Thursday, July 31, 2008

Animal Rights and the Law

Animal protection issues are a frequent topic on Dorf on Law, with my post last week discussing the transition to veganism (Meat, Dairy, Psychology, Law, Economics) being only the most recent of many examples. As an academic who does not practice or produce scholarship in the area of animal law, however, my impact on the welfare of animals is limited to my own choices and whatever effect my blogging on the issue might have. I started to wonder: Who are the people who are having a seriously positive impact on the well-being of animals, the people who have dedicated all or part of their professional activities toward addressing these important issues? It turns out that I did not need to look far, because two of my colleagues at GW Law are doing very important work in this area. Professor Joan Schaffner is the director of the Animal Law Program at GW, and she and Professor Mary Cheh have created the Animal Welfare Project. (Professor Cheh also serves on the City Council for Washington, D.C., where she has sponsored important animal welfare legislation.) Their work should be supported and expanded.

The concept of "animal law," of course, can be very broad and need not take into account the welfare of animals at all. Indeed, in my 1L Property class (as in most property law courses in U.S. law schools), a surprisingly large number of the early cases had to do with hunting, wandering livestock, etc. The only issue in the cases was how to compensate owners when their livestock or prey had been stolen or killed. At one point, I asked the professor if there was any legal remedy for the loss of an animal beyond its value as meat or breeding stock. The professor said: "Well, there are some people who think that sentiment should be an issue in these cases; but we're not going to talk about that." You had to hear him wrap his mouth around the word "sentiment" to truly appreciate just how unwelcome my question was. One could thus easily imagine a course in animal law being nothing more than an advanced seminar in very traditional property law, addressing issues of how to put a market value on animals that have been stolen, ownership issues, etc., but continuing to treat the animals as lacking sentience or moral significance.

Happily, GW's program is on the leading edge of a modern wave of animal rights law. The program teaches students the current state of animal law as it can be used to protect animals and improve their welfare, and it attempts to change attitudes about the relationship between human and non-human animals. The program is designed to train "young lawyers who will be among the first generation of lawyers, judges, and legislators to address the widespread problems of cruelty and neglect." In addition to two seminars and the Animal Welfare Project, the program includes an animal rights clinic (the Animal Law Litigation Project) and a student chapter of the Animal Legal Defense Fund. I do not know how widespread such programs are in U.S. law schools, though I suspect that GW's might be sui generis or, at least, currently the most comprehensive in the country. (I'd be happy to learn that I am wrong about that. This is a game of one-upmanship that we should all welcome.) There are also top-notch legal scholars who work in the area of animal rights law, notably my former Rutgers-Newark colleague Professor Gary Francione.

Animal rights issues have recently made a splash in the news, with the important legislation that was recently passed in Spain being a prime example. Even so, we have a long, long way to go. For one example of just how crazy people can be about animal welfare, consider today's column by Nicholas Kristof in the NYT, in which he movingly describes the horrors of killing farm animals, admits that meat-eating will likely someday be generally seen as revolting, and then talks about how good the meat tastes and acknowledges that he continues to eat it (with a modicum of guilt). The teaser sentence in the print version of the paper is especially grotesque: "What animal has the best family values? (Hint: Boy, it's yummy.)" Make that a long, long, LONG way to go.

Update: I said in my last blog post that it's unnecessarily difficult to be a vegan in this country. A week later, I can report that it is a lot easier than it looks. Better laws and better labeling are still necessary, but the psychological transition is surprisingly short and ultimately rather simple.

-- Posted by Neil H. Buchanan

Wednesday, July 30, 2008

Would He Rather Write or Be President?

Today's NY Times has an interesting article on Barack Obama's years teaching at the University of Chicago Law School. The gist: Obama was a very popular teacher, partly because he was not ideologically driven, asking hard questions of all positions; however, he was not much engaged with the rest of the faculty and was not at all interested in legal scholarship (which he did not write). Overall, this is a positive portrayal. The main negatives come from Prof. Richard Epstein, who acknowledges Obama's popularity as a teacher but bemoans his lack of engagement with the scholarly side of the enterprise, including economic libertarians like himself.

Indeed, Epstein accuses Obama of deliberately keeping his views on controversial issues to himself so as to maintain his political viability. Here's the Times quote:

Nor could [Obama's] views be gleaned from scholarship; Mr. Obama has never published any. He was too busy, but also, Mr. Epstein believes, he was unwilling to put his name to anything that could haunt him politically, as [Lani] Guinier’s writings had hurt her. “He figured out, you lay low,” Mr. Epstein said.

It's worth noting here that this charge has also been leveled against now-Chief Justice John Roberts by just about everybody who knew him as a lawyer in the Justice Department and later in private practice. In the case of Roberts, it's a plausible claim, mostly because having no stated views on controversial subjects is helpful in winning Senate confirmation as a federal judge or Supreme Court Justice. But while politicians do sometimes straddle issues, they also must come down firmly on one side or the other of a great many issues.

Consider the ultimate litmus test issue, abortion. I defy Professor Epstein (or anybody else) to find any pre-confirmation public statement by John Roberts clearly saying what he personally thinks about whether abortion rights should be constitutionally (or otherwise) protected. (I distinguish here 1) between positions Roberts took on behalf of the government versus those he took for himself; and 2) between saying what the law is versus what it should be.) By contrast, while Obama doesn't exactly emphasize abortion rights on the stump, he doesn't hide his position. Under issues affecting women on his campaign website, we find:
Barack Obama understands that abortion is a divisive issue, and respects those who disagree with him. However, he has been a consistent champion of reproductive choice and will make preserving women’s rights under Roe v. Wade a priority as President. He opposes any constitutional amendment to overturn the Supreme Court's decision in that case.
Epstein's charge is further undermined by Obama's first book, Dreams From My Father, written while Obama was teaching at the University of Chicago Law School, and containing the impolitic admission that he smoked marijuana and occasionally used cocaine as a high school student. If Obama were nearly as calculating in his statements as Epstein claims, wouldn't he have worried more about that sort of admission than about whether his views on regulatory takings might become widely known?

I suspect that Epstein misattributes political motivation to Obama because he, Epstein, can't imagine that someone with Obama's brains and background wouldn't be interested in the sorts of things that interest legal academics. Surely Obama was capable of becoming a full-time law professor; he was brought to teach at Chicago in the first place because then-Professor (now federal appellate judge) Michael McConnell was impressed with the editing job Obama did on an article McConnell published when Obama was President of the Harvard Law Review. But some people who have the option of a life in legal academia choose otherwise. Go figure.

Posted by Mike Dorf

Tuesday, July 29, 2008

Is Clarence Thomas Really a Jeffersonian?

In my latest FindLaw column (now available here), I use the occasion of the enactment of California's trans fat ban to explore how a fundamental premise of early American federalism has been largely eroded by the integration of the national economy. The premise was that substantial portions of the economy truly were local, so that states could be given primacy over them. I explain how, absent federal regulation, interstate firms are likely to comply with the most stringent state regulatory regime, and then to seek federal laws that set lower standards while preempting state laws. Along the way, I link Clarence Thomas to the anti-bigness tradition of Thomas Jefferson and Louis Brandeis.

Here I want to problematize that linkage by noting that Justice Thomas seems every bit as committed to the big business agenda of the conservative wing---indeed of all nine members ---of the current Supreme Court. To put the point in a way that doesn't single out Justice Thomas, it's striking how economic populism seems to have no voice at all on the current Court. Populism per se gets some representation, as when Justice Scalia, dissenting in Romer, accuses his colleagues in the majority of taking sides in the culture war. But economic populism is essentially invisible. Jeff Rosen's piece in the March NY Times Magazine, Supreme Court, Inc., pretty accurately captures the point.

Now the question: How come? Economic populism is not the dominant ideology of contemporary American politics, but surely it is a powerful force on both the left (John Edwards) and the right (Pat Buchanan/Mike Huckabee). The answer, I think, is that it's just about invisible in the legal elites of left and right. The right is positively hostile to what would count as economic populism in law, through its support of tort reform and the law & econ movement. And meanwhile, the left is at best indifferent. Liberal legal elites tend to oppose draconian tort reform but they (make that "we") tend to be much more interested in civil rights plaintiffs than in other tort plaintiffs. With rare exceptions, elite law schools do not produce plaintiff-side tort lawyers.

That's not to say, of course, that the only way one could be an economic populist judge would be by first working as a plaintiff-side tort lawyer, but it does explain why the sorts of people who are most likely to be economic populists in law are unlikely to become federal judges.

Posted by Mike Dorf

On the Democratic Charms of the French Bourgeoisie (Part one)

(A couple of month ago, I drafted this up, but kept putting off posting it, because I thought it was too long and perhaps a little dilettantish. A conversation I had last week with Antoine Garapon, a noted French judge and legal scholar, has convinced me that I should post it anyway. )

Some six months ago, on January 31st, the New York Times ran an editorial by Roger Cohen entitled “America’s Riveting Democracy” in which he praising the US for having “the most vital, open, self-renewing and democratic society on earth.” While his ‘argument’ in this regard was pretty silly (but oh-so-typical of so many American political comparativists), it did get me thinking about the nature of ‘democracy’: particularly, how we might go about evaluating (and thinking about) what we might call – for lack of a better term – it’s ‘vitality’.

