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In the World of Law Blogs where the Shadows lie.

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The mark of Cain

Of all the characters in the Hebrew Bible, none has fascinated me as much as Cain. For this reason and others, I posted an excerpt from Steinbeck's East of Eden on this forum. One day I might even write a law review article on Cain. Mayhap.

Left: Max McGee beats Willie Mitchell for the catch in Super Bowl I
Right: Don Beebe catches Leon Lett for the strip in Super Bowl XXVII

But first a little digression. Those who know me know that I am as old as the Super Bowl, at least in the sense that I will turn XLI years old sometime in calendar year 2007. Those who know me really well know that the third or fourth full week of January always brings me some measure of emotional turmoil. For some reason, the Super Bowl seems nearly always to coincide with a memorable event of some sort in my life, for good or for ill. The Super Bowl I'll always remember watching took place on January 31, 1993. Lance and Jayne Bultena came over to what was then my home in Falls Church, Virginia, where we watched the defining play of Super Bowl XXVII: Bills receiver Don Beebe stripping the ball from Cowboys defensive tackle Leon Lett at the end of what appeared almost certain to be a 64-yard fumble return. The touchdown Lett would have scored would have pushed the score to 59-17 in the Cowboys' favor for a Super Bowl record. But Beebe, his team's fate beyond recovery, never gave up on the play. The resulting touchback remains the most memorable Super Bowl play that had no impact whatsoever on the outcome . . . and immeasurable inspirational impact on viewers.

And so I find myself on the Sunday before the Super Bowl, as much in need of a sermon as in the mood for one. Here it is.

Let's begin with the text of Genesis 4:10-15 (RSV):

[10] And the Lord said, "What have you done? The voice of your brother's blood is crying to me from the ground. [11] And now you are cursed from the ground, which has opened its mouth to receive your brother's blood from your hand. [12] When you till the ground, it shall no longer yield to you its strength; you shall be a fugitive and a wanderer on the earth."

[13] Cain said to the Lord, "My punishment is greater than I can bear. [14] Behold, thou hast driven me this day away from the ground; and from thy face I shall be hidden; and I shall be a fugitive and a wanderer on the earth, and whoever finds me will slay me."

[15] Then the Lord said to him, "Not so! If any one slays Cain, vengeance shall be taken on him sevenfold." And the Lord put a mark on Cain, lest any who came upon him should kill him.

This is one of the most misunderstood passages in the Hebrew Bible. (All of Genesis, alas, seems particularly prone to misinterpretation.) Some Protestant denominations and the Church of Latter-Day Saints have struggled to overcome their history of treating this passage as a justification for physical and spiritual abuse of blacks. Misinterpretations of the so-called "curse and mark of Cain" do not concern me. It is patently obvious that the mark of Cain is a protective emblem -- indeed, the last gift that God confers on Cain before the first-born son of Adam and Eve "went away from the presence of the Lord, and dwelt in the land of Nod, east of Eden."

The true significance of the mark of Cain is that it marks the first instance in the Judeo-Christian canon in which a human protests to God, "No. That is unjust. That punishment is more than I can bear." Among the readers of this forum, I am quite certain that I rank far, far behind Marc Roark (of Livres-Loi) and "Red Lion" in the firmness of my religious faith. I question whether any rational, let alone benign, order rules this world -- except in one respect. I am convinced that firmly reaching the contrary conclusion -- that is, requiring us as humans to live without hope, without redemption, without some sense that justice will prevail -- would inflict greater emotional pain than any of us could bear. The phenomenal ability of human beings to overcome more pain than they can bear may be the only evidence of God that I am able and willing to credit.

And for that reason, if no other, I consider the mark of Cain a blessing rather than a curse. In like fashion the Super Bowl comes to me every year at a particularly difficult time. Every year, between the commercials, the halftime show, and the postgame hysterics, I look for plays that remind me of Don Beebe. As Cain learned, it is a sign, however hard to discern, of divine mercy that life does not punish us in ways we cannot bear. And the Super Bowl, my favorite midwinter ritual, emerges every year like the rainbow after the flood. Even when it's a blowout, the players don't give up. And neither should we. Suffice it to say that I'm pleased to treat the Super Bowl as my personal mark of Cain.

The Situationist

A new blog, The Situationist, came online this week. This post explains the new blog's mission:

Part of a larger effort, including the Project on Law and Mind Sciences at Harvard Law School . . . , this blog will provide commentary by social psychologists, law professors, policy analysts, practicing attorneys, and others connected to law and mind sciences. Our posts . . . will address current events and law and policy debates, informed by what social scientists are discovering to be the causally significant features around us and within us that we believe are irrelvant or don’t even notice in explaining human behavior, that is “the situation.”

