Jurisdynamics Network

When Innocent Clients Plead Guilty

Fri, 25 May 2012 14:46 GMT

At the Legal Ethics Forum (LEF), John Steele has a post on the Brian Banks story in the news the last couple of days. First, we’ll introduce the basics of the story, courtesy of the Los Angeles Times (May 25, 2012). What follows are the comments to date at LEF, where John asks, “The focus should be on Brian Banks, but I can’t help but wonder: what is it like for a lawyer to advise an innocent client to plead guilty?”

“A Ten-Year Nightmare [for] Rape Conviction is Over”

Brian Banks spent years in prison, branded a rapist. Then his accuser provided the key to getting his conviction dismissed.

By Ashley Powers

“Brian Banks logged onto Facebook last year, and a new friend request startled him. It was the woman who, nearly a decade ago, accused him of rape when they were both students at Long Beach Poly High School. Banks had served five years in prison for the alleged rape, and now he was unemployed and weary. So he replied to Wanetta Gibson with a question: Would she meet with him and a private investigator? She agreed.

At the meeting, which was secretly recorded, Gibson said she had lied. ‘No,’ she was quoted as saying, ‘he did not rape me.’ That admission set off an extraordinary chain of events that culminated Thursday morning. A Los Angeles County Superior Court judge dismissed Banks’ conviction, ending 10 years of turmoil in a hearing that lasted less than a minute. [….]

In the summer of 2002, Banks was considered a top college football prospect. A 6-foot-4, 225-pound middle linebacker at Long Beach Poly High, Banks said he had been courted by USC, UCLA and other football powerhouses. He was attending summer school, and asked his teacher for permission to leave class so he could make a phone call, according to court papers. Then Banks, a senior, ran into Gibson, a sophomore. Banks said they fooled around, but that their sexual contact was consensual. His mother, Leomia Myers, believed him, and said she sold her condo and her car to pay for his defense. “I knew I didn’t raise my son to do something so horrendous,” she said.

Gibson’s version shifted over the years. She could not be reached Thursday for comment. [….] But when she testified during Banks’ preliminary hearing, Gibson faced the rigorous questioning typical in sexual assault cases. She changed some details and added others, Banks’ attorneys alleged in court documents.

Banks had a choice: He could take the he said-she said case to trial and, if convicted, risk being sentenced to 41 years to life in prison. Or, as his lawyer advised, he could accept a plea deal.

Banks pleaded no contest to one count of forcible rape, spent five years in prison and, upon his release, was forced to register as a sex offender and wear an electronic monitoring bracelet. At one point, he begged the California Innocence Project in San Diego for help, but he was told that without new evidence, there was nothing its attorneys could do. [….]

Meanwhile Gibson and her family sued the Long Beach schools. They settled the case for $1.5 million. Gibson’s mother, Wanda Rhodes, could not be reached Thursday for comment. [….]

According to Banks and his private investigator, Gibson refused to tell prosecutors that she had lied, so that she wouldn’t have to return the money she and her family had won in court. She also said she feared it would affect her relationship with her children, Banks’ attorney alleged in court papers. But her taped admission was enough to interest the Innocence Project attorneys, who said they had never before taken the case of someone already released from prison. When they reexamined Banks’ case, said Innocence Project attorney Justin Brooks, investigators also found other evidence to back up his claims.

After the alleged rape, no male DNA had been detected on Gibson’s underwear, his attorneys said. Also, the classmate Gibson first told about the alleged attack — via the note — said Gibson later admitted to making up the story so her mother wouldn’t find out she was sexually active, attorneys said. More recently, Gibson has backed off her recantation, Brooks said. Nevertheless, when presented with the Innocence Project’s findings, Los Angeles County prosecutors agreed that the case should be thrown out. [….]

Yours truly begins the comments at LEF (hyperlinks added):

“I can’t answer the question, but I suspect this occurs more often than we’d care to admit, especially for indigent defendants,* and given both the case loads of public defenders (including their wish to maintain a decent or working relationship with the prosecutor) and the nature and degree of the discretionary power of the prosecutor during the (largely invisible) plea bargaining process. For example,

‘Even when the charges are more serious, prosecutors often can still bluff defense attorneys and their clients into pleading guilty to a lesser offense. As a result, people who might have been acquitted because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the charge. Why? In a word, fear. And the more numerous and serious the charges, studies have shown, the greater the fear. That explains why prosecutors sometimes seem to file every charge imaginable against defendants.’ Martin Yant, Presumed Guilty: When Innocent People Are Wrongly Convicted (1991)

William J. Stuntz provides us with another explanation in The Collapse of American Criminal Justice (2011), ‘In the inevitably selective business of criminal punishment, selections are often made on perverse criteria. The lack of careful investigation that characterizes most felony prosecutions virtually guarantees that a significant number of innocent defendants are pressured to plead to crimes they did not commit. And within the much larger universe of guilty defendants, those who are punished most severely are often those who made the worst deals, not those who committed the worst crimes.’ As Stuntz also notes, plea bargains ‘are no longer a means of settling easy cases, which is their proper role.’

Two examples that are perhaps representative and at least illustrative: See the case of Emma Faye Stewart as told in Angela J. Davis’s Arbitrary Justice: The Power of the American Prosecutor (2007): 50-52, as well as the 2008 film, American Violet. The latter

‘tells the story of Dee Roberts (Nicole Beharie), a 24 year-old African-American single mother of four, living in a small Texas town (based after Hearne, Texas where the real incident took place). One day, while Dee is working a shift at the local diner, the powerful local district attorney (Michael O’Keefe) leads a drug bust, sweeping Dee’s housing project. Police drag Dee from work in handcuffs, dumping her in the women’s county prison. Indicted based on the uncorroborated word of a single and dubious police informant facing his own drug charges, Dee soon discovers she has been charged as a drug dealer.

Even though Dee has no prior drug record and no drugs were found on her in the raid or any subsequent searches, she is offered a hellish choice: plead guilty and go home as a convicted felon or remain in prison and fight the charges thus, jeopardizing her custody and risking a long prison sentence.’

Dee’s public defender counsels her to take the deal, and it appears he knew the charges were likely false: ‘In the film, the public defender urges the character named Dee Roberts to accept a plea bargain. The actual public defender claims he never tells innocent clients to take a plea.’ Of course not, what public defender would publicly confess to such behavior?”

* Keep in mind that “even grossly incompetent lawyering,” as Monroe Freedman reminds us, “is not enough to establish ineffective counsel,” and that the current criminal justice system—especially for poor people—is, in Freedman’s pithy characterization, “unethical, unconstitutional, and intolerably cruel.”

Monroe Freedman: “I agree with Patrick about the evils of plea bargaining, which are heightened by prosecutors’ overcharging for bargaining purposes, and by incompetent defense lawyers.

However, the defendant is entitled to know how the system works (i.e., coercing pleas to avoid the expense to society of honoring the right to trial by jury) and to be counseled to take a plea to a lesser offense rather than taking the substantial risk of spending the rest of is life in prison, or being executed. The issue is discussed in Understanding Lawyers’ Ethics (4th ed., 2010): 58-62, including a discussion of the dilemma of the lawyers representing the Unabomber, who was refusing to take the plea that would have saved his life.”

John Steele: “Patrick, thanks. There is also a well-done scene in the movie Criminal Justice where the lawyer and client discuss the pros/cons of pleading guilty to a crime that they know the client didn’t commit.”

Alice Woolley: “I think this is one of the most difficult ethical dilemmas for defense lawyers, and it is heightened by criminal justice systems which make the consequences of conviction so extreme. In Canada it is unethical for a lawyer to counsel a client to accept a guilty plea unless the client can honestly attest to the factual and mental elements of the offence (i.e., does not plausibly maintain his or her innocence). But as we move to a more extreme criminal justice system, with the introduction of severe mandatory minimum sentences for a broad variety of crimes, criminal defence lawyers have to weigh the factors noted by Monroe. That is, they need to be honest with their clients about the likelihood and consequences of conviction given how the system works. What is the balance between the existential harm of a wrongful confession and the lived harm of a life of incarceration and all of the subsequent consequences to that?

When I present this issue to my students they generally want to avoid the hypothetical - show how they will be able to obtain an acquittal for the client. But that just evades the basic problem.

I think one of the best discussions of this is in Abbe Smith’s book, Case of a Lifetime: A Criminal Defense Lawyer’s Story (2008) when she talks about the fact that the client she represented did not take a favourable plea deal because the client was innocent, and ended up spending decades in jail as a result. Abbe does a terrific job of laying out the ethical problem, and making it clear where she thinks the duties of the lawyer lie.

Ultimately perhaps this is a case where the solution lies with the prosecutor - to not play the game of piling on charges to make the consequences of not taking a plea so extreme. But prosecutors are under pressure too, and they have to live with a system which puts the mandatory minimum sentences in place. It’s not obvious that simply declining to apply the laws is ethical for a prosecutor either.”

U.S. News & World Report Improves Transparency of Law School Rankings

Tue, 22 May 2012 12:36 GMT

Huzzah for U.S. News and World Report! The most recent edition of its law school rankings includes the median LSAT and GPA of each school’s entering class. Finally. I have long argued that USN&WR should publish all of the data that it uses in its rankings. How else can the rest of us (read: rankings geeks) understand how—and, indeed, whether—the rankings work? Though USN&WR remains short of that ideal, disclosing median LSATs and GPAs represents a major step towards making the rankings more transparent and, thus, trustworthy.

USN&WR started the trend towards transparency last year, when it began publishing the “volume and volume equivalents” measures that it uses in its law school rankings. That input counts for only .75% of a school’s score, however. Median LSATs and GPAs together count for 22.5% of a school’s score, in contrast, making their disclosure by USN&WR all the more helpful.

There remain only two categories of data that USN&WR still uses in its law school rankings but does not disclose: overhead expenditures/student (worth 9.75% of a school’s score in the rankings) and financial aid expenditures/student (worth 1.5%). It isn’t evident why USN&WR declines to publish those inputs, too, though perhaps the financial nature of the data raises special concerns. If USN&WR cannot bring itself to publish overhead expenditures/student and financial aid expenditures/student, however, it should abandon those measures. They serve as poor proxies for the quality of a school’s legal education and if we cannot double-check the figures we cannot trust their accuracy.

[Crossposted at Agoraphilia and MoneyLaw.]

Test Questions I Wish I'd Asked

Mon, 21 May 2012 14:15 GMT

The end of the school year always leaves me wishing that I could have lectured more clearly or somehow covered more in my classes on environmental law and policy. There was really just too much to discuss. How does one do justice to all those doubtful arguments in support of the Keystone XL pipeline? It’s a job creator! A gasoline price cap! A floor wax! Or the continuing saga of how the Obama administration should reorganize the offshore drilling responsibilities assigned to the MMS, I mean BOEMRE, I mean BOEM/BSEE. And there is never enough time to test it all.

This year I’ve assembled a few questions that have been on my mind this semester but that didn’t make it onto the exam. (Answers are posted at the bottom of this page). Thanks to the bloggers at CPRBlog, who helped me come up with some of the ideas.

Now find a quiet spot, sharpen that No. 2 pencil, and test your knowledge.

1. Last year, when the EPA began limiting emissions of CO₂from coal-burning power plants and other sources, the energy industry blew a fuse. Affected companies publicly argued that greenhouse gas regulation had gone too far. But last February during oral argument before the U.S. Court of Appeals, lawyers for some of those same companies argued that the agency’s rule was invalid because it did not go far enough. According to them, what was wrong with the rule?

(A) The rule did not limit methane emissions from municipal landfills, methane being a more powerful greenhouse gas than CO₂.

(B) The rule did not limit CO₂emissions from smaller facilities like hospitals, schools, and churches.

(D) The rule did not directly address facilities that consume large amounts of electricity, like the proposed car elevator for Mitt Romney’s new beach-house or Al Gore’s Belle Meade mansion in Nashville.

2. As of this month, a preliminary EPA document containing a statutorily mandated list has been trapped in a routine process of White House regulatory review for two years. Many environmentalists want the Obama administration to act on this list and are incensed by the delay. What’s on the list?

(A) The names of chemical agents used in hydraulic fracturing, which some experts believe could contaminate nearby aquifers.

(B) The names of polluted communities that the EPA believes are in need of “environmental justice support.”

(C) The names of Republican Senators who have publicly said they believe in human-induced climate change. (It’s a short list.)

(D) The names of certain “chemicals of concern,” like the BPA used in baby bottles and dental fillings, that the EPA believes might deserve future regulatory attention.

3. A 2011 report by the U.S. Nuclear Regulatory Commission that this year became the subject of Senate hearings, found that the Fukushima Daiichi nuclear disaster in Japan was partially attributable to a flawed planning process. What was the flaw?

(A) The hypothetical “worst case” tsunami that planners had in mind was based on overly optimistic assumptions and was not based on the full historic record.

(B) The planning process discouraged planners from giving weight to variables that were not contained within the worst-case model they were considering.

(C) The planning process was difficult to apply consistently across facility locations because of differences in geography and other site-based characteristics.

(D) All of the above.

4. This spring on the campaign trail, Mitt Romney has offered the misfortunes of the Sackett family as an example of how an “Obama government interferes with personal freedom.” According to Romney, Mike and Chantell Sackett bought some Idaho property with plans to build a home, only to be blocked by an EPA official who insisted the property contained protected wetlands even though the designation did not appear in the wetlands registry. The Sacketts were given no chance to appeal and were forced to comply or “risk millions in fines.” The story sounds compelling, except for one unmentioned detail:

(A) Ten months out of the year, the Sacketts’ land is two-feet underwater.

(B) EPA officials had offered Mike and Chantell a “beer summit” at the White House—featuring Laughing Dog ale—as compensation.

(D) All of the above.

5. Last month the U.S. Department of Justice announced the first criminal charges related to the BP Blowout. Kurt Mix, a BP engineer involved in designing the failed “top kill” remedy, was indicted for obstructing justice by allegedly destroying hundreds of text messages that described high volumes of oil escaping from the ruptured well. That’s bad enough. But as an eagle-eyed reporter at the New York Times observed, at the time of the arrest, Mix was guilty of a nearly equally grave sartorial infraction? What was it?

(A) He sported a pair of “Van’s two-toned skate shoes with white athletic socks.”

(B) He wore “a plaid, clip-on tie.”

(D) His purple polo shirt appeared to be stained by “two splashes of Tabasco sauce.”

Have a great summer!

Answers: 1:B, 2:D, 3:D, 4:C, 5:C

Wrongful Conviction(s)

Mon, 21 May 2012 09:56 GMT

Yesterday we watched the 2010 film Conviction, based on a true story, with Hilary Swank as Betty Anne Waters and Sam Rockwell as her brother “Kenny” Waters. This called to mind several similar films I’ve recently seen, including The Hurricane (1999), and American Violet (2008). Conviction is an extremely powerful film, so much so I had it fresh on my mind upon awakening. My morning ritual includes reading the paper (the actual paper, not the cyberspace version) and, lo and behold, after scanning the baseball scores (the Dodgers won again!), I landed on an article about a new national database tracking wrongful convictions since 1989. I suppose this falls under the heading of serendipity or synchronicity. I’ve pasted the entire article below, followed by a list of titles that help us begin to make sense of the disturbing number of (both documented and unknown) wrongful convictions. In other words, these books should enable us to better understand the possible reasons for the incredible number of wrongful convictions in our adversarial criminal justice system.

“Registry Tallies Over 2,000 Wrongful Convictions Since 1989”
Los Angeles Times (May 21, 2012)
By David Savage

The national database, said to be the largest of its kind, covers the period since DNA testing came into common use. Its sponsors hope to shed light on the legal system’s failings.

“More than 2,000 people have been freed from prison since 1989 after they were found to have been wrongly convicted of serious crimes, according to a new National Registry of Exonerations compiled by University of Michigan Law School and Northwestern University. Its sponsors say it is by far the largest database of such cases, and they hope it will help reveal why the criminal justice system sometimes misfires, prosecuting and convicting the innocent. ‘The more we learn about false convictions, the better we’ll be at preventing them,’ said Samuel Gross, a University of Michigan law professor.

The registry covers the period since DNA came into common use and revealed, to the surprise of many prosecutors and judges, that a significant number of convicted rapists and murderers were innocent. The Innocence Project in New York says DNA alone has freed 289 prisoners since 1989. Criminal law experts have been studying the growing number of exonerations. Some cases have involved police corruption or witnesses who recanted. Experts have also pointed to faulty eyewitness testimony and lying witnesses as common problems. Beyond that, a surprising number of cases involved suspects who confessed to crimes they didn’t commit. [emphasis added]

‘Nobody had an inkling of the serious problem of false confessions until we had this data,’ said Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University. Under persistent and prolonged questioning by investigators, some suspects confessed to crimes such as rape, even though DNA later revealed they were not the perpetrators.

Among the states, Illinois has the most exonerations listed in the new registry, and among counties, Cook County and Chicago led the way, followed by Dallas and Los Angeles. However, the sponsors of the new registry do not contend that their data permits strong comparisons across counties or states because only about 900 of the cases were examined in detail by jurisdiction. ‘It’s clear that the exonerations we found are the tip of the iceberg,’ Gross said. For example, several counties in California with more than 1 million residents, including San Bernardino and Alameda, listed no exonerations. By contrast, Cook County had 78 and Dallas County 36. ‘Obviously there are false convictions in those [other] counties. We just don’t know about them,’ he said.

The figures are also constantly changing. Last week, shortly after a report on the registry was completed, prosecutors in Lake County, Ill., dropped sexual assault charges against Bennie Starks. He had been convicted of the 1986 rape of an elderly woman and had served 20 years in prison. DNA evidence taken from the victim pointed to a different man. Updating the registry, Warden said Illinois now had 103 exonerations.”

Recommended Reading:

Abramsky, Sasha (2007) American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment. Boston, MA: Beacon Press.
Alexander, Michelle (2010) The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.
Allen, Francis A. (1981) The Decline of the Rehabilitative Ideal. New Haven, CT: Yale University Press.
Banner, Stuart (2002) The Death Penalty: An American History. Cambridge, MA: Harvard University Press.
Burnett, Cathleen (2002) Justice Denied: Clemency Appeals in Death Penalty Cases. Boston, MA: Northeastern University Press.
Butler, Paul (2009) Let’s Get Free: A Hip-Hop Theory of Justice. New York: The New Press.
Cole, David (1999) No Equal Justice: Race and Class in the American Criminal Justice System. New York: The Free Press.
Cusac, Anne-Marie (2009) Cruel and Unusual Punishment: The Culture of Punishment in America. New Haven, CT: Yale University Press.
Davis, Angela J. (2007) Arbitrary Justice: The Power of the American Prosecutor. New York: Oxford University Press.
Demleitner, Nora, Douglas A. Berman, Marc Miller and Ronald Wright (2007, 2nd ed.) Sentencing Law and Policy: Cases, Statutes and Guidelines. New York: Aspen Publ.
Dow, David R. (2005) Executed on a Technicality: Lethal Injustice on America’s Death Row. Boston, MA: Beacon Press.
Dubber, Markus Dirk (2006) The Sense of Justice: Empathy in Law and Punishment. New York: New York University Press.
Forst, Brian (2004) Errors of Justice: Nature, Sources and Remedies. Cambridge, UK: Cambridge University Press.
Friedman, Lawrence M. (1993) Crime and Punishment in American History. New York: Basic Books.
Garland, David (2001) The Culture of Control: Crime and Social Order in Contemporary Society. Chicago, IL: University of Chicago Press.
Garrett, Brandon L. (2011) Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Cambridge, MA: Harvard University Press.
Harcourt, Bernard E. (2011) The Illusion of Free Markets: Punishment and the Myth of Natural Order. Cambridge, MA: Harvard University Press.
Huff, C. Ronald, Arye Rattner, and Edward Sagarin (1996) Convicted But Innocent: Wrongful Conviction and Public Policy. Thousand Oaks, CA: Sage.
Irwin, John (2004) The Warehouse Prison: Disposal of the New Dangerous Class. Los Angeles, CA: Roxbury Publ.
Kennedy, Randall (1997) Race, Crime, and the Law. New York: Pantheon Books.
King, Gilbert (2008) The Execution of Willie Francis: Race, Murder, and the Search for Justice in the American South. New York: Basic Civitas.
Lawless, Joseph F. (3rd ed., 2003) Prosecutorial Misconduct. Charlottesville, VA: LexisNexis.
Marquart, James W. (1994) The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990. Austin, TX: University of Texas Press.
Mauer, Marc (2nd ed., 2006) Race to Incarcerate. New York: The Free Press.
Medwed, Daniel S. (2012) Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent. New York: New York University Press.
Mello, Michael A. (1997) Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment. Madison, WI: University of Wisconsin Press.
Mello, Michael (2001) The Wrong Man: A True Story of Innocence on Death Row. Minneapolis, MN: University of Minnesota Press.
Messerschmidt, Jim (1983) The Trial of Leonard Peltier. Boston, MA: South End Press.
Miller, Jerome G. (1997) Search and Destroy: African-American Males in the Criminal Justice System. Cambridge, UK: Cambridge University Press.
Ogletree, Charles J., Jr. and Austin Sarat, eds. (2006) From Lynch Mobs to the Killing State: Race and the Death Penalty in America. New York: New York University Press.
Prejean, Sister Helen (1993) Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States. New York: Random House.
Reiman, Jeffrey (2005, 7th ed.) The Rich Get Richer and the Poor Get Prison: Ideology, Class and Criminal Justice. Boston, MA: Allyn & Bacon.
Rhode, Deborah L. Access to Justice (2004) New York: Oxford University Press.
Rhodes, Lorna A. (2004) Total Confinement: Madness and Reason in the Maximum Security Prison. Berkeley, CA: University of California Press.
Russell, Katheryn K. (1999) The Color of Crime: Racial Hoaxes, White Fear…. New York: New York University Press.
Saks, Elyn R. (2002) Refusing Care: Forced Treatment and the Rights of the Mentally Ill. Chicago, IL: University of Chicago Press.
Sarat, Austin (2001) When the State Kills: Capital Punishment and the American Condition. Princeton, NJ: Princeton University Press.
Sarat, Austin, ed. (1999) The Killing State: Capital Punishment in Law, Politics, and Culture. New York: Oxford University Press.
Simon, Jonathan (2007) Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear. Oxford, UK: Oxford University Press.
Stuntz, William J. (2011) The Collapse of American Criminal Justice. Cambridge, MA: Harvard University Press.
Temple, John (2009) The Last Lawyer: The Fight to Save Death Row Inmates. Jackson, MS: University Press of Mississippi.
Tonry, Michael (1996) Malign Neglect: Race, Crime and Punishment in America. New York: Oxford University Press.
Turow, Scott (2003) Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty. New York: Farrar, Straus, and Giroux.
Wacquant, Loïc (2009, English ed.) Punishing the Poor: The Neoliberal Government of Social Insecurity. Durham, NC: Duke University Press.
Welsh-Huggins, Andrew (2009) No Winners Here Tonight: Race, Politics, and Geography in One of the Country’s Busiest Death Penalty States. Athens, OH: Ohio University Press.
Western, Bruce (2006) Punishment and Inequality in America. New York: Russell Sage Foundation Publ.
White, Welsh S. (2005) Litigating in the Shadow of Death: Defense Attorneys in Capital Cases. Ann Arbor, MI: University of Michigan Press.
Zimring, Franklin E. (2003) The Contradictions of American Capital Punishment. New York: Oxford University Press.
Zimring, Franklin E. (2005) American Juvenile Justice. New York: Oxford University Press.
Zimring, Franklin E. and Gordon Hawkins (1997) Crime is Not the Problem: Lethal Violence in America. New York: Oxford University Press.
Zimring, Franklin E. and Gordon Hawkins (1986) Capital Punishment and the American Agenda. Cambridge, UK: Cambridge University Press.
Zimring, Franklin E. and Gordon Hawkins (1997) Incapacitation: Penal Confinement and the Restraint of Crime. New York: Oxford University Press.
Zimring, Franklin E. and Bernard E. Harcourt, eds. (2007) Criminal Law and the Regulation of Vice. New York: Thompson West.

