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Mirrored externalities.


A fundamental but underappreciated truth is that positive and negative externalities are actually mirror reflections of each other. What we call "mirrored externalities" exist because any action with externalities associated with it can be described as a choice to do or to refrain from doing that particular action. For example, if a person smokes and thereby creates a negative externality of more secondhand smoke, then her choice not to smoke creates a positive externality of less secondhand smoke. Conversely, if a person's choice to get an immunization confers a positive externality of reducing vectors for disease transmission, then a choice not to get an immunization necessarily imposes negative externalities on third parties in the form of more vectors for disease. In each set, the negative externalities are the inverse--the mirror image--of the positive externalities. Thus, we have two possible characterizations or framings of any decision, one of which focuses on negative externalities and the other of which focuses on positive externalities. Which framing tends to predominate may be influenced by a number of factors, including society 's baseline sense of the actor's legal or moral entitlement to engage in (or refrain from engaging in) particular behavior, the availability of a villain to whom to ascribe negative externalities, and the relative invisibility of certain externalities until disaster strikes, when the negative framing becomes the face of the crisis.

Ultimately, the framing of externalities has profound effects on both the way we think about and process externalities and on our politics and policy development. We see profound potential impacts of framing on human perception of risk and opportunities, particularly due to the implications of the Nobel Prize-winning work of behavioral economists Amos Tversky and Daniel Kahneman. Their work on human perception suggests that due to loss aversion, the availability heuristic, and our bimodal response to catastrophic risk, we will give much greater weight and attention to negative externalities and consistently undervalue positive externalities. While positive externality frames are more effective in inspiring voluntary action, negative frames have serious implications for policy decision-making. The choice to emphasize either the positive or negative externality in the mirrored set shapes the array of policy prescriptions we are likely to consider. The same choice may affect whether we think there is a real problem to be solved in the first instance. We find loss aversion at work in policymaking as well: negative externalities, we suggest, are often viewed as a call to action, while positive externalities are viewed merely as an occasion for celebration. Lastly, the negative-externality "call to action" is often a concerted campaign to redefine the legal and social meaning of particular activities.

Given the critical role externalities play in justifying both development of property rights and intervention in markets and individual liberties, understanding mirrored externalities and the consequences of our framing of them is vital.


Externalities are ubiquitous. (1) Moreover, the existence of externalities is one of the most commonly proffered, and most widely accepted, arguments for government intervention in markets and individual liberty. (2) Externalities likewise feature prominently in accounts of the development of property rights. (3) And, despite their importance, our understanding of externalities is often quite incomplete.

Externalities seem simple, at least at first glance. We can easily define negative externalities as costs an actor imposes on third parties. We might further note that because an actor imposes these costs on others, the actor is unlikely to take them into account adequately in his decision-making. In contrast, we could describe positive externalities as benefits that an actor's decisions confer on third parties--benefits that, again, the actor is unlikely to account for in his decision-making, as he does not capture those benefits for himself. On closer examination, however, this simple explanation of externalities belies considerable complexity.

Consider the memorable example that Coase introduced more than fifty years ago of the rocky relationship between two neighbors--a rancher and a farmer. (4) The main point of friction between the two was that the rancher's cows wanted to eat the farmer's crops. Coase explained that we might think about the externalities imposed on the farmer, which took the form of crops destroyed by the straying cattle. Yet, everything was not peaches and cream for the rancher either. He likewise could complain of externalities from the farmer's actions: the farmer's crops attracted the rancher's cows, which made it much more difficult for the rancher to corral and care for the wanderprone cattle.

Given that the farmer's and rancher's benefits and costs were just the converse of each other, how should we consider the externality? Coase's question spurred a sea change in economic and legal scholarship. Among other things, scholars have attempted to help us think through factors we ought to consider when unpacking the question of who to hold responsible for externalities. (5) We have also learned that in allocating liability for externalities, societal norms and perceptions tend to trump law, politics, and economics. (6)

While Coase's insights into reciprocal bilateral externalities--where one neighbor's cost is the other neighbor's gain--are well established, this Article attempts to tease out another wrinkle of externalities and posits an additional mirrored dimension of externalities. The mirror's inflection point is between negative externalities (costs imposed on third parties) and positive externalities (benefits conferred on third parties).

