Climate Change Conference

On Nov. 16-17, Penn will be holding a conference on climate change.

Here's the promo:

In the United States, the regulation of greenhouse gas emissions has recently moved from theory to reality. This has occurred not through centralized, federal law and regulations, but rather through decentralized action: state regulation and lawsuits brought by state and non-governmental organization plaintiffs seeking to compel federal regulation or, alternatively, to attach common law liability to firms whose processes or products generate greenhouse gas emissions. This Symposium brings together some of the world’s leading scholars to critically analyze the law, economics, and science of these recent decentralized responses to global warming. The Symposium not only marks the first time that a major American law review has devoted an issue to the regulation of global warming, but is also a uniquely international and interdisciplinary event, with papers and commentary not only by leading American legal scholars, but also by atmospheric scientists, economists, and political scientists from both the United States and Europe.

Bedtime reading

Welcome again, my children, to the communion of your race

Modern society has no shortage of ways to scare us. Technology brings the haunted house to life, for the ostensible purpose of frightening us to death. For my money, though, I'll take the raw power of a good, scary story. Try this one:

Depending upon one another's hearts, ye had still hoped that virtue were not all a dream. Now are ye undeceived. . . . Welcome again, my children, to the communion of your race.

Yes, it's good old Young Goodman Brown.

Happy Halloween!

Incognito

Happy Halloween. This is a brief post about disguises, though neither as scandalous as the New York Times' recent examination of women's Halloween costumes nor as sublime as Judge Noonan's Persons and Masks of the Law. Instead, I ask a simpler question: Professor, who are you in disguise?

With the rise of empirical legal studies and other interdisciplinary approaches in the legal academy, many teachers of law have suddenly acquired a professional incentive to engage in a Walter Mitty-like quest for some identity, any identity, that distinguishes them from every other holder of an unadorned J.D. I count myself among those members of the legal academy who lack official sanction in the form of a "real" doctorate. In other words, I have to fake it. But, hey, it's Halloween. It's time to play dress-up.

If you need some excuse to engage in this exercise, remember that it's the week of the annual recruiting combine. It's not a bad idea at all to ask faculty candidates about their intellectual role models, both within the law and outside it.

I suggested a little while ago that Leibniz might make a good role model. There is no shame in wearing Leibniz's mask, since he did go to law school and managed despite that to ensure that his life wasn't a bankrupt evil waste. But I now wonder whether I'd rather dress as Rasmus Rask for Halloween. He worked on laws, after all, albeit of the sort that no court or legislature could ever dictate. And Rask recognized -- and rationalized -- patterns in speech that now allow us to glimpse the very "atoms of language," the intellectual building blocks by which we assemble that greatest of human accomplishments, spoken language.

So. Now that I've told you my Halloween plans, you tell me. What's your disguise?

Editor's note: Posted simultaneously at Jurisdynamics and at MoneyLaw.

U.K. Government Warning on Climate Change

Excerpts from the new Stern Report:

The scientific evidence is now overwhelming: climate change presents very serious global risks, and it demands an urgent global response.

This independent Review was commissioned by the Chancellor of the Exchequer,reporting to both the Chancellor and to the Prime Minister, as a contribution to assessing the evidence and building understanding of the economics of climate change.

* * *

Warming will have many severe impacts, often mediated through water:

• Melting glaciers will initially increase flood risk and then strongly reduce water supplies, eventually threatening one-sixth of the world’s population,predominantly in the Indian sub-continent, parts of China, and the Andes in South America.


• Declining crop yields, especially in Africa, could leave hundreds of millions without the ability to produce or purchase sufficient food. At mid to high latitudes, crop yields may increase for moderate temperature rises (2-3°C),but then decline with greater amounts of warming. At 4°C and above, globalfood production is likely to be seriously affected.


• In higher latitudes, cold-related deaths will decrease. But climate change will increase worldwide deaths from malnutrition and heat stress. Vector-borne diseases such as malaria and dengue fever could become more widespread if effective control measures are not in place.


• Rising sea levels will result in tens to hundreds of millions more people flooded each year with warming of 3 or 4°C. There will be serious risks and increasing pressures for coastal protection in South East Asia (Bangladesh and Vietnam), small islands in the Caribbean and the Pacific, and large coastal cities, such as Tokyo, New York, Cairo and London. According to one estimate, by the middle of the century, 200 million people may become permanently displaced due to rising sea levels, heavier floods, and more intense droughts.


• Ecosystems will be particularly vulnerable to climate change, with around 15 -40% of species potentially facing extinction after only 2°C of warming. And ocean acidification, a direct result of rising carbon dioxide levels, will have major effects on marine ecosystems, with possible adverse consequences on fish stocks.

Overhauling the Red Cross after Katrina

This forum's coverage of Katrina and its aftermath has frequently discussed the restructuring of FEMA. (Here are more complete search results for Jurisdynamics' discussions of FEMA.) Now we are seeing the first hints of another target of institutional reform: the Red Cross.

