Saturday, December 30, 2006


Thursday, December 28, 2006

Toward an 8/29 Commission

Key Democrats are considering creating a parallel to the 9/11 Commission to investigate what went wrong in New Orleans:
On the eve of taking control of Congress, Democrats are interested in forming an investigative panel similar to the 9-11 Commission to investigate who was responsible for the levees that broke during Hurricane Katrina and to probe the government's efforts to repatriate and rebuild this devastated city.

Advocates say the commission is needed to truly understand what went wrong to cause the flooding of New Orleans and the deaths of more than 1,300 people. They also say a commission would be a forum to discuss broad changes to the way the Army Corps of Engineers and other federal agencies do business and handle disasters.

The commission is being referred to as the 8-29 commission, after the date Katrina hit the Gulf Coast in 2005.
More details here.

Tuesday, December 26, 2006

Hic jacet Lipotes vexillifer: Here lies the baiji

The news came bit by bit, first in a press briefing on the failure of the Yangtze Freshwater Dolphin Expedition 2006:
The baiji, a rare, nearly blind white dolphin that survived for 20 million years, is effectively extinct, an international expedition declared after ending a fruitless six-week search of its Yangtze River habitat. The baiji would be the first large aquatic mammal driven to extinction since hunting and overfishing killed off the Caribbean monk seal in the 1950s. For the baiji, the culprit was a degraded habitat -- busy ship traffic, which confounds the sonar the dolphin uses to find food, and overfishing and pollution in the Yangtze waters of eastern China . . . .
And then came 20 million years and a farewell, a brief tribute from New York Times science writer Andrew C. Revkin:
Swimming baijiThe first species to be erased from this planet's great and ancient Order of Cetaceans in modern times is not one of the charismatic sea mammals that have long been the focus of conservation campaigns, like the sperm whale or bottlenose dolphin.

It appears to be the baiji, a white, nearly blind denizen of the Yangtze River in China.
Finally, by way of an e-mail message from Philip Regal to fellow members of the University of Minnesota Conservation Biology Program, I got word of this dispatch by Robert L. Pitman of the NOAA Fisheries Ecosysem Studies Program:
Robert L. Pitman has spent 30 years studying the world’s whales, dolphins and other aquatic mammals. He returned to San Deigo, Calif., last week after a fruitless six-week expedition in which teams of five observers on two vessels scoured the Yangtze River from the Three Gorges Dam to Shanghai, seeking the last members of the rarest cetacean species of all, a white, nearly blind dolphin called the baiji, Lipotes vexillifer. . . .

Yangtze RiverLocally, the Yangtze River is in serious trouble; the canary in the coal mine is dead. In addition to baiji, the Yangtze paddlefish is (was) probably the largest freshwater fish in the world (at least 21 feet), and it hasn’t been seen since 2003; the huge Yangtze sturgeon breeds only in tanks now because it has no natural habitat (a very large dam stands between it and its breeding grounds). The whole river ecosystem is going down the tubes in the name of rampant economic development. There is a huge environmental debt accruing on the Yangtze, and baiji was perhaps just the first installment.

Globally, scientists have been warning for some time of an impending anthropogenic mass extinction worldwide. Previous bouts of human-caused extinctions were due mainly to directed take: humans hunting for food. What we are seeing now is probably the first large animal that has ever gone extinct merely as an indirect consequence of human activity: a victim of market forces and our collective lifestyle. Nobody eats baiji and no tourists pay to see it — there were no reasons to take it deliberately, but there was no economic reason to save it, either. It is gone because too many people got too efficient at catching fish in the river and it was incidental bycatch. And it is perhaps a view of the future for much of the rest of the world and an indication that the predicted mass extinction is arriving on schedule. . . .

From now on we will have to choose which animals will be allowed to live on the planet with us, and baiji got cut in the first round. It is a sad day. I know it is their country, but the planet belongs to all of us. We came to say goodbye to baiji, but after its being in the river for 20 million years, we apparently missed it by two years.

Sorry if I got a little emotional here, but the disappearance of an entire family of mammals is an inestimable loss for China and for the world. I think this is a big deal and possibly a turning point for the history of our planet. We are bulldozing the Garden of Eden, and the first large animal has fallen.
The fall of the baiji signals, more urgently than ever, the danger that looms over all freshwater ecosystems on earth. Baiji.Org lists the remaining freshwater cetacean species as flagship species for continuing ecological vigilance:

SusuThe susu, Platanista gangetica spp., lives in the Indus and Ganges river systems. There are two subspecies: the susu and the bhulan or Indus susu.

Irrawaddy dolphinThe irrawaddy dolphin, Orcaella brevirostris, lives in the Mekong river system in Vietnam, Cambodia, and Laos.

BotoThe boto, Inia geoffrensis, also known as the Inia or Amazon river dolphin, is endemic to the Amazon and Orinoco river systems in South America.

TucuxiLike the boto, the tucuxi, Sotalia fluviatilis fluviatilis, also inhabits the Amazon and Orinoco river systems.

