Tuesday, October 30, 2007

Law 2.0

Cross-posted from The Cardinal Lawyer
Arkansas LawI will spend November 1 and 2 at the University of Arkansas School of Law. At the invitation of Dean Cyndi Nance, I will make a variety of presentations on subjects ranging from agricultural law to the current state of legal scholarship. I will discuss Beyond Food and Evil with students in food law and policy and Around the World in 80 Centiliters with students in agricultural finance and credit. If I can convince anyone to give me comments on a working paper of mine, Modeling Law Review Impact Factors as an Exponential Distribution, so much the better.

I am extremely pleased to be paying an official visit to Arkansas, where I taught classes in the LL.M. program in agricultural law during the mid-1990s. I am very happy that Fayetteville, an academic home away from home, will be the site of a new presentation I call Law 2.0.

Web 2.0Law 2.0 refers transparently to Web 2.0, a term expressing the far-from-universal sentiment that a second generation of Internet-based communities and services, all designed to facilitate collaboration and sharing between users, has transformed the social meaning and impact of the World Wide Web. I freely admit that my allusion to Web 2.0 is very loose. I am less interested in specific components of Web 2.0 such as social-networking sites, wikis, and folksonomies — I originally posted this item, after all, on the rare blog that does not allow comments and offers little beyond a raw RSS feed  and a subscription page to facilitate downstream collaboration, sharing, and modification of its content — than in the broad concept of law, legal education, and legally mediated social change in a world of democratized technology.

Legal education today is operating in a technological environment that is cheaper, more widely distributed, and far more efficient than that which all but the youngest law professors experienced when they were in law school. I am mindful that the legal academy is arguably the most hidebound wing of a temperamentally conservative profession. Law school faculties, for instance, spend extraordinary amounts of time debating (and, in some instances, implementing) policies that effectively disable wireless networks whose very raison d'être is to enable broadband access across an entire university campus. That said, the students we teach today, to say nothing of their successors and their future clients, are all wired — and wireless — in ways most of their instructors are not. How precisely can we expect to shelter the flickering candlelight of Law 1.0 in a world lit by lightning?

I shall reserve a more complete answer to this question for my presentation at Arkansas. In the meanwhile, and for the benefit of those members of the Arkansas Law community who will have gotten the chance to review this post before my presentation, I invite you all to watch Web 2.0: The Machine Is Us/ing Us. This video has attained its own measure of Web 2.0 fame, insofar as nearly 4 million people have watched versions of it on YouTube. The Machine Is Us/ing Us is the magnum opus (to date) of Michael Wesch, a professor of cultural anthropology at Kansas State University. I know of no better five-minute explanation of Web 2.0. This entertaining look at Web 2.0 shows how XML (extensible markup language) is to HTML (hypertext markup language) as RNA is to DNA. Code is code, after all, and we are at once the products and the prime movers of evolution.

A modest objectionHerewith a somewhat contrarian view of the entire Web 2.0 concept:

Sunday, October 28, 2007

Wildwood Flower


Herewith two versions of the great American folk song, Wildwood Flower:

The Carter Family
A crosspicking instrumental

The lyrics to Wildwood Flower are hotly contested and subject to divergent interpretations. Here is one version with several departures from the Carter Family's lyrics:
Oh, I'll twine with my mingles of raven black hair
With the roses so red and the lilies so fair
And the myrtle so bright with the emerald hue
The pale emanita and hyssop so blue

Oh, I'll dance, I will sing and my laugh shall be gay
I will charm every heart, in his crown I will sway
When I woke from my dreaming, my idol was clay
All portion of love had all flown away

Oh, he taught me to love him and promised to love
And to cherish me over all others above
How my heart is now wondering no misery can tell
He left me no warning, no words of farewell

Oh, he taught me to love him and called me his flower
That was blooming to cheer him through life's dreary hour
Oh, I long to see him and regret the dark hour
He's gone and neglected his pale wildwood flower
Emanita, the flower mentioned in the fourth line of the initial verse, refers to no known flower. Two alternative renderings of that word, amaleder and aronatus, also fail to identify a specific plant. Perhaps amaryllis is what the original lyricist intended.

Finally, here is audio commentary from National Public Radio's list of the 20th century's 100 most important recordings of American music:

National Public Radio
Dick Spottswood, a former record producer and current radio host at WAMU in Washington, D.C, recounts the history of Wildwood Flower. The song, like many recorded by the country music group The Carter Family, was passed down from generation-to-generation, without the benefit of written lyrics. Though its words are peculiar, its melody has kept the song popular and it has been recorded by many artists over the years.

Wednesday, October 24, 2007


Herewith the prologue to John Dos Passos, U.S.A. (1930-36), in my opinion (and in that of more erudite critics) a leading candidate for the coveted title of "Great American novel":
John Dos PassosThe young man walks fast by himself through the crowd that thins into the night streets; feet are tired from hours of walking; eyes greedy for warm curve of faces, answering flicker of eyes, the set of a head, the lift of a shoulder, the way hands spread and clench; blood tingles with wants; mind is a beehive of hopes buzzing and stinging; muscles ache for the knowledge of jobs, for the roadmender's pick and shovel work, the fisherman's knack with a hook when he hauls on the slithery net from the rail of the lurching trawler, the swing of the bridgeman's arm as he slings down the whitehot rivet, the engineer's slow grip wise on the throttle, the dirtfarmer's use of his whole body when, whoaing the mules, he yanks the plow from the furrow. The young man walks by himself searching through the crowd with greedy eyes, greedy ears taut to hear, by himself, alone.