“Situationism” represents a striking contrast to the dominant conception of the human animal as a rational, or at least reasonable, preference-driven chooser, whose behavior reflects stable preferences, moderated by information processing and will, but little else. Different versions of the rational actor model have served as the basis for most laws, policies, and mainstream legal theories, at the same time that social psychology and related social scientific fields have discovered many ways in which that model is wrong.

The Situationist, then, will be a venue in which the powerful, influential, but incorrect conceptions of the human animal come up against more accurate, if surprising and unsettling, realizations about who we are and what the law is and ought to be.

Law Blog Central will preview The Situationist. The initial posts are fascinating. Jurisdynamics will be monitoring The Situation very closely.

Capitalist realism

Margaret Bourke-White, At the Time of the Louisville Flood (1936-37), reprinted in Picturing the South: 1860 to the Present (Ellen Dugan ed., 1996). Hat tip to Arse Poetica, via Ann Bartow of Feminist Law Professors.

Modeling "Wicked" Cumulative Effects

Cumulative Effects
By J.B. Ruhl

In several posts earlier this month I explored the difficulties presented by "cumulative effects" problems such as global climate change. Here I outline a model of the essential characteristics of the most complex cases of such effects--the "wicked" problems that present the hardest management challenges for social, economic, and legal institutions.

• Massive source agent numbers: Cumulative effects problems are likely to be easier to manage when the number of agents contributing to the effects is small. We have a realtively small set of coal fired power plants emitting greenhouse gases, for example, but a much larger set of agricultural land uses contributing to nutrient runoff affecting the "Dead Zone" in the Gulf of Mexico. No surprise that we blanket power plants with regulations (some say too much, others say not enough) whereas farms are relatively untouched by environmental regulation, if not deliberately left alone.
  

• Nonlinear aggregation thresholds: The aggregation of effects as agent numbers increase and agent behavior consequences accumulate may not exhibit proportionalality over time and space. The effects, may begin to exhibit synergistic interactions that amplify or impede the cumulative effects or reveal new qualities to the effects. These "jumps" in quantity and quality may present themselves at relatively discrete thresholds along the way. Predicting when these nonlinear thresholds will occur is likely to be very difficult.
  

• Source agent resistance to change: The behavior of the source agents leading to the cumulative effects may may have nothing to do with wanting to cause the effects, but rather the effects may be the incidental consequence of behavior that is motivated by some deeply rooted incentives or set of circumstances. In complex systems terminology, the agent behavior is self-organizing around attractors, and bumping the behavior out of the attractor can be quite difficult. The source agent behavior, in other words, may have deeply sunk "roots."
  

• Coevolution with other agent systems: It is entirely possible that the cumulative effects produced from one source agent system begin to coevolve with other agent systems in such a way as to reinforce the other or vice versa. The source agenct system, in other words, may spread "tentacles" between other systems, which may make it difficult to disentangle the root cause of the cumulative effects or, once identified, to uproot it without affecting other systems.
  

When all these characteristics are in play, we've got a nasty problem on our hands.

Perhaps, however, this is all just a matter of degree, not of quality, and the solution is to throw more of the same at the problem. Maybe, for example, the best way to deal with wicked cumulative effects problems is through the most elegant complex adaptive system devised by humans--markets. Or, at the other end of the spectrum, perhaps the rational administrative state should confront such problems through regulation guided by aggressive use of cost-benefit analysis of policy options.

In the next few posts I will argue that, while market-based approaches and cost-benefit analysis have a role to play, expecting either to supply the complete answer is preposterous.

Their Eyes Were Watching God

Zora Neale Hurston, Their Eyes Were Watching God (1937):

Ships at a distance have every man's wish on board. For some they come in with the tide. For others they sail forever on the horizon, never out of sight, never landing until the Watcher turns his eyes away in resignation, his dreams mocked to death by Time. That is the life of men.

Now, women forget all those things they don't want to remember, and remember everything they don't want to forget. The dream is the truth. Then they act and do things accordingly.

Ruby Dee, courtesy of HarperAudio, reads an excerpt from Their Eyes Were Watching God (.mp3)

Come Clean (Let the Rain Fall Down)

It's been a while since I've been able to post regularly. And the posting hiatus may continue for some time yet. But here's a Hilary Duff video to keep you entertained. Yes, Hilary Duff. Why? Partly because I can, and partly because, oddly enough, the song seems appropriate for the beginning of a new job.

