega, J.D.

Susan Diamond, J.D., M.C.P.

Michael Dickstein, J.D.

Lisa Douglass, J.D.

Jared Ellias, J.D.

Bonnie Eskenazi, J.D.

Jordan Eth, J.D.

Anthony Falzone, J.D.

Randee G. Fenner, J.D.

Bertram Fields, LL.B.

David Forst, J.D.

Laurence Franklin, J.D., M.B.A., C.P.A.

Mei Gechlik, LL.B., LL.M., J.S.D., J.S.M., M.B.A.

Tracy Genesen, J.D.

Thomas C. Goldstein, J.D.

Jennifer Stisa Granick, J.D.

Jonathan D. Greenberg, J.D.

Lucas Guttentag, J.D.

Timothy H. Hallahan, J.D.

Brad Handler, J.D.

Keith Hennessey, M.P.P.

Brooke Heymach, J.D.

David Hornik, J.D., M.Phil.

Ivan Humphreys, J.D.

Erik Jensen, J.D.

David Johnson, J.D., J.S.M.

Danielle Jones, J.D.

Stephen Juelsgaard, D.V.M., J.D.

Julie Matlof Kennedy, J.D.

Suzanne McKechnie Klahr, J.D.

Jeffrey W. Kobrick, J.D.

Charles Koob, J.D.

Tamar (Tami) Kricheli-Katz, J.S.M.

Galit Lipa, J.D., LL.M.

J. Paul Lomio, J.D., LL.M., M.L.I.S.

Brian Love, J.D.

Steven Lucas, J.D.

Beth McLellan, J.D.

Jeanne Merino, J.D.

Roberta Morris, J.D., Ph.D.

Linda Netsch, J.D.

Thomas J. Nolan, J.D.

Jessica Notini, J.D.

B. Howard Pearson, J.D.

Lisa M. Pearson, J.D., J.S.M.

Pamela Phan, J.D.

Sergio Puig, J.S.D., J.S.M., LL.B.

Joe Pitts III, J.D.

Jenik Radon, J.D., M.C.P.

Stephan Ray, J.D.

Edward Reines, J.D.

John Rodkin, J.D., M.B.A., M.Eng.

Michael Romano, J.D.

Andrew Roper, M.A., Ph.D.

Matthew Rossiter, J.D.

Kevin Russell, J.D.

Richard Salgado, J.D.

Ticien Sassoubre, Ph.D.

Jeffrey Schox, J.D., M.S.

Rachelle Silverberg, J.D.

Stephanie E. Smith, J.D.

Dee Smythe, LL.B., J.S.D., J.S.M.

Stephan Sonnenberg, J.D., M.A.L.D.

Larry Sonsini, J.D.

Elizabeth Stark, J.D.

Sergio Stone, J.D., M.L.I.S.

Kimberly Summe, M.S., M.A., LL.B., J.D.

Stuart Taylor Jr., J.D.

Dan Torres, J.D.

Roland Vogl, J.D., J.S.M.

Bruce Wagman, J.D.

Vaughn Walker, J.D.

Erika V. Wayne, J.D., M.S.

Dana Weintraub, M.D.

Katherine Wright, J.D.

James Yoon, J.D.

PROFESSIONAL LIBRARY STAFF

Annie Chen, B.A., M.L.S.

Alba Holgado, B.A.

J. Paul Lomio, B.A., J.D., LL.M., M.L.I.S.

Rachael Samberg, J.D.

Erika V. Wayne, A.B., J.D., M.S.

George D. Wilson, B.A., J.D., M.L.I.S.

Sarah Wilson, B.A., M.L.I.S.

Kathleen M. Winzer, B.A., M.L.S.

Naheed Zaheer, B.S., M.S., M.L.I.S.

