Thursday, August 31, 2006

Katrina and social vulnerability: Disaster is never natural

Alan Chin's photo of a Katrina victim in a flag

Editor's note: This is the first half of a two-part series marking the first anniversary of Hurricane Katrina. This series is based on an editorial that appeared earlier this week on Jurist Forum.

Hurricane Katrina broke America’s collective heart. No previous natural disaster in the nation’s history inflicted a grimmer toll. The legendary city of New Orleans all but sank when its levees failed and the resulting storm surge drowned much of the city and many of its feeblest, most vulnerable residents. Although Katrina exposed flaws in virtually every aspect of disaster management at every level of government in the United States, the magnitude and senselessness of the loss serve to indict American society for its callous disregard of social vulnerability.

“The moral test of government,” said Vice President Hubert H. Humphrey, “is how it treats those who are in the dawn of life, the children; those who are in the twilight of life, the aged; and those who are in the shadows of life, the sick, the needy and the handicapped.” Arnold v. Arizona Dep’t of Health Servs., 160 Ariz. 593, 775 P.2d 521, 537 (1989) (quoting Humphrey). The cloud of natural disaster puts government to an extreme test of its ability to protect those citizens who dwell in the dawn, the twilight, and the shadows of life. As Katrina demonstrated, social vulnerability profoundly affects the ability of governments to prepare for, respond to, mitigate, and recover from natural disasters.

Katrina victim in flagNatural disaster supposedly does not discriminate; it putatively strikes everyone in its path, without regard to race, class, age, sex, or disability. In other words, “poverty is hierarchic, smog is democratic.” Scott Frickel, Our Toxic Gumbo: Recipe for a Politics of Environmental Knowledge (Oct. 6, 2005) (quoting Ulrich Beck, Risk Society: Toward a New Modernity 36 (1986)). Closer examination of the interplay between natural and social factors at work in any disaster, however, belies this assumption. Disaster does not so much erase as expose social vulnerabilities within the society it strikes. Although “‘[n]atural disasters’ such as hurricanes, earthquakes, and floods are sometimes viewed as ‘great social equalizers” in the sense that “they strike unpredictably and at random, affecting black and white, rich and poor, sick and well alike,” Katrina bluntly demonstrated that “the harms are not visited randomly or equally in our society.” Center for Progressive Reform, An Unnatural Disaster: The Aftermath of Hurricane Katrina 34 (2005).

Disasters are never strictly “natural.” Catastrophic losses invariably stem from social as well as environmental factors. Around the world, social injustice contributes so heavily to the incidence and intensity of natural disasters that the quest for domestic and global equality may be rightfully regarded as a valuable tool for refining the law’s approach to disaster preparedness, response, mitigation, compensation, and rebuilding.

Next: Susceptibility and resilience.

Editor's note: The picture at the top of this post is the copyrighted work of Alan Chin. It first appeared in a heartbreaking gallery of Alan's work posted at BAGnewsNotes. I have included the more famous image of the same Katrina victim in order to highlight what I regard as the artistic superiority of Alan's work, which I had not seen until today. Information on purchasing any of Alan Chin's photographic work is available through Sasha Wolf Photographs. I also recommend that Jurisdynamics readers visit Alan's portfolio and his Kosovo diary. His work is artistically beautiful, emotionally heartbreaking, and spiritually devastating.

California Attacks Climate Change

California seems to be poised to take a major step toward controlling greenhouse gases. (Full story here.) By the way, while I couldn't resist the Terminator image, this was primarily a Democratic initiative -- although to his credit Arnold has been very supportive of climate change measures and has come onboard for this one..

There are the usual complaints about cost, but a group headed by my economist colleague Michael Hanemann projects a net economic gain for the state. This is largely due to the cost-savings of reduced energy consumption plus the potential for California to become the market leader in new energy technologies. The report is available through the California Climate Change Center.

Founders versus forgetters

«   Part 2 of the series, Genesis for the rest of us   »

FoundersReligions, whether ecclesiastical or civic, devote extraordinary effort to their stories of origin. Cosmology forms the foundation of virtually every religious tradition. American constitutional law expends enormous energy deciphering the thoughts of a very small and unrepresentative group of eighteenth-century elites. Foundings matter in political theory because political theorists say they do.

By contrast, science has no use for origins. "A science which hesitates to forget its founders is lost," said Alfred North Whitehead. Or, as E.O. Wilson rephrased this aphorism in Consilience, scientific progress is measured by the rate at which a discipline's founders are forgotten. Most wonderfully cynical of all is James Lovelock, who noted in Gaia that the prominence of an individual scientist may be gauged by how long she impedes progress in her discipline.

Founders? Forget them. They are dead; we are not. As I observed in my essay, The Midas Touch, nothing shows the gap between C.P. Snow's "two cultures" more starkly than the literary culture's obsession with origins and the scientific culture's disdain for them.

CosmologyWhich of these cultural extremes is humanity's natural propensity? Or, to restate the question in the argot of behavioral psychology and evolutionary biology, does the adapted mind treat the question of origins as an emotional, symbolic necessity or as an impediment to intellectual progress?

Ironically, the scientific evidence suggests that purely prospective science is a learned behavior, or at least far less instinctive than a nostalgic regard for beginnings. Religion, invariably containing a cosmological component, is a human universal. The need to understand one's origins, evidently a condition built into Homo sapiens sapiens' genetic code, arguably explains why the most politically active strains of Christianity in contemporary America put such enormous weight on Genesis, to the point of denying this inconvenient truth: Life on this ancient earth of ours is shaped by forces no more mysterious than random mutation, natural and sexual selection, adaptive radiation, evolutionary convergence, and the occasional meteor strike.

Next in this series: The Hebrew paradox -- why so many American Christians favor the Hebrew Bible over Hebrews 1:1.

