Jurisdynamics

Soft law and the global financial system

2012-01-12T12:28:00.002-05:00

Jim Chen, Book Review, Soft Law and the Global Financial System: Rule-Making in the Twenty-First Century, 26 Emory Int'l L. Rev. (forthcoming 2012) (available at http://ssrn.com/abstract=1944294):

In Soft Law and the Global Financial System: Rule-Making in the Twenty-First Century (2011), Christopher J. Brummer provides a detailed and informative analysis of the international regulatory response to the global financial crisis of 2008. This accomplishment alone warrants a close look at this book. But Professor Brummer goes further in this pivotal work on the law of international finance. He provides a persuasive theoretical account of international financial law. Soft Law and the Global Financial System not only describes the mechanisms of lawmaking and standard-setting for global financial markets, but also delivers a workable framework for prescribing and perhaps even perfecting the regulation of the world’s most vital and volatile economic institutions.

A summer teaching clearinghouse

2012-01-08T19:32:00.002-05:00

Editor's note:: Reposted from Health Law Blog.

Although many law schools, both in the United States and to a lesser extent abroad, hire faculty members other than their own to teach summer school, this has always been a haphazard process. Establishing a general clearinghouse for law school summer teaching positions is likely to provide a great benefit for both law faculty and law schools across the country and the world. The Health Law Prof Blog has agreed to host the clearinghouse by posting all of the notices of teaching opportunities for the Summer of 2012.

Please share the following information in your announcement and send it for posting on the Health Law Profs Blog to either Jennifer Bard at jennifer.bard@ttu.edu or Katharine Van Tassel at kvantassel@stu.edu:

(a) the name of your school; (b) the name of the chair of your summer hiring committee and that person's contact information; (c) any particular subject areas in which your school is looking to hire; (d) the dates that the summer class(es) will be taught; and, (e) any other information you think might be relevant.

Progressive Taxation: An Aesthetic and Moral Defense

2012-01-06T17:31:00.003-05:00

Jim Chen, Progressive Taxation: an Aesthetic and Moral Defense, 50 U. Louisville L. Rev. (forthcoming 2012) (available at http://ssrn.com/abstract=1980731:

The power to tax is at once the power to create and the power to destroy. If the United States government hopes to discharge its primary duty as creator and protector of its citizens’ wealth, it must be willing to destroy wealth, from time to time, by redistributing it. More than any other tool, the means by which government finances and depletes its treasury affects the societal distribution of wealth. Differential taxation and targeted spending are the most significant and most effective means by which government can “gradually and continually . . . correct the distribution of wealth to prevent concentrations of power detrimental to the fair value of political liberty and fair equality of opportunity.” Redistribution and the attendant destruction of entrenched wealth serve as society’s ultimate weapons of “creative destruction.” Of the many forces that have propelled the United States to the economic, political, social, and military pinnacle of the modern world, its willingness to countenance radical technological and organizational upheaval probably ranks first. American prosperity depends on the federal government’s commitment to an economic environment in which citizens are able not only to amass large amounts of new wealth, but also to lose it in rapid and remorseless fashion.

Update: I am grateful to Paul Caron for featuring this article on Tax LawProf Blog.

Innovation Incentives Part 3: Combining Innovation Index and Product Cluster Models

2011-12-15T09:29:00.001-05:00

Understanding the Consequences of Linking Market and Regulatory Incentives for Drug Development: Part 3

Editor's note: This is the third installment of a three-part series.

In Parts 1 and 2, we learned that it is both possible and valuable to import empirical scientific methods typically used in the hard sciences to the study of law. In fact, in our analysis of patent law and policy we can move beyond patent valuation to assess how and indeed whether a given piece of law or policy is working in conjunction to its so-called original policy intent. This includes the assessment of innovation within the context of the patent bargain, and whether governments that have accepted linkage laws are being rewarded in their twin policy goals of producing more new and innovative drugs and facilitating timely generic entry. Put another way, can we assess using the new tools of empirical legal research whether, as Senator Hatch put it at the time the U.S. linkage legislation came into force, the public is in fact “receiving the best of both worlds - cheaper drugs today and better drugs tomorrow.”

We can attempt to address this possibility using the innovation index discussed in Part 2 in combination with 3-D spatiotemporal models such as those used in the medical sciences. Over the last few decades, these models have been used increasingly for studying protein, DNA, RNA, and other structure-function relationships, including using x-ray and other crystallography techniques. Consistent with their use in medicine, 3-D legal models can be used to construct data for both descriptive (structural) and prescriptive (functional) law-making and law-reform purposes.

Read the rest of this post . . . .For example, in our Northwestern study, we developed a 2-D model of identifying patents in relation to “new and innovative” drugs and “follow-on” drugs that tracked the functional and temporal evolution of drug forms and associated patents over time. The example below is for the combination of Salmeterol and Fluticasone into one of several available forms of Advair®. We referred to this technique as a “patent tree” method and used it specifically to identify legally-related drug forms, associated patents, and patent types.

Fig. 1. Example of Convergent Patent Tree Analysis for Forth Generation Product Advair Diskus.®Patents were identified using the specific and general search strings described in our Berkeley study. In addition to quantifying patents per drug, the patent tree method allows assessment of how specific drugs evolve into related drug forms or (in this case) drug products representing combinations of known drugs. In addition, the patent tree analysis allows for identification of relevant patent types based on the classification nomenclature described in the Northwestern study. Finally, the patent tree analysis provides data relating to drug development, but also on the type of patents selected by pharmaceutical companies for listing on the patent register in order to prevent generic entry.

This method can be extended, as shown below, to identify “product clusters.” In particular, the patent tree method can easily be expanded to include patents listed on the patent register under linkage law, and a diagonally increasing axis of cumulative spatiotemporal growth. The resulting model represents a constellation of legally and functionally related new and follow-on drug forms and regulatory approvals, patents associated with these drug forms, the fraction of total patents listed on the patent register in order to slow down generic entry under linkage laws, and how each of the data classes relate to one another over time.

Fig. 2 Product Cluster-Based Model of Drug Development.Product clusters begin at some point in time with the first new and innovative drug (●; NCE) and associated originating patent (●). With time, and vetting by the market and regulators, further follow-on drug approvals (●) and patents (●) are granted within the cluster, and an increasing number of these patents are listed on the patent register (●). Listed patents can be used increasingly over time to prohibit generic entry not only on the originating new and innovative drug, but also on all drugs in the cluster that are deemed under law to be relevant to the originating drug.

We are now in a position to take our 2-D product cluster model above, first reported in 2011, and combine it with the innovation index depicted in Part 2 of this series, reproduced below for convenience.

Fig. 3. Innovation Index Data for Total Approval Cohort. Bar graphs showing the number of total approvals expressed as a function of the level of innovation (LOI) before (a) and after (b) of generic approval data. c Brand approvals expressed as a function of LOI. Solid line is a fit of the data to a single exponential function. d Cumulative normalized brand approvals expressed as a function of LOI. Solid line is fit using a sigmoidal function.

The combination of the drug nomenclature, product cluster and innovation index described in Fig. 4 yields a potentially new way of looking at the impact of regulatory and market incentives on drug development by multinational firms, As shown clearly by the data in the Boston study, this clearly includes both brand-name firms and generic firms, as both are pursuing cluster-based models of drug development. The resulting analytical model focuses on drug development driven by purposeful policy, and cumulative vetting of serial products by regulators and the market.

Described in detail in a forthcoming book, drug clusters denoted ‘on deck’, ‘at bat’, and ‘home run’ represent a theoretical mock-up of how drug clusters grow in time from a spatiotemporal perspective. In this model, product-patent clusters begin their life as single-drug products or small groupings at the most innovative end of the index and, with increased vetting of products in the cluster over time by regulators and the market grow in scope to encompass an increasing number of products and patents. As this occurs, the cluster may be anticipated to ‘swing up and to the left’ of the innovation index, moving from a high level of innovation with a low number of patents and listed patents to first a moderate and then a much lower level of innovation but with greater spatiotemporal characteristics. The model shown here is for 2,087 drug approvals over an eight year study period; similar results have been obtained using patents and chemical components.

Fig. 4. Combining Innovation Index and Product Cluster Models to Study Portfolio-Based Drug Development and Hedging.Product clusters are hypothesized to begin life at the most innovative end of the spectrum, with few patents and a small or negligible number of listed patents. Over time, and increased vetting by regulators and the market, the cluster expands to include more products, patents and listed patents but, as a whole becomes less and less innovative. The desired end point (the “home run”) is a substantial but low level cluster with numerous products, patents and listed patents, and the widest scope of market exclusivity and cumulative patent protection. Prior to this point, clusters are “at bat”, as they reach a critical state prior to moving into an expanded spatiotemporal state or merely “on deck” as firms await critical regulator and market vetting.

An important observation with regard to product-patent drug clusters is that as a given cluster grows spatiotemporally over time, it grows not only in scope but also in the scale of the interrelatedness of its functional components over time.

As noted in 2001 by Kingston and later by Polk & Parchomovsky and, notably, the EC Pharmaceutical Sector Inquiry, the strength of patent portfolios and related product clusters from an intellectual property law perspective is “greater than the sum of its parts”. This “more is different” element, originally described in 1972 by PW Anderson, is characteristic of complex systems, including complex legal systems such as those described by JB Ruhl and many others in the mid-1990s. As noted in Part 1, we have referred to the complex multidirectional interrelationships and interdependencies between drug development, drug regulation and intellectual property law in our previous McGill and Berkeley studies as a regulated Therapeutic Product Lifecycle, or rTPL.

Of interest, our data show that the profit of a given molecule is strongly related to the number of patents, regulatory approvals, the number of patents listed on the register, and the range of drugs and regulatory approvals that are legally related but separated by only very minimal changes to existing uses and chemistry. This is true even for drugs thought be innovative such as those with First in Class and New Active Substance (New Chemical Entities), owing to regulatory loopholes.

Somewhat surprisingly, in light of global innovation policy over the last 50 years, the greater the number and scope of these metrics the lower is the calculated level of innovation of a basket of drugs in a product cluster. As market and regulator vetting increases with time, one sees generally (1) more patents, regulatory approvals, fractional patent listing, patent classifications per marketed drug, (2) a greater follow-on-to-new drug ratio in the cohorts studied, and (3) greater profitability for less innovative drugs.

Indeed, drug clusters driven by line extension, or follow-on, drugs are proving to be very profitable. For example, we found that the vast majority of approval, patenting and chemical development activity associated with brand pharmaceutical products is directed to the development of Me Too drugs, in particular follow-on Me Too drugs. Of the top 25 most profitable drugs in 2006, 48% (12) were line extension Me Too drugs. The combined sales of these drugs were US $45.7 billion dollars. Follow-on First in Class drugs represented 28% of the top 25 selling drugs, and 7 of the top 15 selling drugs. Profit on this group of drugs was US $39.7 billion dollars in 2006.

Combined, follow-on Me Too and First in Class drugs accounted for 19 of 25 of the most profitable drugs, with total sales of US $85.5 billion in a single year.

From a "science of law" perspective, a major advantage of the rTPL and product cluster models is that there is, in fact, considerable empirical evidence available for study for all interested parties. This includes the various types of new and follow-on drugs, patents, patent classifications, listed patents, related litigation, as well as the relation of these metrics to one another over time. This wide array of empirically observable metrics and the observation that they change over time sets up the possibility that, akin to protein folding and X-ray crystallography models, the data can be expressed in 3-D spatiotemporal form.

Indeed, the goal of our empirical work over the last four years involving new and follow-on drugs, patent trees, patent types, WHO Anatomical Therapeutic Classification (ATC) data, litigation data, the innovation index, and product cluster model is to convert the cumulative data into 3-D formats used in the medical sciences. For example, the protein-RNA model presented below underscores the utility of 3-D “rotational” models to both identify and quantify the complex structural and functional characteristics in a given network of biological components, here those between an RNA strand and protein components in the context of Multiple Sclerosis.

Fig. 5. Medical Sciences Template for Rotational 3-D Spatiotemporal Models of Cluster-Based Drug Development. From: Joint Evolutionary Tree Method for Study of MS.

As discussed previously, rotational 3-D drug product-drug patent cluster models would be particularly useful to policy-makers and law-makers in order to enable visual and numerical quantification of the impact of intellectual property law on drug development, generic entry, and access to essential medications in the same manner that one might look at a car from behind (highlighting the ‘gas tank,’ or original drug product and associated patent tandems) as well as from the side (from the rear to the front of the vehicle, underscoring how and when approvals, patents, and listed patents increase over time with market and regulator vetting).

In this manner, extrapolating the empirical techniques conventionally used in the hard sciences to the study of law, including patent law and innovation policy, offers an important opportunity to not only quantify the effect of a given piece of law or policy, but also to help determine the vires of such laws after they have been put in motion and to guide law reform efforts in light of objective arm’s length evidence.

It is hoped this series of articles has shed some light on the utility of traditional scientific methods for quantitative and qualitative assessment of patent value, and whether laws made decades ago to enhance innovation in the pharmaceutical sector and to facilitate timely generic entry are producing intended effects, unintended effects, or some combination of both. A second consideration is whether empirical legal research can be a valuable tool to assess the convergence of public health law and industrial law such as that which has evolved in most developed nations over the last three decades.

In any event, it will be interesting to see whether, as in other fields such as medicine and engineering that are accustomed to taking an “evidence-based” approach to problem identification and problem solving, whether we in the legal field may also include empirical evidence in our expanding toolkit of legal assessment and interpretation methods.

Innovation Incentives Part 2: Patent Valuation

2011-12-06T09:27:00.003-05:00

Understanding the Consequences of Linking Market and Regulatory Incentives for Drug Development: Part 2

Editor's note: This is the second installment of a three-part series.

In new work by our group, we have outlined a tandem of new methodological tools to identify and quantify new and follow-on drugs and patent valuation. The first is a harmonized method to quantify drug approvals, patents and associated chemical components that summarizes and extends our previous work on topic. The second provides a new “innovation index” that incrementally grades the value, not only for patents in the life sciences and other technology-intensive sectors, but also for associated regulatory approvals, chemical components, patent characteristics, etc. The innovation index values are based on evidentiary hurdles and prioritizations for several classes of “new” and “follow-on” drugs disclosed by drug regulators. As indicated by the titles of the articles, one focuses on the quantitative side while the other focuses on the qualitative side of the analysis.

The Boston Article presents a harmonized method to collect, compare, and quantify regulatory approval data from multiple cohorts of new and follow-on drugs. We looked in some detail at about 2,000 regulatory approvals, 5,000 patents, and 130 chemical components. The analysis encompasses all drug classes enumerated, described and prioritized by domestic drug regulators. The drug classes were gleaned from the usual literature reviews, supplemented by several hours of consultation with Health Canada regulators and review of Health Canada Guidance Documents on topic. A second purpose of this work was to go beyond simplified descriptors of new and follow-on drugs found in the literature, to categorize classes of new, line extension and generic approvals according to the nomenclature used by regulators themselves. This latter point is relevant is relevant, as we found different scholars use different approaches and nomenclatures, sometimes very different, and that these approaches were not always the same as those used by regulators themselves.

Read the rest of this post . . . .The innovation index work described in the companion Santa Clara Article was driven by the fact that almost all published patent assessment methods measure innovation using primarily quantitative methods, otherwise referred to as ‘counting methods.’ For reasons discussed in work on topic by Kingston at Trinity, Lemley at Stanford and Polk and Parchomovsky at Penn, and the sources cited therein, while quantitative models are widely considered to be problematic, a model that assesses patent value using qualitative methods that track, or are at least designed to track social benefits, has not yet emerged. A second reason for developing the two methods is that is that even when many scholars and commentators do look at the “innovative” aspect of the data, they simply accept data provided by regulators in their respective annual reports in a per se manner.

While developing a novel scientific method for either obtaining or analyzing legal data is fraught with its own problems, this step nevertheless forms a necessary component of the “trial and error” heuristic typical in the hard sciences. As more individuals with prior experience in medical science enter law and legal scholarship, we will undoubtedly see more and more scientific studies of law, including importing of fundamental mathematical, statistical, curve fitting, modeling, and graphing methods. In the Santa Clara paper, a qualitative innovation index is reported that we hope may fill some of the gaps in patent valuation. One of the figures from this work, relating to regulatory approvals, is shown below.

Fig. 1. Innovation Index Data for Total Approval Cohort. Bar graphs showing the number of total approvals expressed as a function of the level of innovation (LOI) before (a) and after (b) of generic approval data. c Brand approvals expressed as a function of LOI. Solid line is a fit of the data to a single exponential function. d Cumulative normalized brand approvals expressed as a function of LOI. Solid line is fit using a sigmoidal function.

The figure presents data for many classes of new and follow-on drugs and categorizes these classes using a linear scheme. Raw data values are given in the Y axis of Fig. 1a and 1b, the difference being generic data were subtracted in Fig. 1b to isolate data only from ‘innovator’ firms. The X axis in both panels represents the innovation index data. The innovation index data are referred to as transformed data, because the raw data pertaining to drug approvals, drug patents, and chemical components are transformed into qualitative values on a linear scale (0-15) using the methods outlined in the Santa Clara paper.

The strengths and weaknesses of the hybrid “subjective-objective” nature of data transformation, and the similarities to subjective-objective hybrid models that are already widely accepted for use in the fields of drug approval, patent grant, and the adjudication of patent claims by the courts are discussed more fully there.

Data can, of course, be fit to many types of numerical functions, linear or non-linear; increasing or decreasing. Fig. 1c above shows that the data in the bar graph of Fig. 1b fit to a declining exponential function. As can be seen by the close fit of the data to the function, the choice of an exponential relationship was well founded. The data are interesting as they demonstrate an exponential decline in the numbers of drugs in classes with relatively high innovation index values. In other words, the vast majority of drugs approved in Canada have a very low index value, and indeed are primarily follow-on Me Too drugs.

Fig. 1d represents the normalized cumulative data fit to a sigmoid (S-shaped log) function, which is a numerical approximation of “how fast” the innovation index data rise to their maximal peak. A fast rise, as we see here, suggests that most of the drugs approved over nearly a decade are in the low index bins and that the data in the low index bins accumulate much more rapidly than do the data in the higher index bins. Similar, though not identical, results were obtained with several indicator Cohorts studied, including a wide Cohort of 2,087 drugs, a narrower Cohort of 95 of the most profitable drugs, and a similar Cohort of associated patents and chemical components.

The innovation index provides a means of weighing legitimate patent protection against perceived societal benefit. As such, it affords a qualitative measure of the innovative nature of drug patents that, when compared to counting methods, may more adequately reveal the outcome of development incentives for firms and regulating bodies insofar as these parties have conflicting interests.

The results from our analysis indicate that it is not the most innovative or even strongly innovative drugs that are attracting the greatest firm patenting effort. Rather, when gauged against development priorities publicly disclosed by regulators and governments, including specifically in the United States and Canada where linkage first came into force, it is the least innovative drugs of all classes investigated that display the strongest regulatory approval and patenting efforts. This issue is touched on in more detail in Part 3 of the series.

In this manner, our data are contrary to the established dogma that the strength of patent protection is proportional to the "strength" of innovation of a given product. As discussed more fully in Part 3, the data obtained also support the conclusion that cluster-based, or portfolio-based, drug development has become the dominant innovation strategy for both brand and generic firms. Indeed, data from our Boston study demonstrates conclusively that generic firms are accruing more patents than their brand counter-parts, especially in the new drug approval category.

Finally, the data suggest that the perception on the part of governments and the public to the effect that societal benefit comes as a kind of “natural consequence” of patenting may need to be reconsidered.

Innovation Incentives Part 1: Regulated Therapeutic Product Lifecycle

2011-11-29T11:05:00.049-05:00

Understanding the Consequences of Linking Market and Regulatory Incentives for Drug Development: Part 1

This is a three-part series by guest blogger Ron A. Bouchard.

Dr Ron A. Bouchard is an intellectual property lawyer and scholar, specializing in biomedical products. He began his career as a medical scientist, completing a PhD and Postdoctoral Fellowship in the field of ion channel biophysics and Ca2+ imaging. He shifted focus to obtain a law degree specializing in pharmaceutical and biotechnology law and has been involved in the prosecution, acquisition, financing, distribution, and litigation of intellectual property rights. Dr Bouchard has appeared before the Federal Court of Canada and the Supreme Court of Canada. He is a Professor of Law and Medicine, and is the recipient of a Canadian Institutes for Health Research (CIHR) New Investigator Award. He is currently on sabbatical.

Patent valuation has become a hot button issue of late, particularly in the area of pharmaceuticals. In the effort to win the global innovation race, substantial policy and economic efforts are being made by developed and developing nations alike in support of innovation, both in terms of understanding it and making more of it when innovation does occur.

The issue of patent valuation presents to an increasingly educated lay audience as a kind of titanic contest of wills between those who prefer big incentives for innovation and those who focus of the social benefits, or outcomes, of innovation.

Many studies of innovation and patent valuation use economic models to assess the business value associated with patents at a given point in time, as well as ways of maximizing value from those patents. Although there are certainly many skeptics, innovation and patenting have nevertheless become synonymous in economic discussions of national productivity and prosperity in a wide variety of debates, including scholarly, political, civil service, and in the media.

Read the rest of this post . . . .In the world of life sciences products, a distinction can be made between an economic analysis - even one cast in a law and economics light - and a patent law analysis. This is because one is primarily (though not exclusively) in service of utilitarian benefit and the other is primarily (though not exclusively) in service of equity, equality and the terms of the traditional patent bargain. As instructed by the courts when pharmaceutical patents are at issue, the patent bargain is itself to be interpreted through the public health mandate as it is bound by the unique trifecta of patent law, food and drug law and linkage law.

This places patent valuation front and center of any discussion of law reform focused on pharmaceutical innovation, as well as discussions and law reform aimed at reducing drug costs and expenditures. The fact that, unlike in many other industries, follow-on products may offer little benefit compared to existing products raises the bar on this discussion, as does the fact that patents associated with these products can be used as more of a sword than a shield to evergreen older product lines and keep drug prices high.

Because the availability, costs and expenditures of drugs are regulated by such a complex array of legal, policy and political vehicles, their analysis is quite amenable to “complexity”-based frameworks, which by design place significant emphasis on feedback loops between multiple interrelated nodes.

In this case the nodes, or spheres to use the nomenclature of Walzer, are industrial, economic, public health, and political in nature but also play out in numerous intersecting ways in statutory, regulatory, policy, and judicial terms. In our Berkeley study, we presented the model below for the development, consumption and regulation of drug products, referring to it as a regulated Therapeutic Product Lifecycle (rTPL).

Fig. 1. rTPL Innovation Ecology Model for Drug Development.

Innovation is represented as an iterative process over time involving several functional groupings, including national science and technology (S&T) policy, clinical research, university and firm commercialization, innovation by private firms, drug regulation by national governments, and intellectual property and regulatory (IPR) rights covering both drug submissions and marketed products. Large red nodes represent functional groupings, and include sub-functions enumerated in the figure. Red lines are multi-directional between nodes and sub-functions and are independent of time (acknowledging that the process generally moves clockwise).

Through diagrams such as these, one can see that patent rights and incentives permeate all stages of the rTPL. As we have noted elsewhere, even assuming a relatively linear innovation process, because of regulatory incentives that allow the public to gain access to therapeutic products prior to conventional Phase 3 trials, and because linkage laws allow for the development of clusters of interrelated new and follow-on drugs and associated patents, the regulatory lifecycle for drugs has become at once increasingly complex, intertwined, and collapsed. Linkage laws in particular complicate the picture as they are intended to both facilitate industrial development in the form of new drugs and to satisfy the public health mandate by yielding cost savings on generic entry.

One might argue that the convergence of public health and industrial policy of this nature calls for a clear and concise set of policy levers governing the complex innovation ecology for therapeutic products, particularly in jurisdictions where the availability of both brand and generic drugs are regulated by linkage laws.

Yet, as noted in the recent decision of the High Court of Delhi in India, where (like the E.U.) linkage was rejected, the court held that worldwide there is a "raging debate on whether patent linkage should be permitted," concluding there is "no uniformity in the policy of different countries."

In North America, the birthplace of linkage, the Supreme Court of Canada held in its seminal decisions in Biolyse and AstraZeneca that linkage regulations tying generic entry to brand-name patents must be made in a patent-specific manner. The court's pronouncement highlights the importance of the qualitative and quantitative nature of the balance inherent to the patent bargain, especially when read in light of the so-called “special provisions” of linkage laws when parsing pharmaceutical patents.

As pointed out by the Global Consortium on Pharmaceutical Linkage in a recent article, patent law is also antecedent to linkage in the United States, which was the first jurisdiction globally to promulgate linkage laws. This was made clear by the seminal reports of the Committee on the Judiciary (COJ) and the Committee on Energy and Commerce (CEC) prior to the coming into force of Hatch Waxman. Both the COJ and CEC made it clear that the twin policy goals of linkage laws were to encourage the development of “new and innovative” drugs and to facilitate the “timely” entry of generic drugs.

Both of these competing policy goals depend on patents, and so again we arrive at a pivotal role for patent valuation in determining outcomes related to the twin policy goals at issue.

So, what evidence is there to assess whether these two policy goals have been met by patent, food and drug, and linkage laws? What evidence is there to determine the role of “strong” and “weak” patents in producing outcomes, including unintended consequences that may have been completely unanticipated by law-makers at the time pharmaceutical law and policy came to the fore in the early 1980s and 1990s?

This will be the subject of Part 2 and Part 3 of the series.

The Waffle House index

2011-11-26T23:35:00.003-05:00

A string of bizarre Waffle House robberies has put the South's most familiar chain of 24-hour diners in the spotlight. Alongside grits, toast, and (yes) waffles, Waffle House does serve up a serious point about disaster law and disaster management.

With total seriousness, FEMA has coined the concept of a Waffle House index for measuring the impact of a disaster on a community:

If a Waffle House store is open and offering a full menu, the index is green. If it is open but serving from a limited menu, it’s yellow. When the location has been forced to close, the index is red. Because Waffle House is well-prepared for disasters … it’s rare for the index to hit red.

Waffle House therefore serves as an informal but readily assessed gauge of social susceptibility and resilience. Waffle House tends to be well-prepared for disaster. By extension, communities that host a Waffle House have at least one prominent actor taking account of catastrophic risk. And the presence of full service as usual at Waffle House signals the resilience with which that community has responded to disaster when it strikes. These are themes that permeate Disaster Law and Policy (2d ed.) and derivative works such as Law Among the Ruins.

Merger to Monopsony: AT&T, T-Mobile, and the Clayton Act

2011-11-23T08:07:00.005-05:00

In a pivotal antitrust decision, Judge Ellen Huvelle of the US District Court for the District of Columbia has allowed Sprint and Cellular South to pursue their suits to enjoin AT&T's proposed acquisition of T-Mobile. These suits pose a significant barrier to the merger of AT&T and T-Mobile. The ability of Sprint and Cellular South to pursue their claims represents a modest but important victory against the domination of the American wireless industry by an emerging AT&T/Verizon duopoly.

Sprint and Cellular South's lawsuits complement the United States government's suit to block the AT&T/T-Mobile merger. The Department of Justice's complaint emphasizes the traditional elements of a claim arising under section 7 of the Clayton Act. The government's case against the proposed union of the second and fourth largest wireless carriers in the United States draws heavily from the familiar arsenal of antitrust weapons against anticompetitive mergers. According to the Herfindahl-Hirschman index, the standard measure of industrial concentration, AT&T and T-Mobile would command the single largest share of the United States wireless market and an overwhelming share in many metropolitan markets. AT&T's acquisition of T-Mobile would eliminate potential competition and foreclose future entry by one of the country's peskiest and most creative wireless carriers.

Read the rest of this post . . . .In many merger cases, the contribution of antitrust law begins and ends in the United States Department of Justice. No matter how substantially a proposed merger may lessen competition or tend to create a monopoly, competitors of the combining firms face formidable barriers that often prevent them from suing under section 4 or section 16 of the Clayton Act. The antitrust injury doctrine requires competitors to prove that they have not merely sustained some economic loss, but have suffered injury of the sort that the antitrust laws were intended to prevent. The need to show antitrust injury sometimes forces competitors to allege that the merged firm would engage in predatory pricing, a theory of antitrust liability that can be difficult to prove.

Two recent Supreme Court decisions, Bell Atlantic v. Twombly (2007) and Verizon Communications v. Trinko (2004), raise additional obstacles to antitrust plaintiffs, especially in suits alleging anticompetitive conduct in the telecommunications industry. Twombly requires plaintiffs to plead facts with sufficient particularity so that a court can find it plausible, and not merely imaginable, that defendants violated the antitrust laws. Trinko holds that violations of the Telecommunications Act of 1996, strictly of their own force, do not constitute antitrust violations. Plaintiffs must prove conduct that offends the antitrust laws, independent of their lawfulness under the Telecommunications Act or the implementing regulations of the Federal Communications Commission (FCC).

