Abstract: Emerging technologies such as autonomous systems pose new challenges for risk regulation, but also opportunities. Technologies that evolve rapidly, and that engage in decision-making and learning, challenge regulation to keep pace. Regulation is often treated as a one-time, go/no-go decision, based on ex ante forecasts of uncertain future benefits and costs. But the world changes, so a static past policy can become a mismatch with emerging new science, technology, and social conditions. A single decision could yield suboptimal errors by, e.g., under-regulating a net harmful technology (inadequate precaution), over-regulating a net beneficial technology (excessive precaution), and spurring risk-risk tradeoffs or other unintended consequences (ancillary impacts, whether countervailing harms or co-benefits). A widening mismatch can yield worsening net benefits and increasing frustration. If the technology learns, could the regulation also learn? A better approach can be planned adaptive regulation, moving regulatory policy from a single decision to multiple sequential decisions, informed by monitoring and review – i.e., regulation that is built to learn. Adaptive regulation poses both pros and cons, including the gains of improving net benefits, reducing policy errors, and potentially overcoming political impasse; but also the costs of data collection, decision analysis, potential recalcitrance, and potential policy instability. Several different institutional mechanisms could promote adaptive regulation, hence we suggest a framework for designing and comparing adaptive regulation, distinguishing between unplanned adaptive (e.g. crisis response, ad hoc retrospective review) vs. planned adaptive (e.g. periodic review, adaptive licensing); and within planned adaptive regulation, further distinguishing between discretionary policy updating (human) and automated adjustment mechanisms (rendering regulation itself as a partly autonomous system).

Short Bio: Jonathan B. Wiener is the William R. and Thomas L. Perkins Professor of Law at Duke Law School, Professor of Environmental Policy at the Nicholas School of the Environment, and Professor of Public Policy at the Sanford School of Public Policy, at Duke University. He co-directs the Duke Center on Risk, and previously co-directed the Rethinking Regulation program at Duke. From 2007-15 he served as the director of the JD-LLM Program in International and Comparative Law at Duke Law School. From 2000-05 he was the founding Faculty Director of the Duke Center for Environmental Solutions, now expanded into the Nicholas Institute for Environmental Policy Solutions, of which he served as chair of the faculty advisory committee from 2007-10.
In 2008, he served as President of the Society for Risk Analysis (SRA) (the first law professor or lawyer to hold this post). In 2003 he received the SRA’s Chauncey Starr Young Risk Analyst Award (for career contributions to the field by age 40). In 2012 he co-chaired the SRA's World Congress on Risk in Sydney Australia. In 2014 he received SRA’s Richard J. Burk Outstanding Service Award.
He has been a University Fellow of Resources for the Future (RFF) since 2002, and a visiting professor at Harvard University (1999 and 2010), the University of Chicago (2007), Université Paris Ouest Nanterre La Défense (2014), Université Paris-Dauphine (2010 and 2011), Sciences Po (2008), and EHESS and CIRED in Paris (2005-06). He is an affiliated faculty member at the Harvard Center for Risk Analysis (HCRA), and at the environmental policy program at Duke Kunshan University (DKU) in China. He is a public member of the Administrative Conference of the US (ACUS), the advisory boards of the Institute for Policy Integrity (at NYU), the International Risk Governance Council (IRGC) (in Lausanne, Switzerland), and the Chaire Economie du Climat (CEC) in Paris. He was a chapter lead author for the Intergovernmental Panel on Climate Change (IPCC), 5th Assessment Report, Working Group III, Chapter 13, “International Cooperation: Agreements and Institutions” (2014). In 2015 he was a member of the Special Policy Study team on “Environmental Risk Management” for the China Council for International Cooperation on Environment and Development (CCICED). In 2014-16 he was a member of the World Economic Forum’s Global Agenda Council on Climate Change.
His publications include the books Policy Shock: Recalibrating Risk and Regulation after … Crises (Cambridge University Press, 2017) (with Ed Balleisen, Lori Bennear, and Kim Krawiec); The Reality of Precaution: Comparing Risk Regulation in the US and Europe (RFF/Routledge, 2011) (with Michael Rogers, Jim Hammitt, and Peter Sand); Reconstructing Climate Policy (AEI Press 2003) (with Richard Stewart); and Risk vs. Risk: Tradeoffs in Protecting Health and the Environment (Harvard University Press, 1995) (with John Graham) (Chinese translation, 2018), and articles in diverse journals in law, policy, economics, risk and science.
Before coming to Duke, he worked on U.S. and international environmental policy at the White House Council of Economic Advisers, at the White House Office of Science and Technology Policy, and at the US Department of Justice, serving in both the first Bush and Clinton administrations. He helped negotiate the Framework Convention on Climate Change, and attended the Rio Earth Summit in 1992. In 1993 he helped draft Executive Order 12866 on Regulatory Review. Professor Wiener clerked for Judge (now U.S. Supreme Court Justice) Stephen G. Breyer on the U.S. Court of Appeals in Boston in 1988-89, and for Chief Judge Jack B. Weinstein on the U.S. District Court in New York in 1987-88. He received his A.B. in economics (1984) and J.D. (1987) from Harvard University.