Tuition 1, Tenure 0

Law studentsJurisdynamics loves student bloggers, especially the good ones. DePaul's American Constitution Society blog just spotted an incredibly amusing piece of political theater in New Orleans on the first anniversary of Hurricane Katrina. A prankster managed to bluff his way before an audience including Mayor Ray Nagin and Governor Kathleen Babineaux Blanco and delivered a speech that announced, among other things, that "Exxon and Shell have agreed to finance the rebuilding of the protective wetlands from part of their 60 billion dollars in profits this year."

Truth be told, I suppose I could have gotten the same information from CNN. But I truly must tip my hat, and gratefully, to the bionic eyes among DePaul's law students. Why? Because the very gracious way in which DePaul's ACS chapter acknowledged this forum's Rhapsody in Cyan shows how law students I've never met have a better understanding of my true political proclivities and loyalties than the astonishing number of law professors who draw false inferences from one or two lines on my curriculum vitae and are too fugging lazy to engage my work.

Wednesday, August 30, 2006

Doing Better Next Time: Senate Recommendations

The Senate committee charged with investigating the national response to Hurricane Katrina assigned blame at all levels, describing the relief effort as one plagued by “failures in design, implementation, and execution of the National Response Plan.” UNITED STATES SENATE, COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS, HURRICANE KATRINA: A NATION STILL UNPREPARED 27-1 (2006).
a. Insufficient training and exercises. The NRP “is a complex, ambitious, 400-plus-page high-level plan,” a “very detailed, acronym-heavy document that is not easily accessible to the first-time user.” Beyond an initial wave of training for headquarters staff of the Department’s component agencies, DHS evidently made no further efforts to “ensur[e] that the NRP would be well implemented.”
b. The roles of the principal federal official and the federal coordinating officer. The NRP’s failure to “define the role of the PFO or distinguish it from that of the FCO” posed “an obstacle to an effective, coordinated response to Katrina.”
c. Potentially overlapping agency roles. The NRP “fail[ed] to delineate areas of potentially overlapping responsibility among federal agencies.” For instance, the NRP assigned responsibility for public health and medical services, to the Department of Health and Human Services, even though one of the resonse mechanisms, the National Disaster Medical System, answers to FEMA and DHS. Consequently, “[i]n the response to Katrina, FEMA and HHS engaged in minimal coordination on pre-positioning and deploying Disaster Medical Assistance Teams.”
d. Contingency and catastrophic planning. As “a high-level plan, with a core set of principles meant to apply to a wide range of possible events,” the NRP “was not designed to address specific scenarios or geographic areas, or to provide operational details.” The Plan simply failed to “‘contemplate’ an event on the massive scale of Katrina.”
e. Mistakes in declaring an Incident of National Significance. According to the NRP, “every event that provokes a Presidential declaration under the Stafford Act automatically becomes an incident of National Significance.” President Bush’s August 27, 2005, emergency declaration for portions of Louisiana automatically transformed Hurricane Katrina into an Incident of National Significance. Nevertheless, three days later, Secretary of Homeland Security Chertoff issued another “declaration” designating Katrina an Incident of National Significance. “At minimum, the Secretary’s redundant declaration of an Incident of National Significance confused an already difficult situation and suggested a lack of familiarity with core concepts of the NRP within the Secretary’s Office.”
f. The appointment of Michael Brown as Principal Federal Official. Apart from questions over the wisdom of appointing Brown, “who had no experience as an emergency manager,” Secretary Chertoff’s appointment of FEMA Director Michael Brown as PFO for Katrina “violated the literal requirements of the NRP.” The NRP prohibits the PFO “from occupying another position or having another set of conflicting or distracting obligations at the same time.”
g. Non-implementation of the Catastrophic Incident Annex. “In failing to implement the National Response Plan’s Catastrophic Incident Annex (NRP-CIA), Secretary Chertoff ignored a potentially powerful tool that might have alleviated difficulties in the federal response to Katrina.” In contrast with the standard response to “a ‘typical’ disaster,” which directs the federal government to wait until a state requests aid, the activation of the NRP-CIA during a catastrophe “prompts the government to help without waiting for requests.”

Rhapsody in cyan

CyanobacteriaIt's not just the mussels. The Institute for Genomic Research reports some interesting results from the genomic sequencing of cyanobacteria. According to a report in Science Daily, TIGR's sequencing of the genome of cyanobacterium CC9311 discloses that this coastal dweller has adapted to a turbulent, polluted environment by learning to use metals in ways that open-ocean cyanobacteria cannot. CC9311 evidently processes iron, copper, and vanadium; its counterparts don't.

Why take notice? Because this entire division of life at one time rebuilt the earth's atmosphere by essentially poisoning it ... with oxygen. And as a nice lagniappe, cyanobacteria engaged in endosymbiosis with the eukaryotes we call plants and thereby enabled another atmosphere-altering process. You probably know it as photosynthesis.

Now that one big eukaryote is polluting the earth in its own way, cyanobacteria have responded in kind. As the only organisms that can reduce nitrogen and carbon in aerobic conditions, they must love what Homo sapiens sapiens is adding to the atmosphere and the earth's surface. Just another day at the office for nature's superfood.

Editor's note: This post appears at BioLaw as part of the Jurisdynamics Network's ongoing process of beta-testing that future affiliate weblog. Back here at the flagship blog, webmaster Gil Grantmore has determined, after considerable thought, that there is no necessary upward limit on the number of taxa this forum may spotlight. The biodiversity crisis is dire, but Jurisdynamics isn't working on a geologically meaningful timescale. So cyanobacteria are hereby declared an official taxon of the week.

Creationism unplugged ... and a musical interlude

Iris DeMentIn an active exchange of commentary in response to Genesis for the rest of us, Jason Harrow and others have debated the desirability of engaging proponents of so-called "intelligent design" as if those advocates had taken the first steps toward science. I have a simple if curt contribution to this discussion. When the "IDers" set up an experiment that allows everyone else to falsify their claims, we can ponder the proposal to treat "intelligent design" as a workable conjecture. The quotation marks don't come off one minute sooner.