The magnitude of these barriers to suit heightens the importance of Judge Huvelle's decision to allow Sprint and Cellular South to pursue their suits against AT&T's proposed acquisition of T-Mobile. Any antitrust suit in which competitor-plaintiffs successfully deflect a rule 12(b)(6) motion to dismiss represents a legally noteworthy development. An antitrust plaintiff that clears the Rule 12(b)(6) hurdle has shown antitrust injury and has satisfied both Twombly and Trinko. That plaintiff has pleaded facts that give rise to a plausible theory of antitrust liability beyond the violation of any applicable FCC regulations. That is exactly what happened in Sprint Nextel Corp v. AT&T Inc. and Cellular South, Inc. v. AT&T Inc. To fully appreciate Judge Huvelle's decision in these cases, we must first understand the economic and technological terms by which American wireless carriers compete.

Sprint and Cellular South's involvement in the AT&T/T-Mobile merger is important precisely because this controversy is no ordinary story of industrial concentration. The proposed creation of America's largest wireless carrier has economic significance transcending its $39 billion price tag. The private suits against AT&T's bid for T-Mobile mark a significant step in the development of antitrust law, especially as applied to an industry as technologically intense as wireless communications. In three decades, the American wireless industry has come a very long way from its origins in first-generation (1G) wireless technology and the breakup of the Bell system. 2G wireless technology enabled the first wave of data transmission. Even more significantly, the expansion of the 2G spectrum gave American consumers something they had not enjoyed in either wireline or wireless communications: meaningful choice from a broader spectrum of carriers competing on price and on service. The third generation of wireless technology brought mixed blessings. What consumers gained through faster speeds and enhanced services, they lost to creeping concentration as the country's leading carriers, Verizon and AT&T, increased their shares of the market. Technological incompatibility between the leading 3G protocols has allowed Verizon and AT&T as duopolists to operate their own wireless ecosystems, insulated from fiercer levels of competition that could and should prevail in this industry.

Many American consumers now treat their wireless devices as their primary or even exclusive vehicle for voice communications. It is no longer enough to speak of phones or even of "smartphones" that bridge the conventional gap between voice and data. Americans transmit an astonishing volume of information over wireless networks. The most sophisticated wireless devices and applications designed for those devices give consumers all sorts of intelligent ways to enjoy, create, transform and share content. Wireless devices and networks have liberated consumers from the geographic constraints inherent in legacy wireline technology. Consumers expect — and deserve — the ability to travel with complete confidence that they can call and be called, that they can navigate the World Wide Web and manipulate applications and content, with no perceptible reduction in the level of service they enjoy at home.

Against this backdrop, we can understand the true significance of Sprint and Cellular South's suits against the AT&T/T-Mobile merger. Increased concentration in any industry tends to amplify the power of the largest firms — especially a firm that would be created by a merger that has come under antitrust scrutiny — to gouge consumers by raising prices and lowering the quality of the product or service provided. But a conventional application of antitrust injury doctrine holds that the ordinarily expected increase in price inflicts no anticompetitive harm on competitors, as distinct from consumers. For this reason, the concentration and market share data so central to the government's case would not be enough, standing alone, to enable Sprint and Cellular South to block the AT&T/T-Mobile merger.

Sprint and Cellular South successfully alleged that AT&T's acquisition of T-Mobile would impair competing wireless carriers' access to critical inputs. By far the most important input in the American wireless market, today and for the foreseeable future, is access to the best wireless devices. Postpaid wireless subscribers — customers who subscribe to service for longer terms, as distinguished from pay-as-you-go prepaid customers — are less sensitive to price than they are to the availability of the best, most technologically sophisticated devices. Unlike their counterparts in many other developed countries, American wireless subscribers almost invariably buy their devices from wireless carriers. American carriers regularly subsidize device purchases by their postpaid subscribers, in exchange for a long-term service commitment. Even when consumers buy devices at department stores or electronics boutiques, those vendors usually operate in cooperation with a wireless carrier and bundle the devices with service contracts by that carrier. Empowered by the bundling of devices with service subscriptions, the largest carriers in the US have progressively tightened their grip over the market for wireless devices. Apple's iconic iPhone and iPad epitomize the problem. For years, AT&T held an exclusive on the iPhone; no other carriers' customers could buy this sleekest and smartest of handheld devices. You can buy an iPad at an Apple store, but the market for data service plans to feed that iPad offers exactly two choices: AT&T or Verizon.

In allowing Sprint and Cellular South to pursue their Clayton Act claim against the AT&T/T-Mobile merger, Judge Huvelle astutely recognized the oligopsonistic potential of the merged firm to further constrict an already tight market for cutting-edge wireless devices. AT&T and Verizon, the country's largest wireless carriers, use their buying power to command exclusive access to devices such as the iPhone. At the very least, these large carriers demand (and receive) long periods of exclusivity at the beginning of the economically and technologically significant life of new devices. The addition of T-Mobile to AT&T would exacerbate a serious and legally objectionable constraint on the ability of Cellular South, other small carriers, and even a carrier as large as Sprint (the country's third largest) to offer devices on par with AT&T and Verizon. Permitting this merger would compound these competitors' most pressing problem: being consigned to an unappetizing selection of older phones at higher prices. Judge Huvelle correctly characterized the problem as one of "merger-to-monopsony." Creating the country's largest wireless carrier would cement AT&T's unlawful grip over the devices that are driving and will continue to drive competition among wireless companies.

A second input also played a significant role in these competitor suits. Roaming is the only way that a smaller carrier such as Cellular South, especially one with a geographically circumscribed network, can assure its customers of coast-to-coast coverage. Without commercially reasonable roaming agreements, a smaller carrier cannot serve subscribers who travel outside their home service areas. Judge Huvelle recognized the potential of a combined AT&T and T-Mobile to inflict anticompetitive injury on Corr Wireless, a Cellular South subsidiary that has met stiff resistance in its efforts to forge roaming agreements on commercially reasonable terms with these larger carriers. This conclusion, in many respects, flows more naturally than the merger-to-monopsony theory by which Judge Huvelle recognized Sprint and Cellular South's allegations of injury in the device market. Antitrust cases more routinely involve anticompetitive conduct by defendants as sellers. Roaming agreements involve precisely that: would-be roaming partners sell access to each other's networks.

Judge Huvelle's decision did fall short in certain respects. She appears to have misunderstood the scope of competing carriers' need for roaming. 3G wireless technology is balkanized between Global System for Mobile Communications (GSM) and Code Division Multiple Access (CDMA) protocols. The incompatibility of GSM and CDMA technologies has forced carriers to choose between 3G protocols and to fashion their 3G roaming arrangements according to that choice. Sprint and Cellular South have operated 3G networks on the CDMA protocol. That choice has presumably led both of these carriers to seek 3G roaming agreements with Verizon, the country's leading CDMA carrier, as opposed to AT&T and T-Mobile, both of which have developed their 3G networks along the competing path of GSM technologies. Incompatibility in 3G networks, however, is of no moment when wireless carriers seek roaming on the Long-Term Evolution (LTE) protocol that represents the fourth generation of wireless technology. The proposed merger of AT&T and T-Mobile will enable this combined firm, to say nothing of Verizon, to obstruct 4G roaming in ways exceeding their existing refusal to cooperate with requests for roaming access to their legacy 3G networks.

On balance, however, Judge Huvelle's decision represents a very significant legal victory for competition in the American wireless industry. Preventing further concentration among wireless carriers preserves a competitive foothold by which Sprint, Cellular South, and other carriers can continue to offer consumers viable options beyond AT&T and Verizon. Nevertheless, domination of wireless communications by these two large carriers continues to pose serious economic threats. Notwithstanding their modest size, smaller carriers such as Cellular South have captured meaningful slices of the 700 megahertz "beachfront" spectrum that provides the best technological platform for deploying fully functional 4G/LTE networks. Properly managed, the transition between third- and fourth-generation wireless technologies promises to liberate American wireless communications, at long last, from the balkanization that has robbed 3G wireless of its full technological potential. The division between GSM and CDMA protocols has enabled AT&T and Verizon to keep cultivating a cozy duopoly in which two and exactly two dominant wireless carriers can lock their respective subscribers inside insulated wireless ecosystems. A wireless duopoly means that carriers outside the AT&T and Verizon ecosystems will have no access to cutting-edge devices, to say nothing of roaming, and will consequently be marginalized to the point of commercial extinction. The impact on all layers of the wireless industry, from radio access network equipment, chips and consumer devices to operating systems, applications and content, would be nothing short of devastating. Competition and consumer choice in wireless communications depend on full interoperability at all layers and evenhanded access to crucial inputs such as devices and roaming. Judge Huvelle's decision, though by no means the final battle in a war that has only begun, represents a significant victory for competition and consumer welfare in the broader market for wireless equipment, services and content.

Editor's note: This article first appeared on November 22, 2011, on Jurist Forum as Jim Chen, Merger to Monopsony: AT&T, T-Mobile, and the Clayton Act.

The author has provided advice to Cellular South in connection with its lawsuit to enjoin AT&T's proposed acquisition of T-Mobile. After filing suit against AT&T, Cellular South changed its name to C Spire Wireless. For the sake of clarity and consistency, the author has referred to this company throughout this article as Cellular South, the name under which it originally sued.

The Unexamined Life of the American Law School

2011-11-22T14:19:00.005-05:00

David Segal recently published an article in the New York Times entitled: "What They Don't Teach Law Students: Lawyering." It's a dreadful piece of journalism, but it raises an issue that law schools really should be thinking about much more seriously.

It would be tempting to entitle this comment, "What They Don't Teach Journalists: Reporting." The Segal article is really a shoddy piece of work. It has a couple of obvious factual errors (incorrectly stating the coverage of criminal procedure courses; referring to a paper by a philosopher in a philosophy journal as an example of a law review article.) It also engages in obvious cherry-picking -- finding articles with ridiculous-sounding titles in obscure law reviews rather than talking about recent issues of major law reviews, which probably would sounds more interesting and relevant to readers. Articles about topics such as originalism or Guantanamo may not be relevant to most practitioners, but newspaper readers might think they were a worthwhile use of time. And the ratio of editorializing to facts in the Siegel article is very high.

The article's view of legal practice also seems rather unintelligent. It assumes corporate law courses should be teaching students how to file paperwork, rather than trying to understand the economics of how transactions work and why corporate law imposes the requirements that it does on boards of directors or how courts review merger tactics. Segal complains that students aren't taught what papers to file for a merger. Why teach that in law school? It took me less than a minute to get the answer by googling "Delaware merger formalities."

As I say, it would be tempting to dismiss the article as an example of the decline of American journalism. But the article is right about one really important thing: law schools are extremely unreflective about what they are doing and about the needs of their students. We make little or no systematic effort to find out about what lawyers need to know to do their jobs or to think about how that may change over the next few decades. In fact, we don't do nearly as well in thinking about these things as the military -- for example, the Army commissioned a really interesting study by RAND about how to train officers for combat when future wars are likely to involve situations and tactics that we can't foresee today (such as the use of IEDs in Iraq).

Law schools could certainly benefit from a little self-evaluation. Our first-year curriculum focuses on common law subjects, even though we live in a statutory world. We teach criminal law courses that largely ignore both the drug crimes that are central to criminal practice and the biggest policy issues relating to criminal justice (racial disparties and sentencing). We make every student take civil procedure even though a minority will become civil litigators, and in any event the course teaches little about the two biggest tasks for civil litigators (managing discovery and negotiating settlements). And by the way, it's hard to get people to teach these courses because most faculty members find them profoundly uninteresting. Thus, we've managed to create a first-year curriculum that combines dubious practical utility, lack of policy salience, and theoretical banality. The main reason we do these things is that we have always done them, and it would be a lot of trouble to change.

I fully understand why no one wants to really think about these issues. It's a major struggle to add or subtract a single hour of credit from a first year course. No one -- certainly not me -- wants to devote endless hours to a quixotic effort in radical curriculum change. Ed Rubin's efforts at Vanderbilt are a salutary lesson in what happens when someone is brave enough to challenge the status quo. But it would be nice if we could at least start a serious discussion of these issues among ourselves.

Spending the Day "At Home"

2011-09-04T12:01:00.010-04:00

Since a lot of people are home for a few days because of the holidays, I thought I'd use the opportunity to put in a plug for Bill Bryson's book, At Home. The subtitle is "A Short History of Private Life," but it's really more a history of houses, their rooms, functions, and uses. It's full of fascinating information, such as how a professional gardener came to build the great Victorian Crystal Palace, why country homes in England are called "Halls" (because in Anglo-Saxon times even large houses were single rooms, and the whole things was called a hall), and why it's difficult to build safe staircases (because posture and movement are quite different for people going up and those going down). Not everyone will share this taste, but I think it's exciting to find out about the history of something when it never occurred to you before that it had actually had a history.

One point that Bryson makes is about the importance of the Victorian Era — say the time between Jackson and TR in American terms. At the beginning of this period, it was still true — as it had been in Roman times and even earlier — that the fastest way to move either goods or information was on a galloping horse. Medicine, sanitation, and architecture had also made little real progress since the fall of Rome (and at least in terms of sanitation things had gone backwards). But at the end of this period, people were traveling by train, communicating by telegraph and even phone, using anesthetics and antiseptics for surgery, using new materials such as iron, steel and glass for construction, replacing candles with electric lights, and using flush toilets and major urban sewage systems. Arguably, no single generation of humanity has ever seen such important transformations.

It's also remarkable to think of the scale of construction in the Victorian era: transcontinental railways, sewage systems, canals, bridges that still stand today, hundreds of major urban parks (with Central Park as the most famous example). We would be very hard-pressed to duplicate these feats today, as shown difficulties of building high-speed rail in the U.S. It is also quite noteworthy that so many of the great Victorian builders were essentially amateurs who came from very humble beginnings and somehow found themselves designing great houses and changing the English landscape. The modern world seems much more straitjacketed by comparison.

I suspect that we also underestimate the amount of legal change that took place to this period. Just as the "Victorian" became a synonym for "stuffy and old-fashioned" in the Twentieth Century, the legal rules that emerged from this period became the traditional common law against which reformers railed. But the Victorian period also saw the creation of whole new bodies of law (corporations, antitrust), major procedural reforms (from writs to code pleading), the origins of legal realism (with Holmes), the abolition of slavery, the invention of the modern American law school, and much more.

Privatizing Keynes: Using Game Theory to Fight the Recession

2011-08-22T21:18:00.007-04:00

According to neo-Keynesian economists, the problem with the economy is that people and businesses are hanging onto their money rather than spending it. There's a vicious cycle that needs to be broken: people aren't spending any money, because businesses are afraid to hire since demand is weak, so people either don't have jobs or are afraid of losing them, which leads them to spend less . . . The classic Keynesian solution is for the government to make up for the spending gap. But there's another, more private sector approach that could also work.

From this perspective, the recession is a collective action problem. Paul Krugman has a really nice parable about a babysitting coop in which everyone decides to babysit more to earn credits for future evenings out, but the result is that no one can get any credits because no one is going out, which the coop solves by issuing extra credits. If businesses could agree to hire, demand would be stimulated, and they would all be better off. But for any one business to act independently makes no sense since little of the increased demand from its own workers will be for its products. The problem is that solving the problem requires coordination.

Consider the following game. In step one, businesses make pledges to increase their workforce by an agreed amount, conditioned on a critical mass of other businesses doing the same. The pledges are not announced until the end of the commitment period. An equilibrium strategy is for everyone to pledge -- it costs nothing unless the critical mass is reached, but pays off in the form of increased sales otherwise. Moreover, if everyone else signs up, you're going to want to hire more people in order to deal with the increased demand. (Thus, this is a coordination game rather than a prisoner's dilemma). An added wrinkle, by the way, would be for the Fed to pledge to help finance all of this by buying corporate paper from companies that participate.

Once the pledges are made, what are the incentives to follow through with the hiring? One could be reputational. Firms that hire could advertise themselves as "Put America Back to Work" companies promised to hire but failed to do so would face unhappy consumers for their lack of patriotism. Another possible sanction is legal. There is some argument that the pledges are all made in consideration of each other, along the lines of the New York rules for charitable pledges established by Justice Cardozo.

This resembles some proposals that have recently been made by Joe Nocera and Marc Groz, but with some differences. They would make the commitment conditional on agreement by other firms in the same industry, which seems to me like an invitation to antitrust problems. Also, they are asking businesses to be public spirited whereas I'm focusing on the fact that a successful program will boost their sales.

This proposal is out in left field and implausible -- until the day it isn't. What makes it implausible is that it doesn't have enough credibility to be taken seriously, so it's not plausible for businesses to participate. But as soon as enough people take it seriously, then it becomes a live prospect because the likelihood of getting enough pledges becomes big enough to take seriously. (A bit like Tinker Bell, this proposal needs a critical mass of belief in order to be viable.)

How could this program get the credibility it needs to work? The President could put his weight behind it, or failing that, it could get some major employer like Walmart to back it. Neither is likely to happen until the idea has already begun to gain some public plausibility -- but that could happen from a bottom-up process, through social networks, blog posts, etc.

The classic remedies for recession make a lot of sense to me: increase the money supply and use government spending to stimulate the economy. But for political reasons if nothing else, those remedies are questionable now. So why not take the plunge and try something new?

Modern disaster theory

2011-08-16T07:39:00.005-04:00

The 2004 tsunami in Ao Nang, Krabi Province, Thailand

Newly posted on my SSRN page and forthcoming in the Emory International Law Review's disaster law symposium —

Jim Chen, Modern Disaster Theory: Evaluating Disaster Law as a Portfolio of Legal Rules, 26 Emory Int'l L. Rev. (forthcoming 2012) (available at http://ssrn.com/abstract=1910669):

Disaster law consists of a portfolio of legal rules for dealing with catastrophic risks. This essay takes preliminary steps toward modeling that metaphor in quantitative terms made familiar through modern portfolio theory. Modern disaster theory, by analogy to the foundational model of corporate finance, treats disaster law as the best portfolio of legal rules. Optimal legal preparedness for disaster consists of identifying, adopting, and maintaining that portfolio of rules at the frontier of efficient governance.

Part I of this essay defines disaster and disaster law. In an effort to develop an analytically rigorous basis for modeling and evaluating disaster law, Part II expounds the principles of modern portfolio theory, a framework for assessing financial returns according to risk. Part III outlines the principles of modern disaster theory as the legal analogue of modern portfolio theory as a branch of finance. Part IV conducts an exercise in applied modern disaster theory. It evaluates legal tools for compensating disaster victims ex post and spreading catastrophic risk ex ante according to the terms of modern disaster theory’s catastrophic preparedness asset model. Part V concludes that modern disaster theory, through the use of sophisticated quantitative methods analogous to those used in financial analysis, promises to place disaster law and policy at the efficient frontier of legal preparedness.

Update, August 18, 2011: Many thanks to Joshua P. Fershee for his comments on Modern Disaster Theory at the Business Law Prof Blog and to Lawrence B. Solum for featuring this article on Legal Theory Blog.

Time again to waste incumbents with wasted votes?

2011-07-26T17:31:00.001-04:00

Partisan bickering over the federal debt ceiling makes me nostalgic for this moment in American political history, which I witnessed as a resident of Minnesota and helped effect in 1998 as a voter disgusted with both major political parties:

Has the time come for a truly durable third party? Thomas Friedman speaks longingly of the prospect that we might yet witness the rise of the radical center. Nate Silver speculates that popular frustration with the two-party system may have reached a historically significant high-water mark:

A credible independent bid for the presidency is always a long-shot, but might be more viable under these conditions. Or we may simply see a genuine anti-incumbent wave — a much-discussed phenomenon that has rarely occurred in practice — with significant numbers of elected officials in both parties losing office. It is not out of the question that Democrats could lose the White House but take back control of the House of Representatives.

I have long wished that the United States could find a way to break free of its suffocating political duopoly. It's high time to get past first past the bloody post. There's no time like the present, or the 2012 elections, to waste incumbents with wasted votes.

The Fall of the House of Zeus

2011-07-08T13:15:00.003-04:00

Reprinted from The Cardinal Lawyer
Justice Bill Cunningham of the Kentucky Supreme Court takes a keen interest in legal education, especially in the ethical training of law students and lawyers. He writes to recommend a book, The Fall of the House of Zeus: The Rise and Ruin of America's Most Powerful Trial Lawyer:

I have just finished reading the book, The Fall of the House of Zeus [The Rise and Ruin of America's Most Powerful Trial Lawyer], by Curtis Wilkie. It is about the rise and fall of mega lawyer, Dickie Scruggs, of the famed asbestos-tobacco-Katrina lawsuits. The story dramatically relates how greed can transform erstwhile good people and fine people into criminals. If possible, I would make it required reading for every lawyer and law student in Kentucky.

Tilapia: The flip side of the perfect factory fish

2011-05-03T08:30:00.002-04:00

Tilapia is traditionally regarded as the fish in the biblical story of Jesus feeding a multitude of five thousand. The question is the price we pay for farmed tilapia as part of the contemporary food supply. It is fish, to be sure, but it doesn't offer the same nutritional value as species far richer in omega 3 fatty acids. Tilapia is also one of the world's most destructively invasive fish species. What makes tilapia so destructive is its rapid feeding and growth cycle and its adaptability to a wide variety of habitats. Those are also the perfect traits for a factory fish.

As global aquaculture in tilapia booms, the words of Danilo Sosa, a technician with Nicanor Fish Farms in Nicaragua, bear remembering: “Nature is for maintaining species; what we do is make fillets.”

Another ode to ordinary things

2011-05-02T01:03:00.000-04:00

From the very beginning, this blog has celebrated ordinary places, ordinary things, and ordinary events. True to that mission, this post draws a quotidian example from my work. I seek to connect my scholarship on disaster law to my work as an academic administrator.

Turnovers in leadership raise serious problems for businesses. No less than Fortune 500 companies, startup companies and family-owned enterprises face transitional disruption when a high-ranking executive takes her or his leave.

Nonprofit institutions face similar challenges. The Office of Personnel Management carefully choreographs succession planning on behalf of the federal government. For their part, academic institutions devote considerable energy replacing top-level managers who resign, retire, or die.

Preparing for obvious contingencies, however, is a bit like building a figurative Maginot Line. In academia, preparing for an associate dean's departure rarely draws the same degree of planning as does the departure of a dean or a university president. Quite arguably, however, it deserves close attention in its own right.

The job of the associate dean, after all, requires more extensive operational knowledge of an institution. The office of academic affairs, the function most often assigned to an associate dean, demands far more attention to detail. The job is largely thankless; the usual forms of compensation — a modest emolument, coupled with a slightly lighter teaching schedule — are barely commensurate, if at all, to the extra work. Think of it this way: The associate dean is to the dean as the university provost is to the president. Hardly anyone aspires to that sort of office. It is indeed a barren, bureaucratic soul that dreams someday of becoming an associate dean or a provost.

The pool of potential candidates for these positions is typically smaller. Associate deans are almost always drawn from the ranks of incumbent faculty. Deans and presidents, by contrast, quite routinely come from outside institutions. Though I have no empirical evidence to back this assumption, I do believe that turnover among associate deans exceeds that of deans.

In business, in academia, or in other nonprofit environments, best managerial practices demand anticipating the dull, the boring, the thoroughly unsexy. Due diligence, more often than not, demands nothing less than attention to detail and the discipline to follow through.

An oyster for Passover

2011-04-19T18:56:00.002-04:00

I ordinarily do not make a habit of counseling others to violate the dietary laws of their religious traditions, but Paul Greenberg is putting an oyster on his Seder plate this Passover. His reasons for doing so are worth contemplating on the first anniversary of the BP Deepwater Horizon disaster.

Upcoming Symposium: The Role of States in Federal Health Care Reform

2011-01-13T15:38:00.007-05:00

I’m pleased to announce the Kansas Journal of Law & Public Policy’s 2010-2011 Symposium, exploring “The Role of States in Federal Health Reform.” The federal Patient Protection and Affordable Care Act (ACA), signed into law by President Obama on March 23, 2010, represents the most significant change to the United States’ health care system in a generation. The law also expands, to an unprecedented degree, the role of the federal government in health care. States traditionally had primary authority for regulating health care providers and insurers, and protecting health care consumers. Now, under ACA, states’ discretion to enact separate laws has been reduced, and their responsibility to implement federal law has been increased. That dynamic has generated a range of responses, including, most notably, several states’ lawsuits challenging ACA as an unconstitutional exercise of federal power.

The Symposium provides a unique, timely opportunity to explore these issues. ACA marks a critical juncture in our country’s history for both welfare policy and federal-state relations. The speakers, including national health law and federalism scholars as well as Kansas state government representatives will explore these tensions – digesting key provisions of the 900-page statute; explaining the pros and cons of federal, as opposed to state-based, health reform; and detailing Kansas’ particular response to the new federal laws.

Speakers and topics include:

Elizabeth Weeks Leonard, Professor of Law, University of Kansas, Welcome and Introductory Remarks

Jonathan Adler, Professor of Law, Case Western Reserve University School of Law, “Cooperation, Commandeering, or Crowding Out? Federal Intervention and State Choices in Health Care Policy”

Tim Greaney, Professor of Law, Saint Louis University School of Law, “Designing Health Insurance Exchanges to Promote Competition”

Mark Hall, Professor of Law, Wake Forest University School of Law, “The Role of Risk Adjustment under the Affordable Care Act”

Abigail Moncrieff, Associate Professor of Law, Boston University School of Law, “The Positive Case for Federal Health Care Regulation”

Sandy Praeger, Kansas Insurance Commissioner, “A View from the Insurance Commissioner on the Health Care Reform”

Dr. Andrew Allison, Executive Director, Kansas Health Policy Authority Board, “State Choices and Challenges in the Wake of Federal Health Reform Legislation”

Dr. Marcia Nielsen, Vice Chancellor for Public Policy and Planning, University of Kansas Medical Center, “Understanding Federal Health Reform: Setting the Stage for State Implementation”

The Symposium will conclude with a round table discussion with the speakers and participants. Kansas and Missouri CLE credits (7 hours) pending. There is no charge for attendance, but please register online here.

Disaster and its dimensions

2010-11-05T17:40:00.005-04:00

Herewith the video version of Disaster and Its Dimensions: Legal Responses to Distortions in Time and Space, the opening keynote address to the Twelfth Annual Northeast Florida Environmental Summit, held at the Florida Coastal School of Law:

I also invite you to watch the entire video proceedings of the conference:

Feminist agricultural law: A scholarly confessional

2010-03-13T15:24:00.002-05:00

Feminist agricultural law. It is an idea as compelling as it is timeless. On Agricultural Law, I offer some observations on agricultural legal feminism, from a scholarly confessional to incipient thoughts on an intellectual agenda.

Exotic game, lethal invaders

2010-03-11T02:06:00.000-05:00

The Florida Fish and Wildlife Conservation Commission has declared special hunting season on reptilian species of environmental concern: Burmese python, Indian python, reticulated python, northern and southern African rock python, amethystine or scrub python, green anaconda, and Nile monitor lizard. Hunters may take these species throughout state lands in southern Florida from March 8 through April 17, 2010.

The accompanying Miami Herald video portrays Bob Hill, who hunts pythons and other invasive reptiles in the Everglades for the South Florida Water Management District. The New York Times has hosted a forum on the use of hunting as one weapon against alien invasive species.

Editor's note: Cross-posted at Biolaw.

The agony and the sweat

2010-02-10T02:26:00.003-05:00

William Faulkner's speech upon his acceptance of the Nobel Prize for Literature, Stockholm City Hall, December 10, 1950 (audio via YouTube):

I feel that this award was not made to me as a man, but to my work — a life's work in the agony and sweat of the human spirit, not for glory and least of all for profit, but to create out of the materials of the human spirit something which did not exist before. So this award is only mine in trust. It will not be difficult to find a dedication for the money part of it commensurate with the purpose and significance of its origin. But I would like to do the same with the acclaim too, by using this moment as a pinnacle from which I might be listened to by the young men and women already dedicated to the same anguish and travail, among whom is already that one who will some day stand here where I am standing.

Our tragedy today is a general and universal physical fear so long sustained by now that we can even bear it. There are no longer problems of the spirit. There is only the question: When will I be blown up? Because of this, the young man or woman writing today has forgotten the problems of the human heart in conflict with itself which alone can make good writing because only that is worth writing about, worth the agony and the sweat.