Aerial view of city traffic
John Dos Passos, Aerial View of City Traffic and Buildings (ca. 1925)
The streets are empty. People have packed into subways, climbed into streetcars and buses; in the stations they've scampered for suburban trains; they've filtered into lodgings and tenements, gone up in elevators into apartmenthouses. In a showwindow two sallow windowdressers in their shirtsleeves are bringing out a dummy girl in a red evening dress, at a corner welders in masks lean into sheets of blue flame repairing a cartrack, a few drunk bums shamble along, a sad streetwalker fidgets under an arclight. From the river comes the deep rumbling whistle of a steamboat leaving dock. A tug hoots far away.

The young man walks by himself, fast but not fast enough, far but not far enough (faces slide out of sight, talk trails into tattered scraps, footsteps tap fainter in alleys); he must catch the last subway, the streetcar, the bus, run up the gangplanks of all the steamboats, register at all the hotels, work in the cities, answer the wantads, learn the trades, take up the jobs, live in all the boardinghouses, sleep in all the beds. One bed is not enough, one job is not enough, one life is not enough. At night, head swimming with wants, he walks by himself alone.

No job, no woman, no house, no city.

Only the ears busy to catch the speech are not alone; the ears are caught tight, linked tight by the tendrils of phrased words, the turn of a joke, the singsong fade of a story, the gruff fall of a sentence; linking tendrils of speech twine through the city blocks, spread over pavements, grow out along broad parked avenues, speed with the trucks leaving on their long night runs over roaring highways, whisper down sandy byroads past wornout farms, joining up cities and fillingstations, roundhouses, steamboats, planes groping along airways; words call out on mountain pastures, drift slow down rivers widening to the sea and the hushed beaches.

Seattle docksIt was not in the long walks through jostling crowds at night that he was less alone, or in the training camp at Allentown, or in the day on the docks at Seattle, or in the empty reek of Washington City hot boyhood summer nights, or in the meal on Market Street, or in the swim off the red rocks at San Diego, or in the bed full of fleas in New Orleans, or in the cold razorwind off the lake, or in the gray faces trembling in the grind of gears in the street under Michigan Avenue, or in the smoker of limited expresstrains, or walking across country, or riding up the dry mountain canyons, or the night without a sleepingbag among frozen beartracks in the Yellowstone, or canoeing Sundays on the Quinnipiac;

but in his mother's words telling about longago, in his father's telling about when I was a boy, in the kidding stories of uncles, in the lies the kids told at school, the hired man's yarns, the tall tales the doughboys told after taps;

it was speech that clung to the ears, the link that tingled in the blood; U.S.A.

U.S.A. is the slice of a continent. U.S.A. is a group of holding companies, some aggregations of trade unions, a set of laws bound in calf, a radio network, a chain of moving picture theatres, a column of stockquotations rubbed out and written in by a Western Union boy on a blackboard, a public library full of old newspapers and dogeared historybooks with protests scrawled on the margins in pencil. U.S.A. is the world's greatest rivervalley fringed with mountains and hills, U.S.A. is a set of bigmouthed officials with too many bankaccounts. U.S.A. is a lot of men buried in their uniforms in Arlington Cemetery. U.S.A. is the letters at the end of an address when you are away from home. But mostly U.S.A. is the speech of the people.

Tuesday, October 23, 2007

More use, less change

Tower of Babel

Vox Populi

An occasional Jurisdynamics series on language and linguistic diversity

It has been nearly a year since I last wrote in my Vox Populi series, in a post called Heritage speakers, but human language, my first and favorite intellectual paramour, has always waited for me.

By way of the New York Times' weekly science section, I've learned of this fascinating new article:

Mark Pagel, Quentin D. Atkinson & Andrew Meade, Frequency of word-use predicts rates of lexical evolution throughout Indo-European history, 449 Nature 717-720 (11 October 2007) (doi:10.1038/nature06176; Received 30 April 2007; Accepted 17 August 2007)

The geographic distribution of the Indo-European languages (click the image or here to enlarge).
Greek speakers say ουρ, Germans schwanz and the French queue to describe what English speakers call a tail, but all of these languages use a related form of two to describe the number after one. Among more than 100 Indo-European languages and dialects, the words for some meanings (such as tail) evolve rapidly, being expressed across languages by dozens of unrelated words, while others evolve much more slowly -- such as the number two, for which all Indo-European language speakers use the same related word-form. No general linguistic mechanism has been advanced to explain this striking variation in rates of lexical replacement among meanings. Here we use four large and divergent language corpora (English, Spanish, Russian and Greek) and a comparative database of 200 fundamental vocabulary meanings in 87 Indo-European languages to show that the frequency with which these words are used in modern language predicts their rate of replacement over thousands of years of Indo-European language evolution. Across all 200 meanings, frequently used words evolve at slower rates and infrequently used words evolve more rapidly. This relationship holds separately and identically across parts of speech for each of the four language corpora, and accounts for approximately 50% of the variation in historical rates of lexical replacement. We propose that the frequency with which specific words are used in everyday language exerts a general and law-like influence on their rates of evolution. Our findings are consistent with social models of word change that emphasize the role of selection, and suggest that owing to the ways that humans use language, some words will evolve slowly and others rapidly across all languages.