Using Coase's example, regardless of which party we focus upon as the source of the externality, we could deem that party's potential decision as creating either negative externalities or positive externalities. Focusing on the rancher, for example, we could characterize a rancher who chooses to allow his cattle to roam as imposing a negative externality on the farmer in the form of destroyed crops. Alternatively, we could discuss a rancher who stops his cattle from roaming as conferring on the farmer the positive externality of preserved crops. The same logic would hold if we characterized the farmer as the source of the externality.

Unlike the mirrored relationship focused on by Coase, which has spawned a rich body of scholarship, the notion that positive and negative externalities are actually mirror reflections of each other is a fundamental but underappreciated truth. Indeed, this basic insight, a concept we call "mirrored externalities," has been almost entirely neglected in the literature. These "mirrored externalities" exist because any action with externalities associated with it can be described as a choice to do or to refrain from doing that particular action. That is, if an act results in a negative externality, refraining from that act necessarily creates a positive externality, and vice versa. As a result, any potential decision that implicates externalities can be described, alternatively, as acting or failing to act and thus can be framed as creating either negative or positive externalities.

Since this mirrored property of positive and negative externalities sits at the heart of this Article, it is worth considering a few more examples for the sake of clarity. A textbook example of an action conferring positive externalities on society is an individual's decision to be vaccinated. The positive externality will come as no surprise: the vaccinated individual's resulting immunity contributes to "herd immunity" that confers protection on the community at large and on unvaccinated individuals, in particular.

However, this classic example of a positive externality could easily, if perhaps somewhat less naturally, be recharacterized as a negative externality. We could construe the decision to remain unvaccinated as creating a negative externality: the unvaccinated individual is a potential disease vector and may transmit infectious diseases to others.

We find the same mirrored property when it comes to quintessential negative externalities. Consider a classic example of a negative externality: the harm associated with pollution arising from industrial processes. The pollution may result in higher health costs and increased environmental degradation. To the extent that this is true, it is equally true that cutting back on those processes would result in the positive externalities of health savings and environmental preservation.

In legal scholarship, the few scholars who have noted in specific contexts that positive and negative externalities can be mirror images of each other (7) have done so primarily in passing and have not explored the questions of framing: what factors influence whether mirrored externalities are framed as negative or positive and how does framing influence individual and policy choices? (8) And yet, how we frame the externalities associated with a particular decision or issue can have a profound effect on how individuals process those externalities and how the legal system responds to them. This Article explores these critical, but neglected, questions.

Part I of this Article provides a foundational backdrop for our consideration of mirrored externalities. It introduces our conception of mirrored externalities and provides a brief sketch of the framing issues involved. This Part then explores ten examples of mirrored externalities and their framing. The first five are drawn from archetypal narratives of externalities in the literature. The following five demonstrate the diverse array of policy contexts in which questions of externalities play a central role. Part I concludes with a brief overview of broad trends in the framing of externalities.

Part II of this Article unpacks some of the factors that affect whether we tend to gravitate to a positive or negative framing of the externalities attributed to a particular decision or issue. We suggest that these framing choices may be influenced by a number of factors, including society's baseline sense of the actor's legal or moral entitlement to engage in (or refrain from engaging in) particular behavior, the availability of a villain to whom to ascribe negative externalities, and the relative invisibility of certain externalities until disaster strikes--when the negative framing becomes the face of the crisis. The influence of these factors suggests that the framing decision is somewhat constrained, rather than infinitely malleable. Nonetheless, for many actions or decisions, our baseline intuitions may be sufficiently vague, unsettled, or contested that either a positive or negative framing is plausible or even credible.

Part III considers why these questions of framing matter so much. The choice of frame can have important, and as yet largely unexamined, consequences for both scholarly and political discourse about externalities. We examine two sets of such consequences here. First, in Section III.A, we consider the effect framing has on individual cognition--the way we think about and process externalities. Prospect theory, developed by Amos Tversky and Daniel Kahneman, suggests that we will give much greater weight and attention to negative externalities and consistently undervalue positive externalities due to loss aversion, the availability heuristic, and our bimodal response to catastrophic risk.

Then, in Section III.B, we explore four primary effects that the framing of mirrored externalities has on our politics and policy development. First, the standard array of policy prescriptions proposed for remedying negative externalities (taxes, fines, and prohibitions) differs substantially from the standard remedies proposed for positive externalities (subsidies, education, and government provision of goods). The framing choice thus shapes, even if it does not dictate, the terms of the debate over appropriate solutions. Second, the choice of frame may affect whether we think there is a real problem to be solved in the first instance. Negative externalities, we suggest, are often viewed as a call to action, while positive externalities are viewed merely as an occasion for celebration. Moreover, both loss aversion and the possibility of "availability cascades"--which are usually triggered by negative, rather than positive, stories and can generate public demand for political response (9)--suggest that we are more likely to be motivated to address negative externalities than positive ones. Third, the negative externality "call to action" is often a concerted campaign to redefine the legal and social meaning of particular activities. Thus, the framing of externalities is not only influenced by society's sense of underlying entitlements but also influences our sense of those very entitlements. And, finally, we consider how positive framing creates the possibility for hero narratives and perhaps even true heroes, as positive framing may make calls to sacrifice voluntarily for the common good more convincing.


