Friday, May 30, 2008

Law among the ruins

King Cophetua and the maidLaw Among the Ruins
Love among the ruins
Two paintings by Sir Edward Burne-Jones. Left: King Cophetua and the Beggar Maid (1884). Right: Love Among the Ruins (1893-94).

Herewith a new paper, Law Among the Ruins:
Hurricane Katrina broke America's collective heart. No previous natural disaster in the nation's history inflicted a grimmer toll. New Orleans all but sank when its levees failed and the resulting storm surge drowned much of the city and many of its feeblest residents. Katrina exposed flaws in virtually every aspect of disaster management at every level of government. The magnitude and senselessness of the loss indicted American society for its callous disregard of social vulnerability.

There is no such thing as a natural disaster. Understanding the interplay of environmental events with social conditions holds the key to the optimal application of legal tools for preventing, mitigating, and remedying natural tragedies — the grand social exercise called law among the ruins.
For further information, see the original Jurisdynamics post.

Thursday, May 29, 2008

Dealing with the Polar Bear

Polar bearThere has been a lot of hoopla and controversy focused on the Fish and Wildlife Service's (FWS) recent listing of the polar bear as a threatened species under the Endangered Species Act (ESA). The FWS is taking flak from all sides. Alaska, Canada, and many US industries argue that the agency used insufficient science to designate the bear as threatened, and that the listing will bring doom and gloom to our economies. Environmental groups argue the polar bear should have been listed as endangered, a more dire ESA designation, and that the agency should be clamping down on greenhouse gas (GHG) emissions that are causing the polar bear's decline.

In an article published in the Boston University Law Review a couple of months before the listing decision, I suggested that the agency do exactly what it did. The agency, of course, can argue its own case, but here are my three reasons why I believe it made the right move:

1. The Listing. Regardless of population numbers, industry has it wrong to say that the bear is not facing potential threats to its survival. If present trends are extrapolated, the species is in trouble. On the other hand, the agency is not required to extrapolate only one scenario. After all, the real problem for the polar bear is human political will--lack of it. But it seems two-faced for environmental groups to argue that legal measures are needed to alter GHG emission trends but that FWS cannot anticipate that possibility. Designating the species as threatened, but not yet endangered, fulfills the precautionary purpose of the threatened category. It's in the ESA for a reason, and the polar bear is a perfect case for its application.

2. Greenhouse Gases. One advantage of the threatened designation is that the ESA allows FWS to tailor protective measures for threatened species, whereas the full weight of the ESA's regulatory anvil lands when a species is designated as endangered. The concern is over how the ESA would treat GHG emissions were the polar bear listed as endangered. To suggest that the ESA is the way to accomplish a cogent, rational GHG policy is nothing short of ludicrous. As a practical matter, FWS and its ESA ocean species twin, the National Marine Fisheries Service (NMFS), have absolutely no capacity or expertise to regulate GHG emissions from industry or other sources. They are mainly habitat protection agencies, not pollution control agencies. More to the point, as a legal matter there is no principled way to identify which molecules of GHGs are harming the polar bear. Why would a coal-fired power plant in Kansas be the culprit, but not agriculture in California? If any source of GHGs is harming or jeopardizing the polar bear under the ESA, all sources are legally to blame. How would the agency choose which sources to go after without opening up a huge can of legal worms like this? Listing the polar bear as threatened avoided this problem in large part, and the agency has stated it will not pursue GHG emissions in contexts where the threatened designation nonetheless requires the agency to exercise its regulatory authority. That was the right position to take. Congress needs to belly up to the climate change bar and develop meaningful GHG legislation, not leave it to FWS to try to jam the huge square peg of GHG emissions into the small round hole of the ESA.

3. Helping Climate-Threatened Species. The polar bear is just one of the first species listed under the ESA based on climate change (NMFS had previously listed several coral species), but it won't be the last. FWS and NMFS should be focusing on what they do best--protect habitat. Many climate-threatened species can be helped along through habitat protection measures, given a bridge to what we hope will be a stabilized, albeit different, climate regime of the future. FWS and NMFS should focus their resources on this important component of our climate change policy.


Wednesday, May 28, 2008

Remember the quagga

Olivia Judson, Musings inspired by a quagga, The New York Times: The Wild Side blog (May 27, 2008)Olivia Judson

The hall is hushed, like a church. No one else is here. The only sound is the clicking of the heels of my shoes. I walk up and down, looking at the animals. They make no noise, for they are dead.

Franz Roubal, The Extermination of the Quagga. Oil on canvas, 1931
Many of them are also gone. Like the quagga, a kind of zebra from southern Africa, which was hunted to extinction in the 19th century. It stares at me from behind glass. I stare back. It has a zebra’s face and neck, but lacks stripes on its torso, which is a dusky gray. Zookeepers said that the quagga was more docile than other zebras; but even in zoos there are none today.

A few glass cases later, I come to the O’ahu O’o’, a small, pretty bird from the forests of the Hawaiian island of O’ahu. A living specimen has not been seen since 1837. I pause to wonder about its mating display. Further on, there’s the desert bandicoot, a tiny creature with huge ears and kangaroo feet that had vanished from Australia by 1907. And now I’m gazing at the dark flying fox, a fruit bat from the Indian Ocean islands of Mauritius and Réunion. In the 1730s it was so abundant it was considered for commercial exploitation (the making of oil); by 1880 it had gone.

Grande Galerie de l'Évolution, Muséum National d'Histoire Naturelle, Paris
Here, at the natural history museum in Paris, in the hall of the endangered and the recently extinct, the vanishing and the vanished, it’s poignant to see these creatures. To put a few faces to the names, to visit a handful of representatives from the dreary and numbing statistics of forests felled and oceans over-fished. . . .

Literary Warrant [30]

What has come to the fore — at least in the West — is the dream of total communication itself. Could anything be more desirable and innocent than the superconductivity of electronic media as they arouse the illusion of complete transparency and universal access? In the revolution of the Information Age, openness, communicability, transparency, have become slogans as inspiring as Kant's "Dare to know" used to be. Or his famous precept, in The Critique of Judgment, on a "regard to universal communicability," which he describes as an original social contract "dictated by humanity itself." We begin to believe in a "society of communication," in which the medium is the message, and it tricks us into merging truth and transmissibility.

Plenty here to communicate.
  • Peter Backlund, Anthony Janetos & David Schimel, U.S. Climate Change Science Program & the Subcommittee on Global Change Research, The Effects of Climate Change on Agriculture, Land Resources, Water Resources, and Biodiversity in the United States (Final Report, Synthesis and Assessment Product 4.3) (2008)

    "There is robust scientific consensus that human-induced climate change is occurring. Records of temperature and precipitation in the United States show trends consistent with the current state of global-scale understanding and observations of change. Observations also show that climate change is currently impacting the nation’s ecosystems and services in significant ways, and those alterations are very likely to accelerate in the future, in some cases dramatically. Current observational capabilities are considered inadequate to fully understand and address the future scope and rate of change in all ecological sectors. Additionally, the complex interactions between change agents such as climate, land use alteration, and species invasion create dynamics that confound simple causal relationships and will severely complicate the development and assessment of mitigation and adaptation strategies."—Abstract.

  • beSpacific, New EIA Reports: Alternatives to Traditional Transportation Fuels, Energy Consumption, U.S. Carbon Dioxide Emissions (May 21, 2008)

    A beSpacifc enumeration of recent reports covering alternative transportation fuels, renewable energy consumption, historical residential buildings, U.S. carbon dioxide emissions, and a data series on residential energy consumption and expenditures for the two decades prior to 2001.

  • beSpacific, Oversight Cmte Releases Documents Regarding the Environmental Protection Agency's California Emissions Waiver (May 19, 2008)

    "New documents and testimony obtained by the Committee show that EPA career staff unanimously supported granting California’s request for a waiver to enforce its greenhouse gas emissions standards for cars and trucks. EPA Administrator Stephen Johnson also supported granting the petition, at least in part, until he communicated with the White House."—United States House of Representatives, Committee on Oversight and Government Reform.
Read the rest of this post . . .
  • Brookings-Bern Project on Internal Displacement, Human Rights and Natural Disasters: Operational Guidelines and Field Manual on Human Rights Protection in Situations of Natural Disaster (Pilot version) (March 2008)

    "To promote and facilitate a rights-based approach to disaster relief, the Inter-Agency Standing Committee (IASC) adopted Operational Guidelines on Protecting Persons in Natural Disasters in June 2006. This Pilot Manual has been drafted to accompany the Operational Guidelines. It intends to help people in the field to understand the human rights dimensions of their work in disaster response while giving them practical examples and operational steps about how some of these seemingly abstract concepts may be implemented."—Foreword.

  • H. Sterling Burnett & D. Sean Shurtleff, National Center for Policy Analysis (NCPA), Capping CO2 Emissions, Boosting Energy Costs (Brief Analysis no. 617) (May 14, 2008)

    "Bills recently introduced in Congress would control emissions through cap-and-trade schemes. They would place an upper limit, or cap, on the overall level of greenhouse gas emissions, and then distribute or sell to companies or industries emissions credits—rights to emit specific amounts of greenhouse gases. The credits could then be sold in a greenhouse gas market. Companies capable of cutting emissions relatively cheaply or making deeper emission reductions than required could sell their excess emission allowances to companies unable to meet their goals. The idea is that industries would find the most efficient ways to reach the desired reductions. The Congressional Budget Office (CBO) says the market value of emissions allowances (in 2007 dollars) could reach $50 billion to $300 billion per year by 2020, depending on the scheme adopted.

    "However, the cap-and-trade proposals unveiled so far would harm the U.S. economy, disproportionately hurt the poor and fail to produce the environmental benefits promised by proponents."

  • Karan Capoor, Sustainable Development Operations & Philippe Ambrosi, Climate Change Team, World Bank, State and Trends of the Carbon Market 2008 (May 2008)

    "The report’s data shows that the global carbon market doubled or tripled in value for all segments, except for projects in developing countries which saw a leveling off of market volumes transacted under the Clean Development Mechanisms (CDM)—from 537 million tons of carbon dioxide equivalent (MtCO2e) in 2006 to 551 MtCO2e in 2007. The report’s analysis cautions that market momentum may be at a crossroads for many developing countries just as they are beginning to reap the benefits of carbon finance and are stepping forward to show that they are making efforts to mitigate climate change through advancing clean energy technology. The report shows that the CDM is delivering on clean energy—energy efficiency and renewable energy accounted for nearly two-thirds of the transacted volumes in the project-based market."—Press release no. 2008/305/SDN (May 7, 2008)

  • Michael D. Christian et al., Definitive Care for the Critically Ill During a Disaster: Current Capabilities and Limitations CHEST, v.133, no.5 (May 2008)

    "In the twentieth century, rarely have mass casualty events yielded hundreds or thousands of critically ill patients requiring definitive critical care. However, future catastrophic natural disasters, epidemics or pandemics, nuclear device detonations, or large chemical exposures may change usual disaster epidemiology and require a large critical care response. This article reviews the existing state of emergency preparedness for mass critical illness and presents an analysis of limitations to support the suggestions of the Task Force on Mass Casualty Critical Care, which are presented in subsequent articles. Baseline shortages of specialized resources such as critical care staff, medical supplies, and treatment spaces are likely to limit the number of critically ill victims who can receive life-sustaining interventions. The deficiency in critical care surge capacity is exacerbated by lack of a sufficient framework to integrate critical care within the overall institutional response and coordination of critical care across local institutions and broader geographic areas."—Abstract.

  • Climate Counts, Company Scorecard (2008)

    "Developed by Climate Counts with leading climate experts in business, academics, and advocacy, the Scorecard is a tool that your business or organization can use to continually self-audit your progress in taking climate change seriously. More broadly, you can use the Scorecard to influence your supply chain to embody your own organization's climate commitment."

  • Climate Registry, General Reporting Protocol (Ver. 1.1) (May 2008)

    "The Climate Registry is a nonprofit partnership developing an accurate, complete, consistent and transparent greenhouse gas emissions measurement protocol that is capable of supporting voluntary and mandatory greenhouse gas emission reporting policies for its Members and Reporters. It will provide a verified set of greenhouse gas emissions data from its Reporters supported by a robust accounting and verification infrastructure."

  • Liese Coulter, Pep Canadell & Shobhakar Dhakal, Global Carbon Project (GCP), Carbon Reductions and Offsets: A GCP Report for the ESSP (GCP Report no. 6) (July 15, 2007)

    "Voluntary carbon offsets are most beneficial if the purchase of offsets is preceded by the implementation of measures to reduce or avoid emissions.

    "While there are currently a number of competing standards for voluntary offsets with somewhat different criteria, verification has proven to be a step in the offset process that cannot be missed. The early open-ended and innovative carbon offsets were developed independently and initiated the market. Many of these providers are contributing their experience to the new standards, which foster maturity and balance through agreed measures and milestones.

    "As with any investment, financial support for offsets has broader implications for communities, ecosystems and development than the initial purpose intended. Credible carbon offsets must yield the promised level of emission reduction as a primary requirement. There are real economic, social and environmental benefits to be considered when selecting among credible projects, based on additional sustainable outcomes reflecting the values of individuals and organisations.

    "Carbon offset projects also allow developed nations to direct funding to less developed countries, which have limited capacity to deal with the most immediate climate change effects, yet shoulder the cost of implementing new low-carbon technologies."—Executive Summary.

  • James Hamilton, CCH Principal Analyst, Food, Conservation and Energy Act of 2008 Removes Enron Loophole and Reforms Electronic Energy Markets (2008)

    "A measure reauthorizing the CFTC and closing the Enron loophole is included in the massive Farm Bill that has been reported out of a House-Senate conference, passed by Congress, and awaits presidential action. Provisions in the Food, Conservation and Energy Act of 2008 (HR 2419) would end the Enron-inspired exemption from federal oversight now provided to electronic energy trading markets set up for large traders. It will ensure the ability of the CFTC to police all U.S. energy exchanges to prevent price manipulation and excessive speculation. These bipartisan provisions would give the CFTC the ability to scrutinize these transactions in energy commodities and prosecute traders that are manipulating energy prices. The House passed the bill by a 318-106 vote; the Senate vote was 81-15."—Introduction.

  • Intergovernmental Panel on Climate Change (IPCC), IPCC Scoping Meeting on Renewable Energy Sources: Proceedings (January 20-25, 2008)

    "The document, edited by Olav Hohmeyer and Tom Trittin, includes articles by scholars in the area, presented at the meeting held in January." Topics include renewable energy, biomass, solar energy, hydropower, investment, and more.

  • K.L. Kimbrough et al., National Oceanic and Atmospheric Administration (NOAA), An Assessment of Two Decades of Contaminant Monitoring in the Nation's Coastal Zone (NOAA National Status & Trends, Mussell Watch Report) (NOAA Technical Memorandum NOS NCCOS 74) (2008)

    "Information found in this report covers the years 1986 through 2005. Mussel Watch began monitoring a suite of trace metals and organic contaminants such as DDT, PCBs and PAHs. Through time additional chemicals were added, and today approximately 140 analytes are monitored. The Mussel Watch Program is the longest running estuarine and coastal pollutant monitoring effort conducted in the United States that is national in scope each year. Hundreds of scientific journal articles and technical reports based on Mussel Watch data have been written; however, this report is the first that presents local, regional and national findings across all years in a Quick Reference format, suitable for use by policy makers, scientists, resource managers and the general public."—Executive Summary.

  • Thomas R. Knutson et al., Simulated Reduction in Atlantic Hurricane Frequency under Twenty-First-Century Warming Conditions, Nature Geoscience (letter) (May 18, 2008)

    "Increasing sea surface temperatures in the tropical Atlantic Ocean and measures of Atlantic hurricane activity have been reported to be strongly correlated since at least 1950, raising concerns that future greenhouse-gas-induced warming could lead to pronounced increases in hurricane activity. Models that explicitly simulate hurricanes are needed to study the influence of warming ocean temperatures on Atlantic hurricane activity, complementing empirical approaches. Our regional climate model of the Atlantic basin reproduces the observed rise in hurricane counts between 1980 and 2006, along with much of the interannual variability, when forced with observed sea surface temperatures and atmospheric conditions. Here we assess, in our model system, the changes in large-scale climate that are projected to occur by the end of the twenty-first century by an ensemble of global climate models, and
    find that Atlantic hurricane and tropical storm frequencies are reduced. At the same time, near-storm rainfall rates increase substantially. Our results do not support the notion of large increasing trends in either tropical storm or hurricane frequency driven by increases in atmospheric greenhouse-gas concentrations."—Abstract.

  • Law Librarian Blog, WILD Foundation's Handbook on International Wilderness Law and Policy (May 12, 2008)

    "A Handbook on International Wilderness Law and Policy, published by The WILD Foundation and Fulcrum Publishing, is the first comprehensive guide to wilderness laws and policies around the world. It provides a detailed "how-to" guide for conservation professionals interested in developing new wilderness laws or policies in their countries; and also provides the most current information to practitioners in countries where wilderness laws and policies are already in place, but who are interested in learning from approaches and experiences in other countries. Included in the book are case studies from 12 countries and one indigenous group as well as a matrix comparing different wilderness definitions around the world."—Book description.

  • Michael F. Martin, Analyst in Asian Trade and Finance, Foreign Affairs, Defense, and Trade Division & Rhoda Margesson, Specialist in International Humanitarian Policy, Foreign Affairs, Defense, and Trade Division, Congressional Research Service (CRS), Cyclone Nargis and Burma’s Constitutional Referendum (CRS Report for Congress Order Code RL34481) (May 9, 2008)

    "Even before Cyclone Nargis struck, the junta was already facing a highly controversial referendum on a proposed constitution scheduled for May 10, 2008 that could shape U.S. and other countries’ policies toward Burma. As a consequence, the evolution and implications of the humanitarian crisis are inextricably linked to Burma’s political situation and its relations with the international community. In a widely criticized move, although the military junta decided to postpone the vote for two weeks in some of the more damaged areas of Burma, it indicates it still intends to hold the constitutional referendum in most of Burma on May 10, 2008. Critics have called for the cancellation or postponement of the vote for all of Burma."—Summary.

  • James E. McCarthy, Specialist in Environmental Policy, Resources, Science, and Industry Division, Congressional Research Service (CRS), Revising the National Ambient Air Quality Standard for Lead (CRS Report for Congress Order Code RL34479) (May 7, 2008)

    "The Administrator of the Environmental Protection Agency (EPA), under a court order to review the National Ambient Air Quality Standard (NAAQS) for lead, proposed to revise the standard on May 1, 2008, reducing it from 1.5 micrograms per cubic meter
    (μg/m3) to within the range of 0.10 to 0.30 μg/m3. The proposal’s publication in the Federal Register will begin a 60-day public comment period. The agency must promulgate a final standard by September 15, 2008."—Summary.

  • National Earthquake Hazards Reduction Program (NEHRP), Strategic Plan for the National Earthquake Hazards Reduction Program Fiscal Years 2008-2012 (Draft for Public Review and Comment) (April 2008)

    "This Strategic Plan for the National Earthquake Hazards Reduction Program (NEHRP) for Fiscal Years 2008-2012 is submitted to Congress by the Interagency Coordinating Committee (ICC) of NEHRP, as required by the Earthquake Hazards Reduction Act of 1977 (Public Law 95-124, 42 U.S.C. 7701 et. seq.), as amended by Public Law 108-360.

    The Plan outlines a cooperative program of earthquake monitoring, research, implementation, education, and outreach activities performed by the NEHRP agencies. These agencies are:

    • the Federal Emergency Management Agency;
    • the National Institute of Standards and Technology, the NEHRP lead agency;
    • the National Science Foundation; and,
    • the U.S. Geological Survey."
    —Executive Summary.

  • National Oceanic and Atmospheric Administration (NOAA), NOAA Predicts Near Normal or Above Normal Atlantic Hurricane Season: As With Any Season, Preparation is Essential (May 22, 2008)

    "NOAA’s Climate Prediction Center today announced that projected climate conditions point to a near normal or above normal hurricane season in the Atlantic Basin this year. The prediction was issued at a news conference called to urge residents in vulnerable areas to be fully prepared for the onset of hurricane season, which begins June 1."—Press release.

  • Office of the Federal Environmental Executive, White House Task Force on Waste Prevention and Recycling, Leading by Example: A Report to the President on Federal Environmental and Energy Management (2004-2006) (October 2007)

    "This 2007 report highlights accomplishments in the areas of energy efficiency, renewable energy, waste reduction and recycling, high performance buildings, environmentally smart procurement, electronics stewardship, and fleet management. The report also highlights advancement in the area of environmental management system implementation, and how that framework is being used to maximize efforts in the practice areas."—Preface.

  • Peter R. Orszag, Director, Congressional Budget Office (CBO), Containing the Cost of a Cap-and-Trade Program for Carbon Dioxide Emissions (Testimony before the Committee on Energy and Natural Resources, United States Senate) (May 20, 2008)

    "The cost of meeting an emission target with a cap-and-trade program could be reduced, potentially quite substantially, by providing firms flexibility in the timing of their efforts to reduce emissions. In particular, the most cost-effective cap-and-trade design would encourage firms to make greater reductions when the cost of doing so was low and would allow them leeway to lessen their efforts when the cost was high. Providing firms with such flexibility could also prevent large fluctuations in the price of allowances that could be disruptive to the economy. The reduction in economic burden need not come at the cost of additional environmental risk: The flexibility to shift emission reductions across years could be designed to achieve any given cumulative reduction in emissions over the medium or long term."

  • Andrea Rossi & Yianna Lambrou, Food and Agriculture Organization of the United Nation (FAO), Gender and Equity Issues in Liquid Biofuels Production: Minimizing the Risks to Maximize the Opportunities (2008)

    "The production of liquid biofuels is rapidly increasing in developing countries, due mainly to the establishment of large-scale biofuel feedstock plantations1. This results in potential socio-economic benefits, particularly in terms of agricultural employment, as well as risks, which tend to be context-specific. This paper explores the potential gender-differentiated risks associated with the large-scale production of first-generation liquid biofuels in developing countries. The objective of this study is to engage in an in-depth discussion of some hypothetical risks and identify research and policy strategies to address them, in order to maximize the opportunities offered by biofuels production. A subsequent paper will explore the benefits of small-scale biofuels production for energy generation in rural areas."—Why Link Gender, Equity Issues and Liquid Biofuels Production?

  • Statistics Canada, Human Activity and the Environment: Climate Change in Canada (April 22, 2008)

    "Canada's emissions of greenhouse gases (GHGs), major contributors to climate change, rose 25% between 1990 and 2005. However, without increases in energy efficiency, the increase in emissions would have been even greater."

  • Strategic Studies Institute (SSI), Global Climate Change: National Security Implications, Carolyn Pumphrey ed. (May 2008)

    "On March 29-31, 2007, the Strategic Studies Institute and the Triangle Institute for Security Studies conducted a colloquium on 'Global Climate Change: National Security Implications' held in Chapel Hill, North Carolina. This volume is based on the proceedings of this conference. Chapter 1 addresses the growing historical awareness of the threat and outlines the science of climate-change. Chapters 2 and 3 focus on how climate change might affect human societies and the degree to which it might cause or exacerbate violence and conflict. Particular attention is paid to the implications for the security of the United States. Chapters 4 and 5 consider a variety of potential solutions, ranging from international diplomacy to the development of efficient technologies. Chapters 6 and 7 focus on the role of the U.S. Armed Forces."

  • United Nations Educational, Scientific, and Cultural Organization (UNESCO), Human Cloning: Ethical Issues (2d ed., updated) (2005)

    "While each nation must determine for its society the proper limits to set on cloning, much can be gained from discussion and reflection at the international level. Understandably, it has been decision-makers, scientists and bioethicists who have assumed a leading role in the discussions relating to cloning and the profound ethical questions that it poses for humanity. However, other bodies of opinion, including the public at large, also have a major stake in a wider ethical debate and they often wish to know more."—Koïchiro Matsuura, Director-General of UNESCO, Preface.

  • United States Department of Energy (DOE), 20% Wind Energy by 2030: Increasing Wind Energy’s Contribution to U.S. Electricity Supply (DOE/GO-102008-2567) (Prepublication version, May 2008)

    "The U.S Department of Energy (DOE) today released a first-of-its kind report that examines the technical feasibility of harnessing wind power to provide up to 20 percent of the nation’s total electricity needs by 2030. Entitled 20 Percent Wind Energy by 2030, the report identifies requirements to achieve this goal including reducing the cost of wind technologies, citing new transmission infrastructure, and enhancing domestic manufacturing capability. Most notably, the report identifies opportunities for 7.6 cumulative gigatons of CO2 to be avoided by 2030, saving 825 million metric tons in 2030 and every year thereafter if wind energy achieves 20 percent of the nation’s electricity mix. As part of President Bush’s Advanced Energy Initiative announced in 2006, clean, secure and sustainable wind energy has the potential to play an increasingly important role in the Bush Administration’s long-term energy strategy to make investments today to fundamentally change the way we power U.S. homes and businesses and to help reduce greenhouse gas emissions growth by 2025."—Press release (May 12, 2008)

  • United States Department of Energy (DOE), Energy Information Administration (EIA), Energy Market and Economic Impacts of S.2191, the Lieberman-Warner Climate Security Act of 2007, et al. (April 2008)

    "This report responds to a request from Senators Lieberman and Warner for an analysis of S. 2191, the Lieberman-Warner Climate Security Act of 2007. S. 2191 is a complex bill regulating emissions of greenhouse gases through market-based mechanisms, energy efficiency programs, and economic incentives. This analysis focuses on the impacts of the greenhouse gas cap-and-trade program established under Title I of S. 2191." The beSpacific post linked here includes other relevant EIA resources in addition to the S.2191 report.

  • United States Department of Energy (DOE), Energy Information Administration (EIA), U.S. Carbon Dioxide Emissions from Energy Sources 2007 Flash Estimate (May 2008)

    "The flash estimate is based on data published in the Energy Information Administration’s Monthly Energy Review (April 2008). These estimates are considered to be preliminary. More detailed estimates of Greenhouse Gas Emissions from all sources, energy and non-energy, will appear in the report Emissions of Greenhouse Gases in the United States, 2007, which is scheduled to be released in November 2008."

  • United States Department of Transportation (DOT), Pipeline and Hazardous Materials Safety Administration (PHMSA), Transport Canada (TC) & the Secretariat of Transport and Communications of Mexico (SCT), 2008 Emergency Response Guidebook: A Guidebook for First Responders During the Initial Phase of a Dangerous Goods/Hazardous Materials Transportation Incident (2008)

    "The Emergency Response Guidebook (ERG2008) was developed . . . for use by firefighters, police, and other emergency services personnel who may be the first to arrive at the scene of a transportation incident involving a hazardous material. It is primarily a guide to aid first responders in (1) quickly identifying the specific or generic classification of the material(s) involved in the incident, and (2) protecting themselves and the general public during this initial response phase of the incident. The ERG is updated every three to four years to accommodate new products and technology. The next version is scheduled for 2012."

  • United States Environmental Protection Agency (EPA), EPA's Report on the Environment 2008 (EPA/600/R-07/045F) (May 2008)

    "The U.S. Environmental Protection Agency issued the 2008 EPA Report on the Environment today, a document that provides the American people with information on trends in the condition of air, water, and land and related changes in human health in the United States.

    "In addition to national scale indicators, the ROE also provides data broken out by EPA Regions. This includes nearly 30 indicators for EPA Region 8, which includes the states of Colorado, Montana, North Dakota, South Dakota, Utah and Wyoming. Indicators presented include air pollutant emissions and concentrations, acid deposition, drinking water quality, land use patterns, population, fertilizer use, cardiovascular and pulmonary disease, forestland, fish populations, carbon storage, temperature and precipitation, and more."—Press release (May 20, 2008)

  • United States House of Representatives, Committee on Energy and Commerce, Getting the Most Greenhouse Gas Reductions for Our Money (White Paper) (May 2008)

    "One of the Committee's goals in designing a comprehensive climate change program is to achieve the necessary greenhouse gas reductions for the least cost and with the least economic disruption. Reducing greenhouse gas emissions will be an expensive proposition, but scientists tell us that not reducing emissions will leave future generations with serious problems that will cost even more to address. This White Paper discusses ways to keep costs as low as feasible while still achieving our environmental goals.

    The most important way to keep costs down is to establish a system that will achieve lowest-cost reductions. The climate change debate often focuses on the need for expensive measures. If the program is structured properly, however, significant reductions can be achieved by economically beneficial measures (i.e., measures with savings that exceed costs). In large part, these measures are improvements in energy efficiency and productivity."—Executive Summary.

  • United States House of Representatives, Committee on Homeland Security, Subcommittee on Emerging Threats, Cybersecurity, and Science and Technology, Implications of Cyber Vulnerabilities on the Resiliency and Security of the Electric Grid (May 21, 2008)

    "The Congress made FERC responsible for overseeing the reliability of the bulk power system, but it provided specific restrictions on the procedures to be used to develop and put into effect mandatory reliability standards. [Section 215 of the Federal Power Act] is an adequate basis to protect the bulk power system against most reliability threats, and for that reason I do not believe there is a need to amend section 215. However, I believe a different statutory mechanism is needed to protect the grid against cyber security threats, given the nature of these threats."—Testimony of the Honorable Joseph T. Kelliher, Chairman, Federal Energy Regulatory Commission.

  • World Wildlife Fund (WWF), Arctic Climate Impact Science: An Update Since ACIA (April 2008)

    "This report presents a wide-ranging review of arctic climate impact science published since the Arctic Climate Impact Assessment (ACIA) in 2005. It spans the width of subject areas, covering impacts on physical and biological systems, as well as on humanity. The report presents the scientific evidence for arctic climate change impacts in review sections, each of which targets a particular arctic system or cross-cutting arctic theme. A separate bullet-point section highlights what expert reviewers, authors, and editors rank as the most important findings."—Executive Summary.

  • Brent D. Yacobucci, Specialist in Energy and Environmental Policy, Resources, Science, and Industry Division, Congresssional Research Service (CRS), Biofuels Incentives: A Summary of Federal Programs (CRS Report for Congress Order Code RL33572) (Updated March 18, 2008)

    "Ethanol and biodiesel, the two most widely used biofuels, receive significant government support under [recent legislation] in the form of mandated fuel use, tax incentives, loan and grant programs, and certain regulatory requirements. The 18 programs and provisions listed in this report have been established over the past 27 years, and are administered by five separate agencies and departments: Environmental Protection Agency, U.S. Department of Agriculture, Department of Energy, Internal Revenue Service, and Customs and Border Protection. These programs target a variety of beneficiaries, including farmers and rural small businesses, biofuel producers, petroleum suppliers, and fuel marketers. Arguably, the most significant federal programs for biofuels have been tax credits for the production or sale of ethanol and biodiesel. However, with the establishment of the renewable fuels standard (RFS) under P.L. 109-58, Congress has mandated biofuels use; P.L. 110-140 significantly expanded that mandate. In the long term, the mandate may prove even more significant than tax incentives in promoting the use of these fuels."—Summary.

Tuesday, May 27, 2008

The detail of the pattern is movement

The detail of the pattern is movement . . . .

T.S. Eliot, Burnt Norton, Four Quartets (1943)

Herewith the concluding lines to Burnt Norton, the first of T.S. Eliot's Four Quartets:

  • The detail of the pattern is movement,
  • As in the figure of the ten stairs.
  • Desire itself is movement
  • Not in itself desirable;
  • Love is itself unmoving,
  • Only the cause and end of movement,
  • Timeless, and undesiring
  • Except in the aspect of time
  • Caught in the form of limitation
  • Between un-being and being.
  • Sudden in a shaft of sunlight
  • Even while the dust moves
  • There rises the hidden laughter
  • Of children in the foliage
  • Quick now, here, now, always —
  • Ridiculous the waste sad time
  • Stretching before and after.

A shaft of sunlight
Children in the foliage

Friday, May 23, 2008

Too cruel anywhere

As the 2008 presidential primaries wind to a close, Hillary Clinton invokes the assassination of Robert Kennedy as a reason not to end her campaign. In response to suggestions from reporters and Barack Obama's campaign that she should quit the race, Senator Clinton replied: "[H]istorically, that makes no sense. . . . We all remember Bobby Kennedy was assassinated in June in California."

Clinton versus TsongasIn fairness, Senator Clinton was referring to the historical fact that primary seasons have stretched into June. She had just described Bill Clinton's 1992 campaign, which also reached June and the California primary that proved so fateful for Robert Kennedy.

Nevertheless, Anne Kornblut of The Washington Post described Clinton's "choice of words" as "surprising," especially in the context of "a campaign in which voters have voiced concerns about the safety of the first African American front-runner in history" and in which "Clinton has already faced harsh criticism for allegedly exacerbating racial divisions."

Senator Clinton later clarified her statement:
Earlier today I was discussing the Democratic primary history and in the course of that discussion mentioned the campaigns that both my husband and Senator Kennedy waged in California in June 1992 and 1968 and I was referencing those to make the point that we have had nomination primary contests that go into June. That's a historic fact. The Kennedys have been much on my mind the last days because of Senator Kennedy and I regret that if my referencing that moment of trauma for our entire nation, and particularly for the Kennedy family was in any way offensive.
Lady Macbeth
John Singer Sargent, Ellen Terry as Lady Macbeth (1889)
Yes, this has been a campaign of many verbal missteps. From Hillary Clinton's appeal to "hard-working Americans, white Americans" to Barack Obama's irresistible attraction to the nickname, "Sweetie," it has been a long walk through a tight verbal minefield. And this is to say nothing of words such as bitter and cling. Perhaps the rhetoric of this campaign is so bitter precisely because so little of substance separates the candidates.

This latest episode came straight from Shakespeare's Macbeth (act II, scene 3). Senator Clinton, having been caught in her unfortunate invocation of Robert Kennedy's assassination, protests: "Woe, alas! / What, in our house?" To which the only proper response also comes from Macbeth:

Too cruel anywhere.


Brooklyn Bridge

Brooklyn Bridge
Brooklyn Bridge is 125 years old. To celebrate, Jurisdynamics presents Hart Crane's poetic tribute, To Brooklyn Bridge:

Hart Crane, To Brooklyn Bridge

  • How many dawns, chill from his rippling rest
  • The seagull's wings shall dip and pivot him,
  • Shedding white rings of tumult, building high
  • Over the chained bay waters Liberty —

  • Then, with inviolate curve, forsake our eyes
  • As apparitional as sails that cross
  • Some page of figures to be filed away;
  • — Till elevators drop us from our day . . .

  • I think of cinemas, panoramic sleights
  • With multitudes bent toward some flashing scene
  • Never disclosed, but hastened to again,
  • Foretold to other eyes on the same screen;

  • And Thee, across the harbor, silver-paced
  • As though the sun took step of thee, yet left
  • Some motion ever unspent in thy stride, —
  • Implicitly thy freedom staying thee!

  • Out of some subway scuttle, cell or loft
  • A bedlamite speeds to thy parapets,
  • Tilting there momently, shrill shirt ballooning,
  • A jest falls from the speechless caravan.

  • Down Wall, from girder into street noon leaks,
  • A rip-tooth of the sky's acetylene;
  • All afternoon the cloud-flown derricks turn . . .
  • Thy cables breathe the North Atlantic still.

  • And obscure as that heaven of the Jews,
  • Thy guerdon . . . Accolade thou dost bestow
  • Of anonymity time cannot raise:
  • Vibrant reprieve and pardon thou dost show.

  • O harp and altar, of the fury fused,
  • (How could mere toil align thy choiring strings!)
  • Terrific threshold of the prophet's pledge,
  • Prayer of pariah, and the lover's cry, —

  • Again the traffic lights that skim thy swift
  • Unfractioned idiom, immaculate sigh of stars,
  • Beading thy path — condense eternity:
  • And we have seen night lifted in thine arms.

  • Under thy shadow by the piers I waited;
  • Only in darkness is thy shadow clear.
  • The City's fiery parcels all undone,
  • Already snow submerges an iron year . . .

  • O Sleepless as the river under thee,
  • Vaulting the sea, the prairies' dreaming sod,
  • Unto us lowliest sometime sweep, descend
  • And of the curveship lend a myth to God.

Tuesday, May 20, 2008

The love song of the Delaware Court of Chancery

T.S. EliotBy way of Red Lion Reports, I've learned of The Love Song of the Delaware Court of Chancery. Written by Harvard law student David Kessler (un miglior fabbro), it is an awe-inspiring adaptation of T.S. Eliot's classic poem, The Love Song of J. Alfred Prufrock. Enjoy!

Let us rule then, you and I,
When there’s theft of corp’rate opportunity
Like a patient over-billed by doctors able;
Let us read through certain less well-researched briefs,
The nimbly wrought conceits
Of high-paid lawyers in nearby hotels
Who work so hard all day for corporate shells;
Days that follow, full of insipid argument
Of questionable intent
That lead some to such aggravating questions . . .
Oh, do not ask, “Why is it?”
Let us rule, and don’t inquisit!

In the court attorneys come and go
Talking of prices high and low.

. . .

And indeed there will be time
To wonder, “Why due care?” and, “Why due care?”
Time to cite Disney in Delaware,
With a weak spot for process seeming fair —
[They will say: “How his rules help business win!”]
My rules are right, laws see disloyalty as greater sin,
Not corp’rate course I most protest, with business judgments I begin —
[They will say: “But how can Michael Eisner win?”]
Why due care?
Surely bad faith is worst?
In opinions there is room
For decisions and omissions which the higher courts reverse.

. . .

Oh the securities exchanges and the SEC!
Fearful of false traders,
Awake . . . watchful . . . such castigators,
They ask for more, wise use of Rule 10b.
Should I, finding fraudulent devices,
Have the strength to force the moment to its crisis?
And though I don’t see full disclosure ‘fore the trade,
Though I have seen losses [heaped highly] pile up as on a platter,
I cannot stop it — I see no bad actor;
But I too have seen omissions with scienter,
I have seen manipulations by a corporation slicker.
Long or short, a trade was made.

And would it have been worth it, after all,
Before the suits, demands refused by SLCs,
Directors independent, Section one-forty-one (c)s,
Would it have made sense to file,
To have argued that demand was just futile,
To have tried so hard to heed Zapata’s call
To argue interests false or domination
To say: “I am plaintiff pure, for class unsaid,
Come here to sue for all, I shall sue for all” —
If one, junking a lawsuit never read,
Should say: “There is no one to sue at all.
There is no one, at all.”

. . .

I grow bold . . . I grow bold . . .
I shall write some rulings that help law unfold.

Shall I part with precedent? Do I dare to find a breach?
I shall don my robe in chambers, and hear attorneys screech.
I have heard Justices talking, each to each.

I do not think they will overrule me.

I have read their tortured case law now for days
On Revlon and on Unocal attack
Of mergers sound and mega-deals off track.

We have day-dreamed in the Court of Chancery
Of lawyers’ claims, both righteous and unsound
Till our clerks’ voices wake us, and we frown.

Monday, May 19, 2008

Law's double helix

“Beauty is truth, truth beauty,” ─ that is all
Ye know on earth, and all ye need to know.

John Keats
Ode on a Grecian Urn (1819)

The concluding couplet in John Keats's Ode on a Grecian Urn (1819) — “Beauty is truth, truth beauty,” — that is all / Ye know on earth, and all ye need to know. — is arguably the most famous pair of lines in Keats's body of work, perhaps in all of English poetry in the Romantic tradition. The suggestion that truth and beauty might be one has proved so seductive that mathematicians and physicists often rely on unproven links between truth, beauty, and symmetry to frame their hypotheses.

FermatKeats may have stated the unity of truth and beauty in memorable literary terms, but mathematics may be the discipline that relies most heavily on it. Often enough, though not invariably, the unity of truth and beauty holds. What is beautiful is true, and what is true in turn is beautiful. Exceptions do arise — the computer-assisted proof of the four-color theorem and Andrew Wiles's proof of Fermat's last theorem are salient examples of mathematical proofs that look more like rambling narratives or even telephone directories than odes.

Nevertheless, philosophers, poets, and physicists wax rhapsodic in lauding the points in intellectual space where truth achieves what Bertrand Russell called "a beauty cold and austere." Edna St. Vincent Millay echoed this sentiment when she wrote, "Euclid alone has looked on Beauty bare." According to the physicist Hermann Weyl, the best scientific work has “always tried to unite the true with the beautiful.” But when he “had to choose one or the other,” Weyl “usually chose the beautiful.”

How firmly does Keats's unity — the unity of truth and beauty — hold in law?

Read the rest of this post . . .True to the serendipitous way in which law itself arises, I stumbled unto what I believe to be the law's best description of Keats's unity in — of all things — a memoir described as a uniquely powerful first-personal account of science in action. In the opening pages of The Double Helix: A Personal Account of the Discovery of the Structure of DNA (1st ed. 1969; reprint 2001), James D. Watson explained how the quest for beauty and the quirks of human culture both bent the trajectory of the quest for the double helix:
Watson and Crick[S]cience seldom proceeds in the straightforward logical manner imagined by outsiders. Instead, its steps forward (and sometimes backward) are often very human events in which personalities and cultural traditions play major roles. To this end I have attempted to re-create my first impressions of the relevant events and personalities rather than present an assessment which takes into account the many facts I have learned since the structure was found. Although the latter approach might be more objective, it would fail to convey the spirit of an adventure characterized both by youthful arrogance and by the belief that the truth, once found, would be simple as well as pretty. Thus many of the comments may seem one-sided and unfair, but this is often the case in the incomplete and hurried way in which human beings frequently decide to like or dislike a new idea or acquaintance.
Law proceeds on terms somewhere between the extremes of Euclid's airtight Elements and the comprehensive computer-aided proof of the four-color theorem. As Francis Crick and James Watson discovered when they sought to unlock the structure of DNA, the quest for the social truth that law embodies may begin in "the belief that the truth, once found, would be simple as well as pretty." That gesture of "youthful arrogance," however, rarely if ever yields the truth on its own. No less than their scientific counterparts, lawyers follow an "incomplete and hurried" protocol by which they "frequently decide to like or dislike a new idea or acquaintance."

Grecian urnLike other outsiders, law students often envision the formation, interpretation, and enforcement of law as a straightforward, even logical process. They soon learn, as Oliver Wendell Holmes observed in the opening lines of The Common Law, that "[t]he life of the law has not been logic: it has been experience." Even as Watson acknowledged how science lurched "forward (and sometimes backward)" in response to "very human events in which personalities and cultural traditions play major roles," Holmes recognized that law does not so much observe syllogisms as reflect "[t]he felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow" citizens.

Two intertwined strands run through all law. One strand represents the cold mathematical logic that the LSAT purports to measure, the austere beauty of legal reason deduced without regard to the social circumstances in which law must be made, enforced, and lived. The other strand speaks in historical, even literary or lyrical terms. That manifestation of truth in law, as Holmes explained, "embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics." That is all you know in law, and all you need to know.

Sunday, May 18, 2008

The Double Helix

Watson and Crick
James Watson's memoir, The Double Helix: A Personal Account of the Discovery of the Structure of DNA (1st ed. 1969; reprint 2001), has been described by Sylvia Nasar as "unique in the annals of science writing." The Double Helix describes a "discovery . . . of a magnitude comparable, in terms of scientific and social significance, to the breakthroughs that led to the splitting of the atom and the invention of the computer." Perhaps even more remarkable, "[i]t is also a wonderfully readable human drama that lets nonscientists share some of the intellectual excitement, high emotion, and incredible suspense."

Watson's own words speak for themselves:
The Double Helix[S]cience seldom proceeds in the straightforward logical manner imagined by outsiders. Instead, its steps forward (and sometimes backward) are often very human events in which personalities and cultural traditions play major roles. To this end I have attempted to re-create my first impressions of the relevant events and personalities rather than present an assessment which takes into account the many facts I have learned since the structure was found. Although the latter approach might be more objective, it would fail to convey the spirit of an adventure characterized both by youthful arrogance and by the belief that the truth, once found, would be simple as well as pretty. Thus many of the comments may seem one-sided and unfair, but this is often the case in the incomplete and hurried way in which human beings frequently decide to like or dislike a new idea or acquaintance.

Friday, May 16, 2008

I've been delivered

The Wallflowers
I've been delivered
Breach (2000)

In many ways, this lyrically rich song is an anthem for Jurisdynamics. From the opening lines — nothing's hard as / getting free from places / I've already been — to the closing — I can't fix / something this complex / any more than I can build a roseI've been delivered expresses some of the core principles of complexity theory.

I could break free from the
wood of a coffin
if I need
But nothing's hard as
getting free from places
I've already been

I've been waste-deep
in the burning meadows
of my mind
In the engine
In cold December
shooting fire from the hose

Now turn off your lights
'cause I'm not coming home
'til I'm delivered for the first time

I was first-born to a parade
that follows in rows
down a narrow cold black river
faceless shadows
moving slow

I would move swift when
the sounds of a trumpet would blow
I've been the puppet
I've been the strings
I know the vacant face it brings

Now the bells of curfew
They may ring before I'm through
But soon
I'll be delivered for the first time

You might keep clean
in the back of an angel motorcade
It doesn't matter who walks in
you know, the joke is still the same
You'll just wake up
like a disposable lover
I've been gone
I've been remembered
I've been alive
I've been a ghost

So now, if downtown explodes
I'll still be on this road
'til I'm delivered for the first time
I have drawn blood
from the neckline
when vampires were in fashion
You know I'd even learn
to cut my throat
If I thought I could fit in

'Cause I, I once heard
that you gotta learn
how to blend in to this mess
Where nothing's hard
nothing's precious
and nothing's smooth or flawless

Now, no more amused
just screaming to be delivered
for the first time

Now I'm ten miles in the deep
and mighty blue sea
Looking back, towards a long white beach
burning up into yellow flames

And I just wave back
like a little boy up on a pony
in a show
'cause I can't fix
something this complex
any more than I can build a rose

So just keep on letting go
'cause I must be close
to being delivered for the first time

Now I'd rather bleed out
a long stream from being lonely
and feel blessed
Well than drown, laying face down
in a puddle of respect
I was once lost
in the corridors of the arena
in blindfolds
I've been the bull
I've been the whip
I just pulled down the matador

So now, turn on your lights
'cause I'm coming home
I've been delivered for the first time

Thursday, May 15, 2008

The wives and times of William O. Douglas

William O. DouglasA warm and welcome e-mail message from Thomas E. Baker showed the error of my ways. In The Mystery and the Mastery of the Judicial Power, 59 Mo. L. Rev. 281 (1994), I asserted that William O. Douglas is the only Supreme Court Justice ever to marry a law clerk. That assertion was wrong, and I apologize.

The research I performed to resolve Tom's question, however, revealed some fascinating details about the wives and times and Justice Douglas. I now share those details with the readers of Jurisdynamics and Ratio Juris.

1. A Sequel to Springtime, Time (August 16, 1963):

It was a lovely day in 1961, and in a springtime mood the students at Pennsylvania's little Allegheny College waited for their distinguished guest speaker, U.S. Supreme Court Justice William Orville Douglas. A slender, brown-haired Kappa Kappa Gamma named Joan Carol Martin was especially anxious. After all, Joan was a political science major, an honor student who was deeply interested in juridical philosophy—particularly as expounded by Justice Douglas. Introduced to Douglas by an Allegheny professor, Joan escorted him about the campus. She was duly impressed, and charmed.

The next year Joan titled her senior thesis "Testimonies and Concepts of William O. Douglas," and after graduation she headed for Washington. There, she called Douglas and asked for an appointment to see him. Joan was looking for work. Douglas, as it happened, needed someone to type notes for a book he was writing. Joan qualified and she got the job. . . .

Time magazine coverThat fall Douglas separated from his second wife and moved to a bachelor apartment. A precociously distinguished jurist and an outdoorsman of rare dedication, Douglas had in 1923 married Mildred Riddle, a girl he had met while both taught at Yakima, Wash., high school. Mildred worked to help him through Columbia University Law School, bore him a son and daughter. But after 30 years of marriage, in 1953, she divorced him, charging that he left her "abandoned and alone" while working and traveling "to remote places in the world."

The next year Douglas married Mercedes Hester Davidson, divorced wife of a former Assistant Secretary of the Interior. Mercedes had been his research assistant, even attended auto mechanics school to learn how to change tires and spark plugs on their faraway trips. But for all of that, something was amiss. Two weeks ago, Mercedes won an uncontested divorce on grounds of cruelty. Five days later, Bill Douglas, 64, and Joan Martin, 23, were married; the following day, Mercedes married her third husband, Washington Lawyer Robert B. Eichholz. . . .

For months, the rumor has persisted Washington that Douglas chatted with President Kennedy last spring, hinted that he might resign from the Supreme Court Douglas denies this — and there seems little likelihood that he would conceivably step down before Oct. 16, his 65th birthday, when he will be eligible to retire at his full salary of $35,000 a year for life.

Last week, while the Douglas newlyweds were honeymooning on Washington State's lonely Olympic Peninsula, Joan's mother reported that she had received some "nasty telephone calls about the marriage. Said she to newsmen: "I'd like to give this an aura of good taste. He is an extraordinary man, and I think my daughter is a very unusual girl. They are, neither of them, ordinary people."

2. September Song, Time (July 29, 1966)

"Oo, la, la!" exclaimed Oliver Wendell Holmes to a startled aide who was attending him in his study one wintry day. "Young man," explained Mr. Justice Holmes, then a redoubtable 93, "I was thinking about walking down the street with a pretty lady and holding her hand behind her husband's back." And oo, la, la, generally speaking, was Washington's reaction last week to news that one of Holmes's most libertarian successors on the Supreme Court, William O. Douglas, 67, had taken as his fourth bride blonde, blue-eyed Cathleen Heffernan, a 23-year-old senior at Portland's all-girl Marylhurst College.

Within hours of the week's first session, members of the House had introduced four resolutions calling for an investigation of the thrice-divorced Justice's "moral character." Kansas Republican Robert Dole charged that Douglas had not only used "bad judgment from a matrimonial standpoint, but also in a number of 5-to-4 decisions of the Supreme Court." Democrat Byron Rogers of Colorado suggested that the romantic Justice might be retired under a law allowing for the removal of a judge "permanently disabled from performing his duties."

Supreme Court in 1967The resolutions and half a dozen floor speeches probably were an embarrassment to Douglas, but were hardly likely to lead to an investigation, let alone the first successful impeachment of a Supreme Court Justice in the nation's history. Nor were they likely to persuade the ruggedly individualistic Douglas — who has served 27 years on the court — to repeat a half-serious offer to resign from the bench, tendered to President Kennedy after his second divorce in 1963. His first marriage, to Mildred Riddle, ended in 1953 after 30 years and two children; his second, to Divorcee Mercedes Hester Davidson, lasted nine years; his third, to Joan Carol Martin, 26, broke up last December after two years, four months.

On to Peking. Douglas met his latest, the boyishly bobbed Cathleen, at a party in Portland last summer, and on a return visit in December asked the host for "the name, telephone number and address of that terrific gal I met at your party." In May, he stopped in Portland again — to see Cathy and his dentist, "in that order of importance" — and later invited her to join a party at Prairie Lodge, his remote cabin in Gooseprairie, Wash., in the heart of the Cascade Mountains. Invited to a banquet in Los Angeles earlier this month, Douglas once again invited Cathy along, just in time for her to be stranded by the airline strike. Said Cathy: "I stayed over three days and I got married."

Back at Prairie Lodge last week, under the peaks of Baldy and Old Scab, Douglas and his bride appeared blissfully unconcerned by the headshaking on the Potomac. "We don't get much news around here," drawled Douglas. "On the short-wave radio we can listen to the broadcasts from the Bureau of Reclamation and Peking." The latter, at least, should be worth listening to if Peking approves the Justice's plans, sanctioned last week by the State Department, to visit Red China with Cathy this September.

3. David J. Garrow, The Tragedy of William O. Douglas, The Nation (April 14, 2003):

Douglas Wilderness
The William O. Douglas Wilderness
In 1961 Douglas began pursuing a young Allegheny College student, Joan Martin, who was writing her senior thesis on him, and once Martin moved to Washington the affair became public. "Other Justices at the time had mistresses," [said] Douglas's utterly loyal Court messenger, Harry Datcher . . . , "but they would employ them as secretaries or keep them away from the Court building. Douglas, though, did what he did in the open. He didn't give a damn what people thought of him."

A 1962-63 law clerk recalled Joan Martin once hiding in an office closet to avoid Mercedes, but the following summer the 64-year-old Douglas divorced Mercedes and married 23-year-old Joan. But Douglas's behavior toward women did not improve. One old Douglas friend remembered how Joan "just sat down and cried all night because he never paid any attention to her," and more than once Joan complained to a former Douglas clerk that "he beats me up all the time." Less than two years later Douglas dismissed Joan from his life, took up with an old Washington State girlfriend, Elena Leonardo, and then met a 22-year-old Oregon waitress, Cathleen Heffernan, who became his fourth wife in mid-1966.

The upshot: Douglas experienced the first, second, and third divorces by a sitting Supreme Court Justice.

Trouble in bear country

Wednesday, May 14, 2008

Sugar, sugar

Obama  Memorandum  Obama

Fellow members of the Barack Obama campaign, we're about to seal the deal. We just scored endorsements from NARAL and John Edwards. One little matter does warrant our attention:

In addition to bitter and cling, please remind Senator Obama to drop the word sweetie from his vocabulary:

Obama at a textile millOur candidate is the smoothest orator in the recent history of American politics. Hillary Clinton is usually the one who misspeaks. We're giving bloggers and newspapers too much ammunition. Especially when this is the second time he's called a woman sweetie on the campaign trail.

Striking sweetie from our candidate's vocabulary is an admittedly modest measure, but this is linguistic change we can believe in.


Sunday, May 11, 2008

Just do it: Obama's victory lap in Eugene, Orgeon

Barack in Eugene
Above: a brilliant piece of political photography by Bruce Ely of the Associated Press, published in connection with the Washington Post's coverage of Barack Obama's campaign stop in Eugene, Oregon.


Saturday, May 10, 2008

Almost heaven

West VirginiaNew River Gorge Bridge
State Capitol, Charleston, W. Va.
John Denver, Country Roads
Almost heaven, West Virginia
Blue Ridge Mountains
Shenandoah River —
Life is old there
Older than the trees
Younger than the mountains
Growing like a breeze

Country roads, take me home
To the place I belong
West Virginia, mountain mama
Take me home, country roads

All my memories gather round her
Miners' lady, stranger to blue water
Dark and dusty, painted on the sky
Misty taste of moonshine
Teardrops in my eye

Country roads, take me home
To the place I belong
West Virginia, mountain mama
Take me home, country roads

I hear her voice
In the morning hour she calls me
The radio reminds me of my home far away
And driving down the road I get a feeling
That I should have been home yesterday, yesterday

Country roads, take me home
To the place I belong
West Virginia, mountain mama
Take me home, country roads

Country roads, take me home
To the place I belong
West Virginia, mountain mama
Take me home, country roads
Take me home, now country roads
Take me home, now country roads

Friday, May 09, 2008

Hillary's last great hope

Hillary Clinton

From Hillary Clinton's explosive interview staking claim to a "broader base" among "hard-working Americans, white Americans":

West Virginia and Kentucky are the next battleground for swing, working-class voters. These are the people you have to win if you're a Democrat in sufficient numbers to actually win the election. Everybody knows that. And I think it's important that I won this group decisively in Texas, and Ohio, Pennsylvania, Indiana, and even North Carolina. We've got to appeal to those voters if we're going to win in November. . . .

[T]here was just an AP article posted that found how Sen. Obama's support among working, hard-working Americans, white Americans, is weakening again, and how . . . whites in both states who had not completed college were supporting me. And in independents I was running even with him and doing even better with Democratic-leaning independents. I have a much broader base to build a winning coalition on.

Herewith two additional images. Their relevance to this post is left as an exercise for the reader. If you remain befuddled, roll your mouse over each image, or click through:

James J. Jeffries, the Great White HopeGreat white shark


Thursday, May 08, 2008

The platypus genome

The platypus genome has been sequenced. Some of the cooler details:
  1. Sex determination. It has been known that platypuses have not one but five (!) pairs of sex chromosomes. Male platypuses exhibit an XYXYXYXYXY genotype. And those sex chromosomes bear some connection to the ZW sex determination system found in birds. But what the newly sequenced genome reveals is that the platypus's male-determining gene, the monotreme equivalent of primates' SRY gene, is not located on any of those five pairs of sex chromosomes. Instead, it resides on an altogether different chromosome, one with no apparent connection with sex determination.

  2. Platypus pugglesThe beginnings of a transition from oviparous to viviparous reproduction. Whereas some birds (such as chickens) have as many as three genes affecting the production of egg yolk protein, platypuses have just one. The platypus genome evidently exhibits some sort of transition from egg-laying, which requires the delivery of nutrition during incubation, toward providing more nutrition after hatching.

  3. Platypus milk. And that nutrition takes the form of milk, which female platypuses deliver without the benefit of nipples. Secreted from "milk patches" on the abdomen, platypus milk appears to be a modified version of a moisturizing fluid originally developed for keeping eggs from drying out during incubation. At least five distinct genes direct the progressively growth of nutritional complexity in platypus milk.

  4. Swimming platypusDetecting chemicals under water. Platypuses have an impressive arsenal of "vomeronasal" genes that help them detect pheromones under water. Platypuses can thereby detect mates and prey even as they close their eyes and nostrils while diving.

  5. Venom. Male platypuses deliver venom from spurs their rear legs. The only mammal to make venom, platypuses generate chemicals that are very similar to some snake venoms. Apparently these similarities are the product of evolutionary convergence rather than genetic descent. Although platypuses and snakes built venoms from the same starter molecule in their immune systems, they evolved venom independently and by different genetic routes.
PlatypusIf moving from (mono)treme dreams to 'treme genes leaves you hungry for more information on Ornithorhynchus anatinus, reread this old Jurisdynamics post, Monotremata.
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