DistributionsThe power of this article is instantly apparent to any careful student of diachronic linguistics and evolutionary biology. Indeed, it unifies the two fields. George Kingsley Zipf, meet Charles Darwin. The same process of random mutation, natural selection, sexual selection, and genetic drift that defines biological evolution also explains Zipf's law.

In practical terms, this phenomenon explains how any perceptive speaker of an Indo-European language can make astonishing headway in a previously unfamiliar Indo-European language simply by focusing on these classes of words:Animal collage
  • Numbers
  • Body parts
  • Animals
  • Family members

Once again, in science as elsewhere, somehow the vital connection is made:

Wednesday, October 17, 2007

New Kid on the Blog

Hello, my name is Bas van der Leij. I'm a New Kid on the Jurisdynamics-Blog, so this is my first short post. I'm Lecturer in Criminal Law at the University of Groningen (The Netherlands) and a part time judge at the District Court of Groningen. I'm interested in (Dynamic) System Theory and Legal Development (amongst others). In my opinion (Criminal) Law / (Criminal) Procedure can be described as a system in an ongoing development or change. Changes in the system are not necessarily explained by external forces. Some changes or developments may result from internal dynamics. It is said that if anything like a basic developmental mechanism exists, it is the process that takes its output as its new input, producing new output, which it (the system) takes as input, and so on and so on (see Paul van Geert (1994) Dynamic Systems of Development). For instance, I think we can see this mechanism (called iteration) at work in the development of case law. I'm interested in looking at legal development in this way and want to explore this more. At the moment I''m reading up on the subject of Dynamic System Theory and would welcome al kinds of suggestions and perspectives.

Tuesday, October 16, 2007

The Cardinal Lawyer

Dear graduates, students, faculty, staff, and friends of Louisville Law:

Welcome to The Cardinal Lawyer. This forum represents your direct link to the University of Louisville School of Law and to the dean's office. I hope to post items here on a regular basis, the better to stay in touch with the Law School's most valued constituents.

Some of you are receiving this initial post because you kindly accepted an invitation by the University of Louisville's Alumni Association to join the "Dean's Listserv." If you wish to receive the latest items from The Cardinal Lawyer via e-mail, please send your name, e-mail address, year of graduation (if applicable), and postal address to alumnews@louisville.edu.

The Cardinal Lawyer, though, is much more than a listserv. It is a weblog. "Blogging," of course, has become a very familiar feature of today's electronic landscape. But Louisville Law has never used a blog to communicate with its constituents. I have therefore decided to devote a few words in this initial message to familiarize you with The Cardinal Lawyer's technological capabilities and their true power.

At an absolute minimum, The Cardinal Lawyer generates an RSS feed . RSS, which stands for either "Rich-Text Site Summary" or "Really Simple Syndication," powers the Dean's Listserv. But this blog's RSS feed can do even more. It allows you, the reader, to receive updates from this blog as they are posted, on terms you dictate. To learn more about RSS, please consult the University of Louisville's RSS tutorial. If you are ready to get started with The Cardinal Lawyer's RSS feed, click on the universal syndication icon at the end of this sentence .

The Cardinal Lawyer will boast additional features that make this forum worthy of your attention. Its sidebar, once fully built, will offer links to important items of interest to the entire Louisville Law community. The Cardinal Lawyer's archives will offer one-stop shopping for all items, no matter how short or elaborate, that I write as the dean of the Law School. Some of those pieces -- especially those published in the Louisville Bar Association's Bar Briefs, the Kentucky Bar Association's Bench and Bar magazine, and the Law School's own print-based publications -- would otherwise be unavailable in readily searchable electronic form. The blog format allows me to add features -- links, images, multimedia -- that enhance the interactivity of items that were originally published in print-based media. Finally, the immediacy and ease of blogging will enable me to communicate news, thoughts, and observations to you that might evaporate before I commit them to paper.

Ultimately, The Cardinal Lawyer represents your direct link to me and to our beloved Law School. I hope to see all of you on this page.

Very truly yours,

Jim Chen
Dean and Professor of Law

Monday, October 15, 2007

Literary Warrant [20]

Continuing to catch up here with some aging reports and the like...
  • Richard F. Anderson, Senior Advisor, Mayors Water Council, United States Conference of Mayors, National City Water Survey 2007: The Status of Asset Management Programs in Public Water and Sewer Infrastructure in America’s Major Cities (September 2007)

    "With cities responsible for the lion’s share of maintaining quality water and wastewater services, The U.S. Conference of Mayors released today a national survey that examines the status of asset management programs in water and sewer services in major cities. The report was released at the Mayor’s Annual Water Summit in San Francisco and shows how cities use asset management programs, which offer cost-efficient ways to acquire, operate, maintain and rehabilitate water and sewer systems."—Press release (September 27, 2007)

  • beSpacific, Repair and Replacement of Affordable Housing Lags in Mississippi's Post-Katrina Recovery (October 1, 2007)

    "Affordable housing recovery in three coastal counties in Mississippi heavily damaged by Hurricane Katrina lags behind the pace of the rest of the housing market in the region, according to a RAND Corporation study released today. While construction permits had been issued as of July for approximately 60 percent of the housing damaged by the hurricane, repair and replacement of multi-unit housing significantly lags behind repair and replacement of single-family homes, according to this study from the RAND Gulf States Policy Institute."—Press release (September 27, 2007)

  • Blacksmith Institute, The World's Most Polluted Places: The Top Ten of the Dirty Thirty (September 2007)