To being with, we might first try to identify a democratic ‘vitality’. To me, American democracy, while certainly entertaining (Cohen’s principal point) is not particular ‘vital’. Once all the entertainment is over, it turns out American elections turn on almost exclusively on two factors: campaign finance and incumbency. The fact that a majority of the Americans that voted for the re-election of the incumbent (and well-financed) in our last national presidential election believed (1) that that president supported the Kyoto Accord, and (2) that that president had actually found WMD in Iraq does not suggest, to me at least, a democracy that would be well described as ‘vital’.

In light of this, my own nomination for a particular ‘vital’ democracy, which I tender in large part simple to annoy Republicans and the remaining followers of AV Dicey, is that of . . . France.

Why? Well, first, the French polity has been that polity which appears to have been most able to resist the dominant global trajectory of neo-liberalism. Not that I am not claiming that neo-liberalism is bad policy. I am simply claiming that neo-liberalism is anti-democratic, in that it substitutes technocratic measures – namely those having to do with economic growth – for democratic measures in its evaluations of regulatory legitimacy. Maybe, this is a good thing. But here, I am simply concerned with ‘democracy’, not political wisdom. And so the fact that the French have been particularly resistant to this global teleology suggests to me that ‘democracy’ may be a distinctively critical component of its political system.

Consider, along these lines, France’s recent decision to try to implement a general four-day work week. As many noted, such a decision threatens to severely curtail French economic growth. What polity would rationally choose to sacrifice economic growth simply in order to secure more free time for the ordinary labour force? Actually, I think the answer would be ‘most’ -- if such a decision were left to a democratic polity. The recent experiences of much of the world suggest that at least in recent times, national economic growth has often not positively impacted the quality of life of the general citizenry. The life-quality benefits of national economic growth are largely captured by only a small portion of the population. This being the case, I think if it were put to vote, most polities would choose the immediate life-style benefits of a four-day workweek over the temporally and economically remote benefits of ‘economic growth’ (indeed, France’s legislation does seem to have spurred considerable grassroots (read ‘democratic’) movements for similar legislation in many other Western countries.

France is also the modern polity that most retains the political practice and constitutional significance of political practices akin to what earlier democratic cultures used to refer to as ‘mobbing’ (today, the term ‘mobbing’ carries a largely negative connotation; historically however, its connotation was often much more positive). ‘Mobbing’ (in this context) involves the use of mass public and disruptive demonstration, generally distinctively targeted again property but not against the security of the person, as a means of making a distinctly political point. Historically, mobbing was seen as critical means by which the lower economic orders in a democratic polity could counteract wealth-effects in the political arena. Today, it remains a distinctive feature of French political society, as recently exemplified by José Bové’s highly choreographed destruction of a McDonald’s restaurant in 1999. And related to our point above, has notably been a particular prominent feature of that polity’s relatively successful opposition to neo-liberalism.

Finally, more evidence for my claim is the French polity’s rejection in 2005 of the proposed EU constitution. One of the things that surprised friends of mine who supported that constitution was who informed the average French citizen was about the issues involved. The proposed constitution was an extraordinarily complex document, and it was supported by the elected government. It would have been easy for the French voter to save the effort necessary to comprehend these complexities and simply vote as she has been told to be some trusted source. Assuming that my friends were right and that the ordinary French voter did in fact go out of her way to make an independent and informed judgment regarding the proposed constitution, it suggests to me ‘democracy’ that is more ‘vibrant’ than many of the others with which I am familiar.

Why might this be the case. Well, this is a long idea, so that will have to wait for my next post.

Monday, July 28, 2008

Life can be so cruil

Like every other tech-interested person on the planet, I tried out cuil today to see whether it would indeed by the Google-killer it advertises itself as. (Cuil also advertises itself as superior to Microsoft's search engine, but Microsoft doesn't need an external enemy to kill it. Vista will do that by itself.) I'm undoubtedly not the only one to have gotten a "server busy" notice, nor am I the first to comment that this is really inexcusable. There are likely hundreds of thousands if not millions of potential early adopters who now won't bother with Cuil. If you shoot at the king, don't miss.

Cuil sells itself as superior to Google in two respects: 1) It searches more pages; 2) It gives better results because it's not just a popularity contest. I get 1). Searching more pages does seem better than searching fewer. But the attack on Google's page-rank system seems misguided. That system can be gamed (as former Pennsylvania Senator Rick Santorum can certainly attest. Don't believe me? Google Santorum.) But for the most part, the genius of the Google algorithm is its ability to harness the wisdom of crowds.

Cuil claims to give better results through tabs and content analysis, but so far it's just weird. If you cuil "Dorf on Law" you get a random collection of my blog entries, with random unrelated pictures attached. And it's slow. At least today. Count me as a skeptic.

Posted by Mike Dorf

Courtesy and Crowding

Continuing my theme of posts with no clear bottom line but a mystery for readers to solve, here's a puzzle inspired by my recent travels. When I lived in Los Angeles in 1990-1991, I had the impression that drivers were unusually courteous. Having just spent two days in the City of Angels, I got the exact opposite impression. Here are three possible explanations:

1) Angelinos have become less courteous in the last 17 years;
2) As I've gotten older, I've become more crotchety, so that stuff that didn't used to bug me, now does;
3) When I came to L.A. in 1990, I was moving from Boston, which has notoriously discourteous drivers (conditioned to be that way by driving on too-narrow roads); I've come for this most recent visit after living and driving for a month in Ithaca, where drivers are courteous, it being a college town without a whole lot of traffic.

I'm inclined towards explanation number 3 and more generally towards the view that crowding people makes them surly. That's the upshot of John Calhoun's studies of the effect of crowding on rats, and it jibes with much anecdotal evidence that people who are overcrowded become stressed out. Angelinos are NOT crowded in their living space; the city is notoriously spread out; however, L.A.'s highways are terribly crowded (and have been so for decades); incidents of road rage may be less common than when the phenomenon first came to public attention, but it's hardly surprising that the term first appeared in L.A.

And now the mystery: Why are the citizens of one of the world's most notoriously crowded countries---Japan---also notoriously polite? I'll offer a hypothesis and then invite others: Japan has been crowded for so long that its culture has had to adapt to the fact of crowding, through ritualized politeness that prevents actual stress-induced discourteousness and rage from surfacing. If this hypothesis is correct, then the question is why such a culture hasn't yet evolved in highly crowded American cities.

Posted by Mike Dorf

Friday, July 25, 2008

The Banality of Karadzic and a Thought on Abu Ghraib

How was it possible, many people want to know, for infamous indicted war criminal Radovan Karadzic to fool so many people for so long into believing that he was a soft and fuzzy alternative medicine guru? Perhaps Karadzic, a talented if evil politician, also simply has a gift for deception. Maybe, but I'm more inclined to think that Karadzic wasn't simply play-acting in the role of Dr. Dragan David Dabic. Or if he was, it was because everybody is always play-acting at his various personalities.

Hannah Arendt famously coined the term "the banality of evil" to explain how Nazi war criminals, including especially Adolph Eichmann, could seem so ordinary in their concerns and the portions of their lives that did not involve mass murder. Arendt's theory has been criticized over the years and I have long been persuaded by a somewhat different view, what Ervin Goffman called the "dramaturgical" account of personality. The core idea is that people have some consistent traits but that their presentation (including self-presentation) of self varies enormously depending on the role that they play at any given time. In the role of father, a man can be patient, attentive and loving, but in the role of concentration camp guard the same man can be a cruel sadist.

To recognize the dramaturgical nature of personality is not to excuse evil, especially where, as in the case of Karadzic, the perpetrator sought and appeared to enjoy the role of killer. Nonetheless, understanding that normal people can be made to do terrible things under extraordinary circumstances is an important step in preventing those terrible things from happening. Thus, Philip Zimbardo, author of The Lucifer Effect and the man who conceived and carried out the well-known Stanford prison study, testified for the defense in Chip Frederickson's trial. Zimbardo's immediate point was that the extraordinary conditions under which Frederickson committed acts of sadism would lead a great many other "normal," even "good" people to commit similar acts. The larger point, of course, was that the people who created these circumstances should bear responsibility, a point recently emphasized by retired Major General Antonio Taguba.

Posted by Mike Dorf

Thursday, July 24, 2008

Meat, Dairy, Psychology, Law, Economics

Over the weekend, I visited the Farm Sanctuary in Watkins Glen, NY. The Sanctuary is a haven for animals who have been rescued from factory farms and dairies: cows, chickens, turkeys, pigs, sheep, goats, etc. It is also a very low-key public education and advocacy organization. Having been a vegetarian for a number of years, with the intention of at some point becoming a vegan, this visit triggered my decision to eliminate all animal products from my diet and wardrobe. It was a powerful experience.