He must learn them again. He must teach himself that the basest of all things is to be afraid; and, teaching himself that, forget it forever, leaving no room in his workshop for anything but the old verities and truths of the heart, the old universal truths lacking which any story is ephemeral and doomed — love and honor and pity and pride and compassion and sacrifice. Until he does so, he labors under a curse. He writes not of love but of lust, of defeats in which nobody loses anything of value, of victories without hope and, worst of all, without pity or compassion. His griefs grieve on no universal bones, leaving no scars. He writes not of the heart but of the glands.

Until he relearns these things, he will write as though he stood among and watched the end of man. I decline to accept the end of man. It is easy enough to say that man is immortal simply because he will endure: that when the last dingdong of doom has clanged and faded from the last worthless rock hanging tideless in the last red and dying evening, that even then there will still be one more sound: that of his puny inexhaustible voice, still talking. I refuse to accept this. I believe that man will not merely endure: he will prevail. He is immortal, not because he alone among creatures has an inexhaustible voice, but because he has a soul, a spirit capable of compassion and sacrifice and endurance. The poet's, the writer's, duty is to write about these things. It is his privilege to help man endure by lifting his heart, by reminding him of the courage and honor and hope and pride and compassion and pity and sacrifice which have been the glory of his past. The poet's voice need not merely be the record of man, it can be one of the props, the pillars to help him endure and prevail.

The rhetorical orgin of Sarah Palin's "death panel"

2009-08-10T23:20:00.002-04:00

Despite her July 26, 2009, resignation as governor of Alaska, Sarah Palin remains a formidable political force. She has shifted her primary written platform from Twitter to Facebook.

Sarah Palin's Facebook page has had an immediate and profound impact on national politics. Her Statement on the Current Health Care Debate notably handed opponents of health care reform a potent rhetorical weapon:

The Democrats promise that a government health care system will reduce the cost of health care, but . . . government health care will not reduce the cost; it will simply refuse to pay the cost. And who will suffer the most when they ration care? The sick, the elderly, and the disabled, of course. The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s “death panel” so his bureaucrats can decide, based on a subjective judgment of their “level of productivity in society,” whether they are worthy of health care. Such a system is downright evil.

Health care reform, whatever its virtues or drawbacks, will do no such thing. That at any rate is my belief; I side with those observers who believe that Palin's fictional "death panel" has grotesquely wounded political discourse on health policy. But my objective here is not political. I aim simply to trace the rhetorical origin of the term death panel.

In all of American law, exactly one phrase carries a resonance comparable to death panel. Its source is undoubtedly familiar to Sarah Palin: the Endangered Species Act Amendments of 1978, Pub. L. No. 95-632, 92 Stat. 375. In an effort to inject more flexibility into the act after TVA v. Hill, 437 U.S. 153 (1978), the 1978 amendments created the Endangered Species Committee and empowered it, upon a vote of no fewer than five of its seven members, to exempt a federal agency from section 7 of the original Endangered Species Act of 1973. These conditions must be met before the committee authorizes a section 7 exemption:

There must be no reasonable alternative to the agency's action.
The benefits of the action must outweigh the benefits of conserving the species.
The action is of regional or national importance.
Neither the federal agency or the exemption applicant made irreversible commitment to the resources.

Of course, no one calls the Endangered Species Committee by that name. Everyone calls it the God Squad. That name is apt, not because the committee possesses "collective wisdom but because the decisions it may render were once left to an even higher authority."

As governor of Alaska and as an avid, lifelong hunter, Sarah Palin has been quick to find fault with federal environmental law. She is no fan of aggressive enforcement of the Endangered Species Act. That statute's God Squad restores some of the anthropocentric "balance" that one might imagine Sarah Palin to favor. Strange though it may seem, this rarely invoked provision of the Endangered Species Act may well have triggered the poetic imagination of Sarah Palin. The "God Squad" appears to given her the rhetorical weapon by which to condemn the feared potential of health care reform to assume divine power over life and death.

Malaise in America again

2009-07-15T21:48:00.006-04:00

Thirty years ago, President Jimmy Carter delivered A Crisis of Confidence, better known as "The Malaise Speech." We stand again on a precipice of national decline, having frittered away three decades of opportunities to address energy dependency, environmental protection, and climate change. That "malaise" speech may not be so bound in time after all.

Jimmy Carter, A Crisis of Confidence (July 15, 1979) (transcript)

Click on the image of Jimmy Carter to read excerpts from A Crisis of Confidence:

Good evening. This a special night for me. Exactly three years ago, on July 15, 1976, I accepted the nomination of my party to run for President of the United States. I promised you a President who is not isolated from the people, who feels your pain, and who shares your dreams, and who draws his strength and his wisdom from you.

During the past three years I’ve spoken to you on many occasions about national concerns, the energy crisis, reorganizing the government, our nation’s economy, and issues of war and especially peace. But over those years the subjects of the speeches, the talks, and the press conferences have become increasingly narrow, focused more and more on what the isolated world of Washington thinks is important. Gradually, you’ve heard more and more about what the government thinks or what the government should be doing and less and less about our nation’s hopes, our dreams, and our vision of the future.

Ten days ago, I had planned to speak to you again about a very important subject — energy. For the fifth time I would have described the urgency of the problem and laid out a series of legislative recommendations to the Congress. But as I was preparing to speak, I began to ask myself the same question that I now know has been troubling many of you: Why have we not been able to get together as a nation to resolve our serious energy problem?

It’s clear that the true problems of our nation are much deeper — deeper than gasoline lines or energy shortages, deeper even than inflation or recession. . . .

[A]fter listening to the American people, I have been reminded again that all the legislation in the world can’t fix what’s wrong with America. So, I want to speak to you first tonight about a subject even more serious than energy or inflation. I want to talk to you right now about a fundamental threat to American democracy.

I do not mean our political and civil liberties. They will endure. And I do not refer to the outward strength of America, a nation that is at peace tonight everywhere in the world, with unmatched economic power and military might.

The threat is nearly invisible in ordinary ways.

It is a crisis of confidence.

It is a crisis that strikes at the very heart and soul and spirit of our national will. We can see this crisis in the growing doubt about the meaning of our own lives and in the loss of a unity of purpose for our nation.

The erosion of our confidence in the future is threatening to destroy the social and the political fabric of America.

The confidence that we have always had as a people is not simply some romantic dream or a proverb in a dusty book that we read just on the Fourth of July. It is the idea which founded our nation and has guided our development as a people. Confidence in the future has supported everything else — public institutions and private enterprise, our own families, and the very Constitution of the United States. Confidence has defined our course and has served as a link between generations. We’ve always believed in something called progress. We’ve always had a faith that the days of our children would be better than our own.

Our people are losing that faith, not only in government itself but in the ability as citizens to serve as the ultimate rulers and shapers of our democracy. As a people we know our past and we are proud of it. Our progress has been part of the living history of America, even the world. We always believed that we were part of a great movement of humanity itself called democracy, involved in the search for freedom; and that belief has always strengthened us in our purpose. But just as we are losing our confidence in the future, we are also beginning to close the door on our past.

In a nation that was proud of hard work, strong families, close-knit communities, and our faith in God, too many of us now tend to worship self-indulgence and consumption. Human identity is no longer defined by what one does, but by what one owns. But we’ve discovered that owning things and consuming things does not satisfy our longing for meaning. We’ve learned that piling up material goods cannot fill the emptiness of lives which have no confidence or purpose.

The symptoms of this crisis of the American spirit are all around us. For the first time in the history of our country a majority of our people believe that the next five years will be worse than the past five years. Two-thirds of our people do not even vote. The productivity of American workers is actually dropping, and the willingness of Americans to save for the future has fallen below that of all other people in the Western world.

As you know, there is a growing disrespect for government and for churches and for schools, the news media, and other institutions. This is not a message of happiness or reassurance, but it is the truth and it is a warning.

These changes did not happen overnight. They’ve come upon us gradually over the last generation, years that were filled with shocks and tragedy. . . .

Looking for a way out of this crisis, our people have turned to the Federal Government and found it isolated from the mainstream of our nation’s life. Washington, D.C., has become an island. The gap between our citizens and our government has never been so wide. The people are looking for honest answers, not easy answers; clear leadership, not false claims and evasiveness and politics as usual.

What you see too often in Washington and elsewhere around the country is a system of government that seems incapable of action. You see a Congress twisted and pulled in every direction by hundreds of well-financed and powerful special interests.

You see every extreme position defended to the last vote, almost to the last breath by one unyielding group or another. You often see a balanced and a fair approach that demands sacrifice, a little sacrifice from everyone, abandoned like an orphan without support and without friends.

Often you see paralysis and stagnation and drift. You don’t like it, and neither do I. What can we do?

First of all, we must face the truth, and then we can change our course. We simply must have faith in each other, faith in our ability to govern ourselves, and faith in the future of this nation. Restoring that faith and that confidence to America is now the most important task we face. It is a true challenge of this generation of Americans. . . .

We know the strength of America. We are strong. We can regain our unity. We can regain our confidence. We are the heirs of generations who survived threats much more powerful and awesome than those that challenge us now. Our fathers and mothers were strong men and women who shaped a new society during the Great Depression, who fought world wars and who carved out a new charter of peace for the world. . . .

We are at a turning point in our history. There are two paths to choose. One is a path I’ve warned about tonight, the path that leads to fragmentation and self-interest. Down that road lies a mistaken idea of freedom, the right to grasp for ourselves some advantage over others. That path would be one of constant conflict between narrow interests ending in chaos and immobility. It is a certain route to failure.

All the traditions of our past, all the lessons of our heritage, all the promises of our future point to another path — the path of common purpose and the restoration of American values. That path leads to true freedom for our nation and ourselves. We can take the first steps down that path as we begin to solve our energy problem.

Energy will be the immediate test of our ability to unite this nation, and it can also be the standard around which we rally. On the battlefield of energy we can win for our nation a new confidence, and we can seize control again of our common destiny. . . .

The energy crisis is real. It is worldwide. It is a clear and present danger to our nation. These are facts and we simply must face them.

What I have to say to you now about energy is simple and vitally important.

Point one: I am tonight setting a clear goal for the energy policy of the United States. Beginning this moment, this nation will never use more foreign oil than we did in 1977 — never. From now on, every new addition to our demand for energy will be met from our own production and our own conservation. The generation-long growth in our dependence on foreign oil will be stopped dead in its tracks right now and then reversed as we move through the 1980s, for I am tonight setting the further goal of cutting our dependence on foreign oil by one-half by the end of the next decade — a saving of over four and a half million barrels of imported oil per day.

Point two: To ensure that we meet these targets, I will use my presidential authority to set import quotas. I’m announcing tonight that for 1979 and 1980, I will forbid the entry into this country of one drop of foreign oil more than these goals allow. These quotas will ensure a reduction in imports even below the ambitious levels we set at the recent Tokyo summit.

Point three: To give us energy security, I am asking for the most massive peacetime commitment of funds and resources in our nation’s history to develop America’s own alternative sources of fuel — from coal, from oil shale, from plant products for gasohol, from unconventional gas, from the sun.

I propose the creation of an energy security corporation to lead this effort to replace two and a half million barrels of imported oil per day by 1990. The corporation will issue up to five billion dollars in energy bonds, and I especially want them to be in small denominations so average Americans can invest directly in America’s energy security.

Just as a similar synthetic rubber corporation helped us win World War II, so will we mobilize American determination and ability to win the energy war. Moreover, I will soon submit legislation to Congress calling for the creation of this nation’s first solar bank which will help us achieve the crucial goal of twenty percent of our energy coming from solar power by the year 2000.

These efforts will cost money, a lot of money, and that is why Congress must enact the windfall profits tax without delay. It will be money well spent. Unlike the billions of dollars that we ship to foreign countries to pay for foreign oil, these funds will be paid by Americans, to Americans. These will go to fight, not to increase, inflation and unemployment.

Point four: I’m asking Congress to mandate, to require as a matter of law, that our nation’s utility companies cut their massive use of oil by fifty percent within the next decade and switch to other fuels, especially coal, our most abundant energy source.

Point five: To make absolutely certain that nothing stands in the way of achieving these goals, I will urge Congress to create an energy mobilization board which, like the War Production Board in World War II, will have the responsibility and authority to cut through the red tape, the delays, and the endless roadblocks to completing key energy projects.

We will protect our environment. But when this nation critically needs a refinery or a pipeline, we will build it.

Point six: I’m proposing a bold conservation program to involve every state, county, and city and every average American in our energy battle. This effort will permit you to build conservation into your homes and your lives at a cost you can afford.

I ask Congress to give me authority for mandatory conservation and for standby gasoline rationing. To further conserve energy, I’m proposing tonight an extra ten billion dollars over the next decade to strengthen our public transportation systems. And I’m asking you for your good and for your nation’s security to take no unnecessary trips, to use carpools or public transportation whenever you can, to park your car one extra day per week, to obey the speed limit, and to set your thermostats to save fuel. Every act of energy conservation like this is more than just common sense, I tell you it is an act of patriotism.

Our nation must be fair to the poorest among us, so we will increase aid to needy Americans to cope with rising energy prices. We often think of conservation only in terms of sacrifice. In fact, it is the most painless and immediate ways of rebuilding our nation’s strength. Every gallon of oil each one of us saves is a new form of production. It gives us more freedom, more confidence, that much more control over our own lives.

So, the solution of our energy crisis can also help us to conquer the crisis of the spirit in our country. It can rekindle our sense of unity, our confidence in the future, and give our nation and all of us individually a new sense of purpose. . . .

I do not promise you that this struggle for freedom will be easy. I do not promise a quick way out of our nation’s problems, when the truth is that the only way out is an all-out effort. What I do promise you is that I will lead our fight, and I will enforce fairness in our struggle, and I will ensure honesty. And above all, I will act.

We can manage the short-term shortages more effectively, and we will; but there are no short-term solutions to our long-range problems. There is simply no way to avoid sacrifice. . . .

Little by little we can and we must rebuild our confidence. We can spend until we empty our treasuries, and we may summon all the wonders of science. But we can succeed only if we tap our greatest resources — America’s people, America’s values, and America’s confidence.

I have seen the strength of America in the inexhaustible resources of our people. In the days to come, let us renew that strength in the struggle for an energy-secure nation.

In closing, let me say this: I will do my best, but I will not do it alone. Let your voice be heard. Whenever you have a chance, say something good about our country. With God’s help and for the sake of our nation, it is time for us to join hands in America. Let us commit ourselves together to a rebirth of the American spirit. Working together with our common faith we cannot fail.

Thank you and good night.

In Defense of Law School--A Response to Lippe

2009-07-10T10:13:00.003-04:00

There has been plenty of buzz on legal blogs lately in response to Paul Lippe's AmLaw blog post laying out the case against the prevailing law school pedagogical model, in particular the status and role of the law faculty. There is no question that there is room for improvement in the American law school model, as there is in every educational model. Bill Henderson at Indiana University Law School, in a post on the Legal Profession Blog, makes a good case that Lippe's post deserves attention and that if times are changing for lawyers' clients, they are going to change for lawyers as well, meaning law schools must be attentive to the needs of our students to be able to succeed in a transformed professional environment. Nevertheless, let us not get so carried away in laying the blame on law schools as Lippe does.

Before I go further, a few disclosures. First, I am a law professor, a tenured one at that. I have been tenured at a rural public law school and at a public law school in the state capital of a major state, and I have visited at private "top 25" law schools. I've seen the spectrum of legal education. Second, I also practiced law for longer than most law professors prior to entering teaching--12 years with a very large law firm, the last four as a partner. I was in charge of hiring for one of the firm's offices for two years. I know what the practice of law is about, and I know what to expect at the entry level hiring stage. The upshot is that I do value the value of ensuring that law schools prepare graduates for entry into the profession, but I also equally value how important it is not to reduce the law school experience to that of a trade school. Now back to Lippe's ditty.

In short, although there is some truth in the basic theme of Lippe's assessment of the role of law schools and what they deliver, which I will get into later, how he arrives there is thoroughly off base. Here's why:

1. Lippe repeatedly suggests that medical and business schools have got it right and law schools provide "inferior training." Oh really? So, when our nation is in the throes of a debate over the runaway costs of health care and the global economy is in a massive recession due largely to the utter largess and indulgence of our big business and investment industries, law schools should emulate medical and business schools? I think not. Rather, I suggest that medical and business schools are right up there with, if not ahead of, law schools in the need to examine their pedagogical models. In any event, it is not useful to compare medical, business, and law school models--they are three vastly different professions with distinct subject matters and professional pathways.

2. Lippe goes further, arguing that "law schools will have to produce fully functioning lawyers who can quickly become economically viable--not just proto appellate clerks." Just like medical and business schools do, right? Wrong. Medical schools do not produce "fully functioning physicians" and business schools do not produce "fully functioning corporate executives." Medical residencies and corporate ladders are the next training grounds for graduates of those professional schools. Indeed, Lippe identifies a root problem with legal profession--that "firms' appetite for subsidizing training will decline." It already has declined, because the "law as a business" model of elite law firms, which replaced "law as a profession" in the 1980s, has squeezed out everything but the billable hour from the life of associates. With a few notable and noble exceptions, BigLaw law firms want more and more to be able to charge new associates' billable hours they can justify to clients, but want less and less to bear the cost of getting the new lawyers "fully functional." Most of the discontent Lippe identifies seems to come from practitioners locked in this "law as business" model, whether in elite law firms or large corporate departments. It may be time for them to reexamine their commitment to training young lawyers, as well as to law as a profession.

3. Nowhere, for that matter, does Lippe define what a "fully functional lawyer" is. What does Lippe expect law schools to produce? Is it a lawyer equipped out of the box to argue a case in the U.S. Supreme Court? To take the deposition of a Fortune 50 CEO? To negotiate the terms of a major corporate acquisition? Of course not. Consider that most first year law students come to law school with little or no knowledge of the legal institutions of our nation beyond the basic civics class level. Lippe argues that the "time to [lawyers'] professional independence is longer [than physicians']. This is not because law is more complex or riskier than medicine, but because legal training is inferior." Well, at least he concedes law is complex and risky. But is it fair to say that I wouldn't want a newly-minted lawyer arguing a bet the company lawsuit for me because his or her training was inferior? No. The reason why is because I want someone who has argued hundreds of other less high stakes cases before taking on my high stakes case, and that simply takes time on the job. There is no way in three years of law school to get someone into that position. What we can and should do, of course, is strive to get our graduates into a position to become such a lawyer.

4. Part of the problem with Lippe's pitch in this respect is that he talks about law schools preparing graduates for the "legal profession" as if the legal profession consists exclusively of private law firms and corporate counsel offices, where, if I understand him correctly, the theory and policy of law are irrelevant. I'm not sure what Lippe believes goes on in law firms, but I know from my practice days that lawyers at law firms with sophisticated clients are often asked to think outside the box, to propose changes to legislation or regulations, to make novel arguments in court, and to suggest cutting edge legal strategies. Moreover, the legal profession extends far beyond law firms and in-house counsel offices. Lawyers working for public entities and non-governmental organizations are even more likely to be asked to "invent" law for the future. Lippe believes legal education should be reduced to "no more than a year of case method, a year of clinical, and then a year of externship with subject area focus, along the lines of medical school." What happened to thinking about what the law should be, rather than just what it is?

5. Lippe's central objection with law school faculties is that they "have grown more distant from the profession, and the legal academy has come to define itself as primarily engaged in a scholarly pursuit (like, say, literature or history), as opposed to a professional pursuit, like, say, medicine or business." But if one believes there is any value to ensuring that law students learn to think about the "ought" and not just the "is" of law, there has to be an emphasis on the part of the faculty to exploring the "ought" in order to be able competently to teach their students how to do so. Law is inherently a normative enterprise within society. True enough, practitioners must learn the mechanics and basic content of law, and for that purpose law schools must maintain a strong emphasis on practice training, but practitioners--good ones--are not simply automatons applying black letter law to uncontested facts. The law is often murky, or just plain bad, and facts are often incomplete and contested. Thinking about what ought to happen in such contexts is an important facet of legal education I fear Lippe's model would stifle into oblivion. In any event, Lippe's suggestion that law faculty scholarship is devoid of practical focus and content suggests that he has not read much of it.

6. Along with his claim that law schools have "have grown more distant from the profession," Lippe goes so far as to claim that law professors hold law firms "in low regard." One solution he proposes is to use "more adjunct faculty who are active practitioners." Has he examined the course offerings at any law schools lately? He's welcome to check out ours at Florida State University, which includes a plethora of practical and skills oriented courses, many taught by our faculty members. I teach, for example, courses on Land Use Regulation, Growth Management, and Environmental Issues in Business Transactions. Hardly "distant from the professsion" or the sign of holding law firms "in low regard." Like many law schools, moreover, we offer numerous courses taught by adjuncts who are leading practitioners and our faculty members routinely invite practitioners from all types of practice settings to guest lecture, speak at forums, and mentor our students. Many of our faculty members, like those at most law schools, actively participate in local, state, and national legal professional associations such as the American Bar Association and state bar associations--writing for their journals, speaking at conferences, and chairing committees. Lippe is working off a mistaken straw man of what goes on inside most law schools and inside the heads of their faculty members.

I could go on with what is misinformed and off the mark with Lippe's assessment of legal education, but I should give him some credit for identifying the need to respond to the changing landscape of the legal profession (within which I include more than BigLaw and Fortune 50 in-house counsel offices). We must get control of the cost of legal education--it is pricing people of modest means out of the profession and making it near impossible for new law grads to enter public service. We must deliver the skill set that will enable our grads to enter the path to becoming a "fully functional lawyer," a path that is clearly changing at their feet. And we must continue to ensure that law school is about the law student, not the law faculty. My problem isn't with those ideals, it's with how Lippe articulates them and the solutions he offers. Less emphasis on teaching appellate common law decisions and more emphasis on clinical experiences are both part of the mix for legal education reform, but the trade school mentality that permeates Lippe's vision of legal education would be a giant step into backwardness and the last nail in the coffin of law as a profession.

JBR

Governor Mark Sanford faces the music

2009-06-24T18:15:00.002-04:00

In a genuinely remarkable piece of American political theater, Governor Mark Sanford of South Carolina admitted that he had not in fact taken a hike on the Appalachian Trail during a five-day absence, but rather conducted an extramarital affair in Argentina. Extensive news coverage abounds, among other places, in The State (Columbia, S.C.), The Washington Post, and The New York Times.

Even more remarkably, Mark Sanford has a theme song. With very few modifications, the lyrics from "Don't Cry for Me Argentina," the climactic song from the Andrew Lloyd Webber/Tim Rice musical, Evita, come very close to describing Governor Sanford's story:

It won't be easy, you'll think it strange
When I try to explain how I feel
that I still need your love after all that I've done

You won't believe me
All you will see is a guv you once knew
Although he's dressed up to the nines
At sixes and sevens with you

I had to let it happen, I had to change
Couldn't stay all my life down at heel
Looking out of the window, staying out of the sun

So I chose freedom
Running around, trying everything new
But nothing impressed me at all
I never expected it to

Chorus:
Don't cry for me Carolina
The truth is I never left you
All through my wild days
My mad existence
I kept my promise
Don't keep your distance

And as for fortune, and as for fame
I never invited them in
Though it seemed to the world they were all I desired

They are illusions
They are not the solutions they promised to be
The answer was here all the time
I love you and hope you love me

Don't cry for me Carolina

Repeat chorus

Have I said too much?
There's nothing more I can think of to say to you.
But all you have to do is look at me to know
That every word is true

Neda ندا : In life apolitical, in death a symbol of resistance

2009-06-23T01:11:00.004-04:00

In a death seen around the world, a symbol of Iranian protests

It was hot in the car, so the young woman and her singing instructor got out for a breath of fresh air on a quiet side street not far from the antigovernment protests they had ventured out to attend. A gunshot rang out, and the woman, Neda Agha-Soltan, fell to the ground. “It burned me,” she said before she died.

The bloody video of her death on Saturday, circulated in Iran and around the world, has made Ms. Agha-Soltan, a 26-year-old who relatives said was not political, an instant symbol of the antigovernment movement.

Her death is stirring wide outrage in a society that is infused with the culture of martyrdom . . . .

Neda ندا

2009-06-21T16:50:00.002-04:00

This video is as compelling as it is graphic:

In death she is being called Neda ندا, which in Farsi means the voice or the call.

Feudalism Unmodified / Something Blue

2009-06-16T19:37:00.006-04:00

Feudalism Unmodified: Discourses on Farms and Firms, 45 Drake L. Rev. 361 (1997) (with Edward S. Adams):

The regulation of market structure and industrial organization often restricts firms whose size and scope favor sharp distinctions between labor, management, and capital. The epithet feudalism embodies the fears urging rigid structural regulation. This article examines the regulation of feudalism in its native setting, the farm. This article then studies the law's assault on industrial feudalism: anti-takeover statutes.

To advocates of free enterprise, feudalism unmodified is a battle cry. But feudalism unmodified also describes the dismal condition of capitalism and its discontents. Those who would protect small farms and firms lament the failure of structural regulation. Feudalism endures, unmodified.

Something Old, Something New, Something Borrowed, Something Blue, 58 U. Chi. L. Rev. 1527 (1991) (reviewing The Bluebook: A Uniform System of Citation (15th ed. 1991)):

The Bluebook has transcended its role as a legal citation manual. As the citation manual for law reviews at Harvard, Yale, Columbia, and Penn, the Bluebook acts as the contract, combination, or conspiracy in restraint of trade that keeps its publishers solvent. As the condensed expression of the familial relationship between legal academia and student-edited law reviews, the Bluebook represents the prenuptial contract between the professors and the journals. Finally, as the unofficial Uniform Citation Code, the Bluebook is a legislative waste dump for pent-up frustrations in citation politics.

Tehran, June 15, 2009

2009-06-15T22:18:00.002-04:00

Photo: Ben Curtis/Associated Press

Literary Warrant [43]

2009-06-12T13:22:00.029-04:00

McSorley's Old Ale House

Marilyn A. Brown, Frank Southworth & Andrea Sarzynski, Metropolitan Policy Program, Brookings Institution, Shrinking the Carbon Footprint of Metropolitan America (May 2008)

"The nation’s carbon footprint has a distinct geography not well understood or often discussed. This report quantifies transportation and residential carbon emissions for the 100 largest U.S. metropolitan areas, finding that metro area residents have smaller carbon footprints than the average American, although metro footprints vary widely. Residential density and the availability of public transit are important to understanding carbon footprints, as are the carbon intensity of electricity generation, electricity prices, and weather."—Executive Summary.

Oli Brown & Alec Crawford, International Institute for Sustainable Development (IISD), Rising Temperatures, Rising Tensions: Climate Change and the Risk of Violent Conflict in the Middle East (2009)

"In a region already considered the world’s most water scarce and where, in many places, demand for water already outstrips supply, climate models are predicting a hotter, drier and less predictable climate. Higher temperatures and less rainfall will reduce the flow of rivers and streams, slow the rate at which aquifers recharge, progressively raise sea levels and make the entire region more arid.

"These changes will have a series of effects, particularly for agriculture and water management. Under moderate temperature increases, for example, some analysts anticipate that the Euphrates River could shrink by 30 per cent and the Jordan River by 80 per cent by the end of the century.

"This report, prepared by an independent Canadian environment and development research institute, seeks to present a neutral analysis of the security threat of climate change in the region over the next 40 years (to 2050), drawn from consultations and extensive interviews with experts from across the region’s political and ethnic divides."—Summary.

Read the rest of this post . . .

Jean-Marc Burniaux et al., Organisation for Economic Co-operation and Development (OECD), The Economics of Climate Change Mitigation: How to Build the Necessary Global Action in a Cost-Effective Manner (Economics Department Working Papers no. 701) (ECO/WKP(2009)42) (June 5, 2009)

"This paper examines the cost of a range of national, regional and global mitigation policies and the corresponding incentives for countries to participate in ambitious international mitigation actions. The paper illustrates the scope for available instruments to strengthen these incentives and discusses ways to overcome barriers to the development of an international carbon price, based on the quantitative assessment from two global and sectorially-disaggregated CGE models. Key step towards the emergence of a single international carbon price will most likely involve the phasing out of subsidies of fossil fuel consumption and various forms of linking between regional carbon markets, ranging from direct linking of existing emission trading systems to more indirect forms through the use of crediting mechanisms. The paper discusses regulatory issues raised by the expansion of emission trading and crediting schemes as well as the complementary contribution of R&D policies. Finally, the paper emphasises the importance of incorporating deforestation into a global agreement as well as the key role of international transfers, not least to overcome the relatively strong economic incentives in some countries to free ride on other regions mitigation actions."—Abstract.