    Vapi, India"U.S.-based Blacksmith Institute, an independent environmental group, in partnership with Green Cross Switzerland, today issued their Top Ten list of the world's most severely polluted places. Overall, the Top Ten sites lie in seven countries and affect a total of more than 12 million people."—Press release (September 12, 2007)

  • President George W. Bush, The White House, Fact Sheet: Toward a New Global Approach to Climate Change and Energy Security (September 28, 2007)

    "Today, President Bush will address the Major Economies Meeting on Energy Security and Climate Change and urge a new path forward to reduce greenhouse gas emissions in a way that does not undermine economic growth or prevent nations from delivering greater prosperity for their people. Today's meeting launches President Bush's major economies initiative to work with all of the world's largest users of energy and largest producers of greenhouse gas emissions, including both developed and developing nations, to establish a new international approach on energy security and climate change in 2008 that will contribute to a global agreement by 2009 under the UN Framework Convention on Climate Change."—Press release.

  • Todd Davis & Monica Hale, Science Applications International Corporation (SAIC), Public Transportation’s Contribution to U.S. Greenhouse Gas Reduction (September 2007)

    "This report addresses four questions.

    1. How much net CO2 is public transportation saving in the U.S .from the current level of services being offered?

    2. How much additional CO2 savings are possible if incremental public transportation passenger loads are increased?

    3. What is the significance of non-public transportation commuter use at a household level and what can households do to save additional CO2?

    4. Are there favorable land use impacts that public transportation contributes to that result in positive environmental and social benefits?

    Answers to these questions show that public transportation is a highly valuable asset for reducing global warming."—Executive Summary.

  • Arthur Laffer & Wayne Winegarden, Arduin, Laffer & Moore Econometrics, The Adverse Economic Impacts of Cap-and-Trade Regulations (September 2007)

    "A cap-and-trade scheme for controlling greenhouse gas emissions (GHGs) would impose significant economic costs on the U.S. economy and, consequently, are an inappropriate policy response to current concerns about global warming."—Executive Summary.

  • Sarah A. Lister, Specialist in Public Health and Epidemiology, Domestic Social Policy Division & Holly Stockdale, Analyst in Health Care Financing, Domestic Social Policy Division, Congressional Research Service (CRS), Pandemic Influenza: An Analysis of State Preparedness and Response Plans (CRS Report for Congress, Order Code RL34190) (September 24, 2007)

    "This report, which will not be updated, describes an approach to the analysis of state pandemic plans, and presents the findings of that analysis. State plans that were available in July 2006 were analyzed in eight topical areas: (1) leadership and coordination; (2) surveillance and laboratory activities; (3) vaccine management; (4) antiviral drug management; (5) other disease control activities; (6) communications; (7) healthcare services; and (8) other essential services. A history of federal funding and requirements for state pandemic planning is provided in an Appendix. This analysis is not intended to grade or rank individual state pandemic plans or capabilities. Rather, its findings indicate that a number of challenges remain in assuring pandemic preparedness, and suggest areas that may merit added emphasis in future planning efforts."—Summary.

  • Clare Ribando Seelke, Analyst in Latin American Affairs, Foreign Affairs, Defense, and Trade Division & Brent D. Yacobucci, Specialist in Environmental and Energy Policy, Resources, Science, and Industry Division, Congressional Research Service (CRS), Ethanol and Other Biofuels: Potential for U.S.-Brazil Energy Cooperation (CRS Report for Congress, Order Code RL34191) (September 27, 2007)

    "On March 9, 2007, the United States and Brazil, which together produce almost
    70% of the world’s ethanol, signed a Memorandum of Understanding (MOU) to promote greater cooperation on ethanol and other biofuels in the Western Hemisphere. The countries agreed to (1) advance research and development bilaterally, (2) help build domestic biofuels industries in third countries, and (3) work multilaterally to advance the global development of biofuels.

    "Many analysts maintain that the United States would benefit from having more energy producers in the region, while Brazil stands to further its goal of developing ethanol into a globally traded commodity. In addition to these economic benefits, some analysts think that an ethanol partnership with Brazil could help improve the U.S. image in Latin America and lessen the influence of oil-rich Venezuela under Hugo Chávez. However, obstacles to increased U.S.-Brazil cooperation on biofuels exist, including current U.S. tariffs on most Brazilian ethanol imports."—Summary.

  • Southern Education Foundation (SEF), Education After Katrina: Time for a New Federal Response (August 29, 2007)

    "The report chronicles the need for a strengthened federal response to the educational challenges faced both in the Gulf Coast and nationwide, as a result of the 2005 hurricanes. SEF examines declining student enrollments, lost school time among K-12 and college students, as well as the severe impact of the storms on regional child care systems. It documents the inadequate federal response to the relief and recovery related to education after Katrina, and calls for a 'new federal response' to restore struggling educational institutions on the Gulf Coast and to assist students whose education remains disrupted by the storms."

  • T.M.C. Asser Instituut, European Environmental Law Cases (database)

    "The case law section of the EEL website provides you with the full text of the most relevant decisions, including those delivered by the European Court of Justice (ECJ) and the Court of First Instance (CFI), the European Court of Human Rights (ECHR), the International Court of Justice (ICJ), the World Trade Organisation (WTO), the International Tribunal on the Law of the Sea (ITLOS), and some national courts.

    "Beside the most relevant cases, a link will be given to the home page and, where possible, a link to the search engine of the court concerned."