As reported by the Associated Press, via ABC News

Sparked by criticism of its response to Hurricane Katrina, the American Red Cross released plans Monday for sweeping changes in the way it governs itself measures that include slashing its 50-member board by more than half and reducing the influence of presidentially appointed overseers.

Some of the changes in the 60-year-old governance structure can be implemented unilaterally. Others will require approval from Congress for revisions in the organization's congressional charter.

The changes, approved unanimously by the existing 50-member board of governors, result from an unprecedented six-month review spearheaded by a panel of outside experts.

Highlights of the changes that would need congressional approval include:

Explicitly delegating responsibility for day-to-day operations to the Red Cross' full-time professional management, with the board focusing primarily on longer-term strategic oversight.

Reducing the board to between 12 and 20 members by March 31, 2012.

Creating a single category of board members. Now, some are nominated by local chapters, others, including the board chairman, are appointed by the U.S. president.

Shifting seven of the presidentially appointed governors into a newly created Cabinet Council that will be advisory.

The board would also ask management to improve and expand awareness of the organization's "whistleblower" process among Red Cross employees and volunteers.

Closing Thoughts on Environmentalism vs. Democracy

Complexity in the Field
By J.B. Ruhl

Here in Florida we have a November 7 general election ballot item that would amend our state constitution to require that all new constitutional amendments receive a 60 percent vote, rather than the current requirement of only a simple majority. The ad campaign for the amendment (which, ironically, will require only a simple majority to pass) advises voters to "Protect Our Constitution," whereas the campaign against the amendment urges voters to "Trust The Voters."

This about sums up the two themes that have emerged from the ongoing dialogue on "Environmentalism vs Democracy." Many commenters advise taking a "protect the environment" approach that relies on representative democracy, administrative agency expertise, and thus more distance between voters and matters of environmental policy. But about as many commenters adopt the "trust the voters" theme and focus on ways to improve citizen understanding of the complex environmental problems of the day so they will vote to "do the right thing."

Yet another set of commenters posited that the question is not unique to the environment--that "X vs. Democracy" questions are ubiquitous. Anyone would agree that democracy has shown its dark side in many contexts, but I do think the environment is different in that it involves more than law regulating humans in their relation to other humans. The third party involved in this field is not human. This raises value questions that don't often arise in other policy contexts--see, e.g., the Endangered Species Act. It also introduces an astounding level of complexity attributable to a system that extends far beyond what humans do to or with each other. Environmental law, in other words, is fundamentally different from, say, tax law or family law, making it even more important that we get it right, however we go about deciding what it is.

Of course, as with those other fields, the tension between "more" or "less" democracy is playing out in the case of the US in a context of relatively robust democratic institutions (I said relatively). None of the commenters proposed an environmental autocracy.

Hmmmmmm...why not? There are examples, after all, of top-down autocratic governance producing sustainable environmental policies (see Jared Diamond's account in Collapse of the history of Japan's forest management policy). But one commenter suggested the overall tenor of the dialogue in the assertion that "empirically, democracy seems to do a better job of addressing environmental problems than every other system of human governance that's been tried." True? Probably, but the case may not be as compelling as we'd like to think. As the World Resources Institute suggests in a recent study, it's not clear that nations enjoying more democratic institutions also necessarily enjoy better environmental management. WRI points out, for example, that democracy often correlates with wealth, which often correlates with consumption, which often correlates with environmental stress. Still, although democracy can be a mixed bag for the environment, I think most of us will take that over the alternative and ride out the roller coaster of "protect our environment" versus "trust the voters."

With that, I'll close my posts on the topic and enjoy the ride.

Bear country (celestial version)

Which maketh Arcturus, Orion, and Pleiades, and the chambers of the south.

Job 9:9 (King James Version)

The return of standard time in the United States is the (sub)urban surrogate for the rising of Arcturus, an ancient annual landmark on the march toward winter. The culturally significant trio of Arcturus, Orion, and Pleiades will now dominate the winter skies of the Northern Hemisphere.

Arcturus comes from the Greek word -- Αρκτούρος -- meaning "bear guard." It and the constellations Ursa major and Ursa minor explain why we call the far north the Arctic, or modified Greek for "bear country."

Editor's note: You are invited to visit BioLaw for the terrestrial companion to this post.

Pestilence amid prosperity

Bordetella pertussis bacteria

Respectful Insolence reports that pertussis, also known as whooping cough, is back with a vengeance.

