Inspired by PlanetPlanet's feed reader and aggregator and by Six Apart's Project Comet initiative, the Jurisdynamics Network presents the Jurisdynamics Network Orbiter. The Orbiter aggregates the latest posts from all of the Jurisdynamics Network's weblogs. The posts are presented in reverse chronological order so that visitors can see the freshest discussions of law in the context of societal and technological change. The Orbiter even has its own RSS feed, which you are invited to download by clicking here: . We hope that you enjoy the Orbiter and will visit often.
The White House this week released the report, "Growing America’s Fuel." The report, created by President Obama’s Biofuels Interagency Working Group, "lays out a strategy to advance the development and commercialization of a sustainable biofuels industry to meet or exceed the nation’s biofuels targets."
I have been a critic of the use of conventional biofuels (i.e., corn-based ethanol) to satisfy the U.S. Renewable Fuel Standard (RFS), and unfortunately, this report does little to encourage optimism that our reliance on corn as our primary source of alternative fuel is going to change anytime soon.
Although the report espouses the need for, and support of, additional next-generation biofuels, the report also indicates support for expanded corn-based ethanol production. Noting that the current RFS “has effectively placed a 15 billion gallon cap on ethanol production from corn starch as part of a new 36 billion gallon target for 2022,” the report then states that “there are opportunities to develop new markets for corn-based ethanol that can provide improved economic stability, increased rural wealth and reduced use of petroleum based feedstocks.” Thus, the report appears to question the value of capping the use of corn-based ethanol to satisfy the RFS, while also encouraging expanding the market for such products. I am all for economic stability, increased rural wealth, and reduced use of petroleum, but I remain skeptical corn-based ethanol has a proper role in achieving those goals.
Beyond that, even in identifying problems related to ethanol production, the report is a cause for concern. The report argues “As more farms and forests are utilized for biofuels production, careful consideration of feedstock production practices and location of biomass conversion plants will be required to avoid serious impacts on existing food, feed, and fiber markets and the quality of natural resources upon which we all depend on for clean air and water.” This, it seems to me, has the analysis wrong.
The better report language would be: “Because feedstock production practices and location of biomass conversion plants could seriously impact existing food, feed, and fiber markets and the quality of natural resources upon which we all depend on for clean air and water, careful consideration of using more farms and forests for biofuels production is necessary.”
The Journal of Food Law & Policy just announced that it is seeking submissions for placement in the Spring 2010 issue, to be published in June 2010. This unanticipated need presents an opportunity for an author to place an article and see it in print in a very short period of time.
Articles may be submitted via email to foodlaw@uark.edu or mailed to:
Journal of Food Law and Policy University of Arkansas School of Law 107 Waterman Hall Fayetteville, AR 72701
This year marks the 17th anniversary of the Willem C. Vis International Commercial Arbitration Moot (The Moot.) The Moot takes place annually in the Spring in Vienna, Austria with participants from over 100 law schools hailing from civil and common law countries. The journey is not only a milestone for the student participants, but a bridge to international understanding through the rule of law. The Moot engages students in the art of effective advocacy, and conveys the important message that the adversarial process is not necessarily an arena for gladiators.
The stated goal of the Moot is "to foster the study of international commercial law and arbitration for the resolution of international business disputes through its application to a concrete problem of a client and to train law leaders of tomorrow in methods of alternative dispute resolution." (www.cisg.law.pace.edu/vis.html).
I was privileged to participate in the Ninth Moot in 2001-2002, while a student at the University of Pittsburgh School of Law. One year later, I served as coach to a group of students at the Meiji Gakuin University in Tokyo, Japan. Both events galvanized the premise that law schools in the United States need to engage students in this level of competition to enhance legal education. Specifically, participation in the Moot will bolster legal writing and advocacy skills. The message is being heard as each year, more law schools are discovering the Moot. Some law schools in the United States and Europe have incorporated the Moot into the curriculum. For example, Touro Law School and the University of Pittsburgh have collaborated with schools in Central and Eastern Europe to offer a summer program structured around the Moot. (www.law.pitt.edu/academics/cile/jdprogram/studyabroad).