As Hilary says, sometimes you just want to feel the thunder, and sometimes you just need to scream.

Bush turns Green??

It's got to be reliable -- it's from a blog I know nothing about, except that a lot of other blogs link to it. That's proof of reliability, isn't it?

From the Daily Kos:

The word behind the scenes is that Bush will announce restrictions on greenhouse gases, including a system of cap and trade that's similar to that employed in Europe. There will also be a big focus on alternative fuels, with a government commitment to supporting expanding the use of renewable sources (oh, and nuclear, which Bush will still conflate with reducing the demand for oil).

By getting this stuff front and center in the SOTU, the administration hopes to at one stroke steal the issue from the left, seal the environmental gap that's been growing between them and the Christian right base, and give Blair the cover he needs to keep promoting Bush's hopeless war effort. Not a bad return for learning the words "switchgrass" and "cellulosic."

Wait a minute. Isn't switchgrass one of those things he clears on his ranch when he's recuperating from the burdens of the Presidency? That's got to be a plus.

Saints +1 = XLI

The New Orleans Saints have won their second playoff game in their 40-year history. They will play next week in the NFC championship game. If the Seattle Seahawks can upset the top-seeded Chicago Bears at home, that game will take place in New Orleans. Let's hope that the Louisiana Superdome continues to host sports spectacles and not to serve as a "shelter of last resort."

One more win, at home or in Chicago, puts the Saints in Super Bowl XLI. Go Saints!

Katrina Insurance Coverage Ruling

An important development in the "wind versus water" dispute over insurance coverage:

A jury awarded $2.5 million in punitive damages against State Farm Fire and Casualty Co. for a Mississippi couple for denying their Hurricane Katrina claim. The decision could benefit hundreds of other homeowners challenging insurers for refusing to cover billions of dollars in storm damage.

State Farm said it will likely appeal.

Earlier Thursday, U.S. District Judge L.T. Senter Jr. had taken part of the case out of jurors' hands before they awarded punitive damages to State Farm policyholders Norman and Genevieve Broussard of Biloxi.

The case may have broader implications, given the judge's allocation of the burden of proof:

The Broussards sued State Farm for refusing to pay for any damage to their home, which Katrina reduced to a slab. The couple wanted State Farm to pay for the full insured value of their home plus $5 million in punitive damages. The Broussards claimed a tornado during the hurricane destroyed their home. State Farm blamed all the damage on Katrina's storm surge.

State Farm and other insurers say their homeowner policies cover damage from wind but not from water, and that the policies exclude damage that could have been caused by a combination of both, even if hurricane-force winds preceded a storm's rising water.

Senter, however, ruled that State Farm couldn't prove that Katrina's storm surge was responsible for all of the damage to the Broussards' home. The judge also said the testimony failed to establish how much damage was caused by wind and how much resulted from storm surge.

Thanks to Kofi Inkabi, a Cal engineering grad student and member of the CCRM team, for bringing this to my attention.

The times they are a changing

Some words of wisdom from the Governator (courtesy of the Sacramento Bee):

We hear so much about climate change. One area where we definitely need the climate to change is the national government's attitude toward global warming.

Bear in mind that Arnie is a member of the same political party as the current administration.

A sign that the political dynamics may already be shifting (from MSNBC):

Oil major Exxon Mobil Corp. is engaging in industry talks on possible U.S. greenhouse gas emissions regulations and has stopped funding groups skeptical of global warming claims — moves that some say could indicate a change in stance from the long-time foe of limits on heat-trapping gases.

Exxon, along with representatives from about 20 other companies, is participating in talks sponsored by Resources for the Future, a Washington, D.C., nonprofit. The think tank said it expected the talks would generate a report in the fall with recommendations to legislators on how to regulate greenhouse emissions.

Global Climate Change: An Accumulation of Cumulative Effects

Cumulative Effects
By J.B. Ruhl

It's going to be 75 degrees here this Saturday and Sunday (as it was last Saturday and Sunday). Granted, I live in Florida, but 75 degrees in January? So I couldn't help but think about the big cheese of all cumulative effects...global climate change. [Disclaimer: if you don't believe global climate change is afoot, or if you don't believe anthropogenic causes are at least in part behind it, you might want to surf on, though really you should read on.]