Mikhail V. Chester & Arpad Horvath, Department of Civil and Environmental Engineering, University of California, Berkeley, Environmental Assessment of Passenger Transportation Should Include Infrastructure and Supply Chains, Environmental Research Letters, v.4 (doi:10.1088/1748-9326/4/2/024008) (2009)

"To appropriately mitigate environmental impacts from transportation, it is necessary for decision makers to consider the life-cycle energy use and emissions. Most current decision-making relies on analysis at the tailpipe, ignoring vehicle production, infrastructure provision, and fuel production required for support. We present results of a comprehensive life-cycle energy, greenhouse gas emissions, and selected criteria air pollutant emissions inventory for automobiles, buses, trains, and airplanes in the US, including vehicles, infrastructure, fuel production, and supply chains. We find that total life-cycle energy inputs and greenhouse gas emissions contribute an additional 63% for onroad, 155% for rail, and 31% for air systems over vehicle tailpipe operation. Inventorying criteria air pollutants shows that vehicle non-operational components often dominate total emissions. Life-cycle criteria air pollutant emissions are between 1.1 and 800 times larger than vehicle operation. Ranges in passenger occupancy can easily change the relative performance of modes."—Abstract.

Commission for Environmental Cooperation (CEC), Taking Stock: 2005 North American Pollutant Releases and Transfers (June 10, 2009)

"Taking Stock 2005 presents an overview of the releases and transfers of chemical contaminants from North American industrial sectors in 2005. The report is based primarily on publicly available data reported to the three national pollutant release and transfer registers (PRTRs) in North America:
- National Pollutant Release Inventory (NPRI) in Canada;
- Registro de Emisiones y Transferencia de Contaminantes (RETC) in Mexico; and
- Toxics Release Inventory (TRI) in the United States."—Introduction.

Liisa Ecola & Thomas Light, RAND Transportation, Space, and Technology, Equity and Congestion Pricing: A Review of the Evidence (Technical Report) (2009)

"This report examines the equity issues associated with congestion pricing. We used published work, supplemented in a few cases with communication with practitioners, as the basis for the analysis. The evidence we reviewed came from two types of sources: evaluations of existing congestion pricing implementations and models of proposed or hypothetical congestion pricing systems. We found work on equity with regard to congestion pricing in two strands of literature: economic and planning. The former is most often concerned with the distribution of costs and benefits that accrue to society, while the latter is generally concerned with social justice aspects of congestion pricing and the potential negative consequences for low-income and other disadvantaged individuals."—Summary.

Energy Information Administration (EIA), The 2009 Outlook for Hurricane Production Outages in the Gulf of Mexico (Short-Term Energy Outlook Supplement) (June 2009)

"The National Oceanic and Atmospheric Administration (NOAA) predicted in its Atlantic Hurricane Season Outlook released on May 21, 2009 that the Atlantic basin will most likely experience near‐normal activity during the upcoming hurricane season (June 1 – November 30). NOAA projects 9 to 14 named storms will form within the Atlantic Basin over the next 6 months, including 4 to 7 hurricanes, of which 1 to 3 will be intense."—Highlights.

Florida Division of Emergency Management, Hurricane Awareness Poll: Results from 2008 Post Season and 2009 Preseason Hurricane Preparedness Surveys (May 2009)

"Key findings include:
- The majority of Florida’s residents have never actually evacuated.
- The majority of respondents both before and after Hurricane Season would opt to remain in their home communities and await rebuilding if their homes were destroyed.
- Many of Florida’s residents do not know the location of the shelter nearest to them.
- The best way to communicate with residents when their electricity goes out is by radio."—Executive Summary.

Nigel Purvis, Climate Advisers, The Case for Climate Protection Authority, Opinio Juris (June 12, 2009)

This is the first in a series of blog posts at Opinio Juris discussing climate change regulation in national and international contexts. See the end of Purvis' first post for a list of related posts.

United Nations Environment Programme (UNEP), From Conflict to Peace Building: The Role of Natural Resources and the Environment (February 2009)

"Environmental factors are rarely, if ever, the sole cause of violent conflict. Ethnicity, adverse economic conditions, low levels of international trade and conflict in neighbouring countries are all significant drivers of violence. However, the exploitation of natural resources and related environmental stresses can be implicated in all phases of the conflict cycle, from contributing to the outbreak and perpetuation of violence to undermining prospects for peace. In addition, the environment can itself fall victim to conflict, as direct and indirect environmental damage, coupled with the collapse of institutions, can lead to environmental risks that threaten people’s health, livelihoods and security."—Executive Summary.

United States Department of Energy (DOE), National Energy Technology Laboratory (NETL), 2008 NETL Accomplishments (2009)

"The National Energy Technology Laboratory (NETL) has released its annual accomplishments report, highlighting breakthroughs in research and technology development to address the nation’s energy, economic, and environmental challenges."—Press release (June 2, 2009)

United States Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA), Hazard Mitigation Assistance Unified Guidance: Hazard Mitigation Grant Program, Pre-Disaster Mitigation Program, Flood Mitigation Assistance Program, Repetitive Flood Claims Program, Severe Repetitive Loss Program (June 1, 2009)

"The Hazard Mitigation Grant Program (HMGP) may provide funds to States, Territories, Indian Tribal governments, local governments, and eligible private non-profits following a Presidential major disaster declaration. The Pre-Disaster Mitigation (PDM), Flood Mitigation Assistance (FMA), Repetitive Flood Claims (RFC), and Severe Repetitive Loss Pilot (SRL) programs may provide funds annually to States, Territories, Indian Tribal governments, and local governments. While the statutory origins of the programs differ, all share the common goal of reducing the risk of loss of life and property due to natural hazards."

United States Department of the Interior (DOI), Framework for Geological Carbon Sequestration on Public Land: In Compliance with Section 714 of the Energy Independence and Security Act of 2007 (P.L. 110-140, H.R.6) (Report to Congress) (June 3, 2009)

"A critical issue for evaluating storage capacity is the integrity and effectiveness of geologic formations for sealing carbon dioxide underground, preventing its release into underground sources of drinking water, mineral resources or the atmosphere. The report recommends that candidate sites must have sufficient capacity to accept the volume of carbon dioxide expected for the life of the sequestration project and the geologic structure to ensure long-term containment of the carbon dioxide."—Press release.

United States Government Accountability Office (GAO), Aviation and Climate Change: Aircraft Emissions Expected to Grow, but Technological and Operational Improvements and Government Policies Can Help Control Emissions (Report to Congressional Committees, GAO-09-554) (June 2009)

"A number of policy options to address aircraft emissions are available to governments and can be part of broader policies to address emissions from many sources including aircraft. Market-based measures can establish a price for emissions and provide incentives to airlines and consumers to reduce emissions. These measures can be preferable to other options because they would generally be more economically efficient. Such measures include a cap-and-trade program, in which government places a limit on emissions from regulated sources, provides them with allowances for emissions, and establishes a market for them to trade emissions allowances with one another, and a tax on emissions. Governments can establish emissions standards for aircraft or engines. In addition, government could increase government research and development to encourage development of low-emissions improvements."—What GAO Found.

Least complicated

2009-06-08T20:53:00.002-04:00

Least complicated

Some long ago when we were taught
That for whatever kind of puzzle you got
You just stick the right formula in
A solution for every fool

— Indigo Girls, Least Complicated, Swamp Ophelia (1994)

Yes, there is a connection to law. Read all about it in The Cardinal Lawyer.

Follow J.C. Redbird on Twitter

2009-06-05T17:39:00.000-04:00

» Adapted from The Cardinal Lawyer «
Twitter is a lightweight online platform that blends blogging and social networking. Its users "tweet" by answering a simple question: "What are you doing?" All answers are limited to 140 characters — the length of an SMS text message, minus 20 characters. Twitter has become a powerful weapon for marketing consumer goods, documenting brain surgery, and coordinating political protests. When even the New York Times, the grandest of conventional media sources, offers tips on Tweeting, you know that Twitter's time has come. And though predictions and prescriptions do differ, it does seem that Twitter — or something else capturing its blend of social networking, linking, and real-time searching — is here to stay.

Follow J.C. Redbird on Twitter!

My Twitter handle is J.C. Redbird. I would be honored if you would follow my tweets. To make sure that I follow your Twitter account in return, send me a private message inside Twitter, and I will take care to add you to my Twitter reading list.

Εοπίθηκος

2009-05-22T00:58:00.002-04:00

I de dager var kjempene på jorden

2009-05-05T00:36:00.002-04:00

Again from Recess Appointment, chapter 3 of Iridescence:

I de dager var kjempene på jorden. The land of one's childhood, no matter its physical location, marks the same place on every person's emotional map. In those days there were giants in the earth, and the sons of God came unto the daughters of men. And in turn those daughters bore children who became mighty men of old, men of renown. . . . There the warriors stood taller, whether they swung bats or wore plastic armor beneath their jerseys. The preachers spoke with greater authority, sometimes of heaven but mostly of hell. And above all the daughters of men have no greater beauty than those you first meet in that never-forgotten land. So struck will you be by your discovery, your terrible and thrilling discovery that you want one and all of them at once and forever, that you will spend the balance of your days searching for one to compare with the girls you recall from the founding of the kingdom of giants.

Editor's notes:

The phrase I de dager var kjempene på jorden comes from the 1930 Norwegian Bokmål translation of Genesis 6:4.

The image shown is that of Milam Park, Clarkston, Georgia.

Manifold destiny

2009-04-30T18:57:00.001-04:00

From Recess Appointment, chapter 3 of Iridescence:

No reach back into ancient natural history can resist the temptation of the near emotional future. You will believe in that orgiastic future no matter how badly the recent personal past distorts your view of current global reality. It eluded you then, but that’s no matter — tomorrow you will run faster, stretch out your arms further. And if you are lucky enough to have noticed the trompe-l'œil of your own creation, you will realize this truth: No amount of traversing the ancient and the modern, the personal and the global, will separate fear from desire. At any scale the topology of anxiety and longing dictates an invariable outcome. Such is the manifold destiny of the searching soul. Equal and opposite emotions, one and inseparable, comprise a single surface in the Klein bottle of the human heart in conflict with itself.

Memory and redshift

2009-04-28T19:26:00.002-04:00

No less than their sensory counterparts, the waves of personal remembrance obey Doppler's law. The mind in motion never quite perceives what passes before the mind at rest. Emotional recall obeys the forces that bend the peal of a passing bell and warp the color of distant stars. Race toward the past if you will; yesterday recedes faster than your memory can recall. As you reel backward, redshift stretches memory beyond your field of perception, till truth dissipates in spasms of invisible heat. Race instead toward the future, and impatient anticipation crashes against the the invariant pace at which tomorrow arrives. Against that blackness you will see no more than purple tendrils not quite taking full form, the fleeting projections of things yet to come.

Creamskimming and competition

2009-04-27T18:22:00.000-04:00

Herewith my latest paper, Creamskimming and Competition:

Creamskimming and Competition
The concept of “creamskimming” arises with regularity in the law of regulated industries. As a rhetorical weapon, the term “creamskimming” readily conjures images of the sort of putatively destructive competition that regulatory commissions are charged with patrolling. As a result, allegations of creamskimming have become a standard weapon in the legal arsenal of incumbent firms seeking to resist competitive entry. At an extreme, incumbent firms will characterize all forms of competitive entry as creamskimming. Sound regulatory responses to these allegations therefore depend on a proper understanding of the creamskimming concept.

This article proposes a definition of creamskimming that will help state and federal regulatory agencies distinguish genuine objections to proposed competitive entry from reflexive (and often improper) efforts to shield incumbent firms from competition. “Creamskimming” should be defined as “the practice of targeting only the customers that are the least expensive and most profitable for the incumbent firm to serve, thereby undercutting the incumbent firm’s ability to provide service throughout its service area.” Moreover, regulatory approaches to this practice should make clear that creamskimming can take place only where a competitive firm proposes to serve only a portion of an incumbent firm’s service area. In other words, when a competitive entrant proposes to serve an incumbent’s entire service area, creamskimming by definition cannot occur.

Seton Hall Law Review symposium

2009-04-27T17:21:00.003-04:00

Seton Hall Law Review Symposium

October 30, 2009
Seton Hall Law School
Newark, NJ

Securities Regulation and the Global Economic Crisis: What Does the Future Hold?

CALL FOR PAPERS

The Seton Hall Law Review will be hosting a Symposium on October 30, 2009, at Seton Hall Law School in Newark, NJ, to address the role of securities regulation in the current global financial crisis. Specifically, this event will examine the origins and genesis of the crisis, address the future of securities regulation domestically and internationally, and attempt to anticipate the role of government agencies, self-regulatory organizations, and private market participants in shaping and effectuating regulation. This Symposium will bring together experts from both public and private sectors, as well as from the legal and academic communities, to explain, debate, and assess the challenges and opportunities presented by the current and prospective landscape of global securities regulation.

Persons interested in participating as a speaker and/or in publishing a piece in the special Symposium issue of the Seton Hall Law Review should submit a CV and a 200-word abstract of their presentation to Laura Fant, Symposium Editor, by May 15, 2009. Laura Fant may be reached at (617) 480-7428 or Laura.Fant@student.shu.edu. Prospective speakers or panelists should indicate whether they would be interested in submitting a paper based on their presentation for publication. Contributions are welcome from scholars and practitioners in all disciplines.

Editor's note: See also the announcement posted on Commercial Law.

Literary Warrant [42]

2009-04-06T18:26:00.037-04:00

John Ashbery, Moon Glow, 2008 (collage)

The spoon went in
just right,
stirred the coffee,
was removed and lay
on the saucer, silent.

The lost library
books fantasized
about where they'd end up,
not
realizing they already had.
—from John Ashbery, A November, A Worldly Country (New York: Harper Collins, 2007)

American Society of Civil Engineers (ASCE), 2009 Report Card for America's Infrastructure (March 25, 2009)

"The 2009 Report Card for America’s Infrastructure finds not much has changed since the last edition four years ago. Years of delayed maintenance and lack of modernization have left Americans with an outdated and failing infrastructure that cannot meet our needs."—Preface.

Benfield UCL Hazard Research Centre, Hazard & Risk Science Review 2008

"The last 12 months has seen two major catastrophes happening within a few weeks of one another. The arrival of Cyclone Nargis in Burma triggered the most lethal natural disaster since the 2004 tsunami, while just a few weeks later, China experienced its most destructive earthquake in more than three decades. Together, these events highlight the fact that natural hazards are continuing to exact ever greater tolls, both in rural and urban settings, and in developing and developed nations alike.

"As we report in Hazard & Risk Science Review 2008, this is a trend that is certain to continue, driven perhaps—in the case of wind-related disasters—by a changing climate, but primarily by rapidly-expanding populations in regions of high vulnerability and exposure, exacerbated by poor preparedness. Here, we present a digest of the latest peer-reviewed papers that address those issues, such as hazard prediction, modelling, and characterisation that, together, aim to diminish vulnerability and exposure and reduce disaster risk. Our aim continues to be to improve industry awareness and understanding of natural catastrophes and the processes that drive them, to limit the number of shocks and surprises arising from hazardous events, and to help drive more informed business decisions on a day-to-day basis."—Author's note.

Read the rest of this post . . .

Dan Bodansky, Opinio Juris (blog), Human Rights and Climate Change (April 1, 2009)

"The UN Human Rights Council adopted a resolution last week on 'Human Rights and Climate Change,' in follow up to the January report by the Office of the High Commissioner on Human Rights on the Relationship between Climate Change and Human Rights.

"The Council resolution is significant less for what it says than for the fact of its adoption, which reflects the growing interconnections between the worlds of climate change and human rights. The resolution notes that 'climate change-related effects have a wide range of implications...for the enjoyment of human rights' and 'affirms' that 'human rights obligations and commitments have the potential to inform and strengthen international and national policy-making in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes.' But the Council’s only concrete decision was to hold a panel discussion on climate change and human rights next year."

Clare Breidenich & Daniel Bodansky, University of Georgia School of Law, Measurement, Reporting and Verification in a Post-2012 Climate Agreement (Pew Center on Global Climate Change) (April 2009)

"MRV can serve a wide range of purposes in a new climate agreement. It can provide an important means of tracking parties’ progress individually and collectively toward the Convention’s ultimate objective. The very process of measurement can facilitate parties’ actions by establishing baselines and helping to identify mitigation potentials. The reporting of actions can allow for their recognition internationally. The review or verification of parties’ actions can enhance action through expert advice on opportunities for improvement. MRV could play a particular role in the linkage between developing countries’ action and support for those actions. Finally, credible MRV can strengthen mutual confidence in countries’ actions and in the regime, thereby enabling a stronger collective effort.

"This report considers options for MRV in a new climate agreement. It begins by looking at basic issues in measurement, reporting and verification, and how they are addressed in different international regimes. It then evaluates existing requirements and mechanisms under the UNFCCC and the Kyoto Protocol that are relevant to MRV. Finally, it outlines a range of options for adapting these mechanisms and establishing new ones for purposes of MRV in a new agreement."—Introduction.

Nicholas Burger et al., RAND Environment, Energy, and Economic Development, Evaluating Options for U.S. Greenhouse-Gas Mitigation Using Multiple Criteria (Occasional Paper) (2009)

"Choosing a set of policy responses to mitigate greenhouse gases (GHGs) responsible for climate change is one of the great challenges that the United States faces in the coming years. Many policy options emphasize overall cost-effectiveness in reducing GHG emissions. In the search for options that are effective and politically feasible, however, other concerns have comparable importance. Mitigating GHGs in practice will require balancing cost-effectiveness and other objectives that reflect the institutional and political realities of passing major federal legislation with widespread impacts on U.S. producers and consumers.

"This paper develops a framework for evaluating GHG mitigation policy in the United States that balances several criteria. It draws on conceptual analysis and examples from U.S. energy policy to motivate an evaluative framework that incorporates a range of views of what constitutes 'good' policy. It should be of interest to stakeholders in the GHG policymaking process and especially to those responsible for crafting U.S. climate policy."—Preface.

Congressional Budget Office (CBO), The Impact of Ethanol Use on Food Prices and Greenhouse-Gas Emissions (April 2009)

"This Congressional Budget Office (CBO) analysis, which was prepared at the request of Representatives Ron Kind, Rosa DeLauro, and James McGovern, examines the relationship between increasing production of ethanol and rising prices for food. In particular, CBO estimated how much of the rise in food prices between April 2007 and April 2008 was due to an increase in the production of ethanol and how much that increase in prices might raise federal expenditures on food assistance programs. CBO also examined how much the increased use of ethanol might lower emissions of greenhouse gases. In keeping with CBO’s mandate to provide objective, impartial analysis, the report contains no recommendations."—Preface.

Terry M. Dinan, Senior Advisor, Congressional Budget Office (CBO), The Distributional Consequences of a Cap-and-Trade Program for CO2 Emissions (Testimony before the Subcommittee on Income Security and Family Support Commitee on Ways and Means U.S. House of Representatives) (March 12, 2009)

"One option for reducing emissions in a cost-effective manner is to establish a carefully designed cap-and-trade program. Under such a program, the government would set gradually tightening limits on emissions, issue rights (or allowances) consistent with those limits, and then allow firms to trade the allowances among themselves. The net financial impact of such a program on low- and moderate-income households would depend in large part on how the value of emission allowances was allocated. By itself, a cap-and-trade program would lead to higher prices for energy and energy-intensive goods. Those price increases would impose a larger burden on low- and moderate income households than on higher-income households, relative to either their income or total spending. Lawmakers could choose to offset the price increases experienced by low- and moderate-income households by providing for the sale of some or all of the CO2 emission allowances and using the revenues to compensate such households."

Environmental Integrity Project, The Calm Before the Storm (April 2009)

"Due in part to the recent economic slowdown and milder-than-usual weather, carbon dioxide (CO2) emissions from U.S. power plants dropped 3.1 percent in 2008, tempering a steady increasing trend in the preceding years, according to a new report from the Environmental Integrity Project (EIP). EIP officials cautioned that the one-year dip is a departure from the recent trends in power plant carbon dioxide emissions, which have risen 0.9 percent since 2003, and 4.5 percent since 1998, according to data from the U.S. Environmental Protection Agency (EPA). Despite the slight overall national improvement in CO2 emissions, six states had increases in power plant emissions of 1 million tons or more from 2007 to 2008: Oklahoma (3.1 million); Iowa (1.8 million); Texas (1.7 million); Nebraska (1.3 million); Illinois (1.1 million) and Washington (1.1 million)."—Press release (April 6, 2009)

European Environment Agency (EEA), EEA Signals 2009: Key Environmental Issues Facing Europe (1831-2772) (2008)

"Finding, reading and understanding the range of ‘signals’ regarding the health and diversity of our environment is at the heart of what we do. Signals respects the complexity of the underlying science and shows awareness of the uncertainties inherent in all of the issues we address. Our target audience is broad, ranging from students to scientists, policy-makers to farmers and small business people. Signals, which will be published in all 26 EEA languages, takes a story-based approach to help us better communicate with this diverse group of people. The eight stories addressed are not exhaustive but have been selected on the basis of their relevance to the current environmental policy debate in Europe. They address priority issues of climate change, nature and biodiversity, the use of natural resources and health."—What Is Signals.

Guy Carpenter & Co. Ltd., Man-Made Cats Hit 09 USD7 Billion in 2008 (2009)

"Man-made and technological catastrophes caused around USD7 billion in insured losses last year. This put 2008 losses around 46 percent higher than the annual average of USD4.8 billion, according to data from Swiss Re. Nineteen known events resulted in insured losses of more than USD50 million each, according to publicly available information. These events occurred in 11 countries, with losses ranging from USD80 million to nearly USD2 billion."—Executive Summary.

Philip J. Klotzbach & William M. Gray, Department of Atmospheric Science, Colorado State University, Extended Range Forecast of Atlantic Seasonal Hurricane and U.S. Landfall Strike Probability for 2009 (April 7, 2009)

"We issue these forecasts to satisfy the curiosity of the general public and to bring attention to the hurricane problem. There is a general interest in knowing what the odds are for an active or inactive season. One must remember that our forecasts are based on the premise that those global oceanic and atmospheric conditions which preceded comparatively active or inactive hurricane seasons in the past provide meaningful information about similar trends in future seasons. This is not always true for individual seasons. It is also important that the reader appreciate that these seasonal forecasts are based on statistical schemes which, owing to their intrinsically probabilistic nature, will fail in some years. Moreover, these forecasts do not specifically predict where within the Atlantic basin these storms will strike. The probability of landfall for any one location along the coast is very low and reflects the fact that, in any one season, most U.S. coastal areas will not feel the effects of a hurricane no matter how active the individual season is."—Why issue extended-range forecasts for seasonal hurricane activity?

National Research Council of the National Academies, Board on Infrastructure and the Constructed Environment, Sustainable Critical Infrastructure Systems—A Framework for Meeting 21st Century Imperatives (2009)

"For the people of the United States, the 20th century was one of unprecedented population growth, economic development, and improved quality of life. The critical infrastructure systems-water, wastewater, power, transportation, and telecommunications-built in the 20th century have become so much a part of modern life that they are taken for granted. By 2030, 60 million more Americans will expect these systems to deliver essential services. Large segments and components of the nation's critical infrastructure systems are now 50 to 100 years old, and their performance and condition are deteriorating. Improvements are clearly necessary. However, approaching infrastructure renewal by continuing to use the same processes, practices, technologies, and materials that were developed in the 20th century will likely yield the same results: increasing instances of service disruptions, higher operating and repair costs, and the possibility of catastrophic, cascading failures. If the nation is to meet some of the important challenges of the 21st century, a new paradigm for the renewal of critical infrastructure systems is needed. This book discusses the essential components of this new paradigm, and outlines a framework to ensure that ongoing activities, knowledge, and technologies can be aligned and leveraged to help meet multiple national objectives."—Summary.

National Research Council of the National Academies, Panel on Strategies and Methods for Climate-Related Decisions Support, Informing Decisions in a Changing Climate (2009)

"The report recommends six principles that all agencies should follow in supporting decision makers who are facing the effects of climate change. For example, agencies’ efforts should be driven by the needs of end users in the field, not by scientific research priorities. And agencies should create close ties between the scientists who produce climate change information and the practitioners who use it."—Press release (March 12, 2009)

National Resources Defense Council (NRDC), Contaminated Coal Waste (March 12, 2009)

"Coal-fired power plants produced more than 126 million tons of contaminated coal waste in 2005, the most recent year for which data is available, according to figures reported to the U.S. Energy Information Administration. And NRDC estimates show that the waste produced in a single year contains nearly 100,000 tons of toxic metals."

Deborah Paulus-Jagrič, UPDATE: Global Warming: A Comparative Guide to the E.U. and the U.S. and Their Approaches to the U.N. Framework Convention on Climate Change and the Kyoto Protocol (GlobaLex) (February 2009)

"In this guide, I briefly summarize the UNFCCC and the Kyoto Protocol, and discuss the sources one would use to research them, but I make no claim to originality there. As a comparative guide, it has relatively little to offer, at least thus far. To state the major difference between the E.U. and the U.S. in the simplest way, in the E.U. there are climate change laws to apply (the E.U. has ratified the Kyoto Protocol and takes its commitments very seriously), and in the U.S. there are none, at least at the federal level. When and if the U.S. government chooses to act on climate change, this guide will include its actions; thus it will evolve and become a truly comparative guide. Its current value lies in its compilation of recent information on the important work that U.S. states and cities have initiated to address climate change and, hopefully, to compel the federal government into action."—Introduction.

Darren Springer & Greg Dierkers, National Governors' Association, An Infrastructure Vision for the 21st Century: Strengthening Our Infrastructure for a Sustainable Future (2009)

"The nation faces a host of infrastructure challenges that are critical to address. These include broad systemic issues of underinvestment, inadequate revenue, and a need to improve planning efforts that affect assets across the board. They also include concerns about reducing our dependence on imported oil, diversifying our nation’s electricity portfolio, and responding to climate change that affect transportation and energy infrastructure in particular. While federal investments expected for 2009 could fund shovel-ready projects in transit, highways, school repair, and other critical areas—helping states put people to work right away on pressing needs—a long-term strategy to address these challenges also is needed."—Executive Summary.

Swiss Reinsurance Company Ltd., Natural Catastrophes and Man-made Disasters in 2008: North America and Asia Suffer Heavy Losses, sigma, no. 2/2009 (2009)

"In 2008, natural catastrophes and man-made disasters caused 240 500 fatalities and led to economic losses of USD 269 bn.1 The cost to property insurers was USD 52.5 bn, making 2008 one of the costliest catastrophe years in history. The extent of the damage once again revealed the need to introduce improved prevention and post disaster management practices. It also reaffirmed that the lack of insurance cover, particularly in the emerging markets, continues to leave many people vulnerable after a catastrophic event occurs."

"Of the 311 catastrophic events in 2008, 137 were considered natural catastrophes, while the remaining 174 were man-made disasters."—Executive Summary.

United Nations Educational, Scientific, and Cultural Organization (UNESCO), Water in a Changing World (3rd United Nations World Water Development Report) (2009)

"Important decisions affecting water management are made outside the water sector and are driven by external, largely unpredictable drivers—demography, climate change, the global economy, changing societal values and norms, technological innovation, laws and customs, and financial markets. Many of these external drivers are dynamic and changing at a faster pace. Developments outside the water domain influence water management strategies and policies. Decisions in other sectors and those related to development, growth and livelihoods need to incorporate water as an integral component, including responses to climate change, food and energy challenges and disaster management. The analysis of these issues leads to a set of responses and recommendations for action that incorporate the contribution of water to sustainable development."—Overview of Key Messages.

United Nations Environment Programme (UNEP), UNEP Year Book: New Science and Developments in Our Changing Environment (2009)

"The UNEP Year Book 2009 presents work in progress on scientific understanding of global environmental change, as well as foresight about possible issues on the horizon. The aim is to raise awareness of the interlinkages among environmental issues that can accelerate the rates of change and threaten human wellbeing.

"The chapters of this Year Book track the same trajectory as our awareness of environmental change. Transformations are inherent to this trajectory and are taking place on many fronts: from industrial agriculture to eco-agriculture; from a wasteful society towards a resource efficient one; and from a triad of competing interests among civil society, the private sector, and governments to a more cooperative model based on mutual benefits."—Introduction.

United States Department of Energy (DOE), Energy Information Administration, Annual Energy Outlook 2009: With Projections to 2030 (DOE/EIA-0383) (March 2009)

"The projections in AEO2009 look beyond current economic and financial woes and focus on factors that drive U.S. energy markets in the longer term. Key issues highlighted in the AEO2009 include higher but uncertain world oil prices, growing concern about greenhouse gas (GHG) emissions and its impacts on energy investment decisions, the increasing use of renewable fuels, the increasing production of unconventional natural gas, the shift in the transportation fleet to more efficient vehicles, and improved efficiency in end-use appliances. Using a reference case and a broad range of sensitivity cases, AEO2009 illustrates these key energy market trends and explores important areas of uncertainty in the U.S. energy economy. The AEO2009 cases, which were developed before enactment of the American Recovery and Reinvestment Act of 2009 (ARRA2009) in February 2009, reflect laws and policies in effect as of November 2008.