In the area of advocacy, preparation for the Moot will be extremely beneficial, even to first year law students. In this critical area, the Moot provides students with skills in the art of persuasion. Not only do particpants learn to write persuasive arguments, but they develop, and hone the nuances of rhetoric on the international stage. The Moot is organized around a contractual problem, which asks students to analyze the articles of the United Nations Convention on the International Sale of Goods (CISG) (www.uncitral.org). As such, students are exposed to the work of the United Nations Commission on International Trade Law, and acquire the added bonus of exposure to comparative legal systems. Specifically, for U.S. law students comparing the rules of Article 2 of the UCC with the CISG is both challenging and exciting. As a result, participants in the Moot develop critical skills in international commercial law that even seasoned lawyers lack.
Moreover, the CISG is at the heart of the Moot. This treaty espouses the theory that economic rights are human rights. The treaty provides uniform rules governing certain aspects of the making and performance of everyday commercial contracts for the sale of goods. Article 7 of the CISG provides that "the adoption of uniform rules, which govern contracts for the international sale of goods should take into account the different social, economic and legal systems." The CISG was created to foster the development of international trade on the basis of equality and mutual benefit as an important element in promoting friendly relations among states. The CISG aims to promote international trade by removing legal barriers in international trade, and to unify the sales law of international trade.
Although the focus of the moot is commercial arbitration, the format of the Moot serves several pedagogical needs. Foremost among them is a focus on the representation of clients from diverse backgrounds and diverse legal systems. In this age of globalization and multiculturalism, the Moot provides ample opportunity for students' exposure to crucial interpersonal lawyering skills. Participation in the Moot exposes students to principles of fairness in international contracts, which will instill an awareness of multiculturalism and widen the lenses of their worldview. In addition, the Moot provides students with the opportunity for research and writing, oral adovacy and treaty interpretation.
Each year, the Moot problem focuses on issues of contract drafting, which helps students understand choice of law issues. In the practical context, students learn the importance of effective drafting. These issues allow students to grapple with civil and common law systems of procedure. Although the advocacy space is based primarily on arbitration principles, this forum provides participants with the rhetorical skills needed for effective advocacy, albeit in a non-confrontational and less adversarial manner. In addition, preparation for the Moot can bolster student confidence, and help prepare them for oral advocacy.
Finally, the tenets of multicultural lawyering form the bedrock of the CISG. As outlined in its preamble, the overarching goal of the CISG is to erase disparities in international trade. The CISG espouses the principles of effective lawyering through its emphasis on the use of simpler, clearer language in international contracts. According to Professor Harry Flechtner, the CISG seeks the "ommission of awesome relics through its push for a unified language in the drafting of international contracts." See John Honnold, Uniform Law for International Sales Under the 1980 United Nations Convention 30 (Harry Flechtner ed., 4th ed. 2009). This transformative capacity of the Vis Moot and the CISG to improve communication across cultures and transfer the rule of law around the globe will enhance the law school experience, and add value to the lawyering process for law students and practitioners.
What does it mean to be free? When many of us open up a new checking account, it is with the intention of doing business with that bank for a period of time. After all, I've not got my online banking set up to send up bill payments. I've ordered printed checks for when I need them. I've got my debit card. It is a hassle to switch banks and have to redo all this. So, it is important that banks disclose account fees at the outset.
So might have believed customers over at Citibank who opened checking accounts advertised as free. Despite the free-hook, Citibank announced that it would begin imposing account fees on these same customers. Apparently about 1 million free accounts were included. The Truth In Savings Act requires banks to disclose account fees. So, free means free. Moreover, one might expect the free status to last for some time. Not surprisingly then, New York Attorney General Andrew Cuomo's office complained about the Citibank fee increase. Today, Citibank announced that free will remain free, putting aside overdraft and other fees, for the time being. (See Citibank to Keep Free Checking).