I actually did not learn anything new during my visit, but the experience made salient the things that I have known as an intellectual matter for some time now. Interestingly, the Sanctuary tends to underplay the gruesome nature of how animals are treated in factory farms and dairies, preferring instead to allow visitors simply to spend time with these wonderful animals who would otherwise have lived miserable lives and died violent deaths on the way to your grocer's shelves. In the debate between emphasizing the positive or the negative, this is a datum for going with the positive.

With this experience so fresh in my mind, and the transition to veganism a new project, I am thinking through some of my immediate reactions to this life-changing experience.

As I noted above, I did not learn anything new during my visit on Sunday; but that is because I am friends with Professors Colb and Dorf (who, in fact, suggested that we visit the Sanctuary). Therefore, I already had learned some rather shocking facts about the dairy industry that most people never know. For example, after I made the move several years ago to eliminate all meat from my diet (fish being the last to go), I felt pretty good about the fact that at least the dairy products that I ate were not associated with killing animals. It is, I thought, at least possible to treat cows and chickens humanely even as we take their milk and eggs -- even though I knew that this was more than a bit of a dodge, because actual factory dairies do not treat animals at all humanely. Still, I thought, at least there's no killing involved.

What I did not know until Professor Colb pointed it out (but which is obvious, once one thinks about it) was that it is necessary to keep dairy cows constantly pregnant in order to keep the milk flowing. Since those pregnancies result in births, and half of the births are of male cows, there is a regular "problem" with what to do with male dairy cows. The answer is to take the new-born males and put them in crates for short, miserable lives, before turning them into veal. Given that even most meat-eaters have come to see veal production as especially grotesque, it is extremely significant that milk and cheese production is so directly tied to the immiseration and killing of young cows.

Although this information was not new to me, I had not yet acted on it. What made this trip different? Again, it was in part the experience of simply seeing and touching the lucky few animals who had been saved from such fates. (There was a male dairy cow named Snickers who was a huge, impressive creature. It turns out that the reason he seemed so large in my eyes was that most of us have never seen an adult male dairy cow. They are all killed before adulthood.) What I found most interesting was that a simple slogan had a transformative impact on me: "In every glass of milk, there's a little bit of veal." This powerful statement not only captures a powerful truth, but it is devastating in its simplicity. Once the tour guide said it, I could never think about milk or cheese the same way again.

One lesson that I drew from this experience, therefore, is a renewed appreciation for the concept of framing and the psychology of learning. Even an academic who values arguments and facts can compartmentalize things if they are not presented powerfully enough. As regular readers of this blog know, I am especially fascinated by the power of rhetoric; but even I was surprised by the impact of something so simple as that bumper-sticker statement. Content matters profoundly, of course, but I will never again even consider doubting the power of form.

The other major lesson that I have drawn in the few days since I chose to become a vegan is, to put it simply, that the U.S. economy makes it difficult -- but by no means prohibitive -- to be a vegan. Again, I claim no great new insight here; but experiencing is different from knowing. The most surprising thing about becoming a vegan is that it requires so much thinking! As Professor Colb noted to me, it was a huge relief to be able to go to the snack bar at the Sanctuary and simply buy something that looked like it would taste good. (I assure the skeptics that there were plenty of items that were very appealing.) In a regular grocery store or restaurant, everything has to be filtered through the question of whether the items in question are vegan-friendly. Everything requires at least a little bit of research and a lot of skepticism. In restaurants, questions about these matters are met with blank stares, obvious misinformation, and outright hostility.

The larger point, therefore, is that we need to reduce the transactions costs of being a vegan. Even well short of the time when there could be a critical mass making it sensible for mass marketers to voluntarily market a wide array of vegan foods, laws are needed to start us down that road. Moreover, even when there is a larger market for vegan items, laws must be enforced to guarantee that we get what we pay for. Were it not for food labeling laws (which were fiercely opposed by market ideologues who might otherwise have been expected to believe in the importance of information to well-functioning markets), it would not even be possible to know what the vegan options are in a grocery store. Like the tightly enforced rules defining what is "orange juice" versus "orange drink," we need to enact and enforce rules that make it possible to know what is really cruelty-free. The market is a powerful thing, and with sensible rules, its power can allow us to make moral choices much more easily.

-- Posted by Neil H. Buchanan

Wednesday, July 23, 2008

Gridlock and the Mortgage Crisis

Michael Heller's new book, The Gridlock Economy, makes a powerful case for the proposition that our economy suffers from "too much ownership." Parlaying into public debate an idea he has expounded in the academic literature, Heller laments the tragedy of the anti-commons. As the first reviewer on the Amazon site linked above notes, the book is very timely for its explanation of the current mortgage crisis---not how we got into it but why it's hard to get out.

Banks loaned money to people who couldn't afford the interest payments because, in a rising housing market, those borrowers could always sell the house---or go further into debt based on home equity loans to service the existing debt. When the bubble burst, the banks and the entities that had bought slices of the loans were left holding the bag. That wouldn't have been a disaster if not for the crucial fact that over the last decade as never before, the right to receive interest payments on mortgage loans was sliced and diced into so many different pieces that workouts became impracticable. In the old days, if Borrower owed 6%/year on a $200,000 loan, but could only afford to make monthly payments equivalent to a 4% loan, Lender could strike a new deal with Borrower if Lender preferred doing so to going into foreclosure. But now, with Lender being a far-flung collection of multiple lenders, the transaction costs of renegotiation are too high to make a workout possible. As a result, foreclosure becomes more likely, and more foreclosures further depress housing prices, making the problem even worse.

To be sure, Gridlock is only one factor at work here. It doesn't explain how we got into this mess, which had more to do with irrational exuberance. Lenders and investors stopped demanding the sort of financial information that a prudent lender or investor should demand. Exactly why that happened is a different story, nicely explained in this episode of This American Life.

Now the hard question: What should we do about the problem of too much ownership? Heller's own prescriptions are mixed: He says that depending on the nature of the resource, we will need different mixes of private ownership, commons, anti-commons, and state ownership. That's quite sensible, and it will be interesting to see how the larger political system responds: Even though the book is not especially ideological, I suspect it will be treated as coming from the left/liberal side of the spectrum. One possible reaction from the right will be simply to ignore or denounce the book. Another would be to try to appropriate its message where it comes out against overregulation, as it does in some choice examples. (These are relevant because they provide a public sector example of the problem of needing permission from too many people or entities, which can be true in an anti-commons or in a system of fragmented regulatory authority, such as building permits).

Perhaps the most interesting reaction might be to note that the real problem, as Heller explains, is not too much ownership per se, but fragmented ownership. One could address that problem either by changing the rules in the direction of commons or state ownership, but one could also go in the direction of concentrated private ownership. It has been a long time since anyone (other than Bill Gates or Steve Ballmer) has sung the praises of monopoly, but if Heller's book gets traction, listen for that tune.

Posted by Mike Dorf

Tuesday, July 22, 2008

Pickens, Realpolitik, and the Labels of Cap & Tax

T. Boone Pickens burst onto Al Gore’s stage this week with his urgent call for massive fuel switching by the US away from “foreign oil” and toward wind, solar, and natural gas. Parts of the blogosphere and MSM have been aflutter about the climate change possibilities being considered in the US—note, for example, Mike’s post over the weekend! There are, of course, several different reasons to be worried about “peak oil” and the future of this, our most important, energy source. Pickens seems most interested in the financial and security concerns of paying $700 billion a year into OPEC economies just to fund our addiction. In a nutshell, he wants to build massive wind farms in the center of the country (where there’s a lot of wind) so that we can switch all of our natural gas supply to vehicles and thereby reduce our demand for oil by ~ 40%. This, of course, can only happen with an unprecedented effort from the federal government.

Now, as Mike pointed out, asking the federal government to do anything anymore that involves the word “tax” or the word “regulation” is probably an exercise in political sadism. Note, though, that Gore and others who focus on our overuse of oil because of its link to climate change have been rightly pointing out that there is no “low cost” path on energy in the future. Every option is going to cost dearly and probably cost more if government regulation doesn’t foreclose at least some of the many opportunities there will be for price gouging.

So this is my query. Why hasn’t the ‘carbon tax’ movement started switching to the word “fee”? Americans are just as bombarded by fees as they are by taxes, yet no one ever puts “fees” in that box with “death.” Isn’t it because fees sound avoidable and tailored to behavior, something people intuitively feel able to control and/or suffer the repercussions willingly? Carbon “fees” could be saddled on only some emitters, the biggest or most inefficient let’s say. And they could be generalized and set by legislation or regulation. Lots of fees are more standardized than taxes (consider the rhetorical appeal of the “flat tax”). Would this semantic maneuver make a political difference?

It might. Cap and trade would be, by most estimates, harder to start up, costlier to manage, more likely to produce big distortions from the lumpiness of firms and various market structures, and more likely to entrench flawed judgments about programmatic goals. Compared to cap and trade, a tax—er, fee—on the emission of greenhouse gases like carbon dioxide looks like child’s play. And as to the fairness of only getting some and not all emitters, it strikes me that the assumptions on cap and trade are usually just that. Not everyone will be granted the allowances—or even need them. They are usually earmarked for only certain “firms.” Setting the “fee” on these actors instead of letting the auctions for allowances do so will put some price predictability into our carbon-shrinking plans—assuming the government can do any of this. I have to say that I remain dubious: the Earth needs more than a good lawyer these days. It needs a top-flight corporate communications strategist.