My 6th grader son knows the explanation for global climate change (GCC) is that we're emitting so much greenhouse gases that they are trapping heat in the atmosphere. But it's not that simple. Rather, GCC is a net effect of the effects of countless reactions set in motion by, among other things, increased greenhouse gas emissions. Some of the effects increase local or regional temperature, and some reduce it, in both cases on small incremental scales.

Take, for example, just one of the potential manifestations of GCC--increased fire frequency in the earth's boreal forests. Also known as the taiga, these are the lush coniferous forests situated in the high northern latitudes above the steppes and below the tundra. Research presented recently in Science (Randerson et al., 314:1130-32) examines the net effect of fires based on their many effects, some of which increase temperature (bad) and some of which decrease it (good). Fires release greenhouse gases (bad), but they also release aerosols (good or bad, depending), and deposit carbon the land's snow and ice surfaces, which reduces albedo (bad), yet they also can alter heat radiation effects of the burned ecosystem landscape (mostly good). So what is the net effect? The research suggests that it is to increase overall temperature immediately after a fire but to decrease it over an averaged 80-year period. So, to the extent greenhouse gas emissions trigger reactions that cause more fires in the boreal forests, in the long run the fires lead to a negative feedback effect.

Of course, the answer to GCC is not to ignite the boreal forests! The point is simply that GCC is very complex, and what we see as a net effect is in fact the accumulation of many cumulative effects. Moreover, the fact that greenhous gas emissions may be the significant driver in this system of effects does not mean we can say for sure what will happen were we able to reduce emissions. The system of effects that has been set in motion is neither linear nor reversible--it's not as if as we slowly work our way back to 1990 levels of greenhouse gases, the system retraces its steps as if rewinding a movie.

So what does this mean for policy? Two big picture observations:

1. As important as it is to focus on the big drivers in this system of systems--in particular, greenhouse gas emissions--it is also important for us to study and understand as much as we can about all of the other effects contributing to the net effect. The big drivers don't drive everything, and in any event we will never understand how to steer them. We need to understand that policies directed at a particular component of the system--even at the big drivers--may trigger effects elsewhere in the system that work in the opposite direction.

2. Recognizing that (a) we will never fully understand the whole system, and (b) we will never be able with perfect accuracy to predict the long-term impact of any particular policy measure on the system (much less on human systems such as the economy), we need to begin developing a legal infrastructure around the need to adapt to global climate change. This legal structure will not be about environmental policy per se, but rather about insurance, immigration, agriculture, tort liability, contracts law, social benefits policy, and so on. In short, we need a law of global climate change, not just law to stop global climate change.

Villanova law professor Joeseph Dellapenna sparked an interesting thread of e-mails on the environmental law professors' listserve by raising this subject, and it is clear that talk of adapting is anathema to many who want to hammer away at the big drivers in the system--in particular, to alter behavior leading to, and law governing, greenhouse gas emissions. And there is some reason to want to shy away from talk of adaptation, because people--Americans in particular--may be keen to the idea that if we can adapt, then we don't need to suffer the pain of working on the drivers. Reducing greenhouse gas emissions will be costly, they may say, so let's skip that step and just adapt to what comes from not doing so. People need to understand, however, that when we say "adapt" to GCC, we don't mean turning down the thermostat. We mean moving cities, moving people, changing the way we live--in other words, spending a lot of money and changing a lot of lifestyles. It will be vitally important, therefore, to develop models of the cost of adaptation based on futures with and without policies aimed at the drivers, to illustrate how much work on the drivers can save us in cost of adaptation. But it is equally important to develop models of how we can adapt given the likelihood that policies aimed at drivers will in many cases fail or be too costly to implement, as well as that even if we do tough it up and reduce greenhouse gas emissions by huge margins, we're unlikely to turn the corner on GCC effects for decades.

In other words, as in the jungle, and as in business, part of our global climate change policy must be to appreciate that we must adapt to imminent climate changes or die ignoring them.

Shut up and drive

Jurisdynamics' epic road trip concert continues . . . .

Readers of this forum know how much I love the Dixie Chicks. I'll stretch almost any subject in order to work in a few Chicks lyrics. As anyone who knows me (or has followed MoneyLaw's obsession with Nanci Griffith, Madonna, and Liz Phair) can attest, I have a certain affection for the human voice between 170 and 220 hertz, rendered with perfect pitch and a particular sort of acoustic resonance. A Southern accent doesn't hurt, either.