"Intelligent design" is creationism unplugged. And creationism unplugged is creationism, just in a more soothing musical idiom.

Now, don't misunderstand me. I love acoustic music. Here's a particularly appropriate selection from one of my favorite artists, the infamously angelic Iris DeMent:

In the beginning

Polish Eden

Í upphafi skapaði Guð himin og jörð. So begins the Bible in Icelandic.

Why, you might reasonably ask, have I launched this series called Genesis for the rest of us in a language so obscure that (in all likelihood) exactly one visitor among Jurisdynamics' first 8000 guests understands it? To demonstrate this point: the rhetoric of any single religious tradition, though powerful to its adherents, can confound the unfamiliar outsider. A masterful speaker of English might discern the elements of Genesis 1:1 á íslensku -- "in [the] upheaval [?!] shaped God heaven and earth" -- but its true power remains elusive. For now we see through a glass, darkly.

Herewith the airing of grievances that necessarily accompanies a celebration "for the rest of us." Why do human beings care about beginnings? Perhaps because they must. Fair enough. But if indeed a look back at origins is a universal emotional necessity, what does humanity gain by expressing those sentiments in an idiom understood by the elect and confounding to all others?

The ultimate goal of Genesis for the rest of us, therefore, is to find a universal tongue in which all humanity can seek to understand its origins, in order perchance to master its destiny. The Christian tradition has a nice name for this quest: Pentecost.

Next in this series: Founders versus forgetters.

Tuesday, August 29, 2006

It's safe (or least not too expensive) to study evolution again

The Chronicle of Higher Education reports that evolutionary biology, previously dropped by the Department of Education from the list of fields eligible for SMART grants, has been restored. Hat tip to Jonathan Adler for noting this item. The Panda's Thumb also provided interesting coverage.

Genesis for the rest of us

Festivus!Festivus!  F     G
  E     E
  S     N
  T     E
  I     S
  V     I
  U     S

Stick it to Scalia, and a blogospheric free-for-all erupts on someone else's blog. Such is life as a resident of the Internet's long tail.

I shall explain. Jonathan Adler joined me in trashing Justice Scalia's performance in Tangipahoa Parish Board of Education v. Freiler. I labeled Justice Scalia's gratuitous dissent from the Supreme Court's denial of certiorari "the most scientifically irresponsible passage" in the Court's history and an act of "shameless pandering [and] judicial aid and comfort of the highest order to the creationist lobby." By comparison, Jonathan much more temperately concluded: "I see no defense of [Scalia's] reference to the Scopes trial. At best, it was an ill-considered rhetorical flourish. At worst, it reflected a shocking level of scientific illiteracy for such an esteemed and intelligent jurist." The resulting torrent of commentary in response to Jonathan's post really must be read to be appreciated. Apparently it is perfidious to (1) defend evolution and (2) criticize Justice Scalia (3) on an overtly conservative forum.

Scopes trialThe most serious efforts to defend Justice Scalia's performance in Tangipahoa invariably deflect attention toward the seamier aspects of the Scopes trial. In a comment posted at Jurisdynamics and an earlier post at the Volokh Conspiracy, Jim Lindgren has detailed the racist and eugenicist cant of the textbook at issue in the Scopes trial. Edward Larson's reconsideration of Scopes, likewise aimed at defusing the cultural power of the admittedly fanciful Inherit the Wind, was deemed worthy of a Pulitzer Prize.

Whether couched as serious condemnation of early twentieth century social Darwinism or as a thinly veiled apology for creationist politics, efforts to deflect the debate to the particulars of the Scopes trial are beside the point. It's one thing to rehabilitate the misunderstood William Jennings Bryan, as Michael Kazin has heroicallly attempted. It's affirmatively noble to set the record straight on a hotly contested episode in American history. But it is downright disgraceful to write, as Justice Scalia did in Tangipahoa, that a school has any business "suggesting to students that other theories besides evolution -– including, but not limited to, the Biblical theory of creation -– are worthy of their consideration." I stand by what I wrote in Tangipahoa (the Jurisdynamics post) and in my article, Legal Mythmaking in a Time of Mass Extinctions.

But this subject, I strongly suspect, is unlikely to die. In the spirit of my Jurisdynamics teammate, J.B. Ruhl, who has spent his blogging career on extended series rather than episodic posts, I shall now undertake an extended series on evolution, natural history, and naturalism as a source of inspiration, even religious satisfaction, for a world all too ready to rip itself apart over minute, offensively irrelevant theological differences. In a spirit no less playful than Seinfeld, I'll call the series Genesis for the Rest of Us. Those who know me intimately understand how profoundly my life has been shaped by the question, ¿Respecte usted la Virgen?, and how I answered it. This is not about what I believe or what anyone else believes. This is about the beauty and the power and the glory of the story of life, told as we best understand it to be the truth.

First in this series: In the beginning.

Nachos and nectarines, Proserpina and pomegranates

CharonGail Heriot provides a fine postscript to Jurisdynamics' sadly premature post on the scientific fate of Pluto. Now that Pluto has been demoted to the status of a dwarf planet, the old mnemonic is readily (if regrettably) recast:
My very educated mother just served us nachos.
Or nectarines, for a healthier alternative. Either way, the matter is closed. Future generations of schoolchildren have it easier, even if they lose a little sense of adventure in the exchange.

Let's move swiftly from vegans to pagans. As long as we're playing games with the definition of the solar system, I have a grievance with the International Astronomical Union. Why is Pluto's primary moon named Charon? It really should be Proserpina. Are these folks utterly devoid of romance? In Roman myth, Pluto had a wife. She ate four pomegranate seeds among twelve; he got her for four months of the year. Deal. Ceres over.

Pluto and ProserpinaOkay, so there's a main belt asteroid named 399 Persephone and another named 26 Proserpina. These astronomical names seemed locked in some sort of Greco-Roman wrestling hold. Maybe that's why we have an asteroid named 1108 Demeter as well as the dwarf planet 1 Ceres. In all events, it's not as if this is a domain name conflict. Proserpina can lend her name to a main belt asteroid and to a trans-Neptunian object.