"AEO2009 also includes in-depth discussions on topics of special interest that may affect the energy market outlook, including changes in Federal and State laws and regulations and recent developments in technologies for energy production and consumption. Some of the highlights for selected topics are mentioned in this Executive Summary, but readers interested in other issues or a fuller discussion should look at the Legislation and Regulations and Issues in Focus sections."—Executive Summary.

United States Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA), Hurricane Ike in Texas and Louisiana: Building Performance Observations, Recommendations, and Technical Guidance (Mitigation Assessment Team Report, FEMA P-757) (April 2009)

"In response to Hurricane Ike, the Federal Emergency Management Agency (FEMA) deployed a Mitigation Assessment Team (MAT) to evaluate and assess damage from the hurricane and provide observations, conclusions, and recommendations on the performance of buildings and other structures impacted by wind and flood forces. The MAT included FEMA Headquarters and Regional Office engineers, representatives from other Federal agencies and academia, and experts from the design and construction industry. The conclusions and recommendations of this Report are intended to provide decision-makers with information and technical guidance that can be used to reduce future hurricane damage."—Resource Record Details.

United States Department of Homeland Security (DHS), Federal Emergency Management Agency (FEMA), Special Community Disaster Loans Program (Notice of Proposed Rulemaking) (March 30, 2009)

"The Federal Emergency Management Agency (FEMA) proposes to amend its regulations regarding the Special Community Disaster Loans Program to implement loan cancellation provisions for Special Community Disaster Loans provided by FEMA to local governments in the Gulf region following Hurricanes Katrina and Rita. This rule does not propose the automatic cancellation of all Special Community Disaster Loans. This rule proposes procedures and requirements for governments who received Special Community Disaster Loans to apply for cancellation of loan obligations as authorized by the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007. The proposed procedures are intended to provide sufficient information to FEMA to determine when cancellation of a Special Community Disaster Loan, in whole or in part, is warranted. This proposed rule would not apply to any loans made under FEMA’s traditional Community Disaster Loan program which is governed under separate regulations."—Summary.

United States Department of the Interior (DOI), Minerals Management Service (MMS), Survey of Available Data on OCS Resources And Identification of Data Gaps (Report to the Secretary, U.S. Department of the Interior) (OCS Report MMS 2009-015)

"In response to President Obama’s vision for energy independence for our Nation, Secretary of the Interior Ken Salazar announced on February 10, 2009, a four-part strategy for developing a new, comprehensive approach to energy resources of the Outer Continental Shelf (OCS).... The OCS refers to 1.7 billion acres of Federal jurisdiction lands submerged under the ocean seaward of State boundaries, generally beginning 3 geographical miles off the coastline (for most States) and extending for at least 200 nautical miles to the edge of the Exclusive Economic Zone and further as the continental shelf is extended. As the Secretary explained in his announcement, the DOI should establish an orderly process that allows us to make wise decisions based on sound information, in a way that provides States, stakeholders, and affected communities the opportunity to provide input on the future of our offshore areas."—Executive Summary.

United States Department of Transportation, Federal Highway Administration, Megaregions: Literature Review of the Implications for U.S. Infrastructure Investment and Transportation Planning (FHWA-BAA-HEPP-02-2007) (September 2008)

"In the twenty-first century, the United States faces increasing challenges in terms of economic competitiveness, quality of life, traffic congestion, aging transportation infrastructure, and scarcity of natural resources. These challenges are particularly difficult because they are not confined to traditional geographic or political borders, but arise from the interactions between cities and regions. In order to address these challenges, local, state, regional, and federal actors may be well served by planning for critical infrastructure on a scale larger than has been common in transportation and regional planning history and practice. One potential approach to address these challenges, and take advantages of the opportunities that arise from growing urban agglomerations, is the idea of the 'megaregion.'"—Executive Summary.

United States Environmental Protection Agency (EPA), Office of the Science Advisor, Council for Regulatory Environmental Modeling, Guidance on the Development, Evaluation, and Application of Environmental Models (EPA/100/K-09/003) (March 2009)

"This guidance recommends best practices to help determine when a model, despite its uncertainties, can be appropriately used to inform a decision. Specifically, it recommends that model developers and users: (a) subject their model to credible, objective peer review; (b) assess the quality of the data they use; (c) corroborate their model by evaluating the degree to which it corresponds to the system being modeled; and (d) perform sensitivity and uncertainty analyses. Sensitivity analysis evaluates the effect of changes in input values or assumptions on a model's results. Uncertainty analysis investigates the effects of lack of knowledge and other potential sources of error in the model (e.g., the “uncertainty” associated with model parameter values). When conducted in combination, sensitivity and uncertainty analysis allow model users to be more informed about the confidence that can be placed in model results. A model’s quality to support a decision becomes better known when information is available to assess these factors."—Executive Summary.

United States House of Representatives, Energy and Commerce Committee, American Clean Energy and Security Act of 2009 (Discussion Draft)

"Chairman Henry A. Waxman of the Energy and Commerce Committee and Chairman Edward J. Markey of the Energy and Environment Subcommittee released a draft of clean energy legislation that hopes to create jobs, help end U.S. dependence on foreign oil, and combat global warming. The American Clean Energy and Security Act of 2009 (ACES) is a comprehensive approach to America’s energy policy that charts a new course toward a clean energy economy."

Visualizing Networks in Law - The New Computational Legal Studies Blog

2009-03-30T20:22:00.003-04:00

In what is undoubtedly one of the most fascinating new blawgs to start up in a long while, Dan Katz and Michael Bommarito, two political science PhD students at Michigan, have launched the Computational Legal Studies Blog. Using massive data sets and computational software for analyzing and visualizing networks, the sites features articles, posts, and diagrams tapping into such matters as political contributions to Senators by industry, contributions to Senators from TARP institutions, the flow of judicial clerks within the federal judiciary, and the structure of academic disciplines (including law) based on web clicks on journals. Many of their findings are revealing and surprising. The trajectory of their work and the work of others featured on the site suggests that the theory of legal and political institutions will be tested and refined with these very powerful network analytic tools. Definitely worth a look. JBR

Train wreck

2009-03-22T11:22:00.002-04:00

Train wreck at Montparnasse Station, Paris, France, 1895.

From Daphne Merkin, If Looks Could Steal, N.Y. Times (March 22, 2009):

[T]o call Mr. Madoff a sociopath isn’t really to explain him so much as to explain our failure to pick up on his scam. “Everything that deceives,” decreed Plato, “can be said to enchant.” Enter the sorcerer, the ganef, the man without qualities but with steady returns — and, I might add, a family man to the end. . . .

Enter us, the believers, the ones who signed on for the ride until it went off the rails, leaving wreckage as far as the eye could see.

Let's repeat that Platonic formula: “Everything that deceives can be said to enchant.” These are words worth remembering. Et encore, cette fois en français:

Le Renard s'en saisit, et dit :"Mon bon Monsieur,
Apprenez que tout flatteur
Vit aux dépens de celui qui l'écoute:
Cette leçon vaut bien un fromage sans doute."

Literary Warrant [41]

2009-03-12T12:14:00.044-04:00

Municipal Waste, Richmond, VA, thrash metal band, live

Bryson Bates et al., eds., Intergovernmental Panel on Climate Change (IPCC), Climate Change and Water (2008)

"This Technical Paper consists of eight sections. Following the introduction to the Paper (Section 1), Section 2 is based primarily on the assessments of Working Group I, and looks at the science of climate change, both observed and projected, as it relates to hydrological variables. Section 3 presents a general overview of observed and projected water-related impacts of climate change, and possible adaptation strategies, drawn principally from the Working Group II assessments. Section 4 then looks at systems and sectors in detail, and Section 5 takes a regional approach. Section 6, based on Working Group III assessments, covers water-related aspects of mitigation. Section 7 looks at the implications for policy and sustainable development, followed by the final section (Section 8) on gaps in knowledge and suggestions for future work. The Technical Paper uses the standard uncertainty language of the Fourth Assessment (see Box 1.1)."—Outline.

Robbie Berg, National Hurricane Center, Tropical Cyclone Report: Hurricane Ike (Updated February 4, 2009)

"Ike was a long-lived Cape Verde hurricane that caused extensive damage and many deaths across portions of the Caribbean and along the coasts of Texas and Louisiana. It reached its peak intensity as a Category 4 hurricane (on the Saffir-Simpson Hurricane Scale) over the open waters of the central Atlantic, directly impacting the Turks and Caicos Islands and Great Inagua Island in the southeastern Bahamas before affecting much of the island of Cuba. Ike, with its associated storm surge, then caused extensive damage across parts of the northwestern Gulf Coast when it made landfall along the upper Texas coast at the upper end of Category 2 intensity."

The Center for Public Integrity, The Climate Change Lobby (February 24, 2009)

"While President Obama's team readies to take on the global warming challenge, the special interests that seek to derail, blunt, or tailor any new climate policy to their narrow agendas have already gathered in staggering numbers. A Center for Public Integrity analysis shows that more than 770 companies and interest groups hired an estimated 2,340 lobbyists to influence federal policy on climate change in the past year, as the issue gathered momentum and came to a vote on Capitol Hill. That's an increase of more than 300 percent in the number of lobbyists on climate change in just five years, and means that Washington can now boast more than four climate lobbyists for every member of Congress. Although some see the proliferation of voices engaged on the issue as a positive, the lobbying onslaught has caused growing alarm among some advocates of climate action."—The Climate Change Lobby Explosion.

Read the rest of this post . . .

Congressional Research Service, Recent/Recently Updated CRS Reports—Energy/Environment

Topics include the Endangered Species Act, the carbon tax, global climate change policy, and several more.

Defenders of Wildlife, Your Lands, Your Wildlife: Restoring Balance to the Management of our Public Lands (2008)

"As the squeeze of development proceeds and the ecological realities of global warming unfold, we are increasingly realizing the linkages between healthy lands, healthy wildlife populations and the quality of our own lives. We are recognizing that the diminishment of our public lands threatens our wildlife heritage, which in turn threatens hunting, fishing, hiking and other outdoor pursuits and affects the overall quality of life we enjoy as Americans."—Introduction.

Jane Earley & Alice McKeown, Sierra Club & Worldwatch Institute, Smart Choices for Biofuels (January 2009)

"Over the next decade and beyond, U.S. national, state, and local policy must focus on developing sustainable biofuels—rather than just more biofuels—that can play a role in the emerging new energy economy. These fuels should be seen as part of an expanded renewable energy portfolio that emphasizes greater fuel efficiency and reduced demand as well as the development of new sustainable energy technologies that may one day go beyond biofuels. But this can only succeed if we avoid the mistakes of the past."—Introduction.

Julie Ekstrom, The Online Digital Library of West Coast Ocean Law (beta)

"This digital library contains national and state level laws that apply to the ocean and coast within the California Current Large Marine Ecosystem.

"In order to move forward in solving problems caused by fragmented ocean management, we need to evaluate extant management practices comprehensively. This site provides statutes and regulations, which include important information about how the oceans and coasts are managed. The collection available through this website provides a publicly accessible collection to search laws and regulations within and across states and nations."—Purpose.

Federal Emergency Management Agency (FEMA), The National Exercise Simulation Center (NESC) (January 12, 2009)

"The National Exercise Simulation Center (NESC) is a Congressionally-mandated state-of-the-art training and exercise facility within FEMA Headquarters, and serves as a key element within the Federal Coordination Center (FCC). The FCC draws on the specialized capabilities of its FEMA elements, including the Disaster Operations Directorate, the National Preparedness Directorate, the Office of National Capital Region Coordination, and others as needed, to collaborate with and support deliberate planning, training, exercises and response operations coordination in the National Capital Region."—Press release.

Bracken Hendricks, Center for American Progress, Wired for Progress: Building a National Clean-Energy Smart Grid (Version 1.0) February 2009)

"A truly national clean-energy smart grid must consist of two distinct
components: an interstate transmission 'sustainable transmission grid'
that will transport clean utility-scale renewable energy long distances to
market, and a digital 'smart distribution grid' to deliver this electricity efficiently to local consumers. The absence of a national grid that seamlessly
integrates these two components is one of the biggest impediments to
large-scale deployment of low-carbon electricity.

"In this paper we outline a plan to develop such a secure, reliable, interoperable,
national, and clean electricity grid to power America’s coming
clean energy economy. Our particular policy recommendations focus on
the principle bottle necks for building grid projects."—Action Plan.

Francis X. McCarthy, Analyst in Emergency Policy, Congressional Research Service (CRS), FEMA's Disaster Declaration Process: A Primer (RL34146) (January 23, 2009)

"The end result of a presidential disaster declaration is well known, if not entirely understood. Various forms of assistance are provided, including aid to families and individuals for uninsured needs and assistance to state and local governments and certain non-profits in rebuilding or replacing damaged infrastructure.

"The amount of assistance provided through Presidential disaster declarations has exceeded $100 billion. Often, in recent years, Congress has enacted supplemental appropriations legislation to cover unanticipated costs. While the amounts spent by the federal government on different programs may be reported, and the progress of the recovery can be observed, much less is known about the process that initiates all of this activity. Yet, it is a process that has resulted in an average of more than one disaster declaration a week over the last decade."—Summary.

Jason Morrison et al., The Pacific Institute, Water Scarcity and Climate Change: Growing Risks for Business and Investors (A Ceres Report) (February 2009)

"The report highlights the intensifying conflict between energy use and water availability. With increasing frequency, choosing one of these resources means undermining the other – the other, usually being water. For example, the billions of dollars spent to expand oil sands development in Canada and corn-based ethanol production in the U.S. has incrementally increased fuel supplies, but at the expense of significant water impacts and greenhouse gas emissions that could ultimately limit these ventures in the future.

"Despite these looming challenges, the report concludes that businesses and investors are largely unaware of water-related risks or how climate change will likely exacerbate them."—Executive Summary.

If the PDF link at the Pacific Institute site does not produce the document, try this Ceres page.

National Research Council of the National Academies, Restructuring Federal Climate Research to Meet the Challenges of Climate Change (Prepublication version) (2009)

"Climate change is one of the most important global environmental problems facing the world today. Policy decisions are already being made to limit or adapt to climate change and its impacts, but there is a need for greater integration between science and decision making. This book proposes six priorities for restructuring the United States' climate change research program to develop a more robust knowledge base and support informed responses:
- Reorganize the Program Around Integrated Scientific-Societal Issues
- Establish a U.S. Climate Observing System
- Support a New Generation of Coupled Earth System Models
- Strengthen Research on Adaptation, Mitigation, and Vulnerability
- Initiate a National Assessment of the Risks and Costs of Climate Change Impacts and Options to Respond
- Coordinate Federal Efforts to Provide Climate Information, Tools, and Forecasts Routinely to Decision Makers"—Description.

New York City Panel on Climate Change (NPCC), Climate Risk Information (Release version) (February 17, 2009)

Climate change poses a range of hazards to New York City and its infrastructure. These changes suggest a need for the City to rethink the way it operates and adapts to its evolving environment. To respond to these changes and accomplish the goals outlined in PlaNYC, the City’s comprehensive sustainability plan, Mayor Michael Bloomberg, with funding from the Rockefeller Foundation, convened the New York City Panel on Climate Change (NPCC) in August 2008. The NPCC, which consists of leading climate change and impact scientists, academics, and private sector practitioners, was charged with advising the Mayor and the New York City Climate Change Adaptation Task Force (the 'Task Force') on issues related to climate change and adaptation as it relates to infrastructure. This document, one of three in a series of workbooks to be produced for the Task Force, provides climate change projections for New York City and identifi es some of the potential risks to the City’s critical infrastructure posed by climate change."—Executive Summary.

Ocean Conservancy, A Rising Tide of Ocean Debris and What We Can Do About It (2009 Report)

"Litter can travel to the ocean from many miles inland, blown on the wind or carried along by rivers and streams. We are all responsible, from beachgoers to oil-rig workers and fishermen, for cigarette butts, food wrappers, bottles, and bags in the water. Overflowing sewage systems and storm drains add to the burden by ferrying trash from rural roads and city streets to the sea. And, despite national and international regulations against dumping, some people on boats still drop trash directly into the ocean. In recent years, organic materials that were once the most prevalent component of marine debris have been supplanted by synthetics. Not only do items like packing straps, tarps, nets, and containers last for years, but also they are often highly buoyant, traveling thousands of miles on ocean currents."—Executive Summary.

Sheila R. Ronis, Robert B. Polk & Daniel R. Langberg, Project on National Security Reform, Concept Paper: The National Security Planning & Execution Management System (NSPEMS) (January 2009)

"The PNSR submits that management of national security at its very essence should be about the entire end-to-end process of both 'thinking' (assessments, policy, strategy, planning, feedback, etc...) and 'doing' (operations/implementation) equally with often interchangeable and collaborative parts and processes in order for the hand-off back and forth between them to be seamless. Leaders of today and tomorrow at all levels should manage these two basic halves of a whole together. This is why the system proposed here is entitled the National Security Planning & Execution Management System (NSPEMS)."—System Overview.

Susan-Marie Stedman & Thomas E. Dahl, National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries Service & United States Department of the Interior, Fish and Wildlife Service, Status and Trends of Wetlands in the Coastal Watersheds of the Eastern United States: 1998-2004 (2008)

"The National Oceanic and Atmospheric Administration’s National Marine Fisheries Service, in cooperation with the U.S. Fish and Wildlife Service, analyzed the status and recent trends of wetland acreage in the coastal watersheds of the United States adjacent to the Atlantic Ocean, Gulf of Mexico, and Great Lakes. Sample plots were analyzed using digital high-resolution imagery to identify wetlands and land use changes observed between 1998 and 2004. Results indicate that there were an estimated 39.8 million acres (16.1 million ha) of wetlands in these coastal watersheds in 2004. This represented 38 percent of the estimated total wetland acreage of 107.7 million acres (43.6 million ha) found in the conterminous United States."—Executive Summary.

United Nations Development Programme (UNDP), UNDP Climate Change Campaign (March 3, 2009)

"UN Development Programme (UNDP) has started an advertising campaign to help reduce greenhouse gases. The campaing encourages people around the world to follow 12 simple things to reduce their carbon footprint."

United Nations Economic and Social Council (ECOSOC), Report of the Committee of Experts on Environmental-Economic Accounting (E/CN.3/2009/7) (December 15, 2008)

"In accordance with a request of the Statistical Commission at its thirty-ninth session (E/2008/24), the Secretary-General has the honour to transmit the report of the Committee of Experts on Environmental-Economic Accounting. The report elaborates on the mandate and governance of the Committee of Experts, describes the progress of its work, including progress on the revision of the System of Environmental-Economic Accounting and advances in energy and material flow accounts, reports on the results of the Global Assessment of Water Statistics and Accounts and the Global Assessment of Energy Accounts and Air Emission Statistics and Accounts and presents an update of the implementation strategy for the System of Environmental-Economic Accounting for Water, including an update on the drafting of the international recommendations for water statistics. Points for discussion are set out at the end of the report."—Note by the Secretary-General.

United Nations Environment Programme (UNEP), UNEP Website Redesign (March 10, 2009)

"The UN Environment Programme (UNEP) has redesigned its website. The new site is organized by priority themes:
- Climate Change,
- Disasters and conflicts,
- Ecosystem management,
- Environmental governance,
- Harmful substances,
- Resource efficiency, and
- Other thematic areas."

United States Agency for Healthcare Research and Quality (AHRQ), Recommendations for a National Mass Patient and Evacuee Movement, Regulating, and Tracking System (AHRQ Publication No. 09-0039-EF)(January 2009)

"An ideal National System would update location and health status information of patients and evacuees at any location where they are treated, housed, sheltered, or transported, including overnight facilities, locations where patients and evacuees board or get off vehicles, or other temporary gathering points. This information would be made available to authorized persons with responsibility for housing, transporting, or treating patients and evacuees, both at the person-level (e.g., to determine where a specific person is or has been and to alert health care professionals and emergency responders at reception centers to the medical condition of patients and evacuees who will be arriving shortly) and at the aggregate-level (e.g., to determine the number of patients or evacuees, by health status, at various locations within a county, a multi-county region, a State, a multi-State area, or nationwide)."—Executive Summary | National System Goals and Objectives.

United States Department of Education (DOE), Office of Safe and Drug-Free Schools, Action Guide for Emergency Management At Institutions of Higher Education (January 2009)

"There are over 4,000 two-and four-year public and private institutions of higher education (IHEs) in the United States totaling over 15 million students and several million staff, faculty, and visitors (U.S. Department of Education, National Center for Education Statistics, Digest of Education Statistics, 2006). Each of these institutions has a commitment to ensure the safety and general welfare of those on their campuses and to provide appropriate policies, procedures, and strategies to maintain a safe campus. Because of recent violent crimes, natural disasters, and other emergencies or crises, colleges and universities are convening committees and task forces to reexamine or conduct a comprehensive review of policies, procedures, and systems related to campus safety and security. As with many critical areas on the agendas of administrators, campus safety requires building support and conducting a thorough and systematic process to produce a quality plan to prepare for and manage emergencies on campus."—Introduction | The Need for Emergency Management on College Campuses.

United States Department of Homeland Security (DHS), National Infrastructure Protection Plan: Partnering to Enhance Protection and Resiliency (2009)

"Protecting and ensuring the resiliency of the critical infrastructure and key resources (CIKR) of the United States is essential to the Nation’s security, public health and safety, economic vitality, and way of life. Attacks on CIKR could significantly disrupt the functioning of government and business alike and produce cascading effects far beyond the targeted sector and physical location of the incident. Direct ter-rorist attacks and natural, manmade, or technological hazards could produce catastrophic losses in terms of human casualties, property destruction, and economic effects, as well as profound damage to public morale and confidence. Attacks using components of the Nation’s CIKR as weapons of mass destruction could have even more devastating physical and psychological consequences."—Executive Summary.

United States Department of Homeland Security (DHS), Office of Inspector General (OIG), FEMA: In or Out? (OIG-09-25) (February 2009)

"Just over 5 years ago, the approach to and structure for homeland security were completely revamped. Have things gone perfectly since? Clearly, the answer is no, but that is not enough justification to undertake a major reorganization that would have far-reaching effects, particularly before a careful study of the potential consequences can be carried out. In addition to the arguments made above, there are two key arguments for not removing FEMA from DHS, at least not in the short term."—Conclusion.

United States Environmental Protection Agency (EPA), Mandatory Reporting of Greenhouse Gases (Proposed rule) (March 10, 2009)

"EPA is proposing a regulation to require reporting of greenhouse gas emissions from all sectors of the economy. The rule would apply to fossil fuel suppliers and industrial gas suppliers, as well as to direct greenhouse gas emitters. The proposed rule does not require control of greenhouse gases, rather it requires only that sources above certain threshold levels monitor and report emissions."—Summary.

United States Government Accountability Office (GAO), Clean Coal: DOE’s Decision to Restructure FutureGen Should Be Based on a Comprehensive Analysis of Costs, Benefits, and Risks (Report to Congressional Requesters, GAO-09-248) (February 2009)

"Coal-fired power plants generate about one-half of the nation’s electricity and about one-third of its carbon dioxide (CO2) emissions, which contribute to climate change. In 2003, the Department of Energy (DOE) initiated FutureGen—a commercial-scale, coal-fired power plant to incorporate integrated gasification combined cycle (IGCC), an advanced generating technology, with carbon capture and storage (CCS). The plant was to capture and store underground about 90 percent of its CO2 emissions. DOE’s cost share was 74 percent, and industry partners agreed to fund the rest. Concerned about escalating costs, DOE restructured FutureGen. GAO was asked to examine (1) the original and restructured programs’ goals, (2) similarities and differences between the new FutureGen and other DOE CCS programs, and (3) if the restructuring decision was based on sufficient information.

"GAO reviewed best practices for making programmatic decisions, FutureGen plans and budgets, and documents on the restructuring of FutureGen. GAO contacted DOE, industry partners, and experts."—Why GAO Did This Study.

United States House of Representatives, Subcommittee on Energy and Environment, The Role of Offsets in Climate Legislation (Hearing) (March 5, 2009)

"In heading toward a carbon cap-and-trade several of the witnesses offered their words of caution. John Stephenson of the GAO cautioned that the 'challenges in the voluntary offset market and the use of offsets for compliance—even in a rigorous, standardized process like the Clean Development Mechanism—may compromise the environmental integrity of mandatory programs to limit emissions and should be carefully evaluated.' His concerns were echoed by Dr. Michael Wara of the Stanford Law School. who concluded that 'carbon offsets, and international carbon offsets in particular, pose substantial risks to the environmental integrity not to mention the public reputation of a US emissions trading system.'"—Environmental Law & Climate Change Law Blog.

United States Senate, Committee on Homeland Security and Governmental Affairs, Ad Hoc Subcommittee on Disaster Recovery, Far From Home: Deficiencies in Federal Disaster Housing Assistance after Hurricanes Katrina and Rita and Recommendations for Improvement (Special report) (S. Prt. 111-7) (February 2009)

"This Subcommittee Report focuses exclusively on housing, specifically the Federal response to housing needs in major disaster declarations. This investigation has resulted in review of over 100,000 pages of documents, over 70 meetings with individuals involved in housing response, interviews of 18 current and former Executive Branch Agency officials responsible for housing, and three hearings...

"The Subcommittee spoke with mayors, State emergency managers and governors' offices, private sector representatives, nonprofit organizations, and individual residents in the affected region. The Subcommittee also met with legal and policy authorities in this field. In addition, the Subcommittee reviewed prior Congressional hearings and governmental and non-governmental reports on housing response."—Executive Summary.

ἀποθανεῖν θέλω

2009-03-07T22:07:00.004-05:00

Nam Sibyllam quidem Cumis ego ipse oculis meis vidi in ampulla pendere et cum illi pueri dicerent: Σίβυλλα τί θέλεις; respondebat illa: ἀποθανεῖν θέλω.

— T.S. Eliot, The Waste Land (1922)

The Race to the Bottom and Ward Churchill

2009-03-07T21:52:00.001-05:00

The Race to the Bottom, a blog that Jurisdynamics and MoneyLaw follow with interest, will cover the Ward Churchill trial.

Clawback

2009-02-23T01:53:00.001-05:00

"Should executives get to keep lavish pay packages when the profits that generated their compensation go up in smoke?" A growing, grumbling chorus says "yes":

With losses mounting at the nation’s largest financial institutions, years of earnings have been erased, investors have lost billions, thousands of employees have been let go, and taxpayers have been tapped to rescue the financial system. But executives who helped set the problems in motion, or ignored them as they mounted, are still doing fine. Humbled, perhaps, but well paid for their anguish.

Executives at seven major financial institutions that have collapsed, were sold at distressed prices or are in deep to the taxpayer received $464 million in performance pay since 2005 . . . Almost half of that consisted of cash compensation.

Yet these firms have reported losses of $107 billion since 2007, a result of their own missteps and the ensuing economic downturn. And $740 billion in stock market value has been lost since these companies’ shares peaked in 2007, just before the housing bubble burst.

Against that landscape, a growing chorus is demanding that executive compensation snared shortly before problems emerged be given back.

“There is a line that separates fair compensation from stealing from shareholders,” said Frederick E. Rowe, a money manager in Dallas and a founder of Investors for Director Accountability, a nonprofit group. “When managements ignore that line or can’t see it, then hell, yes, they should be required to give the money back.”

Corporate boards that awarded lush executive pay packages almost always justified them by saying they encouraged superior performance and were directly tied to benchmarks like profitability.

But now, with a public backlash against excessive pay and taxpayer lifelines extended to crippled companies, the idea of recouping compensation, known as “clawback,” is gaining traction.

Currently there is no legal mechanism for forcing the regurgitation of past pay, so such efforts would need to be bolstered by new legislation. Clawbacks also promise to be a hot-button issue at shareholder meetings in coming months.

Editor's note: Cross-posted from Commercial Law, a member of the Jurisdynamics Network.

Venus setting: A piece of the night

2009-02-20T19:04:00.003-05:00

James Watkins, Winter Sunday, Venus Setting (2009)

Gin Blossoms, Pieces of the Night , New Miserable Experience (1992)

Is it any wonder that the stars just don't rush by
When you're only doing 60 through this oh-so-vacant night
But it's lacking something big this time
What the hell did you expect to find
Aphrodite on a barstool by your side

Twelfth night we go
After something everyone should know
Somewhere in the distance out of sight . . . .
Then I saw: gin mill rainfall
What do you remember if at all
Only pieces of the night . . . .