  • United States Environmental Protection Agency (EPA), ENERGY STAR® and Other Climate Protection Partnerships: 2006 Annual Report (September 2007)

    "The measures adopted by EPA’s partners through 2006 have resulted in the following major environmental and economic benefits:

    • The prevention of 70 million metric tons (in MMTCE2) of greenhouse gases, equivalent to the emissions from 45 million vehicles, and net savings to consumers and businesses of more than $14 billion in 2006 alone.

    • Prevention of more than 980 MMTCE and net savings to consumers and businesses of about $160 billion over the lifetime of their investments.

    • Investment of more than $50 billion in energy-efficient and climate-friendly technologies."—Executive Summary.

  • United States Environmental Protection Agency (EPA), NOx Budget Trading Program: 2006 Program Compliance and Environmental Results (September 2007)

    "The NOx Budget Trading Program (NBP) is a market-based cap and trade program created to reduce emissions of nitrogen oxides (NOx) from power plants and other large combustion sources in the eastern United States. NOx is a prime ingredient in the formation of ground-level ozone, a pervasive air pollution problem in many areas in the East. The NBP was designed to reduce NOx emissions during the warm summer months, referred to as the ozone season, when ground-level ozone concentrations are highest. This report provides background on ozone formation and effects and evaluates progress under the NBP in 2006. The report examines reductions, reviews compliance results and market activity, and compares changes in emissions to changes in ozone concentrations."

  • United States Environmental Protection Agency (EPA), Portfolio Manager

    EPA, Durham, NC"Estimating the carbon footprint of commercial buildings has just become easier. Portfolio Manager, EPA's on-line energy rating system for commercial buildings, now includes greenhouse gas emission factors. The updated ratings show that Energy Star buildings, which use an average of 35 percent less energy than typical buildings, also emit 35 percent less carbon dioxide into the atmosphere."—Press release (September 28, 2007)

  • United States Government Accountability Office (GAO), Nuclear Energy: NRC’s Workforce and Processes for New Reactor Licensing Are Generally in Place, but Uncertainties Remain as Industry Begins to Submit Applications (Report to Congressional Committees, GAO-07-1129) (September 2007)

    "Nearly three decades after the last order for a new nuclear power reactor in the United States, electric power companies plan to submit 20 applications in the next 18 months to the Nuclear Regulatory Commission (NRC) for licenses to build and operate new reactors. Since 1989, NRC has developed a new license review process that allows a power company to obtain a construction permit and an operating license through a single combined license (COL) based on one of a number of standard reactor designs. NRC expects its new process to enhance the efficiency and predictability of its reviews. GAO reviewed NRC’s readiness to evaluate these applications by examining the steps NRC has taken to (1) prepare its workforce and manage its workload and (2) develop its regulatory framework and review process for new reactor activities. GAO reviewed NRC documents for new reactor workforce staffing and training, examined NRC’s guidance for the review of license applications, interviewed NRC managers and representatives of nearly all of the COL applicants, and observed NRC’s public meetings."—Why GAO Did This Study.

  • United States Government Accountability Office (GAO), Prairie Pothole Region: At the Current Pace of Acquisitions, the U.S. Fish and Wildlife Service Is Unlikely to Achieve Its Habitat Protection Goals for Migratory Birds (Report to the Subcommittee on Interior, Environment, and Related Agencies, Committee on Appropriations, House of Representatives, GAO-07-1093) (September 2007)

    "The 64-million-acre Prairie Pothole Region in the north-central United States provides breeding grounds for over 60 percent of key migratory bird species in the United States. During much of the 20th century, the draining of wetlands and the conversion of prairie to cropland has reduced bird habitat. Under the Small Wetlands Acquisition Program, the Department of the Interior’s U.S. Fish and Wildlife Service (the Service) aims to sustain remaining migratory bird populations by permanently protecting high priority habitat. Some habitat is temporarily protected under the Department of Agriculture’s Conservation Reserve Program.

    "In this context, GAO examined (1) the status of the Service’s acquisition program in the region, (2) the Service’s habitat protection goals for the region, and (3) challenges to achieving these goals. To answer these objectives, GAO examined Service land acquisition data and projected rates of habitat loss."—Why GAO Did This Study.

  • David G. Wood, Director, Financial Markets and Community Investment, United States Government Accountability Office (GAO), Disaster Housing: Implementation of FEMA’s Alternative Housing Pilot Program Provides Lessons for Improving Future Competitions (August 31, 2007)

    "Congress, in the Fiscal Year 2006 Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery,2 provided for alternative housing pilot programs in the areas hardest hit by Hurricane Katrina and the other hurricanes of the 2005 season, and appropriated $400 million to DHS for this purpose. To implement this provision of law, FEMA announced a competitive grant program—the Alternative Housing Pilot Program (AHPP)—inviting the five Gulf Coast states (Alabama, Florida, Louisiana, Mississippi, and Texas) to submit proposals for projects that would demonstrate alternatives for housing disaster victims. FEMA convened a panel of officials to evaluate and score the projects. In December 2006, FEMA announced that it was awarding Mississippi up to $281.3 million for two projects, Louisiana up to $74.5 million for one project, Texas up to $16.5 million for one project, and Alabama up to $15.7 million for one project."

    This document is GAO's review of FEMA's implementation of AHPP.

And the Ultimate Rational Actor Is...Curious George?