A. Defining Mirrored Externalities

Mirrored externalities exist because any given decision can be described as a choice to do or to refrain from doing a particular thing. If the actor's choice to do that thing (smoking) imposes negative externalities on a third party (more secondhand smoke), then her choice not to do that same thing necessarily confers positive externalities on that third party (less secondhand smoke). Conversely, if the actor's choice to do a particular thing (beekeeping) confers positive externalities on a third party (increased pollination of plants), then a choice not to do that same thing necessarily imposes negative externalities on that third party (reduced pollination of plants). (10) In each set, the negative externalities are the inverse--the mirror image--of the positive externalities. Thus, we have two possible characterizations or framings of any decision, one of which focuses on negative externalities and the other of which focuses on positive externalities.

It is equally important to understand what we do not mean when we speak of mirrored externalities. By mirrored externalities, we do not mean that the same external effect might be viewed as positive by some third parties and negative by others (for example, that one neighbor might enjoy the green paint color the other chose for her house, while other neighbors might hate it). (11) Nor do we mean that externalities are reciprocal in the sense that they are the bilateral sort that Coase identified (12)--that we can, for example, view a company's pollution as imposing costs on its neighbors or view its neighbors' demand for clean air as imposing costs on the company. (13) That externalities are inherently bilateral is so central to Coase's work that these bilateral externalities are often referred to as "Coasian" externalities. (14)

B. Framing Mirrored, Externalities

The framing of a Coasian bilateral externality is typically a choice about to which side to attribute a (usually negatively framed) externality. The framing of a mirrored externality is somewhat different. Rather than allocating externalities between two conflicting sides, we are choosing whether to attribute positive or negative externalities to one actor's decision by focusing either on the externalities that flow from his choice to engage in a particular activity or from his choice to refrain from that activity. Because activity and inactivity are mirror images, their externalities will be mirror images as well. Thus, the framing question for mirrored externalities is which half of the mirrored pair (negative or positive) we emphasize for any particular issue or decision.

As we explore more carefully in Part II, there is some overlap between the factors that influence the framing of bilateral externalities and those that influence the framing of mirrored externalities, but not a perfect correlation. And as Part III makes clear, understanding the framing of mirrored externalities is as important as unpacking the framing of bilateral externalities.

C. Examples of Mirrored Externality Framing

In this subpart we introduce ten examples of mirrored externality frames. The first five of these are from classic examples of externalities in the literature, restated through the lens of mirrored externalities. The last five illustrate the diversity of policy areas in which we can find externality framing.

1. Pigou's Locomotive Sparks

Many trace the concept of externalities to the economist Arthur Pigou. In laying out an argument that has grown into today's notion of externalities, he provides the following example: "costs are thrown upon people not directly concerned, through, say, uncompensated damage done to surrounding woods by sparks from railway engines." (15) Probably because of Pigou, a sparking train causing forest fires serves as a classic negative externality. However, as advertising campaigns from the Forest Service constantly remind us, forest fires are not only started, but they are also prevented. Sparks that fly and burn down forests are the negative externality framing; sparks that are dowsed, saving forests, represent a positive externality.

2. Coase's Mismatched Neighbors

In his classic article, The Problem of Social Cost, Coase suggests that externalities are inherently bilateral. (16) He illustrates his point with an example of two neighbors, a rancher and a farmer, and the challenges related to the "problem ... of straying cattle which destroy crops growing on neighbouring land." (17) In probably the most well-known example of a bilateral externality, Coase argued that we can think of the rancher imposing an externality upon the farmer--the cows destroy the farmer's crops--or the farmer imposing an externality on the rancher--the crops attract the cows and make the cows more difficult to contain. (18) Of course, Coase focuses on negative externalities in discussing social costs. If Coase had been thinking of a different project, perhaps tided " The Virtue of Social Benefits," each of these examples could alternatively have been captured with a positive frame. For example, the fence that Coase hypothesizes, which would effectively eliminate Coase's bilateral externality, would have created positive externalities, protecting the farmer's crops and keeping the rancher's cows corralled. (19)