Posted by Jamie Colburn (PS: final NEPA post still in progress.)

Opportunism and Power

Last Thursday, I posted some thoughts about independent Senator Joseph Lieberman's unique and temporary position in the current Congress as the Senator who could most plausibly switch from caucusing with the Democrats to the Republicans, thereby putting the Democrats out of power in the upper house. I offered two observations: (1) Lieberman has done nothing on matters of policy to advance anything that might be called a "Lieberman agenda," which I would have thought a public-spirited career public servant (and former presidential aspirant) would want to do if freed from the purgatory of being "just one vote out of 100" in the Senate; and (2) Since Lieberman seems not to have a unique policy agenda, his decision to run as an independent in 2006 against the Democrat who defeated him in his party's primary was evidence of personal opportunism, a choice to keep his Senate seat simply because he likes to be a Senator and not to advance any version of the public good.

These arguments generated some discussion among various readers on the Comments board, a discussion in which I took part. Two further issues arose in that conversation that I wanted to explore a bit further here. First, is it possible that Lieberman simply does not differ from his former fellow Democrats on anything other than Iraq, so that there is nothing for him to do with his temporary power? Second, if that is an accurate description of Lieberman's position, should it save him from being labeled an opportunist? My answer to the first question is ultimately no, although there is reason why one might think the answer is yes. To the second question, though, the answer is still no.

It is almost certainly true that my palpable disdain for Lieberman is currently rooted in my rejection of his views on Iraq and his support for Bush's policies on war and terrorism. While my observations on Thursday could be viewed as non-ideological, in the sense that a conservative could be just as surprised (and disappointed) as a I am surprised (and relieved) that Lieberman has not pushed the Democrats to do things that they would not otherwise want to do, I would not have chosen to use this space to condemn him as an opportunist if I did not view Lieberman's substantive policy views with alarm. While my choice of words is undeniably driven by policy differences, however, the question is whether the substance of my critique is defensible. Which leads to the first issue: Is Lieberman just another Democrat on policy issues other than Iraq and national security?

It can be argued with some plausibility that Lieberman is not really the apostate that liberals think he is on non-security issues. See here for an example of a liberal's concession that Lieberman's voting record is pretty much what someone like me would want. On the other hand, "Lieberman's voting record in 2005 was more conservative than that of any other senator from a blue state, according to National Journal's annual analysis of liberal and conservative votes." (cite here). He has been on the corporate side of the debate over limiting damages in civil suits. He has been a loud voice injecting religion into public policy discussions, even suggesting that one must be religious in order to be moral. More to the point, however, Lieberman has always seemed to pursue a strategy in which his conservatism does not show up fully in his voting record, because he tends to work in advance of votes to move the result to the right and then votes with the party when the vote comes along (when the outcome either way is no longer in doubt).

In my view, Lieberman thus seems to have at least some issues on which he differs from the Democratic leadership. If he is not using his current position to pursue public policies that he genuinely believes would make the world a better place, why is he in the Senate? It is simply not the case that there is nothing for him to do.

For the sake of argument, though, let's imagine that Lieberman really is an absolutely down-the-line Democrat (as if the rest of the party agrees on everything!) on all issues except national security. In the summer of 2006, he lost his party's nomination to an anti-war candidate whose views on other issues were not in play during the primary campaign (and which were also reasonably characterized as standard-issue Democratic positions). Even if Lieberman genuinely believed that he was right and his opponent was wrong, was his decision to take a second bite at the apple as an independent required by his principles and not his personal ambition?

At the time, virtually no one thought it likely that the Democrats could retake the Senate in 2006; but let's give Lieberman credit for impressive foresight in imagining that they might. To justify running as an independent, he needed to believe that his vote would matter on security issues. Lieberman instead of Lamont would have to make us safer. How would this work? He knew that Bush would be president in the two years during which he would hold the key to the Senate. He would also have to know that the Democrats could not break a Republican filibuster or override a presidential veto on any war-related measures. In short, he would not be needed to make the difference on national security issues. The Lieberman vote would not be the key to keeping us safe.

In other words, Bush and 49 Republican senators could stop the Democrats on everything else that Lieberman might care about, and Lieberman's 50 caucus-mates could do nothing to stop the Bush war policies. If we believe that Lieberman really viewed himself as a Democrat on everything except national security matters, he could not make a difference on any issue at all, and his choice to run as an independent is even more obviously simple opportunism. His only reason to be in the Senate, it seems, is because he likes it there.

-- Posted by Neil H. Buchanan

Monday, July 21, 2008

Are Lions Murderers?

I have written a column that will appear some time today (Monday) discussing the Spanish Parliament's likely adoption of resolutions recognizing limited human rights in Great Apes. Such rights include entitlements not to be tortured, killed, or held in captivity. In the column, I discuss an argument made by some of the resolutions' detractors -- that all human beings should enjoy these rights before we grant them to any nonhuman beings -- as well as one argument made by its defenders -- that the resolutions are the first step along the path to recognizing that our consumption of animals for food, clothing, entertainment, and experimentation is wrong. I respond to these arguments in the column, so I want to take the opportunity in this blog post to discuss a different question that often arises in discussions about animal rights (including some comments that have appeared in response to my own past posts). The question is this: how can it be immoral to torture, kill, and consume other animals when animals themselves consume other animals?

When I hear this question, I wonder exactly what point the questioner is trying to make. I assume that it is intended to show that consuming and otherwise hurting nonhuman animals is morally justified. If this is the meaning of the question, then how would this argument work? One possibility is that there is an implicit accusation that nonhuman animals somehow forfeit any right against consumption, because they do not respect such rights in others. If that is the accusation, then I would be interested in learning whether the omnivores who make this argument limit their animal consumption to other omnivores and carnivores. Cows, after all, are naturally herbivorous, so they appear not to be among those who, on this approach, forfeit their right not to be tortured and killed as food. And conversely, I have yet to hear an argument that because many humans kill and torture animals, it must therefore be acceptable to kill and torture those omnivorous humans.

Perhaps, however, the omnivorous animals question does not present an argument about moral forfeiture. Instead, it may be intended to demonstrate that it is "normal" or "natural" to consume other animals, as other species do it as well. If this is the argument, then I am surprised to hear that people who are content to consume other animals believe that those other animals' conduct should serve as a moral model for human emulation. If nonhuman animals are so different from us that they do not "count" enough to qualify for the most basic of our rights -- not to be tortured and killed for food -- then it is difficult to see how we can properly invoke their behavior to demonstrate that ours is morally acceptable because it mirrors theirs. Another problem with the argument that "lions do it, so why shouldn't we?" is that we in fact judge much behavior that is common among many nonhuman species (and, for that matter, among human beings as well) as outrageous and wrong. There is no question, for example, that many animals routinely coerce one another to have intercourse (contrary to popular belief, female mammals in heat are not receptive to all males and therefore resist when an "undesirable" male attempts, sometimes successfully, to copulate with them), as do many human beings. Rather than qualify as an argument for legalizing rape, however, the prevalence of this conduct shows simply that we face a challenge in trying to protect potential victims against predatory behavior. To put it differently, we would not require a criminal law if harming one another did not come so "naturally" in the absence of law.

Most nonhuman animals do not appear to share one of our capacities -- the ability to make decisions on the basis of a moral rule. This makes them innocent when they carry out predatory conduct that would be culpable if committed by one of us. This does not, however, exclude nonhumans from the community of living creatures who have a right not to be tortured and killed. If it did, then we would be permitted to torture and kill with impunity any human being who lacked the ability to carry out moral reasoning, that is, infants and severely mentally disabled human beings.

In short, the fact that (some) nonhuman animals consume other nonhuman animals does not represent an argument for the moral acceptability of our consumption of nonhuman animals, as a matter of either moral forfeiture or moral role modeling.

Saturday, July 19, 2008

Gore, Carbon, Taxes, Cap & Trade

Al Gore's bold call to take the entire electrical grid off of carbon sources within a decade will be, and already has been, dismissed as prohibitively expensive and wildly unlikely. No doubt it will be defended as a useful statement of principle---the sort of truly ambitious plan against which much more modest proposals can be measured. Another way to put that point: Gore's ambitious goals can be used to give some political cover for those who want to do something valuable but less ambitious.

Here I want to raise a question, more in the interest of sparking a debate than anything else. The question is whether there is anything to be said for a cap-and-trade program versus a simple carbon tax. A useful summary of the advantages of a carbon tax over cap-and-trade can be found here. The argument in the other direction can be found here. I think I'm persuaded that a straight tax is, all things considered, better policy than cap-and-trade. Certainly the dramatic effects in American driving habits that we've seen since gasoline prices topped $4/gallon illustrate the simple economic truth that energy consumption responds to price.

At the same time, however, I'd favor the adoption of a cap-and-trade program with serious caps if it were more politically palatable. One supposed advantage of a carbon tax over cap-and-trade is that the tax is simpler. But the very complexity of cap-and-trade might make it harder to portray as a "tax" and thus easier to get enacted.