You've probably heard of the ultimatum game, an experimental economics game in which two parties interact anonymously and only once, so reciprocation is not an issue. The first player proposes how to divide a sum of money with the second party. If the second player rejects this division, neither gets anything. If the second accepts, the first gets his demand and the second gets the rest. In many human cultures the second player routinely rejects any division leaving him or her less than 20 percent of the pie, an outcome that suggests a human sensitivity to fairness and which has spurred some debate over how to square that behavior with the self-interested rational actor model underlying most of neoclassical economic theory, including law and economics. Observed departures from rational actor behavior have given rise to the disciplines of behavioral economics and complexity economics.

A curious development in this field comes from research in which chimpanzees played the ultimatum game. See Keith Jensen et al, Chimpanzees Are Rational Maximizers in an Ultimatum Game, 318 Science 107 (Oct. 5, 2007). Our near relatives, it turns out, are impeccably rational, accepting virtually any offer above zero (chimps are chumps only to a point) and routinely making decidedly unfair offers (including zero). The researchers concluded that "one of humans' closest living relatives behaves according to traditional economic models of self-interest, unlike humans, and that this species does not share the human sensitivity to fairness." Traditional economics, it seems, would work swell in a society of chimps, who are perfectly rational in acting like chumps.

Sunday, October 14, 2007

Saving Louisiana

The Times-Picayune has a story this morning on a new report by environmental groups regarding Louisiana flood control. The report covers both levees and wetlands restoration as methods of controlling storm surges. As Mark Schleifstein explains:

The environmental groups' plan is most aggressive in its proposed use of diversions and spillways to reintroduce Mississippi and Atchafalaya river water and sediment into wetlands and former wetlands areas.

Smaller, "sustaining" diversions of up to 20,000 cubic feet per second of water would be aimed at adding sediment and natural vegetative growth to existing land bridges deemed important as lines of defense in each coastal basin.

Larger "land-building" diversions of 100,000 cubic feet per second and greater -- enough water and sediment to fill the Superdome in just over 20 minutes -- would be aimed at building new land and wetlands in strategically placed open-water areas.

The full report is available here.

Friday, October 12, 2007

Municipal Liability, Unwise Development, and Flood Risks

California has a vigorous scheme of government liability for defective levees. It also has very serious potential flood hazards, especially in the delta area. As is true in other places, there is a great deal of development pressure in flood prone areas. Under prior law, a municipality could approve new development in high risk areas, leaving the state on the hook for any resulting damage claims if the levees failed. Cities gain financially from adding tax base with new development, but do not bear any risks if the development is ill-advised.

A new law partially addresses that situation. AB 70 was signed by the governor this week. It adds a new section 8307 to the California Water Code:

(a) A city or county may be required to contribute its fair and reasonable share of the property damage caused by a flood to the extent that
the city or county has increased the state’s exposure to liability for property
damage by unreasonably approving new development in a previously undeveloped area that is protected by a state flood control project. However,a city or county shall not be required to contribute if, after the amendments required by Sections 65302.9 and 65860.1 of the Government Code have become effective, the city or county complies with Sections 65865.5, 65962,and 66474.5 of the Government Code as applicable with respect to that development. This section shall not be construed to extend or toll the statute of limitations for challenging the approval of any new development.

(b) A city or county is not required to contribute unless an action has been filed against the state asserting liability for property damage caused by a flood and the provisions of subdivision (a) providing for contribution have been satisfied. A city or county is not required to contribute if the state settles the claims against it without providing the city or county with an opportunity to participate in settlement negotiations.

The statute defines “unreasonably approving” as meaning "approving a new development project without appropriately considering significant risks of flooding made known to the approving agency as of the time of approval and without taking reasonable and feasible action to mitigate the potential property damage to the new development resulting from a flood."

The liability provision does not become effective until related legislation is passed, and it is obviously hedged in with qualifications. But at least it is a start in reducing the incentives for development in high risk areas.

Al Gore wins the Nobel Peace Prize for his work on climate change

Al GoreAlong with the Intergovernmental Panel on Climate Change, Al Gore has won the 2007 Nobel Peace Prize. As the Times' Jim Rutenberg reports, the prize marks the "the latest twist in a remarkable decade of soaring highs and painful lows" for the former Vice President.

Moreover, according to the Times, it is fair to view the award as "validation" for the Intergovernmental Panel on Climate Change, "which in its early days was vilified by those who disputed the scientific case for a human role in climate change."

Jim Rutenberg of the New York Times discusses the political implications of Gore's Nobel Prize ( .mp3)

Thursday, October 11, 2007

The Structure of the Land Use Regulatory System in the United States

My colleague, Tony Arnold, just posted The Structure of the Land Use Regulatory System in the United States on SSRN:
Tony ArnoldThe land use regulatory system has been criticized for causing or failing to solve social problems and for perceived inherent defects, such as inefficiency, inequality, and environmental harm. These criticisms fail to understand the land use regulatory system in the United States as a dynamic, functional, adaptive system.

This paper systematically analyzes the: 1) functions; 2) location and scale; 3) components; 4) processes; and 5) values of the land use regulatory system in the United States. If we are to improve our land use practices to be fairer, more efficient, and more ecologically responsible, we must understand how land use planning and regulation function and change over time.

Particular attention is given to the role of land use regulation as a mediator between people and places, between communities and power, and between freedom and boundaries. Additional attention is given to the broad array of forces shaping land use decisions, the “thinness” of land use law as a set of rules and limits (contrasted with its role as a source of tools, authority, and discretion), and the “patchiness” of land use regulatory authority in the United States.