Inspired by Respectful Insolence's ongoing examination of vaccination laws and the ease with which parents are evading them, BioLaw is highlighting the findings of a new article, Saad B. Omer et al., Nonmedical Exemptions to School Immunization Requirements: Secular Trends and Association of State Policies With Pertussis Incidence, 296 J.A.M.A. 1757-63 (2006). This study of relaxed exemptions to state vaccination laws found that lax vaccination policies correlate a with much higher incidence of pertussis:

From 2001 through 2004, states that permitted personal belief exemptions had higher nonmedical exemption rates than states that offered only religious exemptions, and states that easily granted exemptions had higher nonmedical exemption rates in 2002 through 2003 compared with states with medium and difficult exemption processes. The mean exemption rate increased an average of 6% per year, from 0.99% in 1991 to 2.54% in 2004, among states that offered personal belief exemptions. In states that easily granted exemptions, the rate increased 5% per year, from 1.26% in 1991 to 2.51% in 2004. No statistically significant change was seen in states that offered only religious exemptions or that had medium and difficult exemption processes. In multivariate analyses adjusting for demographics, easier granting of exemptions (incidence rate ratio = 1.53; 95% confidence interval, 1.10-2.14) and availability of personal belief exemptions (incidence rate ratio = 1.48; 95% confidence interval, 1.03-2.13) were associated with increased pertussis incidence.

As Respectful Insolence concludes, "That's an incredible difference."

Like most other diseases, pertussis is ordinarily associated with poverty. Of the world's 30–50 million cases each year, 90 percent occur in developing country. Pertussis claims roughly 300,000 deaths each year, mostly children under one year of age. Wealthy countries have enjoyed the knowledge and the means with which they can control pertussis. It is an ongoing struggle, to be sure, because neither vaccination nor the disease confers lifetime immunity. Because the risk of neurological side effects increases with age, conventional pertussis vaccines are typically not administered to teenagers or adults.

But now pertussis has returned, with extreme vengeance, in wealthy enclaves such as Boulder, Colorado. Prosperity, so it seems, carries a steep price tag. It erodes the confidence of the wealthy in conventional medicine, to the point that distrustful parents would sooner expose their children to horrifying diseases than court the side effects associated with vaccines.

The less than polite term for this sort of person is an "altie." The core of the problem is "an anti-intellectual and antiscientific attitude that does not allow a little thing like evidence to sway one from one's belief in the power of alternative medicine." Aside from its prevalence at a somewhat higher level of wealth and income and its natural political habitat -- "alties" tend to lean left or far left in their politics -- this deep distrust of medical science shares much in common with creationism.

Just as the law should give no quarter to calls for teaching creationism in public schools (more in-depth analysis in this article), the law should tighten the terms by which parents seek and (increasingly) receive exemptions from vaccination laws. Bona fide religious objections to vaccination of course should be respected, and the law fares very poorly when it undertakes to gauge the sincerity or significance of religious belief. By the same token, states should not grant exemptions so freely that faddish reliance on alternative medicine can undermine the health of individual children and of entire communities.

Respectful Insolence and Kevin, M.D., characterize parents who refuse to vaccinate their children as guilty of child neglect. I'll go one step further. These parents' selfish decisions are hurting more than their own children. By defeating one of the core missions of public health -- that of conferring herd immunity from easily preventable communicable diseases -- these parents are harming entire populations. They are hurting other people's children. To put it coarsely but accurately, they are enemies of the people.

Shut up and watch

So it appears that NBC has rejected a commercial promoting the new Dixie Chicks documentary, Shut Up & Sing. According to Variety , NBC's commercial clearance department has stated that it "cannot accept these spots as they are disparaging to President Bush." Responding in Variety, the Weinstein Company, distributors of Shut Up and Sing, announced:

It's a sad commentary about the level of fear in our society that a movie about a group of courageous entertainers who were blacklisted for exercising their right of free speech is now itself being blacklisted by corporate America. The idea that anyone should be penalized for criticizing the president is profoundly un-American.

Very well, then. It's time to shut up and watch. Think of it as a Texas two-step:

1. Watch the disputed commercial for Shut Up and Sing below:
   
   


2. Now watch the preview for Shut Up and Sing in a popup window  .

Editor's note: Hat tip to Think Progress.

The law of love and gravity

such are the secret
outcomes of revolution!
that two women can meet
. . .
as two eyes in one brow
receiving at one moment
the rainbow of the world.

Adrienne Rich, To Judith, Taking Leave (1962)

The syllabus of the New Jersey Supreme Court's decision in Lewis v. Harris, No. 68-05 (N.J. Oct. 25, 2006) states the essence of this landmark case:

Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.

Dale Carpenter has provided excellent analysis of this decision. I write here to stress a single point that engages Jurisdynamics' central focus: illuminating the relationship between law and societal change.

This forum's original mission statement quoted the closing passage from Tennessee Williams's play, The Glass Menagerie, as inspiration for Jurisdynamics' various "[a]ttempt[s] to find in motion what was lost in space." In the wake of Lewis, I feel compelled to quote from Williams's introduction to The Glass Menagerie:

[P]urity of heart is the one success worth having. “In the time of your life -- live!” That time is short and it doesn’t return again. It is slipping away while I write this and while you read it, and the monosyllable of the clock is Loss, loss, loss, unless you devote your heart to its opposition.