And is it any wonder in the middle of the crowd
If you let your feet get trampled on
When the music is that loud
But you wanted to be where you are
But it looked much better from afar
A hillside in shadow
Between the people and the stars

Twelfth night we go
After something everyone should know
Somewhere in the distance out of sight . . . .

Darwin's beautiful mind, still not fully appreciated

2009-02-09T18:43:00.004-05:00

George Richmond, Charles Darwin (1840)

Nicholas Wade's reflections on Charles Darwin upon the bicentennial of his birth and the sesquicentennial of The Origin of Species resonate strongly. It is often said that progress in a science is measured by the speed with which its founders are forgotten. That serious scientists — let alone the American public — continue to debate The Origin and The Descent of Man testifies to the extent to which Darwin was able to accomplish four intellectual breakthroughts that evidently still elude some contemporary scientists:

Natural selection has no purpose at all.
Progress is not inevitable.
Humans are living organisms and therefore subject, all the way down to the workings of the so-called "mind" and all the way up to so-called "culture," to natural selection and sexual selection.
Group selection applies to humans, too, no matter how willfully humans want to see themselves as individual actors.

This subject could consume both Jurisdynamics and BioLaw for months, but it suffices for the moment to quote a few paragraphs from Nicholas Wade's article:

It is somewhat remarkable that a man who died in 1882 should still be influencing discussion among biologists. It is perhaps equally strange that so many biologists failed for so many decades to accept ideas that Darwin expressed in clear and beautiful English.

The rejection was in part because a substantial amount of science, including the two new fields of Mendelian genetics and population genetics, needed to be developed before other, more enticing mechanisms of selection could be excluded. But there were also a series of nonscientific considerations that affected biologists’ judgment.

In the 19th century, biologists accepted evolution, in part because it implied progress.

“The general idea of evolution, particularly if you took it to be progressive and purposeful, fitted the ideology of the age,” says Peter J. Bowler, a historian of science at Queen’s University, Belfast. But that made it all the harder to accept that something as purposeless as natural selection could be the shaping force of evolution. “On the Origin of Species” and its central idea were largely ignored and did not come back into vogue until the 1930s. By that time the population geneticist R. A. Fisher and others had shown that Mendelian genetics was compatible with the idea of natural selection working on small variations.

“If you think of the 150 years since the publication of ‘Origin of Species,’ it had half that time in the wilderness and half at the center, and even at the center it’s often been not more than marginal,” says Helena Cronin, a philosopher of science at the London School of Economics. “That’s a pretty comprehensive rejection of Darwin.”

Darwin is still far from being fully accepted in sciences outside biology. “People say natural selection is O.K. for human bodies but not for brain or behavior,” Dr. Cronin says. “But making an exception for one species is to deny Darwin’s tenet of understanding all living things. This includes almost the whole of social studies — that’s quite an influential body that’s still rejecting Darwinism.”

The yearning to see purpose in evolution and the doubt that it really applied to people were two nonscientific criteria that led scientists to reject the essence of Darwin’s theory. A third, in terms of group selection, may be people’s tendency to think of themselves as individuals rather than as units of a group. “More and more I’m beginning to think about individualism as our own cultural bias that more or less explains why group selection was rejected so forcefully and why it is still so controversial,” says David Sloan Wilson, a biologist at Binghamton University.

Tech Theory returns

2009-02-02T17:31:00.005-05:00

Law and Technology Theory, an affiliate of this blog's extended network, has returned. A global consortium of bloggers will address the question of human autonomy and technology throughout February and March 2009. Arthur Cockfield, the host of this extended series of related posts on Tech Theory, begins the discussion with an overview of instrumental and substantive theories of technology.

Literary Warrant [40]

2009-01-27T12:29:00.040-05:00

Bodleian Library Quadrangle

American Society of Civil Engineers (ASCE), 2009 Report Card for America's Infrastructure

"The Report Card is an assessment by professional engineers of the nation's status in 15 categories of infrastructure. In 2009, all signs point to an infrastructure that is poorly maintained, unable to meet current and future demands, and in some cases, unsafe. Since the last Report Card in 2005, the grades have not improved. ASCE estimates the nation still stands at a D average. Deteriorating conditions and inflation have added hundreds of billions to the total cost of repairs and needed upgrades. ASCE's current estimate is $2.2 trillion, up from $1.6 trillion in 2005."

American Wind Energy Association (AWEA), Wind Energy Grows by Record 8,300 MW in 2008: Smart Policies, Stimulus Bill Needed to Maintain Momentum in 2009 (Press release) (January 27, 2009)

"The U.S. wind energy industry shattered all previous records in 2008 by installing 8,358 megawatts (MW) of new generating capacity (enough to serve over 2 million homes), the American Wind Energy Association (AWEA) said today, even as it warned of an uncertain outlook for 2009 due to the continuing financial crisis.

"The massive growth in 2008 swelled the nation’s total wind power generating capacity by 50% and channeled an investment of some $17 billion into the economy, positioning wind power as one of the leading sources of new power generation in the country today along with natural gas, AWEA added. At year’s end, however, financing for new projects and orders for turbine components slowed to a trickle and layoffs began to hit the wind turbine manufacturing sector."

Read the rest of this post . . .

Brookings Institution, Metropolitan Policy Program, The New Orleans Index: Tracking the Recovery of New Orleans & the Metro Area (January 2009)

"In contrast to the nation, the greater New Orleans economy has grown, boosted by the large-scale rebuilding effort underway. There is a new uptick in population growth and the region’s unemployment rate is a relatively low 4.9 percent. Yet, storm damage remains widespread, potential destruction from new storms looms large, and state and local leaders must simultaneously confront the opportunities and challenges presented by Washington’s economic recovery efforts and the potential sunsetting of the federal Office of Gulf Coast Recovery."

Mian Chin et al., National Aeronautics and Space Administration (NASA), Atmospheric Aerosol Properties and Climate Impacts: Synthesis and Assessment Product 2.3 (Report by the U.S. Climate Change Science Program And the Subcommittee on Global Change Research) (January 2009)

"This report critically reviews current knowledge about global distributions and properties of atmospheric aerosols, as they relate to aerosol impacts on climate. It assesses possible next steps aimed at substantially reducing uncertainties in aerosol radiative forcing estimates. Current measurement techniques and modeling approaches are summarized, providing context. As a part of the Synthesis and Assessment Product in the Climate Change Science Program, this assessment builds upon recent related assessments, including the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC AR4, 2007) and other Climate Change Science Program reports. The objectives of this report are (1) to promote a consensus about the knowledge base for climate change decision support, and (2) to provide a synthesis and integration of the current knowledge of the climate-relevant impacts of anthropogenic aerosols for policy makers, policy analysts, and general public, both within and outside the U.S government and worldwide."—Executive Summary.

European Environment Agency (EEA), Impacts of Europe's Changing Climate (EEA Briefing no. 3/2008) (January 28, 2009)

"Global climate change is a reality. In Europe the most vulnerable regions are the Arctic, mountain areas, coastal zones and the Mediterranean. Key economic sectors, which will need to adapt include energy supply, health, water management, agriculture, forestry, tourism and transport."—Introduction. Note the correct URL for the full briefing.

Richard Harris, NPR, Global Warming Is Irreversible, Study Says (January 26, 2009)

"As carbon dioxide emissions continue to rise, the world will experience more and more long-term environmental disruption. The damage will persist even when, and if, emissions are brought under control, says study author Susan Solomon, who is among the world's top climate scientists."

Homeland Security Council Interagency Policy Coordination Subcommittee for Preparedness & Response to Radiological and Nuclear Threats, Planning Guidance for Response to a Nuclear Detonation (1st ed.) (January 16, 2009)

"One of the most catastrophic incidents that could befall the United States (US), causing enormous loss of life and property and severely damaging economic viability is a nuclear detonation in a US city. It is incumbent upon all levels of government, as well as public and private parties withinthe US, to prepare for this incident through focused nuclear attack response planning. Nuclear explosions present substantial and immediate radiological threats to life. Local and State community preparedness to respond to a nuclear detonation could result in life-saving on the order of tens of thousands of lives.

"The purpose of this guidance is to provide emergency planners with nuclear detonation-specific response recommendations to maximize the preservation of life in the event of an urban nuclear detonation. This guidance addresses the unique effects and impacts of a nuclear detonation such as scale of destruction, shelter and evacuation strategies, unparalleled medical demands, management of nuclear casualties, and radiation dose management concepts. The guidance is aimed at response activities in an environment with a severely compromised infrastructure for the first few days (e.g., 24-72 hours) when it is likely that many Federal resources will still be en route to the incident."—Introduction.

Lisa P. Jackson, Administrator, United States Environmental Protection Agency (EPA), Memo to EPA Employees (January 23, 2009)

"In outlining his agenda for the environment, President Obama has articulated three values that he expects EPA to uphold. These values will shape everything I do.

"Science must be the backbone for EPA programs. The public health and environmental laws that Congress has enacted depend on rigorous adherence to the best available science. The President believes that when EPA addresses scientific issues, it should rely on the expert judgment of the Agency’s career scientists and independent advisors. When scientific judgments are suppressed, misrepresented or distorted by political agendas, Americans can lose faith in their government to provide strong public health and environmental protection.

"The laws that Congress has written and directed EPA to implement leave room for policy judgments. However, policy decisions should not be disguised as scientific findings. I pledge that I will not compromise the integrity of EPA’s experts in order to advance a preference for a particular regulatory outcome.

"EPA must follow the rule of law. The President recognizes that respect for Congressional mandates and judicial decisions is the hallmark of a principled regulatory agency. Under our environmental laws, EPA has room to exercise discretion, and Congress has often looked to EPA to fill in the details of general policies. However, EPA needs to exercise policy discretion in good faith and in keeping with the directives of Congress and the courts. When Congress has been explicit, EPA cannot misinterpret or ignore the language Congress has used. When a court has determined EPA’s responsibilities under our governing statutes, EPA cannot turn a blind eye to the court’s decision or procrastinate in complying.

"EPA’s actions must be transparent. In 1983, EPA Administrator Ruckelshaus promised that EPA would operate 'in a fishbowl' and 'will attempt to communicate with everyone from the environmentalists to those we regulate, and we will do so as openly as possible.'"

Vinca LaFleur, Nigel Purvis & Abigail Jones, Brookings Institution, Double Jeopardy: What the Climate Crisis Means for the Poor (Brookings Blum Roundtable) (2008)

"From August 1 to 3, 2008, more than fifty preeminent policymakers, practitioners, and thought leaders from around the world convened at the Aspen Institute to explore the links between global climate change and poverty alleviation. Starting from the premise that climate solutions must empower the poor by improving livelihoods, health, and well-being, and that poverty alleviation itself must become a central strategy for both mitigating greenhouse gas emissions and reducing vulnerability to the adverse effects of climate change, the roundtable sought to shape a common agenda to tackle two of the greatest challenges of our time."—Foreword.

M. Granger Morgan et al., National Oceanic and Atmospheric Administration (NOAA), Best Practice Approaches for Characterizing, Communicating and Incorporating Scientific Uncertainty in Climate Decision Making (U.S. Climate Change Science Program Synthesis and Assessment Product 5.2)

"The primary objective of this report is to provide a tutorial to the climate analysis and decision-making communities on current best practice in describing and analyzing uncertainty in climate-related problems. While the language is largely semi-technical, much of it should also be accessible to non-expert readers who are comfortable with the treatment of technical topics at the level of journals such as Scientific American."—Preface.

National Automobile Dealers Association (NADA), Patchwork Proven: Why A Single National Fuel Economy Standard Is Better For America Than A Patchwork of State Regulations (January 2009)

"A comprehensive analysis released today by the National Automobile Dealers Association (NADA) on a California Air Resources Board’s (CARB) rule that would allow individual states to regulate fuel economy standards finds numerous unintended consequences that will cause economic harm and provide little or no environmental benefit over the proposed federal standards."—Press release.

National Research Council of the National Academies, Mapping the Zone: Improving Flood Map Accuracy (Prepublication version) (2009)

"Significant loss of life, destroyed property and businesses, and repairs to infrastructure could be avoided by replacing Federal Emergency Management Agency flood maps with ones that contain high-accuracy and high-resolution land surface elevation data, says a new report from the National Research Council. The benefits of more accurate flood maps will outweigh the costs, mainly because insurance premiums and building restrictions would better match the actual flood risks. Coastal region flood maps could also be improved by updating current models and using two-dimensional storm surge and wave models."

United Nations International Strategy on Disaster Reduction (UNISDR), UNISDR Terminology on Disaster Risk Reduction (2009)

"The UNISDR Terminology aims to promote common understanding and common usage of disaster risk reduction concepts and to assist the disaster risk reduction efforts of authorities, practitioners and the public.... The Terminology has been revised to include words that are central to the contemporary understanding and evolving practice of disaster risk reduction but exclude words that have a common dictionary usage. Also included are a number of emerging new concepts that are not in widespread use but are of growing professional relevance; these terms are marked with a star (*) and their definition may evolve in future. The English version of the 2009 Terminology provides the basis for the preparation of other language versions...."—Introduction.

United States Department of Energy (DOE), Energy Information Administration, Office of Oil and Gas, Impact of the 2008 Hurricanes on the Natural Gas Industry

"Hurricanes Gustav and Ike inflicted significant damage to the nation’s oil and natural gas infrastructure, causing devastating impacts on offshore natural gas production, shutting in production facilities and the pipelines that move the natural gas to processors along the Gulf coast. As a result of the two storms, almost all of the natural gas production and processing capacity in the area was shut in, with continued shut-ins affecting production into December 2008. There were 55 major natural gas processing plants in Texas, Louisiana, Mississippi, and Alabama that were in the path of Hurricanes Gustav and Ike, representing about 38 percent of the U.S. processing capacity. Twenty-eight pipelines declared force majeure during early September. Most of these pipelines move natural gas from offshore production platforms to onshore processing plants and many of them were effectively shutdown. Onshore interstate pipeline companies also were affected, with about a dozen interstate pipelines experiencing lower-than-normal flows in the aftermath of the hurricanes."

United States Department of Homeland Security (DHS), The Federal Preparedness Report (January 13, 2009)

"The Federal Preparedness Report (FPR) provides a snapshot of the state of preparedness in the United States at the end of Fiscal Year 2007. This Report is the first comprehensive review of the combined preparedness efforts of Federal, State, local, tribal, and territorial homeland security partners over the past five years. As directed by Section 652(a) of the Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA), Public Law 109-295—the goal of this Report is to provide a review of national preparedness."—Executive Summary.

United States Department of Homeland Security (DHS), Federal Emergency Management Association (FEMA), FEMA Transition Binder: For the 2009 Presidential Administration Transition (2009)

"This document, the FEMA 2009 Presidential Transition Binder, consisting of six tabs as described below, is intended to serve as a reference for FEMA leadership and employees to help orient them to its organizational structure, programs, resources, stakeholders, and operations."—Preamble.

United States Department of Homeland Security (DHS), Federal Emergency Management Association (FEMA), National Disaster Housing Strategy (January 16, 2009)

"The National Disaster Housing Strategy (the Strategy) serves two purposes. First, it describes how we as a Nation currently provide housing to those affected by disasters. It summarizes, for the first time in a single document, the many sheltering and housing efforts we have in the United States and the broad array of organizations that are involved in managing these programs. The Strategy also outlines the key principles and policies that guide the disaster housing process.

"Second, and more importantly, the Strategy charts the new direction that our disaster housing efforts must take if we are to better meet the emergent needs of disaster victims and communities. Today we face a wider range of hazards and potentially catastrophic events than we have ever faced before. These include terrorist attacks and major natural disasters that could destroy large sections of the Nation’s infrastructure. This new direction must address the disaster housing implications of all these risks and hazards and, at the same time, guide development of essential, baseline capabilities to overcome existing limitations. The new direction for disaster housing must leverage emerging technologies and new approaches in building design to provide an array of housing options. It must also be cost effective and draw on lessons learned and best practices. Above all, this new direction must institutionalize genuine collaboration and cooperation among the various local, State, tribal, and Federal partners, nongovernmental organizations, and the private sector to meet the needs of all disaster victims."—Overview.

United States Department of Homeland Security (DHS), National Security Telecommunications Advisory Committee (NSTAC), Evolving National Security and Emergency Preparedness (NS/EP) Communications in a Global Environment (2008 Research and Development Exchange Workshop Proceedings) (September 25-26, 2008)

"Dramatically changing business models of traditional telecommunications carriers, along with new technologies, are accelerating the advancement of global communications networks. The scale, scope, and character of the global next generation networks will revolutionize the planning, prioritization, and delivery of NS/EP communications. The 2008 RDX Workshop addressed a variety of high-level concerns that are affecting the communications and cyber environment and the way those concerns could alter NS/EP efforts."—Executive Summary.

United States Environmental Protection Agency (EPA), Office of Inspector General (OIG), Annual Superfund Report to Congress for Fiscal Year 2008 (EPA-350-R 09-001) (January 2009)

"Although EPA regions have recovered 56 percent of the total Superfund costs from sites reviewed during an evaluation, they could recover more. EPA had not collected as much as $129 million (44 percent), and determined it will not attempt to recover between $30 million and $90 million of that amount. This indicates a potentially significant breakdown in controls over Superfund cost recovery."—Foreword.

United States Environmental Protection Agency (EPA) Office of Inspector General (OIG), EPA Needs a Comprehensive Research Plan and Policies to Fulfill its Emerging Climate Change Role (Evaluation Report No. 09-P-0089) (February 2, 2009)

"EPA does not have an overall plan to ensure developing consistent, compatible climate change strategies across the Agency. We surveyed EPA regions and offices and found they need more information on a variety of climate change topics. They need technical climate change research and tools as well as other climate change policy guidance and direction. We learned that, in the absence of an overall Agency plan, EPA’s Office of Water and several regional offices have independently developed, or are developing, their own individual climate change strategies and plans. The lack of an overall climate change policy can result in duplication, inconsistent approaches, and wasted resources among EPA’s regions and offices. EPA has not issued interim guidance to give its major components consistent direction to ensure that a compatible national policy—when it emerges—will not result in wasted efforts."—What We Found.

United States Environmental Protection Agency (EPA), Office of Inspector General (OIG), EPA Plans for Managing Counter Terrorism/ Emergency Response Equipment and Protecting Critical Assets Not Fully Implemented (At a Glance 09-P-0087) (January 27, 2009)

"The Office of Inspector General (OIG) sought to determine whether the U.S. Environmental Protection Agency (EPA) effectively implemented corrective actions to address findings and recommendations in our previous report, EPA Needs to Better Implement Plan for Protecting Critical Infrastructure and Key Resources Used to Respond to Terrorist Attacks and Disasters, issued in April 2006."—Why We Did This Review.

Orice M. Williams, Director, Financial Markets and Community Investment, United States Government Accountability Office (GAO), Natural Hazard Mitigation and Insurance: The United States and Selected Countries Have Similar Natural Hazard Mitigation Policies but Different Insurance Approaches (Letter to the Honorable Spencer Bachus, Ranking Member,
Committee on Financial Services, House of Representatives; the Honorable Shelley Moore Capito, Ranking Member, Subcommittee on Housing and Community Opportunity,
Committee on Financial Services, House of Representatives; and the Honorable Christopher Shays, House of Representatives) (December 22, 2008)

"Natural hazards adversely affect hundreds of thousands of people worldwide each year and cause extensive property damage. In 2007, a year that was not considered an exceptional one for natural hazards, natural hazards caused an estimated 14,600 deaths and $70 billion in property losses. For that year, the insurance industry covered $23.3 billion in losses. In catastrophic loss years, such as 2005—the year that saw Hurricane Katrina—losses can be far greater. Scientific assessments indicate that climate change is expected to alter the frequency and severity of natural hazard events, and as a result, losses can be expected to climb. Given this scenario, examining policies that are used in other countries to reduce the loss of life and property caused by natural hazard events and examining insurance approaches that provide coverage for natural hazard losses can help identify practices in both areas that could benefit the United States. Similarly, given the ongoing challenges facing the United States, international cooperative efforts may provide instructive examples of risk management and disaster reduction."

Earthrise on Christmas Eve

2008-12-24T10:38:00.005-05:00

	Earthrise December 24, 1968 Peace on earth, good will to all

A mountain wind falling on oak trees

2008-12-21T02:17:00.005-05:00

	not one girl I think who looks on the light of the sun will ever have wisdom like this — Sappho, Fragment 56, in Anne Carson, If Not, Winter: Fragments of Sappho (2002)
Worshiping Women: Ritual and Reality in Classical Athens: [T]he commanding female deities in the Greek pantheon . . . . [l]ike most gods in most cultures . . . are moody, contradictory personalities, above-it-all in knowledge but quick to play personal politics and intervene in human fate.

The wonders of a pitiful, dreadful life

2008-12-19T19:38:00.002-05:00

Almost precisely a year to the day after the publication of Other People's Children and Marie Reilly's meditations on the Bailey Building & Loan Association comes Wendell Jamieson's fantastically insightful reexamination of It's a Wonderful Life:

“It’s a Wonderful Life” is anything but a cheery holiday tale. . . . “It’s a Wonderful Life” is a terrifying, asphyxiating story about growing up and relinquishing your dreams, of seeing your father driven to the grave before his time, of living among bitter, small-minded people. It is a story of being trapped, of compromising, of watching others move ahead and away, of becoming so filled with rage that you verbally abuse your children, their teacher and your oppressively perfect wife. It is also a nightmare account of an endless home renovation.

I wholeheartedly agree. This year's obligatory viewing of It's a Wonderful Life reminds me that any wise man would swiftly trade all the places, geographic and metaphysical, that he can reach through planes, trains, automobiles, and an Ivy League degree — fifteen countries, four continents, and three languages, if you insist on counting — for devotion worthy of Mary Hatch Bailey and his children's confidence that he really can fix everything complex as well as he can build a rose.

Multimedia bonus: It's a Wonderful Life

Literary Warrant [39]

2008-12-18T13:23:00.025-05:00

Sequentia, Aquitania: Christmas Music from Aquitanian Monasteries, 12th Century ([Germany]: Deutsche Harmonia Mundi, p1997)
A gem of a recital of early music celebrating Christmas. Happy holidays, all.--DCR

Kevin A. Borden & Susan L. Cutter, Spatial Patterns of Natural Hazards Mortality in the U.S., International Journal of Health Geographics, 7:64 (doi:10.1186/1476-072X-7-64) (December 17, 2008)

"Studies on natural hazard mortality are most often hazard-specific (e.g. floods, earthquakes, heat), event specific (e.g. Hurricane Katrina), or lack adequate temporal or geographic coverage. This makes it difficult to assess mortality from natural hazards in any systematic way. This paper examines the spatial patterns of natural hazard mortality at the county-level for the U.S. from 1970-2004 using a combination of geographical and epidemiological methods."—Abstract.

Committee for Review of the Federal Strategy to Address Environmental, Health, and Safety Research Needs for Engineered Nanoscale Materials, Committee on Toxicology, National Research Council of the National Academies, Review of Federal Strategy for Nanotechnology-Related Environmental, Health, and Safety Research (Prepublication copy) (2008)

"The field of nanotechnology relies on the ability to engineer, manipulate, and manufacture materials at the nanoscale1. Nanotechnology is already enabling the development of an industry that produces and uses engineered nanomaterials in a wide variety of industrial and consumer products, such as targeted drugs, video displays, remediation of groundwater contaminants, high performance batteries, dirt-repelling coatings on building surfaces and clothing, high-end sporting goods, and skin-care products. Over the next five to ten years, increasingly widespread use of complex engineered nanomaterials is anticipated in such products as medical treatments, super-strong lightweight materials, food additives, and advanced electronics. The increasing use of engineered nanoscale materials in industrial and consumer products will result in greater exposure of workers and the general public to these materials. Responsible development of nanotechnology implies a commitment to develop and to use these materials to meet human and societal needs while making every reasonable effort to anticipate and mitigate adverse effects and unintended consequences."—Summary.

Read the rest of this post . . .

Manuel A. Diaz, Mayor of Miami, President & Tom Cochran, CEO and Executive Director, United States Conference of Mayors, "Ready to Go": Jobs and Infrastructure Projects, Mainstreet Economic Recovery (Release no. 2) (December 8, 2008)

"Today we are reporting that in 427 cities of all sizes in all regions of the country, a total of 11,391 infrastructure projects are 'ready to go.' These projects represent an infrastructure investment of $73,163,299,303 that would be capable of producing an estimated 847,641 jobs in 2009 and 2010." Includes approximately 600 pages of tables enumerating projects.

Miguel Esteban et al., United Nations University, Institute of Advanced Studies (UNU-IAS), Innovation in Responding to Climate Change: Nanotechnology, Ocean Energy and Forestry (2008)

"In this report we begin by highlighting specific examples of how technological innovation is being implemented, some of the potential advantages of these innovations and the new challenges they in turn raise. The main conclusion is that solutions to the energy problem already exist. They are the result of decades of research and development, and are already at the first stages of commercialization. Furthermore, these solutions are the result of considerable investment in research and development by the private sector. It is therefore possible that, given adequate government leadership, clear market signals and regulatory frameworks, the private sector will continue to play a significant role in developing innovative responses to climate change."—Executive Summary.

Food and Agriculture Organization of the United Nations (FAO), Declaration of the Ministerial Conference on Water for Agriculture and Energy in Africa: The Challenges of Climate Change (Sirte/08/Declaration) (December 15-17, 2008)

"The Conference, which brought together ministers from 53 African countries, recognized that the challenges faced by the continent concerning food security, achieving the Millennium Development Goals, increased energy demand and combating climate change required all countries to move together."—Press release.

Food and Agriculture Organization of the United Nations (FAO), Natural Resources and Environment Department & FAO Sub-Regional Office for the Pacific Islands (SAP), Climate Change and Food Security in Pacific Island Countries (2008)

"The overall purpose of this paper is to address food security and poverty reduction in the face of climate change and energy security. It attempts to bring to the fore food security threats associated with climate change in the food production and supply environments, as well as the broader livelihood and ecological changes that will occur as a consequence. Recognizing the different geographical regions around the Pacific and how climate change would impact on their food security situations opens up new opportunities for understanding why changes happen. An attempt will also be made to address how Pacific Islanders can be assisted to enhance their capacity to reduce risk and make optimal use of current climate resources in order to capitalize on benefits that may arise due to the changing climate. In doing so, it will attempt to highlight some of the current impacts of climate change reported by Pacific Island Countries in their national communications to the UNFCCC and their National Adaptation Programmes of Action (NAPAs), and what attempts have been made to seriously address these issues. It is recognized that climate change is an additional stress that needs to be managed by the agricultural and broader development communities but it should also be emphasized that climate change will further exacerbate current development stresses that are already plaguing the agriculture community and national governments. This paper will try to draw out these links and discuss ways to proactively address the situation now rather then later."—Introduction.

William O. Jenkins, Jr., Director, Homeland Security and Justice Issues, United States Government Accountability Office (GAO), Actions Taken to Implement the Post-Katrina Emergency Management Reform Act of 2006 (November 21, 2008)

"This letter describes the actions FEMA and DHS have taken in response to the act’s provisions, areas where FEMA and DHS must still take action, and any challenges to implementation that FEMA and DHS officials identified during our discussions with them. In general, we found that FEMA and DHS have made some progress in their efforts to implement the act since it was enacted in October 2006. For most of the provisions we examined, FEMA and DHS had at least preliminary efforts underway to address them. However, we have identified a number of areas that still require action, and it is clear that FEMA and DHS have work remaining to implement the provisions of the act. This letter provides information, at a high level, on the status of implementation efforts for the entire act. We have not made an assessment of the quality or likely outcomes of any of the actions that have been taken. Additional focused evaluation in selected areas, and, in some cases more time for efforts to mature, will be required in order to evaluate the effectiveness of the actions taken to implement the law on enhancing the nation’s ability to prepare for, respond to, and recover from disasters."

Naval Postgraduate School Center for Homeland Defense and Security, On the Homefront (blog), Climate Change Activity Today (December 11, 2008)

"First, the California Air Resources Board today approved an October 2008 plan to aggressively combat climate change in the state.

"On another note, the U.S. Senate Minority Environment and Public Works Committee released a Minority Staff report which cites a coalition of 650 international scientists skeptical of man-made global warming as further evidence that challenges common notions about climate change."

Miriam Rotkin-Ellman et al., Natural Resources Defense Council (NRDC), Deepest Cuts: Repairing Health Monitoring Programs Slashed Under the Bush Administration (NRDC Issue Paper) (December 2008)

"During the eight years of the Bush Administration, the federal government has quietly eliminated or crippled more than a dozen essential monitoring programs. Budget cuts, restructuring, program termination, and removal of industry reporting requirements have been steadily undermining or eliminating the information that alerts us to problems in our air, water, food, or communities. Programs that directly track human health have also been slashed, creating gaps in our information about infectious disease outbreaks, chemical exposures in people, and chronic disease."—Executive Summary.