3. Demsetz's Fur Pelts

In Toward a Theory of Property Rights, (20) Demsetz presents a forceful argument that "property rights develop to internalize externalities when the gains of internalization become larger than the cost of internalization." (21) To illustrate his argument, Demsetz provides a historical example of the U.S. fur trade. He argued that a negative externality of hunting--fewer animals for others to hunt--caused a change in rights to real property in the nineteenth century, converting parts of the frontier from an unmanaged commons into large, privately owned tracts. (22) This is once again a question of framing. One could reverse this negative framing and focus instead on how reducing hunting could result in more animals for others.

4. Hardin's Pasture

In the late 1960s, Garrett Hardin introduced a story of herders that resulted in a special kind of externality he dubbed "the tragedy of the commons." (23) While each herder who added a cow to the commons took the cow home for the slaughter (internalizing all the benefits of adding a cow), the costs of the cows were hoisted on all other herders on the pasture (externalizing virtually all the costs of adding a cow). These costs, themselves negative externalities, came in the form of an increasingly over-grazed pasture. (24) Many have criticized Hardin and argued that overgrazing was far from inevitable and that cooperation in such a context often occurs. (25) Had the herders come to an agreement to cut back grazing on the commons, they would have found that subtracting cows results in the positive externality of increased forage. (26)

5. Boomer v. Atlantic Cement Company (27)

This classic nuisance case arose when landowners adjacent to a cement plant complained that "dirt, smoke and vibration" (28) from the plant's operations were injuring their land. Nuisance cases, of course, always emphasize the negative side of the mirrored externality set, as the plaintiffs are currently bearing those costs, and those costs justify the requested relief. Enjoining the nuisance, however, would allow plaintiffs the benefit of the "peaceful, quiet, and undisturbed use and enjoyment" of their land. (29)

6. Wetlands

Wetlands provide a wide variety of ecosystem services to surrounding property and the community at large, including flooding and storm surge protection, erosion prevention, water filtration, fish and wildlife habitat, and recreational opportunities. (30) If a landowner preserves the wetlands on her property, she thus confers these positive externalities on adjacent landowners and community members. Conversely, if she instead destroys the wetlands on her property, she eliminates these ecosystem services and thus imposes on others the costs of increased flooding and erosion and decreased water quality, habitat, and recreational choices. (31)

7. Education

Education is perhaps the most cited example of an activity generating positive externalities. Commonly identified societal benefits of education include lower crime rates, decreased welfare dependence, more informed voters, and a healthier and more productive workforce. (32) Assuming those assertions are true, citizens who choose not to educate themselves or their children, who drop out of school, or who choose not to pursue higher education may impose corresponding costs on society by contributing to higher crime rates, higher demand for welfare, uninformed voting, and decreased economic productivity.

8. Carpooling

Carpooling produces a host of positive benefits that cannot be fully captured by those who choose to carpool: decreased traffic congestion, fossil fuel consumption, and automobile emissions. (33) Of course, the choice to ride singly rather than carpool imposes mirrored negative externalities on the community in the form of longer commutes, increased fuel consumption, and higher levels of mobile-source pollution. (34)

9. Antibiotic Use

Every time an antibiotic is used, the future effectiveness of the antibiotic is potentially diminished because bacteria may develop resistance to that antibiotic. (35) The problem of antibiotic resistance is commonly described as one of negative externalities: antibiotic users (and prescribing doctors) fail to account for the future costs of diminished antibiotic effectiveness when they decide whether to use antibiotics to treat a particular malady. (36) The mirror image framing of the problem is less commonly presented but not difficult to articulate: an individual's choice not to use antibiotics in a particular course of treatment confers positive externalities on future antibiotic users that the current patient cannot capture.

10. Intellectual Property

Individuals who exercise and share their creativity--whether in the form of technological innovations, poetry, art, or music--generate innumerable positive externalities. In the case of inventions, for instance, users may get far more benefit from a new technology than inventors can capture in the price they charge (particularly because many uses may be unanticipated), and other inventors may build on the initial innovation to create new and different products. (37) And, while we rarely think of it this way, inventors who sit on their inventions rather than patenting and developing them or who never invent in the first place impose negative externalities on society by hoarding or squandering their creativity. (38)

The preceding examples demonstrate the wide variety of contexts in which mirrored externalities exist. There are, of course, many other examples of mirrored externalities. We could continue on in this vein, considering honeybee pollination, bank stability, smoking, obesity, crop diversity and food security, dam safety, and a whole host of other issues. That mirrored externalities arise in such a diversity of contexts suggests the importance of a careful examination of their contours and framing.