The Easy Road for Article 9 in Florida

Mon, 21 May 2012 08:54 GMT

Summer is upon us, a good reminder that the effective date of Revised Article 9 is coming in just a year (the "Revision"). Of course, one of the main issues within Article 9, which gave rise to the Revision, was the lack of specificity in the way in which a secured party should provide the name of an individual debtor on a financing statement. To resolve this problem, a joint review committee was appointed by the American Legal Institute (ALI) and the Uniform Law Commission (ULC). The joint review committee produced two alternatives from which states would be free to choose. Alternative “A” sets up a hierarchy for individual names which requires a creditor to use the name on the most recent driver’s license, if the debtor has one. While Alternative “B” allows the creditor more flexibility in listing the individual debtor’s name, allowing the creditor to identify the debtor on the financing statement by the individual name, the surname and personal name, or the name on the debtor’s most recent driver’s license. See, What's in a Name.

As I am getting ready to teach a Commercial Law Survey course, I know that the students will ask about the Revision and its progress here in Florida. Perhaps indicative of the easy road the Revision will have, the status of Article 9 in Florida has already been decided. Florida has enacted the 2010 amendments to UCC Article 9 through House Bill 483 (HB 483). The law provides Alternative “A” for individual debtor names in Section 9-503(a)(4) and takes effect on July 1, 2013, right on schedule. The bill was presented to the Governor on March 23, 2012 and was subsequently signed into law on April 6, 2012. The only small departure from the official text of the Article 9 amendments is a non-uniform version of Section 9-521. Under HB 483, the Florida version of Section 9-521 directs the secretary of state to develop or approve forms.

While Florida is neither the first, nor the last state to consider the Revision, its pathway with little resistance is a good sign for its fate going forward. Let's just hope that the Revision proves successful in its treatment of outstanding issues like debtor names that have provided much litigation.

-JSM

File Under: “Unintentional but Beneficial By-Product Effects,” Or, “The Resuscitation of Prefigurative Politics” *

Sun, 20 May 2012 10:20 GMT

[Arizmendi Bakery is a worker-owned cooperative specializing in morning pastries, artisan breads and gourmet pizza. They are located in the Inner Sunset, just two blocks from Golden Gate Park.]

In today’s Los Angeles Times, Neal Gabler has an inspirational and incisive piece on the “do-it-yourself” approach of the youth today to progressive political change, an approach which has as its axiomatic premise the belief that the social transformation one wants to see take place, begins with oneself, in concert with others, such that the “means-ends” formulas typically intrinsic to conventional power politics are in some sense transcended. The aim, with Gandhi, is to “be the change we want to see in the world,” or with the anarchist tradition (at least its more philosophically-inclined tradition), to build the new world within the shell of the existing—and decaying—order. As Richard D. Sonn writes in his introduction to the doctrine and movement of anarchism:

“Anarchists hoped to make the services of the state redundant by performing them themselves. People needed to form alternative communities, businesses, schools, newspapers, cafés, marriages, libraries, and so on that were nonhierarchical, nondominative, nonexploitive. In a negative sense the anarchist doctrine might imply sabotaging the boss’s factory or not paying the rent to the landlord; in a positive sense, anarchists wished to form mutual aid societies and credit banks, personal relationships that could be terminated by mutual consent, schools featuring what anarchists like to call ‘integral education’ of both manual and intellectual skills. The anarchists tended to believe that a change in attitudes must precede any large-scale social transformation. Power-mad people would simply institute new regimes of power. To destroy rather than replace relations of power, new anarchist values had to predominate.” See Sonn’s book, Anarchism (New York: Twayne Publishers, 1992)

Another way to think of this is along the lines Gandhi conceived of the relationship between means and ends:

It is enough to know the means. Means and ends are convertible terms.
We always have control over the means but not over the end.
Our progress toward the goal will be in exact proportion to the purity of our means.
Instead of saying that means are after all means, we should affirm that means are after all everything. As the means so the end.

From Raghavan Iyer’s chapter, “Means and Ends,” in Parapolitics: Toward the City of Man (New York: Oxford University Press, 1979)

And now, from Gabler’s LA Times article:

“Welcome to the DIY generation”

“Barack Obama wanted to be a transformational president, and as we head into the general election, he may have gotten his wish — just not the way he or his supporters might have thought.

Obama seems to have transformed the cohort of 18- to 29-year-olds, a whopping 66% of whom preferred him over John McCain, from passionate voters who thought Obama really did offer change they could believe in, into people feeling, in the words of veteran political analyst Charlie Cook, ‘disappointment and disillusionment.’

Democratic pollster Stan Greenberg recently found Obama leading Romney among these same voters just 55% to 43%. And focus groups of young undecided voters in Ohio and North Carolina, conducted by the Republican organization Resurgent Republic, found them unhappy with the direction of the country, skeptical about an improving economy and deeply disappointed with the president. He ‘promised the moon,’ one young voter told pollsters, ‘and couldn’t even deliver the upper atmosphere.’

Disillusionment with partisan politics is certainly nothing new. Obama’s fall from grace, however, may look like a bigger belly flop because his young supporters saw him standing so much higher than typical politicians. Yet by dashing their hopes, Obama may actually have accomplished something so remarkable that it could turn out to be his legacy: He has redirected young people’s energies away from conventional electoral politics and into a different, grass-roots kind of activism. Call it DIY politics.

We got a taste of DIY politics last fall with the Occupy Wall Street sit-ins, which were a reaction to government inaction on financial abuses, and we got another taste when the 99% Spring campaign mobilized tens of thousands against economic inequality. OWS and its tangential offshoots may seem political, but it is important to note that OWS emphatically isn’t politics as usual. It isn’t even a traditional movement.

Movements have vectors; they head in a direction. The Occupiers don’t have a coherent program or clearly identified leaders or a political dimension even in the way, say, the tea party does. OWS is more just a festival of grievance populated by those (mostly young people) who find no place for themselves in the system, which made the metaphor of their ‘occupying’ the seat of American economic power ironic.

All of this is perhaps best defined as a consciousness — a way of thinking about change rather than a schema for it. That’s one reason the Occupiers could collect so many disparate elements. OWS has spoken to a mounting sense among the disaffected that nothing quite works in America and that you can’t really fight politics with politics anymore. In fact, you have to forget about traditional institutions, power and systems entirely. Americans typically don’t think this way.

OWS is only the most visible manifestation of this consciousness; there are many other subterranean components. Their adherents find one another on the Internet or in community meetings or in groups like the 99% Spring. Though many of the young seem to have given up trying to change the establishment frontally, what they are doing, though they may not realize it, is slowly creating a melding of minds that could eventually result in a new kind of politics in which traditional political institutions are basically irrelevant.

The DIY impulse seems to start with the most basic politics of all: individual agency. If it takes hold it will be from the bottom up, translating a way of thinking into a way of doing. Already you can see DIY politics in action, not just in young people camping outside City Hall but in their joining service organizations and NGOs where they can do good and seemingly apolitical — or at least extra-governmental — work. They don’t abide endless debate and tit-for-tat strategies that result in gridlock.

I have seen this firsthand in my family. One of my daughters has spent the last few years in the developing world working in healthcare and will be returning to this country this year to attend medical school. My other daughter spent a year in American Samoa in the World Teach program, another year in AmeriCorps, and is now in graduate school in social work. Neither cares one whit about the political system generally or electoral politics specifically. When we talk about their lack of interest in the current campaign or about legislative initiatives, they tell me, ‘We live our politics.’ [….]

There is a scathing irony in the fact that some attribute the rise in civic commitment to an ‘Obama effect,’ by which they mean Obama has kindled this idealism the way President Kennedy inspired young people to join the Peace Corps. (Of course, many more attribute it to the economy and the lack of jobs for recent grads.) Unfortunately, none of these surveys investigates reasons for increased volunteerism, but the data suggest another possible Obama effect: that he has driven them out of politics and into service.

Many longtime politicos find that outcome troubling. They fret that if young people abandon the system, the system will abandon the public good. Of course, to many of the young, it is the system that has abandoned them. If the polls are accurate, most of them will still vote for Obama but with less enthusiasm than in 2008 and with fewer illusions about what he will accomplish. Instead, they will assume the social burden themselves, opting out of organized politics to ‘do it themselves’ with a politics of one that adds up to millions of ones.”

* Further reading (toward an understanding of radical, nonviolent, and democratic prefigurative politics):

Bahro, Rudolf. Building the Green Movement (Philadelphia, PA: New Society Publishers, 1986)
Bahro, Rudolf. Avoiding Social and Ecological Disaster: The Politics of World Transformation (Bath, UK: Gateway Books, 1994)
Breines, Wini. Community and Organization in the New Left, 1962-1968: The Great Refusal (New Brunswick, NJ: Rutgers University Press, 1989) [The term ‘prefigurative politics’ is first used by Breines in this book, although the concept it identifies pre-dates the New Left and is found in the anarchist tradition and is also central to Gandhi’s political philosophy.]
Carson, Clayborne. In Struggle: SNCC and the Black Awakening of the 1960s (Cambridge, MA: Harvard University Press, 1981)
Case, John and Rosemary C.R. Taylor, Co-Ops, Communes & Collectives: Experiments in Social Change in the 1960s and 1970s (New York: Pantheon Books, 1979)
Cheney, George. Values at Work: Employee Participation Meets Market Pressures at Mondragon (Ithaca, NY: ILR Press, 1999)
Clastres, Pierre (Robert Hurley, tr.) Society Against the State: Essays in Political Anthropology (New York: Zone Books, 1987, French edition, 1974)
Clave, Pierre. The Progressive City: Planning and Participation, 1969-1984 (New Brunswick, NJ: Rutgers University Press, 1986)
Coy, Patrick, ed. A Revolution of the Heart: Essays on the Catholic Worker (Philadelphia, PA: Temple University Press, 1988)
DeLeon, Richard Edward. Left Coast City: Progressive Politics in San Francisco, 1975-1991 (Lawrence, KS: University Press of Kansas, 1992)
Dolgoff, Sam, ed. The Anarchist Collectives: Workers’ Self-Management in the Spanish Revolution, 1936-1939 (New York: Free Life Editions, 1974)
Elster, Jon and Karl Ove Moene, eds. Alternatives to Capitalism (Cambridge, UK: Cambridge University Press, 1989)
Erasmus, Charles J. In Search of the Common Good: Utopian Experiments Past and Future (New York: The Free Press, 1977)
Flacks, Richard. Making History: The Radical Tradition in American Life (New York: Columbia University Press, 1988)
Galston, William A. Justice and the Human Good (Chicago, IL: University of Chicago Press, 1980)
Gendron, Richard and G. William Domhoff. The Leftmost City: Power and Progressive Politics in Santa Cruz (Boulder, CO: Westview Press, 2008)
Iyer, Raghavan, “Means and Ends in Politics,” in his book, The Moral and Political Thought of Mahatma Gandhi (Santa Barbara, CA: Concord Grove Press, 1983; 1st edition, Oxford University Press, 1973)
Kanter, Rosabeth Moss. Commitment and Community: Communes and Utopias in Sociological Perspective (Cambridge, MA: Harvard University Press, 1972)
Kazin, Michael. American Dreamers: How the Left Changed a Nation (New York: Alfred A. Knopf, 2011)
King, Sallie B. Socially Engaged Buddhsim (Honolulu, HI: University of Hawai'i Press, 2009)
Lakey, George. Powerful Peacemaking: A Strategy for a Living Revolution (Philadelphia, PA: New Society Publishers, 1987 revised ed.)
MacLeod, Greg. From Mondragon to America: Experiments in Community Economic Development (Sydney, Nova Scotia: University College of Cape Breton Press, 1997)
Morrison, Roy. We Build the Road as We Travel (Philadelphia, PA: New Society Publishers, 1991)
Nichols, John. The “S” Word: A Short History of an American Tradition…Socialism (London: Verso, 2011)
Payne, Charles M. I've Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom Struggle (Berkeley, CA: University of California Press, 1995)
Piehl, Mel. Breaking Bread: The Catholic Worker Movement and the Origins of Catholic Radicalism in America (Philadelphia, PA: Temple University Press, 1982)
Pitzer, Donald E., ed. America’s Communal Utopias (Chapel Hill, NC: University of North Carolina Press, 1997)
Queen, Christopher S., ed. Engaged Buddhism in the West (Boston, MA: Wisdom Publications, 2000)
Ruddick, Sara. Maternal Thinking: Toward a Politics of Peace (Boston, MA: Beacon Press, 1995)
Sale, Kirkpatrick. SDS (New York: Random House, 1973)
Santos, Boaventura de Sousa Santos, ed. Democratizing Democracy: Beyond the Liberal Democratic Canon—Vol. 1 of Reinventing Social Emancipation: Toward New Manifestos (London: Verso, 2007)
Santos, Boaventura de Sousa Santos, ed. Another Production is Possible: Beyond the Capitalist Canon—Vol. 2 of Reinventing Social Emancipation: Toward New Manifestos (London: Verso, 2007)
Taylor, Michael. Community, Anarchy and Liberty (Cambridge, UK: Cambridge University Press, 1982)
Thomas H. and C. Logan. Mondragon: An Economic Analysis (London: Allen and Unwin, 1982)
Whyte, William Foote and Kathleen King Whyte. Making Mondragon: The Growth and Dynamics of the Worker Cooperative Complex (Ithaca, NY: Cornell University Press, 1988)
Wright, Erik Olin. Envisioning Real Utopias (London: Verso, 2010)

A Select Bibliography on the Vietnam War

Fri, 18 May 2012 13:21 GMT

Here is a select and somewhat idiosyncratic bibliography on the Vietnam War. It is much shorter than most of our lists to date, but perhaps in this instance we might conclude that “less is more.” What follows will serve as an introduction.

Apologia:
This bibliography, while far from exhaustive, should be broad and deep enough to help one arrive at a fairly sophisticated intellectual and emotional understanding of the Vietnam War and its myriad effects on American society, politics, and culture. I hope it also provides some sense—to put it all too feebly—of the devastating impact the war had, and continues to have, on the people and land of Vietnam. Over the years I’ve slowly but intimately come to appreciate the many ways the Vietnam War in particular and “the 60s” generally, have decisively shaped the contours of my worldview (and no doubt subconsciously, my lifeworld as well): hence my attraction to Buddhist spirituality and identification with Left politics and economics. (At least I’m in good company, the Dalai Lama having described himself in an interview as ‘half-Marxist, half-Buddhist’). Indeed, upon learning of this compilation (and in light of over thirty previous bibliographies), my wife expressed surprise that it took me so long to put this particular one together. I suppose it has something to do with a reluctance to fully confront in complete lucidity those mysterious forces we sense—presuming a capacity for episodic transcendence of self-deception and states of denial—have determined in large measure the notion of who we are with regard to our most cherished beliefs, values, and commitments.

I Returned to My Native Village

O my native land—emerald in the shade of the coconut trees,

I return today! A dream I never dared hope.

So many of the ones I love have fallen on this earth.

But here, everything still stood.

I could see again the faces I loved.

I looked, I stared, as if I were lost.

My hands trembled, their hands clasped in mine.

They burned with all the longing, the loss.

I saw again—the old stretch of road

I walked across in dreams.

I could hear the distant cracking of hammocks.

And the singing—“Ah!…how much I love, how much I miss”

The white trang flowers.

Like the purity and the steadfastness of your love.

Like the carmine brilliance of your heart.

The small river where I swam as a child

Stood there still. Its current still ran the same course,

And the water hyacinth dyed its banks violet.

My mother—her back stooped, her hair white,

Told me stories in a sorrowful voice.

On the way back from school

Eight children killed in a napalm attack.

The ten in the hamlet killed by the enemy;

Villagers piled their bodies on a sampan,

Took them to Ben Tre to confront the soldiers.

The times bombs flattened our village,

Bamboo hedges torn, coconut trees uprooted;

To hide from the wind and rain my mother made a simple tent.

I had no idea that in that tent of my mother’s

A burning fire was lit beneath the earth.

Morning and night, my mother broke her back,

Supported our people in hidden tunnels.

Her entire life she made fearless sacrifices.

Twenty years she held onto the home,

She held onto the land

Mother! You are the mother of the South.

I had no idea the young sister I remembered

In that tent had now grown up.

So beautiful, like the springtime in flower.

So beautiful, the rifle strapped on her shoulder.

O sister! How fragrant your hair.

Have you just passed through a durian grove?

I love your crystal-like laughter,

Sweet as the xiem coconut milk.

I love your walk across the monkey bridge,

As gentle as a lovely angel.

You are a courier, you are a guerrilla,

You are my native land.

For eleven years I’ve missed you, eleven years I’ve dreamed

Tonight, the first night I sleep again in my village.

I feel a strange rush of warmth.

Even when the monsoon rains fall hard,

And cannon fire shakes the thatched walls,

How beautiful is our native land!

Even with the roads still pockmarked with bomb craters

Even with your shirt still peppered with patches!

In this return, dear sister, I have no present to give you

Except what’s in the heart—faith, boundless love,

And the rifle in my hand

Burning hot with indignation.

—Lê Anh Xuân (September 1965)

Lê Anh Xuân’s given name was Ca Lê Hiên. He died on May 24, 1968, in the suburbs of Saigon. “He worked briefly as an assistant lecturer in the history department of Hanoi University. At the end of 1964, he volunteered to return to the South and worked in the educational subcommittee, then in the literature branch of the Liberation Association of Literature and Arts for South Vietnam.” He published several books of poetry and one prose collection. This poem is found in Kevin Bowen, Nguyen Ba Chung, and Bruce Weigl, eds., Mountain River: Vietnamese Poetry from the Wars, 1948-1993 (Amherst, MA: University of Massachusetts Press, 1998, and published with the support and cooperation of the William Joiner Center for the Study of War and Social Consequences).

Please Note (May 20, 2012): One book inexplicably missing from the bibliography is Walter Capps’ The Unfinished War: Vietnam and the American Conscience (Boston, MA: Beacon Press, 2nd ed., 1990). Inexplicable and inexcusable as I was a Reader and Teaching Assistant for a couple of Capps’ courses at UC Santa Barbara, including his groundbreaking (and nationally renowned) course, “Religion and the Impact of the Vietnam War,” in the 1980s.

CALI Annual Conference: Some Assembly Required

Wed, 16 May 2012 14:42 GMT

Paul Caron recently posted over at TaxProf Blog about the annual CALI Conference upcoming at Thomas Jefferson School of Law June 21-23. There are plenty of sessions for faculty from building online courses to contract drafting. Also, there will be an update on the ELangdell project. CALI is hosting free open source books targeted to the law school audience, including texts for the U.S. Bankruptcy Code and Rules and Securities Law Statutes. Not likely to have the Uniform Commercial Code published for free, but here's to hoping. Also, for those teaching Contracts next year and not yet committed to a text, Professor Verkerke's Collaborative Teaching Materials For Contracts will be available soon. And, yes, for free. I've already reviewed this text, and it is sure to draw an audience.

