Legal futurism relies on developing robust scenarios of the future to test possible legal developments and outcomes. A recent article in Futures, A Review of Scenario Planning, defines scenarios as “a set of hypothetical events set in the future constructed to clarify a possible chain of causal events as well as their decision points.” Three main principles go into good scenario planning:
- Identification of predetermined elements in the relevant business or policy environment that will drive and direct future outcomes
- Developing a macroscopic view that pushes people to explore the relevant environment over a wider area than they normally would
- A willingness to change mindsets in order to re-perceive reality
There are numerous techniques used in scenario planning, but generally they fall into two categories. Descriptive scenarios are extrapolative exercises designed to present a range of future likely alternative events. Normative scenarios are more goal directed and are designed to assist in implementing desired policy objectives. The primary focus of legal futurism is on building descriptive scenarios of the legal environment in order to test normative scenarios of legal responses. Developing legal futurism scenarios thus will involve a blend of non-legal and legal futures.
Climate change adaptation provides an obvious medium for this kind of scenario planning. Climate change presents a host of different impacts on public and private interests (the descriptive scenarios), and how public and private entities respond will depend in large part on their respective policy goal alternatives (the normative scenarios). For example, the interaction of sea level rise and storm intensity could play out over several different scenarios for a region, and possible policy responses include to “defend” the shoreline built environment with more infrastructure or to “retreat” from the increased threats by shifting land use development inland. Legal futurism combines these two interacting scenario sets to explore the likelihood of different legal developments, such as whether an aggressive retreat strategy might lead to public regulations triggering takings liability.
An excellent example of this kind of exercise is found in Dan Tarlock‘s recent article in the Vermont Law Review, Takings, Water Rights, and Climate Change. Tarlock combines descriptive scenarios of climate change with normative scenarios of policy responses to explore how takings law might apply to futures ranging from “sea-level rise inundates private property and the state asserts that the land is now subject to the public trust” to the state ordering “the diversion of water from entitlement holders to mitigate adverse climate-change impacts.” His analysis, which bears down how takings jurisprudence encourages moral hazard problems, reveals the usefulness of scenario building not only for anticipating and planning future legal developments, but also for gaining insight about existing legal doctrine. Thinking about how law might work in future scenarios, in other words, tells us something–perhaps a lot in some cases–about how it is working now.