To be sure, the mythological Charon is a perfectly good namesake for an object in the dark, cold frontiers of the solar system. Still, in the name of connubial (if not planetary) bliss, doesn't Pluto deserve to be paired with Proserpina?

Monday, August 28, 2006

The Corps Sees the Light

General Carl StrockA recent press release from the Army Corps shows that it may finally be getting the message about the need for organizational change. By the way, I recently heard General Strock referred to as the only person with the decency to take responsibility for governmental failure in Katrina.


U.S. Army Corps of Engineers releases its “12 Actions for Change”

(August 24, 2006) – The commander of the United States Army Corps of Engineers today signed and released the “12 Actions for Change,” a set of actions that the Corps will focus on to transform its priorities, processes and planning.

“Hurricane Katrina’s disastrous impact upon the Gulf Coast and the New Orleans region served as a very sobering wakeup call for the Corps and the nation in how we have prepared for natural disasters and where we have accepted risk,” said Lt. Gen. Carl A. Strock, commander of the U.S. Army Corps of Engineers.

“Exhaustive analysis by the Corps and other investigative teams into the performance of the Greater New Orleans Hurricane Protection System during hurricanes Katrina and Rita pointed to the need to transform the way the Corps serves the nation and its Armed Forces across all our mission areas.

“These 12 actions were developed from that analysis and from other internal and external examinations of the Corps in the recent past. We will use the 12 Actions to guide our ongoing and future work, and to ensure we have an organization that is adaptable, flexible and responsive to the needs of the nation,” said Strock.

The “12 Actions for Change” fall within three overarching themes: Effectively implement a comprehensive systems approach; communication; and reliable public service professionalism. The actions are grouped as follows:

•  Effectively Implement a Comprehensive Systems Approach: Comprehensively design, construct, maintain and update engineered systems to be more robust, with full stakeholder participation.

1. Employ integrated, comprehensive and systems-based approach

2. Employ risk-based concepts in planning, design, construction, operations, and major maintenance

3. Continuously reassess and update policy for program development, planning guidance, design and construction standards

4. Employ dynamic independent review

5. Employ adaptive planning and engineering systems

6. Focus on sustainability

7. Review and inspect completed works

8. Assess and modify organizational behavior

•  Communication: Effective and transparent communication with the public, and within the Corps, about risk and reliability.

9. Effectively communicate risk

10. Establish public involvement risk reduction strategies

•  Reliable Public Service Professionalism: Improve the state of the art and the Corps’ dedication to a competent, capable workforce on a continuing basis. Make the commitment to being a “learning organization” a reality.

11. Manage and enhance technical expertise and professionalism

12. Invest in research

Among the investigative teams that contributed to the development of the “12 Actions for Change” through their analysis in the aftermath of hurricanes Katrina and Rita are the Corps-commissioned Interagency Performance Evaluation Task Force, the American Society of Engineers, the National Science Foundation-sponsored team led by UC-Berkeley, and Louisiana State University.

“National and global missions, and the Corps’ response following hurricanes Katrina and Rita, have demonstrated the need to be prepared and ready to broadly integrate our many mission capabilities. The ’12 Actions for Change’ provide a common organizational framework to help us meet that objective,” said Strock.

For additional information about the United States Army Corps of Engineers, please visit our web page at

Introducing Agricultural Law: the newest member of the Jurisdynamics Network


The Jurisdynamics Network is proud to announce the arrival of its newest member weblog, Agricultural Law. We invite you to visit this forum, dedicated to discussing agricultural law with as much breadth, depth, and sophistication as a blog permits. Although this blog has logged several posts through a month of extended beta-testing, its official inaugural post sets forth in greater detail what Agricultural Law hopes to accomplish.

Joining me at Agricultural Law will be Morgan Holcomb, my colleague here at the University of Minnesota Law School, and Christopher R. Kelley and Susan A. Schneider, both of the University of Arkansas School of Law.

Agricultural Law can be reached in any of the following ways:However you choose to reach Agricultural Law, we welcome you and invite your readership and commentary. We hope that you will visit often.

Schraub interviews Friedman

Debate LinkDon't look now, but boy genius David Schraub just landed an exclusive interview with Thomas Friedman. Yes, as in the author of The Lexus and the Olive Tree and The World is Flat.

Sunday, August 27, 2006

The plight of renters in New Orleans

What precisely are governmental officials prepared to do for New Orleans's poorest residents? In principle, mixed-use zoning and other measures designed to break concentrated areas of poverty have much to recommend themselves. In a pair of powerful posts, however, Rachel Godsil and Bill Quigley suggest that pragmatic considerations counsel otherwise. Bill reports that rents have risen 39 percent, and the poorest renters are being squeezed out. Rachel concludes that "the ideal of mixed-income development seems naive in the context of a destroyed New Orleans, little action to assist renters to return, and the backdrop of comments" by public officials to the effect that New Orleans "doesn't need 'soap opera watchers.'"

Editor's note: The dilapidated rental housing depicted here is not from New Orleans, but rather from Hickory, N.C.

Business Law and Complexity

Business lawReadings in Complexity
By J.B. Ruhl
Post 2
August 27, 2006

For my second review of “law and complex systems” literature I have reached back into the earlier stages of work in the field to discuss Tom Gue’s 1998 series in the Tennessee Law Review on business law and complex adaptive systems (CAS). See Thomas Earl Geu, Chaos, Complexity, and Coevolution: The Web of Law, Management Theory, and Law Related Services at the Millennium, Part I, 65 Tenn. L. Rev. 925 (1998), and Part II, 66 Tenn. L. Rev. 137 (1998).