ARTICLES

THE TRAGEDY OF THE CARROTS: ECONOMICS AND POLITICS IN THE CHOICE OF PRICE INSTRUMENTS

Brian Galle*

[cite as 64 STAN. L. REV. 797 (2012)]

Externalities are one of the most fundamental market failure justifications for government action, and Pigouvian taxes and subsidies are standard tools for correcting them. Even so, neither the legal nor the economic literature offers any comprehensive account of when policymakers should prefer taxes to subsidies or vice versa. This Article takes up that task. Prior efforts to distinguish between carrots and sticks have generally been limited to the context of pollution regulation, and I show here that even those efforts are incomplete. I also extend the analysis to the case of positive externalities, where there is little prior literature to speak of. Overall, I find that sticks are usually superior to carrots, but that there are some interesting exceptions.

Nonetheless, carrots are rampant in modern lawmaking, especially carrots in the form of tax expenditures. I identify features of modern politics and law that contribute to the current inefficient overproduction of carrots. Among others, I find that federalism contributes to political preferences for carrots. That implies an until-now unrecognized reason to centralize certain forms of government regulation.

Finally, I take issue with the claims of the environmental literature that carrots, even if the inferior policy choice, should be used when politics would be likely otherwise to frustrate any regulation. Using carrots in critical and closely contested situations only contributes to externality producers’ incentives to raise the political stakes, either by cranking out more negative externalities or withholding benefits.

INTRODUCTION

I. BACKGROUND

A. Carrots and Sticks Defined

B. Economics of a Pigouvian Tax

II. CARROTS AND STICKS AS PRICE INSTRUMENTS

III. CONTROLLING NEGATIVE EXTERNALITIES

A. General Analysis

1. Revenues

2. Income and output effects

3. Distributive considerations

4. Repeated-game incentives

5. Repeated games and mitigation

B. Examples

IV. ENCOURAGING POSITIVE EXTERNALITIES

A. General Analysis

B. More Examples

V. THE POLITICAL ECONOMY OF INCENTIVE DESIGN

A. The Tragedy of the Carrots

B. Carrots for Key Programs?

C. Committing to the Carrot-Free Diet

CONCLUSION

INTRODUCTION

Humans sometimes need a bit of encouragement to do good for other people. In a well-known passage of the Old Testament, Jehovah castigates the Israelites for failing to pay a tithe to support His temple, and notes that He has cursed their nation for their collective failures.¹ Then, lightening up a bit, He also promises three blessings for those who tithe.² Modern secular leaders offer more worldly rewards, in the form of a federal income tax deduction, for those who support churches and other goods shared jointly with others.³ In this Article, taking a lead from Malachi, I ask: What about the curse? Why not incentivize charitable giving with a penalty provision, instead of giving away public money? More generally, when should incentives take the form of punishments, rather than rewards?

A more familiar path to the same questions would be to suppose that we were all to agree that the U.S. government should take steps to slow global climate change. How should we do it? We might cap directly the amount of greenhouse gases emitted—for example, by issuing a limited number of permits to emit those gases and letting firms exchange them.⁴ Or we might change the price of greenhouse gas components, such as through a carbon tax.⁵ And, though it may not be obvious at first glance, a very similar approach to the carbon tax would simply be to pay polluters to stop, much as the United States did during the brief life of its cash for clunkers program, and as it continues to do now through a variety of renewable energy tax credits, home rehabilitation tax credits, and so on.⁶

What policymakers have failed to consider closely is: Which of the price approaches is better? Taking money from polluters, or giving to those who clean things up? The stick, or the carrot? Surprisingly, the environmental literature has given only glancing attention to that question, and outside the carbon-tax debate it seems hardly to have been considered in a systematic way at all.⁷ This Article fills that gap.

As many readers know, there is a vigorous debate in the environmental literature on the first set of choices I just mentioned: whether pollutants can best be controlled by regulating their quantity, or instead by affecting their price.⁸ Within the subset of price options, the choice of carbon-tax design might call to mind prominent recent debates over the use of so-called tax expenditures, which consist mostly of arguments over whether the tax system should be used to implement spending programs.⁹

These questions are interesting and important, but so far they have mostly obscured the fact that there is a third key set of decisions to be made about regulatory goals that, like global climate change policy, attempt to grapple with the costs one group of society imposes on another. Such costs (as, again, most readers likely know) are commonly called externalities, and at least since A.C. Pigou economists have known that when a consumer does not pay the full cost of consuming a unit of a good, she is likely to purchase more than society optimally would want.¹⁰ One mechanism for correcting that inefficiency is to change the price the consumer pays for that next unit of a good—its marginal price—to reflect the total cost society bears from its consumption.¹¹ As it turns out, there are two ways of accomplishing that task: tax the good, or pay the consumer not to consume it.¹² In other words, we can make the externality producer worse off than under the status quo: a stick. Or we can make the producer better off: a carrot.