The choice of cap-and-trade versus tax thus strikes me as having a policy dimension and a political dimension, but I don't see much of an ideological dimension. Someone who thinks that global warming is a creation of the liberal media or that it is real but not worth doing much about would likely oppose both cap-and-trade and tax. On the other side, someone who, like me, thinks that we need to do something serious to limit carbon emissions will favor doing whatever is the most effective thing that can actually get accomplished.

And yet, there appears to be an ideological dimension at play here too, with moderate conservatives on this issue (e.g., McCain) favoring cap-and-trade rather than tax. I get the political reasons why McCain would take this position: He doesn't want to come out for something called a "tax." But I sense that this is not simply politics or simply a shrewd assessment of where the electorate is. I get the feeling that there are conservatives who both understand the economics and think that cap-and-trade really is better, not just because it lacks the word "tax." That's the part I don't get. Wouldn't a conservative who wants to do something about global warming prefer a straightforward tax, which seems to require much less of a government asssessment of market conditions than does cap-and-trade? Or, at the least, wouldn't such a person end up where I am, i.e., wanting to do the most effective politically viable thing?

Explanations in the comments---especially by those who favor cap-and-trade over tax on grounds other than ability to sell it to the public---are invited.

Posted by Mike Dorf

Friday, July 18, 2008

Double Jeopardy en Espanol

In the United States, the Fifth Amendment's Double Jeopardy Clause (incorporated against the States via the Fourteenth Amendment's Due Process Clause) has been interpreted to have the following two consequences (among others):

1) The prosecution cannot appeal an acquittal;


2) The prosecution of a defendant (whether it results in conviction or acquittal) by Jurisdiction A does not bar his subsequent trial for the same acts by Jurisdiction B, where A and B are "separate sovereigns." This rule was dramatically illustrated when the police officers who were acquitted on California state law charges of beating Rodney King were subsequently tried on federal charges. California and the U.S. government are separate sovereigns (as are different U.S. states, but not different local governments within a state).

Meanwhile, as dramatically illustrated by yesterday's rulings in connection with the Madrid bombings, Spain has the exact opposite set of rules: 1) Prosecutors can appeal an acquittal; but 2) the fact that a defendant (here Rabei Ousmane Sayed Ahmed, aka "Mohammed the Egyptian") has been convicted for the same conduct now charged by a different sovereign (here Italy) does bar his trial.

The juxtaposition of these rules does not, of course, mean that either system is necessarily superior. The prohibition on appealing an acquittal in the U.S. is no doubt strongly tied to our reliance on juries in criminal cases. It protects the jury's role as finder of fact and conscience of the community. Spain, using bench trials within an inquisitorial system (in a non-pejorative sense), attributes less significance to the conclusions of the trial adjudicator.

Likewise, the separate-sovereign rule is a tricky matter. There can be something very unfair about its application to permit essentially a second bite at the apple, especially when the first trial resulted in an acquittal. Yet doing away with the rule completely could prove problematic where the first prosecution is either incompetent or corrupt. Suppose that during the Civil Rights era, local prosecutors rushed to try the members of a racist lynch mob so as to get an acquittal, and thus foreclose the possibility of a trial on federal civil rights charges. The separate sovereign rule makes such a ruse unavailing.

More broadly, the juxtaposition of the U.S. and Spanish approaches to what we call double jeopardy shows the context-dependence of judgments about procedural fairness. There is a strong tendency to confuse what's familiar with what's best.

Posted by Mike Dorf

Thursday, July 17, 2008

What Does Lieberman Want?

Senator Joseph Lieberman's defeat in the 2006 Connecticut Democratic primary and subsequent general election victory as an "Independent Democrat" created one of the more delicate political balances in U.S. history. With Lieberman (and the socialist Independent Bernie Sanders of Vermont) in their caucus, Senate Democrats hold a 51-49 margin in the Senate, giving them all the power (agenda setting, committee majorities, subpoena power, etc.) that goes with majority status. Keeping Lieberman in the caucus has thus been essential to his Democratic colleagues, putting Lieberman in a position with potentially enormous power. One could imagine a cartoonish situation where Lieberman snaps his fingers and announces that he is bored, leading to frantic efforts by the party leadership to find ways to please his fickle tastes.

Surprisingly, nothing even mildly in that direction has happened. Lieberman requested and received the chairmanship of the Homeland Security and Governmental Affairs Committee, which is hardly a plum position in terms of profile or portfolio. His most public efforts, of course, have been in aggressively supporting the Bush administration's Iraq policy and the candidacy of Republican Senator John McCain, earning him the enmity of many Democrats both inside and outside the Senate. Even so, this is hardly out of character for Lieberman, who won his first term in the Senate by running a hard right campaign against liberal Republican Lowell Weicker and whose selection as Al Gore's running mate in 2000 was largely driven by Lieberman's highly public criticism of Bill Clinton as well as his more general reputation as a public moralist (read: scold).

In other words, Lieberman's new status has led him a bit further afield, but not anywhere near the extremes toward which his unique position might have allowed him to push. This is even more surprising when one considers that Lieberman will almost certainly be exiled come January 2009. Unless the Democrats do much worse than expected, leaving them near the current 50/50 split, or much better, putting them near a 60/40 veto-proof majority, Lieberman will almost certainly be punished for his transgressions to date. While every seat is important, it is easy to imagine the Democrats with, say, a 54-44-2 split after the election. A caucus with 55 members -- most of whom are pretty angry about Lieberman's support for McCain -- could be expected to decide that they do not really need a 56th member. They might even be expected to make an ugly public example of Lieberman as he is ousted.

It was thus interesting to see an article in Monday's NYT that offered extensive quotations and analysis of a recent interview with Lieberman. The genuine surprise coming out the article, for me, is that Lieberman just doesn't seem to have an agenda. (He is, however, willing to be utterly disingenuous. "When asked if he received 'talking points' from the McCain campaign or the Republican National Committee, Mr. Lieberman replied, 'I usually don’t.'") He simply seems to be a stubborn guy who may or may not be settling a few small scores but who gives no hint that he is taking advantage of his position -- nor does he show any awareness that his position is so very temporary. In short, he offers no vision and no indication of even having a purpose, large or small, in his career.

During the 2006 mid-term election campaign, Michael Dorf wrote a column on FindLaw about Lieberman, noting that "[a]t each crucial moment in his Senate career, Lieberman has made plain that the cause about which he cares most deeply is Joe Lieberman." Mike concluded by noting that "I can't shake the suspicion that behind Lieberman's disarming wit lies the soul of an opportunist." It is interesting that, in the two year's following Mike's comments, Lieberman has shown himself to be such a small-time opportunist. While the Senator should be condemned for his transgressions, we might count our blessings that he is willing to settle for what amounts to little more than self-indulgence.

-- Posted by Neil H. Buchanan

Wednesday, July 16, 2008

Prosecutorial Discretion at the ICC

In my FindLaw column (updated link here) on the warrant application against Sudanese President Al Bashir, I argue that, although it's impossible to predict with certainty, the International Criminal Court proceedings are likely to do more harm than good. I also say, though, that Luis Moreno-Ocampo nonetheless made the legally correct judgment because the UN Security Council, in referring the matter to the ICC prosecutor's office, already made the judgment that, if genocide charges were factually justified, it was, all things considered, appropriate to prosecute. In other words, I assume a rough division of labor in which the Security Council makes the strategic/consequentialist decision about what will further collective peace and security, while the prosecutor makes the judgment about what is factually and legally warranted.

That's not the only way to read the situation, however. Moreno-Ocampo also had the prosecutorial discretion not to seek an arrest warrant, even if he concluded that there were reasonable grounds to believe that Al Bashir had committed genocide. In the domestic criminal law enforcement context, we are all familiar with the sorts of reasons that could justify the exercise of prosecutorial discretion. These include:

1) Given prosecutorial resources, other, more serious crimes take priority. That's clearly inapplicable here.

2) A conviction would be difficult to obtain for reasons unrelated to guilt. Because the ICC does not permit trials in absentia, that's true here, although that doesn't make the justification applicable. The reason not to bring a case against a likely-guilty suspect who would nonetheless likely be acquitted is that it's a waste of prosecutorial and judicial resources (including juror time). An arrest warrant that's never served doesn't cost the ICC much at all. It's a bit like the arrest warrants that judges issue from the bench in minor cases where the defendant doesn't show up. No one expects the police to serve the warrant, but if the defendant is later picked up for something else, he's in bigger trouble.

3) A greater good comes from not prosecuting a guilty defendant. In the domestic law enforcement context that's most commonly going to be the ability to use the defendant's testimony against someone else that the government would rather prosecute. Ideally, the govt turns small fish for big fish, although in recent years it's often been simply the first defendant to talk that gets the best deal. In any event, it's pretty clear that there's no reason to turn Al Bashir against anyone else, and he isn't remotely willing to do so anyway.