Geu’s central thesis is that “business-management theory, including economics, coevolves with the law of business associations, and that both, in turn, coevolve with the business of law.” Thus he is firmly of the view that “law in the United States is a CAS.” As one would expect, therefore, the series provides an extensive background on complexity theory as it stood in the late 1990s. But what I found most useful at the time, which was still relatively early in my foray into CAS and law theory, was how thoroughly Geu explored the drivers of complexity in play at the time for business and business law.

Geu divided the drivers into macro and micro. The macro drivers, as he saw it, were “(1) the ‘end’ of communism as a viable political regime, and the related ‘victory’ of liberal democracy; (2) the shift from a form of capitalism that emphasizes land, labor, capital, and entrepreneurial skill, to one that emphasizes knowledge as enhanced and applied through the use of technology; (3) the changing demographics of population growth, mobility, and aging; (4) the mergence of a global economy; and (5) the evolution of a multipolar world in which no nation-state may dominate and in which transnationalism, regionalism, and tribalism will become increasingly important.” Geu then identifies how these forces act at the micro level to bring about new business methods, such as “just-in-time,” the “virtual workforce,” and “knowledge workers.” He observes that “the nexus between these…forces for change and certain areas of law, such as a business association’s choice of legal entity, seems intuitive.” Most of Part II of the article then is devoted to applying CAS theory to this mix of forces.

When first introduced to Tom and his work, I had just finished laying out my theoretical framework for law-and-CAS analysis (see, in the essentials reading list, my articles from the Duke, Vanderbilt, and UC Davis law journals). In moving beyond the theoretical, Tom’s work emphasized for me the importance of identifying the drivers behind change and formulating models for fitting law into the system. Following his approach, I tried to do the same for environmental law in my article in the Houston Law Review, Thinking of Environmental Law as a Complex Adaptive System.

My approach to law-and-CAS analysis has developed since then into a six-step framework:
  1. Drivers: Identify the drivers of change in the system’s environment
  2. Models: Design models for how the drivers operate under given policy options
  3. Trade-Offs: Identify system conflicting constraints that may be triggered by policy choices
  4. Transitions: Develop scenarios for how the trade-offs affect system components over time
  5. Institutions: Identify which institutions are best equipped to manage the trade-offs and transitions
  6. Instruments: Identify the most effective instruments for those institutions to employ
A final thought on Geu’s work: If Geu is right—if business, business management theory, and business law all coevolve as CASs—is the force of globalization likely to lead to convergence of business and business law, or to greater diversity?

What Went Wrong & Why

On the plane to the Loyola conference on Katrina, I read Christopher Cooper and Robert Block's Disaster: Hurricane Katrina and the Failure of Homeland Security. It's the best overview that I've seen so far. They offer a nice summary of why flood control was botched, and then a more detailed view of how FEMA and other agencies completely screwed up the response. My favorite story is the one about the DHS official who didn't realize that the Convention Center and the Superdome were different places. (There may be a moral there in terms of the degree to which control of disaster response should be federalized.) Anyone who is interested in how to reform the system should read this one.
As a service to its audience, the Jurisdynamics Network offers interested readers the opportunity to obtain the Cooper & Block book through the Network's Amazon Store.

Eating crow over snakes

Harry Potter and the Half-Blood PrinceOkay. I confess I was mistaken. After finishing part six of J.K. Rowling's saga, Harry Potter and the Half-Blood Prince, I must retract my previously expressed admiration for Slytherin House. The snake-loving house seems too entangled with the Death-Eaters and Lord Voldemort to warrant respect, much less admiration.

Saturday, August 26, 2006


Tangipahoa RiverJurisdynamics is very pleased to welcome visitors from Red State Rabble, where Pat Hayes has done a splendid job documenting public disputes over the teaching of evolution in Kansas public schools and advocating the only scientifically and legally defensible outcome. I believe that this stream of visitors deserves a little background on an episode to which I have alluded as the federal judiciary's most disgraceful performance with respect to the teaching of evolution. It is an episode I recount at great length in my article, Legal Mythmaking in a Time of Mass Extinctions: Reconciling Stories of Origins with Human Destiny, available for download via SSRN.

The case in question is the Supreme Court's otherwise routine denial of further review in a 2000 case styled Tangipahoa Parish Board of Education v. Freiler, 530 U.S. 1251 (2000). In Tangipahoa Parish (whose dominant geophysical feature is depicted here), a Louisiana school board had declared that lessons on "the Scientific Theory of Evolution" would "be presented to inform students of the scientific concept and not . . . to influence or dissuade the Biblical version of Creation or any other concept." The U.S. Court of Appeals for the Fifth Circuit duly invalidated the school board’s disclaimer. Public expressions challenging the scientific validity of evolution have no chance of withstanding the Supreme Court’s leading decisions regarding legal efforts to restrict the teaching of evolution. This is routine, settled law, a straightforward application of Epperson v. Arkansas, 393 U.S. 97 (1968), and Edwards v. Aguillard, 482 U.S. 578 (1987).

Justice Antonin Scalia, however, took extreme pains to dissent from this decision. He derided the appeals court’s reasoning -- and, by extension, that of his colleagues who voted to deny urther review -- as "quite simply absurd." He found no reasonable prospect of treating the school board’s "reference to . . . a reality of religious literature" as an unconstitutional “establishment of religion." After expressing seeming disapproval of Epperson and Edwards, Justice Scalia berated his colleagues for advancing further "the much beloved secular legend of the Monkey Trial."

Monkey trialJustice Scalia’s allusion to the 1925 prosecution of John Scopes for teaching evolution in a Tennessee high school represented a transparent political appeal to the shockingly powerful lobby that opposes the teaching of evolution in American public schools. Justice Scalia’s dissent in Tangipahoa Parish deserves condemnation because no other legal authority comes as close to supporting the teaching of creationism. The creationist lobby goes by the name "intelligent design" these days, but the enemy deserves to be called by its proper name: creationism. Justice Scalia’s shameless pandering gives judicial aid and comfort of the highest order to the creationist lobby.