- JSM

Palestinian Hunger Strike

Mon, 14 May 2012 08:59 GMT

Unfortunately, I don't have the time to cross-post this, so please see ReligiousLeftLaw.com: Palestinian Hunger Strike.

Law School Clinics Serving Ag & Food Law Clients

Sat, 12 May 2012 19:21 GMT

Innovative law school clinics continue to play a significant role in assisting local food initiatives. I was happy to learn that these agricultural and food law clinical opportunities played a major role at the recent Transactional Clinicians' Conference in Los Angeles. This annual conference is for directors of transactional and community development clinics, and this year, it featured a plenary presentation about clinic representation of agricultural and food system clients.

Beth Kregor, Director of The Institute for Justice Clinic on Entrepreneurship and Lecturer in Law at the University of Chicago and Jay Mitchell, Associate Professor of Law and Director of the Organizations and Transactions Clinic at Stanford Law School led the session.

Beth described her clinic's exciting work with food entrepreneurs and urban farmers on contract, regulatory and advocacy projects in Chicago.

Jay provided an overview about client and project opportunities in the sector, drawing on his article last year in the Journal of Food Law & Policy. Jay's work and his article were featured in a prior blog post here, Agricultural & Food Law at Stanford Law.

I was especially pleased to hear that, when Beth and Jay asked the audience for a show of hands regarding how many clinics had worked with clients associated with the food system, nearly everyone raised their hands!

The right families

Fri, 11 May 2012 20:46 GMT

I look behind my ears for the green
Even my sweat smells clean
Glare off the white hurts my eyes
Gotta get out of bed get a hammer and a nail
Learn how to use my hands, not just my head
I think myself into jail
Now I know a refuge never grows
From a chin in a hand in a thoughtful pose
Gotta tend the earth if you want a rose.

— Indigo Girls, Hammer and a Nail, Nomads Indians Saints (2000)

I grew up in the deep South. I have spent most of my adult life in exile as a stranger in the strange land called Academia. Though the deep South and Academia generally distrust each other, the two places do have some things in common. Chief among those shared traits is the belief that coming from the "right family" counts for something. After six years of publishing MoneyLaw, I'll readily concede that most of my readers will never understand the South and really don't want to understand it. That's a lost cause. But I do suspect that many readers of this blog know a "right family" when they see one. "Proffspring." Children of professors or politicians — hellfire, children of a professor and a politician — collecting another generation of Ivy or near-Ivy degrees. By and large, this is the bourgeois background that dominates acadème. They don't call it the ivory tower for nothing.

For weeks I've been looking for an excuse to post a link to the PBS quiz, White, educated, and wealthy? Congratulations, you live in a bubble. The quiz is quite illuminating. It illustrates the basic premise of Charles Murray, Coming Apart: The State of White America, 1960-2010: The United States, especially but not just its majority white population, is pulling apart like cells undergoing meiosis. The wealthier and (yes) whiter you are, the less likely you are to encounter anyone who deviates from your background. MoneyLaw veteran Jeff Harrison calls it class bias. Really, there's a simpler term for it. Business as usual in academia.

I scored 32 out of 100 points on that PBS quiz. Humble was I ere I saw Harvard: any points I scored were traceable to my upbringing in a comfortable but decidedly modest, working-class immigrant family. That score, PBS told me, is typical of a first-generation professional from a fair to middlin' working-class background. I strongly suspect that most scores in American legal academia would be much, much more sequestered.

I had occasion this week to speak to the hiring partner of a large law firm in a medium-sized American city (not Louisville). He reported an observation that bears repeating. This partner and his counterparts around the country have compared notes on all of the top-ten-percent students and law review editors their firms have hired. The factor that most accurately predicts success? Whether at least one parent worked with her or his hands. Seriously, get out of bed and grab a hammer and a nail.

Come to think of it, as the child of parents whose first jobs in this country were busing tables at Atlanta's old Stouffer Hotel and packing doughnuts at the Krispy Kreme on Ponce de Leon Avenue, I can definitely lay claim to a distinction that has dogged me my whole life, first as a child in and of the deep South, and later as a vagabond in Academia. I really do come from one of the "right families." Indeed, the very best.

Happy Mother's Day, Mom. And thanks, Dad, for marrying her.

Malcolm X and Martin Luther King, Jr.: Violence & Nonviolence

Fri, 11 May 2012 08:27 GMT

John M. Kang has published an intriguing article, “Martin V. Malcolm: Democracy, Nonviolence, Manhood,” (West Virginia Law Review, Vol. 114, No. 937, 2012) which examines the role of socio-cultural circumstances and conditions of one’s birth and upbringing (psychologically and phenomenologically speaking, as ‘personal life experiences’) as important factors in why leaders (and by implication, those they lead) choose violence or nonviolence as alternative means to accomplish their socio-economic and political ends.

Kang contends that “By sifting through their words [i.e., those of Malcolm X and Martin Luther King, Jr.], we may gain a better idea about why someone would choose nonviolence over violence (or vice versa). Through them, we also may understand better how personal life experiences, rather than formal study in ethics or philosophy, are responsible for shaping a person’s conception of democracy.” In short, “Malcolm’s defense of violence in furtherance of political action was, like King’s creed of nonviolence, explainable in part by looking to personal history:”

“King lived in an economically comfortable family that afforded stability and certainty. He ‘went right on through school and never had to drop out to work or anything.’ Growing up in an upper middle-class neighborhood, King was blessed with a father who was “able to provide us with the basic necessities of life with little strain. [….] Malcolm grew up in violence. …[He] also grew up very poor. This too would affect his worldview.” [….]

Kang’s tentative and qualified conclusion takes the form of a generalization that admits, therefore, of exceptions:

“It is hard to generalize why an individual may embrace peaceful means of democratic change while another may embrace violence. [….] Those leaders who, like King, have been blessed with a loving and financially comfortable upbringing are probably more likely to embrace nonviolence and an account of democracy that seeks peaceful coexistence with those who were once their oppressors. On the other hand, violence and separatism are likely to appear more attractive to those who have lived Malcolm’s life, a life damaged by violence as well as sustained by its power.”

One exception to the generalization (which readily comes to mind after Steve Shiffrin’s recent post) I think is worthy of deep consideration is that of the leading members of the Weatherman (later, ‘Weather Underground’) that evolved out of the Students for a Democratic Society (SDS) in the late 1960s. The Weathermen were clearly the most “violent” (in quotes, as their putatively ‘revolutionary’ violence was comparatively tame: it resulted in several deaths, to be sure, but it was largely directed against various forms of property, and included advance warnings to the authorities), of the factions that emerged within the SDS and helped ensure its eventual implosion and demise. Its leaders stood apart from even other leaders in the New Left student movement generally owing to their privileged upbringing and decisive affluence. As Todd Gitlin writes, “They radiated confidence as if to the manner born, in no small part because they were children of cornucopia par excellence. Compared to the general run of SDS members, and the previous leadership groups, they came from wealth, they were used to getting what they demanded, stamping their feet if they had to, wriggling away without punishment.” Gitlin proceeds to document and fill out this characterization in his classic study, The Sixties: Years of Hope, Days of Rage (New York: Bantam Books, 1987).

Kang is not the first person to raise the question of how “personal life experiences” played determinative roles in the shaping of Malcolm and Martin’s respective worldviews in general and views on violence and nonviolence in particular. James H. Cone’s book, Martin & Malcolm & America: A Dream or a Nightmare (Maryknoll, NY: Orbis Books, 1992), sketches the importance of family and the relevance of social context in comparing these two remarkable black leaders from the 1960s, hence, for example, the respective chapters, “The Making of a Dreamer,” and “The Making of a ‘Bad Nigger.’” In addition, Eugene Victor Wolfenstein’s incisive study (which ‘contains’ a ‘psychobiography’ but is much more than that), The Victims of Democracy: Malcolm X and the Black Revolution (London: Free Association Books, 1989), helps one understand in a very vivid way how the social circumstances of one’s upbringing and life (in this case, owing to the determination of race and class variables) can deeply impinge upon and in some measure shape the (‘worldview-type’ and significant) moral and political choices one perceives and comes to make over time.

In a future post, I will address the role of violence as part of the quest for progressive (here: ‘revolutionary’) personal and social transformation with the Weathermen and the Black Panther Party in the 1960s and early 1970s.

John Brown's Body

Fri, 11 May 2012 00:01 GMT

Nights alone are the cathedrals and basilicas of my life, and the stars are the votive candles that hear my prayers and confessions. But in this moment I have naught to confess, save a mood for poetry. The saint I shall invoke is none other than the patron of the American epic, Stephen Vincent Benét. Herewith the final lines of John Brown's Body:

Stand apart
From the loud crowd and look upon the flame
Alone and steadfast, without praise or blame.
This is the monster and the sleeping queen
And both have roots struck deep in your own mind,
This is reality that you have seen,
This is reality that made you blind.

So, when the crowd gives tongue
And prophets, old or young,
Bawl out their strange despair
Or fall in worship there,
Let them applaud the image or condemn
But keep your distance and your soul from them.
And, if the heart within your breast must burst
Like a cracked crucible and pour its steel
White-hot before the white heat of the wheel,
Strive to recast once more
That attar of the ore
In the strong mold of pain
Till it is whole again,
And while the prophets shudder or adore
Before the flame, hoping it will give ear,
If you at last must have a word to say,
Say neither, in their way,
"It is a deadly magic and accursed,"
Nor "It is blest," but only "It is here."

New Agriculture & Food Security Journal

Thu, 10 May 2012 17:03 GMT

The first articles published by the new online Agriculture & Food Security Journal were announced this week. I am pleased to assist the Journal as a member of a diverse editorial board. This is a new venture for me, and it is one that I am proud to support. It is not only truly international, but it is truly interdisciplinary. I am pleased to represent law along side our well-recognized colleagues in other disciplines.

The Editors-in-Chief of the new Journal are distinguished leaders in agriculture. Malcolm Elliott is the Founding Director of The Norman Borlaug Institute for Global Food Security in the United Kingdom; Molly Jahn is a Professor in the Laboratory of Genetics and Department of Agronomy, Center for Sustainability and the Global Environment, at the University of Wisconsin-Madison in the United States; and Magdy Madkour is a Professor of Biotechnology in the Arid Lands Agricultural Research Institute, Faculty of Agriculture, Ain Shams University, in Cairo, Egypt.

Here is an excerpt from the Journal's publication announcement:

The global population exceeded seven billion at the end of October 2011, and continues to grow rapidly. It is of paramount importance to ensure sustainable food production to provide adequate sustenance and nutrition for the growing population.

Agriculture & Food Security is an open access journal focusing on innovations in agriculture and food systems towards food security both in the developing and developed world. It was launched by BioMed Central on 19 April 2012 to address the challenge of global food security. The journal welcomes cutting-edge research contributions across the breadth of relevant academic disciplines, including agricultural, ecological, environmental, nutritional, and socio-economic sciences, public health and policy. For more information, please see our launch Editorial and aims and scope.

Here are links to the first articles published:

Review
Food security for Africa: an urgent global challenge
By Albert Sasson
Agriculture & Food Security 2012, 1:2 (19 April 2012)
Abstract | Full text | PDF

Review
Impact of climate change on arid lands agriculture Adel El-Beltagy and Magdy Madkour
Agriculture & Food Security 2012, 1:3 (19 April 2012)
Abstract | Full text | PDF

Review
The development of Brazilian agriculture: future technological challenges and opportunitiesPedro AA Pereira, Geraldo B Martha, Carlos AM Santana and Eliseu Alves
Agriculture & Food Security 2012, 1:4 (19 April 2012)
Abstract | Full text | PDF

Authors are invited to submit their research to Agriculture & Food Security and take advantage of its online submission process and rapid peer review. There are no color charges and no limits on the number of figures or videos. Agriculture & Food Security, like all BioMed Central journals, complies with the open access policies of many funders including those of the Howard Hughes Medical Institute, National Institutes of Health, and Wellcome Trust.

Members of the new Editorial Board are listed as follows:

Naglaa Abdallah (Egypt)
Arie Altman (Israel)
Klaus Ammann (Switzerland)
Tim Benton (UK)
Carlos Borroto (Cuba)
Ademola Braimoh (USA)
Tracey Brown (UK)
Michael Carter (USA)
Ratana Chuenpagdee (Canada)
Claire Cockcroft (UK)
Edward Cocking (UK)
Karabi Datta (India)
Swapan Datta (India)
Nina Fedoroff (Saudi Arabia)
Luis Herrera-Estrella (Mexico)
Clive James (Cayman Islands)
Gurdev Khush (USA)
Sir Peter Lachmann (UK)
David Lawrence (UK)
Barbara Mazur (USA)
Maurice Moloney (UK)
Agnes Mwang'ombe (Kenya)
Ioan Negrutiu (France)
Jerry Nelson (USA)
Theib Oweis (Syria)
Bilijana Papazova (Switzerland)
Per Pinstrup-Andersen (USA)
Latha Rangan (India)
Rafael Rangel-Aldao (Venezuela)
Peter Raven (USA)
Elibio Rech (Brazil)
Mark Rosegrant (USA)
Albert Sasson (Morocco)
Susan Schneider (USA)
Robert Scholes (South Africa)
Adrian Slater (UK)
Berhanu Tameru (USA)
Lord Dick Taverne QC (UK)
Peter Timmer (USA)
Bob Webb (UK)
Meryl Williams (Australia)
Zhi-hong Xu (China)

Solving the Weight of the Nation

Tue, 08 May 2012 21:15 GMT

On May 8, the Institute of Medicine issued its consensus report, Accelerating Progress in Obesity Prevention: Solving the Weight of the Nation at the Centers for Disease Control and Prevention's "Weight of the Nation" conference. The report, sponsored by the Robert Wood Johnson Foundation seeks to identify the "catalysts that could speed progress in obesity prevention."

Indeed, statistics prove that catalysts are needed.

Over two-thirds of adults and one-third of children are overweight or obese.
Treating obesity related illnesses costs an estimated $190.2 billion a year.
21% of annual medical spending is spent on obesity-related illnesses.
$4.3 billion in annual losses to businesses because of obesity-related job absenteeism.

Additional information on the startling aspects of the problem be found on the PBS Newshour website, including Obesity in America: By the Numbers.

The report identifies five critical goals for preventing obesity:

Integrating physical activity into people's daily lives;
Making healthy food and beverage options available everywhere,;
Transforming marketing and messages about nutrition and activity;
Making schools a gateway to healthy weights; and,
Galvanizing employers and health care professionals to support healthy lifestyles.

How does agriculture, or more precisely, agricultural law fit into this discussion? Quite prominently.

Goal 2 is to "create food and beverage environments that ensure that healthy food and beverage options are the routine, easy choice." The strategy for meeting this goal includes efforts to "[b]roaden the examination and development of U.S. agriculture policy and research to include implications for the American diet."

This is reaffirming. A while back I wrote the post Farm Policy Should be Food Policy. And, I mention this not because I am claiming any bragging rights - it is just common sense.

How do we go about creating a farm policy that is connected to our dietary needs? The report suggests that -

Congress, the Administration, and federal agencies should examine the implications of U.S. agriculture policy for obesity, and should ensure that such policy includes understanding and implementing, as appropriate, an optimal mix of crops and farming methods for meeting the Dietary Guidelines for Americans.

And, it suggests potential actions that could be taken in developing this policy:

The President appointing a Task Force on Agriculture Policy and Obesity Prevention to evaluate the evidence on the relationship between agriculture policies and the American diet, and to develop recommendations for policy options and future policy-related research, specifically on the impact of farm subsidies and the management of commodities on food prices, access, affordability, and consumption;

Congress and the Administration establishing a process by which federal food, agriculture, and health officials would review and report on the possible implications of U.S. agriculture policy for obesity prevention to ensure that this issue will be fully taken into account when policy makers consider the Farm Bill;

Congress and the U.S. Department of Agriculture (USDA) developing policy options for promoting increased domestic production of foods recommended for a healthy diet that are generally under-consumed—including fruits, vegetables, and dairy products—by reviewing incentives and disincentives that exist in current policy;

As part of its agricultural research agenda, USDA exploring the optimal mix of crops and farming methods for meeting the current Dietary Guidelines for Americans, including an examination of the possible impact of smaller-scale agriculture, of regional agricultural product distribution chains, and of various agricultural models from small to large scale, as well as other efforts to ensure a sustainable, sufficient, and affordable supply of fresh fruits and vegetables; and

Congress and the Administration ensuring that there is adequate public funding for agricultural research and extension so that the research agenda can include a greater focus on supporting the production of foods Americans need to consume in greater quantities according to the Dietary Guidelines for Americans.

Should IOM send the report to the House and Senate agriculture committees? They are working on the 2012 farm bill now.

Filburn as the fulcrum of federal power

Sat, 05 May 2012 20:49 GMT

Wickard v. Filburn, 317 U.S. 111 (1942), is shaping up as the most important agricultural law case ever decided by the Supreme Court. Indeed, threescore and ten years after being decided, Filburn has become the fulcrum on which federal power hinges. From the Lewiston (Idaho) Tribune:

If Roscoe Filburn were alive today, the indignity of it might be more than he could bear.

The fifth-generation Ohio farmer didn't much like it when the government told him what to do, told him how much wheat he could grow or how much he could consume.

Now that same government is telling Americans what to buy. It's saying they have to purchase health insurance — and it's doing so in Filburn's name, justifying the action based on the 1942 Supreme Court case he lost.

The 70-year-old ruling in Wickard v. Filburn provides the legal foundation for the individual mandate — the controversial core of the health care overhaul.

For more coverage on Wickard v. Filburn by Agricultural Law, see these posts by Susan Schneider and Jim Chen. Herewith a brief bibliography of works by Jim Chen on Wickard v. Filburn:

Filburn’s Forgotten Footnote — Of Farm Team Federalism and Its Fate, 82 Minn. L. Rev. 249 (1997)

Filburn's Legacy, 52 Emory L.J. 1719 (2003)

The Story ofWickard v. Filburn: Agriculture, Aggregation, and Commerce, in Constitutional Law Stories 69 (Michael C. Dorf ed., 2d ed., Foundation Press 2009)

Appointments with disaster: Binational arbitral review under the United-States-Canada Free Trade Agreement

Thu, 03 May 2012 15:18 GMT

I continue to post old, even ancient, papers to my SSRN page. This paper has reached its twentieth anniversary:

The United States-Canada Free Trade Agreement (FTA) of 1989 guaranteed free trade between the United States and its largest trading partner. One aspect of the treaty provoked intense constitutional scrutiny in the United States. The FTA requires binding binational arbitral review of antidumping and countervailing duty orders issued by the administrative agencies of each nation. This article argues that the FTA violates Article III and the Appointments Clause of the United States Constitution. The FTA offends the separation of powers. The FTA not only threatens the integrity of the federal judiciary but also undermines the strict procedures for appointing officers of the United States. The FTA violates Article III by deviating from the recognized methods for exerting federal adjudicatory power. The FTA's system for the appointment of arbitrators neither complies with the Appointments Clause nor satisfies an exception allowing the federal government to delegate its authority to persons who are not officers of the United States.

Jim Chen, Appointments with Disaster: The Unconstitutionality of Binational Arbitral Review Under the United States-Canada Free Trade Agreement, 49 Wash. & Lee L. Rev. 1455 (1992), available for download at http://ssrn.com/abstract=2050646.

Meat Glue??

Wed, 02 May 2012 09:36 GMT

A Pennsylvania Television Station, WTAE out of Pittsburgh, recently did a fascinating story on the use of "meat glue" to bind meat trimmings into pieces that look exactly like a good filet and can be served as such at restaurants.

As the news story reveals, this practice raises deceptive advertising issues - is that Filet Mignon really stew meat? And from a food safety standpoint, consider that many people order their filet cooked "rare." Not a good idea, particularly if the internal components of the meat have been exposed and potentially contaminated. The contamination risk is more akin to hamburger.

The technical name for "meat glue" is TG enzyme, and the FDA informs us that it "is derived from a non-toxigenic and non-pathogenic strain of Streptoverticillium mobaraense and functions by catalyzing the formation of a covalent bond between the glutamine and lysine side residues of proteins." One of the rules that authorized the use and accepted the industry's characterization of the product as "generally recognized as safe" is found at 66 Fed. Reg. 54,912 (Oct. 31, 2001).

There are no allegations that TG enzyme is unsafe in and of itself. To prevent misbranding, products that are labeled, such as packaged cuts sold in grocery stores or on canned products must use special language to distinguish the bound together product, with the terms "formed'" and "reformed" designated as the appropriate descriptive terms. Restaurants, however, do not have specific labeling requirements. The news story suggests asking about the use of meat glue the next time you order a steak.

The issue of "meat glue" has been all over the internet in the last few days - the ABC news video that shows how it's used is embedded below. Thanks to Washington attorney and LL.M. candidate Vade Donaldson for bringing this issue to my attention. Note, though that Food Safety News was first on the scene to raise this issue - in 2010 - when they reported on the European Parliament's vote against it, EU Bans Meat Glue.

Upcoming Webinar

Wed, 02 May 2012 07:32 GMT

Legal Issues in Animal Agriculture: Regulating Living Space

The National Ag Law Center is hosting this webinar on May 10th. According to the site, "This presentation, part of a series of webinars on current legal issues in animal agriculture, will focus on the emerging legal and policy issues dealing with farm animal confinement. This presentation focuses on the laws and regulations of farm animal confinement in the United States, with a special emphasis on the statutory evolution behind them."