Among life's challenges, none is more difficult to undertake, and none is more rewarding when achieved, than the mission of finding one person to love above all others, and persuading that person to love you in return. The law has no legitimate basis for regulating this quest on the basis of the race or sex of one's beloved.

The most obvious analogy supporting legal recognition of same-sex marriages is Loving v. Virginia, 388 U.S. 1 (1967). It's such an obvious analogy that it is futile to cite any of the hundreds, thousands of sources that make the connection. But just because an argument is obvious does not make it wrong. In this instance, the Loving analogy is complete.

I take Loving personally. It was decided before I reached six months of age. I came of age in the geographic center of the American region that historically sanctioned extraordinary, even violent, measures to prevent even the hint of interracial mingling. I was born where all my immediate ancestors had been born themselves, an island at the eastern edge of World Island. My wife traces most of her ancestry to an island at the western extreme. The suggestion that these circumstances of ancestry, none of which either of us chose or could ever control, could bar us from being married is singularly offensive.

And so too is the suggestion that the sex of the members of a committed couple should determine that couple's entitlement to full recognition and protection under the law.

In spite of all this, it appears that one national political party seems hell-bent on devoting the final days of the 2006 campaign to condemning the mere suggestion of same-sex marriage. For shame. A party that has nothing affirmative to offer voters besides an incitement to hate deserves no votes. To oppose equal dignity for same-sex couples is an expression of revulsion. Decent people do not express revulsion at their friends or their families. Over time decency -- and love -- will prevail.

Those who would believe that they can leverage revulsion at same-sex relationships into immediate political advantage might retrieve their Dixie Chicks albums from cold storage. The second track on the Chicks' second album says it all:

Nobody runs from the law now baby
Of love and gravity

Dixie Chicks, "If I Fall You're Going Down With Me" , on Fly (1999).

Religiously inclined Republican voters might consider this comparison. Nearly two decades ago, a theocracy condemned Salman Rushdie to death for writing passages like the following:

To get his mind off the subject of love and desire, he studied, becoming an omnivorous autodidact, devouring the metamorphic myths of Greece and Rome, the avatars of Jupiter, the boy who became a flower, the spider-woman, Circe, everything; and the theosophy of Annie Besant, and unified field theory . . . . He filled himself up with God knows what, but he could not deny, in the small hours of his insomniac nights, that he was full of something that had never been used, that he did not know how to begin to use, that is, love.

Salman Rushdie, The Satanic Verses 23-24 (1988). To put it in words that should be familiar to a significant chunk of the Republican base, but evidently mean nothing in practice:

If I speak in the tongues of men and of angels, but have not love, I am a noisy gong or a clanging cymbal. And if I have prophetic powers, and understand all mysteries and all knowledge, and if I have all faith, so as to remove mountains, but have not love, I am nothing.

When this generation shall have passed from this earth, God and/or posterity will judge us as severely for our unwillingness to confess the legitimacy of homosexual love as we today judge those who resist the rightness -- legal, moral, and spiritual -- of Loving v. Virginia. Yesterday Massachusetts, today New Jersey, tomorrow America from sea to shining sea.

Call me

No, this isn't homage to Debbie Harry. I wish it were. Instead, I'm calling attention to an attack ad on Senate candidate Harold Ford that plays on one of the oldest and most virulent forms of American racism. Click here or on the image at left to view the ad, courtesy of the New York Times.

To his credit, Representative Ford launched this great response:

You know your opponent is scared when his main opposition against you is, “My opponent likes girls.”

All of which, as fate would have it, coincided in time and cosmic space with this important New Jersey Supreme Court decision.

Multimedia addendum to "Pandemic Flu Update"

Elizabeth Weeks's recent post, Pandemic Flu Update, referred to an audio webcast summarizing a recent report by Johns Hopkins researcher Lori Uscher-Pines. You may now listen to that webcast without leaving Jurisdynamics:

  Play the Uscher-Pines webcast

Pandemic Flu Update

The World Health Organization on October 23, 2006, reported on the urgency of worldwide efforts to step up vaccination for flu season. Supplies are billions short, and failure to increase vaccine production could unnecessarily expose billions of people to a pandemic flu outbreak. The vaccine shortage implications for the flu season carry even more serious implications for a potential avian flu outbreak. U.S. HHS Secretary Michael Levitt supported the WHO recommendations, noting the spread of avian flu to 40 additional countries and 250 human infections in 10 countries in the last year.

A recent report by Johns Hopkins researcher Lori Uscher-Pines echoed the WHO concerns regarding global preparedness. A survey of 40 nations' flu plans, ranging in length from 10 to 500 pages long, revealed particular weaknesses in setting priorities. For example, most countries' plans prioritized vaccines to children just after health care workers, despite WHO's advice against that approach. Listen here.

