The Regulatory Shifting Baseline Syndrome: Public Law as Cultural Memory

In 2013, the U.S. Supreme Court declared unconstitutional the Voting Rights Act’s preclearance requirements for six states’ voting laws, and many of those states almost immediately enacted new voting restrictions, that disparately affected citizens of color. In the 1980s and 1990s, Congress deregulated financial markets, including dismantling protections that had been in place since the New Deal, allowing firms to introduce new forms of derivatives — and systemic risk — into the economy, leading to 2008’s housing crisis. In the early 21st century, state legislatures increasingly enacted exemptions from state vaccination requirements that allowed parents to skip their children’s vaccinations, setting the stage for resurgences of measles in 2015 and 2019. Since at least 2001, courts, federal agencies, citizens, and NGOs have focused on the Clean Water Act’s alleged intrusions into state sovereignty and private property rights in the context of “dredge and fill” permits, undermining the Act’s continuing ability to improve the overall quality of the nation’s waterbodies. All of these seemingly unrelated legal phenomena derive, at least in part, from the regulatory shifting baseline syndrome. In 1995, Dr. Daniel Pauly described the “shifting baseline syndrome” and its problems for fisheries management. Pauly posited that each generation of fishers and fisheries managers forgets what the ocean and its fisheries used to be, instead taking the current state — demonstrably impoverished from a historical perspective — as normal. The forgetting of history, in other words, makes opaque what the goals of fisheries regulation should be, or even could be. This Article brings the shifting baseline concept into public law, identifying for the first time a regulatory shifting baseline syndrome that can undermine the law’s ability to protect society at large. This syndrome arises when a long-existing public legal regime so successfully eliminates a societal problem that citizens, politicians, and lawmakers forget that the regime is in fact still working to keep that problem at bay. The syndrome is especially problematic in areas of public law where curbing human behavioral tendencies remains an important component of protecting public goods, benefits, or amenities, regardless of how secure the relevant public commons now appears. Acknowledging the syndrome thus challenges would-be law reformers to ask whether we should recover the historical lessons about ourselves and our collective abilities to harm society at large before dismantling the legal protections prior generations felt compelled to enact