Choices between carrots and sticks are hardly unique to environmental regulation. Indeed, they pop up anywhere we might use a price mechanism for overcoming externalities. Since externalities are one of a handful of fundamental justifications for government regulation, the carrot/stick problem, I will argue, is pervasive throughout government action.¹³ Another prominent recent example is health insurance. Individuals who seek medical care when they lack insurance (or other means to pay) create fiscal externalities for other users of the health system: either paying customers pay more, or health providers take home less, to cover the expense of those who can’t afford care.¹⁴ The Affordable Care Act implements both a carrot and a stick to deal with this externality, and it applies those two tools selectively to two different populations. The poorest households get a carrot: they receive a subsidy to buy their own health insurance.¹⁵ Everyone else gets a stick: they must buy health insurance, or pay a penalty tax.¹⁶

By one measure, penalties and subsidies, or what I’ve been calling sticks and carrots, are largely indistinguishable. One way to put this point is that there is no marginal difference between taxing you a dollar if you do something and paying you a dollar if you don’t. Smoke that cigarette? One dollar, please. Throw it away? Here’s a buck. Either way, the marginal cost of choosing to smoke your next butt, rather than discarding it, is one dollar. This equivalence turns on the concept of opportunity costs, which I explain in more detail in Part I.B.

But carrots can also differ importantly from sticks in their other economic and even moral effects.¹⁷ Relative to present policy, a carrot transfers wealth from taxpayers to its recipients, while sticks have the opposite effect. This transfer can change the preferences of the regulated party, fill or drain government coffers, suit or offend our preferences for punishment and just distributions, and change the incentives of parties who are planning for the next change in regulation. Many of the individual components of this analysis are familiar from other literatures, such as debates over the law of takings or the best way to compensate parties affected by changes in legal rules.

What is novel about my argument here is that it synthesizes these other literatures to reach a global assessment of the relative merits of carrots and sticks as policy tools.¹⁸ Prior analyses, to the extent they’ve considered the question at all, have tended to dismiss carrots out of hand because of their supposed propensity to encourage some actors to do bad in order to be paid to stop.¹⁹ As I argue here, there is actually considerably more nuance to the problem, with a number of factors that favor carrots in some circumstances. Still, at least when it comes to discouraging negative behavior, I agree we should often prefer sticks. Sticks reduce the wealth of those who make the rest of us miserable, which makes sense both in terms of the effect of income on preferences and also in terms of our sense of justice. Sticks also replace other costly forms of revenue, where carrots instead put extra burdens on the treasury.

Another contribution I make is to extend my analysis to the production of positive externalities.²⁰ Nearly all the existing discussion related to the choice of price instruments focuses on the classic case of pollution and close analogues.²¹ But there is no reason the same analysis cannot be extended to the production of social goods, such as charity or innovation. Why do we reward donors instead of punishing the tightfisted? As I show, there is a surprisingly good case for using sticks to produce positive externalities, although it is not as clear-cut as with negative externalities.

I also add to the existing lore by analyzing the political tragedies that lead us to choose carrots over sticks.²² Once we recognize the basic economic structure of sticks as transfers from a concentrated interest group to society at large, it becomes fairly obvious that politics will tend to favor carrots. Less obviously, many aspects of judge-made law, such as the doctrines of standing, unconstitutional conditions, and the dormant Commerce Clause, also contribute inadvertently to our hunger for carrots. Prior commentators have treated these political preferences for carrots as a reason to use carrots, especially in high-stakes legislation. I argue instead that acceding to demands for carrots is like capitulating to blackmail: it only leads to greater incentives for bad behavior in the future.

