The information available on climate change for policy-making purposes is plagued by large inherent uncertainties. Apart from uncertainties about future emissions, this includes uncertainties in projections from global climate models as well as climate change impacts, economic costs, and policy responses. Additional uncertainties are associated with the technological, social, and political contexts surrounding the policy response options.

Part Two describes a new framework for thinking about the climate change problem. This framework does not attempt to resolve the plethora of problems identified in Part One. Instead, it seeks to bypass most of the existing problems that have contributed to the acrimonious public debate and policy gridlock surrounding climate change.

At the heart of this reframing is a better understanding and accommodation of all aspects of uncertainty surrounding climate change. This new framework moves away from producing consensus science that supports the linear model of “predict-then-act,” to a scientific process that supports a scenario-rich robust decision-making framework. This new framework opens up space for disagreement among scientists and broadens participation to include individuals with a wide range of expertise.

Part Two focuses on plausible outcomes of climate change in the twenty-first century that are relevant to policy making, including natural climate variability plausible worst-case scenarios. This formulation bypasses debates over the historical and paleoclimate data records. It starts the climate change clock in the year 2000, which characterizes the current climate to which humanity has more-or-less adapted. A focus on regional climate variability in the context of local vulnerabilities is regarded to be more important for decision-making than changes in global mean temperature.

This framework for the climate change problem sets the stage for a response framework (Part Three) based on robust decision-making aimed at improving human well-being in the twenty-first century.

Enlightened Urbanisation

During the eighteenth century, many peninsular and colonial cities of the Spanish empire focused on improvements and modernisation of public services on offer, such as waste collection, street paving and lighting, with the aim of bettering urban health standards. While these measures tried to improve urban conditions and benefit its citizens, local authorities simultaneously used them to enhance the overall image of the city and with it, the image of the empire and the monarchy. Indeed, it was during this century when European governments realised that travellers’ accounts and maps were becoming more widely available thanks to the widespread distribution of books that disseminated urban images to a global public. Urban images were therefore an opportunity for European governments to impress their rivals with tales and images describing architecture, monuments, or local festivities. This meant that urban developments carried out in Buenos Aires had to be as aspirational as those in other Spanish colonial centres were. Furthermore, as this city was now the capital of one of the four viceroyalties of the empire, it had to set even higher standards and spread stylistic trends as well as public health innovations across the River Plate area that was under its control. This was a tall order for a small town at the periphery of the colonies, with a skyline dominated by the domes of religious buildings. The task now was to shake-off this catholic and rural image and become a modern capital for an enlightened society.

Thinkers of the Enlightenment argued that cities were the way to progress. An ‘urban man’ was a civilised man and the elimination of ignorance was only possible through the secularisation of the city. Achieving this in the eighteenth century meant the expansion of public places where society could mingle and enjoy leisure activities, and not just spaces for religious and/or political gatherings. The century saw a rise in the development of promenades, parks and even entire towns were redesigned around the concept of health as a social activity, with spa towns spreading across Europe, with visitors arriving in the summer months to enjoy the restorative power of thermal baths or to drink from famous wells providing mineral waters.

Decision-making chooses among alternatives in order to change outcomes in a desired way. Alternatives are problem-dependent and can include policies, strategies, plans, designs, or other actions. Decision analysis supports risk management and policy making. Decision analysis frameworks and tools can provide systematic approaches for organizing the pros and cons of decision alternatives.

Classical decision analysis identifies an optimal choice among actions, based upon the probability of occurrence of possible outcomes and the decision maker's utility functions that measures preferences. Influence diagrams and decision trees are commonly used graphical representations of decision-analysis problems. Quantitative approaches such as Bayesian approaches and expected utility-based perspectives complement more qualitative decision tools. Uncertainties in the input parameters are propagated through a model to generate the expected utility of the different options. Decision rules are then applied (e.g., the maximum expected utility). Classical decision analysis is useful for tame or simple problems.