Still, this third category, taken at a higher level of generality, does offer a reason for non-prosecution: The greater good of improving the lives of Al Bashir's victims in Darfur. It's worth noting that this sort of argument is almost NEVER offered in domestic law enforcement. It would be like the Justice Dept deciding not to prosecute mafia bosses they believed they could convict because they worry that this will lead to reprisals against witnesses, or that decapitating the mafia will lead to a bloody power struggle. Such pragmatic arguments are hardly far-fetched. Yet the fact that they're not considered on the table in domestic law enforcement should give us pause in thinking about whether going after Al Bashir is the right move.

Posted by Mike Dorf

Tuesday, July 15, 2008

We Need More Cooks!

In dueling statements on Iraq and Afghanistan, Sen. McCain and Sen. Obama exchange I-told-you-so's.

McCain says: Obama and I both thought the Bush Admin bungled the war early on, but I supported the surge, which is working, while he opposed it, so I have better judgment.

Obama says: The military component of the surge has reduced violence but there still is inadequate political reconciliation in Iraq and, more importantly, McCain's judgment is terribly suspect because he supported the invasion of Iraq, which I opposed.

For my money, even if one thinks the surge was the right call given where matters stood a year ago, this is a losing game for McCain to play. The tactical question of whether to surge or not is so obviously less important than was the strategic question whether to invade in the first place. How this will play out politically is not entirely clear. Elections tend to be about the future more than the past, and so voters would likely be more interested in what each candidate would do going forward. To the extent that the battle of I-told-you-so's matters, my best guess is that Obama wins here. No matter how many times people hear "the surge is working," and no matter how much distance McCain tries to place between his position and that of the Bush Administration, the overall impression of a failed policy in Iraq would favor the greater change agent, which is pretty clearly Obama.

And what about the title of today's post? Well, that's a reference to the following inadvertently hilarious excerpt from Sen. McCain's speech:
Too often, even as American soldiers and diplomats cooperate in the field, their superiors back home have been squabbling. Last year, the Bush administration appointed a war czar, responsible for both Iraq and Afghanistan. This was a step in the right direction. But Afghanistan is sufficiently important that a separate Afghanistan Czar is needed. I will appoint a highly-respected national security leader, based in the White House and reporting directly to the President, whose sole mission will be to ensure we bring the war in Afghanistan to a successful end.
Yes, what better way to ensure that the superiors back home don't squabble than to have two separate "Czars" for Iraq and Afghanistan? Surely two people will squabble with each other much less than one person would squabble with himself!

Posted by Mike Dorf (aka "Dorf on Law Czar for posts by Mike Dorf")

Monday, July 14, 2008

Al Bashir

The indictment of Omar Hassan Ahmad Al Bashir is gripping, if disturbing, reading. I'm working on a FindLaw column on it for Wednesday afternoon, but for now I'll just record a chilling highlight. The indictment observes that Al Bashir:

employed a policy of exploiting real or perceived girevances between the different tribes struggling to prosper in the difficult Darfur environment. He promoted the idea of a polarization between tribes aligned with the Government, whome he labeled "Arabs," and the three groups he perceived as the main threats, whom he labeled "Zurgas" or "Africans." The image is only one of many devices used by AL BASHIR to disgues his crimes. Boht victims and perpetrators are "Africans" and speak "Arabic."
It's worth noting how much of the Western narrative of the Darfur tragedy has been shaped by Al Bashir's propaganda, accepting that in fact this is a conflict between "Arabs" and "Africans." Although commentators often point out that the victims (as well as the perpetrators) are Muslim, the ethnic differences are generally accepted as real. In this respect, the genocide is similar to the Rwandan genocide: Because Hutu and Tutsi were categories created by European colonialists and later exploited by indigenous strongmen, it was often hard for those committing genocide to know who was Hutu and who Tutsi.

More broadly, the allegations recited in the indictment confirm the "logic" of genocide: the need to find an "other," even when ethnic divisions are small. The targeting of "intellectuals" (including people who wore glasses) by the Khmer Rouge is a high (i.e., low) point for finding any us-versus-them distinction to serve.

Posted by Mike Dorf

Sunday, July 13, 2008

Dorf on Film: Waiting for Professor Melfi

In the heyday of psychotherapy, Hollywood films often portrayed psychoanalysts as miracle workers. Think of Ingrid Bergman in Hitchcock’s Spellbound, for example. But recently, Hollywood has more often offered contemptuous views of therapists. Think here of Woody Allen as Zelig, rushing off to teach his class in “advanced masturbation.” Among its many charms, “The Sopranos” was notable as a recent Hollywood product that portrayed psychoanalysis in a sympathetic, if morally ambiguous, light. (Yes, I know “The Sopranos” was a tv show, but, well, it’s not tv, it’s HBO.)

But if Hollywood has begun to portray psychotherapy in a more balanced fashion, its views of academia remain highly stereotyped. Three relatively recent films are notable. The Squid and the Whale, Smart People and The Visitor all feature late-middle-aged men as academics who are by turns, emotionally empty, fatuous, lazy, and ultimately engaged in churning out meaningless blather in their professional capacities. Two of these films (Squid and Visitor) are really outstanding in other respects, and none of them is necessarily making the point that ALL academics embody only these qualities, but the overall impression is hard to shake.

Notably, these are three indy films. Mainstream Hollywood’s stereotypical professor is a little different. Law professors tend to look, sound and act like John Houseman in The Paper Chase. Occasionally, one sees the professor/teacher-as-inspirational figure, although such characters are usually high school teachers. See, e.g., Dead Poets Society; The History Boys (okay, not a mainstream Hollywood feature). Sometimes one gets a truly embarrassing version of the professor as rock star, as in Barbra Streisand’s godawful The Mirror Has Two Faces (a film that asks the vital question “Is Barbra Streisand still pretty,” and gives the answer: “yes, she sure is”). I suppose the Indiana Jones movies fall into this category too, although Indy’s status as an archeology professor is usually ignored a few minutes into the movie.

Just WHY writers and directors see academics as cerebral but emotionless irrelevancies or, in mainstream films, as unrealistic superstars, is an interesting question. I’ve long thought that the unflattering portrayals of psychotherapists were the product of unsuccessful or at least prolonged therapy. But it’s hard to see how or why movie makers would have been scarred by academia. (Woody Allen is a famous exception. At least according to his early comedy routine, he was kicked out of NYU for cheating on a philosophy exam: “I looked into the soul of the boy next to me.” That’s a paraphrase.)

Whatever the reason, we academics are still waiting for our version of Dr. Melfi.

Posted by Mike Dorf

Friday, July 11, 2008

A New Role for Senator Clinton

Having been rather harsh in my assessments of Sen. Hillary Rodham Clinton (see, for example, here), I noted with considerable interest the senator's vote against the recent expansion of the government's wiretapping powers. As most everyone knows by now, earlier this week the Democrats in the Senate once again found themselves cowering in the face of the Bush administration, with half of them voting with Republicans to expand the Foreign Intelligence Surveillance Act. I will not engage here with the question of why this was a low point in American politics, leaving that to what appears to be about 90% of the blogosphere. Instead, I will note simply that this vote could be Sen. Clinton's opening to create an important new role for herself now that she is not running for president.

During the primaries, I was rather late to the Obama party. I never trusted Clinton, but Obama seemed like a promising enigma at best. Left with a choice of Clinton vs. Obama, of course, the choice was easy. I was never, however, among those who thought that he could do no wrong. Obama's vote in favor of the FISA bill was thus hugely disappointing but not as big a shock as it might have been. Calling the bill a "compromise" was transparently ludicrous, as even President Bush didn't bother with that fig leaf as he thanked the Congress for giving him what he asked for.

During the primaries, as the Clinton campaign spun out of control, I started to compose a blog post with the working title: "Dear Bill and Hillary, Thanks for everything. Now go away." Sen. Clinton's vote, however, suggests that she just might have a new role. Whether to prove her doubters wrong or simply to exercise the freedom of not being a candidate, she refused to do the expedient thing on this bill. It hardly seems likely that she would have taken this position had she become the Democratic presidential nominee, but no matter. If she really wants to find an important role to fill as her career goes forward, leading the Democrats when their spines weaken is (sadly) likely to be frequently necessary and is something for which Sen. Clinton is uniquely well situated. Here's hoping that she takes that path.

-- Posted by Neil H. Buchanan

Wednesday, July 09, 2008

"Informed" Consent to Abortion

I currently have a column up on findlaw about an Eighth Circuit decision vacating an injunction against enforcement of a South Dakota statute that requires abortion providers to tell their patients that an abortion will kill a unique human being. Planned Parenthood challenged this version of the statute, passed in 2005, on several grounds, including the First Amendment right of the physician not to be a mouthpiece for the government's moral message about abortion (as opposed to conveying relevant facts, which the government may compel a doctor to do) . I argue in my column that this First Amendment argument is persuasive, notwithstanding the definition section of the S.D. statute, which defines a "human being" as a living member of the species Homo sapiens. I note that the definition provided exposes the moral rather than factual nature of the compelled communication -- the statute asks doctors to tell patients that embryos are defined as "human beings," a contested ideological claim with which most abortion providers likely disagree.