This paper also examines a specific issue of law and policy: the extent to which the land use regulatory system can value and conserve ecosystem services – the humanly beneficial services that nature provides. The paper explores both barriers to and opportunities for accounting for ecosystem services in land use planning and regulation.

For nowadays the world is lit by lightning

Glass Menagerie
Mindful of MoneyLaw's homage to Tennessee Williams's essay, "The Catastrophe of Success," and of The Glass Menagerie's close connection to the origins of this forum, I present Tom Wingfield's closing soliloquy from The Glass Menagerie:
I didn't go to the moon. I went much further — for time is the longest distance between two places. Not long after that I was fired for writing a poem on the lid of a shoe-box. I left Saint Louis. I descended the steps of this fire escape for a last time and followed, from then on, in my father's footsteps, attempting to find in motion what was lost in space. I traveled around a great deal. The cities swept about me like dead leaves, leaves that were brightly colored but torn away from the branches. I would have stopped, but I was pursued by something. It always came upon me unawares, taking me altogether by surprise. Perhaps it was a familiar bit of music. Perhaps it was only a piece of transparent glass. Perhaps I am walking along a street at night, in some strange city, before I have found companions. I pass the lighted window of a shop where perfume is sold. The window is filled with pieces of colored glass, tiny transparent bottles in delicate colors, like bits of a shattered rainbow. Then all at once my sister touches my shoulder. I turn around and look into her eyes. Oh, Laura, Laura, I tried to leave you behind me, but I am more faithful than I intended to be! I reach for a cigarette, I cross the street, I run into the movies or a bar, I buy a drink, I speak to the nearest stranger — anything that can blow your candles out!

For nowadays the world is lit by lightning! Blow out your candles, Laura — and so goodbye. . . .

Wednesday, October 10, 2007

The Law and Policy of Ecosystem Services

Ecosystem ServicesFollowing on the heels of my previous post recommending a book, I have another to recommend--mine! So here goes some shameless self-promotion:

The Law and Policy of Ecosystem Services, which I co-authored with economist Steven Kraft and geographer Chris Lant and is published with Island Press, is the first book to explore the context, status, and vision of natural capital and ecosystem services law and policy.

Part I of the book opens with chapter-length primers on the ecology, geography, and economics of natural capital and ecosystem services, which we argue compel using the tools of complex adaptive systems analysis. The dynamic processes of ecosystems, the temporal and spatial complexities of ecosystem services, and the difficult economic problems associated with natural capital present quite an undertaking for policy design.

Part II surveys the current status of property rights, regulation, and social norms relevant to natural capital and ecosystem services. The bottom line: private and public property regimes have established all the wrong incentives; regulatory programs have all but overlooked natural capital and ecosystem service values; and social norms provide little help. Playing on the theme of the tragedy of the commons, we call this the tragedy of ecosystem services.

Part III offers some vision for a way out of the tragedy. We explore the need to identify policy drivers and decision models, and to recognize the trade-offs inherent in moving toward and economic and policy structure that integrates natural capital and ecosystem services aside manufactured and financial capital and human services. We suggest institutional frameworks and innovative policy instruments for getting there.

There is much work to be done on natural capital and ecosystem services--much scientific and policy exploration remains ahead. But the concepts are gaining real-world traction beyond isolated instances of public lands management or government regulation. In the business sector, for example, one start-up company, Conservation Capital, is aimed at identifying economic opportunities from natural capital holdings. And the Katoomba Group tracks markets in ecosystem services much like a Wall Street analyst. If any of that interests you, I think you may find value in leafing through The Law and Policy of Ecosystem Services. I hope you enjoy it.

Wednesday, October 03, 2007

The Brokers of Science in Environmental Policy

I would say "I'm back," but I suspect many current JDN readers are unaware I was ever here. Long story as to my long absence (big surprise--it's all about cumulative effects!); having sent off a 1500-page set of page edits yesterday has taken most of the monkey off my back.

Honest BrokerI'd like to resume my JDN posting with a book recommendation: Roger Pielke Jr., The Honest Broker: Making Sense of Science in Policy and Politics (Cambridge, 2007). There is plenty of excellent scholarship on science, technology, and society, but this is hands down the best treatment of the topic I've seen. I am assigning it to all JDN readers.

Pielke is an Environmental Studies scholar at the University of Colorado's Center for Science and Technology Policy Research. In Honest Broker, which takes only a few hours to read, he provides an incredibly concise and insightful assessment of the role of science (and scientists) in policy and a framework for evaluating the fit between the two as well as for identifying cases of "stealth advocacy." The thrust of the book resonates particularly well with environmental policy and its administration through agencies with science-policy missions, such as EPA, Fish & Wildlife, and the Forest Service, although by no means is it limited to that context in either content or usefulness.

Like many STS scholars, Pielke condemns the outdated "linear model" of science and policy, under which science acts as an insulated black box supplying information to policy. But what in its place? For this Pielke outlines a "stakeholder model" that divides scientists into four roles based on their level of engagement with policy decision-making:
  • Pure Scientist: No interest in decision-making; interested only in generating and disseminating fundamental findings of science and motivated by purely scientific research agenda
  • Science Arbiter: Also primarily interested in generating and disseminating fundamental findings of science, but interested in doing so as a resource for policy decision-makers
  • Issue Advocate: Interested in convincing decision-makers to adopt a particular position; focuses the production and dissemination of scientific findings toward narrowing policy options to favor that position
  • Honest Broker: Interested in providing scientific information that clarifies or expands the range of options open to the decision-maker, with no interest in any particular position but acting as a stakeholder in the transparent, credible functioning of the policy decision-making process
Pielke suggests that all four of these roles have legitimate places in science and policy, depending on the circumstances. He provides a nifty decision tree based on the level of uncertainty and the degree of policy values consensus. Where uncertainty is low and consensus is high, for example, the Pure Scientist and Science Arbiter are best suited to the role. Pielke provides clear examples of how his model works in each case.