Another recent report from MIT and Harvard researchers suggests that, contrary to previous simulation studies, air travel restrictions could play an important role in containing the influenza spread. The report is the first empirical evidence for role of airline travel in containing spread of influenza. Researchers analyzed existing CDC data on weekly influenza and pneumonia mortality to measure rates of inter-regional spread and timing of oubreaks. They also compared data on influenza mortality during the post-9/11 flight restrictions and subsequent depression of air travel. Even a brief air-travel shutdown of a few weeks could allow time to develop and distribute vaccines and implement "social distancing" measures such as closing schools without imposing a severe economic impact of the air travel.

Although waning media coverage has prompted some to think that the threat of a pandemic has passed, health experts warn that "[n]othing could be further from the truth," according to the World Health Organization, deaths from avian flu have increased from about one every nine days last year to one every four days so far this year. 73 of the 108 confirmed cases this year have been fatal, compared with 42 of 97 cases all of last year. Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota, "We're as worried now as we ever have been."

The Baltimore Sun on Friday, October 20, published a special report on the impact of the 1918 flu pandemic on Baltimore. Over 3,000 Baltimore residents dies in the pandemic by Nov. 1, 1918. The report contains multiple articles and multimedia features.

California Property Rights

Prop. 90 is an initiative measure on the California ballot. It is partly addressed to the "public use" issue raised in the Supreme Court's Kelo decision. It also makes a variety of other changes in eminent domain law.

More significantly, Prop. 90 also addresses regulatory takings. It requires compensation whenever a government action significantly decreases property value, subject to some exceptions. One of the exceptions is a grandfather clause for existing rules; another allows regulation for public health or safety.

Prop. 90 is remarkably ambiguous and vague. Thus, if it is adopted, its effect on environmental regulation in California is difficult to predict. If given broad sweep by the California courts, it could make certain kinds of environmental regulation substantially more difficult. At the very least, Prop. 90 will be a fertile source of litigation, keeping lawyers busy and well paid for years to come.

To find out more about Prop. 90, you might want to look at the white paper (here) issued by the California Center for Environmental Law & Policy (CCELP).

Swing hard in case you hit the ball, Justice Scalia

Justice Antonin Scalia, a meticulous judicial craftsman? Don't believe the hype. This forum has already excoriated Justice Scalia for pandering to creationists. And now Ratio Juris trashes Justice Scalia for muffing the rules of baseball. The upshot? Antonin Scalia is one of the most careless jurists ever to sit on the Supreme Court.

Daybreak to midnight in the courtroom of good and evil

At the risk of stirring the ire of those who condemn the posting of ancient manuscripts and articles on SSRN, I am reviving an exercise I conducted on behalf of Constitutional Commentary seven years ago. The coincidence of the new ABC drama Daybreak with the New Jersey Supreme Court's impending decision in a closely watched controversy over same-sex marriage drives me to reach deep in my scholarly archives.

Time travel and chaos theory are staples of science fiction. Daybreak extends this reliable if somewhat worn tradition. So let's apply time travel and chaos theory to constitutional law. What consequences -- positive, negative, unintended -- would flow from the stomping of a single development in American constitutional history?

Back in 1999, I took aim at the Supreme Court cases that have motivated many politically active American Christians to act in the public square as though their faith had no relevance after birth and before death. I speak, of course, of cases such as Roe v. Wade and Eisenstadt v. Baird. Now as then, I'll indulge those who think that these cases not only were wrongly decided, but also underlie many of the social pathologies that allegedly afflict the country. Let's ponder what might have been if the Supreme Court had never decided either Roe or Eisenstadt. Just remember this: Degeneracy, like beauty, is in the eye of the beholder.

Want to know the outcome? Meet me at midnight in the courtroom of good and evil.

Browser wars

Microsoft has just released Explorer 7.0. Mozilla is responding with Firefox 2.0. In the words of Big Mouth Media, the two dominant browsers are duking it out.

Just for fun, I hereby report Jurisdynamics' all-time OneStat report for browser share:

Internet Explorer	13,911	53.64%
Mozilla (Firefox)	10,437	40.25%

The newest release of Firefox might help the readership of this weblog tip Microsoft's Internet Explorer below 50 percent. Fascinating.

No, I don't have a dog in this fight. But I do have a fox:

The adaptive origins of creationist mythology

«   Part 9 of the series, Genesis for the rest of us   »

The impending publication of Richard Dawkins's The God Delusion is as good an excuse as any other for reviving the slightly stalled Jurisdynamics series, Genesis for the rest of us. In addition, Kristi Bowman and Andrew Torrance have been writing at BioLaw about creationist pressure on science education and the legal system in general. It's time to rejoin the fray.