United Nations Environment Programme (UNEP), New Climate Change Publications

Includes links to full text of some publications. See also UNEP and Climate Change for additional new reports on partnerships and UNEP strategy.

United Nations Environment Programme, World Conservation Monitoring Centre (UNEP-WCMC), Carbon and Biodiversity: A Demonstration Atlas (2008)

"This atlas demonstrates the potential for spatial analyses to identify areas that are high in both carbon and biodiversity. Such areas will be of interest to countries that wish to reduce greenhouse gas emissions from land use change and simultaneously conserve biodiversity."—Introduction.

United Nations Framework Convention on Climate Change (UNFCCC), The United Nations Climate Change Conference in Poznań (December 1-12, 2008)

"At Poznań, the finishing touches were put to the Kyoto Protocol’s Adaptation Fund, with Parties agreeing that the Fund would be a legal entity granting direct access to developing countries. Progress was also made on a number of important ongoing issues that are particularly important for developing countries, including: adaptation; finance; technology; reducing emissions from deforestation and forest degradation (REDD); and disaster management."

United States Environmental Protection Agency (EPA), Office of Inspector General (OIG), EPA’s California Waiver Decision on Greenhouse Gas Automobile Emissions Met Statutory Procedural Requirements (Office of Counsel Legal Review, Report No. 09-P-0056) (December 9, 2008)

"This is in response to your January 2, 2008, letter requesting that the Office of Inspector General (OIG) investigate whether the decision by the U.S. Environmental Protection Agency (EPA) to deny California's request for a waiver to implement a law to reduce greenhouse gas (GHG) emissions from automobiles deviated from standard protocols. As I noted in my March 17, 2008, correspondence to you, we have narrowed the focus of our review to address whether the statutory requirements related to the waiver decision were met.... As discussed below, we determined that the statutory requirements were met."—Letter from Bill A. Roderick, Deputy Inspector General, to the Honorable Dianne Feinstein Chairman Subcommittee on Interior, Environment, and Related Agencies Committee on Appropriations United States Senate.

United States Government Accountability Office (GAO), Disaster Recovery: FEMA’s Public Assistance Grant Program Experienced Challenges with Gulf Coast Rebuilding (Report to the Committee on Homeland Security and Governmental Affairs, U.S. Senate, GAO-09-129) (December 2008)

"GAO was asked to examine the amount of PA grants FEMA has provided for rebuilding the Gulf Coast; challenges in the day-to-day operation of the PA program; and human capital challenges; as well as actions taken to address them. Toward this end, GAO reviewed relevant laws, PA regulations and procedures, and analyzed data from FEMA’s National Emergency Management Information System. GAO also interviewed federal officials from FEMA and the Department of Homeland Security’s (DHS) Office of the Federal Coordinator for Gulf Coast Rebuilding as well as more than 60 officials from state government and eight localities in Louisiana and Mississippi."—Why GAO Did This Study.

United States Government Accountability Office (GAO), Federal Efforts to Assist Group Site Residents with Employment, Services for Families with Children, and Transportation (Report to Congressional Requesters, GAO-09-81) (December 2008)

"FEMA located more than 500 group sites, housing over 20,000 households over time, throughout counties in Louisiana and Mississippi. About another 106,000 households received trailers that were placed on their property while repairs were being made to their homes. The majority of group sites had less than 50 households, although some group sites had several hundred households residing in them. Most of the households who were placed in group sites reported that they were renters before the storm. While the majority of individuals who received a FEMA trailer reported being employed, about 65 percent reported less than $20,000 in income. About one-fifth reported no source of income, in some cases, they were unemployed and disabled. While FEMA does not update data on group site residents to reflect current employment status or income levels, some state and FEMA officials we spoke with in early 2008 stated that those who remained in the sites the longest were the hardest to serve people including the elderly, persons with disabilities, and unemployed people."—Results in Brief.

United States Government Accountability Office (GAO), Flood Insurance: FEMA’s Rate-Setting Process Warrants Attention (Report to the Ranking Member, Committee on Banking, Housing, and Urban Affairs, U.S. Senate, GAO-09-12) (October 2008)

"In response to the questions that have been raised about NFIP’s financial condition, this report evaluates (1) FEMA’s process for setting full-risk premiums to determine whether it produces rates that accurately reflect the risk of flooding and (2) the process that FEMA uses to set subsidized rates and their financial impact on NFIP."—Letter from Orice Williams, Director, Financial Markets and Community Investment, GAO, to the Honorable Richard C. Shelby Ranking Member, Committee on Banking, Housing, and Urban Affairs, United States Senate (October 30, 2008)

United States Government Accountability Office (GAO), Flood Insurance: Options for Addressing the Financial Impact of Subsidized Premium Rates on the National Flood Insurance Program (Report to the Ranking Member, Committee on Banking, Housing, and Urban Affairs, U.S. Senate, GAO-09-20) (November 2008)

"The Federal Emergency Management Agency (FEMA), the Department of Homeland Security (DHS) agency that administers the National Flood Insurance Program (NFIP), estimates that subsidized properties—those that receive discounted premium rates that do not fully reflect the properties’ actual flood risk—experience as much as five times the flood damage as properties that do not qualify for subsidized rates. Almost one in every four residential policies has subsidized rates that are on average 35-40 percent of the full-risk rate. Unprecedented losses from the 2005 hurricane season and NFIP’s periodic need to borrow from the Department of the Treasury to pay flood insurance claims has raised concerns about the impact that subsidized premium rates have on the longterm financial solvency of NFIP. GAO designated NFIP as high-risk in March 2006; as of June 2008, NFIP’s debt stood at $17.4 billion.

"This report (1) provides information on NFIP’s inventory of subsidized properties and (2) examines NFIP’s current approach to subsidized properties and the advantages and disadvantages of options for reducing the costs associated with these properties."—Why GAO Did This Study.

United States Senate, Environment and Public Works Committee, U. S. Senate Minority Report: More Than 650 International Scientists Dissent Over Man-Made Global Warming Claims Scientists Continue to Debunk "Consensus" in 2008 (December 11, 2008)

"Over 650 dissenting scientists from around the globe challenged man-made global warming claims made by the United Nations Intergovernmental Panel on Climate Change (IPCC) and former Vice President Al Gore. This new 231-page U.S. Senate Minority Report—updated from 2007’s groundbreaking report of over 400 scientists who voiced skepticism about the so-called global warming "consensus"—features the skeptical voices of over 650 prominent international scientists, including many current and former UN IPCC scientists, who have now turned against the UN IPCC. This updated report includes an additional 250 (and growing) scientists and climate researchers since the initial release in December 2007. The over 650 dissenting scientists are more than 12 times the number of UN scientists (52) who authored the media-hyped IPCC 2007 Summary for Policymakers."—Introduction.

Henry A. Waxman, Chairman, Committee on Government and Oversight Reform & James L. Oberstar, Chairman, Committee on Transportation and Infrastructure, United States House of Representatives, Letter to President-elect Barack Obama (December 16, 2008)

"We are writing to provide you with the results of an extensive joint investigation by our Committee staffs that finds that the federal government's Clean Water Act enforcement program has been decimated over the past two years, imperiling the health and safety of the nation's waters. We are forwarding a memorandum that summarizes the investigation and provides the results of a review of more than 20,000 pages of documents produced to the Committees by the Environmental Protection Agency and the U.S. Army Corps of Engineers."

Dogs know

2008-12-14T22:48:00.003-05:00

Friederike Range of the University of Vienna confirms what dog owners have always known: dogs don't appreciate being treated unfairly. The popular press calls it envy; Dr. Range prefers the term inequity aversion. Either way, dogs know. And in case we've forgotten, so do people.

Literary Warrant [38]

2008-12-01T15:16:00.004-05:00

Handelingenkamer Tweede Kamer der Staten-Generaal den Haag from Candida Höfer, Libraries (London: Thames & Hudson, 2005)

"The spirit of rhetoric trumps the spirit of modern philosophy—not quite canceling its dark vision but placing it in a context of ongoingness exemplified by the sense that invention is always available if one can stop fretting over matters of identity."—Charles Altieri, The Art of Twentieth-Century American Poetry: Modernism and After 208 (Oxford: Blackwell, 2006)
(on John Ashbery's Pyrography)

American Bar Association (ABA), Legal Services Corporation, National Legal Aid and Defender Association & Pro Bono Net, National Disaster Legal Aid

"A new Web site launched by four national legal organizations will help victims of disasters find valuable information and assistance to speed recovery from hurricanes, fires, floods or other disasters."—Press release (November 17, 2008)

Ingrid Barnsley, United Nations University, Institute of Advanced Studies (UNU-IAS), Reducing Emissions from Deforestation and Forest Degradation in Developing countries (REDD): A Guide for Indigenous Peoples (Pocket Guide) (2008)

"In the context of the increasing global focus on climate change, attention is being paid to the role of the forestry sector in contributing to and fighting climate change. In particular, this includes a recent focus on opportunities for reducing greenhouse gas emissions from deforestation and forest degradation in developing countries known as 'REDD'. Such activities can present both risks to and opportunities for the interests and rights of Indigenous peoples. For this reason, it is vital that Indigenous communities have accurate information to help them make, and participate in, REDD-related decisions that may affect them."—About this Guide.

Read the rest of this post . . .

Deloitte & Touche LLP, How Green is the Deal? The Growing Role of Sustainability in M&A (2008)

"The 'greening' of products and business operations has become a central theme in virtually every industry. In today’s environment, companies that have strong corporate responsibility and sustainability (CR&S) programs in place are likely to be rewarded for their efforts. As CR&S wields growing influence on the strategy and operations of a company, so too will it become an increasingly important aspect of mergers and acquisitions (M&A).

"In this paper, we provide an outline of six key areas of focus for executives, and discuss how greater consideration of sustainability related issues, when evaluating potential M&A transactions, can help to improve deal success."

DLR, Institute of Technical Thermodynamics, Department of Systems Analysis and Technology Assessment, Stuttgart, Germany, energy [r]evolution: A Sustainable World Energy Outlook

"The energy [r]evolution is an independently produced report that provides a practical blueprint for how to half global CO2 emissions, while allowing for an increase in energy consumption by 2050. By dividing the world into 10 regions, with a global summary, it explains how existing energy technologies can be applied in more efficient ways. It demonstrates how a ‘business as usual’ scenario, based on IEA’s World Energy Outlook projections, is not an option for environmental, economic and security of supply reasons."

Jeffrey Greenblatt, Google.org, Clean Energy 2030: Google's Proposal for Reducing U.S. Dependence on Fossil Fuels (November 20, 2008)

"The energy team at Google has been analyzing how we could greatly reduce fossil fuel use by 2030. Our proposal—"Clean Energy 2030"—provides a potential path to weaning the U.S. off of coal and oil for electricity generation by 2030 (with some remaining use of natural gas as well as nuclear), and cutting oil use for cars by 44%."—Summary.

David W. Guth & Gordon A. Alloway, University of Kansas, Untapped Potential: Evaluating State Emergency Management Agency Web Sites 2008 (Findings of the University of Kansas Transportation Research Institute-funded study "Crisis Communications: Evaluating Effectiveness of State Emergency Management Web Sites") (Project Number: FED45344)

"The analysis of the data suggests that state emergency planners need greater recognition of the value of the Internet and other social media. This is especially true when communicating with the public and journalists during crises. While the public information officers who responded to the online survey indicated that the public was the primary focus of their agency’s Web sites, the content analysis of those sites suggested that their focus was actually directed toward internal publics, such as first responders and local emergency management officials. The study went on to suggest that greater strategic planning of agency Web sites is needed. Considering these findings, it should not come as a surprise that public information officers said they felt that journalists and legislators have a greater understanding of their agency’s mission than the public. And while survey respondents said the Internet is of some value as a medium of emergency communications, most felt it was not as valuable as traditional media, such as radio and television. This attitude conflicts with the experience of recent natural disasters, such as the California wildfires and the Virginia Tech shootings."—Executive Summary.

International Energy Agency (IEA), World Energy Outlook 2008 (WEO)

"In the WEO-2008 Reference Scenario, which assumes no new government policies, world primary energy demand grows by 1.6% per year on average between 2006 and 2030—an increase of 45%. This is slower than projected last year, mainly due to the impact of the economic slowdown, prospects for higher energy prices and some new policy initiatives. Demand for oil rises from 85 million barrels per day now to 106 mb/d in 2030—10 mb/d less than projected last year. Demand for coal rises more than any other fuel in absolute terms, accounting for over a third of the increase in energy use. Modern renewables grow most rapidly, overtaking gas to become the second-largest source of electricity soon after 2010. China and India account for over half of incremental energy demand to 2030 while the Middle East emerges as a major new demand centre. The share of the world’s energy consumed in cities grows from two-thirds to almost three-quarters in 2030. Almost all of the increase in fossil-energy production occurs in non-OECD countries. These trends call for energy-supply investment of $26.3 trillion to 2030, or over $1 trillion/year. Yet the credit squeeze could delay spending, potentially setting up a supply-crunch that could choke economic recovery."—Press release (November 12, 2008)

Nicholas S. Kelley & Michael T. Osterholm, University of Minnesota, Center for Infectious Disease Research and Policy (CIDRAP), Pandemic Influenza, Electricity, and the Coal Supply Chain: Addressing Crucial Preparedness Gaps in the United States (November 2008)

"A coal shortage during an influenza pandemic portends grim outcomes. With this report, we attempt to conceptualize what happens when a pandemic disrupts the supply chain for coal, the fuel nearly half of the United States relies upon for electricity—the cornerstone of public health and organizational continuity. We believe the nation must reduce the risk that a pandemic poses to the generation of electricity and prevent the collateral damage the nation faces without electricity. We offer four recommendations based on our analysis of the coal supply chain and government guidance and plans."—Abstract. Registration required.

David M. Morens, Gregory K. Folkers & Anthony S. Fauci, National Institute of Allergy and Infectious Diseases (NIAID), Emerging infections: a perpetual challenge, The Lancet, v.8 (November 2008)

"Emerging and re-emerging infectious diseases, and their determinants, have recently attracted substantial scientific and popular attention. HIV/AIDS, severe acute respiratory syndrome, H5N1 avian influenza, and many other emerging diseases have either proved fatal or caused international alarm. Common and interactive co-determinants of disease emergence, including population growth, travel, and environmental disruption, have been increasingly documented and studied. Are emerging infections a new phenomenon related to modern life, or do more basic determinants, transcending time, place, and human progress, govern disease generation? By examining a number of historically notable epidemics, we suggest that emerging diseases, similar in their novelty, impact, and elicitation of control responses, have occurred throughout recorded history. Fundamental determinants, typically acting in concert, seem to underlie their emergence, and infections such as these are likely to continue to remain challenges to human survival."— Abstract.

National Academy of Public Administration, Saving Our History: A Review of National Park Cultural Resource Programs (Octboer 2008)

"Historically, NPS [National Park Service] has allocated funding and staff primarily based on assessments of parks’ needs. Since the mid-1990s, NPS has developed various systems and tools to set strategic goals, measure performance, and factor performance and efficiency into budget allocations and management decisions at all levels. Although NPS managers now have many useful measures and tools to inform decision-making, the Panel finds room for improvement in NPS stewardship of park cultural resources."—Executive Summary.

National Parks Conservation Association, Mandates, Economic Impacts, and Local Concerns: Who Should Manage Mount St. Helens? (November 20, 2008)

"Congress established Mount St. Helens National Volcanic Monument to, 'protect geologic, ecologic, and cultural resources,' while simultaneously recognizing the irreplaceable opportunity for scientists and tourists alike to observe the natural recovery of a devastated environment. These purposes require both protection of the Mount St. Helens landscape, as well as development of access to the educational and recreational opportunities the mountain has to offer. We conclude in this Report that these dual goals would be best achieved if Congress placed Mount St. Helens under the management of the National Park Service ('NPS'). The NPS has the appropriate mandate, the appropriate funding mechanisms, and the appropriate management experience to properly balance the competing interests of use and preservation to meet the goals that Congress established and the promise that Mount St. Helens holds for future generations."—Introduction.

National Wildlife Federation, More Variable and Uncertain Water Supply: Global Warming’s Wake-Up Call for the Southeastern U.S. (2008)

"The Southeast should plan for increasing variability in water supply. By making better use of existing water infrastructure and improving water-use efficiency, the water system can be made more reliable and resilient. Riskbased, integrated watermanagement will help meet the multiple demands from communities, agriculture, and industry, while still addressing flood control, reducing energy usage, and protecting clean water, fish, and wildlife."

Julie Rehmeyer, Science News, Florence Nightingale: The Passionate Statistician (November 28, 2008)

"Nightingale created many novel graphics to present statistics that would persuade Queen Victoria of the need to improve sanitary conditions in military hospitals. The area of each region shows the number of soldiers who died of wounds, disease, or other causes, during each month of the Crimean War."

Scott Russell, Nanotechnology: What Is It and Why Do Law Librarians Need to Know About It? (November 30, 2008)

"Future studies linking nanotechnology to any adverse issue could lead to litigation for a firm client. It is here where a basic knowledge of what nanotechnology is, or at least a knowledge of where to go to get information on it, could prove helpful for law librarians. Concerns about exposure could lead to various tort claims, as well as cases involving consumer fraud. From an employment law perspective, workplace exposure or disability claims could be filed. Intellectual property disputes have already been filed regarding licensing issues on certain nanotechnologies both in the U.S. and U.K. It is too soon to say if this emerging technology will lead to any mass litigation, but it is clear that use and exposure to nano materials will grow in the coming years."

Corinne J. Schuster-Wallace et al., United Nations University, International Network on Water, Environment and Health (UNU-INWEH), Safe Water as the Key to Global Health (2008)

"Access to safe and affordable water is considered a basic human right. Policies at various levels and their implementation, however, do not reflect this principle. Improved access to clean water can reduce diarrhoea and waterborne diseases by at least 25%; improved sanitation is accompanied by more than a 30% reduction in child mortality. This urgent global challenge is pragmatically achievable, politically feasible and ethically important."—Summary for Decision-Makers.

United Nations Environment Programme (UNEP), Atmospheric Brown Clouds: Regional Assessment Report with Focus on Asia (2008)

"The build-up of greenhouse gases (GHGs) and the resulting global warming pose major environmental threats to Asia’s water and food security. Carbon dioxide (CO2), methane, nitrous oxide, halocarbons and ozone in the lower atmosphere (below about 15 km) are the major gases that are contributing to the increase in the greenhouse effect.

"In a similar fashion, increasing amount of soot, sulphates and other aerosol components in atmospheric brown clouds (ABCs) are causing major threats to the water and food security of Asia and have resulted in surface dimming, atmospheric solar heating and soot deposition in the Hindu Kush-Himalayan-Tibetan (HKHT) glaciers and snow packs. These have given rise to major areas of concern, some of the most critical being observed decreases in the Indian summer monsoon rainfall, a north-south shift in rainfall patterns in eastern China, the accelerated retreat of the HKHT glaciers and decrease in snow packs, and the increase in surface ozone. All these have led to negative effects on water resources and crop yields. The emergence of the ABC problem is expected to further aggravate the recent dramatic escalation of food prices and the consequent challenge for survival among the world’s most vulnerable populations. Lastly, the human fatalities from indoor and outdoor exposures to ABC-relevant pollutants have also become a source of grave concern."—Summary for Policy Makers.

United Nations Framework Convention on Climate Change (UNFCCC), National Greenhouse Gas Inventory Data for the Period 1990-2006 (November 17, 2008)

"Greenhouse gas emissions of 40 industrialized countries rose by 2.3 per cent between 2000 and 2006, while still about 5 per cent below the 1990 level, according to United Nations figures released today, two weeks before a major review conference on the issue.

"For the smaller group of industrialized countries that ratified the 1997 Kyoto Protocol setting reduction targets, emissions in 2006 were about 17 per cent below the Protocol’s 1990 base line, but they still grew after 2000. The pre-2000 decrease stemmed from the economic decline of transition countries in Eastern and Central Europe in the 1990s."—Press release.

United States Environmental Protection Agency (EPA), Municipal Solid Waste in the United States: Facts and Figures 2007 (EPA530-R-08-010) (November 2008)

"This report describes the national municipal solid waste (MSW) stream based on data collected for 1960 through 2007. The historical perspective is useful for establishing trends in types of MSW generated and in the ways it is managed. In this Executive Summary, we briefly describe the methodology used to characterize MSW in the United States and provide the latest facts and figures on MSW generation, recycling, and disposal."—Executive Summary.

United States Environmental Protection Agency (EPA), National Action Plan for Energy Efficiency (November 2008)

"This Vision for the National Action Plan for Energy Effi ciency establishes a goal of achieving all cost effective energy efficiency by 2025; presents ten implementation goals for states, utilities, and other stakeholders to consider to achieve this goal; describes what 2025 might look like if the goal is achieved; and provides a means for measuring progress. It is a framework for implementing the fi ve policy recommendations of the Action Plan, announced in July 2006, which can be modifi ed and improved over time."—Executive Summary.

United States Environmental Protection Agency (EPA), Proposed Guidelines to Control Pollution from Construction Sites (November 19, 2008)

"EPA is seeking comments on its proposed guidelines to control the discharge of pollutants from construction sites. The proposal would require all construction sites to implement erosion and sediment control best management practices to reduce pollutants in stormwater discharges."—Press release.

United States Environmental Protection Agency (EPA), Superfund National Accomplishments Summary Fiscal Year 2008

"EPA continues to make significant progress in cleaning up America’s most contaminated hazardous waste sites and making them ready for productive use. EPA’s annual summary of the Superfund program’s accomplishments shows that construction was completed at 30 sites in 2008, for a cumulative total of 1,060 sites or approximately 67 percent of the sites on the National Priorities List. Superfund is the federal government program that cleans up the most serious hazardous waste sites across the country."—Press release (November 17, 2008)

United States Federal Trade Commission (FTC), 2008 Report on Ethanol Market Concentration (November 17, 2008)

"As of September 2008, 160 firms produced ethanol in the United States – a one-year increase of 57 firms. The largest ethanol producer’s share of capacity has continued to fall each year as new firms have entered the market and existing firms have added capacity. Currently, the largest producer accounts for approximately 11 percent of domestic ethanol capacity, down from 16 percent in 2007, 21 percent in 2006, 26 percent in 2005, and 41 percent in 2000."—Press release.

United States House of Representatives, Select Committee on Energy Independence & Global Warming, 110th Congress Staff Report (October 21, 2008)

"This Final Staff Report details the findings and recommendations of the Select Committee staff. Part I of the report addresses the challenges posed by the climate crisis and America’s growing energy needs. Part II provides recommendations on a series of 'win-win' solutions that will bolster America’s energy security while achieving the reductions in global warming pollution needed to save the planet. Part III presents the findings and recommendations resulting from the Select Committee’s oversight activities. Part IV discusses international issues, and reviews the findings of the Select Committee Congressional delegations to Greenland and the EU, Brazil, and India."—Executive Summary.

Antonio Villaraigosa, Mayor, City of Los Angeles, Energy Management Initiative (November 20, 2008)

"During the last several months, the Mayor’s Office of Homeland Security and Public Safety has worked very closely with the Emergency Management Department (EMD), Los Angeles Fire Department (LAFD), Los Angeles Police Department (LAPD), and other City agencies to develop a comprehensive initiative to enhance our preparedness and planning efforts. This initiative, set forth in more detail below, involves several components to enhance the City’s planning and preparedness efforts, train city employees in disaster response, better prepare the community in disaster preparedness, and modernize the City’s antiquated emergency management structure."—Introduction.

David C. Wyld, Robert Maurin Professor of Management and Director of the Strategic e-Commerce/e-Government Initiative, Southeastern Louisiana University, Government in 3D: How Public Leaders Can Draw on Virtual Worlds (IBM Center for the Business of Government E-Government/Technology Series) (2008)

"In time, we will see that tangible, real-world results will come from the collaboration, learning, and interactions that come about in virtual-world environments. We will also see public sector executives increasingly willing to shift financial, technology, and human resources to virtual-world projects as these success stories come about, and as we see cost savings and positive environmental impacts from lessening the 'economy of presence.'"—Executive Summary.

Jurisdynamic agricultural law

2008-11-24T20:26:00.003-05:00

I invite readers of Jurisdynamics to ponder how one might update the agricultural law curriculum to account for legal and social change in that domain over the past generation.

Ex libro lapidum historia mundi

2008-11-19T00:43:00.003-05:00

Mazon Creek lagerstätte
All geology represents the present-tense freeze-frame of the earth's history, condensed conveniently in the chemistry of rocks and soils. Though the course of any single organism's life is infinitesimally minute by comparison with the history of the earth, only one species in the earth's parade of life — ours — has managed to crack the code. It is as though some geological variant of Heisenberg's uncertainty principle prevents observation over a more meaningful time span. Any organism attaining the power to unlock the earth's secrets also acquires, by that very stroke, the power to destroy the earth itself.

The true wonders in this world do not hide. Rather, they wait in plain sight, obscured not so much by ice or vegetation as by the shades we draw across our eyes. Most of geologic history belongs in this category of true wonders. Terrestrial history accretes at rates too slow for any mortal observer to notice. But it leaves records in the form of rocks and soils and layers.

On extremely rare occasions, the chroniclers of geologic time pause to pick one fragment of one organism — a leaf, a wing, a shell, a bone — and enshrine it in some durable medium. The imprints of Carboniferous ferns, horsetails, and club mosses, insects in amber, the barely perceptible bas-relief of a mollusk, cliffs colored by coccolithophorid shells, even the hydrocarbon relics of ancient plant life that humans so casually burn and polymerize — all these bear mute testimony to worlds long past.

As with sediment, so with sentiment: Our efforts at self-understanding have no chance of overcoming the mindless buzz of being and doing. We cannot understand feelings of the moment, with deep emotional footprints and even with lasting practical consequences, until we stop acting upon those feelings and seize the opportunity to look backward, in the serenity of solitude.

Logarithmic spirals and the nautilus

2008-11-15T13:38:00.003-05:00

I just composed the following observations in connection with a MoneyLaw post and thought that the Jurisdynamics audience might appreciate them even more:

The chambers of a nautilus are arranged according to an approximate logarithmic spiral that can be calculated in polar coordinates according to this simple formula:

r = ae^bθ

where r represents the radial coordinate, θ represents the angular coordinate, e is the base of natural logarithms, and a and b are constants that (1) are arbitrary in modeling and (2) are empirically determined in real-world applications of logarithmic spirals.

I post this picture of the nautilus, which graces the banner for BioLaw: Law and the Life Sciences, because it is beautiful. It reminds us that beautiful things are often beautiful because they work. The nautilus and its relatives, after all, have cruised the seas for half a billion years with very few evolutionary adaptations.

For technical details, see Wikipedia's excellent articles on logarithmic spirals and polar coordinates. Extra intellectual credit goes to readers who tackle the article on spherical coordinates as well.

Disaster and Sustainability: The Cultural Perspective

2008-11-04T14:29:00.002-05:00

» Cross-posted from The Cardinal Lawyer «

I will take part in a November 6-7 symposium called Disaster and Sustainability: The Cultural Perspective. The University of Copenhagen's Faculty of Law will stage this symposium at Carlsberg Akademi:

It is widely accepted that the study of ecological and societal sustainability in general and climate change in particular involves all research disciplines from all faculties within the academy. The study of sustainability is inherently multi- as well as cross-disciplinary, given the fact that climate changes and other questions of sustainability relate to and influence every aspect of human society and its environment. In this two-day Copenhagen symposium, we will explore the huge and diverse field of sustainability studies by focusing on the interrelationship between sustainability and disaster as recto and verso of the same set of problems.

We consider the study of disasters an important and rewarding way of gaining knowledge about the sustainability of human societies and their environment. Disasters challenge the resilience and threaten the cohesion of the social fabric; however, disaster research shows how disasters can also strengthen the cohesion of a community in the short term, and work important changes in the long term.

In the recent decade the cultural and social aspects of disasters-questions such as how human societies contribute to the creation of disasters, how they perceive disasters, and how they respond when they strike-have gained acceptance as important constituents of disaster research. Yet the cultural perspective on sustainability studies-in the widest possible sense of the word, including social, economic, legal, religious, aesthetic, political, and philosophical inquiries-still seems like an area very much open for development and further research.

We have the pleasure of inviting scholars from all fields of research to explore the multi-faceted perspectives of the interrelationship between disaster and sustainability. With this symposium we hope to accelerate further research within the field. In joining scholars from different disciplines and traditions, we particularly hope to create an inspiring and synergizing platform for valuable exchanges in the years to come.