However, nearly all decisions with high consequences are not simple—rather, they are characterized by complexity, uncertainty, and ambiguity. Examples include climate change, global pandemics, mega-scale infrastructure projects, selection of energy sources to rely on in the future, development of cities, and management of rare events such as a natural disaster, a financial crisis, or a terrorist attack. For a complex decision with the potential for serious consequences, the classical analytical decision tools have severe limitations. But non-simple risks are commonly treated, assessed, and managed as if they were simple. This maltreatment can result in social amplification of the risk, prolonged controversy, conflicts, stalemates, questions of legitimacy, expensive recovery procedures, and commitments that are difficult to adjust.

The examples cited above are associated with “deep uncertainty.” There can be many sources of deep uncertainty in a complex system. Fundamental indeterminacy or unpredictable system outcomes are common conditions of emergent, systemic risks (Section 10.1.2). Decision-making in the face of systemic complexity often faces disagreement about priorities, goals, and values with regards to the desirability of different outcomes. Further, there are irreducible uncertainties regarding the consequences of our actions in the presence of systemic risk.

Adaptation is the process of discovering methods to remain flexible and thrive during periods of change. With climate change, the adaptation process seeks to minimize the negative impact of a changing climate, while leveraging any new opportunities that may appear. Climate adaptation can be reactive, occurring in response to extreme weather and climate impacts, or anticipatory, occurring before impacts of climate change are observed. It involves adjusting policies and actions because of observed or expected changes in climate.

A “climate shock” is a shock to a place, impacting people who live and/or work, own assets, or use products grown or produced there. Resilience of a community or country relates to how well the institutions and systems provide public goods during and after shocks. Resilience relates to the capacity to adapt. Building resilience through development is a key foundation for effective adaptation.

Science now provides a basis for communities to anticipate a range of potential climate conditions. Taking action before the worst impacts are incurred is different from how humans have adapted in the past. The challenge to pro-active adaptation is to avoid expensive measures that end up either being wasted when the expected conditions do not occur, or locked-in measures that are inadequate to protect from conditions that actually occur.

Unlike mitigation (reducing/eliminating CO2 emissions) which operates on a global scale with potentially global benefits, the benefits of adaptation, resilience, and development are local to regional. Local manifestations and impacts of climate change are mediated by geography and local infrastructure, social, economic, and political environments.

At the local level, adaptation is a complex process that emerges as social systems reorganize through a series of responses to external stresses. The challenge is to enhance the capacity of communities to adapt by creating enabling environments through rising incomes, access to markets, and rising educational attainment.

Context

The Earth is a hostile place for humans, as evidenced by the struggles of our early ancestors, who adapted primarily through migration. Slowly, humans learned to deal with their environment. Over the past century, adaptation has been substantially enabled by fossil fuels and machines.

A wide range of models are used in climate science to study the climate system and its behavior across multiple temporal and spatial scales. Climate models range from simple energy balance models to exceedingly complex Earth system models. Global climate models (GCMs) create a coarse-grained simulation of the Earth's climate system using computers. GCM development has followed a pathway mostly driven by scientific curiosity, although efforts have been constrained by computational limitations. GCMs were originally designed as a tool to help understand how the climate system works, integrating community knowledge so that the implications of collective knowledge can be explored. GCMs are used by researchers to represent aspects of climate that are difficult to observe, experiment with theories by enabling otherwise infeasible calculations, understand a complex system of equations that would otherwise be impenetrable, and explore the climate system to identify unexpected outcomes. As such, GCMs have emerged as an important tool in climate research.

While GCMs continue to be used by scientists to increase understanding about how the climate system works, their outputs play a central role in developing international, national, and local policies. In the context of the IPCC and the UNFCCC, climate models are used to assess the causes of recent climate change, predict future climate states, provide guidance for emissions reduction policies, support local adaptation policies, and to provide inputs for Integrated Assessment Models to assess the social cost of carbon.

There is considerable uncertainty and disagreement about the extent to which climate model simulations provide accurate information about the world. Scientists lack the data they need to comprehensively test a model's performance, and scientists disagree as to which metrics should be used for climate model evaluation. Conclusions about model reliability are made more difficult insofar as the climate system is nonlinear, complex, and not well understood theoretically.

Initially, climate research programs aimed at the reduction of the uncertainties in climate models. However, since the mid-1990s, it has been increasingly recognized that more research does not necessarily reduce the overall uncertainties regarding future climate change.

Facts

This case focuses on a dispute between Betty and Tom Walker and their three children, Lila, Will, and Ellis. Betty and Tom owned several tracts of land in Alberta, including three parcels of farmland where they lived. Their son Will had also been made the registered owner of these three parcels. Lila was made an owner of only one parcel, the “family home parcel,” where their home was located.

In 2006, Ellis spoke with his family about being added to the title of the three parcels of land. His parents, sister, and brother would all need to execute documents adding him to the title of each parcel. Despite a verbal agreement that he would become a co-owner of the land, his brother Will refused to execute the documents. Seeing conflict brewing, Tom Walker hired a lawyer, Laura Simon, to represent him in adding his son to the title for each of the three parcels. Betty, Will, and Lila retained their own lawyer, Terry Harris.

Simon and Harris negotiated a settlement with the family in early 2007 that allowed Will, Betty, and Lila to each retain their quarter interest in the family home parcel. Tom would share his quarter interest in the family home parcel as joint tenants with his son Ellis; when Tom died Ellis would inherit the entire quarter interest. Lila was added as a quarter owner to parcel two, and Tom agreed again to share his quarter interest in parcel two with Ellis also as joint tenants. Ellis was not added to the title for parcel three.

Simon sent the agreement to Harris for his clients to sign, and then Harris sent the document back to Simon for her clients’ signatures. Tom Walker signed the documents but Ellis Walker did not. About two weeks later, Simon sent revised documents to Harris for their signatures. The new agreement modified Ellis's quarter share: instead of holding the interest with his father as joint tenants, they held the interest as tenants in common, each holding one-eighth interest in the entire property. At Tom's death, Ellis would no longer have had any claim to his father's one-eighth interest in the property. Ellis was not informed of this change and it is unclear why it occurred.

Simon was responsible for submitting the executed documents to the title registry.

Facts

This case involves a plaintiff who took out a mortgage to purchase a land parcel for development. Despite the obstacle of the land being contaminated, the plaintiff went to great lengths to pay off his debts to the mortgage lender, including handing over his family's country home. Nonetheless, these efforts over many years did not meet the lender's expectation for interest and principal repayment and resulted in several lawsuits. The case was ultimately settled at JDR with both sides walking away from all their claims.

Lead-up

In January 2005, two friends, Edward and David, purchased a piece of industrial land that they perceived to have development potential. They made the purchase through a newly incorporated company, 270 Incorporated (270 Inc.), in which they were equal shareholders. Each agreed to finance half of the $750,000 purchase price. Edward financed his half with a vendor-takeback loan from the seller, who was his sister. David obtained and personally guaranteed a mortgage loan from a third party, Forte Banking Corporation (Forte Banking), which had previously provided David and his wife a mortgage for their country home.

A month later, David's counsel (who incorporated 270 Inc. for David and Edward) told David that the land had a caveat on behalf of Coal Creek Oil and Gas due to contaminated waste beneath the soil. David and Edward had a difficult time making mortgage payments and otherwise advancing their development project. Within several months of purchasing the land, Edward sold his 50 percent share in 270 Inc. to the sole shareholder of Forte Banking, and his sister transferred the mortgage to Forte Banking. It would eventually come to light that Edward and his sister engaged in a series of related party transactions for increasingly greater amounts that inflated the land's value and looked like a classic straw buyer mortgage fraud.

Even though Edward left the deal, David still felt there was development potential in the land and made further agreements with Forte Banking to help with the payments over several years. In early 2006, Forte Banking lent David additional funds securitized by a mortgage on David's private home in the city, and also received David's 50 percent shares in 270 Inc. as security for his debt.

Facts

Hydraulic fracturing, or “fracking,” involves injecting an acidic solution at high pressure into a well in subterranean rocks in order to create deep, under-ground fissures and release oil, natural gas, geothermal energy, or water. As fluid and vapor are released in this process, the gaseous returns are vented and collected in a tank.