Seen in the light of creationism’s slow but persistent growth into what Stephen Jay Gould has called a potentially "powerful champion[] of darkness," Justice Scalia’s gratuitous swipe at evolutionary biology in Tangipahoa Parish may be the most scientifically irresponsible passage in United States Reports. For sheer stupidity and public recklessness, Justice Scalia’s sarcastic reference to legal efforts to keep evolution in public school classrooms as a "secular legend" may actually eclipse Justice Oliver Wendell Holmes’s eugenicist epithet in Buck v. Bell, 274 U.S. 200, 207 (1927), "Three generations of imbeciles are enough."

Friday, August 25, 2006

Barbara van Schewick, Jurisdynamic Idol

Barbara van SchewickBarbara van Schewick is the newest Jurisdynamic Idol.

Barbara is a Senior Researcher at the Telecommunication Networks Group at the Department of Electrical Engineering and Computer Science of the Technical University Berlin, Germany, and a nonresidential fellow of the Center for Internet and Society at Stanford Law School. Barbara works with the German Institute for Economic Research (Deutsches Institut für Wirtschaftsforschung) to advise the German Ministry of Education and Research (Bundesministerium für Bildung und Forschung) on technology and innovation policy in the telecommunications sector. She also advises an Electronic Communications Committee Project Team on spectrum policy for the German Federal Network Agency (Bundesnetzagentur), the Germany regulatory agency responsible for telecommunications.

Jurisdynamic IdolA lawyer and computer scientist by training, Barbara explores the economic, regulatory and strategic implications of communication networks. In particular, her research focuses on the economic, regulatory and strategic implications of network architecture, the regulation of broadband networks and spectrum policy. This work has made Barbara a leading expert on the issue of network neutrality. Her paper, Toward an Economic Framework for Network Neutrality, has already become one of the foundational sources on this issue. Among many other issues at stake in the intense debate over net neutrality is the prospect that broadband service providers might divide the Internet into two tiers. Barbara is also the author of Architecture and Innovation: The Role of the End-to-End Arguments in the Original Internet, slated for publication in 2007 by the MIT Press.

Please join Jurisdynamics in congratulating Barbara van Schewick, Jurisdynamic Idol.

Thursday, August 24, 2006

Teach it. Fund it. Learn it. Or die.

E. coli
Given this forum's interest in evolution and its reception by the public, it seems eminently appropriate to note the New York Times' and Concurring Opinions' coverage of the Department of Education's apparent attempt to eliminate evolutionary biology from the list of fields suitable for study by recipients of a federal grant for low-income college students. The DoE calls the omission of category 26.1303 accidental.

Here's how the crucial passage in the DoE's list reports eligible subjects within the broader category, "26.13 Ecology, Evolution, Systematics and Population":
26.1301 Ecology
26.1302 Marine Biology and Biological Oceanography

26.1304 Aquatic Biology/Limnology
26.1305 Environmental Biology
26.1306 Population Biology
26.1307 Conservation Biology
26.1308 Systematic Biology/Biological Systematics
26.1309 Epidemiology
26.1399 Ecology, Evolution, Systematics and Population Biology, Other
Yes, this fair and balanced presentation of the document in question shows a blank line where category 26.1303 should appear. We report. You decide.

As for me, I've decided. This administration has demonstrated no restraint in playing politics with science. It deserves no presumption of good faith on matters of this sort. Evolutionary biology has become a special whipping boy for one of this administration's most rabid constituencies, so much so that pandering to antievolutionist sentiment has reached the highest judicial levels.

Perhaps it is apt, therefore, to remind this audience as well as this scientifically benighted administration and the public at large: Nothing in biology makes sense except in light of evolution.

I offer one final footnote. Deven Desai's otherwise excellent post at Concurring Opinions fell into the usual pattern of illustrating public disputes over evolution with a depiction of nonhuman primates. Let's try something different here. The graphic accompanying this post provides a hint on why it might be worth teaching, financing, and learning evolutionary biology. Never mind human origins. How about emphasizing human survival as a tactically astute change of pace?

Katrina's evacuees, one year later

Kenneth WoodfinThe New York Times profiles Kenneth Woodfin and other New Orleans evacuees in an ongoing retrospective series on Hurricane Katrina. Mr. Woodfin now owns and operates a snow cone truck in Atlanta.

Wednesday, August 23, 2006


Field of tulips

With Jurisdynamics reporting in part this week from Amsterdam, the taxon of the week is genus Tulipa.

Breaking tulipThe much beloved tulip is the unofficial symbol of the Netherlands and the national flower of Iran and Turkey. The name tulip comes from dulband, the Persian word for turban, suggestive perhaps of the flower's shape. It is also the subject of the celebrated story of tulip mania, the economic madness that gripped the Dutch in the seventeenth century and prompted speculators to bid up the price of tulips, especially variegated varieties, to astronomical levels. The price for a single specimen of the Semper Augustus, depicted here, is said to have reached 6,000 florins, 40 times the average annual income of 150 florins.

The story of tulip mania makes good reading, from Deborah Maggoch's melodrama, Tulip Fever, to Anna Pavord's soberly entertaining and informative account in The Tulip. The truth is somewhat less exciting. The scholarly consensus appears to suggest that stories of the Dutch tulip mania are perhaps themselves the subject of a mania in their own right. See, e.g., Mike Dash, Tulipomania (1999); Peter M. Garber, Tulipmania, 97 J. Pol. Econ. 535 (1989). These skeptics believe that tulip pricing in the Netherlands of the seventeenth century in fact behaved as a rational economic model would predict.

Peach aphidsWhatever the historical truth and contemporary economic significance of tulip fancy in the Netherlands, the biological mechanism triggering the mania is now known. Many of the variegated varieties that attracted Dutch admiration gained their delicately feathered patterns from a viral infection. The mosaic virus responsible for this phenomenon is carried by the peach potato aphid, Myzus persicae. This remains the only instance in which a disease has raised instead of depressed the value of a cultivated plant to humans.

TulipAnd then there is this perspective. Rather than speculating about tulip mania and pondering whether the contemporary world is susceptible to the sort of mass economic hysteria that tulip mania supposedly embodied, perhaps we would do well simply to admire the tulip for what it is: a beautiful flower.

The Best Disaster Book Ever

Rising TideThe book I've been recommending for the past year -- to everyone I meet, regardless of whether they have an interest in disaster law -- is John Barry's Rising Tide. It's a terrific combination of social and political history seasoned with interesting stuff on engineering and hydraulics. A single flood led to Herbert Hoover's presidency, a mass exodus of blacks from the Delta to the North, and a transformed federal role in flood control (and ultimately more broadly). It's truly a fascinating read.
As a service to its audience, the Jurisdynamics Network offers interested readers the opportunity to obtain this item through the Network's Amazon Store.

Miscellany on Evolution

Blue musselSome interesting and relevant tidbits from last week’s issue of Science:

Thank God for Turkey
According to a comprehensive review of survey results from the U.S. and over 30 other nations, Americans rank next to lowest, just ahead of Turkey, in acceptance of the theory of evolution. Over the past 20 years, the percentage of US adults accepting the idea of evolution declined from 45% to 40%, the percentage rejecting evolution fell from 48% to 39%, and the share of “unsure” grew accordingly. By contrast, almost 80% of adults in the UK accept evolutionary theory. Oddly, almost 80% of US adults agree with the idea of natural selection for animals and plants when the word “evolution” is not used in the description, but over 60% of those same surveyed adults reject evolution when applied to humans. Using ten independent variables available for all the nations in the study, the researchers concluded that evolution has become a far more politicized issue in the US than in any other nation. Also, Americans are tragically ignorant of biology, with little understanding of genetic overlap between species and of the basic idea of DNA. More here.

But Mussels are Believers
Apparently unaware of its human neighbors’ opinions, the blue mussel, native to the New England coast, has decided to evolve. A recent invader to US waters (see my prior post on invasive species), the Asian shore crab has made its way up the East Coast and developed a yen for the blue mussel along the way. But true to the Red Queen model of co-evolution, the mussels have developed thicker shells when cues in the water signal the crab’s arrival. Mussels from Maine, where the crab has yet to reach, do not thicken their shells when exposed to the crab. The mussels south of Maine, in other words, have in 15 years evolved the ability to sense the crab’s presence and load up on heavy armor when needed. Maybe they should have been included in the evolution opinion survey. More here.

So How Did Plants Get On Hawaii?
I pointed out in my invasive species post that all plants on Hawaii were at one time “invasive.” But how did they get there? Research on long-distance dispersal (LDD) of plants is yet another study in complexity theory. Under standard dispersal methods for most plants, a dispersal event of 400 kilometers might be expected to happen about once every 100 billion years. Obviously, they happen more frequently than that, because every so often something “breaks the rules.” Typhoons, tornadoes, vast smoke-billowing fires, and other unusual weather events are the most likely candidates for most LDDs. And although they are still quite rare, LDDs have disproportionately profound and lasting impacts on the local ecology—as in the case of Hawaii. From disaster came paradise. More here.

Disasters Galore!
If Dan’s series on disasters has you staying up late at night in worry, check out the US Geological Survey’s new Natural Hazards Gateway for all sorts of historical and real time information on earthquakes, floods, hurricanes, landslides, tsunamis, volcanoes, and wildfires. Sure to soothe you!

Tuesday, August 22, 2006

Alas, Babel

Tower of Babel

This time of mass extinctions spares nearly nothing, from individual taxa to landscapes to human institutions. Within the realm of human culture, nothing is as precious and as precariously preserved as linguistic diversity. The key to its preservation, perhaps counterintuitively, may lie in treating linguistic difference as an ordinary form of expression of rather than a cultural peculiarity.

The latest paper version of Ethnologue tallies nearly 7,000 extant human languages. This number seems destined to decline, perhaps precipitously. As Oz Shy observed in The Economics of Network Industries, a shared language is a network good. The imperatives of globalization and modern communication drive native speakers of diverse tongues toward a single standard. That standard happens to be English. Here at the annual European meeting of the International Telecommunications Society, which I'm attending this week, the working language is English, even though the Universiteit van Amsterdam is hosting and the single largest linguistic grouping among attendees is probably German. The allure of English is strictly pragmatic. Choosing a common language for academic discourse isn't quite as essential as harmonizing the international air traffic control system, but efficiency strongly favors the tongue of the World ... Wide ... Web.

Son of GodzillaThe Internet scarcely bears all the blame. If anything, by allowing speakers to target and find microscopic audiences, the World Wide Web may be the last redoubt for unusual languages. Purely passive television is the real cultural nerve gas. Even the word television is a linguistic wrecking ball. With the striking exception of Iceland and the Faeroe Islands -- where sjónvarp, a beautiful neologism combining the Germanic roots for sight and throw, cf. warp (Eng.) and werfen (Ger.), designates television -- the entire OECD uses some derivative of the word television. Even in non-Indo-European countries such as Turkey and Japan, テレビ (terebi) lizards threaten to make a dinosaur of human linguistic diversity. What Nimrod would have the world be of one speech and one tongue?

The bottom line is the same, whether one is devoted to documenting, in the descriptive tradition of linguistics, the beautiful but threatened diversity of human language, or whether one more aggressively advocates the cause of language perservation. Linguistic diversity seems doomed in an age of globalization, network efficiencies, and sheer speed.

Well, so what if the world becomes, in the grim vision of Brave New World, a linguistic monoculture where German and Polish are vaguely recalled as extinct languages? Given how much of humanity's singularly powerful command over pattern recognition is committed to spoken language, a loss of linguistic diversity has devastating consequences whose magnitude may defy accurate calculation. As documented in works such as John McWhorter's Power of Babel and Mark Baker's Atoms of Language -- see generally Paul Bloom's review of both books -- the phonetic, morphological, and syntactic logic embedded in each language opens a window on the limits and potential of human thought.