Literary Warrant [37]

2008-10-21T12:54:00.048-04:00

Stiftsbibliothek St. Gallen
from Candida Höfer, Libraries (London: Thames & Hudson, 2005)

Association of State and Territorial Health Officials (ASTHO) et al., Public Health Emergency Preparedness: Six Years of Achievement

"Uniting public health players, including agencies at the state and local levels, the Public Health Emergency Preparedness (PHEP) Program is a key component of the Centers for Disease Control and Prevention’s (CDC) response to the 9/11 and anthrax incidents in the fall of 2001. To take action against an expanded scope of threats, the CDC allocated approximately $4.9 billion in overall base funding to this cooperative agreement for public health emergency preparedness from FY 2002 through FY 2007."

Congressional Budget Office (CBO), Climate-Change Policy and CO2 Emissions from Passenger Vehicles (Economic and Budget Issue Brief) (October 6, 2008)

"Human activities are producing increasingly large quantities of greenhouse gases, particularly carbon dioxide (CO2), and their accumulation in the atmosphere is expected to affect the climate throughout the world. This Congressional Budget Office issue brief examines the role of passenger vehicles (cars and light trucks) in the U.S. effort to curb those emissions. In particular, the brief looks at how putting a price on CO2 emissions—for example, through a cap-and-trade system—would affect gasoline prices and, as a consequence, vehicle emissions."—Summary.

Read the rest of this post . . .

Deloitte LLP, Energy Policy of Presidential Candidates (2008)

"'Energy Policy of Presidential Candidates' reviews key oil and gas tax policy differences of the presidential candidates. It focuses predominantly on the issues and political positions that are most relevant to the oil and gas industry from a tax perspective. Few industries have the impact on global economic livelihood, societal functioning and quality of life as significantly as the energy industry, and few industries face as many challenges."

European Environment Agency, Impacts of Europe's Changing Climate: 2008 Indicator-based Assessment (EEA Report, no. 4/2008) (JRC Reference Report, no. JRC47756) (2008)

"This report is an update and extension of the 2004 EEA Report Impacts of Europe's changing climate. Since 2004, there has been much progress in monitoring and assessing the impacts of climate change in Europe. The objectives of this report are to present this new information on past and projected climate change and its impacts through indicators, to identify the sectors and regions most vulnerable to climate change with a need for adaptation, and to highlight the need to enhance monitoring and reduce uncertainties in climate and impact modelling. To reflect the broadening of coverage of indicators and make use of the best available expertise, the report has been developed jointly by EEA, JRC and WHO Regional Office for Europe....

"The main part of this report summarises the relevance, past trends and future projections for about 40 indicators (from 22 in the 2004 report). The indicators cover atmosphere and climate, the cryosphere, marine systems, terrestrial systems and biodiversity, agriculture and forestry, soil, water quantity (including floods and droughts), water quality and fresh water ecology, and human health. The report also addresses adaptation and the economics of climate change impacts and adaptation strategies and policies, and data availability and uncertainty."—Executive Summary.

Emily Figdor, Environment California Research & Policy Center, Feeling the Heat: Global Warming and Rising Temperatures in the United States (October 2008)

"Global average surface temperatures have increased by more than 1.4°F since the mid-19th century. In 2007, the United Nations’ Intergovernmental Panel on Climate Change concluded that the evidence of global warming is 'unequivocal' and that human activities are responsible for most of this rise in temperature.

"To examine recent temperature patterns in the United States, we compared temperature data for the years 2000–2007 with the historical average, or 'normal,' temperature for the preceding 30 years, 1971–2000. Our data were collected at 255 weather stations—those with the highest quality data—in all 50 states and Washington, DC. Overall, we found that temperatures were above the 30-year average across the country, indicating pervasive warming."—Executive Summary.

Financial Times, Climate Change Series (2008)

A three-part series published at FT.com. "Climate change is arguably the most vital issue facing mankind today. Ban Ki-moon, United Nations secretary-general, has said tackling the threat of climate change is 'the defining challenge of our age.'"

Green Alliance, A Last Chance for Coal: Making Carbon Capture and Storage a Reality (2008)

"This collection shows just how far the debate on climate change has come. It includes contributions from individuals with vastly different backgrounds. All agree that decisive action on climate change in the next decade is imperative. Our tentative steps to date are simply not enough. We have little time to make the transition to a zero-carbon economy. We must accelerate our efforts now.

"The contributors[sic] shared focus is finding solutions that match the scale of the challenge. We will only succeed if we link climate change with other pressing challenges. Climate change and energy policy, in particular, must be tackled together. We cannot purchase energy security at the cost of climate security. But old thinking is proving hard to overcome in developing energy policy. The political imperative to ‘keep the lights on’ cannot be wished away; but neither can it be used as an excuse to avoid securing a stable climate. We must meet both goals at once."—Stephen Hale, Green Alliance, Introduction.

Institute of Medicine of the National Academies, Board on Global Health, Forum on Microbial Threats, Global Climate Change and Extreme Weather Events: Understanding the Contributions to Infectious Disease Emergence (Workshop Summary) (2008)

"The Forum on Microbial Threats of the Institute of Medicine (IOM) held a public workshop in Washington, DC, on December 4 and 5, 2007, to explore the anticipated direct and indirect effects of global climate change and extreme weather events on infectious diseases of humans, animals, and plants and the implications of these health impacts for global and national security. Through invited presentations and discussions, invited speakers considered a range of topics related to climate change and infectious diseases, including the ecological and environmental contexts of climate and infectious diseases; direct and indirect influences of extreme weather events and climate change on infectious diseases; environmental trends and their influence on the transmission and geographic range of vector- and non-vector-borne infectious diseases; opportunities and
challenges for the surveillance, prediction, and early detection of climate-related outbreaks of infectious diseases; and the international policy implications of the potentially far-reaching impacts of climate change on infectious disease."—Executive Summary.

Steven J. Milloy & Thomas Borelli, National Center for Public Policy Research, Pensions in Peril: Are State Officials Risking Public Employee Retirement Benefits by Playing Global Warming Politics? (National Policy Analysis, no. 575) (September 2008)

"Global warming has emerged as an important issue for investors, including state and local pension funds. Although global warming regulation appears likely to cause significant adverse impacts to the broad economy and stock market, a substantial minority of state and local pension funds are nonetheless actively promoting global warming regulation, while the majority of state and local pension funds have yet to promote or oppose such regulation. Compounding this problem is the fact that many of these pension fund systems are dangerously underfunded and are relying on predicted investment returns that are unlikely to occur.

"We conclude that state and local pension fund administrators who promote or ignore global warming regulation may be contributing to undesirable economic conditions that will adversely impact the portfolios they manage. Moreover, pension administrators who are promoting global warming regulation appear to be doing so for partisan political purposes. This could be considered a breach of their fiduciary responsibility. We recommend that, unless global warming regulation can be justified as a significant benefit to the broad economy and stock market, state and local pension fund administrators actively oppose it."—Executive Summary.

Bruce F. Molnia, United States Geological Survey (USGS), Glaciers of North America—Glaciers of Alaska (Professional Paper 1386-K) (2008)

A new chapter of Satellite Image Atlas of Glaciers of the World. "In each chapter, remotely sensed images, primarily from the Landsat 1, 2, and 3 series of spacecraft, are used to study the glacierized regions of our planet and to monitor glacier changes. Landsat images, acquired primarily during the middle to late 1970s, were used by an international team of glaciologists and other scientists to study various geographic regions or to discuss glaciological topics. In each geographic region, the present areal distribution of glaciers is compared, wherever possible, with historical information about their past extent. The atlas provides an accurate regional inventory of the areal extent of glacier ice on our planet during the 1970s as part of a growing international scientific effort to measure global environmental change on the Earth’s surface."—Preface.

National Governors Association Center for Best Practices (NGA Center), Pandemic Preparedness in the States: An Assessment of Progress and Opportunity (Issue Brief) (September 2008)

"This paper presents an overall assessment of the current level of pandemic preparedness in the states, based on the NGA Center’s observations and an analysis of the information provided by workshop participants. It focuses specifically on preparedness in four sectors or disciplines that are common to all states—healthcare, commerce, education and public safety—and identifies five broad areas in which new or improved policies, procedures, capabilities or strategies are needed to improve overall pandemic preparedness."—Executive Summary.

Jonathan L. Ramseur, Analyst in Environmental Policy, Resources, Science, and Industry Division, Congressional Research Service (CRS), Potential Offset Supply in a Cap-and-Trade Program (CRS Report for Congress, Order Code RL34705) (October 14, 2008)

"If allowed as a compliance option in a greenhouse gas (GHG) emission reduction program (e.g., a cap-and-trade system), offsets have the potential to provide considerable cost savings and other benefits. However, offsets have generated considerable controversy, primarily over the concern that illegitimate offsets could undermine the ultimate objective of a cap-and-trade program: emission reduction.

"An offset is a measurable reduction, avoidance, or sequestration of GHG emissions from a source not covered by an emission reduction program. An estimate of the quantity and type of offset projects that might be available as a compliance option would provide for a more informed debate over the design elements of a cap-and-trade program. It is difficult to estimate the supply of offsets that might be available in a cap-and-trade system, because the supply is determined by many variables..."—Summary.

Janet Ranganathan et al., World Resources Institute (WRI), Ecosystem Services: A Guide for Decision Makers (2008)

"Human well-being utterly depends on nature. Development, defined broadly to encompass social, economic, and environmental aspects of growth, aims to improve human well-being. Despite the inextricable connections, development and nature have frequently been considered in isolation or even in opposition. This guide aims to help decision makers reconcile the two by outlining how an Ecosystems Services Approach can be incorporated into existing decision making processes to strengthen development strategies. It is intended for use by a city mayor; a local planning commission member; a provincial governor; an international development agency official; or a national minister of finance, energy, water, or environment and those working for them."—Summary.

Peter Spiro, Opinio Juris (blog), Updating State Climate Change Activity (Kysar and Meyler Wonder If Its Constitutional) (September 26, 2008)

"The problem with state climate change initiatives: if the states sign on to emissions reductions on their own, the U.S. will be in a weaker position to extract emissions reductions from other countries. That’s a plausible argument against state activity. On the other hand, when California and these other economies sign on to reductions, they advance the overall objective of reducing global emissions. As Arnold Schwarzenegger loves to point out, in terms of economic size California would rank fifth among nations. That presumably compensates for the lost chips, especially where we’re looking at an Administration unwilling to use them in the first place. The bargaining chip rationale doesn’t play much of a role in the big foreign affairs preemption cases (Zschernig, Crosby, and Garamendi, among others)."

United Nations Environmental Programme (UNEP), World Database on Protected Areas

"The World Database on Protected Areas is a foundation dataset for conservation decision making. It contains crucial information from national governments, non-governmental organizations, academic institutions, international biodiversity convention secretariats and many others. It is used for ecological gap analysis, environmental impact analysis and is increasingly used for private sector decision-making."—Welcome.

United Nations Environmental Programme (UNEP), World Glacier Monitoring Service, Global Glacier Changes: Facts and Figures (2008)

"There is mounting evidence that climate change is triggering a shrinking and thinning of many glaciers world-wide which may eventually put at risk water supplies for hundreds of millions—if not billions—of people. Data gaps exist in some vulnerable parts of the globe undermining the ability to provide precise early warning for countries and populations at risk. If the trend continues and governments fail to agree on deep and decisive emission reductions at the crucial UN climate convention meeting in Copenhagen in 2009, it is possible that glaciers may completely disappear from many mountain ranges in the 21st century."

United Nations Food and Agriculture Organization (FAO), The State of Food and Agriculture—Biofuels: Prospects, Risks, and Opportunities (2008)

"More than at any time in the past three decades, the world’s attention is focused this year on food and agriculture. A variety of factors have combined to raise food prices to the highest levels since the 1970s (in real terms), with serious implications for food security among poor populations around the world. One of the most frequently mentioned contributing factors is the rapid recent growth in the use of agricultural commodities—including some food crops—for the production of biofuels. Yet the impact of biofuels on food prices remains the subject of considerable debate, as does their potential to contribute to energy security, climate-change mitigation and agricultural development. Even while this debate continues, countries around the world confront important choices about policies and investments regarding biofuels. These were among the topics discussed at FAO in June 2008 by delegations from 181 countries attending the High-Level Conference on World Food Security: the Challenges of Climate Change and Bioenergy. Given the urgency of these choices and the magnitude of their potential consequences, participants at the Conference agreed that careful assessment of the prospects, risks and opportunities posed by biofuels is essential. This is the focus of FAO’s 2008 report on the State of Food and Agriculture."—Foreword.

United Nations (UN), International Strategy for Disaster Reduction (ISDR), Hospitals Safe From Disasters: Reduce Risk, Protect Health Facilities, Save Lives (October 8, 2008)

"The World Disaster Reduction Campaign for 2008-2009 focuses on making 'Hospitals Safe from Disasters'. When health facilities are damaged, so, too, is our ability to improve maternal and child health and to provide other essential health services. But in resilient communities, health systems are better able to withstand natural hazards. We need to mobilize society at every level to reduce risk and protect health facilities so that they can save lives."—Mr. Ban Ki-moon, United Nations Secretary-General, Message on the International Day for Disaster Reduction.

United Nations (UN), International Year of Sanitation 2008, Tackling a Global Crisis: International Year of Sanitation 2008

"For too long, policy-makers have talked about ‘water and sanitation’ as if they were one and the same thing. Water, without which nothing on earth can survive, is popularly desired and its supply is politically backed above all life-supporting services. But sanitation remains the poor relation. Neither people nor politicians want to engage with sanitation, however necessary it may be. Dirt and its removal are distasteful topics. So the resources needed to tackle the global sanitation crisis have not been forthcoming."—Introduction.

United States Department of Agriculture (USDA), Conservation Reserve Program (CRP) Wetland Initiatives (Fact Sheet) (October 2008)

"USDA has announced that additional payment incentives are being provided through the Conservation Reserve Program (CRP) to agricultural producers to encourage enhanced wetland and bottomland hardwood conservation. Included are practice, signing and soil rental rate incentives."—News release (October 7, 2008)

United States Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), Arctic Report Card 2008

"Temperature increases, a near-record loss of summer sea ice, and a melting of surface ice in Greenland are among some of the evidence of continued warming in the Arctic, according to an annual review of conditions in the Arctic issued today by NOAA and its university, agency, and international partners."—Press release (October 16, 2008)

United States Department of Homeland Security (DHS), National Infrastructure Advisory Council (NIAC), The Framework for Dealing with Disasters and Related Interdependencies Working Group

"This study focuses on the United States’ability to respond to and recover from a major disaster that could result in a prolonged loss of infrastructure services expanding beyond a local area.

"The Desired Outcome is to identify areas that are impediments to:
- Private sector and local/state government recovery of critical infrastructures, and
- Deploying needed federal resources."
—Objective.

United States Department of Homeland Security (DHS), Office of Inspector General (OIG), FEMA’s Sheltering and Transitional
Housing Activities After Hurricane Katrina (OIG-08-93) (September 2008)

"Better planning for catastrophic disasters may have allowed FEMA to effectively respond to the housing needs of hurricanes Katrina, Rita, and Wilma victims. Before Hurricane Katrina, FEMA did not have plans that clearly defined roles, responsibilities, and processes to address housing needs. After Hurricane Katrina, FEMA did not (1) coordinate housing needs among state and local governments; (2) provide adequate contract management and monitoring; or (3) provide oversight of contractors’ performance."—Executive Summary.

United States Department of Homeland Security (DHS), Office of Inspector General (OIG), Hurricane Katrina: Wind Versus Flood Issues (OIG-08-97) (September 2008)

"The Department of Homeland Security Appropriations Act, 2007 (Public Law 109-295), directed us to investigate whether, and to what extent, insurance companies participating in the National Flood Insurance Program, referred to as Write-Your-Own Companies (WYOs), improperly attributed damages from Hurricane Katrina to flooding rather than to windstorms covered under homeowner policies or wind insurance pools. We concluded that the NFIP did not pay for wind damage for structures included in our sample. However, some of the same types of damages, e.g., ceiling repairs, loss of personal property, were paid by both flood and homeowner/wind pool policies."—Executive Summary.

United States Environmental Protection Agency (EPA), Children's Environmental Health 2008: Environment, Health, and a Focus on Children

"In the field of environmental protection, experts did not always recognize that children their body weight. Unclean food, water, and air are different from adults. Protective measures were first written with the average American adult—not children—in mind. Calculating the environmental contribution to disease is an evolving field, and the question of how much disease can be prevented through healthier environments is often asked. The World Health Organization estimates that one-quarter of the global disease burden is due to environmental factors. For children, that proportion rises to one-third. This burden is much greater in developing countries, where infant death from environmental causes is 12 times higher than in developed countries. Children encounter their environments differently from adults. Physically, their neurological, immunological, respiratory, digestive, and other physical systems are still developing and can be more easily harmed by exposure to environmental factors. Children eat more, drink more, and breathe more than adults in proportion to their body weight. Unclean food, water, and air therefore is more threatening to their health. Children also have unique exposure pathways, such as through the placenta or breast milk."—Why Focus on Children?

United States Environmental Protection Agency (EPA), Final National Water Program Strategy: Response to Climate Change (EPA 800-R-08-001) (September 2008)

"To assist in responding to potential effects of climate change, a new strategy focuses on 40 specific actions for the national water program to take to respond to climate change. EPA's "National Water Program Strategy: Response to Climate Change" describes steps for managers to adapt their clean water, drinking water, and ocean protection programs."—Press release (October 2, 2008)

United States Geological Survey (USGS), Ecosystem Services Derived from Wetland Conservation Practices in the United States Prairie Pothole Region with an Emphasis on the U.S. Department of Agriculture Conservation Reserve and Wetlands Reserve Programs (Professional Paper 1745) (2008)

"Implementation of the U.S. Department of Agriculture (USDA) Conservation Reserve Program (CRP) and Wetlands Reserve Program (WRP) has resulted in the restoration of approximately 2,200,000 ha (5,436,200 acres) of wetland and grassland habitats in the Prairie Pothole Region. These restored habitats are known to provide various ecosystem services; however, little work has been conducted to quantify and verify benefits on program lands (lands enrolled in the CRP and WRP) in agriculturally dominated landscapes of the Prairie Pothole Region. To address this need, the U.S. Geological Survey (USGS), in collaboration with the USDA Farm Service Agency and Natural Resources Conservation Service, initiated a study to develop and apply approaches to quantify changes in ecosystem services resulting from wetland restoration activities funded by the USDA.... In this report, we evaluate the extent that these ecosystem services changed in restored wetlands relative to cropland and native prairie baselines. In most cases, our results indicate restoration activities funded by the USDA have positively influenced ecosystem services in comparison to a cropped wetland baseline; however, most benefits were only considered at a site-specific scale, and better quantification of off-site benefits associated with conservation programs will require detailed spatial data on all land areas enrolled in conservation programs."—Executive Summary.

United States Government Accountability Office (GAO), Carbon Offsets: The U.S. Voluntary Market Is Growing, but Quality Assurance Poses Challenges for Market Participants (Report to Congressional Requesters, no. GAO-08-1048) (August 2008)

"The scope of the U.S. voluntary carbon offset market is uncertain because of limited data, but available information indicates that the supply of offsets generated from projects based in the United States is growing rapidly. Data obtained from a firm that analyzes the carbon market show that the supply of offsets increased from about 6.2 million tons in 2004 to about 10.2 million tons in 2007. Over 600 organizations develop, market, or sell offsets in the United States, and the market involves a wide range of participants, prices, transaction types, and projects. The federal government plays a small role in the voluntary market by providing limited consumer protection and technical assistance, and no single regulatory body has oversight responsibilities. A variety of quality assurance mechanisms, including standards for verification and monitoring, are available and used to evaluate offsets, but data are not sufficient to determine the extent of their use. Information shared with consumers on credibility is also limited. Participants in the offset market face challenges ensuring the credibility of offsets, including problems determining additionality, and the existence of many quality assurance mechanisms. GAO, through its purchase of offsets, found that the information provided to consumers by retailers offered limited assurance of credibility."—What GAO Found.

United States Government Accountability Office (GAO), Climate Change: Federal Actions Will Greatly Affect the Viability of Carbon Capture and Storage As a Key Mitigation Option (Report to the Chairman of the Select Committee on Energy Independence and Global Warming, House of Representatives, GAO-08-1080) (September 2008)

"Nationally-recognized studies and GAO’s contacts with a diverse group of industry representatives, nongovernmental organizations, and academic researchers show that key barriers to CCS deployment include (1) underdeveloped and costly CO2 capture technology and (2) regulatory and legal uncertainties over CO2 capture, injection, and storage. Key technological barriers include a lack of experience in capturing significant amounts of CO2 from commercial-scale power plants and the significant cost of retrofitting existing plants that are the single largest source of CO2 emissions in the United States. Regulatory and legal uncertainties include questions about liability concerning CO2 leakage and ownership of CO2 once injected. According to the National Academy of Sciences and other knowledgeable authorities, another barrier is the absence of a national strategy to control CO2 emissions (emissions trading plan, CO2 emissions tax, or other mandatory control of CO2 emissions), without which the electric utility industry has little incentive to capture and store its CO2 emissions. Moreover, according to key agency officials, the absence of a national strategy to control CO2 emissions has also deterred their agencies from resolving other important practical issues, such as how sequestered CO2 will be transported from power plants to appropriate storage locations and how stored CO2 would be treated in a future CO2 emissions trading plan."—What GAO Found.

United States Government Accountability Office (GAO), Coastal Zone Mangement: Measuring Program’s Effectiveness Continues to Be a Challenge (Report to the Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard, Committee on Commerce, Science, and Transportation, U.S. Senate, GAO-08-1045) (September 2008)

"NOAA awards coastal program grants to states generally according to the requirements of the CZMA and congressional direction provided through the annual appropriations process. For the majority of grant funding awarded by NOAA, CZMA regulations require the agency to provide each state a base amount and a proportional share of funding based on a state’s shoreline miles and coastal population. For more than 20 years, because of a congressionally mandated cap of $2 million per state, NOAA has had to redistribute funds from those states whose proportional share would have exceeded the cap to other states whose grant amount is under the cap. As a result, states with longer shorelines or larger coastal populations have essentially received a static level of funding, while states with shorter shorelines or smaller coastal populations have seen increases greater than they likely would have received without the cap. In addition, NOAA’s present practices for awarding coastal zone grants deviate somewhat from its regulations. For example, NOAA is not using a competitive process for awarding coastal zone enhancement grants as required."—What GAO Found.

United States Government Accountability Office (GAO), Disaster Recovery: Past Experiences Offer Insights for Recovering from Hurricanes Ike and Gustav and Other Recent Natural Disasters (Report to the Committee on Homeland Security and Governmental Affairs, U.S. Senate, no. GAO-08-1120) (September 2008)

"GAO was asked to identify insights from past disasters and share them with state and local officials undertaking recovery activities. GAO reviewed six past disasters—the Loma Prieta earthquake in northern California (1989), Hurricane Andrew in south Florida (1992), the Northridge earthquake in Los Angeles, California (1994), the Kobe earthquake in Japan (1995), the Grand Forks/Red River flood in North Dakota and Minnesota (1997), and Hurricanes Katrina and Rita in the Gulf Coast (2005). GAO interviewed officials involved in the recovery from these disasters and experts on disaster recovery. GAO also reviewed relevant legislation, policies, and its previous work."—Why GAO Did This Study.

United States House of Representatives, Committee on Transportation and Infrastructure, Stagnant Waters: The Legacy of the Bush Administration on the Clean Water Act (October 18, 2008)

"The successes and failures of the Clean Water Act can be succinctly stated. In 1972, only one-third of the nation’s waters met water quality goals. Today, two-thirds of those waters meet water quality goals.

"As a result of Congressional action, the nation has doubled the waters that meet water quality goals, but there is still much work to be done: over one-third of our nation’s waters still fail to meet the water quality goals established under the Clean Water Act over three decades ago.

"While progress thus far is laudable, disturbing recent trends indicate that these efforts have reached a plateau, and that so-called 'improvements' to water quality merely maintain, but do not increase, the percentage of waters, including wetlands, meeting fishable and swimmable standards. Unfortunately, there is also anecdotal evidence of declining water quality conditions throughout the nation, reversing progress toward meeting the goals of the Clean Water Act....

"The Bush administration has presided over the slow, but steady, dismantling of the Clean Water Act. However, unlike earlier overt attempts by Republicans in Congress, the Bush administration’s weakening of the Act has been subtle – eliminating Federal clean water protections in favor of market-based, pro-industry philosophies that will result in dirtier water throughout the United States."—Executive Summary.

Michael E. Wall, Miriam Rotkin-Ellman & Gina Solomon, Natural Resources Defense Council (NRDC), An Uneven Shield: The Record of Enforcement and Violations Under California’s Environmental, Health, and Workplace Safety Laws (NRDC Report) (October 2008)

"California leads the nation in setting standards to protect the health of families, communities, and the environment. Yet too little is publicly known about how effectively these standards are enforced, or how officials respond when violations occur. To assess the state of enforcement of California’s environmental and public health laws, NRDC examined data on known violations and law enforcement responses under six critical pollution, health, and workplace safety programs. We found that, during the multiyear period analyzed for this report, noncompliance with and enforcement of environmental and health laws varied widely across the state and among the different government authorities responsible for enforcing these laws. We also found that, in some areas, violations were not routinely followed by enforcement actions, and that unlawful conduct was often not penalized."—Executive Summary.

Things that don't last, and those that should

2008-10-21T00:41:00.004-04:00

Giustizia mosse il mio alto fattore;
fecemi la divina podestate,
la somma sapïenza e 'l primo amore.
Dinanzi a me non fuor cose create,
Se non etterne, e io etterno duro.

Justice moved my high maker, in power divine,
Wisdom supreme, love primal. No things were
Before me not eternal; eternal I remain.

— Dante Alighieri, Inferno, canto III (as translated by Robert Pinsky)

Global hegemony shouldn't last, and doesn't:

Human languages should flourish and endure. Through no fault of their speakers, some teeter on the verge of extinction:

Pygmalion and Galatea

2008-10-18T00:26:00.003-04:00

Étienne Maurice Falconet, Pygmalion et Galatée (1763)

For Pygmalion so loved his graven Galatea that the gods took pity and gave her life, that Pygmalion might not die alone, but know mortal joy.

And so the project of depicting Pygmalion and Galatea expresses the quest for a perfect expression of the Immaculate Conception, albeit in reverse. For now we see through mirrors, darkly; but then face to face.

Reparations Symposium

2008-10-17T12:42:00.011-04:00

On October 31, 2008, the Kansas Law Review will host a symposium highlighting empirical research supporting legal claims for reparations for slavery. The Seventh Circuit Court of Appeals recently issued a pathbreaking decision on reparations in In re African-American Slave Descendants Litigation, 471 F.3d 754 (7th Cir. 2006). Slave descendants sought reparations from some of the nation’s biggest insurers, banks, and transportation companies. The court dismissed most claims for lack of standing and expiration of the statute of limitations but raised two vital questions about the matter of enduring harm: How can the purported harms that present-day blacks are alleged to suffer, collectively or individually, as a result of the enslavement of their ancestors, be empirically articulated and quantified? And what are the prospects for connecting these present harms with past harms in order to prove that particular blacks today suffer enduring injury from slavery? Symposium speakers will present empirical research on social, health, economic, criminal justice, and other disparities as well as the philosophical bases for reparations.

Presenters include:
• Roy L. Brooks, University of San Diego School of Law
• Ronald Caldwell Jr., University of Kansas
• Derrick Darby, University of Kansas
• William Darity Jr., Duke University
• Adrienne Davis, Washington University School of Law
• Stacy Elmer, University of Kansas
• Daniela Ikawa, Public Interest Law Institute/Conectas Human Rights
• Kevin Outterson, Boston University School of Law
• Ruth Peterson, The Ohio State University
• Cassia Spohn, Arizona State University
• Bruce Western, Harvard University

Schattenfreude: Endlich ein juristischer Ausdruck

2008-10-13T00:18:00.004-04:00

I owe a debt of gratitude to Hubert Humphrey, Pete Townshend, Mick Jagger, Allen Tate, and William Wordsworth. Schattenfreude, an idea that has obsessed Jurisdynamics in image and in word, has finally found an explicitly legal expression. I invite you to read about the legal treatment of Schattenfreude at The Cardinal Lawyer.

Biden versus Palin: The SNL parody

2008-10-05T23:53:00.001-04:00

You've seen the real thing. Now watch the parody:

The Biden-Palin debate

2008-10-05T01:28:00.001-04:00

Herewith video of the 2008 vice-presidential debate: