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Friday, August 25, 2017

Ingredients or Garbage?

Law professors often talk about stages of a research project in terms of food - "half-baked" or "fully-baked." There are other stages to project development. Extending the food analogy, one of the earliest stages (if not the earliest) is the "Ingredients or Garbage?" stage. For example, let's say I have three-day old ramen, an egg just past its expiration date, and some Taco Bell hot sauce packets. Maybe with some work, creativity, and a few more ingredients, this could be a meal. Or maybe it's all just garbage. I am at the "Ingredients or Garbage" stage with something, and I thought I'd run it past the good folks of PrawfsBlawg. The beauty of this stage is that, unlike projects that are even at the "half-baked" stage, I'm not nearly invested enough in it yet that my feelings will be hurt, or that I will even feel particularly frustrated, with an honest "Throw it in the garbage." I don't know if other people have had this experience with the "Ingredients or Garbage" stage, but it's just a loose set of ideas I'm kicking around based on some reading and observations, and every once in a while I think, "Maybe this could be something" and other times I think, "This is just garbage." 

My wife and I have four kids. This means I'm accustomed to attempting to equitably allocate scarce resources amongst competing users. For meals, I will sometimes slice up a watermelon into cubes and put a large bowl of the cubed watermelon in the middle of the table. There will be less clutter without the rinds, I figure, and the kids will be less sticky by being able to eat cubes with a fork, rather than picking up sliced watermelon by the rind. I sometimes do something similar with strawberries – cut off stems and halve each berry. Or I'll open a large bag of chips, put a portion of chips on each child’s plate, and leave the bag open on the table for those that wanted more. I would not buy the smaller-sized “snack” bags of chips because they were more expensive per unit than the large “family” size chips and generate more waste, and the same goes for individually-packaged fruit cups.

I learned after several years that, despite these savings, this approach has very real costs. I would watch the tragedy of the commons unfold before my very eyes as each child ate as much and as fast from the shared container as they could. The bowl of cubed watermelon or halved strawberries, or the bag of chips, would empty quickly and result in arguments between the kids about who had taken more than their fair share. “You had three handfuls of chips, and I only had one!” “Yeah, but your hand is bigger than mine, so three of my handfuls are smaller than your whole handful!” “Maybe, but I’m bigger and older and do more chores, so I should get more!” “So – you get to stay up later because you’re older. You shouldn’t also get more food!” The whole thing ends up sounding a lot like a water rights dispute.

My imperfect, infrequent, and certainly not costless, solution has sometimes been to make two related reforms. The first reform is segmentation. In fact, a lot of what got me thinking about this was reading the work of Lee Anne Fennell after seeing her present on her Slices and Lumps project (I'm a huge fan of Lee's work. She also has the best title in the history of law review articles - Fee Simple Obsolete. That's just poetry.).

The large chip bag can been replaced with individual snack bags. While this is more costly per ounce of chip, the chips are easily apportioned relatively equally in discrete servings by an impartial distributor. The large bowl of watermelon or strawberries can be replaced by watermelon slices on the rind or strawberries with the stems, with each serving placed on the child’s individual plate. While the kids may get a little stickier and the table more cluttered, each child sees the initial, discrete distribution. If they have a problem with the distribution, they can complain directly to me, the impartial distributor. They can appeal my decisions, but my wife grants cert at a lower rate than the U.S. Supreme Court.

This segmentation reform leads to a another reform – concretization. At the end of the meal, each child has a certain number of opened snack-sized chip bags, watermelon rinds, or strawberry stems. There is evidence of each child’s consumption that is readily reviewable by all the other siblings. You can’t sneak an extra handful while no one is looking without incurring the evidentiary consequences. It means cleaning up after dinner is more work, and perhaps made dinner somewhat more expensive, but it has helped avoid conflict, or at least made conflict easier to resolve and wrongdoers easier to deter and determine. And the marginal cost of opening up one more bag usually outweighs the marginal benefit of the extra bag, so kids usually make due with the initial distribution. So there is some resource conservation benefits to potentially offset the costs of snack-size bags.

Now, maybe nothing I'm talking about here is particularly novel. A lot of this is just me noticing the tragedy of the commons, and segmentation is really just the prescription of breaking up commons into private property parcels. Lee has obviously made similar observations, just before and better than me, and making far more important connections and developing them into the "slices and lumps" framework. Concretization certainly has roots in behavioral economics, psychology, and the related "nudge" ideas of Thaler, Sunstein, and others. Concretization is also really just noticing the relationship between marginal cost and marginal utility. Learning to make due with a reduced quantity is really just a type of hedonic adaptation.  And I'm sure I'm not even thinking about others who have had similar (and better) ideas along these lines.

But there might be something to this in the context of water law and policy. In particular, I’m curious how these lessons apply, or might apply, to the concept of de minimis or exempt water uses, and explain why some de minimis uses aggravate over-consumption problems and others do not. In Arizona, for example, wells with a maximum pumping capacity of 35 gallons per minute are exempt from much of the regulation under the Arizona Groundwater Management Act (GMA). When the GMA was first enacted, many assumed that exempt wells would proliferate and create an overdraft problem. However, that has not generally occurred (or at least overdraft problems are not principally attributable to exempt wells), and I wonder if segmentation is the reason. Perhaps groundwater pumpers are doing the same thing with exempt wells as I did with snacking less because of individually-packaged cookies and chips. The marginal cost for an extra exempt well is the requirement that even exempt wells be registered and licensed. Water policy all over the world confronts similar issues in exempting certain water uses from regulation or in quantifying de minimis water uses. The challenge is making the de minimis amount large enough that users can “make do,” but small enough to facilitate conservation, and with costs for an extra de minimis use high enough to discourage “opening another package of cookies”).

With regards to concretization, there are several potentially useful implications for water policy. Tail water in agricultural uses can be better monitored and reported to create a similar impact as the strawberry stems, candy wrappers, and watermelon rinds. Perhaps within organized water districts - like irrigation or conservation districts - smart gates and meters can measure water consumption, tail water quantities, return flows, or other data that could be texted to district members. That text could serve as the "watermelon rind" or "candy wrapper" of water consumption - evidence of consumption that is transparent to the whole group. The viability of these kinds of proposals raises similar questions as those I face as a parent - is the price of segmentation and concretization worth it? And how do I ensure that consumers recognize the impartiality of the distributor and the equity of the distribution?

Posted by Rhett Larson on August 25, 2017 at 07:10 PM | Permalink


As long as the watermelon isn't that tasteless, seedless kind.

Posted by: Marty Lederman | Aug 25, 2017 7:19:02 PM

You might like Andrew Gilden's, "Raw Materials and the Creative Process"? Much discussion of the raw/cooked metaphor: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2575886

My own "law & food" contribution is less interesting, but maybe still fun? "Andy Warhol's Pantry": https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2579937

Posted by: Brian L. Frye | Aug 28, 2017 12:20:47 AM

Interesting observations. One thing that came to mind with your 'concretization' idea was the difference in our perceptions of spending cash versus digital money. And how some people find it easier to keep to a budget if they put the allowed amount of cash in an envelope - very much making the evidence of their budget tangible.

Posted by: Angela Walch | Aug 28, 2017 1:39:36 AM

What the heck is "three-day old ramen"?

You cook the packet, you eat it, and then that's your meal for the day. There's no leftovers with ramen.

Posted by: Derek Tokaz | Aug 29, 2017 7:03:52 AM

In some cities, one might go out to eat Ramen, rather than eat it from a packet...

Posted by: Matthew Bruckner | Aug 29, 2017 1:05:44 PM

It seems to me that one might characterize the unhappiness that results from unequal or unverifiable distribution as a cost in itself. Perhaps one that's difficult to quantify, but no less a cost. That observation, and its role in distribution policy systems, seems like a potential contribution of this sort of work.

Posted by: Betsy Rosenblatt | Aug 30, 2017 5:10:36 PM

Uh... what the hell are you talking about? Maybe people do not keep lots of food around due to risk of it being poisoned by your crazy stalker neighbor when you are not home.

And maybe you keep a list of expenses on an envelope you have money in, not for budget reasons but for making sure that you know how much is supposed to be in there especially after the time your crazy neighbor stole $100 from it when you weren't home. And ever since you started writing the amounts down there has never been money stolen from the envelope again. Perhaps the neighbor moved on to taking money from your bank accounts instead. Theft is theft and trespassing is trespassing

Posted by: Fayke Newsoski | Sep 5, 2017 2:00:33 AM

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