To recap: My most recent installment, Mother superior, explored the misogynistic nature of Genesis' second creation myth and the implications of that misogyny for contemporary environmental policy. Before diving into Genesis' third creation myth -- that of Noah, the ark, and the flood -- I believe that this series would benefit from an extended detour into an exploration of creationist mythology as an adaptive exercise in its own right. Strangely enough, the rise and persistence of creation myths can be construed as a backhanded way of weaving religion into a consilient overview of evolutionary theory.

One smart dinner party. These luminaries dined together in 2002, courtesy of Edge.Org. Standing: Steven Pinker, Jeff Bezos, John Brockman. Seated: Katinka Matson, Daniel C. Dennett, Richard Dawkins, W. Daniel Hillis. Photo credit: Edge.Org

The God Delusion and Daniel C. Dennett's Breaking the Spell: Religion as a Natural Phenomenon pose the question as bluntly as it has ever been posed: Why would anyone believe in God? In a 2004 book by that name, Justin Barrett tried, thoughtfully and successfully, to answer that question. Barrett's answer, delivered much less confrontationally than Dennett's similarly reasoned conclusion, is that religion is a product of human adaptation, which itself is guided by the evolutionary process of natural selection. Barrett's conclusion, in turn, had been foreshadowed by earlier works such as Pascal Boyer, Religion Explained: The Evolutionary Origins of Religious Thought (2001) and E.N. Anderson, Ecologies of the Heart: Emotions, Belief, and the Environment (1996).

Stripped of all mystery, religion is human behavior. Accordingly, its origins and significance can be illuminated by evolutionary analysis. As Stewart Guthrie wrote in Faces in the Clouds: A New Theory of Religion (1993), "religion . . . is continuous with other systems of thought and action such as science, art, and common sense." On closer examination, religious belief appears to be adaptive. In other words, religion persists because at some point in the natural history of the human species, religious belief conferred an advantage at the margin. Believers lived and reproduced. Their counterparts fared less well.

Thanks to the adaptive instincts that enabled our ancestors to survive and reproduce more successfully at the margin, we humans systematically interpret ambiguous evidence as being caused by a living agent rather than an abiotic alternative. Put simply, we never wonder what went bump in the night, but who. This cognitive bias prompts proactive responses to threats to survival and to opportunities to reproduce.

In other words, the portion of the human brain dedicated to agency detection has taken sides in its own variant of Pascal’s wager. Unless the cost of a proactive response is prohibitive, humans do well to respond to ambiguous stimuli as if some sort of agent existed. Betting in favor of a living agent often spells the difference between survival and death. Or it might reveal a previously undetected reproductive opportunity.

On this account, religion condenses a wide range of unseen agents into a single anthropomorphic deity or a single group of anthropomorphic deities. A creationist account of origins, such as the sacred narrative shared by Judaism, Christianity, and Islam, seems singularly appealing to the adapted mind. Rock-a-my-soul in the bosom of Abraham.

This explanation seems far more persuasive than a frequently offered alternative: that religion appeals because it comforts the believer. Comfort? Like hell. Entire swaths of religious dogma are dedicated to scaring the bejesus out of adherents. Believers might try to persuade themselves that the reward of faith is a guarantee of eternal life. In evolutionary terms, the price of faith is eternal vigilance . . . which in turn might lead to a marginally longer life with enhanced reproductive prospects. But evolution makes no promises. Time and chance happen to them all.

Whatever the merits of his other ideas, Karl Marx totally misunderstood the origins of a belief in God and the impact of that belief on broader human society. Stay awake and watch, therefore, for you know neither the day nor the hour of the coming of the Lord. Religion is not the opiate of the masses, but rather the ephedrine.

Next in this series: Born to believe.

One hundred days

Napoleon ruled France for a hundred days between Elba and Waterloo. Franklin Roosevelt and his New Deal radically transformed America in a hundred days. By those benchmarks, Jurisdynamics' passage of this milestone hardly warrants notice. But I would be remiss in failing to thank my fellow bloggers, here and throughout the entire Jurisdynamics Network, and most of all our 30,000+ readers for the thrills I've enjoyed in the past hundred days.

Themes from "Environmentalism vs. Democracy"

Complexity in the Field
By J.B. Ruhl
October 23, 2006

Having culled through comments and e-mails prompted by my post on Governing the Ecocommons, which asked whether environmentalism and democratic values are in conflict, several overarching themes emerged as diagnoses of the condition and prescriptions for recovery. Below are some very quick summaries of factors commenters identified as contributing to disconnects between the two value sets. None of them is particularly new on its own, but collectively they strike me as quite consistent with the conception of the problem as being how to design one complex system (environmental law) to regulate the way another set of complex systems (economy and society) behaves toward yet another complex system (environment). They appear in no particular order:

Experts: A number of commenters observed that one barrier to matching environmental and democratic values is that the communication of environmental conditions to democratic institutions generally demands some level of involvement from experts, whereas those institutions may not always be receptive to either (a) listening to experts or (b) letting experts make the final decisions.