One he has laid out the model, Pielke warns us to be most on guard for cases of "stealth advocacy," which comes in two forms. One involves cases of Pure Scientists being used by policy decision-makers to provide "cover" for decisions made on policy grounds but disguised as science-driven. The other form comes when Issue Advocates pose in Pure Scientist or Science Arbiter clothing, so as to disguise their issue-driven agenda. In what has become a controversial part of the book, he uses the response of many scientists to Bjorn Lomborg's The Skeptical Environmentalist as an example of stealth advocacy at work.

As I said, Honest Broker takes only a few hours to read through once (though I'd suggest a second read to fully digest the model), so I won't go on more here. I highly recommend it, and look forward to hearing what you think.


Tuesday, October 02, 2007

Mes cours de bio

Mon dieu, quel vidéo!

Version françaiseVersion anglaise
Pendant mes cours d' SVT en terminale
il y avait une fille assise à mes côtés
comme elle était femelle et que j'étais un mâle,
j'ai décidé d'en faire ma fiancée.
Mais n'ayant rien suivi de mes cours de bio
Pour me faire remarquer j'ai fait l'idiot:
Je me suis penché vers elle et j'ai déclaré
les mots suivants, un peu comme ils venaient:

Oh,tel un coccolitophoridé
coincé entre le tertiaire et le crétacé
les systoles de mon coeur affolé
m'ont fait comprendre que tu es ma dulcinée.

Elle m'a regardé d'un air ébahi, j'ai eu peur d'avoir dit une connerie.
Puis son visage d'un sourire éclatant,
me dévoila toutes ses belles dents.
Et quand l' prof aborda l'immunologie,
c'est sur un ton d'antigène, qu'elle me répondit:

Si toi tu es un coccolitophoridé
coincé entre le tertiaire et le crétacé, moi je suis un trilobite décédé
depuis au moins 200 millions d'années.

De toute évidence elle suivait mieux que moi
le peu de cours de bio auxquels j'étais là
Mais pendant qu'la classe dessinait les anticorps
je n'pouvais me résigner à oublier son corps,
alors réunissant mes quelques feuilles de SVT
je suis parvenu lui rétorquer:

le polyallélisme d'un gène s'exprime
par la diversité phénotypique des individus,
ces quelques mots,je les déclâme pour te dire que tu as les plus beaux yeux qu'j'ai jamais vu

Me regardant, elle a rigolé,
et m'a répondu sur un p'tit bout d'papier:

le polyallélisme d'un gène s'exprime
par la diversité phénotypique des individus,
ces quelques mots, je sais qu'tu les imprimes
et je compte bien de voir ce soir après le bahut.

Et nous baladant sur l'échelle stratigraphique,
faisant fi des temps géologiques
nos hypothalamus en ébulition
on a participé à l'évolution!
When I was in school,
There was a girl who sat next to me
Since she was female and I was male,
I decided to make her my fiancée.
But, having paid no attention to my biology class,
To make myself seen, I played the idiot.
I leaned towards her and declared
The following words, a little bit as they came to me

Oh, like a coccolithophorid
Stuck between the Tertiary and Cretaceous
The beating of my distraught heart
Made me understand that you were my girl

She looked at me, dumbfounded. I was afraid I had said something stupid
Then her face with a dazzling smile
Revealed to me all her beautiful teeth
And when the teacher addressed immunology
She responded to me, not at all shy:

If you are a coccolithophorid
Stuck between the Tertiary and the Cretaceous, then I am a trilobite dead
For at least 200 million years

Apparently, she followed better than I
The few biology classes that I attended
But while the class drew antibodies
I couldn't resign myself to forgetting her body
So putting together the few pieces of paper I had
I succeeded in replying:

Genetic polyallelism expresses itself
Through the phenotypic diversity of individuals
I ranted these few words to tell you that you have the most beautiful eyes that I have ever seen

Looking at me, she laughed
And responded to me on a little piece of paper

Genetic polyallelism expresses itself
Through the phenotypic diversity of individuals
These few words, I know, will impress you
And I expect to see you this evening after class

And walking on the stratigraphic scale
Flouting geological time
Our hypothalamus boiling
We participated in evolution!

Monday, October 01, 2007

Heart of gold

During my appearance at Louisville Law's Lawlapalooza event, I botched my rendition of Neil Young's Heart of Gold:

I won't fumble my next chance.

Lyrics: Neil Young, Heart of GoldMiner for a heart of goldI want to live
I want to give
I've been a miner for a heart of gold
It's these expressions I never give
That keep me searching for a heart of gold
And I'm getting old
Keeps me searching for a heart of gold
And I'm getting old

I've been to Hollywood
I've been to Redwood
I crossed the ocean for a heart of gold
I've been in my mind, it's such a fine line
That keeps me searching for a heart of gold
And I'm getting old
Keeps me searching for a heart of gold
And I'm getting old

Keep me searching for a heart of gold
You keep me searching for a heart of gold
And I'm getting old
I've been a miner for a heart of gold
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