Filburn's Forgotten Footnote – Of Farm Team Federalism and Its Fate

Tue, 01 May 2012 17:57 GMT

Wickard v. Filburn, 317 U.S. 111 (1942), is a jurisprudential "throwback to the time of true heroes, not of the brittle, razzle dazzle [cases] that [have] sprung up around the jack rabbit ball." Of late my work on Filburn has gotten prominent press at New York Times and at Agricultural Law.

Inspired, I thought I would post my first article on Wickard v. Filburn on SSRN, the better to reacquaint myself (and, with any luck, others as well) with the international law implications of this landmark case. Herewith a look at Filburn's Forgotten Footnote:

Federalism is the oldest question of American constitutional law and the prime mover in a legal system where nearly every constitutional controversy is in some sense a case about federalism. In a mercilessly competitive global economy that transforms virtually every legal endeavor from a strictly local undertaking into a global commitment, few if any legal subjects fall under the effective control of a single national sovereign. Because economic analysis universalizes theories of federalism, this constitutional doctrine, conventionally considered quintessentially American, applies to problems of intergovernmental coordination in many national and international legal settings. A forgotten footnote in that cause célèbre of commerce clause jurisprudence, Wickard v. Filburn, 317 U.S. 111 (1942), offers a novel perspective on global federalism and the fundamental nature of the state.

Jim Chen, Filburn’s Forgotten Footnote – Of Farm Team Federalism and Its Fate, 82 Minn. L. Rev. 249 (1997), available for download at http://ssrn.com/abstract=2049583.

Reflections & Proposals in Honor of International Workers’ Day (May Day)

Tue, 01 May 2012 00:30 GMT

“Once again the time has come to take Marx seriously.”—Eric Hobsbawm, How to Change the World: Reflections on Marx and Marxism (New Haven, CT: Yale University Press, 2011)

“In the Marxist tradition, self-realisation is the full and free actualisation and externalisation of the powers and the abilities of the individual.” —Jon Elster

“Under suitable conditions, both [political democracy and economic democracy] can be arenas for joint self-realisation.”—Jon Elster

The Capabilities Approach to Human Development

“Considering the various areas of human life in which people move and act, this approach to social justice asks, What does a life worthy of human dignity require? At a bare minimum, an ample threshold level of ten Central Capabilities is required. Given a widely shared understanding of the task of government (namely, that government has the job of making people able to pursue a dignified and minimally flourishing life), it follows that a decent political order must secure to all citizens at least a threshold level of these ten Central Capabilities:

1. Life. Being able to live to the end of a human life of normal length; not dying prematurely, or before one’s life is so reduced as to be not worth living.

2. Bodily health. Being able to have good health, including reproductive health; to be adequately nourished; to have adequate shelter.

3. Bodily integrity. Being able to move freely from place to place; to be secure against violent assault, including sexual assault and domestic violence, having opportunities for sexual satisfaction and for choice in matters of reproduction.

4. Senses, imagination, and thought. Being able to use the senses, to imagine, think, and reason—and to do these things in a ‘truly human’ way, a way informed and cultivated by an adequate education, including, but by no means limited to, literacy and basic mathematical and scientific training. Being able to use imagination and thought in connection with experiencing and producing works and events of one’s own choice, religious, literary, musical, and so forth.

5. Emotions. Being able to have attachments to things and people outside ourselves; to love those who love and care for us, to grieve at their absence; in general, to love, to grieve, to experience longing, gratitude, and justified anger. Not having one’s emotional development blighted by fear and anxiety. (Supporting this capability means supporting forms of human association that can be shown to be crucial to their development.)

6. Practical reason. Being able to form a conception of the good and to engage in critical reflection upon the planning of one’s life. (This entails protection of the liberty of conscience and religious observance.)

7. Affiliation. (A) Being able to live with and toward others, to recognize and show concern for other human beings, to engage in various forms of social interaction; to be able to imagine the situation of another. (Protecting this capability means protecting institutions that constitute and nourish such forms of affiliation, and also protecting the freedom of assembly and political speech.) (B) Having the social bases of self-respect and nonhumiliation; being able to be treated as a dignified being whose worth is equal to that of others. This entails provisions of nondiscrimination on the basis of race, sex, sexual orientation, ethnicity, caste, religion, national origin.

8. Other species. Being able to live with concern for and in relation to animals, plants, and the world of nature.

9. Play. Being able to laugh, to play, to enjoy recreational activities.

10. Control over one’s environment. (A) Political. Being able to participate effectively in political choices that govern one’s life, having the right of political participation, protections of free speech and association. (B) Material. Being able to hold property (both land and movable goods), and having property rights on an equal basis with others; having the right to seek employment on an equal basis with others; having the freedom from unwarranted search and seizure. In work, being able to work as a human being, exercising practical reason and entering into meaningful relationships of mutual recognition with other workers.”—Martha Nussbaum, Creating Capabilities: The Human Development Approach (Cambridge, MA: Belknap Press of Harvard University Press, 2011)

Eleven Criticisms of Capitalism

Capitalist class relations perpetuate eliminable forms of human suffering.
Capitalism blocks the universalization of conditions for expansive human flourishing.
Capitalism perpetuates eliminable deficits in individual freedom and autonomy.
Capitalism violates liberal egalitarian principles of social justice.
Capitalism in inefficient in certain critical respects.
Capitalism has a systematic bias towards consumerism.
Capitalism is environmentally destructive.
Capitalist commodification threatens important broadly held values.
Capitalism in a world of nation-states fuels militarism and imperialism.
Capitalism corrodes community.
Capitalism limits democracy.

—From Erik Olin Wright’s Envisioning Real Utopias (London: Verso, 2010)

The Worker as Artist

“We have gone so far as to divorce work from culture, and to think of culture as something to be acquired in hours of leisure; but there can only be a hothouse and unreal culture where itself is not its means; if culture does not show itself in all we make we are not cultured.”—Ananda K. Coomaraswamy

“Industry without art is brutality.”—Ananda K. Coomaraswamy

A Civic Minimum: A Reform Programme

Making work pay: “All those who are expected to satisfy a minimum work expectation must receive a decent minimum income in return for doing so. This includes not only a level of post-tax earnings sufficient to cover a standard set of basic needs, but also a decent minimum of health-care and disability coverage…. The model of a minimum wage combined with in-work benefits for the low-paid, including child-care subsidies for low earners, is certainly one credible approach to this task.”

From a work-test to a participation-test: “Work-tests within the welfare system are…legitimate in principle. But in order that different forms of productive contributions can be treated equitably, social policy must be structured in a way that acknowledges the contributive status of care work. This implies a need to offer some public support for care workers, relieving their need to do paid work to maintain access to the generous basic needs package described above. Relevant policies here might include payment of a decent social wage to those engaged in looking after the elderly or the handicapped on a full-time basis and publicly subsidized paternal leave from paid employment. In other words, access to the generous basic-needs package should be conditional not on satisfying a work-test, narrowly construed in terms of paid employment, but on satisfying a broader participation-test, where participation is understood to include paid employment and (at least in addition) specified forms and amounts of care work.”

Towards a two-tiered income support system: “[T]he debate over ‘welfare reform’ is often polarized between supporters of an unconditional basic income that is not subject to any work- or participation-test, nor to any time limit, and supporters of time-limited workfare. An alternative approach…looks to establish a two-tiered system of income support. The first tier, which we may call conventional welfare, would be contractualist in kind. It would offer support through a mix of income-related and universal benefits, but support that is also linked to, and conditional on, productive contribution. While work- or participation-tested, support at this level would not be time-limited. [….] The second tier might then consist of something like the time-limited basic income…. This would be an additional income grant, not subject to any work- or participation-test, but which would be time-limited. Citizens could trigger the entitlement for a fixed amount of time over the full course of their working lives, but would not enjoy it indefinitely.”

Universal capital-grant or social drawing rights: “[We previously] set out the case for instituting a generous capital endowment as a basic right of economic citizenship. …[A] scheme of universal capital grants might in part incorporate the time-limited basic income mentioned above. Otherwise, the grants could be linked to activities that are related to productive contribution in the community, such as education, training, setting up a business, and, perhaps, care work….

Accessions tax: “[We have also made] the case for heavy taxation of wealth transfers (inheritances, bequests, inter vivos gifts). Such taxation is important to help prevent class inequality and violation of reciprocity. There is a strong case for hypothecating the funds from taxation of wealth transfers to the funding of a universal capital-grant scheme.”

“[T]his short list is not, by any means, exhaustive of the policies and institutions that might be necessary, or helpful, [in order to] reform the terms of economic citizenship so as to meet the demands of fair reciprocity (in its non-ideal form).”—Stuart White, The Civic Minimum: On the Rights and Obligations of Economic Citizenship (New York: Oxford University Press, 2003.

Economic Democracy

“I have argued that economic Democracy, as a system, will be less alienating than Laissez Faire. To summarize the reasons: Workers will have more participatory autonomy under Economic Democracy, because the degree of workplace democracy will not be restricted by the capitalists’ need to keep open all options for profit. The labor-leisure trade-off should be more in accordance with the general interest under Economic Democracy, because workers will have a greater interest in promoting more flexible, less frantic, more meaningful working arrangements, as well as shorter hours and longer vacations, than do capitalists, who bear the costs and risks of such changers (under Laissez Faire) but do not receive the full benefits. Workers are likely to be more skilled under Economic Democracy, because neither competitive pressures nor the need for control will push so hard toward deskilling.”—David Schweickart, Against Capitalism (Boulder, CO: Westview Press, 1996)

America the Possible: The Values

[….] Many thoughtful Americans have concluded that addressing our many challenges will require the rise of a new consciousness, with different values becoming dominant in American culture. For some, it is a spiritual awakening—a transformation of the human heart. For others it is a more intellectual process of coming to see the world anew and deeply embracing the emerging ethic of the environment and the old ethic of what it means to love thy neighbor as thyself. But for all, the possibility of a sustainable and just future will require major cultural change and a reorientation regarding what society values and prizes most highly.

In America the Possible, our dominant culture will have shifted, from today to tomorrow, in the following ways:

from seeing humanity as something apart from nature, transcending and dominating it, to seeing ourselves as part of nature, offspring of its evolutionary process, close kin to wild things, and wholly dependent on its vitality and the finite services it provides;
from seeing nature in strictly utilitarian terms—humanity’s resource to exploit as it sees fit for economic and other purposes—to seeing the natural world as having intrinsic value independent of people and having rights that create the duty of ecological stewardship;
from discounting the future, focusing severely on the near term, to taking the long view and recognizing duties to future generations;
from today’s hyperindividualism and narcissism, and the resulting social isolation, to a powerful sense of community and social solidarity reaching from the local to the cosmopolitan;
from the glorification of violence, the acceptance of war, and the spreading of hate and invidious divisions to the total abhorrence of these things;
from materialism and consumerism to the prioritization of personal and family relationships, learning, experiencing nature, spirituality, service, and living within limits;
from tolerating gross economic, social, and political inequality to demanding a high measure of equality in all these spheres.

We actually know important things about how values and culture can be changed. One sure path to cultural change is, unfortunately, the cataclysmic event—the crisis—that profoundly challenges prevailing values and delegitimizes the status quo. The Great Depression is the classic example. I think we can be confident that we haven’t seen the end of major crises.

Two other key factors in cultural change are leadership and social narrative. Leaders have enormous potential to change minds, and in the process they can change the course of history. And there is some evidence that Americans are ready for another story. Large majorities of Americans, when polled, express disenchantment with today’s lifestyles and offer support for values similar to those urged here.

Another way in which values are changed is through social movements. Social movements are about consciousness raising, and, if successful, they can help usher in a new consciousness—perhaps we are seeing its birth today. When it comes to issues of social justice, peace, and environment, the potential of faith communities is vast as well. Spiritual awakening to new values and new consciousness can also derive from literature, philosophy, and science. Consider, for example, the long tradition of “reverence for life” stretching back over twenty-two hundred years to Emperor Ashoka of India and carried forward by Albert Schweitzer, Aldo Leopold, Thomas Berry, E. O. Wilson, Terry Tempest Williams, and others.

Education, of course, can also contribute enormously to cultural change. Here one should include education in the largest sense, embracing not only formal education but also day-to-day and experiential education as well as the fast-developing field of social marketing. Social marketing has had notable successes in moving people away from bad behaviors such as smoking and drunk driving, and its approaches could be applied to larger cultural change as well.

A major and very hopeful path lies in seeding the landscape with innovative, instructive models. In the United States today, there is a proliferation of innovative models of community revitalization and business enterprise. Local currencies, slow money, state Genuine Progress Indicators, locavorism—these are bringing the future into the present in very concrete ways. These actual models will grow in importance as communities search for visions of how the future should look, and they can change minds—seeing is believing. Cultural transformation won’t be easy, but it’s not impossible either. [….]—From James Gustave Speth’s “America the Possible: A Manifesto, Part II,” Orion magazine (May/June 2012)

Global Justice

“[A]ffluent people in developed countries have duties to respond to globalization with measures that would strengthen developing economies because otherwise they would take advantage of people in developing countries. A person takes advantage of someone if he derives a benefit from her difficulty in advancing her interests in interactions in which both participate, in a process that shows inadequate regard fro the equal moral importance of her interests and her capacity for choice. In the case of globalization, the central difficulties are bargaining weaknesses due to desperate neediness.”

“[M]ajor unmet transnational responsibilities [are located] in two aspects of globalization. The first corresponds to the familiar charge that transnational corporations exploit. In transnational processes of production, trade, and investment, people in developed countries currently take advantage of bargaining weaknesses of individuals desperately seeking work in developing countries, in way that show inadequate appreciation of their interests and capacities for choice. Responding to this moral flaw, a citizen of a developed country ought to use benefits derived from this use of weakness to relieve the underlying neediness. The other aspect corresponds to familiar charges of inequity in the institutional framework that regulates world trade and finance. The multinational arrangements that sustain globalization depend on tainted deliberations in which the governments of developed countries take advantage of the weak capacity to resist their threats of governments of developing countries. Citizens of developed countries should support arrangements that would be the outcome of responsible deliberations based on relevant shared values, a shift that would entail giving up large current advantages to promote the interests of people in developing countries.”—Richard W. Miller, Globalizing Justice: The Ethics of Poverty and Power (New York: Oxford University Press, 2010)

Please note: A couple of earlier (and more historically oriented) posts for May Day are here and here.

Epistemology & the Necessity of Intellectual Virtues

Thu, 26 Apr 2012 08:20 GMT

In the main, I’ve always found works in epistemology to be fairly and predictably insular in scope, abstract and idealized in a pernicious, not productive way, and thus often irrelevant (or at least not obviously germane) to other fields of philosophy, let alone the social sciences.* Ongoing debates in the field are typically structured among and between “externalists,” “internalists,” “reliabilists,” “coherentists,” and “foundationalists” (well, in truth, there’s very few of those left), perhaps with a few “Wittgensteinians” trying to be heard above the din. Of course there are some exceptions: for example (and my favorites), several works by Nicholas Rescher (as ‘pragmatic idealism’ or ‘cognitive pragmatism’), and a couple of books by Michael Williams, as well one by Meredith Williams which, while strictly speaking perhaps best classified within the “philosophy of mind,” is fraught with epistemological or epistemic implications: Wittgenstein, Mind and Meaning: Towards a Social Conception of Mind (1999). In addition, the emerging field of “social epistemology” strikes me as a welcome development, best represented by Alvin Goldman’s groundbreaking title, Knowledge in a Social World (1999). Not being a professional philosopher, I’m sure there are other works that might be cited from within the profession that would likewise qualify as exceptions to the above (and somewhat crude) generalization.

And thus it’s gratifying to learn (at any rate, for someone who attended Catholic schools, has Buddhist proclivities, and is in some respects a ‘Marxist’) that there’s been no small amount of discontent from within epistemology itself, exemplified in the field of late by those articulating what’s come to be described by its practitioners as “virtue epistemology” (not unrelated, of course, to the contemporary rebirth of virtue ethics). Prominent among those responsible for this recent trend to one degree and in one way or another are Ernest Sosa, Linda Zagzebski, and Alvin Plantinga. In a rhetorically shrewd if not wise move, what is more or less grouped under the rubric of “virtue epistemology” has now been christened “regulative epistemology” by Robert C. Roberts and W. Jay Wood in their book, Intellectual Virtues: An Essay in Regulative Epistemology (2007). This regulative epistemology aims to be virtuous in several senses, and thus it is intended to include analytic epistemic virtues as well. Furthermore, it is best viewed as a species of practical wisdom, indeed, Roberts and Woods characterize their endeavor “as an attempt to formulate intellectual practical wisdom,” in this instance the analytic “formula” is necessarily complemented by or in conjunction with narrative examples. Axiomatic to their argument is a deep understanding and appreciation of what is meant by the notion of an “intellectual virtue.” And intimately related to this is their proposal to view “the will” as the central epistemic faculty, giving due recognition to the pivotal role played by our “concerns, desires, and emotions” in making “efforts and choices:” “The reason is that the epistemic goods are acquired, not by faculties but by agents [I would have preferred ‘persons’ here], and the will is the locus of our identity as agents.”

From the conclusion to chapter 5 of Intellectual Virtues we find a nice summary of their overall argument:

“The substance of the living of the intellectual life is its practices, they are what the life of the mind is made of. That life is fully as much a matter of activity as the moral life, and aims just as concertedly at goods. The practices that constitute our cognitive life are extremely diverse and interwoven and, it seems, subject to historical evolution, at least in the particularities of the activities and of the auxiliary equipment that we use in pursuing them. But the need for virtues, where the highest goods are concerned, is constant across time. Virtues of character such as humility, patience, tenacity, firmness, love of knowledge, and generosity [‘autonomy,’ to which our authors devote an entire chapter, is missing from this list and thus should be included as well], or at least some approximation or facsimile thereof, need to be exemplified by the practitioners of the practices by which such goods are acquired, maintained, transmitted, and applied.”

Now this may strike some of us as common sense or readily intuitive, but that has not been the case within the field of professional epistemology.

By way of conclusion, I’d like to mention a recent book that, I think, comes close to this idea and ideal of “regulative epistemology” for the social sciences, although the author is not aware of the possible relevance of this notion to his argument, mentioning only in passing epistemology’s comparative neglect of “practical knowledge:”Andrew Sayer’s Why Things Matter: Social Science, Values and Ethical Life (2011).

* Cf. Roberts and Wood: “The one-size-fits-all concept of justification [with regard to the analytic search for the logically necessary and sufficient conditions for propositional knowledge] that analytic epistemologists tended to seek is…a chimera, but virtually all the ideas of justification that were proposed have merit as aspects of a concept of justification. The propositional knowledge on which analytic epistemologists lavished their time is, from our point of view, an abstraction, yet, seen as such, it is an enormously important aspect of knowledge. [….] Our aim…is not to replace all the activities that have characterized epistemology in recent decades, but to let the concept of an excellent intellectual agent reshape those activities and concerns in the direction of analysis that will serve intellectual communities far beyond the borders of professional epistemology.” I think it’s safe to say professional epistemologists have evidenced little concern for what takes place beyond those borders (save, perhaps, in science) for some time now (at least they’ve been remiss in helping us to see the ‘big picture’ in the sense of teasing out the myriad possible implications and ramifications beyond epistemology proper).

Three faces of climate change law

Wed, 25 Apr 2012 21:27 GMT

Courtesy of Amira Asad's story in the IUS Horizon, I am pleased to reprise my January 26, 2012, presentation, Three Faces of Climate Change Law in the United States, at Indiana University Southeast:

Managing global climate change is perhaps the most formidable scientific challenge facing humanity today. Climate change law is likewise extensive, sprawling, and unwieldy. This presentation will focus on three faces of climate change law in the United States:

Federal regulation after Massachusetts v. EPA (2007)
Climate change litigation after American Electric Power Co. v. Connecticut (2011)
Attacking emitters of greenhouse gases through public nuisance lawsuits

I also celebrated Constitution Day 2011 at IUS. I am very grateful for my special relationship with Indiana University Southeast. I especially thank Professor Bryan Hall for arranging both of my recent presentations at IUS.

Mark Bittman's tribute to Wendell Berry

Wed, 25 Apr 2012 09:59 GMT

Don't miss Mark Bittman's post in the New York Times, based on a visit to Berry's Port Royal, Kentucky home. Bittman tells of Berry driving him around the neighboring countryside, where Berry's family settled about two centuries ago. Bittman observes Berry's familiarity with his neighbors, manifest in his wave at nearly everyone they meet. Regarding the drive, Bittman continues:

There really is not that much to see [on the drive] until I try to see it through Wendell's eyes, and then every bit of erosion becomes a tiny tragedy--or at least a human mistake--and every bit of forest floor becomes a bit of the genius of nature.

Bittman waxes poetic--as does Berry--about the need to "listen to the land." Indeed, Berry's work--whether poetry, fiction, or activism--is very much grounded in the land. Berry's work also reflects "his attachment to nature--it's not just the land but everything on the land--that is so profound that his judgments (Wendell is a kind but very judgmental man) can be jaw-dropping."

Berry's work is also grounded in "place"--his own strong sense of place, his attachment to place. And that grounding in place implicates not only the land, but also "its people." Among other things, this means that, to Berry, rural people matter.

Bittman asked Berry what urban people can do to change the current course of events, the march of industrialism that replaces people with technology and concentrates power and wealth in the hands of a plutocracy. Like Bittman's question, Berry's answer invokes the rural-urban divide:

The main thing is realize that country people can't invest a better agriculture by ourselves. Industrial agriculture wasn't invented by us, and we can't uninvent it. We'll need some help with that.