My analysis of the politics of carrots also raises a point of particular interest for those who study federalism. At this point there is a standard list of policy arguments either for assigning government responsibilities to the national government or devolving them to states and localities.²³ Federalism commentators have mostly devoted their efforts to rebalancing among these well-known points.²⁴ I offer here a new reason for preferring central government to local: local governments face excessive pressure to use carrots, and carrots are often inefficient. Thus, while the existing federalism literature recognizes that the presence of externalities that spill across borders might be a justification for federal action, my analysis implies that even externalities that do not cross borders might better be handled by the central government.

In short, our practice to date of neglecting the importance of the choice between carrots and sticks has led to some unfortunate policy decisions. Thinking about that carrot/stick choice systematically can teach us some useful lessons for institutional design. Thus, I also use the synthesis I develop to cast a new light on a wide variety of existing government programs. Some, such as the new Affordable Care Act, turn out reasonably well. But many others, some costing tens of billions of dollars per year, don’t.

In Part I, I will define more explicitly what I see as the difference between carrots and sticks, and offer up some background in the basic economics that motivates their use. Part II details the ways that carrots and sticks differ economically and ethically, in particular in their impact on revenue, income and output effects, distribution, and incentives. Part III applies that framework to the regulation of negative externalities, and offers a number of examples. Part IV does the same for positive externalities. Part V explains why the political system inefficiently overproduces carrots, identifies the legal rules that further push politics in that direction, and argues that carrots should probably be rejected even in the case of important legislation that could not otherwise pass.

I. BACKGROUND

A. Carrots and Sticks Defined

Before beginning our discussion of carrots and sticks, it will be useful to explain what I mean when I use those terms. I define a carrot here as a welcome change against a given, usually pre-existing, policy baseline; a stick is simply an unwelcome change in the opposite direction. As I’ll explain in a moment, the phrase against a given policy baseline is important, since for my purposes it is all that separates the two.

Carrots and sticks can take many forms. Being relieved from an obligation one expects to have can be a carrot. For instance, suppose I expect to have to pay $10,000 in income taxes at the end of the year. To avoid some awkward moments, such as audits and jail time, I set aside that amount in anticipation of the bill.²⁵ Congress changes the law so that my tax bill will be only $9,000 if I buy a hybrid car.²⁶ Now, as soon as I roll off the dealer’s lot with my new Prius, I have an extra grand to spend that I didn’t expect.²⁷ So these kind of tax expenditures, as they are sometimes known, count as carrots, even though in a sense they are just relief from some other burden.²⁸ A stick can be the opposite. When the federal government threatens to withhold highway dollars from states if they don’t increase their drinking age to twenty-one, as it did to prompt the famous Supreme Court case South Dakota v. Dole,²⁹ that is a stick: a denial of some portion of an expected benefit.³⁰

There is something a little bit strange about calling the condition on highway dollars a stick, though. After all, even if the state gets less than expected, it still gets some federal money. And who is to say that the state was entitled to any money at all? If we were to measure whether a rule is a carrot or stick from some baseline of what the right outcome is, or the economically efficient one, then it isn’t clear at all what to call the drinking-age rule. The answer depends on how much money we think South Dakota should get, in some normative sense, and then whether the rule departs upwards or downwards from there.

Perhaps it is possible to make these distinctions, but that is not my goal here. As others have pointed out in a variety of legal contexts, establishing the normatively correct baseline for deciding when departures up or down from that base should be called subsidies is challenging.³¹ What I offer instead is simply a framework for evaluating departures from any given baseline. From wherever we start, should we move up (carrots) or down (sticks)?

If it isn’t obvious from what I have just said, let me emphasize that defining any particular policy as either carrot or stick is mostly arbitrary. Given a different baseline, any carrot can morph into a stick and vice-versa. To see this, consider the recent health care legislation, which imposes a tax on individuals who do not purchase qualifying health insurance.³² That tax, with some exceptions, is two percent of annual income.³³ Is this a carrot or a stick? Seen from before the legislation was put into place, it looks like a stick: do this thing or pay this new, higher amount. But once the legislation is in place, it looks like a carrot: if taxpayers buy insurance, they get a discount on their income taxes, which happen to be two percent higher than they were at a time in the recent past.³⁴

From a normative perspective, this fluidity of definitions turns out not to be a problem for my analysis, because almost everything that I will argue is perfectly symmetrical. As we’ll see, granting carrots enriches recipients at the cost of the general public, and that has implications for the strategic behavior of parties who might be awarded carrots. Using sticks enriches the public at the cost of those menaced with the stick, and has the opposite strategic incentives. My framework can therefore be used to compare any two levels (including zero) of price instruments to each other, since the relative effect of moving from one to the other is the same regardless of direction. For instance, comparing a big stick to a small stick is the same as thinking about moving from neutrality to a carrot (if a small stick is the baseline) or from neutrality to a stick (if a big stick is the baseline). Either way, we will find that, as compared to the small stick, the big stick enriches the general public at the expense of the regulated party, and that this difference will spur similar incentive effects whichever baseline we start with. Given the difficulty of establishing normatively correct baselines, I view this indifference to baseline as a feature, not a weakness, of the carrot/stick framework.

As I’ll try to show, though, the political and psychological dimensions of a policy change are not perfectly symmetrical. The current state of the world has an important impact on how people and governments respond to proposed changes. These responses are, to say the least, not always in accordance with the normative prescriptions of the rest of the framework.

Along those lines, another issue readers should keep in the back of their minds is that the literature on price instruments assumes that individuals in fact respond to changes in their self-interest. To the extent that some instruments may be more difficult for individuals to notice or understand, they may not fully produce the predicted effects. In other cases, actors may fail to respond fully to incentives because of agency problems: those who decide on behalf of the actor could have self-interested goals that don’t fully align with their principal’s. For purposes of this Article, though, I will assume away these problems, in the hope that simplification will allow me to better focus on the basic lessons of fully operational price theory.

B. Economics of a Pigouvian Tax

In this next introductory Subpart, I will explain how carrots and sticks are usually used as policy tools. I provide, in other words, a brief overview of the theory of price mechanisms, and explain why that theory treats carrots and sticks as equivalent in most ways. Readers familiar with basic microeconomic theory can safely skip to Part II.

Most policy analysts to date have not focused closely on the differences between carrots and sticks because in at least one important aspect the two are identical. Either a penalty or a subsidy can be equally effective as a price mechanism for setting the right marginal price of a good.³⁵ To see this, it’s helpful to first step back and ask what it means for society to have the wrong amount of a good (and when I say good here, I mean anything humans might want, ranging from hunks of cheese to leisure time).

Externalities are a common reason why private markets fail to produce the amount of a good that best satisfies society.³⁶ An externality is just some other person’s reaction to the things that I do.³⁷ For instance, if I grow oranges in my backyard, some rotten oranges might fall into my neighbor’s driveway, producing sticky juice stains on his new car.³⁸ If I am totally self-interested, I have no reason to care about my neighbor’s car. As the economist Ronald Coase pointed out, though, my neighbor may find ways to persuade me to clean up the situation: either by paying me to prune my trees, or perhaps by threatening to prune something else if I don’t.³⁹

Externalities can be either negative or positive.⁴⁰ Maybe my neighbor also enjoys the shade of my tree, or even collects a few tasty oranges that make a softer landing on his property: these could be positive externalities. In either case, because the producer of the externality does not have any direct reason to care about the effects of the externality on others, she produces either too much or too little of the good. If there are negative externalities, she produces too much; if there are positive, too little. In conventional economic terms, the total production of the good deviates from the optimal social amount, because the net social cost or benefit of each unit of the good differs from the producer’s private cost or benefit.⁴¹

One typical economist’s solution to these failures of the private market to get things right is to adjust the producer’s price to match society’s preferences.⁴² For example, suppose that each orange tree I grow causes an expected $1000 of damage to my neighbor’s property. If my neighbor has no legal recourse against me, I will grow more trees than the optimal amount, since when I decide whether to plant another tree I consider only my own costs and benefits and not his. But if there were, say, a $1000 orange tree tax, or if my neighbor could file a $1000 lawsuit against me for creating a sticky orange nuisance, then I will produce only as many trees as would be cost-justified given both my own preferences and also his. Alternately, if he enjoys my shade and tasty fruit, society might give me a $1000 subsidy to grow trees, so that I will be willing to plant even if my own benefits from tree growing are small. These price mechanisms are often called Pigouvian (or, sometimes, Pigovian) taxes, after the economist A.C. Pigou, who first suggested them.⁴³ They are usually thought to be superior to more direct forms of government control in that they reveal private market information about the efficient amount of regulation, and allow the market to allocate externality reduction to the least-cost reducers.⁴⁴ All of this assumes, I should note, that the Coasean solution of direct bargaining would not work. That may be untrue of me and my neighbor,⁴⁵ but seems more plausible for goods with widespread impact, such as pollution or education.⁴⁶

Society can use either carrots or sticks interchangeably to get externality producers to internalize the marginal effects of their decisions on others.⁴⁷ Again, one way to force me to recognize the $1000 per tree impact of my rotten oranges is to tax me $1000 per tree. But another way would be to offer to pay me $1000 not to plant the new sapling I’ve purchased. These are equivalent on the margin—that is, from the perspective of my single decision to plant the sapling or not—because of opportunity costs.⁴⁸ An opportunity cost is just the value of what I give up when I make a particular decision.⁴⁹ If I am self-employed and I take the day off to watch Oprah reruns, my opportunity cost is the revenue I could have earned working. So, too, with the sapling. If you offer me $1000 to throw away the sapling, then my opportunity cost of planting instead is $1000.

To see this more clearly, consider my economic position under the tax and the subsidy. If there is a tax, and I choose to plant the tree, I have a new tree and I am poorer by $1000. If I don’t plant, I have no tree and $1000 in my pocket. Now the subsidy. If I don’t plant, I have no tree, and I have an extra $1000 in my pocket from your subsidy. If I do plant, I have a nice new tree, but my pockets are empty. Either way, the decision to plant the tree costs me $1000: an economist would say the marginal cost of planting is $1000.

If this equivalence seems unnatural to you, reader, you are not alone.⁵⁰ Researchers have found time and again that we perceive gains differently from losses.⁵¹ We take the status quo (or, sometimes, other salient events, such as the price we paid at purchase) as a fixed point of reference, and we evaluate departures from it in different directions differently.⁵² In particular, we tend to be loss averse: we fear losses more than we prize gains.⁵³ But often the difference between a gain and a loss is just a matter of how it’s framed: is the loss of the $1000 subsidy a loss, or not? These kinds of framing effects impact how actors respond to incentives, even when those incentives are economically equivalent.⁵⁴ But framing effects are a matter of the happenstance of how a given policy is described, and so can potentially be changed to suit our policy objectives.

II. CARROTS AND STICKS AS PRICE INSTRUMENTS

What then are the real, rather than perceived, differences between carrots and sticks? If we put together a mosaic with pieces of the arguments scattered through the instrument-choice literature, our mosaic would have four basic kinds of tiles. I will call them income effects, revenues, distributional consequences, and incentives. A possible fifth tile, closely related to income effects, is what I will call output effects; output effects are like income effects, but for firms rather than people.

Income effects are changes in individual behavior resulting purely from changes in that person’s budget.⁵⁵ Most of what we buy are items an economist would call normal goods: the more money we have, the more we want of the things we want.⁵⁶ Typically our budget isn’t large enough to permit us to consume all we might desire. As our budget constraint loosens, we consume more. In some cases, our deeper pockets allow us to shift away from the bargain goods we were buying and now consume a more desirable alternative; an economist would call the goods we abandon in this process inferior goods.⁵⁷ Either way, modest changes in the price of one good among many probably won’t have large effects on the wealth-driven preferences of an average household, but could have more significant impacts on the preferences of very poor families.⁵⁸

The change in preferences resulting from income effects can sometimes either reinforce or undermine the change in demand resulting from a carrot or stick.⁵⁹ While both price mechanisms change the marginal cost of an additional unit of a good, they have opposite effects on the individual’s wealth. Carrots, obviously, make the recipient richer than she was under the prior policy, while sticks if triggered impoverish the payer.