David TreuerIn one small but significant corner of this epic struggle against the Goliath of linguistic extinction stands the University of Minnesota's aptly named David Treuer. The subject of a recent profile in the New York Times by Dinitia Smith, Professor Treuer is the author of the newly released book, Native American Fiction: A User's Manual.

What exactly does David Treuer's new critique of Native American fiction -- especially the popular and highly regarded works of writers such as Louise Erdrich, Leslie Marmon Silko, James Welch, and Sherman Alexie -- have to do with linguistic preservation? Everything. In the words of Dinitia Smith, David Treuer "argues that the works of Indian authors are often read as ethnographies, when they should be read as literature."

Professor Treuer has backed his literary criticism with his own actions. For the next year and a half, he will record, transcribe, and translate the Ojibwe language. This effort to preserve Ojibwe dovetails beautifully with his "criticism of exceptionalism in Native American literature." When the literature of a culture threatened with linguistic annihilation is seen as culture itself and not as some sort of anthropological artifact, perhaps then we might glimpse the path toward preserving the human diversity that makes such culture -- in all of its beautiful diversity -- possible in the first place.

Book Meme 2

In response to Jim's tag (and in honor of Ann Bartow, for a great idea for the blawgosphere to generate some good reading suggestions), here is my response to the book meme:

1. One book that changed your life? Probably Kathleen Norris's The Cloister Walk, which is one of the most eloquent and realistic spiritual autobiographies I've ever read. Norris spent about nine months in a Benedictine Abbey, and all manner of powerful insights ensued. It's the best argument for a "retreat" from the daily grind that I've ever read, and the few times I've taken it to heart I've been richly rewarded.

2. One book you have read more than once? Not many in this category, I'm more extensive than intensive. Probably several parts of Rawls's Theory of Justice, Taylor's Philosophy of the Human Sciences, and Thich Nhat Hanh's Peace is Every Step. [Together these make one "average sized" book!]

3. One book you would want on a desert island? The Bible. [I think this question should be changed to reflect new digital storage about "one iPod playlist" for the desert islance? or one "The Great Ideas" collection burned onto a flash drive, with searchable syntopicon?]

4. One book that made you laugh? Frederick Crews, The Pooh Perplex. You will never read lit crit the same way again.

5. One book that made you cry? Probably the end of George Eliot's Middlemarch, on how Dorothea and Lydgate end up distracted from their true callings. Or maybe it was Robert Coles's commentary on that aspect of Middlemarch.

6. One book you wish had been written? David K. Shipler, Invisible: The Working Poor in America. (Actually, Barbara Ehrenreich's book Nickled and Dimed is far more entertaining, but I know I'm incapable of writing that well! The last chapter of that Ehrenreich book is a must-read.)

7. One book you wish had never had been written? Lee Silver, Remaking Eden. He basically says that we should applaud (or acquiesce to) a biotechnological future approximating Gattaca. Don't we all agree Brave New World is a *bad* outcome?

8. One book you are currently reading? Deen Chatterjee, ed., The Ethics of Assistance: Morality and the Distant Needy. Judith Lichtenberg's essay Absence and the Unfond Heart: Why People are Less Giving than they Might Be is very insightful.

9. One book you have been meaning to read? Franz Wright, Walking to Martha's Vineyard.

Sunday, August 20, 2006

Book meme

I'm having another typical Evariste Galois/Robert Frost evening, with miles to go before I sleep, but when Ann Bartow tags me, I'll play. The game is to answer some book-related questions and then to tag someone else you'd like to answer the same questions.
  1. A book that changed your life. The wretched truth be told, the cursed LSAT guide I picked up in 1986. I wish I'd never touched it.

    BookwormIn more serious professional terms, I nominate Jared Diamond's Guns, Germs, and Steel. Language, ecology, agriculture, technological change -- in one breathtaking package. In personal terms, Robert Penn Warren's All the King's Men. Still trying to progress from the Great Twitch to the Awful Responsibility of Time, now that I've moved farther from the stink of the didie and closer to the stench of the shroud.

  2. A book you've read more than once. Edith Wharton's Ethan Frome. There are other books that reliably develop the theme of a promising young man frustrated at not "making it" and then being utterly destroyed by his own choices. Jude the Obscure and The Natural belong in the same genre. But Ethan Frome is the rare book of this sort written by a woman, and its protagonist displays a unique talent for destroying the woman he loves. I've lost track of how often I've read it.

  3. Book for a desert island. For the sake of entertainment and enlightenment, probably James George Frazer, The Golden Bough. Since Ann also offered a practical suggestion, so will I: The United States Army Survival Manual.

  4. Book that made you laugh. People born when I last read this can now drink legally, but to this day I still chuckle when I think of The World According to Garp.

  5. Book that made me cry. I've been naming at least two in each category, so I'll continue the trend. Bernhard Schlink's The Reader and Charles Frazier's Cold Mountain.

  6. Book I wish had been written. Something called The Law Made Flesh -- jeremiad, do-it-yourself guide, and autobiographical confession rolled into one.

  7. Book I wish had never been written. Mein Kampf and the book that inspired Osama bin Laden (which title eludes me) come readily to mind
  8. .
  9. Book I am currently reading. Murray Gell-Mann, The Quark and the Jaguar. I put down Panarchy some time ago and need to pick it back up.

  10. Book I've been meaning to read. Either Stephen Jay Gould, The Structure of Evolutionary Theory or The Complete Adventures of Curious George. They both have been languishing on my shelf.
All right. I now tag all my fellow writers here at the Jurisdynamics Network, as well as Belle Lettre, the most literate person I've encountered in a long, long time.

Editor's note: I suppose this is as good a time as any other to mention the latest technological development here at Jurisdynamics and its family of affiliated blogs. As a service to its audience, the Jurisdynamics Network offers interested readers the opportunity to obtain books and other items through the Network's Amazon Store.  
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