D. Broad Trends in Externality Framing

Given that, as the prior examples illustrate, every decision can be framed as imposing either positive or negative externalities, we might expect that both positive externalities and negative externalities would get equal play in public discourse. An examination of corpus linguistics data,39 however, shows quite the opposite. In fact, we seem to be focusing more and more on the negative. The data suggests that there is a decided trend toward speaking of negative externalities, rather than positive externalities.

One useful tool for demonstrating this divergence is the Google Books Ngram Viewer. When we enter words or phrases in the Ngram Viewer, the viewer generates a graph depicting how those words or phrases--ngrams--have occurred in a linguistics corpus of over 500 billion words, comprised of 5.2 million books. (40) On the x-axis of the viewer is time and on the y-axis is the percentage the ngram appears out of all other ngrams of its type. The Ngram Viewer allows us to see how the frequency of word use has changed over time and can compare the data for multiple ngrams on one chart.

Consider the Google Ngram for the bigrams "negative externality" and "positive externality":

This ngram demonstrates that, since the use of the terms "positive externality" and "negative externality" took off in the 1960s, there has been a decided gap in frequency, with "negative externality" used more often than "positive externality." (41) That gap has widened since the mid-1990s.

Moreover, the word "externality" itself seems to appear more often in a negative, rather than a positive, context. Analysis of the word "externality" in a smaller, but more sophisticated linguistics corpus, the Corpus of Contemporary American English (COCA), (42) shows that the number one word associated

with "externality" is "negative." Of the top fifteen collocates (43)--words often found in close association with our test word "externality"--four bear a negative connotation, one is positive, and the others are neutral or ambiguous. (44) These results suggest the need to think carefully about the reasons we frame issues negatively or positively and how that affects the way we process and respond to those underlying issues.


While every externality can be described as a mirrored pair--one positive and one negative--some framing choices seem much more natural or even inevitable. A number of factors may influence whether, for any particular issue or decision, the associated externalities are more naturally framed as positive or negative.

First, our sense of the baseline entitlements to engage in (or refrain from engaging in) a particular activity often plays an important role in determining how externalities are characterized. These intuitions about underlying entitlements are often bound up in the (real or perceived) existing allocation of relevant rights and the strength of those rights. "Softer" entitlements like perceived moral entitlements and social norms may likewise influence framing. Second, the availability (or absence) of a good villain may shape how externalities are perceived and presented. Third, some externalities are largely invisible--or at least underappreciated--until a crisis or disaster exposes them, and when disaster strikes, the negative framing will almost certainly predominate. The following sections explore and unpack these factors that influence whether we will tend to describe a particular issue in the negative or positive externality frame.

A. Baseline Intuitions: Rights, Entitlements, and Social Norms

Established or perceived baselines can undoubtedly influence whether the externalities associated with a particular issue are more naturally viewed as positive or negative. Indeed, the importance of baseline to determining whether an impact is properly characterized as a "cost" or a "benefit" has been recognized in a variety of disparate contexts, from Takings Clause case law (45) to Establishment Clause jurisprudence. (46) These baselines, in turn, are shaped by our sense of the legal and moral entitlements to engage in particular activities. (47)

The impact of our sense of underlying entitlements on externality framing is perhaps clearest in the context of Coasian bilateral externalities. When we are trying to decide whether to attribute an externality to one side or the other, our sense of who has the strongest entitlement or right to their preferred state of being is quite likely to drive our assignment of the externality. For example, if a landowner has an established right under current zoning laws to build a tall building, we might well view his neighbor's competing interest in collecting solar energy as the source of the negative externality in their conflict, particularly if the neighbor's asserted interest has no current legal protection. Conversely, if the neighbor has an established "solar easement" to collect solar energy, we might be more inclined to say that the other landowner's construction of a tall building will impose negative externalities on the neighbor. (48)

In the case of mirrored externalities, our sense of underlying legal rights may have a more nuanced but still important effect on externality framing. When the negative externalities flow from what we view as an affirmative act, we may focus on those externalities even if we believe that the actor has a legal or moral entitlement to create them. For example, even if we think that an actor has a right to emit certain effluents, the resulting effects on neighbors may still be framed as negative externalities, rather than framed in terms of the positive externalities that eliminating the emissions might produce. The tendency to focus on the negative framing is, however, likely to be even more pronounced if we question or affirmatively reject the actor's right to engage in that activity. Thus, for example, negative externalities generally dominate policy discussions of drunk driving. (49)

In contrast, when the negative externalities flow instead from a decision not to act (not to vaccinate, not to seek education, not to keep honeybees) we may be more likely to instead frame the situation by emphasizing the mirrored positive externalities. This dichotomy--between the way we treat situations where the negative externalities flow from action and those where the negative externalities flow from perceived inaction--seems bound up in underlying assumptions about the limits of government power to force us to act and a corresponding "right" to be free of government compulsion to act. Recall, for instance, the infamous "broccoli horrible" (50) that featured so prominently in the debates over the constitutionality of the Affordable Care Act (ACA). Opponents of the act posited a slippery slope of regulation that would ultimately justify the federal government mandating that individuals purchase (and maybe even consume!) broccoli. (51) While there is undoubtedly slipperiness in the activity/inactivity distinction, it resonated strongly enough with five Supreme Court Justices to form the basis of the majority's conclusion that Congress lacked the Commerce Clause authority to enact the ACA. (52)

The role of these real or perceived entitlements in externality framing is also evident in the framing of patent externalities. Patent scholars generally emphasize the positive externalities generated by inventors and their inventions, rather than the negative externalities that failure to invent would impose on society. Indeed, many patent scholars have observed that the notion of "positive externalities" has dominated the discourse about intellectual property rights, (53) and it certainly seems most natural to talk about the inventor's right to the fruits of his creativity (and thus the positive externalities that his sharing of those fruits creates), rather than the public's right to enjoy the benefits of that creativity (and the negative externalities that arise when an inventor withholds his invention from the public). This characterization seems driven by underlying notions of property and autonomy--the Lockean notion that a person owns himself and thus the fruit of his labor (54) (a notion that is the fundamental building block of the labor theory of property (55) and the sense that a person has an important autonomy interest in making his own choices about whether to apply his intellect, creativity, and energy to a particular problem (or at all). (56)

An exchange between two prominent patent scholars, John Duffy and Mark Lemley, highlights the difficulties in recharacterizing patent externalities from a positive to a negative frame. When Duffy critiqued one of Lemley's theories about how expansive intellectual property rights should be (57) as drawing "an untenable distinction between positive and negative externalities," (58) Lemley felt free to respond merely that, while Duffy's basic point was "true enough," Duffy's attempt to recharacterize the positive externalities of intellectual property as negative externalities felt "forced." (59) He explained: "We could, I suppose, talk about vesting property rights collectively in the public in ideas that haven't yet been invented, so that a failure to invent imposes negative externalities on those collective property owners. But no one does so." (60)

The characterization of childhood vaccination externalities provides another interesting example of the role of (assumed or established) underlying entitlements. Like patent externalities, vaccination externalities are most often described in the literature as positive externalities. (61) This positive framing of the societal benefits that flow from the choice to vaccinate one's children (rather than the societal costs that flow from choosing not to vaccinate) is likely informed by the sense that individuals have an underlying autonomy interest--and perhaps even a constitutional right--to make that decision without undue government interference. While the Supreme Court upheld compulsory smallpox vaccination enforced by a five dollar fine in Jacobson v. Massachusetts, (62) the 1905 holding is arguably inconsistent with more recent precedent recognizing the right to privacy and bodily integrity and suggesting that the right to refuse medical treatment may be entitled to heightened scrutiny under the Fourteenth Amendment. (63)

Of course, the status of any constitutional right to refuse vaccination remains unsettled, and many states have enacted compulsory childhood vaccination laws. However, the fact that most state laws provide religious or philosophical exemptions to these requirements suggests that many citizens feel that individuals should be able to make that choice for themselves and their children. (64) In the case of vaccination, then, we might be more comfortable describing the decision to vaccinate as creating positive externalities than describing failure to vaccinate as creating negative externalities because of an underlying sense that an individual is, as a constitutional and moral matter, generally entitled to make his own medical decisions about his body. These existing entitlements, however, may not be sufficiently strong to preclude the negative framing of the externalities. And, in fact, if most of the public came to hold the view that people are morally obligated to vaccinate themselves and their children for the benefit of others, that view might be somewhat inconsistent with the positive framing of vaccination externalities, which would then push toward a more negative framing. (65)

As this last possibility suggests, in addition to underlying rights, in some contexts softer entitlements, as well as social obligations, norms, and niceties, may also influence our baseline intuitions about how a particular externality should be framed. Robert Ellickson has established that, in the context of Coasian externalities, people allow norms to dictate the behavior of neighbors, even when legal rights might point in another direction. (66) There seems little reason to doubt Ellickson's insights would have significant hold in the context of mirrored externalities as well. Expected behavior would seemingly drive much of whether people frame externalities as positive or negative. In the most extreme cases, these norms may mean that only one characterization of an externality is socially acceptable. Take, for example, the effect that motorcycle helmet laws have on the supply of healthy organs available for donation. Motorcycles have often been characterized as "donorcycles," because the high rate of fatal motorcycle accidents among otherwise healthy young people creates a supply of healthy organs available for donation. Thus, if motorcycle helmet laws prevent deaths of young riders, it is theoretically possible to describe those laws as creating negative externalities for those individuals awaiting transplants.

It is, however, hard to imagine anyone describing efforts to reduce accidental deaths of young people as imposing negative externalities on those in need of organ transplants. Indeed, a recent study examining the effect of motorcycle helmet laws on the availability of organs for transplantation couched its inquiry as whether helmet laws "reduce a beneficial externality [of rider death] by decreasing the supply of viable organ donors." (67) (They do.) (68) The awkward framing (reducing a positive externality) is almost certainly an attempt to avoid the even more awkward framing of life-saving as inflicting negative externalities. (69) Put more starkly, while it may be tricky to speak of the positive externalities of young people dying, it seems all but inconceivable to speak of the negative externalities of young people living.

Additionally, this example suggests that identifying positive externalities of particularly undesirable events may also be unpalatable. In the motorcycle example, ascribing to motorcycle deaths the silver-lining "positive externality" of organ donation seems natural only in comparison to describing saving those lives as imposing negative externalities. The attempt to assign positive externalities to something as undesirable as untimely death is itself a risky endeavor. Recall, for instance, that Philip Morris was roundly condemned for commissioning a report that argued that smoking saved the Czech Republic money because smokers died earlier. (70) It is hardly surprising that high lighting the positive externalities of early death (especially deaths the company itself hastened) provoked public outrage.

One might argue, more generally, that another factor that influences externality framing is how much we like or value the activity in question. Certainly, in the case of Coasian bilateral externalities, an assessment of the importance and desirability of each competing activity may well influence which actor is assigned the externality. For example, if we think solar energy collection is important and desirable, we may be more likely to attribute the negative externality to construction of the tall building next door that blocks the sunlight. (71)

In a somewhat analogous context, the Supreme Court has noted that whether we characterize a regulation as "harm-preventing" or "benefit-conferring" depends on just such an assessment. In the takings case of Lucas v. South Carolina Coastal Council, (72) Justice Scalia, writing for a majority of the Supreme Court, rejected the State's argument that a regulation adopted to prevent serious harm (prevent a "noxious use") should not trigger the Constitution's compensation requirement, even if the regulation deprives the owner of all economically viable use of his land. (73)

In rejecting this proposed dividing line between compensable and non-compensable state intrusions on property rights, Justice Scalia argued that "the distinction between 'harm-preventing' and 'benefit-conferring' regulation is often in the eye of the beholder." (74) Justice Scalia noted that, in the Lucas case itself, one could describe the legislature's prohibition on Lucas building on his coastal property as "necessary" either "in order to prevent his use of it from 'harming' South Carolina's ecological resources; or, instead, in order to achieve the 'benefits' of an ecological preserve." (75)

Justice Scalia argued that there was no "objective, value-free basis" (76) for choosing between these two characterizations. Instead, he suggested:

   Whether one or the other of the competing characterizations will
   come to one's lips in a particular case depends primarily upon
   one's evaluation of the worth of competing uses of real estate. A
   given restraint will be seen as mitigating "harm" to the adjacent
   parcels or securing a "benefit" for them, depending upon the
   observer's evaluation of the relative importance of the use that
   the restraint favors. (77)

Because one's characterization of the regulation as imposing harms or conferring benefits turned on one's assessment of the relative importance of the competing interests rather than on some neutral principle, the distinction could not "serve as a touchstone to distinguish regulatory 'takings'--which require compensation--from regulatory deprivations that do not require compensation." (78)

It seems that the Court is correct that we may frame a regulation that may produce a regulatory takings challenge as either benefit-conferring or harm-avoiding. In fact, these are the very narratives that we would expect the affected parties to trot out in any regulatory takings context, each emphasizing the version of the story that leads to that party's desired outcome: the government regulator focusing on the value of its regulation in protecting others from harm and arguing no taking occurred, and the affected property owner focusing on the unfairness of having to finance the government's conferral of benefits on others and arguing that compensation is required. Because both narratives have a way of weaving through every regulatory takings case, Justice Scalia looks to see if there is some objective, non-results oriented way for judges to pick between these narratives and argues that all we are left with is factual aesthetics: do we like the regulation or the regulated activity more? The choice Justice Scalia describes then is, essentially, a choice about to whom to attribute the externality: is the property owner externalizing the costs of beach development on his neighbors or is the government (on behalf of the neighbors) externalizing the cost of beach protection on the waterfront property owner?

This situation is quite different, however, from that of mirrored externalities. If we were to hypothesize, for instance, that people would tend to assign negative externalities to things they dislike and positive externalities to things they like, (79) that would not tell us much about how people choose which of two mirrored externalities to emphasize. If we think about it, stopping development on the beach may result in positive externalities (e.g., less beach erosion). However, allowing for development would result in negative externalities (e.g., more beach erosion). Contrapositive logic seems to dictate that if we like the first of these, we dislike the mirrored pair. A person advocating against beach development could just as easily focus on the positive externalities as the negative externalities, and vice versa.

Taking a step away from Lucas and thinking about externalities more generally, we quickly find that for any particular action we approve of (e.g., expanding public transportation) that has positive externalities (e.g., reduced pollution), the mirrored, disfavored inaction will generate the mirrored negative externalities (e.g., increased pollution). Thus, either the negative or positive framing would satisfy our desire to attribute positive externalities to things we like and negative externalities to things we do not. Conversely, if we disapprove of an action (e.g., gun ownership) that has positive externalities (e.g., increased ability for people to practice self-defense), we presumably approve of the decision not to take that action, even though that choice produces negative externalities (e.g., decreased ability for people to practice self-defense). In this latter situation, neither emphasizing the positive externalities of our disfavored action nor emphasizing the negative externalities of our favored inaction will satisfy our attribution preferences.

B. The Availability of a Compelling Villain

A second factor that influences the way we frame externalities is the availability (or absence) of a compelling villain. It is much easier to tell the negative story--focused on the negative externalities of a particular course of conduct--if there is a compelling villain to star in that tale. For example, pollution is perhaps the most cited example of a negative externality. (80) This is unsurprising, given that point-source polluters--such as factories and power plants--are usually easy to identify and serve as focal points for citizen mobilization. Indeed, the politics of point-source pollution are classic "entrepreneurial politics" (81) with widely dispersed regulatory benefits and concentrated regulatory costs. The negative framing of pollution externalities likely resonates so deeply, in part, because of these ready-made villains. (82)

The "polluter pays" principle is a classic manifestation of framing polluters as bad actors who should pay for the harms they inflict on others. (83)

In contrast, consider education, which is perhaps the quintessential positive externality. As discussed in Part I, economists and advocates typically explain that education creates numerous benefits to society that cannot be captured by the educated individuals themselves, including more informed voting, lower crime rates, and economic benefits such as productivity and faster dissemination of new technologies. (84) Of course, failing to educate the country's children generates the mirrored set of negative externalities: less informed voting, higher crime rates, and economic stagnation.

Why, then, does the positive externality framing so dominate academic and political discourse? One possible explanation is that the education-failure narrative lacks an obvious bad guy to drive the negative story home. Education issues involve classic "majoritarian politics," with dispersed costs as well as dispersed benefits. (85) Thus, when public schools are underfunded, the only obvious villain may be taxpayers themselves. (86) Of course, taxpayers are unlikely to be persuaded by a story that paints them as their own worst enemies. Similarly, citizens are unlikely to vilify their own children for failing to learn or to envision their own children becoming uninformed voters, criminals, or unproductive workers and inflicting the attendant costs on society. As in almost all other contexts, vilifying enemies is most effective "when the enemy is a clearly delineated, 'well-defined' 'other.'" (87) When such an enemy is unavailable, the positive framing of the relevant externality may be more likely to prevail. (88)
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Title Annotation:Introduction through II. Factors That Influence the Choice of Frame B. The Availability of a Compelling Villain, p. 135-160
Author:Sun, Lisa Grow; Daniels, Brigham
Publication:Notre Dame Law Review
Date:Nov 1, 2014
Previous Article:The equitable Anti-Injunction Act.
Next Article:Mirrored externalities.

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