As we've seen the federal government tackle credit, debit and gift cards, new attention is gearing up toward card network interchange fees. Interchange fees are the cost of using debit and credit cards charged to merchants for use of the network (Visa, Mastercard, etc.). The fees are about $.75 for every $100 spent and more than if the consumer uses the a debit card and enters their pin number. The GAO's November 2009 report on Rising Interchange Fees found the fees are posing a problem for merchants as they comprise a larger amount of the revenue earned with some merchants complaining that the benefit of cards such as lower labor costs and increased sales are outstripped by the cost of the interchange fees. The fees are enough that some discount retailers, like Costco, don't accept credit cards, but will allow the debit card usage. Of course, retailers cannot possibly refuse to accept VISA cards, for instance, so the fees are here to stay. While the fees may be here to stay, I suspect that the size of the fees will cause them to come under regulatory supervision at some point in the not so distant future. That seems to be the common result when greed and overreaching get to a point that complaint is loud enough. With small business owners trying to keep their businesses afloat during a recession, it is easy to see why there is more compaint about the size of interchange fees.
The New York Times just did a nice video (and article) giving a pretty good overview of the tension between the networks, merchants and ultimately consumer interests.
The LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law offers the nation's only advanced LL.M. degree in either agricultural law or food law & policy.
Agricultural Law can be defined as "the study of the network of laws and policies that apply to the production, marketing, and sale of agricultural products, i.e., the food we eat, the natural fibers we wear, and increasingly, the bio-fuels that run our vehicles." Because of the special nature of producing living products to meet society's critical need for food, a variety of special laws make up the core of agricultural law studies - laws that often are often quite different than the law studied in basic law courses. The topic What is Agricultural Law was the subject of a previous post reporting on a panel discussion at the American Association of Law Schools annual meeting.
While food law is essentially a big part of agricultural law, recent interest in our food system has greatly expanded legal interest in food labeling, food safety, and questions regarding the sustainability of our food system. We study all of these issues from the perspective of the farmer, the consumer, and whoever may be involved in between.
We have already admitted a number of candidates for Fall 2010. We still have places available and will be able to offer merit-based graduate assistantships to a limited number of those admitted. These assistantships provide a tuition waiver plus a small stipend.
Our nine month course of study attracts attorneys from throughout the United States and from abroad. While many of our students are recent law school graduates, others enter the program as experienced practitioners. Our alumni are among the leaders in the agricultural law and food law communities.
Interested attorneys and third year law students are encouraged to apply to the Program as soon as possible. Visit our website for more information and to obtain an application form. You are welcome to send me an e-mail at sas.susan@gmail.com with questions. And, you can call the LL.M. Program Office at 479-575-3706.
Please note: Our prior posts, in order, are here and here.
In addition to justifying a principle of political obligation with a rational moral principle of reciprocity in which we have a duty to treat others as equals, Hobbes provides us with a moral argument for the de jure authority of a commonwealth committed to the provision of security and protection. The third law of nature being the (natural) duty to keep covenants, our acceptance of this provision amounts to a tacit covenant to obey the sovereign authority, and "if one has (tacitly) covenanted to obey the political authority of the commonwealth, than one has obligation to do so, since an obligation is just what one owes to another by covenant [elsewhere Lloyd explains Hobbes's distinction between a 'duty' and an 'obligation,' for the latter are by nature self-imposed, while natural duties are not]. The general argument is reminiscent of an earlier and similar one made by the personified Laws of Athens in Plato's Crito, at least inasmuch as the Laws remind Socrates that while he was always free to leave the city of his birth and upbringing, he remained within its borders, a beneficiary of the city's protection and promotion of "commodious living," specifically, Socrates is said to have been indebted to Athens for his life and education (I think the best analysis of the Crito remains Richard Kraut's Socrates and the State, 1984).
Apart from the failure of a state to live up to its raison d’être, the one categorical exemption to political obedience permits us to refuse obedience in those instances where we would be required to violate our duties to God. Here, once again, Hobbes is acknowledging the presence and power of transcendent interests which may be, and frequently are, pursued by people "at the expense not only of their material well-being, but even of their self-preservation." Hobbes perforce must speak to those with religious interests if he is to supply as many individuals as possible with a sufficient reason to adhere to his principle of political obligation. This was dictated, Lloyd explains, by Hobbes's reasonable
recognition that effective social order depends on compliance with the laws made by the political authority—that it depends on obedience of subjects—and that compliance is most effectively obtained when people can be persuaded that they have what they can see, in their own terms, as a sufficient reason for compliance.