And so I choose three songs from the Dixie Chicks' mindblowing 2006 album, Taking the Long Way. Whether these songs have any bearing on the last fourteen months (or years) of my life is left as an exercise for the curious reader. Just shut up and listen:

1. The Long Way Around:
   
   


2. Not Ready to Make Nice:
   
   


3. Voice Inside My Head:
   
   

Cheat sheet

Okay, I lied. Vous avez raison; c'est un concert à clé. It's worth listening to these songs in connection with these posts:

1. Hardy boys and Heritage speakers, among other posts.


2. Allodoxaphobia and doxophobia. You might also try these Technorati search results.


3. Billy Beane hates the Mets, and so do I.

Gimme Three Steps

As I prepare for a road trip I've been anticipating for weeks, I'd like to offer Jurisdynamics' faithful but recently neglected readers a little music for the road:

David McGowan, I know you appreciate and endorse the message underlying this song.

One Million More Reasons Not to Fly?

Cumulative Effects
By J.B. Ruhl

Gazing out the window of an exit row seat on a plane trip back from a conference last week, I was reminded of a news item I saw in a recent issue of Scientific American ("Hot Trails," Sept. 2006, page 28). It turns out that in the days following 9/11, when jet traffic was basically zero, average daytime temperatures for the nation rose slightly and nighttime temperatures dropped more substantially. This finding supported a long held hypothesis that jet contrails reduce the temperature range by cooling the temperature during the day and heating it at night. Contrails are condensation trails that act essentially as thin cloud barriers that both reflect sunlight and block the earth's heat from rising. During the day the former effect is dominant, and during the night the latter effect is exclusive (because, obviously, there is no sunlight to reflect).

Armed with this proof, the ingenious legal mind might suggest ways of shifting flights from night to day as a way of countering global climate warming. We could auction off limited night slots, allow trading of night flight rights, etc. The net effect should be to take advantage of the daytime cooling effect of contrails and reduce their nightime heating effect.

Not so fast. The contrail effect is a classic "cumulative effects" phenomenon--the aggregate effects of many small individual similar events. It is an unfortunate term because it suggests that aggregation effects are linear. But is one contrail's effect of "x" on temperature simply aggregated, so that 100 contrails in a region equal an effect of 1oox? Most likely not. We already know that time matters. Space probably matters too. And the aggregation of effect in any time-space context may exhibit nonlinear properties, such that 100 contrails in a region over a defined time have an effect of 50x or 150x. Perhaps, for example, the number of daytime contrails is just below the threshold at which any more will tip the dominance over to the heat barrier effect. And maybe the number of nighttime contrails is well above the nonlinear threshold at which fewer contrails make a difference. Then our ingenious market-based solution would lead to exactly the wrong result. After all, all we really know is the effects of contrail numbers lumped around two points--zero contrails and status quo. It is amazing we know even that--it was the result of a one-time (we hope) disaster; it is not likely the FAA ever would have allowed anyone to test the hypothesis by banning all flights for a week. We clearly do not know what happens, therefore, between zero and status quo or beyond.

Cumulative effects problems are devilishly hard for law and policy to crack. They have way of growing on you, and once we are aware of them, they are very hard to study. It seems unlikely they behave in neat, linear fashion as the individual events aggregate over time and space. And it seems unlikely that the identified cumulative effects system has effects limited to what is being observed. For example, even if shifting contrails from night to day would help in the temperature range sense, maybe the increased day ground traffic would trigger some other cumulative effect threshold, and maybe the reduced job employment at night would trigger another. Who knows? How do we model it?

With this post, following a vacation of sorts from blogging, I start a new series on cumulative effects. How do they behave in contexts relevant to law and policy? What pressing problems of the day are, at bottom, cumulative effects problems? What devices can law employ to manage them? Comments are welcome along the way.

Those who do not learn from history . . . .

A common pattern after disasters is to rebuild with the same vulnerabilities rather than learning from the experience. This seems to be happening in New Orleans today, as the Washington Post reports:

"It's terrifying: We're doing the same things we have in the past but expecting different results," said Robert G. Bea, a professor of civil engineering at the University of California at Berkeley and a former New Orleans resident who served as a member of the National Science Foundation panel that studied the city's levees.

"There are areas where it doesn't make any sense to rebuild -- they got 20 feet of water in Katrina," said Tom Murphy, a former Pittsburgh mayor who served on an Urban Land Institute panel for post-Katrina planning. "In those places, nature is talking to us, and we ought to be listening. I don't think we are."

A map of building permits in Orleans Parish, created by GCR & Associates, a New Orleans firm involved in the rebuilding, shows renovations distributed throughout the city's low-lying areas. A similar phenomenon is underway in neighboring St. Bernard Parish, which was even more devastated by the storm.