At a fracking site in Alberta in the late 1990s, a fire broke out when the collected gases escaped from their tank and alit on a diesel engine sitting two feet away. Allegedly, the tank was the wrong kind of vessel for flammable gas storage, as it was not equipped with any kind of venting mechanism to release pressure in the tank, and this led to the leakage. The placement of the engine near the tank and the crowded layout of the fracking site made it difficult for firefighters to maneuver around the blaze. The firefighters lost precious moments when the fire truck stalled, and making matters worse, they may not have had enough training, fire retardant, or water at their disposal in order to quickly extinguish the fire. All told, the fire caused more than $3.3 million in damage to equipment, as well as a loss of profit due to the shut-down and clean-up operations required after the fire.

At the time of this case, the regulations governing fracking in Alberta included a schematic drawing of how a fracking site should be laid out to prevent fires and to allow emergency personnel to respond to fires. The design requirements at these sites were of particular importance in this case: Flammable vapors captured from wells were required to be properly stored seven meters from equipment such as diesel engines that might cause those vapors to ignite.

These requirements would have been common knowledge among all parties on the job site. However, there was also an unspoken norm that workers on fracking sites would be blacklisted from future jobs if they raised safety concerns that might slow or halt production. The site in this case was operated by one company, owned by several others, staffed by engineers and operations consultants from three other companies, and two companies were also brought in to provide safety services. Any of these companies and their employees may have recognized the myriad safety violations that led to this fire, but none of them raised alarm.

Facts

On November 8, 2019, before the Court of Queen's Bench of Alberta, two siblings, Tom and Elsa, discussed how to distribute their deceased parents’ estate. Their father had died in June 2008, and their mother passed away almost three years later. When the father died, the estate and values consisted of a residence ($345,000), personal property ($4,330), a portfolio of investments ($71,000), and a boathouse cabin ($92,000). Additionally, assets such as personal belongings remained in both houses waiting to be inventoried and disposed of.

The estate also had many costs to cover, such as unpaid municipal taxes for the properties and other management fees. Tom and Elsa were named as the personal representatives of the estate and tasked with liquidating and distributing its assets and liabilities. Agreeing on finances—that is, deciding who gets what, how much, and why—is not easy. Yet, the hardest issues often have nothing to do with money, but with the complexity of feelings involved and the gap of recognition between the parties. This case revolved around “feelings and finances,” as Elsa's counsel, Marie, put it.

Elsa had financial difficulties of her own, even before her parents died. To help her out, her parents had let her and her husband live in the residence property until their situation improved—for more than eleven years. She devoted a significant amount of time to helping their parents cope with their physical conditions for many years, and she felt that her time and efforts should have been compensated or at least acknowledged by her brother.

Tom was frustrated that his sister had lived rent-free—without even paying the taxes on the property—and that she continued to delay any agreement by refusing his offer to distribute the estate. She even asked to keep the most valuable asset, the house, for herself. He generated multiple offers to deal with their differences, but none were satisfactory to her; he thought Elsa was uncooperative and messy with numbers.

Though an application for a Grant of Probate was made, they were not able to resolve their differences, partition the estate, and honor their parents. In fact, they were so polarized they could not even agree on language for their parents’ gravestone.

Tom filed a petition asking the court to settle these issues once and for all.

The Facts

Mr. Barton, a plumber from Alpine, Saskatchewan, parked his car on the side of the TransCanada Highway and ran across the road toward a city mall. Barton had traveled to Alberta to visit friends and do some shopping. While crossing the road, Barton was hit by a 1963 GMC truck, causing severe injuries to his head, legs and back, leaving him with chronic pain and in need of long-term care. Following his discharge from the hospital in the early 2010s, Barton brought suit against the driver of the truck.

The truck was driven by Mr. Driggs, an Alberta local, who had been on the road for eight hours that day transporting hydroponic vegetables across the province. He had made this trip without incident several times before and had successfully traversed most of the nationwide TransCanada Highway throughout his career. Despite a long record of safe driving, there is no question that Driggs struck Barton that night.

Barton, the plaintiff, sued Driggs for failing to observe him or to honk the horn as a warning. He alleged that not only was Driggs fatigued and driving in a dangerous and distracted manner, but that the old truck was not properly maintained and had not been equipped with modern braking equipment. Barton would never fully recover from his injuries that had left him in the hospital for almost two months. He sought just over $1 million in damages: $200,000 for general damages, $500,000 for future loss of employment, and $350,000 for future cost of care.