In this blog post, I wanted to focus on a different aspect of the informed consent requirement currently present in many abortion statutes. Unable to prohibit abortion outright, which the Constitution -- under Roe v. Wade and its progeny -- still prohibits, opponents of abortion have instead attempted to reach out to women contemplating termination and "convince" them to take their pregnancies to term. Some of these methods would strike many as coercive. Waiting periods, for example, during which the woman is ostensibly contemplating her decision (on the dubious assumption that she did not contemplate it before making her appointment), can be prohibitive for poor women who live many miles from an abortion clinic and who must therefore take a day off from work each time they are to appear before a doctor. Part of why there are so few clinics, moreover, is that many gynecologists prefer to avoid performing abortions. That is their right, of course, but it may have more to do with the harassment and intimidation by the fringe of the pro-life movement (outlined powerfully in Susan Wicklund's personal memoir, This Common Secret: My Journey as an Abortion Doctor ) than with physicians' sincerely held beliefs. In any event, for many poor rural women, the combination of the waiting period (introduced into law by mainstream pro-life adovcates) and the dearth of providers effectively prohibits them from having an abortion at all.

A government-mandated morality lecture by a doctor, however, is somewhat different from a waiting period. Though unpleasant, it does not make it impossible for the woman to have an abortion. What it does is forcibly confront both the doctor and the patient with the pro-life perspective on their actions, even when neither doctor nor patient has any desire or interest in considering that perspective. By contrast, if I go to my doctor and say "I don't want to know what an appendectomy involves. I don't want to know about risks and benefits. If you think I should have it, I will have it," the government does not require that the doctor ignore my wishes and force me to hear about risks of hemorrhage, etc. I have the right, in other words, to remain ignorant if I want to remain ignorant. The abortion informed consent laws are different. They say that the doctor must convey the information (unless faced with an emergency) to the patient, no matter what the patient wants.

There is a difference, though, between an abortion and an appendectomy. One has the right to surrender one's judgment in connection with unknown risks to oneself, but one does not have a similar right with respect to others. Because the embryo or fetus is another entity, then it may follow that the government can compel the woman to know about the invisible (to her) harms suffered by that other entity, even if she would rather not know. The oddity, of course, is that if the embryo or fetus is truly entitled to rights under the law, it would seem to follow that one such right would be that against being intentionally killed. It is therefore peculiar that because the fetus or embryo is another entity, the woman can be compelled to hear what she would prefer not to hear (such as the gestational age of the fetus or embryo), but she still maintains a right to kill that entity.

One way to reconcile the apparent contradiction is to reject the "is it a person?/isn't it a person?" formulation of the question and opt instead for a bodily integrity approach to abortion. If the woman's right to terminate a pregnancy, in other words, is not a function of the status of the embryo or fetus but is instead a function of her autonomy right not to be compelled by the government to sacrifice her own bodily integrity for another living creature, then it may be consistent to say both that an embryo or fetus has interests and that a woman may terminate a pregnancy, even if termination necessarily kills the embryo or fetus. And if that is one's position on abortion, then perhaps compelled information sessions might be appropriate. I will discuss this idea in greater detail in an upcoming symposium at G.W. Law Center on what we owe future generations. Even on this view, however, it is still inappropriate to force a doctor to utter an ideological position that she does not share, as a matter of First Amendment law, and that remains true even if we assume arguendo that an embryo or fetus may indeed be a member of the moral community.

Posted by Sherry Colb

What is NEPA For Today?—The Sonar Case Part 3

Like many of our disruptions of the Earth, high energy “active” sonar has enabled us to do seemingly miraculous things like locate and track a very distant (quiet) submarine. The trouble is always what it costs to do these things. Researchers have drawn causal connections between active sonar and serious harms to different sea creatures, especially beaked whales. These connections have firmed up so much over the last few years that even the U.S. Navy institutionalized a layer of review in (most) peace-time uses of active sonar in an effort to minimize the damage. But who is to say when lots of disruption and damage become too much?

In the NEPA case now before the Supreme Court, Winter v. Natural Resources Defense Council, it looks like the usual suspects will once again have that question hashed out for them. (The usual suspects are the administration v. the lower ranks of its agencies, the Ninth Circuit v. SCOTUS, the states, and perhaps Verbal Kint.) But in this third post on the case, I argue that their question is becoming a neurotic obsession that is now crowding out other, more important questions these cases are raising. Most especially, what is a statute like NEPA really for today given how much society has changed since it was enacted? This question is getting virtually no attention from the federal courts that, as an institution, seem bent on avoiding real analysis of statutory purpose even while a thing like a statute can hardly be made intelligible without at least some purpose or point being attributed to it.

To recap, the Navy had planned a long series of active sonar exercises. It determined in an “environmental assessment” (EA)—allowed under the NEPA guidelines—that by observing its own mitigation measures during its exercises, it would not cause a “significant impact” on the environment. (This is a common practice.) Some number of animals would be harmed but, in the grand scheme of things, the overall “effect” would be relatively minor, at least according to the Navy’s models. In doing so, the agency—the Navy is an “agency”—expected to slip NEPA’s requirement for a full environmental impact statement (EIS) with what is known as a “mitigated FONSI”: a Finding Of No Significant Impact that uses mitigation measures to drop the action below the significance threshold.

The Natural Resources Defense Council convinced a federal court that this got NEPA wrong. Indeed, they convinced two of them: District Judge Cooper in Los Angeles and a Ninth Circuit panel which took yet another opportunity to apply its own somewhat unique NEPA jurisprudence—most especially National Parks and Conservation Assn. v. Babbitt 241 F.3d 722 (9th Cir. 2001) (NPCA). Then the Solicitor General convinced the Supreme Court to hear the Navy’s appeal.

NPCA and other Ninth Circuit precedents have been uniquely skeptical of agency decisions to forego EIS’s. These cases have made it particularly hard for agencies to avoid EISs in finding that the likely impacts of an action are unknown or unquantifiable. Conversely, precedents in the D.C. Circuit and most of the regional circuits have tended to view such uses of uncertainty within a FONSI quite deferentially. In NPCA and a series of cases involving National Forest Management Act land planning, the Ninth Circuit has been spinning a web of barriers around the FONSI ‘exit’ from NEPA. NPCA held that “the absence of currently available information does not excuse the [agency] from preparing an EIS when there is a reasonable possibility that such information can be obtained in connection with the preparatory process.” 241 F.3d at 737. Certain panels of the Ninth Circuit now cite it routinely, most notably last year’s Center for Biological Diversity v. NHTSA, 508 F.3d 508 (9th Cir. 2007) (striking down a weak fuel economy rule for SUVs and light trucks because, among other things, NHTSA failed to prepare an EIS).

No to put too fine a point on it, but this is a fundamental dimension of modern conservation. Climate change has alerted much of the general public to this reality, but for conservationists it is like the air we breathe. Jarring uncertainties are ubiquitous in forecasting environmental futures. For example, in the Sonar Case, how well any of the parties’ proposed “mitigation” measures will actually work is deeply uncertain. It might, therefore, seem curious that only one Court of Appeal has a rule quite like NPCA’s. The likely reason is that it has virtually no connection to NEPA’s text or to the NEPA guidelines. What it does have going for it is a fair bit of common sense as an intuitive extension of NEPA’s deliberative ethos—at least if you believe agencies are predisposed to avoiding deliberation in public.

Still, I can’t help but wonder whether the sonar battle was the right one to fight at all. Isn’t it extraordinary for the President of the United States to exercise authority like what he utilized in this case—exempting the sonar exercises from complying with the CZMA? Isn’t it extraordinary for CEQ to jump into a fight between an agency and environmental plaintiffs and call a district court’s injunction the “emergency circumstances” justifying an exemption from NEPA? And isn’t it extraordinary that, during a time of war and escalating defense preparedness beyond even the two theatres of battle, the military is giving any thought at all to beaked whales and other sea life as it readies its forces? So I wonder if our priorities are a little turned around here.

When SCOTUS reverses in Winter, it will have any of a number of grounds on which to do so—most of which are much narrower than those described in my posts. (The SG’s petition focused on the “reasonableness” of CEQ’s interpretation of the “emergency circumstances” guideline and on the standard for granting a preliminary injunction.) And NRDC will no doubt point to the political leanings of the judges in the majority, acquitting itself of any blame for what may be a very bitter NEPA pill.

But these fights all combine to do a phenomenal job of hiding the prior and, in my view, far more important, question: What is NEPA for today, almost 40 years after its enactment? Politically, it has become the un-amendable statute. The last (right-wing) congressman who staked his fortunes on deep-sixing NEPA lost handily in the 2006 elections (in a conservative district). The few (lefty) academics who have pointed out how NEPA’s deliberative ethos could be enhanced by focusing less on EIS’s and more on FONSI’s, follow-up, and information management, have been largely ignored outside academia. So all we can look forward to as a Nation-under-NEPA is more mudplay from the usual suspects? That is deeply troubling. In my final post, I’ll try to sketch a different future for this conservation icon.