Yangtze finless porpoiseThe Yangtze finless porpoise, Neophocaena phocaenoides asiaeorientalis, like the baiji before it, lives exclusively in China's Yangtze River.

As for the baiji itself, all that remains are still images from Arkive.Org and other repositories. Alas, Eden.

Editor's note: This item is being posted simultaneously on Jurisdynamics and BioLaw.

Monday, December 25, 2006

Unveiling a revamped Law Blog Central

Law Blog CentralThe Jurisdynamics Network is proud to announce the complete revamping of Law Blog Central. The new site triples the number of law-related blogs relative to the old site.

Law Blog Central is linked at the Jurisdynamics Network's portal page and on the front page of every weblog within the network. You may also reach it directly through either of these URLs:

We hope you enjoy Law Blog Central and will visit often.

Sunday, December 24, 2006

Robert T. Stafford

Robert StaffordRobert T. Stafford, who represented Vermont in the House (1961-71) and the Senate (1971-89), has died at age 93. The Barre-Montpelier Times Argus and the New York Times have published tributes to Senator Stafford. Jurisdynamics now follows suit.

Senator Stafford's distinguished career left its mark on numerous subjects central to the intellectual mission of Jurisdynamics:
  1. Senator Stafford was a staunch defender of the Federal Guaranteed Student Loan Program. Congress in 1988 acknowledged his his dedication to by renaming the guaranteed student loan program in his honor. Millions of students each year -- 14 million in 2006 alone -- receive low-interest loans now known as Stafford loans.

  2. Senator Stafford played an active role in the legislative explosion of the early 1970s that gave rise to the most important pieces of contemporary environmental legislation. He made noteworthy contributions to the Clean Air Act, the Safe Drinking Water Act, and especially the Clean Water Act. When Ronald Reagan became President, Senator Stafford, as the ranking Republican on the Senate Environment and Public Works Committee, became chairman of that vital committee. He led the Senate in overriding President Reagan's veto of amendments that strengthened the Clean Water Act.

  3. Few politicians today leave a legislative legacy. Senator Stafford's influence extended beyond education and the environment. He also took a leadership role in designing the legislative basis for federal involvement in disaster relief. Jurisdynamics has devoted extensive attention to the Stafford Disaster Relief and Emergency Assistance Act, a statute that remains the basic blueprint for federal intervention in the aftermath of natural disasters.

  4. Governor StaffordAs governor of Vermont from 1959-61, Robert Stafford displayed great foresight and leadership in the realm of civil rights by withholding his state's endorsement from tourist businesses that discriminated on the basis of race or religion.

  5. In retirement Senator Stafford remained true to those ideals. When Vermont legalized same-sex civil unions in 2000, a frail Stafford declared his support for the measure at a press conference in Rutland: "I believe that love is one of the great forces in our society and in the state of Vermont . . . . And even if a same-sex couple unites with true love, what is the harm in that? What is the harm?" This forum endorses that sentiment.
The Times Argus said it best: "At the time of his death, we are reminded that fearless leadership, combined with humility and common sense, can achieve great things. In his time, Stafford did."

Santa in Space

Saturday, December 23, 2006

The National Christmas Tree through the years

National Christmas tree, 1963Since 1963 Aldon Nielsen has collected a photographic archive of the National Christmas Tree, probably the most extensive of its kind. Jurisdynamics shares these images, by way of the Washington Post and the Saint Paul Pioneer Press.

Peace on earth; goodwill to all people.

Ella Fitzgerald, It Came upon a Midnight Clear

The Mystical Nativity/Children Go Where I Send Thee

Sandro Botticelli, The Mystical Nativity (ca. 1500)

Technical note: The Jurisdynamics Network's Macromedia Flash audio player (which debuts in this post) is powered by Luke Gilman, a contributor to First Movers and a blogger/Web designer par excellence.

Thursday, December 21, 2006

Law blogger happy hour at AALS

Pilsner UrquellDobrý večer, česke pivo prosím. This microphotographic image of Pilsner Urquell comes courtesy of Beershots, a project of Michael W. Davidson and Florida State University.

Bloggers and blog readers throughout legal academia, including contributors to and fans of the Jurisdynamics Network, have been invited to join an AALS happy hour cosponsored by PrawfsBlawg and Concurring Opinions. Libations will start flowing Wednesday, January 3rd, at 9:00 p.m. at Cloud, One Dupont Circle N.W., Washington, D.C., at the intersection of Dupont Circle and New Hampshire Avenue N.W.

The map of the creative class

Map of the creative class
Richard Florida deserves immense credit for having written two of the most influential books of the last decade: The Rise of the Creative Class and The Flight of the Creative Class. I'll reserve a fuller discussion of the "creative class" phenomenon for a future post or series of posts on Jurisdynamics, but as an initial matter it behooves us to see where college graduates are distributed in the United States. The above map displays some radical disparities in educational background. For now, I'll be content to let the map sit atop Jurisdynamics, in the hope that it will provoke discussion, and to credit Pandagon and Tisiwoota for bringing it to my attention.

Update, Dec. 22, 2006: Here is another map showing disparities in college education by House districts in the 109th Congress, courtesy of geodemographic tools supplied by ProximityOne:

College map by congressional district

Wednesday, December 20, 2006

Varanus komodoensis

Komodo dragon
The Komodo dragon (Varanus komodoensis) is Jurisdynamics' holiday-season taxon.

Averaging two to three meters in length, the Komodo dragon is the world's largest lizard. A member of the monitor lizard family, Varanidae, the Komodo dragon is endemic to the islands of Komodo, Rinca, and Flores in the Lesser Sunda archipelago of Indonesia. The following video, courtesy of Arkive.Org's zoological video library, shows the Komodo dragon in its native environment:

Of late the Komodo dragon has made two prominent contributions to biological knowledge. BioLaw has documented the dragon's recently discovered capacity for parthenogenesis. A recent study of the Komodo dragon's venomous nature holds even greater significance for taxonomy. The discovery of venom-producing genes in the Komodo dragon, see Bryan Grieg Fry, Nicolas Vidal & Janette A. Norman, Early evolution of the venom system in lizards and snakes 439 Nature 584-58 (2006), has led to the proposed reclassification of many reptiles within the so-called "venom clade," Toxicofera. The common ancestral species that first developed venom within Toxicofera's "venom clade" are thought to have lived 200 million years ago, approximately 100 million years before snakes evolved. This ancient clade's venomous propensities makes its members primary targets for pharmaceutical research.

Beautiful nanotechnology

An image from American Scientist, by way of Tisiwoota's StumbleUpon page:
A transmission electron microscope shows the large-angle, convergent-beam electron diffraction pattern of an area of silicon crystal 100 x 100 nanometers. Experiment by S. Frabboni and A. Spessot; artwork by Lucia Covi; image courtesy of S3-INFM, Modena.

Tuesday, December 19, 2006

What is Natural?

Complexity in the Field
by J.B. Ruhl

In the November 24 issue of Science, researchers K.J. Willis of Oxford and H.J.B. Birks of the University of Bergen (in Norway--a very nice city by the way) discuss the advances that have been made in paleoecology, moving from a largely descriptive and imprecise discipline to one they believe offers much for the future of conservation practice.

Paleoecological records include fossil pollen, seeds, and fruits, animal remains, tree rings, charcoal, etc. Descriptively, they can provide a snapshot of what ecological conditions were like well before human intervention. Willis and Birks argue, however, that the real value in paleoecology is in helping us understand how natural systems behave over long terms in response to natural perturbations--i.e., the natural variability of the environment. One of the challenges of modern conservation, which frequently relies primarily on observed conditions playing out over short terms, is that it is exceedingly difficult to disentangle the natural cause-effect relationships from the human-induced effects based on observations of the short-term dynamics of complex ecosystem behavior.

Particularly as more and more conservation practive involves active management toward some defined goal (e.g., to modify preserve boundaries to adjust for global climate change; to maintain biodiversity; to sustain a "natural" ecological system in situ), paleoecological studies can help form dynamic models of the natural component of ecological systems (e.g., understanding the long term effects of implementing different fire regimes on public lands; understanding the long term effects of species introduction).

In my view this is a healthy trend in terms of policy. On too many occasions conservation policy has been set by a static vision of what is "natural," based on conceptions (in many cases formed by descriptive uses of paleoecology) of what conditions prevailed at particular times in the past. In rare cases it may be possible to manage a particular ecosystem so as to maintain our best understanding of a state of nature from the past, though global climate change will complicate that strategy in any corner of the world. Far more frequently, particularly with the effects of global climate change starting to surface in significant ecological shifts, it will be more important to understand how natural systems respond to perturbations such as biological invasions, wildfire regime shifts, and climate variability. With better understanding of nature's past as it played out, rather than simply as it appeared at points in times, we will have a better set of tools for managing nature's future.

This is not to suggest that conservation policy should give up on the quest for sustaining the natural, but rather that we might want to reconfigure our conceptions of what is natural. Naturalness is a process, not a static state.

The New Orleans Saints rule the NFC South


All hail the New Orleans Saints. One season removed from shuttling across the United States as nomads without a true home stadium, the Saints have captured their division, the NFC South. The Saints are guaranteed at least one playoff game in the Superdome. All this comes at the expense of my favorite NFL team, the Atlanta Falcons, but anyone who cheers against the Saints this year is simply heartless. So congratulations, and good luck on reaching -- and winning -- Super Bowl XLI.


Monday, December 18, 2006

John Henry

John Henry
Dan Dutton, John Henry (part of Dutton's Ballads of the Barefoot Mind, on exhibit at the 21C Museum Hotel in Louisville through January 6, 2007)

The previous post having raised the question of railroads and American legal history, Jurisdynamics now turns to the legend and reality of "steel drivin' men." No steel drivin' man is better known than John Henry. With a huge assist from the University of North Carolina's John Henry Project, Jurisdynamics happily presents three views of John Henry: one visual, one poetic, and one musical portrait.

W.T. Blankenship, John Henry, Steel Driving Man (ca. 1900)
  1. John Henry was a railroad man,
    He worked from six 'till five,
    "Raise 'em up bullies and let 'em drop down,
    I'll beat you to the bottom or die."

  2. John Henry said to his captain:
    "You are nothing but a common man,
    Before that steam drill shall beat me down,
    I'll die with my hammer in my hand."

  3. John Henry said to the Shakers:
    "You must listen to my call,
    Before that steam drill shall beat me down,
    I'll jar these mountains till they fall."

  4. John HenryJohn Henry's captain said to him:
    "I believe these mountains are caving in."
    John Henry said to his captain: "Oh, Lord!"
    "That's my hammer you hear in the wind."

  5. John Henry he said to his captain:
    "Your money is getting mighty slim,
    When I hammer through this old mountain,
    Oh Captain will you walk in?"

  6. John Henry's captain came to him
    With fifty dollars in his hand,
    He laid his hand on his shoulder and said:
    "This belongs to a steel driving man."

  7. John Henry was hammering on the right side,
    The big steam drill on the left,
    Before that steam drill could beat him down,
    He hammered his fool self to death.

  8. They carried John Henry to the mountains,
    From his shoulder his hammer would ring,
    She caught on fire by a little blue blaze
    I believe these old mountains are caving in.

  9. John Henry was lying on his death bed,
    He turned over on his side,
    And these were the last words John Henry said
    "Bring me a cool drink of water before I die."

  10. John Henry had a little woman,
    Her name was Pollie Ann,
    He hugged and kissed her just before he died,
    Saying, "Pollie, do the very best you can."

  11. John Henry's woman heard he was dead,
    She could not rest on her bed,
    She got up at midnight, caught that No. 4 train,
    "I am going where John Henry fell dead."

  12. They carried John Henry to that new burying ground
    His wife all dressed in blue,
    She laid her hand on John Henry's cold face,
    "John Henry I've been true to you."

Joe Uehlein and the U-Liners, John Henry:

Sunday, December 17, 2006

Husker power/Manifest destiny

Husker volleyball
In the interest of completing this online network's coverage of the University of Nebraska women's volleyball team (at Jurisdynamics and at Agricultural Law), I am pleased to report the following dispatch from Susan Franck:
Well, tonight was the NCAA Division I National Championship for volleyball. And it was historic. The two most successful teams in college volleyball (not just this season but also in the game's history) -- Nebraska and Stanford -- were up against each other in the final at Omaha's Qwest Center.

And in front of the largest crowd to ever attend a college volleyball match, the Huskers came into volleyball glory. There were times I wasn't sure they could do it . . . . But in the end, it was a thing of beauty to watch. Both teams played incredibly well. [Editor's note: See game summaries courtesy of Huskers.Com, NCAA Sports, and the Lincoln Journal-Star.] The Huskers won in the end, but even if they hadn't I would have been incredibly proud of them.
For the benefit of my friends whose loyalties favor the University of Oklahoma, I hasten to add that it is the Sooners and not the Huskers who will be representing the Big 12 at the Fiesta Bowl and that any NCAA championship is worth lauding when it eludes the University of Texas.

All that is left, then, is to find some way of connecting this sports item to the larger mission of Jurisdynamics and its network of affiliated websites.

Nebraska and Stanford represent the terminals of what was then the greatest infrastructure project in American history, the Pacific Railway. In a summer when the fate of the Union hung in the balance, Congress passed the Pacific Railway Act, 12 Stat. 489, on July 1, 1862:
Pacific Railway ActAn Act to aid in the Construction of a Railroad and Telegraph Line from the Missouri River to the Pacific Ocean. . . .

Be it enacted, That . . . "The Union Pacific Railroad Company" . . . is hereby authorized and empowered to lay out, locate, construct, furnish, maintain and enjoy a continuous railroad and telegraph . . . from a point on the one hundredth meridian of longitude west from Greenwich, between the south margin of the valley of the Republican River and the north margin of the valley of the Platte River, to the western boundary of Nevada Territory, upon the route and terms hereinafter provided . . . .
Insofar as it pitted teams representing Nebraska and California, the 2006 NCAA championship in women's volleyball should have been called the "Manifest Destiny Match." And while Omaha is a fine venue for such an event (especially if you are a Husker partisan), I recommend that the NCAA try to stage the next Nebraska-Stanford contest in a more neutral and historically resonant venue: the Golden Spike Arena in Ogden, Utah.

Promontory Point

Saturday, December 16, 2006

Heritage speakers

Tower of Babel

Vox Populi

An occasional Jurisdynamics series on language and linguistic diversity

Among the many intellectual paramours I've acquired over the course of my life, none stirs my passion more consistently or more intensely than the science of human language: how it is acquired, how it is structured, how the quest to unlock the secrets of syntax sheds light on the limits and possibilities of human thought. One skill is at once most essential to the practice of law and least effectively taught in law schools: the interpretation of codified legal texts. I've gotten plenty of professional mileage from exploring the interaction of law with public-sector economics, the life sciences, natural disasters, and even a few aspects of mathematics, but every legal issue of consequence reduces eventually to some exercise in interpretation informed by my respect for rhetoric and love of linguistics.

Atlanta Mayor Maynard Jackson, the public figure I remember most vividly from my childhood and a master of multiple Southern dialects
I am one day shy of my 40th birthday and only a few dozen hours removed from what has been the defining moment of my career. A dear friend has told me "to appreciate how much [I've] been through and what [I've] achieved." As a strictly intellectual matter, perhaps nothing has had a greater impact on me than a bit of personal history that appears in retrospect to have been mostly accidental: being deposited as a native speaker of Taiwanese just short of the age of six in the culturally contested American South. My entire childhood, from that point onward, consisted of bridging the gap between the language of my household and, eventually, at least three variations on the theme of American English: Black English Vernacular (BEV), the language of Southern whites, and the language of national television. Dialects in America hinge on subtle differences in phonology, morphology, syntax, prosody, and rhetoric. No gap is greater than the one that separates BEV from every other variant of American English. Encountering BEV first, and then being sent to speech therapy by the well-intentioned but confused teachers in my predominantly white elementary school, completed my youthful exposure to a wide range of speech communities and the sometimes awkward social interactions between them.

This is a long way of placing myself in a burgeoning class of Americans: heritage speakers of non-English languages. Within higher education, we heritage speakers pose a special pedagogical challenge:
Heritage speakers[H]eritage language learners [are] students with either some basic level of proficiency or a cultural or familial tie to a language . . . . Many American colleges now have enough heritage speakers not only of Spanish but of languages like Russian, Arabic, Chinese and Hindi -- languages that are increasingly important educationally -- that colleges are considering how best to teach heritage and non-heritage students. . . .

[P]roviding [these students] with a "systemic understanding" [of heritage languages] isn’t easy. Many heritage speakers who are apparently fluent have never studied their languages in an academic sense and have shortfalls in their knowledge. At the same time, educating them separately can be controversial -- as to some it feels like ethnic segregation.
Colleges such as Portland State University have developed extensive programs for training heritage speakers. Because law students rarely if ever acquire or sharpen foreign language skills during law school -- not only a serious oversight in the age of globalization, but also one worthy of discussion at MoneyLaw and Law School Innovation -- the question arises: What exactly does the presence of heritage speakers portend for legal education?

In attempting an answer, I rely on nothing besides instinct and (perhaps to my detriment) extrapolations from my own experience. I do believe, though, that law students and especially law professors who are heritage speakers tend, almost imperceptibly, to be more intellectually supple, perhaps more creative, in their approach to law and legal problem-solving. The effect becomes more pronounced whenever the questions of law at hand hinge on the interpretation of a formal legal text. Casual experience with complex verb tenses, grammatical gender, and measure words exposes even the feeblest of heritage speakers to modes of thought not available to their strictly monolingual counterparts. One of this forum's most persistent hecklers might again accuse me yet again of allowing sympathy with immigrants to shade my thinking. But unless Persistent Heckler has some non-English linguistic legacy in his or her head, my point is that P. Heckler can't quite duplicate my thinking.

Then again, I am prepared to confess that everything I have written here may be utterly devoid of intellectual validity, insofar as it might simply represent nostalgia for a brief moment in time, not too long ago, when Alex Johnson was dean at Minnesota and Guy Charles, Luis Fuentes-Rohwer, and I could laugh at our common experiences and worldviews as three men born on tropical islands where English is not widely spoken, but pigs are enthusiastically roasted and eaten.

Thursday, December 14, 2006

Sunrise and sunset in FEMA's trailer parks

FEMA's Renaissance Village is temporary home to 1640 residents, most of whom are from New Orleans's Ninth Ward. Photo credit: Share Our Strength/Hinges of Hope Louisiana.

Bob Herbert of the New York Times reports from FEMA's trailer camps. The camps Herbert describes, Renaissance Village and Mount Olive Gardens, are the nice ones. Summarizing his visit to Mount Olive Gardens, Herbert quotes a single inscription on a baby picture that serves at once as epigraph and epitaph:

Miracle Breyonne Craig
Sunrise: 3-19-05
Sunset: 3-10-06

The Jurisdynamic Law Dean

This just in: Jurisdynamics' own Jim Chen is about to become Dean of the Brandeis School of Law at the Univeristy of Louisville. From the official press release:
“I’m looking forward to helping the school extend the Brandeis legacy 150 years after his birth,“ Chen said, noting that one of many attractions to the post is the law school’s tradition of public service.

“I also look forward to engaging the work of the Brandeis School of Law with that of the legal profession and with that of the academy — in law and in other disciplines. I hope that the School of Law will play a leading role in helping the law accomplish those things that law is best equipped to do: avoid conflicts, resolve them when they arise, build productive organizations and, ultimately, solve social problems.”

Chen will begin his duties Jan. 2 by representing UofL at several out-of-town events. He expects to be on campus Jan. 16.

Wednesday, December 13, 2006

Staying Afloat: Physicians in Katrina's Wake

Author's Note: With permission, I am posting the following exchange between a Gulf Coast physician, Dr. Scott Needle, and myself regarding the challenges of physician reimbursement post-Katrina. We invite readers' insights, suggestions, and dialogue on this pressing topic.

Professor Weeks,

I read your two Katrina-related papers on SSRN with much interest -- I found them (and you) through Jim Chen's Jurisdynamics web site. As a primary care provider (pediatrician) in Bay St Louis, Mississippi. I've had a very personal interest in this issue. As you correctly pointed out in the paper you presented at DePaul University, federal authorities have done almost nothing for individual providers. As a result of this and a number of unique constraints, individual physicians are largely bearing the brunt of the community's health care recovery.

One possible (and fairly obvious) solution involves increased Medicaid payments to affected providers. My question to you regards the legal status/relationship of individual physicians as Medicaid providers, with regards to the government's role and responsibilities in providing care to the poor (via said Medicaid program). Yes, providers are vendors, but can providers also be seen as designated agents in delivering public health services? Does the percentage of Medicaid patients seen by a provider make a difference (e.g., I see about 65% Medicaid -- this especially becomes an issue since unlike a traditional vendor, I cannot negotiate my payments with the state; I must take what I am given; is this a more constricted relationship, almost a quasi-employee?).

I am obviously trying to explore the government's obligations towards individual providers of health care in fulfilling its larger obligations towards the community's public health (particularly in the context of recovery from a disaster such as Katrina), and I'd very much like your perspective on this line of inquiry.

Scott Needle MD FAAP
Bay St Louis Pediatrics
Bay St Louis MS

Dear Dr. Needle,

Thank you for your email and for taking the time to read my articles. It's -- unfortunately -- comforting to hear that providers are truly struggling with this issue because the response I often receive from the academic community is that I am focusing on a minor part of the disaster response and preparedness problem. Maybe it's a product of my research bias in health care financing, but I do think the issue is crucial to maintaining a viable health care infrastructure.

As to your specific question and the role of Medicaid in paying providers for serving poor patients, specifically, and the public's health, generally, I'm afraid it doesn't fill the gap, as you surmise. Medicaid payment rates are set by individual states, under their federally approved state Medicaid plans, within the broad parameters of the federal Medicaid statute. There is no room for individual negotiation with providers, as far as I am aware, other than some trial programs such as pay-for-performance or other payment incentives. Physicians, like yourself, typically are paid based on a state-specific Medicaid physician fee schedule.

The federal statute states, in broad terms, that the state's provider payments must be adequate enough to enlist a sufficient number of providers to serve Medicaid program beneficiaries. One of the founding principles of Medicaid was to avoid creating a two-tier system of medical care, with the poor treated in public hospitals and clinics, and the rich treated in private facilities. Accordingly, Medicaid patients get an insurance card, like any other insured patient, and can go to any providers they choose, as long as the providers accept Medicaid as a form of payment. In most cases, providers must accept Medicaid reimbursement as payment-in-full and cannot "balance bill" the patient.

But from the physicians' end, as you know, whether to accept Medicaid patients is entirely voluntary. And many do not, for exactly the reason you identify: Inadequate reimbursement. Also, there may be a perception that Medicaid patients are higher utilization, harder to treat patients. Your idea about add-on payments to physicians who treat a high proportion of Medicaid or uninsured patients is a good one. State and federal governments do provide that sort of payment (disproportionate share, or DSH, or Dispro adjustments) to hospitals, on top of their standard reimbursement. As far as I know, there's no similar adjustment for physicians.

The major drawback of Medicaid as a way to cover the public health need, as I discuss in my papers, is that payment is tied to the patient, rather than a lump-sum to the provider. A DSH-type adjustment would be based on the overall percentange of Medicaid or uninsured patients in a physician's patient roles, not tied to each patient individually. That approach may be a better, more direct approach to compensating providers like yourself, who are bearing the brunt of the public health and uninsured need in post-disaster and other high medical need areas.

My initial interest in reimbursement for disaster response, post-9/11, was to approach the problem of inadequate reimbursement and drawbacks to our current approach to health care reimbursement, even in non-crisis times. Your question highlights those concerns. My hope, in approaching the issue from the homeland security or disaster response angle, is to draw more attention than the issue otherwise would attract. Perhaps the solutions we propose for first responders can be generalized to public health providers under non-disasterous circumstances.


Elizabeth A. Weeks
Associate Professor
University of Kansas School of Law
1535 West 15th St.
Lawrence, KS 66045
(785) 766-9794


I'm sorry to hear that some of your peers feel that health care is a minor part of disaster issues. The government actually did fairly well in the acute response to Katrina with the DMATs and mobilizing other field hospitals, but the long-term recovery remains ignored. It may be a small part of the big picture, but to those of us involved in it, it's pretty much all-consuming. I had "discovered" the DSH payment system just a day or two before I wrote to you. I agree that this seems like a promising idea, if the right people could be convinced.



Perhaps I overstated; it's not that my colleagues minimize the role of health care in disaster response, generally, but the need to prospectively consider reimbursement for health care providers, specifically. I'm with you; I think that both issues merit very careful planning and consideration.


Tuesday, December 12, 2006

Folkspraak and Interlingua

Quadratmeter BabelFrom this forum's inception, language policy has commanded a significant portion of Jurisdynamics' attention. I recently devoted a brief essay (First Person Plural) to this subject. As craft workers within the linguistic arts, lawyers are at once consumers and makers of language policy.

For months I have been planning to post an item on international auxiliary languages. This summer I was privileged to be among the first guests of John Lopatka and Marie Reilly at their new home near Penn State University's Dickinson School of Law. John and Marie's very talented son, Teddy, was toying with a linguistic invention of his own devising, a manageable blend of French and Spanish vocabulary. Teddy's sister, Claire, joined in the fun. Professional linguists play the same game -- for keeps. For over half a century, linguists have been working on an international auxiliary language based on the Romance languages. The result is Interlingua. Though Esperanto and Slovio have their charms and their adherents, Interlingua may be the most erudite and aesthetically pleasing constructed language.

Noam ChomskyI cannot resist this technical aside. Though French, a Romance language, is more closely related to Italian and Spanish than it is to English, French aligns with English and against Italian and Spanish with respect to the null subject parameter. To wit: Verrà Gianni and Verrà are grammatically coherent sentences in Italian, whereas no sober speaker of French would ever utter *Arrivera Jean or *Arrivera. The null subject parameter became one of the foundations of Noam Chomsky's pathbreaking Lectures on Government and Binding (1981). Mark Baker, The Atoms of Language (2001) covers the next two decades of advances in linguistic knowledge. Few lines of inquiry into the nature of human thought, as observed in real-life settings, are as fascinating and as powerfully predictive as this quest to explain how a very small and commensurate number of parameters can generate the full range of syntactic differences among languages.

All this is to say that Teddy Lopatka reminds me of my own intellectual development. Having encountered two variants of American English between the ages of six and twelve (Black English Vernacular -- I will kick your rear end if you call BEV by a name that rhymes with "sonics" -- and a nonblack version of Southern American English), I recognized that Zipf's law considerably simplified the task of acquiring new vocabulary. (I counted words in school assignments and organized them in declining order of frequency.) I can only imagine the powers of linguistic pattern recognition at the disposal of all-time Jurisdynamic Idol Rasmus Rask. If only I hadn't gone to law school, a professional mistake I place on par with Billy Beane's ill-considered decision to sign with the Mets, I might have spent my life pursuing the intellectual Holy Grail whose contours are best known from the work of geniuses such as Noam Chomsky and Mark Baker. Then again, the defining trait of legal academia is that nothing constrains a law professor with tenure from pursuing any intellectual interest, no matter how tangentially germane or even utterly unrelated to law or the real work of lawyers, and repackaging a dilettante's pursuit as interdisciplinary legal scholarship.

TerraVery well, then. Whither international auxiliary languages? Sympathetic as I am in spirit to efforts such as the Auxlingua Project, I believe that wisdom favors a more realistic view. With extremely rare exceptions (most notably the resurrection of Hebrew as the living language of the State of Israel), top-down efforts to regulate language choice will fail. Market forces drive the rise, fall, and (alas) extinction of natural langauges.

As I said, all this had fallen victim to the exigencies of a semester devoted to teaching, scholarship, blogging, and job-hunting (not necessarily in that order). And then I ran across Folkspraak. With various degrees of emphasis, the many projects within the large umbrella of Folkspraak try to unite living Germanic languages -- from the big four of English, High German, Dutch, and Swedish/Norwegian/Danish to the grab bag of smaller Germanic languages such as Low German, Afrikaans, Yiddish, Frisian, Icelandic, and Nynorsk -- under a single common auxiliary language.

Folkspraak and Interlingua are elegant, even beautiful efforts to synthesize languages that educated speakers of their source languages can recognize on sight. In the larger realm of language policy, they are to Encyclopædia Britannica as natural languages, pidgins, and creoles are to Wikipedia. Folkspraak and Interlingua are the products of dedicated, erudite professionals. Simplified international English and Tok Pisin, by contrast, emerge and evolve with no official guidance. In matters of language, they enjoy an advantage that Folkspraak and Interlingua, in all probability, will never have. English is spoken by real people. It is passed on to children, who in turn will reinvent the language at the margins.

Folkspraak and Interlingua,
English and Tok Pisin


Ons Fader in Himel,
lat din Nam aren helig,
Lat din Rikdom kommen.
lat din Wil aren doede,
aup de Erd als in de Himel.
Giv os dis Dag ons daglik Brod,
Ond forgiv os ons Skuldens,
als vi forgiv dem die skuld gegen os.
Ond test os nit,
men spar os from Uvel.

Nostre Patre, qui es in le celos,
que tu nomine sia sanctificate;
que tu regno veni;
que tu voluntate sia facite
super le terra como etiam in le celo.
Da nos hodie nostre pan quotidian,
e pardona a nos nostre debitas
como nos pardona a nostre debitores,
e non duce nos in tentation,
sed libera nos del mal.

Our father in heaven,
hallowed be Your name,
Your kingdom come.
Your will be done,
on Earth as in Heaven.
Give us this day our daily bread,
and forgive us our sins,
as we forgive those who sin against us.
And lead us not into temptation,
but deliver us from evil.
Tok Pisin

Papa bilong mipela
Yu stap long heven.
Nem bilong yu i mas i stap holi.
Kingdom bilong yu i mas i kam.
Strongim mipela long bihainim laik bilong yu long graun,
olsem ol i bihainim long heven.
Givim mipela kaikai inap long tude.
Pogivim rong bilong mipela,
olsem mipela i pogivim ol arapela i mekim rong long mipela.
Sambai long mipela long taim bilong traim.
Na rausim olgeta samting nogut long mipela.
Kingdom na strong na glori, em i bilong yu tasol oltaim oltaim.

Monday, December 11, 2006

The post-Katrina baby boom in New Orleans

Katrina's baby boom

The latest demographic shock in New Orleans, reports the New York Times, is a boom in babies born to "Latino immigrant workers, both legal and illegal, who flocked to the city to toil on its reconstruction." The baby boom has had a profound impact on the population, the health care system, and the sustainability of existing immigration law in greater New Orleans.

Historically, the racial composition of New Orleans was divided strictly between blacks and whites. The exigencies of post-Katrina reconstruction have brought an influx of Hispanic residents. This population accounts for many of the new births in Orleans and Jefferson Parishes.

This forum has already lamented the shabby shape of greater New Orleans' health care system after Katrina. A baby boom under these circumstances necessarily strains the metropolitan area's depleted health care resources. The system strains even further given the financial constraints on illegal immigrants and the typically low or nonexistent levels of prenatal care received by mothers in this class:
The boomlet of Latino babies in New Orleans poses particular challenges. Nonemergency Medicaid is not available to illegal immigrants or even to legal immigrants who have been in the country less than five years. Virtually none of the immigrant mothers-to-be have private insurance. They are mostly poor. Many fear being deported.
New Orleans is rapidly assuming a new cultural identity that has a strong Hispanic component. Classic street foods such as beignets and chicory coffee are yielding in favor of tamales. The changing culture of New Orleans poses special problems for the law. Restrictions on Medicaid, coupled with the general lack of health care resources, funnels pregnant women toward emergency rooms. This variation on an unfortunate theme within the American health care system -- treating emergency rooms, which should be caregivers of last resort, as the primary or even exclusive source of health care for vulnerable populations -- exacts an exceptionally steep toll from New Orleans' most recent wave of newcomers.

Workers of Mexican and Central American origin are vital to the reconstruction of New Orleans. Excluding these immigrants from Medicaid is backfiring. If anything, the existing legal framework for health care approach exacerbates the health care burden that Orleans and Jefferson Parishes must shoulder. The immigrant babies of New Orleans are American citizens. More important, they are human beings. Whatever the failings of the legal and health care systems before Katrina, those systems have a renewed opportunity -- and, indeed, a significant obligation -- to serve the most vulnerable populations of greater New Orleans.

Sunday, December 10, 2006

The case for accent Anglophobia

If ever Americans needed a reason to redirect their traditional disdain of the French across the English Channel, Sarah Lyall of the New York Times unwittingly provides one:
Cruel BritanniaWhether Britons are objectively cleverer and more amusing than Americans, or whether they just sound that way, is one of the deep mysteries of British life . . . . Britons seem to have the advantage of accent: their exotic pronunciation can make even dubious observation sound like unimpeachable truth. They are also experts at the art of speaking coherently and with authority on topics they know little or nothing about.
Mari MatsudaThe cultural primacy that Americans award to the English accent -- something so singularly offensive to me that I devoted a considerable portion of Poetic Justice to condemning "acute Anglophilia" -- curiously extends to the Scottish, Welsh, and Irish variants of English. (Australia and New Zealand get little accent-based credit; neither Crocodile Dundee nor Gallipolli warrants the cultural "bonus" awarded to, say, Chariots of Fire or Brideshead Revisited.) Mari Matsuda was right: accent discrimination is both real and nasty; the British Isles get the big benefit, with bonus points for "charm" awarded to other accents of European provenance. Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L.J. 1329 (1991).

I hasten to add, of course, that denigrating English and faux-English accents isn't the solution. Nor is this a terribly pressing problem. But it is annoying. No other country makes us feel bad about ourselves simply by talking. Ya basta. Perhaps the continued emergence of Spanish in ordinary American life will help undermine the curious hegemony of English, Scottish, Welsh, and Irish accents in the United States. Ojalá.

Accent-based Anglophilia is a self-inflicted national disease. The cure is within our control. Fellow Americans, do something patriotic. The next time someone proclaims in some sort of Anglophilic accent, "Well, I'm not an expert but . . . ," take that person at his word. Listen to someone else who knows what she is talking about, even if -- and perhaps especially if -- the voice of real expertise echoes the language of the streets of Brooklyn, Boston, Philadelphia, Biloxi, Hong Kong, or Guadalajara.
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