Driggs, the defendant, claimed that Barton had run across the highway without warning and had caused an unavoidable collision. He also asserted that Barton had crossed the road outside of a crosswalk—which was unlawful—and without due care and attention. Driggs further claimed that although he was tired, he had exercised due caution at the time of the accident and that his slow-moving truck was properly equipped for highway driving. Lastly, Barton's sporadic work history made it difficult to estimate any loss of future income the defendant had suffered.

The parties filed timely pleadings through their lawyers. Barton hired a plaintiff-side law firm located in Alberta and filed the case in the jurisdiction where his injuries had occurred.

The lawyer's job is to represent his or her client and to be the conduit through which the client receives information about the legal process. Lawyers play an instrumental role in ensuring that clients understand all the information they receive. They also give advice to their clients, especially with regard to the question central to JDR: “Should I settle this case?”

It is not always obvious what the attorney's interest is in promoting settlement. Is it the same as their client’s? If the case settles, the lawyer might well be forgoing additional fees. If a case can immediately settle in mediation with a skilled attorney, why wasn't the agreement reached previously in trial? Why did it take so long and cost so much to get to that point?

There have always been lawyers who argue against mediating legal disputes. Some of the classic anti-mediation claims are: “We are big people, we can settle the darn thing, what do we need a third party for?” and “Why do our clients have to be there?” This is a bit reminiscent of the familiar argument, “We settle almost all cases anyway, what more do you want?”

The other reaction is an unspoken sentiment that runs through many cases. As one lawyer said, “Early settlement, in other words, settlement using court-connected mediation, perhaps kicks me squarely in the pocketbook. [The lawyer goes on to say] … If you are being entirely selfish just looking at the lawyers’ interest, then why do I want this?” This statement—anonymous of course—reflects the anxiety that many lawyers feel looking at the phenomenon of the court-connected mediation, especially where it is mandatory and especially where it takes place early in the litigation process.

The third reaction—another “pushback”—is that mediation will produce a “watered- down legal system.” This view proports that because mediation is not decided by a decision-maker according to recognized principles of law, legal principles are not imposed and required, and this is a dilution of what we think of as a justice system.

Another lawyer said: “I am personally concerned that if only 3 percent of cases actually go to trial; that means 97 percent of the time all of the pre-trial stuff is wasted to a large extent, so … 97 percent of the money that I make is from wasted time?” (Murphy and Molinari 2009).

Introduction to Part 4

I loathe Donald J. Trump. I not only voted against him twice; I opposed much of what his administration did—or attempted to do—once in office. Needless to say, I thoroughly condemn his conduct after Election Day 2020 (including on January 6, 2001) in the strongest possible terms. (I do applaud his administration's initiation of the Abraham Accords in the Middle East, its championing of school choice, and some other measures).

During the early days of the Trump administration, I published a long limerick, reproduced here, that mocked the President, his character, and some of his actions. I later published some pieces criticizing the Trump administration on a number of policy issues, including its severe limita¬tion on the number of refugees to be admitted and its efforts to implement some of its most controversial policies by declaring national emergencies. I wrote a favorable assessment of the Supreme Court's decision upholding the Trump administration's travel ban, although I opposed the ban as a policy matter. Finally, I published another article excoriating Trump for crudely and cruelly defaming TV commentator Joe Scarborough and a private citi¬zen, Lori Klausutis, whose story had been featured on the “Morning Joe” show.

Limerick*

Introduction to Part 2

The notion that America is an exceptional society has always been fraught—and never more so than today. The features of American life that used to inspire pride in so many of its people, especially its individualist ethos, high standard of living, openness to immigrants, and constitutional stability, now arouse in many other Americans harsh criticism and sometimes even contempt. We are a far more sharply-divided country in 2023 than we were in 2005—more rancorous, more ideologically self-segregated, more apprehensive and suspicious of fellow Americans, more prone to violence and threatening confrontations, and more mistrustful of our national government and many other communal institutions than most close observers can recall.