Posted by Jamie Colburn

Isolation, Engagement and Confrontation

The recent announcement by President Bush that he would attend the opening ceremonies at the Olympic Games in Beijing implicates both an old debate about how to influence malign regimes. One school of thought says that beyond a certain threshold of evil, bad regimes should be isolated to hasten their collapse. The other school says that isolating measures---such as boycotts and other economic sanctions---punish the people who live in these regimes, but only stiffen the resolve of the rulers, who typically have ways of evading the sanctions for themselves, their cronies, and the military. This second school of thought says that engaging bad regimes through trade, diplomacy and cultural contact will gradually soften them.

Interestingly, the urge to isolate versus to engage is not itself strongly correlated with ideology. For example, in the U.S., left/liberals wanted to isolate apartheid South Africa but to engage with Cuba, while conservatives had the opposite preference set. Perhaps this shows that left/liberals thought apartheid South Africa but not Cuba beyond the pale, while conservatives had the opposite view.

It's also worth noting that there's sometimes a third option: confrontation. The Bush Administration has tried all three approaches with respect to the members of the axis of evil: Economic sanctions, it was said, were only hurting the Iraqi people, so the Administration confronted Saddam Hussein in Iraq; despite occasional suggestions of confrontation, and despite post-9/11 cooperation on some matters, the Administration has generally sought to isolate Iran through sanctions; and North Korea, after being isolated and occasionally threatened, is now being engaged.

The Administration made a bad call by invading Iraq, but some otherwise reasonable people thought otherwise at the time, and the argument for confrontation will sometimes be strong. Neither isolation nor engagement would have been an effective strategy against Nazi Germany, for example. Likewise, it seems that the choice between the two less bellicose options---isolation and engagement---is a context-sensitive judgment call. Apartheid South Africa's international isolation probably did hasten the transition to multi-racial democracy. But there are places where engagement works better. President Bush is almost certainly right in suggesting that China is among them: The Chinese government today is very oppressive in many ways, but Nixon's reversal of U.S. policy in favor of engagement has helped reformers in China to make it a substantially less oppressive place than it was forty years ago.

Finally, one must admit that there are circumstances in which foreign leverage is unlikely to do much good: Isolation fails, engagement fails, and military confrontation is not a realistic option. Zimbabwe under Mugabe may prove to be such a place. In such cases---and perhaps more generally---isolation may be the best policy on deontological if not consequentialist grounds: If we can't ameliorate conditions, at least we ought not to be complicit in the regime's misdeeds.

But this view itself is open to a consequentialist critique: Granted that no policy will yield good results. Still, some will yield less bad results than others. Thus, for example, buying coffee from Zimbabwe will do something to support that country's shattered economy, which may lead to marginally better conditions. The best that the deontological isolationist can say against this critique, I think, is that the claim of net good coming from trade in this case is so speculative that it's not worth acting on, while the complicity is a certainty.

Posted by Mike Dorf

Tuesday, July 08, 2008

From Belgian Endive to Crocs

There are many reasons why the Dukakis Presidential campaign of 1988 will be remembered as one of the least inspired efforts in modern political history. Some will point to the ridiculous image of Dukakis in a tank. Others will note his emotionless, robotic (not in the Wall-E sense!) answer to the question of how he would react if his wife were raped and murdered. Still others will note how Lee Atwater et al snookered Dukakis with the Pledge of Allegiance and other cultural issues. For me, though, the best symbol of the problematic nature of the Dukakis campaign came early, when, trying to woo Iowa voters, he suggested that they should diversify from a corn (and soybean) economy to grow more exotic, high-value crops like Belgian endive.

In the 2008 Presidential election, the by-now standard media narrative casts Sen. Obama as the heir to Dukakis---much more charismatic to be sure, but still the choice of the egghead set, what right-wingers (and others) derisively call "latte liberals." And yet, there is a much more important, and more substantive, sense in which Sen. McCain is the logical heir to the Belgian-endive-to-the-rescue approach of Gov. Dukakis.

Given the cultural salience, Dukakis made a politically maladroit choice in arguing to Iowa farmers that they should grow Belgian endive, but his more important mistake was thinking that the economy of Iowa and other midwestern/Great Plains farm states could be revived dramatically by shifting from mass production of commercial grains to artisanal crops. The limitations of the latter model are (and already were) apparent in France, where essentially artisanal agriculture is economically viable principally because of government subsidies. Perhaps the elimination of agricultural subsidies worldwide, and a major shift away from corn-fed animal products in the American diet (which would be independently valuable on health, environmental and animal wellbeing grounds) would make a national endive policy sensible, but it wasn't viable in 1988 and isn't yet today.

As a matter of overall economic policy, there was a kernel of sense in what Dukakis was saying, but it probably was more applicable to the industrial than to the agricultural sector. As the U.S. economy has shed jobs in manufacturing, it has added jobs in services. Some of these are high-wage, but many aren't. Sensible industrial policy encourages the growth of industries in which the U.S. has a competitive advantage. In recent years, that has been the high-tech sector. The sensible industrial policy equivalent of the endive gambit would be something like a policy that encourages R&D investment in green tech.

Both Presidential candidates occasionally talk about a strategy along these lines, but Sen. McCain's talk seems the more, well, "endivish." He wants to keep taxes low to unleash the magic of the market. And he supports free trade so that the products of American ingenuity can be exported the world over. His key example? Wait for it . . . wait for it . . . okay: Crocs. That's right, John McCain wants, as his symbol of American ingenuity, a slightly more comfortable sandal. Here's the full quote from the NY Times:
This former small business now employs 600 people in Colorado alone, and sells over 50 percent of its products in 90 countries around the world. Building barriers to Crocs or any American company’s access to foreign markets will have a devastating effect on our economy and jobs, and the prosperity of American families.’’
Granted, they're comfy. Indeed, I'm wearing a pair of them now. Of course, I drink soy lattes and drive a Prius. So not only is the Croc a preposterous example of how to revive American competitiveness---virtually all footwear sold in the U.S. is now manufactured abroad, including Crocs. (Mine were made in Mexico.) But the Crocs example is culturally resonant with Belgian endive. However, because McCain-as-Dukakis does not fit the offical narrative, look for it to be ignored by the non-DoL media.

Posted by Mike Dorf

Monday, July 07, 2008

Some Tentative Thoughts About Freedom

With the Independence Day holiday weekend now behind us, I've been thinking about the concept of freedom. This is hardly unplowed ground, of course. Along with the founding documents of the United States and countless other countries, freedom's contours have been explored by scholars over the centuries and across the political spectrum. FDR's famous "Four Freedoms Speech" -- describing freedoms of speech and expression, to worship, from want, and from fear -- sets a rather high standard as well. For a simple blog post on a Monday morning, I offer two much more modest thoughts.

First, freedom is one of those words whose meaning has become hopelessly muddled. Along the lines of the argument from George Orwell that I noted in a post last week, this lack of clarity makes the word both potent for demagogues and -- more to Orwell's larger point -- potentially confusing for its users. If we do not really know what we mean when we use the word freedom, invoking it can be meaningless at best and misleading at worst. For example, an advertisement for Dan Rather's new show on HDNet shows an unidentified soldier or militant of some sort, wearing a mask and being interviewed by Rather. The interviewee says: "We want freedom, and we are willing to die for it."

What does this person really want when he says that he will die for freedom? If, as we often believe, the U.S. is the model of freedom, what part of what we have is worth fighting to replicate elsewhere? A bicameral legislature? Adoption of the Bill of Rights? The Bush administration has often acted as if holding contested elections is both necessary and sufficient to declare that a country has been given "freedom," which merely demonstrates the point that meaningless words can lead to muddled or disastrous policy choices. "We gave them elections, so they have freedom. Why isn't everything better now?" Although it is easy to imagine that some people in positions of power use the word cynically, it seems at least plausible that much of the difficulty stems from insufficient appreciation that the word freedom has become a feel-good word that means everything and nothing.

Second, beyond abstract concepts of freedom in the context of constitutions and governance, what does freedom mean in people's lives? Again, this is hardly a new question, and it would be too ambitious to hope to add much to the idea that many of the freedoms that Americans often debate are meaningless to people without enough food to eat. Still, one of the concepts that, I strongly suspect, Dan Rather's freedom fighter most likely did not have in mind was expanding freedom to vulnerable groups in society. Almost twenty years ago, for example, I had occasion to drive across the United States alone. One afternoon, I stopped for gas in the middle of Wyoming. Even dressed in casual summer clothes, I couldn't help feeling great discomfort and even fear for my safety as I waited for the tank to fill up. The men at the gas station made it very clear that I was an outsider and that I should leave quickly, which I did. As I drove away, I thought, what if I were a woman, or black? Would I have even considered stopping there? What if I had no choice? With that as a possibility, would I even have considered driving across the country alone in the first place? At that moment, freedom took on a meaning that was quited unexpected (though, I readily admit, hardly novel). As a white male in America, I had the freedom to do something that I wanted to do, and that very freedom was fundamentally tied to the fact that I did not have to worry about my personal safety before deciding whether to do it.

The freedom to get in one's car and drive across the country might seem a bit frivolous -- especially given climate change and the price of gas -- but the larger point is that freedom can sometimes be captured in what we take for granted. We still have some distance to travel before we can say that all Americans, much less all human beings, enjoy the same freedoms. We would do well, at least, to stop using the word casually.

-- Posted by Neil H. Buchanan