Scale: Transboundary effects abound in environmental settings, given that environmental conditions do not obey political boundaries. This opens up the probability that actors at one political scale (e.g., local) will reach decisions causing externalities or other problems at other scales (e.g., state). The fact that the decision may be derived from democratic processes and make perfect sense at the scale at which it is made does not avoid or mitigate the trans-scale effects.

Cumulative Effects: Many environmental issues involve the aggregation of discrete actions each of which has small effects, but which accumulate to have significant effects over larger geographic scales. This makes it difficult for the individual actor participating in democratic processes to appreciate that he/she/it is contributing to a significant and costly environmental degradation.

Short Term Bias: Many decisions about the environment are decisions about intertemporal choice requiring us to decide how and by how much to take into account long-term and next-generation interests. Unfortunately, few "rational actors" exist in reality to apply perfectly designed discount rates taking all possible future trajectories, costs, and benefits into account. If the idea is to achieve a sustainable ecological base into next generations, these commenters believe democratic institutions frequently are making poor intertemporal decisions.

Industry Power: Many commenters derided "industry" as seeding misinformation in democratic institutions and using their relative power (i.e., relative to environmental groups) to either influence outcomes in democratic processes or shield certain issues from such processes. Of course, one has to expect the interests that are targets of regulation to exhibit some "push back" in the coevolutionary process. The concern here seems to be that some interests have become quite successful at it.

Environmental Groups: Many commenters (frequently those who also derided industry) were critical of major national environmental groups as having "lost their way" in terms of putting fundraising above mission and engaging in scare tactics that have desensitized democratic institutions to their message.

People Just Don't Get It: Several commenters put much of the blame on a consumption-oriented society that just won't put its money where its mouth is. On the one hand, surveys show high levels of support for the environment and "government doing more" about the problems, but in terms of dollars and votes the environment often fades into the background. Citing Jared Diamond's Collapse (mentioned many times in my posts), they suggest we might be like the many other societies in the past that did not put two and two together on their environmental conditions before it was too late.

Next: A post summarizing the main themes regarding solutions.

Shortia galacifolia (Oconee bell)

It's been a while since Jurisdynamics last featured a taxon of the week. There's no land as dear as what we knew in our formative years (early adolescence and a few years on either side of it). On the assumption that can always go home again if you really want, I'll reach back to a signature plant of Georgia and its neighboring states.

The southern Appalachians aren't quite Hawaii or the California floristic province, but they host their share of biological diversity. Shortia galacifolia, known commonly as the Oconee bell, is one of the rarest wildflowers in the United States. It is found in only seven counties in Georgia and the Carolinas. Oconee bells favor shady woods and stream banks. They are most abundant in rich soils in the cool, humid environment of river ravines.

As with many other taxa in the southern Appalachians (or anywhere else, really), Oconee bells are most threatened by habitat destruction. According to one account, the plant disappeared from sight for nearly a century after the Frenchman Andre Michaux identified S. galacifolia in 1788. Botanists no less renowned than Asa Gray (known for his correspondence with and influence on Darwin) and John Torrey searched in vain for another specimen of Michaux's plant. "[T]he elusive plant, like the Holy Grail, began to take on mythical proportions. Finally, after nearly 100 years, a 17-year old boy named George Hyams rediscovered the plant in 1877 in McDowell County, N.C."

None of this stopped South Carolina and the Duke Power Company from flooding 4,500 acres in the area in 1973. One can only hope that Lake Jocassee is worth the human and natural history buried beneath this reservoir. In addition to drowning an untold number of endemic plants, the Jocassee project occasioned the removal of a church that figured in the filming of Deliverance.

Fortunately, Oconee bells fare quite nicely when transplanted. The wild provenance of the Rabun County population, the only one found in Georgia, is fiercely disputed; detractors argue that the Rabun colony of Oconee bells is comprised of deliberate transplants. As Shortia, Oconee bells now appear on Wikipedia's list of garden plants. Domestication is hardly an option for most plants with such a restricted range, and garden-variety Oconee bells are no substitute for their wild cousins.

Oconee bells retain enormous cultural value. Under the name "Acony Bell,"  S. galacifolia has attained great fame thanks to Gillian Welch's 1996 debut album, Revival:

The fairest bloom the mountain knows
Is not an iris or a wild rose
But the little flower of which I'll tell
Known as the brave acony bell

Just a simple flower so small and plain
With a pearly hue and a little known name
But the yellow birds sing when they see it bloom
For they know that spring is coming soon

Well it makes its home mid the rocks and the rills
Where the snow lies deep on the windy hills
And it tells the world "why should I wait
This ice and snow is gonna melt away"

And so I'll sing that yellow bird's song
For the troubled times will soon be gone

And of course, it is impossible to speak of Gillian Welch or Revival without mentioning "Annabelle,"  perhaps the single finest example of contemporary musical naturalism:

We lease twenty acres and one Ginny mule
From the Alabama trust
For half of the cotton and a third of the corn
We get a handful of dust

We cannot have all things to please us
No matter how we try
Until we've all gone to Jesus
We can only wonder why

I had a daughter called her Annabelle
She's the apple of my eye
Tried to give her something like I never had
Didn't ever want to ever hear her cry

We cannot have all things to please us
No matter how we try
Until we've all gone to Jesus
We can only wonder why

When I'm dead and buried
I'll take a hard life of tears
From every day I've ever known
Anna's in the churchyard she got no life at all
She only got these words on a stone

We cannot have all things to please us
No matter how we try
Until we've all gone to Jesus
We can only wonder why

Update (October 30, 2006): I hasten to add this spectacular image of an Oconee bell bud, taken by Rich Stevenson on March 19, 2005, and posted at pbase.com:

A speed bump on the Road Home

N.J.L.S., writing for First Movers, the Jurisdynamics Network's student-managed affiliate weblog, has logged an important note on the funding of post-Katrina recovery activities in Louisiana.


The gist of N.J.L.S.'s post is that $10 billion in congressional funding has been whittled down, realistically, to a mere $645 million for critical infrastructure. In a maneuver that I criticized in its inception and acknowledged with a sense of frustration and resignation when it came to pass, the Louisiana Recovery Authority has already earmarked $200 million of that shrunken post for Entergy New Orleans, the city's incumbent electric utility. Now 11 disaster-stricken parishes get to play with a total of $445 million for critical infrastructure. Among those parishes is Saint Bernard's Parish, which occupies a low-lying area on the Gulf shore and exhibits very few visible signs of recovery.

Why does this matter? Because the absence of critical infrastructure has the potential to trigger a cascade of irreversible legal and economic decisions, all traceable to a restriction on Road Home financing. The fear is one that Rachel Godsil initially reported, and one N.J.L.S. now echoes: if Road Home financing is limited to buying out homes in places lacking a critical mass of returning homeowners, with no flexibility for reinvesting in these neighborhoods, then initial allocations of financial assistance for critical infrastructure will dictate which areas are designated for elimination in an inevitable reduction of New Orleans' urban "footprint."

An urban planner's proposed "footprint" is a euphemism for someone else's old neighborhood. A metropolitan area that may never regain even half its pre-Katrina population will almost certainly occupy a smaller footprint. Which neighborhoods to zero out will be a difficult decision. We can't eliminate the pain altogether. But we should do everything we can to ensure that the process is not structurally unfair. Allowing decisions on reconstruction versus demolition to be dictated ex ante by irreversible commitments of scarce public funds, in a political culture not historically known for its wisdom or its sense of evenhanded justice without regard to race or class, threatens to foreclose the "road home" for Louisiana's most vulnerable citizens.

Elizabeth Weeks on disasters and health care policy

The impact of natural disasters on health care policy remains poorly documented. Newly arrived Jurisdynamics Network contributor Elizabeth Weeks is establishing herself as a leading expert in this field. Two of her recent papers attest to her prowess:

1. After the Catastrophe: Disaster Relief for Hospitals, 85 N.C. L. Rev. (2006):

Disaster planning for health care providers following the September 11, 2001, terrorist attacks and, more recently, Hurricane Katrina, focuses on preparing hospitals and other emergency services to respond to victims' medical needs. But little attention has been paid to the challenges that providers would face resuming normal operations after responding to the catastrophe. A large-scale catastrophe could create unprecedented demand for health care and emergency services. Hospitals already struggle to fulfill the high demand for and high costs of emergency care. Following a major disaster, hospitals would face additional financial challenges. Strained capacity and financial reserves, may force hospitals to close, just as occurred with the two largest public hospitals in New Orleans, following Katrina. To prevent the initial crisis of a terrorist-related or natural disaster from spiraling into a lasting crisis in access to medical care, this Article proposes a three-part federal disaster relief program for hospitals to be implemented before the next catastrophe.

2. Lessons from Katrina: Response Recovery and the Public Health Infrastructure, 10 DePaul J. Health Care L. (forthcoming 2007):

Following the catastrophic events of 2005, including Hurricane Katrina, Pakistani Earthquakes, bird flu transmission to human populations, and the real threat of bioterrorism, government struggled in the aftermath to make sense of the devastation and human displacement. Medical teams, try as they might, are not always prepared and alerted as to how best investigate and quickly render assistance. [DePaul University's Symposium on Shaping a New Direction for Law and Medicine: An International Debate on Culture, Disaster, Biotechnology & Public Health] addressed the role of government, policy-makers, community organizations, the World Health Organization and other key players in properly situating and providing relief to respond to these issues. My paper describes both the immediate and lasting impact of Hurricane Katrina on the Gulf Region's health care infrastructure and recommends aproaches to prevent similar devastting effects in future disasters.