This Part consists of three essays that speak to American exceptionalism. The first is an unpublished paper that I wrote for a festschrift honoring James Q. Wilson, perhaps the most astute, broad-gauged, rigorous, and influ¬ential academic analyst of American society until his death in 2012. I had the privilege of co-editing with Professor Wilson a volume, Understanding America: The Anatomy of an Exceptional Nation (2008), which exploited the work of leading social scientists in many different fields to analyze just how distinctive the United States is in a wide range of institutional and policy domains. The essay summarizes their findings and Wilson's (and my own) gloss on those findings. Although that book was published 15 years ago, virtually all of its general findings, as distinct from specific numbers, remain accurate today. The book did not mention Obamacare, which took effect gradually beginning in 2010. The second piece is a New York Times op-ed I wrote about Wilson upon his death highlighting some of his other contributions to our understanding of American society. The third, much shorter essay is my analysis of an article by noted political scientist Robert Putnam, author of Bowling Alone. That much-discussed book famously contended that Americans increasingly isolated themselves in self-referential nodules that tended to minimize the kind of “bridging” social capital that characterizes healthy democratic communities and institutions. My analysis here reflects on how Putnam's article bears on his earlier book's thesis and thus on an important ingredient of American exceptionalism.

This case involves a divorce between Patricia and Howard. Interviews were conducted with the judge overseeing the Judicial Dispute Resolution (JDR), Patricia and her attorney and Howard's attorney.

About JDR

Parties may choose to participate in non-binding JDR or binding JDR (BJDR). In BJDR, the judge makes final decisions about the case if the parties do not come to an agreement, much like a mediation-arbitration process: the judge as mediator becomes an arbitrator and rules on the case. In non-binding JDR, the case goes to another judge for a trial if the parties do not come to an agreement, much like a traditional mediation process. One procedural downside to BJDR is that it cannot be appealed; an issue less important in divorce than in other types of cases. The judge in this case reported that he sees more parties choose BJDR than JDR because they want the case to be done after the process. In contrast, the two attorneys in this case both prefer non-binding JDR noting that the process may be more relaxed and less like a trial.

The judge in this case reported that about eight out of ten cases that engage in JDR are resolved. In his experience, one of the main reasons has to do with efficiency: every aspect of the case is resolved within two days of meetings, or the judge and parties agree to another date for resolution. He also attributes some of JDR's success to elements of the process that do not exist in litigation, such as encouraging both parties to step back, take a breath and truly listen to each other. When he prevents parties from interrupting each other, he noted, they may realize what they are hearing from the other side actually works for them. He also asks parties if an apology will help to move things forward. Another strategy he recently developed in divorce cases is to allow couples to get divorced immediately and then hammer out the remaining issues in JDR. The relief of the divorce can create a more conciliatory tone for the rest of the JDR. These components are not available in traditional litigation settings but can be instrumental in contributing to a cooperative resolution of a case.

Facts

This was a ten-year litigation case between a Canadian municipality (the city) and the owners of a private building near the city hall (the building owners). Third parties included architects who designed the city hall and engineers responsible for the building's roofing system and for hiring contractors for repairs.

In December 2004, a storm passed through the city and allegedly blew loose rocks from the private building's roof onto city hall, breaking its glass pyramids. A year and a half later, the city advised the building owners to take immediate action to avoid similar incidents in the future. In October 2008, another violent storm resulted in severe damage to over one hundred panels of the glass pyramids. Ten months later, approximately ten additional panels were broken in another storm.

After the third round of damage, the city hired an expert to investigate and then file a lawsuit against the building owners. The city accused the building owners of nuisance: they allowed the rocks to accumulate on their roof; and negligence: they had a duty of care to design, inspect, repair, or replace their roof. The city sought an injunction requiring the building owners to repair or replace their roof to prevent rocks from blowing off and damages of roughly $1 million. They proposed a trial that would last less than twenty-five days. The building owners denied all of the accusations and described the city's allegations as “embarrassing and vexatious.” In particular, they denied responsibility for the damage to the city hall's glass pyramids’ panels, citing the negligible size of the falling rocks. The building owners also asserted that they had taken all reasonable precautions to maintain their roofing system. Furthermore, they charged that the city was negligent for constructing a building with high-risk glass panels, and that the damage was the result of defective glass and improper installation. Regardless of the role that rocks on the roof might have played, the building owners also claimed that weather conditions were an act of God and therefore, the city had no right to file a damage claim. Finally, the building owners asked the city to repair or replace their roofing system if an injunction were granted.