I'm not sure "country people" are entirely without blame for the current state of affairs--either industrial agriculture or the plutocracy--but I agree that rural folks desiring a reversal of course will need "some help" from urbanites and the powerful interests that reside in the cities of the nation and the world.

Cultivating Hope & Compassion at Homeboy Industries

Mon, 23 Apr 2012 21:54 GMT

First, a brief introduction (sans notes and hyperlinks) to Homeboy Industries from the Wikipedia entry, followed by a piece from Jim Newton in today's Times:

“Homeboy Industries is a youth program founded in 1992 by Father Greg Boyle, S.J. following the work of the Christian base communities at Dolores Mission Church. The program is intended to assist at-risk youth and gang members with a variety of services, such as counseling, tutoring, and employment. The most distinctive feature of Homeboy Industries is its small businesses, which gives hard-to-place individuals an opportunity to be employed in transitional jobs in a safe, supportive environment where they can learn both concrete and soft job skills. Among the businesses are the Homeboy Bakery, Homegirl Café & Catering, Homeboy Merchandise, Homeboy Farmers Markets, The Homeboy Diner at City Hall , and Homeboy Silkscreen & Embroidery.

History

Homeboy Industries began in 1988 as a job training program (called Jobs for a Future) out of Dolores Mission Parish in Boyle Heights, Los Angeles, California. It was created by then-pastor Greg Boyle, S.J. to offer an alternative to gang life for high-risk youth, who were living in the area with the highest concentration of gang activity in the country. In those early days, Boyle found sympathetic businesses that agreed to hire recovering gang members.

In 1992, an abandoned warehouse was converted into the first business, Homeboy Bakery, to create more opportunities for employment. The Bakery started off producing tortillas and eventually received a contract for baking bread. Eventually more businesses were added, and in 2001, Homeboy Industries became an independent non-profit.

Dolores Mission Alternative School was created to offer high school drop outs a chance for a diploma. In 2010, Learning Works became the new high school. There are currently 75 students enrolled, and in 2012 enrollment is expected to reach 105. In October 2007, Homeboy Industries opened a new $8.5 million headquarters at the Fran and Ray Stark building, in a gang-neutral downtown location.

In addition to jobs, Homeboy Industries offers training in anger management, domestic violence, yoga, spiritual development, parenting, substance abuse, budgeting, art and other areas of self-development. In addition, they offer free mental health counseling, tattoo removal, legal services, job development and case management.

One of Homeboy’s most successful programs is free tattoo removal. Young people who find that tattoos inhibit their ability to secure employment can receive treatments on site at Homeboy’s center in Downtown Los Angeles. Though tattoo removal by laser is known to be painful and takes an average of eight to ten treatments per tattoo, and in some cases up to 1 year to complete, patient retention is virtually 100%. The clinic completes about 560 treatments per month.

Homeboy Industries faced financial difficulties in 2010, but the organization has reached a strong point in 2011 and is seeing more clients than ever before. New developments in 2010 and 2011 included the launch of Homeboy Tortilla Strips and Salsa in Ralphs stores across California, and the expansion of the Homeboy social enterprises with the Homeboy Diner at City Hall and Homeboy Farmers Markets. The title of Fr. Boyle’s memoir, Tattoos on the Heart: The Power of Boundless Compassion reflects Father Boyle’s unwavering focus in helping gang members walk a new path.

Homeboy currently employs between 200–235 high-risk, formerly gang-involved, and recently incarcerated youth in its six social enterprises and headquarters, though the free services (from tattoo removal to Baby and Me class) are utilized by more than 10,000 community members a year.”

And, now, from Jim Newton’s article, “Nurturing Hope at Homeboy Industries,” in today’s Los Angeles Times (April 23, 2012):

“Imagine Los Angeles without Homeboy Industries. Imagine that the 350 or so men and women who work at Homeboy’s various operations instead had no help finding jobs. Imagine that the 500 or so young people in the pipeline for work at Homeboy were suddenly deprived of that chance for gainful employment, security, support and stability. Imagine that the thousands of young men and women who every year have tattoos removed at Homeboy instead showed up for job interviews with necks and arms and shoulders boasting of a life they'd prefer to put behind them.

What cost would this city pay? How many of those young people would commit new crimes? Surely there would be scores more drive-bys, hundreds more assaults, many more dead and wounded. The county jails and state prisons, already full to overflowing, would be more packed. More children would grow up with parents missing or dead and all too likely to repeat generational patterns.

Life without Homeboy would be bleaker, meaner and more expensive in a society already too bleak, too mean and strapped for cash. And yet, Homeboy was almost finished a couple of years ago. Its founder, Father Gregory Boyle, had launched the organization’s expansion at its new facility on the edge of Chinatown, and Homeboy was inundated with applications and requests for help. Then the economic downturn squeezed benefactors and support fell as demand grew.

‘We just weren’t prepared,’ Boyle explained recently. For a moment, it looked as though Homeboy might close. But a vigorous response from some of Los Angeles’ leading business figures helped rescue Homeboy and place it back on a path to solvency and service. (Among the most important participants was home-builder Bruce Karatz, who had reason to want to restore his reputation after he was indicted — and later convicted — for back-dating stock options). Today, Homeboy raises about a third of its annual budget from its restaurant and from other sales, with philanthropy covering most of the rest of its $14-million annual budget.

That was Homeboy’s closest brush with insolvency, but the organization and its founder had weathered excruciating times before and are likely to again. Boyle refers to the years from 1988 to 1998 as the ‘decade of death,’ when gang violence tore through the city and county. In those days, Homebody was sometimes vilified for offering help to those many saw as dangerous and undeserving. Boyle never flinched.

Homeboy now has become a fixture of the city, and its founder an admired icon. As we talked the other day, tours at Homeboy shuffled outside Boyle’s glass-walled office. ‘Viewing the founder in his natural habitat,’ he said, his smile as warm as ever. In the 20 or so years I’ve known Boyle, he’s grown a little rounder and a little grayer (who hasn’t?), but that smile survives.” [….] The rest of the article is here.

See too Father Boyle’s book, Tatoos on the Heart: The Power of Boundless Compassion (New York: Free Press, 2010), and Celeste Fremon’s G-Dog and the Homeboys: Father Greg Boyle and the Gangs of East Los Angeles (Albuquerque, NM: University of New Mexico Press, 2008 ed.)

The Homeboy Industries website

The Importance of Bees: Neonicotinoid & CCD

Sun, 22 Apr 2012 13:37 GMT

When mowing the lawn, I had the chance to view my very first honey bee swarm. It was an amazing sight to see, and I wish that my photo could capture the way that it gently moved back and forth. I mowed right by the bees, admittedly before I noticed them, and no one paid any attention to me. A few hours later, they were gone. But, the experience reminded me of the importance of bees in our food system.

According to the UN Environment Programme, "of the 100 crop species that provide 90 per cent of the world's food, over 70 are pollinated by bees."

And, as noted in the PBS documentary, Silence of the Bees,

The role honeybees play in our diet goes beyond honey production. These seemingly tireless creatures pollinate about one-third of crop species in the U.S. Honeybees pollinate about 100 flowering food crops including apples, nuts, broccoli, avocados, soybeans, asparagus, celery, squash and cucumbers, citrus fruit, peaches, kiwi, cherries, blueberries, cranberries, strawberries, cantaloupe, melons, as well as animal-feed crops, such as the clover that’s fed to dairy cows. Essentially all flowering plants need bees to survive.

Because of this, the precipitous decline of honey bees as a result of "colony collapse disorder" (CCD) is a significant global issue. The New Yorker published a comment that reflects on CCD and reports on the increasing evidence of a connection between CCD and neonicotinoid pesticides. The comment notes that this year marks the 50th anniversary of Rachel Carson's, Silent Spring, also published in The New Yorker, and questions whether we really heeded Carson's message. I encourage all to read it. She makes the case far better than I can. Silent Bees by Elizabeth Kolbert.

Update: Crop Insurance & the 2012 Farm Bill

Sun, 22 Apr 2012 12:53 GMT

Here's a quick follow up to my post last week, Crop Insurance: A New Battleground.

Farmpolicy.com posted a link to the Senate Committee Print, the current official draft of the Farm Bill, released on April 20, 2012. Senate Ag Committee Chair, Debbie Stabenow posted a summary on the Ag Committee website, Chairwomen's Summary of the Senate Committee Print.

With regard to farm programs, the summary states that the bill:

Eliminates direct payments. Farmers will no longer be paid for crops they are not growing, will not be paid for acres that are not actually planted, and will not receive support absent a drop in price or yields.
Consolidates two remaining farm programs into one, and will give farmers the ability to tailor risk management coverage—meaning better protection against real risks beyond a farmer’s control.
Strengthens crop insurance and expands access so farmers are not wiped out by a few days of bad weather.

The actual language of the bill introduces a new "shallow loss" program that provides revenue insurance to compensate farmers for modest losses due to price fluctuations and yield variations. For the more serious losses, traditional crop insurance is made available for many (but not all) crops, with premiums subsidized an average of 60%.

The Washington Post, in its article, Senate Action Kicks Off Uphill Battle to Pass Farm and Food Bill This Year notes that "[t]he Obama administration had proposed cuts in those subsidies for farmers and payments to insurance companies, but the draft maintains subsidy levels."

Crop Insurance: A New Battleground

Sat, 14 Apr 2012 17:10 GMT

As the Senate works on crafting the 2012 farm bill amid concerns about the federal deficit, it seems certain that there will be a reduction of or an elimination of some of the existing farm programs. With 2011 farm income reported at record high level of $98.1 billion and farmland values up 85% since 2003, established farmers have been doing very well. Federal farm programs that provide direct subsidies to farmers to supplement their income are hard to justify.

Concerned about a "safety net" for farmers, many are looking to crop insurance for a reconfigured way to deliver financial support.

Insurance certainly seems like a reasonable way to address the risks inherent in farming. But, as they say, the devil is in the details, and some of the details coming out about federal crop insurance may be a surprise to those outside of the agricultural community.

This is not like your homeowner's insurance. Policies are either production-based (insuring for a crop loss) or revenue-based (insuring for a decline in revenue based on either crop loss or price).

Premium subsidies allow farmers to buy insurance at a greatly reduced rate. In 2011, the government paid an average of 62% of the premium cost, for a total cost to the government of $7.4 billion.

The government also pays administrative and operating expenses to insurance companies to cover their expenses for selling and servicing crop insurance policies, further reducing premiums. In 2011, the government paid $1.3 billion to these insurance providers for their costs.

The Congressional Budget Office estimates that under the existing program, the federal government’s crop insurance costs going forward will average $8.9 billion per year. And, unlike federal farm programs, there is no conservation requirement connected to participation. There is also no "payment limitation" to limit the support that an individual farmer can receive.

The GAO recently released a report that is causing a firestorm of commentary. This report, Crop Insurance: Savings Would Result from Program Changes and Greater Use of Data Mining, was requested by Senator Tom Coburn to help Congress identify "opportunities for reducing the cost of the crop insurance program."

One idea discussed in the report is to reduce the percentage of premium subsidies provided. The GAO concludes that if premium subsidies had been "reduced by 10 percentage points for all farmers participating in the program . . . the federal government would have saved about $1.2 billion in 2011."

Another idea discussed in the report is to place a cap on the amount of premium subsidy that the government will provide to any one farmer, an idea modeled on the "payment limitations" imposed imperfectly on the receipt of farm programs.

GAO selected $40,000 as an example of a potential subsidy limit because it is the limit for direct payments, which provide fixed annual payments to farmers based on a farm’s crop production history. Had such a limit been applied in 2011, it would have affected up to 3.9 percent of all participating farmers, who accounted for about one-third of all premium subsidies and were primarily associated with large farms. For example, one of these farmers insured crops in eight counties and received about $1.3 million in premium subsidies.

As you can imagine, there are many people involved in agriculture that are commenting on the report. Michael Scuse, USDA Under Secretary for Farm and Foreign Agricultural Services prepared the USDA response to GAO. National Crop Insurance Services issued a press release criticizing the report. The National Sustainable Agriculture Coalition discussed it in their blog, GAO Report Triggers Crop Insurance Debate. Others are sure to follow.

For a critical analysis of the current crop insurance models, in particular revenue insurance, as applied to beginning farmers, consider the editorial recently published in the Minneapolis Star Tribune, The Seed Money of Destruction by Brian DeVore of the Land Stewardship Project.

The Causes and Symptoms of (Our) Loneliness and Unhappiness (revised)

Sat, 14 Apr 2012 07:39 GMT

[The following has been substantially revised (largely additional material) from its original version of April 14, 2012.]

“But what is the sense of the question, how should we live?—where am I supposed to place the emphasis, find the intonation which reveals the fragments of the conversation? The only echo I can find: ‘then how should we live?’ But where does it come from? What has already been said or argued? ‘If we shouldn’t live like this, then how?’ The question arises out of conflict: how should we live? [….] How can we live so that we no longer go on doing this or this? (And how am I going to fill in these markers?) But it is also a challenge, come on, then, so what’s the answer? What do you really know? Who are you? [….] We have to realize how terrible it all is [as crystallized in the First Noble Truth of Buddhism] without being overwhelmed by it. We should not live like this, incapable, unable to possess ourselves of the energy that the good requires. We are sleepwalkers. [….] We are creatures working out our lives in ignorance (avidya, confident that we know), victims of cravings and aversions which mop our energies and distract our attention from the realities that surround us on every side, not knowing our alienation from the beings also there whom we may well conceive as surrounding us.”—Michael McGhee, Transformations of Mind: Philosophy as Spiritual Practice (Cambridge, UK: Cambridge University Press, 2000)

Herewith my response to Stephen Marche’s recent essay in The Atlantic (May 2012), “Is Facebook Making Us Lonely?”:

Contemporary libertarianism (ignoring its antecedents in one strain of Liberalism), alas, owes much by way of its ideological core to the Austrian school of economics, particularly the works of Ludwig von Mises and Friedrich Hayek. This libertarianism, with its most recent philosophical (and therefore most sophisticated) articulation in Robert Nozick’s Anarchy, State, and Utopia (1974), is accorded a crass and vulgar literary expression in the fiction of Ayn Rand, borders on the solipsistic, and represents a species of individualism gone deeply awry, indeed pathologically so (hence the focus on ‘self-interest’ in a narrow if not selfish sense,* and the lapses into narcissism, for example). This libertarianism grants its ideological blessings to capitalism generally, stoking the fires of explosive growth in the very technologies that bewitch us, that exacerbate pre-existing conditions of loneliness and unhappiness in this country. And a popular cultural ethos of scientism amongst the intelligentsia, only fuels the flames of widespread anxiety and malaise (See, for instance, Kenan Malik’s Man, Beast, and Zombie [2000] and Ramond Tallis’s Aping Mankind: Neuromania, Darwinitis, and the Misrepresentation of Humanity [2011]). This libertarian ideology, at once obdurate, trenchant, and intoxicating, imbibed by the masses and elites alike in the United States, lacks the theoretical resources to critique contemporary (especially digital) technology and happily colludes in the post-World War II production of “unhappiness:”

“Amidst the satisfaction people feel with their material progress, there is a spirit of unhappiness and depression haunting advanced market democracies throughout the world, a spirit that mocks the idea that markets maximize well-being and the eighteenth-century promise of a right to the pursuit of happiness under benign government’s of people’s own choosing. The haunting spirit is manifold: a postwar decline in the United States in people who report themselves as happy, a rising tide in all advanced societies of clinical depression and dysphoria (especially among the young), increasing distrust of each other and of political and other institutions, declining belief that the lot of the average man is getting better, a tragic erosion of family solidarity and community integration together with an apparent decline in warm, intimate relations among friends.” (Robert E. Lane, The Loss of Happiness in Market Democracies, 2000)

Thus two quotes from Marche’s piece enable us to place Facebook in proper perspective, for it “arrived in the middle of a dramatic increase in the quantity and intensity of human loneliness, a rise that initially made the site’s promise of greater connection seem deeply attractive,” and, “Well before Facebook, digital technology was enabling our tendency for isolation, to an unprecedented degree.” It seems, therefore, that Facebook is best viewed as both sign and symptom, not as an etiological variable, precipitating factor, or even a secondary cause, of what ails us. At most, it merely feeds on preexisting conditions and trends, as well as the ideologies that sanction and bless them. Indeed, the Buddhist (with his fairly elaborate moral psychology centered on the relief of existential suffering), a Martha Nussbaum (in her works on Hellenistic ethics, the emotions, and social justice), a Daniel M. Haybron (in his The Pursuit of Unhappiness: The Elusive Psychology of Well-Being, 2008), or a Pico Iyer (in the ‘Joy of Quiet’ essay in The New York Times of December 29 last year), would attribute the root causes of our loneliness and unhappiness prior to—in a diachronic and synchronic sense (or historically and structurally)—the turbo-capitalist marketplace conditions that prevail in fashionable libertarian flights of fancy, in a fundamental failure to ask the right questions about human fulfillment, in the individual and collective inability or refusal to pose the proper questions about the philosophy, ethics, and psychology of human flourishing (or eudaimonia, along the lines, say, of Hellenistic ethics, especially the Stoics) or our assumptions and beliefs about human nature. Such questions are directly implicated in answering more immediately practical queries, such as “How does one—or we—live in a sensible manner?” or, “Do our ways of living contribute to and in turn reflect our sincere endeavors to lead meaningful and truly fulfilling lives, in other words, are they indissolubly linked to the terms and conditions of eudaimonia in its broadest and deepest sense?” In asking such questions we need to carefully consider the moral and psychological consequences of living in deference to an “unbound Prometheus,” considerations that encompass the nature and pace of technological development, as well as the relevance of democratic theory and practice to science and technology. In conclusion, within the framework of our eudaimonistic questioning, we urgently need a theory of technology that is critical (in the spirit of the Frankfurt School), environmental (encompassing the ecological sciences), and spiritually humane (in a sense that pays due homage to Renaissance humanism).

* Examination of the notion of “self-interest” in the history of Liberalism as a moral and political philosophy reveals the fact that it once played a progressive or liberating role, unlike the far more constricted conceptions that arose within neo-classical economics (and the corresponding focus on satisfaction of ‘revealed’ preferences) and with the emergence of contemporary Libertarianism, be it philosophical, political, or economic. On this prior progressive role of “self-interest” in Liberalism, see Stephen Holmes’s Passions and Constraint: On the Theory of Liberal Democracy (Chicago, IL: University of Chicago Press, 1995).

Further Reading:

Borgman, Albert. Technology and the Character of Contemporary Life: A Philosophical Inquiry. Chicago, IL: University of Chicago Press, 1984.
Brown, Richard Harvey. Toward a Democratic Science: Scientific Narration and Civic Communication. New Haven, CT: Yale University Press, 1998.
Hacker, P.M.S. Human Nature: The Categorial Framework. Malden, MA: Blackwell, 2007.
Kitcher, Philip. Science, Truth, and Democracy. New York: Oxford University Press, 2001.
Light, Andrew and Avner de-Shalit, eds. Moral and Political Reasoning in Environmental Practice. Cambridge, MA: MIT Press, 2003.
Midgley, Mary. Science and Poetry. London: Routledge, 2001.
Mirowski, Philip. Science-Mart: Privatizing American Science. Cambridge, MA: Harvard University Press, 2011.
Mumford, Lewis. The Transformations of Man. London: George Allen & Unwin, 1957.
Plantinga, Alvin. Where the Conflict Really Lies: Science, Religion, and Naturalism. New York: Oxford University Press, 2011.
Riesman, David (with Nathan Glazer and Reuel Denney). The Lonely Crowd. New Haven, CT: Yale University Press, 2001 ed.
Shiva, Vandana. Biopiracy: The Plunder of Nature and Knowledge. Cambridge, MA: South End Press, 1997.
Shrader-Frechette, Kristin and Laura Westra, eds. Technology and Values. Lanham, MD: Rowman & Littlefield, 1997.
Turkle, Sherry. Alone Together: Why We Expect More from Technology and Less from Each Other. New York: Basic Books, 2011.
Winner, Langdon. The Whale and the Reactor: A Search for Limits in an Age of High Technology. Chicago, IL: University of Chicago Press, 1989.

Copyright To Life

Thu, 12 Apr 2012 11:12 GMT

In his 1993 book, The Language of the Genes: Biology, History and the Evolutionary Future, British biologist, John Stephen Jones, concisely conveys the linguistic function of DNA, as follows:

The language of the genes has a simple alphabet, not with twenty-six letters, but just four. These are the four different DNA bases—adenine, guanine, cytosine and thymine (A, G, C and T for short). The bases are arranged in words of three letters such as CGA or TGG. Most of the words code for different amino acids, which themselves are joined together to make proteins, the building blocks of the body.

The letters in the alphabet of DNA nucleotide bases can form words that, in turn, can express meaning. Synthetic biology allows works of expressive authorship to be fixed in the tangible medium of DNA expression. Thus, DNA may be eligible for copyright protection, as I argue in a recently-published (and freely-downloadable) article, DNA Copyright. Here is the abstract:

Copyright law has traditionally afforded protection to works of authorship such as books, magazines, photographs, paintings, music, and sculpture. The Copyright Act has proved admirably flexible at accommodating novel categories of authorship, specifically contemplating future developments by covering “original works of authorship fixed in any tangible medium of expression, now known or later developed.” This has led to explicit copyright protection for nontraditional subject matter, such as works of architecture and computer software. Sequences of DNA should also be acknowledged as eligible for copyright protection. Unaltered genomic DNA sequences would seem poor candidates for copyright protection. The case is stronger for copyright protection of recombinant DNA sequences. Strongest is the case for the copyright eligibility of synthetic DNA sequences designed nucleotide by nucleotide and chemically constructed de novo. Whereas DNA copyright has previously remained a largely hypothetical prospect, advances in synthetic biology may now force recognition of copyright protection as an alternative (or complement) to patent protection. A DNA copyright regime would differ substantially from the current DNA patent regime. Notably, acquiring copyright protection for DNA would be less expensive and much more rapid than pursuing patent protection. While patent law recognizes few and weak exceptions to infringement, copyright law offers a robust fair use exception for copying done in contexts such as scholarship and research. Furthermore, copyright protection would be limited in the case of DNA molecules whose structures are dictated by functional constraints, thus providing the public greater and salutary access to useful genes. Copyright protection for DNA lies pregnant within current copyright law. What is required is an effort to make use of this existing protection. A DNA copyright regime would not only allow a more robust set of safe harbors for use of particular DNA sequences, especially in genetic research, it would also facilitate the possibility of an open source biology movement. Finally, just as the prospects of patent protection for at least some forms of DNA have become uncertain, copyright protection could fill any resulting gap by affording a reasonable level of intellectual property protection, while simultaneously allowing society to enjoy some of the benefits of genetic knowledge more freely than patent protection currently allows.

In light of its March 20, 2012, decision, Mayo Collaborative Services v. Prometheus Laboratories, Inc. (U.S. 2012) (previously discussed on LEXVIVO) the United States Supreme Court vacated and remanded the July 29, 2011, Court of Appeals for the Federal Circuit ("CAFC") decision, The Association for Molecular Pathology, et al. v. Myriad Genetics, Inc., et al. (also previously discussed on LEXVIVO), that had upheld the patent eligibility of DNA sequences.

Unless the CAFC can safely navigate gene patents past the patent eligibility perils of Scylla (Bilski v. Kappos (U.S. 2009)) and Charybdis (Mayo v. Prometheus), copyright may soon be seen as the best hope for securing intellectual property protection of DNA inventions.

More biolaw is available at LEXVIVO.

Toward an Understanding of Classical Chinese Medicine

Tue, 10 Apr 2012 02:05 GMT

This is the first of a series of posts I hope to make over the course of a year or two on the therapeutic value of Classical Chinese Medicine. In doing so, I’m not intending to make any claims for the (comparatively superior or otherwise) therapeutic value of “holistic medicine” in general, indeed, I believe that many of the claims on its behalf by its aficionados, be they practitioners or patients, are probably exaggerated, misleading, or, quite frequently (and far worse), false. My interest in this subject is motivated by a broader concern with the sundry questions that arise among and between modern science, religious worldviews (broadly construed), and what we’ll term the “healing arts.” I’m particularly intrigued by the philosophical and religious underpinnings—beliefs, values, orientations—that “justify” or influence these arts. And to narrow the focus even further, it is religious worldviews of Asian provenance that intrigue me most of all, although for the time being we’ll attend to those of primarily Chinese pedigree.

In the following, I aim to sketch some epistemically sound reasons for a cross-cultural appreciation, understanding, and possible evaluation of what is termed Traditional Chinese Medicine (hereafter TCM) but, for reasons to be explained later, is better called Classical Chinese Medicine (hereafter CCM). I share with most readers a lack of disciplinary expertise on this subject, approaching it as a curious and inspired amateur, an educated layperson utterly dependent, in the end, on those in possession of the requisite professional and practitioner’s knowledge (and skill), a knowledge often assiduously nurtured over the better part of a lifetime. Perhaps the lack of expertise can be compensated by an ardent avocational interest, recalling with John Ziman (2000) that “Until…the middle of the nineteenth century, almost all scientists were amateurs” (49). What professional training I do possess relevant to our topic concerns the cross-cultural study of worldviews, a field of inquiry fundamental to an appreciation of CCM in a way that takes us in several respects us beyond the sieve of biomedicine. And I doubt we can sufficiently appreciate many of the relevant differences between Western biomedicine and CCM without some sort of minimal understanding of the worldviews from which the philosophical and doctrinal foundations of CCM emerged and its subsequent theory and therapeutic praxis has flourished. To the extent that we succeed in our preliminary investigations, we will come to understand several reasons why CCM is rightly placed under the rubric of “complementary” medicine in a manner that resists complete incorporation or subsumption within Western biomedicine while nonetheless possessing scientific stature that rightly belongs to effective therapeutic modalities. At the same time, we should also come to see why there is no compelling reason why we should characterize CCM as an “alternative” medicine in the sense that this implies a disavowal of the very real therapeutic benefits brought to us by biomedicine. As Grant Gillet has written in Bioethics in the Clinic: Hippocratic Reflections (2004), there is no need to undermine the “purpose-driven cognitive maps of a domain of praxis” found in biomedical knowledge in “permit[ting] alternative conceptualizations where the phenomena covered are complex and may be produced by the interaction of multiple factors” (61). I’m assuming that not all of the therapeutic benefits generated by CCM can be chalked up to placebo effects, such effects only now being studied in the thorough and rigorous fashion (see Brody 1980; Evans 2004; Harrington 1999; Kolber 2007; and Moerman 2002) they warrant. Nonetheless, even if it turns out that at least some of the therapeutic benefits attributed to CCM can be chalked up to placebo effects, this should not speak against our main contention, namely, that Chinese medical doctrine and therapeutic praxis should be seen as belonging within the larger corpus of scientifically respectable and medically effective therapeutic modalities.

Testimonial Reports and Presumptive Knowledge
In the West, the first exposure to Chinese medicine typically takes the form of acupuncture, and is probably motivated in the first instance under the epistemological heading of (favorable) anecdotal or testimonial reports, the sort of evidence routinely dismissed or derided in philosophical and scientific circles, and frequently for good reason. A serendipitous illustration from a deservedly popular book used in courses on critical thinking and informal logic will suffice:

“if you are deciding whether or not acupuncture is an adequate alternative to conventional medicine, someone might tell you that their friend tried acupuncture and that it seemed to work wonders. On its own this is merely anecdotal evidence. First, there is a risk that details of the story may get changed in the retelling. More importantly, to argue from this simple case that acupuncture is an adequate alternative to conventional medicine would be irresponsible: anecdotal evidence is different from a controlled scientific investigation into the effectiveness of acupuncture.” (Warburton 2000: 15-16)

Of course evidence-based medicine (EBM) enthusiasts are reflexively nodding in agreement, and understandably so. But let’s complicate matters a bit. Warburton goes on to remind us that “not all anecdotal evidence is unreliable: if you have reason to be confident in the source of the evidence, then anecdotal evidence can help to support or undermine a conclusion’’ (16). In fact, I suspect very few people argue in the “irresponsible” manner of our hypothetical example. Indeed, further vindication for some kinds of anecdotal evidence follows the realization that “many sorts of scientific enquiry begin by examining anecdotal evidence about the phenomenon to be examined” (16).

There are other reasons we might hold for valuing anecdotal evidence or “testimonial reports.” For instance, we might, with Alvin Goldman (1999), appreciate the societal distribution and frequency of anecdotal reports in public fora outside disciplinary domains or intellectual fields of expertise insofar as they facilitate the spread of knowledge: “Communication [used here in the sense of sharing discovered facts] is an efficient mode of increasing knowledge because information transmission is typically easier, quicker, and less costly than fresh discovery. [….] Since not every member of a community observes each fact other members observe, there is room for veritistic [i.e., ‘truth-linked’] improvement through communication” (Goldman, 1999: 103). The assumption here is that testimonial reports or observations are accurate or true, but of course false anecdotal or testimonial reports occur for any number of reasons:

“False reports can issue from observational error. A second source of inaccurate testimony is dishonesty or insincerity, which can be prompted by a variety of incentives the speaker might have for deception. Similar incentives can lead a potential informant to prefer silence to either disclosure or mendacity. In fact, it is not obvious what generally motivates knowledgeable agents to disseminate their knowledge. The conveyance of information, it appears, generally profits the receiver rather than the communicator.” (106)

As non-experts, most of us at any given time are in the role of either “receiver” or “communicator,” a fact that may help motivate us when it comes our turn to be in the role of communicator, so while the conveyance of information “generally profits the receiver rather than the communicator,” that fact need not long deter us in the search for sufficient motivation or incentive for informed agents to disseminate knowledge. Nonetheless, Goldman explains why we might come to see anecdotal evidence or testimony as trustworthy in the first instance, as something we generally take for granted when it comes to the increase of true beliefs (‘veritistic improvement’). Thus the accuracy of reporters’ observations, of testimonial reports, can serve as a default presumption, the exceptions serving to entrench the rule. Goldman reminds us that the view that “people have a [natural] default disposition to speak the truth, to express their beliefs honestly and sincerely,” was well expressed in the Scottish philosopher Thomas Reid’s “motivation-innateness” hypothesis (106). And although we know from personal experience that an “innate disposition toward truthful revelation can be overridden by conflicting incentives,” social mechanisms as crude as reward and punishment, by way of firmly established social norms, for example, can motivate potential speakers to increase their capacity for veritistic improvement of knowledge communication (106-107). In addition to Reid’s hypothesis handed down from the Scottish Enlightenment, Goldman provides us with a handful of non-reductionist epistemic theories of testimonial justification found in contemporary epistemology, noting “Philosophers have been struck by how many of our beliefs are based on testimony, where it is doubtful that there is any testimony-free basis for trusting that testimony” (126). It seems we can make some progress toward exorcising dispositional skepticism toward the theory and practice of CCM, knowledge of the therapeutic benefits of which is often communicated anecdotally, in testimonial reports.

Yet another (and not unrelated) way to meet initial skepticism or epistemically motivated doubts about the efficacy of therapeutic practices and doctrinal ideas from Chinese medicine is to see the latter as taking the form of presumptive knowledge, as possessing tentative plausibility (largely pre-evidential in bearing from the perspective of EBM; I’m well aware there exists some scientific evidence for the efficacy of acupuncture as summarized, for example, in the NIH Consensus Statement on Acupuncture): “The key idea of presumption thus roots in analogy with the legal principle: innocent until proven guilty. A presumption is a thesis that is provisionally appropriate—one which can be maintained pro tem, viewed as applicable until or unless sufficiently weighty counter-considerations arise to displace it. On this basis, a presumption is a contention that remains in place until something better comes along” (Rescher 2003: 85). Presumptions have significant probative weight but are in principle defeasible, that is, ”subject to defeat in being overthrown by sufficiently weighty countervailing considerations” or by “something more evidentially substantial.” This is in keeping with the contemporary epistemologist’s conception of knowledge in general, which is “fallibilist,” meaning the possibility of error can never be logically eliminated. Moreover, “not everything qualifies as a presumption: the concept is to have some probative bite. A presumption is not merely something that is ‘possibly true,’ or that is ‘true for all I know about the matter.’ To class a proposition as a presumption is to take a definite and committed position with respect to it, so as to say, ‘I propose to accept it as true insofar as no difficulties arise from doing so’” (Rescher 2003: 92). Michael Williams (2001) likewise informs us that the presumptive “justification” of personal beliefs within a fallibilist epistemology takes the form of “what Robert Brandom calls a ‘default and challenge’ structure: entitlement to one’s beliefs is the default position; but entitlement is always vulnerable to undermining by evidence that one’s epistemic performance is not up to par” (25).

Rescher argues that there is a (default epistemic) “presumption in favor of such cognitive sources as the senses and memory—or for that matter trustworthy personal or documentary resources such as experts and encyclopedias” (Rescher 2003: 96). Williams (2001) puts it this way: “In claiming knowledge, I commit myself to my belief’s being adequately grounded—formed by a reliable method—but not to my having already established its well-groundedness” (149). It therefore seems safe to conclude that our cognitive affairs are such that we commonly and routinely incorporate a host of fundamental presumptions of reliability, for example, and again, accepting at face value the declarations—testimony—of other people and, after Rescher, the declarations of recognized experts and authorities within their respective domains of expertise. For our purposes, the latter entail the (sometimes ‘sacred’) texts of CCM transmitted from one generation to the next by its various practitioners who transmit their knowledge and expertise in “secret,” through “personal” and “standardized” modes of transmission (cf. Hsu 1999; Lloyd and Sivin, 2002). Inasmuch as plausibility is, for Rescher, one of the criteria for evaluating presumptions, we are caught in a virtuous epistemic circle, for “the standing of an authoritative source is an important criterion of plausibility” (Godden and Walton 2007: 326). Williams (2001) reiterates this point in a way palatable to the epistemological views of both Goldman and Rescher: “The social distribution of reason-giving abilities allows us to inherit knowledge by deference to experts. In a complicated society, an enormous amount of knowledge is acquired this way” (154). This in turn enables us to appreciate precisely why, for the individual, “being [epistemically] justified is not always a matter of having gone through a process of justification” (154). That we are dealing with Chinese medical texts and Chinese experts hardly seems sufficient reason to deny them the presumptive deference we accord to the opinions and judgments of other, more familiar (i.e., ‘Western’), expert authorities. At the very least, we can concede the Chinese (and anyone socialized into its traditions) have a host of sufficient presumptive reasons for deference to CCM, reasons others outside of Asia might likewise see fit to entertain in an identical manner. In other words, “Respect duly established expertise” (Goldman 1999: 372), although one might bear in mind recent “advances” in biotechnology and psychopharmacology when heeding Goldman’s reason for

“why the public should reserve a healthy dose of skepticism for the new ideas of researchers and practitioners in a field—any field…. Researchers and practitioners have a built-in incentive to promulgate their own innovations: innovation is what earns them kudos and recognition [and in the case of biotechnology and psychopharmacology, lots of money]. The ‘tired and true’ does not attract much attention. Researchers and practitioners want to show the public that they can make advances in their field, and are therefore prone to exaggerated the promise or proven effectiveness of their new ideas and methods.”(372)

In short, we’re entitled to a belief in the veritistic value of CCM until such time as we are provided with sufficiently weighty countervailing epistemic evidence. And our willingness to entertain the epistemic value of CCM could said to be enhanced to the extent we’re also willing to exercise a corresponding caution (or simply less naïveté) about the putative groundbreaking “advances” in and products of biotechnology and psychopharmacology. A measure of skepticism is reasonable on this score if we consider the invariable halo effects of Western science and high technology together with the powerful socio-economic forces that fuel the commercialization and marketing mania that increasingly define the nature of “privatized American science” (Angell 2011; Mirowski 2011). Michael H. Cohen tells us a story about his attendance at an international congress on Tibetan Medicine in 1998 in which the Dalai Lama “reflected on the hubris and ethnocentrism often described as embedded in modern scientific efforts within the Western Hemisphere to understand indigenous and other medical traditions.” This includes an inability to see beyond the presuppositions and assumptions that make up the marrow of the scientific models of modern medicine in the West (and now around the globe) and thus are essential to its dramatic success on many fronts (Thagard 1999). So, for example, Cohen notes that “even when open to exploring other medical systems,” clinicians and research scientists beholden to these models seem constitutionally unable to appreciate the “role of consciousness in mediating healing therapies, [and] tend to imagine that the medical system adopted relatively recently in human history” possesses a monopoly of privilege and a patent on authority by which to “filter, understand, and synthesize other medical traditions” (Cohen 2006: 1-2). It is for this reason I will refer to the medical significance of CCM (and, at a later date, other complementary and alternative medicines or CAMs) as “beyond the sieve of biomedicine.”

References & Further Reading:

Angell, Marcia. “The Epidemic of Mental Illness: Why?,” The New York Review of Books, June 23, 2011.
Angell, Marcia. “The Illusions of Psychiatry,” The New York Review of Books, July 14, 2011.
Brody, Howard. Placebos and the Philosophy of Medicine: Clinical, Conceptual, and Ethical Issues. Chicago, IL: University of Chicago Press, 1980.
Cohen, Michael H. Healing at the Borderland of Medicine and Religion. Chapel Hill, NC: University of North Carolina Press, 2006.
Evans, Dylan. Placebo: Mind over Matter in Modern Medicine. New York: Oxford University Press, 2004.
Farquhar, Judith. Knowing Practice: The Clinical Encounter of Chinese Medicine. Boulder, CO: Westview Press, 1994.
Gillet, Grant. Bioethics in the Clinic: Hippocratic Reflections. Baltimore, MD: Johns Hopkins University Press, 2004.
Goldman, Alvin I. Knowledge in a Social World. New York: Oxford University Press, 1999.
Godden, David M. and Douglas Walton. “A Theory of Presumption for Everyday Argumentation,” Pragmatics & Cognition 15: 2 (2007): 313-346.
Harrington, Anne, ed. The Placebo Effect: An Interdisciplinary Exploration. Cambridge, MA: Harvard University Press, 1999.
Hsu, Elisabeth. The Transmission of Chinese Medicine. Cambridge, UK: Cambridge University Press, 1999.
Hsu, Elisabeth, ed. Innovation in Chinese Medicine.Cambridge, UK: Cambridge University Press, 2001.
Kaptchuk, Ted J. The Web That Has No Weaver: Understanding Chinese Medicine. Chicago, IL: Contemporary Books, 2nd ed., 2000.
Kolber, Adam J. “A Limited Defense of Clinical Placebo Deception,” Yale Law & Policy Review, Vol. 26, 2007; San Diego Legal Studies Paper No. 07-87. Available at SSRN: http://ssrn.com/abstract=967563.
Kuriyama, Shigehisa. The Expressiveness of the Body and the Divergence of Greek and Chinese Medicine. New York: Zone Books, 1999.
Lloyd, Geoffrey and Nathan Sivin. The Way and the Word: Science and Medicine in Early China and Greece. New Haven, CT: Yale University Press, 2002.
Maciocia, Giovanni. The Foundations of Chinese Medicine. Edinburgh: Churchill Livingstone, 1989.
Mirowski, Philip. Science-Mart: Privatizing American Science. Cambridge, MA: Harvard University Press, 2011.
Moerman, Daniel E. Meaning, Medicine, and the “Placebo Effect.” Cambridge, UK: Cambridge University Press, 2002.
Rescher, Nicholas. Epistemology: An Introduction to the Theory of Knowledge. Albany, NY: State University of New York Press, 2003.
Thagard, Paul. How Scientists Explain Disease. Princeton, NJ: Princeton University Press, 1999.
Unschuld, Paul U. Medicine in China: A History of Ideas. Berkeley, CA: University of California Press, 1988.
Warburton, Nigel. Thinking from A to Z. London: Routledge, 2nd ed., 1998.
Williams, Michael. Problems of Knowledge: A Critical Introduction to Epistemology. New York: Oxford University Press, 2001.
Zhang, Yanhua. Transforming Emotions with Chinese Medicine: An Ethnographic Account from Contemporary China. Albany, NY: State University of New York Press, 2007.
Ziman, John. Real Science: What It Is, What It Means. Cambridge, UK: Cambridge University Press, 2000.

Paul Robeson, b. April 9, 1898

Mon, 09 Apr 2012 07:36 GMT

Paul Leroy Robeson (April 9, 1898 – January 23, 1976)

Thanks to Professor Eric M. Fink of Elon University Law School for the following video of Paul Robeson singing “Joe Hill.”

I was unable to reach the Paul Robeson Foundation website this morning. I suspect it was overwhelmed by visits from around the world.

Here’s the Wikipedia entry on Robeson, with wonderful references, resources, and links, in addition to essential biographical information.

Impressionism as “all method and technique pointing nowhere”

Sun, 08 Apr 2012 00:56 GMT

In a comment to the Mirror of Justice piece by DeGirolami that was the subject of our previous post, we read a description of Impressionism as “all method and technique pointing nowhere.” Adding insult to injury, reference is made to Monet’s “Wheatstacks” as “piles of dead grass clippings,” albeit painted “in a the most breathtaking array of never-before-seen shades.” What follows is my reply:

Analogous to the Psalmist who “merely beholds the hills, the heavens, and the deep and finds there the presence of the Lord,” Monet, perhaps the premier Impressionist, could be said to have made what James Kellenberger termed a “realisation-discovery.” In other words, and for example, we might justifiably argue that Monet’s haystacks enable us “to see the significance of the familiar as that which establishes what they had not thought or had not fully realized or had even denied.” Indeed, the theist might, with St. Bonaventura, look upon the sensible world as a mirror (speculum) through which she can come to see God, and Monet’s “Haystacks” series has polished that mirror, enabling is to open our eyes, to better see God’s invisible nature (with Paul) “in the things that have been made:”

“[The Psalmist] merely beholds the hills, the heavens, and the deep and finds there the presence of the Lord. He looks upon what we all look upon—what the fool in the Psalms looks upon too—and he realises what it means: that there is a God whose presence creation bespeaks. At any rate so he believes he realises. [….] While the Psalms include much besides expressions of the Psalmist’s experience of God’s presence, they are vibrant with the Psalmist’s sense of the presence of God.” (Kellenberger)

Similarly, for the Muslim (cf. the Qur’ān 41: 53), anything in the natural world is potentially a “sign” (’āyah) of or from God:

“The creatures are signs; the change between day and night is a sign, as is the loving encounter of husband and wife, and miracles are signs (cf. 30: 19-25): they all prove that there is a living God who is the originator of everything. These signs are not only in the ‘horizons,’ that is, in the created universe, but also in human souls, that is, in the human capacity to understand and admire; in love and human inquisitiveness; in whatever one may feel, think, and experience. The world is, as it were, an immense book in which those who have eyes to see and ears to hear can recognize God’s signs and thus be guided by their contemplation to the Creator Himself.” (Annemarie Schimmel)

Or, in the words of an ancient hymn, the theist might proclaim:

“O Godhead, here untouched, unseen
All things created bear thy trace!”

Monet’s haystacks facilitate a different kind of seeing and knowing (beauty, after all, has to do with cognition, as was well understood in the European Middle Ages generally and by Aquinas in particular), not unlike that William Blake experienced when he discerned “eternity in a grain of sand and heaven in a wild flower.” Contemplate these paintings, observe their proportions, their integrity, their clarity. In the first exhibit of the Haystacks series, Octave Mirbeau described Monet’s paintings “as representing ‘what lies beyond progress itself.’ Others described the grainstacks as ‘faces of the landscape,’ and viewers seemed to take assurance that the series would help preserve rural traditions despite industrialization and urbanization. They represented the countryside as a retreat from daily problems and home for contentment with nature.” Conversely, today we might look upon these paintings as bringing about “a melancholy sense of the beauty that passes,” as rural life did largely succumb, for better and worse, to the forces of modernity, and to lament this does not mean we need romanticize such a life. This decidedly is not style for its own sake. To see such art, therefore, as an example of “all method and technique pointing nowhere,” or as mere “piles of dead grass clippings,” is not to see at all, in effect, it is to be both blind and obtuse. As Ananda K. Coomaraswamy said, “beauty is objective, residing in the artifact and not in the spectator, who may or may not be qualified to recognize it.”

Forget for a moment, Impressionism, forget, for a moment, who painted these haystacks, and look afresh at them: they illustrate “the attractive power of perfection in kind,” evidenced in the harmony of the parts which bespeak clarity and illumination, recalling the doctrine that beauty, after all, is related to formal causes: “It is not just that the sensuous properties of things are seen; rather, there is a perception of properties and qualities which are organised according to the immanent structure of a substantial form,” hence what is “seen” is at the same time an act of knowledge, “an intellectual, conceptual act of comprehension” (Umberto Eco). In the Middle Ages “the most obvious symptom of qualitative aesthetic experience was the…love of light and colour” (Eco), a love passionately shared by the Impressionists.
“[P]hilosophers and mystics alike,” writes Eco, “were enthralled by luminosity in general, and by the sun’s light,” and yet we would decry this selfsame enthrallment among the Impressionists.

Mindless Pagan Impressionism?

Sat, 07 Apr 2012 13:09 GMT

The following is from a post at the Mirror of Justice blog by Marc DiGirolami titled “Clive Bell on Impressionism’s Paganism” —

The New Republic will from time to time reprint old essays on various subjects. Here is a 1923 piece by the formalist art critic Clive Bell, whose ideas about the nature of aesthetic experience have always seemed to me nearly universally wrong. That notwithstanding, I found his discussion in this piece of the connection between impressionism and paganism to be illuminating — one of the most concise explanations for why I have always disliked impressionism with such great intensity. A bit:

The cultivated rich seem at last to have discovered in the impressionists what the impressionists themselves rediscovered half by accident. They rediscovered paganism—real paganism I mean—something real enough to be the inspiration and content of supreme works of art. Paganism, I take it, is the acceptance of life as something good and satisfying in itself. To enjoy life the pagan need not make himself believe that it is a means to something else—to a better life in another world for instance, or a juster organization of society, or complete self-development: he does not regard it as a brief span or portion in which to do something for his own soul, or for his fellow creatures, or for the future. He takes the world as it is and enjoys to the utmost what he finds in it: also, he is no disconsolate archaeologist spending his own age thinking how much more happily he could have lived in another and what a pagan he would have been on the banks of the Ilissus. No, paganism does not consist in a proper respect for the pagan past, but in a passionate enjoyment of the present; and Poussin, though he painted bacchanals galore, would have been quite out of place in the world of Theocritus. Your true pagan neither regrets nor idealizes: and while Swinburne was yearning nostalgically for “the breasts of the nymph in the brake,” Renoir was finding inspiration for a glorious work of art in the petticoats of the shop-girls at the Moulin de la Galette.

Herewith my response and further discussion with Marc:

Marc,

I’m not an unabashed enthusiast of Impressionism as a movement or particularly fond of many Impressionist paintings, but I nonetheless have a hard time understanding how someone might, with “great intensity” no less, dislike its products. So I decided to carefully consider Bell’s argument and came away rather disappointed and thus thoroughly unpersuaded. And while it is usually gratifying to have someone concisely articulate one’s visceral response to some idea, subject matter, object, event, what have you, I think Bell was quite over-the-top in his assessment. I find it hard to criticize the Impressionists in toto for helping us better see or appreciate the light and color of our (or their) everyday world, for it seems they’re here being castigated for looking upon what God and man have created, and finding it “very good” (cf. Genesis 3:1). And while Bell proclaims “[y]our true pagan never regrets or idealizes,” he must not have been thinking of the pre-Islamic poets of the Bedouin tribes who did both in ample measure. The social and cultural impact of the Impressionists’ putative celebration of life did not run deep: witness the unprecedented brutality and carnage that made up the next century’s carnival of death, World War I. Apparently the elites of European civilization found it easier to revel in death than life. And I rather think that it is not the case that the human subject frequently found in Impressionist paintings, a pagan par excellence one would surmise, “took life as it is,” and was thus constitutionally unable to regard life “as a brief span or portion in which to do something for his own soul, or for his fellow creatures, or for the future:” look again at Morisot’s “The Cradle,” or the women and children in Cassatt’s works (indeed, the general subject matter itself), I’ve always been intrigued about the young woman in Manet’s “Pflaume:” What is she thinking? And why do we care about what’s on her mind? Or spend some time with “A Philosopher” and tell me again this signifies nothing but “passionate enjoyment of the present“ (and yet there is, I think, nothing intrinsically wrong with that, as our Buddhist friends who have assiduously cultivated practices of ‘attentiveness’ would remind us). I might proceed with more evidence for the defense, but I trust this can suffice to at least suggest that Bell may have been profoundly wrong on many counts here, albeit enabling us to better understand why the term “Puritan“ has become a purely pejorative epithet.

* * *

Patrick, fair points all, and far be it from me to defend Bell’s views too much, since (as I mentioned) I tend to disagree strongly with his view of aesthetic experience generally.

Paganism is, as you note, too various an experience to be captured well by any single set of descriptions. But I suppose that my interest here was more in a particular cultural reaction to impressionism which I was interested to see prevalent in the ‘20s, rather than in the description of impressionism itself (Bell tries to qualify the connection with paganism as to the latter). Bell describes a kind of here-and-now-ism, a mindlessness—in the real sense of absence of mind—which I find characteristic of much of the response to (and therefore of the contemporary love for) impressionism. Surely there are exceptions both in impressionist art itself, just as there are in paganism, as you point out as to both cases. But I thought it interesting to see that the cultural reaction to impressionism that I sometimes see today was observed by somebody else almost 100 years ago. It’s that lack of mind—it’s the ready enjoyment of splashy colors and easy pictures for the immediate pleasure that they offer, and the cultural point of view that such enjoyments celebrate—which makes me dislike impressionism—even intensely. Perhaps that makes me Puritanical, but I hope not (it will have been the first time anybody will have said so about me!). It’s more the ineffably, willfully, insidiously easy appeal that I object to.

Thanks again for the good comment.

* * *

Marc,

I suspect the “lack of mind” your refer to is more in the eye (and absence of mind) of the beholder than intrinsic to the art itself. In other words, such a response is, in a vulgar sense, purely impressionistic, and represents the inability to truly contemplate a work of art: it is to “see” without seeing, the artistic equivalent of Clark Griswold at the Grand Canyon. If one experiences one of the better products of Impressionism as a moment of entertaining instant gratification, the failure lies in the perceiver as subject, not the subject (or object) of perception. The surface enchantments (its ‘insidiously easy appeal’ in your words) are, so to speak, designed to get our attention, they’re invitations to something deeper, and thus it is the viewer’s fault if the light and colors blind him to the subject matter, if he stops at mere aesthetic feeling in a minimalist or literalist sense and fails to emotionally (and intellectually) engage the material close at hand. The Impressionists left their dark and damp studios to venture into the outside world, an experience that was, at first, and not just figuratively, often blinding or disorienting, something they in fact captured in an inimitable manner, yet they recovered their perceptual equilibrium, and so too should we: our judgments are better made from that moment forward. Its seductions are intended, in the end, to sharpen our perceptions and change our conceptions, they are not meant to leave us content with the status quo in any sense of that term. The Impressionists retained the perhaps naïve belief in the painterly possibilities of “alchemical experimentation,” unlike the cynical postmodernist artists of our time and place.

Bell’s description of a portion of the public’s response to Impressionist works might be compared to the “cultured” response of much of the nonsense that falls under the heading of “postmodernist” art today: art is here being “consumed” as a sign and symbol of conspicuous fashion and class “taste” by a wealthy public grown accustomed to enchantment by what is on the surface, by what “shines,” by “easy” money, and so forth. The mode of artistic consumption here is not the fault of the artist or the art but the commercial world into which the art is subject and circulates. What we are witnessing here is the beginnings of a certain kind of capitalism and its cultural consequences for the art world in all its ineffable, insidious, and willful glory. In short, I share your repulsion with the cultural response to and conspicuous consumption of Impressionist art by certain social groups, but believe the forces that shaped and perhaps continue to shape that response and fuel that consumption do not inhere in the art, properly appreciated, but are instead intrinsic to a certain sort of socio-economic world defined by a form of capitalism and the class or classes that stoke its fires. With postmodernist art, we generally find artists in full-fledged and uncritical cooperation with that world, their art structurally unable to critically or sufficiently distance itself from the powers of Mammon and or what Lewis Mumford memorably christened the “Megamachine,” indeed, deliberately or unwittingly colluding in the creation of its idols, blurring if not fusing the boundaries between the everyday world of Bell’s paganism or banal reality with “creative” imagination (in which case we need, as Donald Kuspit reminds us, theory and ideology to ‘explain’ its meaning). Impressionism is quite a distance from the fetishized and commodified art of our own time. In postmodern art we discover, as Kuspit points out, a regression to childhood and madness in the service of fun and games, of art as entertainment or marketable novelty and intellectual amusement.* The art of the Impressionists is in striking contrast to postmodernist works only too proud to proclaim or parade their bewitchment by “chaos, banality, perversion, and anti-sociality,” only too eager to serve (motivated, no doubt, by the allure of fame or fortune) as a clever artistic mirror for all that is narcissistic, narcotizing, and nihilistic in a society suffused with a technocratic and capitalist ethos. Oh my, who’s the Puritan now?!

* Please see Kuspit’s The End of Art (2004).

Lockean Labour and Original Acquisition

Fri, 06 Apr 2012 07:29 GMT

The following claim was found in a review of a recent book on Fichte’s social and political philosophy by a contemporary philosopher: “On the Lockean view, property is something that belongs to us because we invest it with value.” [emphasis added]

I don’t think that’s quite correct: property for Locke clearly has value prior to our “ownership” or acquisition claim insofar as the proviso “still enough and as good left” (indeed, ‘So that in effect there was never the less left for others’!) refers to the fact that property has some sort of value prior to our appropriation (for example, we enjoy, however insecurely, possessions in the state of nature prior to the private property of society), property is a peculiar enough kind of worldly resource to prompt Locke to qualify his story with the aforementioned proviso. Labor has significance owing to its addition of “use-value” (and not, as with Marx, ‘exchange-value’) while property itself has “intrinsic value” owing to its “usefulness for the life of man” (natural resources, in addition to having intrinsic value, may, from Locke’s vantage point, have some small or insignificant amount of use-value prior to the addition of labor: fruit may fall from trees sans our labor, i.e., ‘land frequently produces consumables without any labour having been applied to it’). This has been well-explained by the late G.A. (‘Jerry’) Cohen,* who notes many (even Locke himself on occasion) are prone to confusing or conflating the “value argument” with “the argument from labour mixture: “ “If the justification of your ownership of what you have laboured on is that your labour is in it, then you do not own it because you have enhanced its value, even if what deserves to be called ‘labour’ necessarily creates value.” The “investment with value” centers on the conferring of value, not the labor by which it is conferred. Locke later does bring the enhancement of value into the picture (and notice, this is not the same as ‘creation’ of value but the enhancement of existing value), but that is after the initial appropriation of property, the right to which is initially held in common. As Cohen explains, “in the logic of the labour-mixture argument, it is labour itself, and not value-creation, which justifies the claim to private property” (See Ch. V of his Second Treatise of Government). Locke later brings value-enhancement into the picture in an attempt “to justify the extensive inequality of goods that obtains now, when original appropriation has long ceased. The justification Locke offers is that almost all of present inequality is due not to any unequal initial appropriating but to the labour which followed after initial appropriation.”

It is interesting that both Locke and Fichte subscribed to the “self-ownership” thesis. For Locke, “every man has property in his own person,” and Fichte states that “Man can neither be inherited, sold, nor be made the object of a gift; he can be no one else’s property because he is his own property.” On this, of course, Fichte differs with Kant, the latter finding the notion of self-ownership to be incoherent (and while not subscribing to the normativity of the self-ownership thesis, G.A. Cohen argues the concept, pace Kant, is in fact coherent).

And for the specific weaknesses in Locke’s argument with regard to labor and use-value, see Chapter 7 of Cohen (below), “Marx and Locke on land and labour:” “If there exists a defensible criterion for assigning relative contributions to output of labour on the one hand and the original properties of the soil on the other, then it is not Locke’s.”

* See his Self-Ownership, Freedom, and Equality (Cambridge University Press, 1995).

Food and Superfood

Thu, 05 Apr 2012 15:19 GMT

Jim Chen, Food and Superfood: Organic Labeling and the Triumph of Gay Science Over Dismal and Natural Science in Agricultural Policy, 48 Idaho L. Rev. (forthcoming 2012). Part of the 2012 Idaho Law Review Symposium, Genetically Modified Organisms: Law and the Global Market.

The nearly silent and seamless convergence of American and European standards for organic labeling represents a pivotal moment in contemporary agricultural policy. Effective June 1, 2012, the United States and the European Union have each agreed to treat the other jurisdiction’s system of organic certification as equivalent to its own. Because organic labeling under the Organic Foods Production Act serves as the practical (if legally imperfect) vehicle by which American farmers and agribusinesses market food produced without resort to genetically modified organisms, the United States and European Union’s organic equivalence arrangement provides a quiet, partial solution to one of the longest, bitterest trade disputes dividing the dominant cultures of the North Atlantic. Beyond its impact in two of the world’s biggest markets for organic food, the Organic Equivalence Arrangement signals something even deeper within the making of global agricultural policy. The silent substitution of organic labeling for transatlantic harmonization of policies on genetically modified organisms represents the triumph of aesthetics and environmental philosophy over the traditional drivers of agricultural policy and food and drug law in the United States: production costs, retail prices, consumer protection, and federal supervision of all aspects of science affecting food and agriculture. In a stunning reversal of the usual presumption that philosophical beauty should not dictate legal truth, transatlantic convergence on organic labeling gives the gay science of poetry a striking victory over the dismal science of economics and the natural science of conventional agriculture.

Downloadable at http://ssrn.com/abstract=2033958 or http://bit.ly/FoodSuperfood.

The Meaning of Ritual(s)

Mon, 26 Mar 2012 15:50 GMT

May the communion of Thy Holy Mysteries be neither to my judgment, nor to my condemnation, O Lord, but to the healing of soul and body. Amen. (The last part of the prayer said before Holy Communion in Orthodox Christianity)

[R]itualization not only involves the setting up of oppositions, but through the privileging built into such an exercise, it generates hierarchical schemes to produce a loose sense of totality and systematicity. In this way, ritual dynamics afford an experience of ‘order’ as well as the ‘fit’ between the taxonomic order and the order of experience.—Catherine Bell

Perhaps all one can aspire to in relation to ritual is what Paul Ricoeur suggested a believer could achieve in relation to religious faith: a ‘second naiveté,’ a sophisticated, adult, reflective affirmation of ritual that never lets go of a necessary, corrective suspicion.—Sudhir Kakar

Inspired by Steve Shiffrin’s post on Catholic and Protestant approaches to Eucharistic ritual at ReligiousLeftLaw, I thought it might be of some interest to point out a few things about the specifically ritual component of holy communion, about “ritual meaning” generally (which of course cannot be divorced from any specific doctrinal or traditional meaning).[1] The various dimensions of a religious worldview might be analogically and metaphorically compared to the multifaceted jewels at the vertices of “Indra’s net,” each dimension: experiential and emotional, doctrinal, mythical, narrative, ethical, ritual, aesthetic and so forth, reflecting the others such that examination of any one jewel severed from the net, leaves out the necessary interdependence of the jewels within the net. Nonetheless, as the jewels are multifaceted and reflect all the other jewels, a close study of any one dimension (say, ritual) of religion within the net cannot but help reflect the other (doctrinal, mythical, experiential…) dimensions of spirituality. I rely here largely but not exclusively on the works of one of the foremost scholars of ritual, the late Catherine Bell.*

What follows may in part apply as well to “profane” or secular rituals, as not all rituals are necessarily religious in the conventional sense. The Confucian tradition in fact serves to efface the usual boundaries between the sacred and profane on this score, hence the title of Herbert Fingarette’s classic study, Confucius: The Secular as Sacred (1972).[2] Its conception of li, ritual propriety, was widened and deepened in application by Confucius to refer to far more than holy rituals or sacred ceremonies proper, bringing within its compass social norms, conventions, etiquette, rituals, gestures, in short, the myriad forms of scripted or patterned behavior performed on a routine basis in daily life thought sanctioned by tian and indicating the proper ways (daos) of living exemplified by cultural ancestors: According to Ames and Rosemont, ‘Li are those meaning invested roles, relationships, and institutions which facilitate communication, and which foster a sense of community [and common good]. The compass is broad: all formal conduct, from table manners to patterns of greeting and leave-taking…from gestures of deference to ancestral sacrifices, all of these, and more, are li.’ An animating assumption here is that social behavior should be choreographed according to divine or sacred archetypes (e.g., tian) or models as practiced by the Sages of the past and exemplified by the junzi. Generally speaking, li is the proper or right way to do things given a proper consideration of tradition by the right kind of person. Everyday social interaction can be suffused with a holiness or sacredness that comes with the actualization of dao provided it is correctly—harmoniously and spontaneously—performed by individuals possessed of ren. This results in human behavior being in accord with the rhythms and patterns of tian, with its sacred cosmological and natural processes (or daos). Li performed by individuals lacking in the requisite amount of ren is akin to mindless habit, it is lifeless, mechanical, meaningless, awkward, self-conscious or egocentric and profane. Li without ren, dao and yi account for the fetters or shackles of tradition, of the veneration of tradition for tradition’s sake. More specifically, processes of reification or ossification will infiltrate li performed by individuals not committed to self-cultivation, hindering the truly personal and creative appropriation of tradition. Li are a social grammar learned through (1) socialization and acculturation (beginning with the family), (2) through the emulation of the right kind of persons (e.g., the junzi and the Sage), and (3) through informal and formal appropriation of the material found in the ‘Five Classics’ (Odes, Documents, Rites, Changes, and Spring and Autumn Annals). The junzi critically and creatively appropriates the li of tradition assessed in the light of ren and yi (morally right or appropriate), a process that entails making the tradition one’s own.[3] Because of the integral relation between li and ren, it seems one might speak of the moralization of human behavior with Confucius, in other words, the scope of ‘the ethical’ is not confined to infrequent or special situations or acts but refers in some sense to the entirety of one’s conduct, insofar as all of one’s behavior is capable in differing degrees of influencing, shaping, or contributing to an ethical disposition, to ethical character. Confucian li may in fact have many of the conceptual resources necessary for constructing a normative model of ritual action and behavior that is transcultural or cosmopolitan as well as humanistic in a spiritual sense.

Holy communion strikes me as having some mythical and historical continuity with ritual animal sacrifices (which fall under the heading of ‘rites of communion and exchange’), a view reinforced by the fact that the ritual begins with the Passover Meal, which itself was established after the destruction of the Second Temple in Judaism (the latter including the sacrifice of salvation or peace—zevah shelamin—‘in which part of the animal was burned, the blood poured out on the altar or earth, and the remainder consumed in a communal meal,’ the non-human animal a substitute for the life of the human offeror). Like other such rituals, they both embody and symbolize complex relations between “the human” and “the divine” as part of a larger “grammar of devotion” (Diana Eck). The “communion” component is what sets the ritual apart from earlier sacrificial rituals, as it closes the gap, as it were, between the divine and human worlds, indeed, it effects a “union” between them, in Catherine Bell’s words. Nonetheless, continuity is evidenced in several dimensions, not least of all in the process of “consecration” or “sacralization:” “Consecration or sacrilization can make the offering participate in the divinity of the god to whom it is being given, even to the point, in some cases, that the offering may be thought to become the god itself.” As Catherine Bell further explains, not only is this seen in the Catholic doctrine of transubstantiation and Luther’s notion of “sacramental union” (‘consubstantiation’), it is found in “the offering and ingestion of the intoxicating sacred drink belché to feed the gods of the Lacandon Maya of Chiapas; the ritual consumption of peyote among some Native American tribes; and the Aztec sacrifice of prisoners of war to their sun god.” A process of “transubstantiation” generally is seen in rites of passage, when a person is said to change from one kind of being or person into another.

Ritual repetition in general, after Mircea Eliade, is said to provide an existentially necessary counterweight to the individual and collective experience of inexorable historical change understood as linear and teleological process, for ritual (as a ‘rhythm of imagery’) is close to if not emulative of the seasonal rhythms and patterned process of nature itself, defined by a tangible personal and communal experience of cyclical renewal and continuity. Stanley Tambiah uses the categories of the synchronic, continuous, and traditional in contrast to the diachronic, changing, and historical. The ritual process binds together a sociocosmic order, the natural order, and the communal order, and the belief that the human order should be an intrinsic and deliberate—meaningful—part of these larger and progressively surrounding orders.[4] This also resonates with Levi-Strauss’ argument that ritual seeks the resolution of the inherent conflict between nature and culture. The meaningful nature of ritual praxis as connecting individuals and communities to these various “orders” is clearly evidenced in the fact that, as Sudhir Kakar informs us, that “there is a widespread agreement among scholars in ritual studies that rituals are important to the formation of identity on cultural, social and personal levels.” Kakar fills out this commonplace yet possibly volatile function of ritual, the study of which must be sensitive to both its conservative and transformational functions in the formation, protection, and transformation of personal and communal identity:

“Psychologically speaking, the value of a ritual lies in the degree to which it contributes to strengthening a person’s sense of identity. This contribution can be to the individual aspect of personal identity, for instance, in rituals that encourage us to look and lend significance to our life cycle by emphasizing its beginning, transitions, end, as also its connection to nature and the cosmos. Or the strengthening may be of the group aspect of personal identity through rituals that accent our connection to others who belong to our family, caste, creed, tribe, nation and so on. These teach us our group’s sanctioned ways of doing things, heightening the sense of ‘us’ while at the same time excluding outsiders, ‘them,’ who do not know the right way. Another psychological classification can be between those rituals that defend or protect our sense of identity against a perceived danger by closing the psyche, and others that augment personal identity by opening the psyche to novel experiences. [….] The protective, conservative rituals can, of course, degenerate into rigid compulsions such as persistent hand washing while the enhancing, transformative rituals are in danger of slipping into delusional grandiosity.”

The formality and repetition (which is more than a matter of habit or mere routine) of ritual is testament to its significance, to its memorial power, to its links to hierarchy and authority. And this memorial power is enhanced by use of the human body in ritual, be it literally, symbolically, metaphorically, or mystically, for we are not acquainted with anything more intimate than our own bodies. In holy communion, we find a simple and brief aesthetic repertoire of sacred movements, gestures, and utterances: “the restriction of gestures and phrases to a small number that are practiced, perfected, and soon quite evocatively familiar can endow these formalized activities with great beauty and grace” (Bell). Holy communion is a microcosmic sacred performance with macrocosmic intimation and instantiation, at once a process of symbolic totalization and condensation.[5] As Bell explains, “The performative dimension frames a particular environment—such as an altar, arena, or stage—usually as a type of totalizing microcosm.” Ritual performance as formal patterns of behavior and action, often involves the performative uses of language (e.g., blessing, praising, purifying, consecrating). And the performance within a particular frame sets the ritual apart from the everyday and routine, marking off the sacred from the profane: “Acting ritually is first and foremost a matter of nuanced contrasts and the evocation of strategic, value-laden distinctions.” The value-laden distinctions are intrinsic to a ceremonial form which serves to deepen the individual’s ties to nature, the community, and the sacred.[6] Ritual allows us to act in a way so as to go beyond “the narrow, mundane world of daily existence:” “For a brief period of time, it lets us transcend what the Irish poet William Butler Yeats called the ‘desolation of reality’” (Kakar). This temporal transcendence might be conceptualized in spatial or ontological terms as well insofar as ritual transactions permeate or cross boundaries between the visible and the invisible, or simply the seen and the unseen. It is for these and other reasons that rituals are often said to “abolish” time (e.g., ‘Jesus Christ is risen today’) and space (e.g., any stream in which baptism occurs ‘becomes’ the river Jordan, in which case ‘space’ is abolished, but so too is historical time, or at least historical time becomes mythical or sacred time). Finally, “in the fixity of the ritual’s structure lies the prestige of tradition, and in this prestige lies its power.”[7]

* Catherine Bell’s memorial notice is found on this page (scroll down).

Image: Jacopo Bassano, The Last Supper (1542)

Notes:
[1] Charles Taliaferro has rightly remarked, “It is regrettable that mainstream, contemporary philosophy of religion has largely ignored the role of ritual in Christian life and practice. Very few standard anthologies today in philosophy of religion contain any material on prayer, the sacraments, meditation, fasting, vigils, religious hymns, icons, pilgrimages, the sacredness of places or times, and so on, and yet these play different roles in much religious life. A neglect of this terrain results in an excessively intellectual or detached portrait of religion.” Taliaferro proceeds to present us with an account of the religious virtues found in eucharistic liturgical practice. See his essay, “Ritual and Christian Philosophy,” in Kevin Schilbrack, ed. (2004).
[2] I therefore agree with T.C. Kline III, that, “For the study of ritual, few sources are as rich as the writings of Confucian philosophers. From the beginning of the tradition, Kongzi (Confucius) describes the good human life in terms of ritual practice. He focuses on the way participation enables us to become fully human.” Please see his essay, “Moral Cultivation through Ritual Participation,” in Schilbrack, ed. (2004).
[3] Here we might consider Michael L. Raposa’s argument that “religious ritual is very much about the way that human beings pay attention. Ritual organizes and directs the attention of its participants, supplying a distinctive frame for human experience. At the same time, the repeated engagement in ritual activity can be a discipline of attention, allowing participants gradually to develop certain power of perception.” See his essay, “Religious Inquiry: the pragmatic logic of religious practice,” in Schilbrack, ed. (2004).
[4] Hence Kevin Schilbrack’s observation that a “ritual is a metaphysical inquiry…to the extent that it aims at increased knowledge of being in the world authentically, that is, being in the world in the way authorized by the very nature of things.” On this account, ritual metaphysics means performers will act so as to sense they are “participating in the very patterns and forces of the cosmos.” See his essay, “Ritual Metaphysics,” in the volume he edited (2004).
[5] Nick Crossley states accordingly that “the value of the ritual, qua body technique [i.e., embodied forms of practical reasoning], is its capacity to ‘condense’ meaning and circumvent verbal negotiation. The meaning of the handshake, funeral rite, the wedding ceremony, etc. are multiple and complex.” See his contribution, “Ritual, Body Technique, and (Inter)Subjectivity,” in Kevin Schilbrack, ed. (2004). I’m tempted to say that ritual is to praxis, or perhaps better, to tradition, what metaphor is to language.
[6] Thus Crossley informs us that “many rituals manifest…an understanding of the social world to which the agent belongs, that is, of its values, beliefs, distinctions, social positions, and hierarchies. Furthermore, at the same time, they constitute the practical know-how necessary for the reproduction of the social world.”
[7] After the Confucian philosopher Xunzi, we could say that this “prestige” is wholly deserved owing to the fact that tradition is a repository of the rituals necessary for a process of moral cultivation that is sensitive to the various somatic, affective, and cognitive aspects of our open-ended human nature and moral psychology. It is ritual that allows us to overcome the unrestrained pursuit of our spontaneous inclinations and uninhibited (unreflective) desires, the root causes of chaos and conflict. It is ritual praxis that serves as a restraint on and a vehicle for the transformation of dispositions and desires, teaching us how to appropriately express our emotions and understand the nature of suitable desires. Learning through rituals, allows us to discipline our speech, gestures, and movements, all of which carry symbolic value, and all of which are integral to our learned capacity to act harmoniously with others and the cosmos itself. See Kline in note 2 above.

References:

Bell, Catherine. Ritual: Perspectives and Dimensions. New York: Oxford University Press, 1997
Bell, Catherine. Ritual Theory, Ritual Practice. New York: Oxford University Press, 2008 (1992).
Eck, Diana L. Darśan: Seeing the Divine Image in India. New York: Columbia University Press, 3rd ed., 1998.
Eliade, Mircea. The Sacred and the Profane: The Nature of Religion. New York: Harcourt, Brace, and World, 1959.
Eliade, Mircea. Myth and Reality. New York: Harper and Row, 1963.
Fingarette, Herbert. Confucius: The Secular as Sacred. New York: Harper Torchbooks, 1972.
Goldin, Paul Rakita. Rituals of the Way: The Philosophy of Xunzi. Chicago, IL: Open Court, 1999.
Hall, David L. and Roger T. Ames. Thinking Through Confucius. Albany, NY: State University of New York Press, 1987.
Kakar, Sudhir. Mad and Divine: Spirit and Psyche in the Modern World. Chicago, IL: University of Chicago Press, 2009.
Schilbrack, Kevin. Thinking Through Rituals: Philosophical Perspectives. New York: Routledge, 2004.
Smart, Ninian. Dimensions of the Sacred: An Anatomy of the World’s Beliefs. Berkeley, CA: University of California Press, 1996.
Tambiah, Stanley J. Buddhism and the Spirit-Cults in North-East Thailand. Cambridge, UK: Cambridge University Press, 1970.

Essential Reading: The Emotions

Sun, 25 Mar 2012 17:25 GMT

The following is a list of ten essential works on “the emotions.” Of course the belief that they are fundamental is the judgment of yours truly, although the authors listed here often cite each other, which speaks to their respective assessments of what is worthy among the plethora of titles now available on this topic. I have focused on philosophical approaches, yet all of the authors could be said to be cognizant of the relevant research in the natural and social sciences. I’ve left out the few titles one can find on the emotions in English from the vantage point of Asian philosophies, and several excellent works that treat the emotions and aesthetics are also conspicuously absent. Should anyone want the latest version of my bibliography on the emotions you can write to me for a copy.

Ben-Ze’ev, Aaron. The Subtlety of Emotions. Cambridge, MA: MIT Press (A Bradford Book), 2000.
de Sousa, Ronald. The Rationality of Emotion. Cambridge, MA: MIT Press, 1987.
Elster, Jon. Alchemies of the Mind: Rationality and the Emotions. Cambridge, UK: Cambridge University Press, 1999.
Fisher, Philip. The Vehement Passions. Princeton, NJ: Princeton University Press, 2002.
Goldie, Peter. The Emotions: A Philosophical Exploration. Oxford, UK: Clarendon Press, 2000.
Nussbaum, Martha C. The Therapy of Desire: Theory and Practice in Hellenistic Ethics. Princeton, NJ: Princeton University Press, 1994.
Nussbaum, Martha C. Upheavals of Thought: The Intelligence of Emotions. Cambridge, UK: Cambridge University Press, 2001.
Roberts, Robert C. Emotions: An Essay in Aid of Moral Psychology. Cambridge, UK: Cambridge University Press, 2003.
Solomon, Robert C. True to Our Feelings. New York: Oxford University Press, 2007.
Wollheim, Richard. On the Emotions. New Haven, CT: Yale University Press, 1999.

And in particular for my law friends: Bandes, Susan A., ed. The Passions of Law. New York: New York University Press, 1999.

Rural Women and the Limits of Law: Reflections on CSW 56

Fri, 23 Mar 2012 17:51 GMT

The United Nations 56^th Session of the Commission on the Status of Women (CSW 56) featured as its priority theme this year “the empowerment of rural women and their role in poverty and hunger eradication, development and current challenges.” This focus on rural women is long overdue, given that rural women comprise a quarter of the world’s population. Further, women provide 43% of the world’s agricultural labor, and they produce half of the world’s food for direct consumption. In fact, non-governmental organizations (NGOs) discovered some time ago that women—whom many refer to as the “architects of food security”—are key agents of development. One reason for this is that when women and girls receive income, they reinvest 90% of it in their families. In spite of their transformative potential to reduce hunger and poverty, women own less than 2% of land worldwide and they receive less than 10% of available credit.

As one whose scholarship focuses on rural livelihoods in both the United States and abroad, I was pleased to attend three days of the two-week CSW 56 event (February 27-March 9) as an observer for the American Society of International Law. As a former gender consultant for the United Nations, I was prepared for some of what I saw (e.g., bureaucracy), but the experience also held a few surprises. One thing that intrigued me about the “Session”—which is not a session at all but a dizzying array of “high-level round tables” and other meetings, panel discussions, “side events,” and “parallel events”—is that discussion of law was relatively absent.Furthermore, relatively little of the substance of these gatherings focused on rural women in a way that went beyond adding the modifier “rural” to whatever issue was being discussed.Rather than engaging with the circumstances that often distinguish rural women’s lives from those of their urban counterparts, many of the sessions seemed merely to “add rural women and stir” in relation to a well-recognized (and admittedly very important) women’s issue (e.g., female genital mutilation, child marriage). (Photo below left is of a panel on forced child marriage, which featured Marta Santos Pais, Special Representative of UN Secretary-General on Violence against Children and a victim of forced marriage from Sierra Leone). Other sessions did take up issues more central to rural livelihoods, including spatial removal from services and agents of the state, and women’s roles in agricultural production. The lack of significant engagement with the particular challenges facing rural women is reflected in the fact that none of the resolutions adopted by the Commission was about rural women. Nor did the Commission adopt any agreed conclusions on the priority theme of the 56^th Session.

In contrast to CSW’s somewhat anemic approach to the priority theme, Article 14 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) addresses the rights of rural women as a group. Indeed, CEDAW is the first human rights treaty to recognize rural difference, to acknowledge rural populations. While Article 14 guarantees to rural women all the rights enumerated elsewhere in CEDAW, the article also addresses rights specific to rural women. These include the right:

to be involved in “development planning at all levels”;
to benefit from “all community and extension services” among other types of education;
to “organize self-help groups and cooperatives in order to obtain equal access to economic opportunities”;
“to have access to agricultural credit and loans, marketing facilities, appropriate technologyand equal treatment in land and agrarian reform, as well as in land resettlement schemes”; and
“to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.”

Read more about Article 14, its history, and its implementation here, here, and here. Given the particular focus on rural women in this germinal women’s rights treaty, one might have anticipated considerable attention to the provision and its potential at CSW 56. Not so at the sessions I attended. I heard Article 14 mentioned only a couple of times.

It is a common bias among lawyers to presume law can solve problems and should be used to do so. Lawyers may be more skeptical about whether international law is effective at solving problems, attributing failures to the lack of enforceability of international law and the lack of respect for the rule of law, particularly in the developing world. As a ruralist, I have asserted that law is less effective at addressing problems in rural locales for some similar reasons. That is, when legal institutions and legal actors (including lawyers) are literally less present, laws on the books are less potent and the rule of law withers. All of these issues related to the relevance, authority, and efficacy of law were in play—sometimes explicitly, more often implicitly—in the attention CSW 56 gave to rural women.

Many of the participants in CSW 56 were not lawyers—nor were they UN or national officials.Rather, the vast majority of participants were associated with NGOs that have consultative status with the UN Economic and Social Council. Indeed, on each morning of CSW 56, officials with UN Women held a briefing for NGO representatives (also referred to as “civil society”). By the middle of the first week, UN Women announced that 1,598 NGO representatives from 358 NGOs were engaged in the annual gathering.

At these daily briefings, UN Women officials offered affirmations to NGO representatives, assuring them of the importance of their efforts. The UN officials also offered updates on what was happening at the “high-level meetings” that few NGO representatives had permission to attend. In spite of their exclusion from many of the events where member states were in direct talks, NGOs presented a robust and varied array of panel discussions. A tiny sampling of the topics and their sponsors follows:

• Women and Corruption: Grassroots Experiences and Strategies, Huairou Commission, UN Development Program

• Empowering Caregivers to Build Healthy Sustainable Communities, Huairou Commission, GROOTS International, International Council of Women

• Rural Women's Groups and Key Stakeholders Frame Joint Actions, Government of Norway, Huairou Commission, GROOTS International, UN Women, UN-Non Governmental Liaison Service, Baha'i International Community, Food and Agriculture Organization, International Fund for Agricultural Development, World Food Program, Landesa

• Rural Women Speak: Land, Health and Rights in Africa, FEMNET

• Rural Girls and Urban Migration: The Role of Communications for Development in Bridging the Divide, UN-HABITAT, Plan International, UNESCO, Women in Cities International

• Measuring Change for Rural Women in Sub-Saharan Africa, Global Fund for Women

Here is a link to the official programming, and a full listing of the NGO programming is here.

While most commentators in these parallel and side events presumed developing world contexts, a few offered reminders that biases against women persist in the developed world, too, including in relation to agriculture. In other words, Australia, Canada, the United States (just to name a few) all have work to do to empower women, including those in rural areas. (To be clear, unlike these other nations, the U.S. has never ratified CEDAW and is not bound by it).

This sampling of events demonstrates my earlier points about both the relative absence of attention to law’s role in solving the problems of rural women (and perhaps, by implication, all women), and also the shortage of programming regarding issues unique to rural women. To the extent that the particular concerns and circumstances of rural women were center stage, the focus typically related to agriculture. Among these were issues such as access to credit and means of marketing their products, the relative merits of “sustainable” agriculture versus intensive production agriculture, and an issue that more squarely implicates law: women’s right to own land. Officials from UN Women reported that diplomats participating in CSW 56 were sharing examples of legislation that would achieve land reform and improve land distribution schemes, but in the next breath they acknowledged the challenge of getting these laws implemented and enforced.

The need for legal reform arose in other contexts, too, but so did law’s limitations. For every comment I heard about the utility of Article 14 of CEDAW (or some other progressive national or international law) and the importance of legal and policy environments that were conducive to women’s empowerment, I also heard words of caution about the limits of law. Government and UN officials were more likely to tout the power of law, while NGOs were more likely to focus on village realities that often undermine the rule of law. Among those offering caveats regarding the potency of law were those who noted that many will be reluctant to invoke it—including criminal laws—in relation, for example, to forced child marriage. One African NGO representative stated,

Face reality ... be honest. Even in America, who tells the law? Maybe [the victims and their families] are illiterate ... [child marriage] is their custom. Who goes to tell the law except the child? And how can the child go tell the law?
This is where all of us come in ... if your NGO is interested in solving these problems. You go [to the village], watch the ways things are done and then talk to the educated locals [so that they begin to see the social and economic costs of the practice, e.g., child marriage]. And they will know they must do something.

This woman, like many others I heard over three days, extolled the importance of grassroots efforts to achieve the empowerment of women.

Wherever one might strike the balance between formal law on the one hand and local, grassroots efforts to educate and achieve cultural change on the other, few coming out of CSW 56 would dispute that both have significant roles in empowering not only rural women, but indeed all women.

Originally posted to Jurist.org; cross-posted to Legal Ruralism, IntLawGrrls, and the UC Davis Faculty Blog.

On Prometheus The Tempest Falls

Wed, 21 Mar 2012 21:33 GMT

The article, Physiological Steps Doctrine, published in 2009 in the Berkeley Technology Law Journal (and available free on SSRN), suggested that patents claiming aspects of human physiological processes are not upheld in court. Here is the abstract of Physiological Steps Doctrine:

In vivo conversion is a process, often metabolic in nature, wherein one substance, usually a chemical compound, is altered significantly by physiological pathways in the body into one or more different substances. For example, when a patient ingests a therapeutic drug, that drug is often converted by the natural physiology of the digestive system into one or more chemically different metabolites. The end products of in vivo conversion sometimes possess therapeutic efficacy. Many patent applications have claimed such therapeutic metabolites, either as compositions per se or as parts of methods of treatment. Although the United States Patent and Trademark Office has granted patent claims to such products generated by in vivo conversion of ingested drugs, and courts have noted the eligibility of such products as patentable subject matter, never has a United States court of final appeal upheld such a patent claim as valid, enforceable, and infringed. The unanimity of results in cases involving patent infringement triggered by in vivo conversion is striking. In fact, its very improbability suggests a common underlying explanation for why in vivo conversion does not ever seem to trigger patent infringement. Explanations based on inherency or a lack of evidence provide a satisfactory explanation for only a minority of in vivo cases. The "Physiological Steps Doctrine," which suggests that products and processes of in vivo conversion are unpatentable subject matter under United States patent law, offers an explanation that spans all in vivo conversion cases. Though the rationales offered to explain the results in a number of in vivo conversion cases are suggestive, there are several advantages for a more explicit recognition of the Physiological Steps Doctrine. Consistent with much international, European, and U.S. patent law, the Physiological Steps Doctrine provides a theoretical underpinning to explain the results in cases involving products and processes of in vivo conversion. This theoretical underpinning not only has explanatory power for interpreting previous case law but is also useful in predicting the outcome of future in vivo conversion cases. In addition, the Physiological Steps Doctrine increases the understanding of where inventions involving human beings, and the biological products and processes thereof, fit within the spectrum of patentable subject matter.

On March 20, 2012, the United States Supreme Court unanimously confirmed Physiological Steps Doctrine by holding invalid Prometheus Laboratories' patent claims to uses of in vivo conversion products in diagnosis and therapy. The decision, Mayo Collaborative Services v. Prometheus Laboratories, Inc. (U.S. 2012), may not only sound the formal death knell of in vivo conversion patents, but also cast severe doubt on the patent eligibility of wide swaths of the personalized medicine and genomics fields. LEXVIVO has discussed previous chapters in the Prometheus saga by the Supreme Court and the Court of Appeals for the Federal Circuit ("CAFC").

It would now be unsurprising if the Supremes were to vacate and remand the July 29, 2011, CAFC decision in The Association for Molecular Pathology, et al. v. Myriad Genetics, Inc., et al. (previously discussed on LEXVIVO) that upheld the patent eligibility of gene patents. If so, genome-derived DNA patents could be the next domino to fall in the recently turbulent game of patentable subject matter.

More biolaw is available at LEXVIVO.