Political authority cannot carry out its requisite functions (e.g., legislation, adjudication, taxation, and punishment) without, in the main, the uncoerced cooperation of the commonwealth's subjects. In today's terms, and in the spirit of Lon Fuller, we would say that the binding force of law must be something other than the fear of sanctions, indeed, there must be some sense, however inchoate from the perspective of philosophy or trivialized from the vantage point of legal positivism (as when Oliver Wendell Holmes mocked the idea that law is a 'brooding omnipresence in the sky'), that the law or legal system is morally legitimate. A reluctance to acknowledge the need for moral legitimacy may stem from what Nigel Simmonds, in Law as a Moral Idea (2007), has described as the difficulty we have in understanding the very nature of law, for "on the face of things, law seems to possess characteristics that cannot be combined within a single entity: law is an established social institution, but also a guiding ideal for such institutions, an apparatus of organized force, but also the antithesis of force; a product of authority, but also the source of any such authority." Be that as it may, the necessity of law's moral legitimacy is consistent with and no doubt connected to what Simmonds calls our "pre-theoretical outlook" (we might dignify this 'aspirational view of law embodied in our settled beliefs' by calling it a 'folk theory') which includes "the idea that governance by law is a lofty moral aspiration," a view Simmond's attempts to defend in his Kantian-like (or Platonic) argument that "law is in fact an intrinsically moral idea" or, put differently, "exhibits conceptually necessary connections with morality" (as Simmonds further notes, 'a demonstration that observance of the rule of law may at times, and to some extent, be serviceable for evil goals does nothing to negate law's status as an intrinsically moral ideal'). A failure to acknowledge or appreciate this connection leaves us with a largely instrumentalist conception of law (for an examination of the deleterious consequences of such an impoverished conception, see Brian Tamanaha's Law as Means to an End: Threat to the Rule of Law, 2006). And where does Hobbes's understanding of the nature of law fall out here? Well, for now we'll simply adopt a dogmatic tone and quote Lloyd's impeccable conclusion that "for Hobbes there can be no...deep separation of law and morals as marks the later positivist position." Hobbes well understood that compliance with the requirements of the rule of law is evidence of a commitment to maintain an intrinsically valuable form of moral association as incarnated in the state and enshrined in its rule of law. Much like Lon Fuller whom he cites in support, in Crimes Against Humanity: A Normative Account (2005), Larry May wants to carve out a morally "minimalist" space between legal positvism and a "robust" natural law theory, a space that forms the backdrop for his more than plausible contention that
Moral legitimacy is crucial for any type of law since the law's effectiveness is so closely linked with a person's sense that the law is legitimate and the corresponding sense of obligation that a person feels. Without this sense of the binding effect of the law, there is nothing of moral importance that motivates people to obey the law in the first place [we might imagine the fear of sanctions playing a default role for those failing to properly internalize this binding effect and its corresponding obligatoriness]. Law's effectiveness is dependent on the moral legitimacy of the law.
This would appear to be compatible with, if not identical to, what Hobbes believed, which means he would have also readily endorsed the remainder of May's argument, which claims that
it makes prudential good sense to link wide-scale acceptance to normative justification. For law to be effective, there must be such acceptance, but the acceptance is not what justifies the norms. Rather it is the moral legitimacy of law that both provides a justification for its enforcement and also creates wide-scale acceptance. There is a minimum moral or natural law content that law must display to be legitimate. This is what I am calling the 'moral legitimacy' of the law. The morality of law does not need to be robust for law to be legitimate. Here there is a set of moral principles, recognized in virtually every legal system, that makes a law worthy of being enforced. Such moral principles ultimately protect the inner normative core of law by guaranteeing that the law is, in some rudimentary way, fair.
If political authority hopes to secure general compliance from its subjects, it cannot simply rely on the threat of force, claimed Hobbes,
for the simple reason that in order for obedience to be reliably attainable by means of threat of force, it must be true that fear of death, wounds, or imprisonment (fear of the means of coercion available to political authority) must be the strongest motivating passion. But the existence of transcendent interests shows we cannot count on this passion (or, we might say, this interest in avoiding personal harm) to override all other passions and interests. More generally, the fear of personal harm (either 'artificially inflicted,' as in the case of punishment by the sovereign power, or 'naturally' consequent to the dissolution of any protective power, which disobedience might bring about) may not be sufficient to motivate people to obey their extant political authority, because that obedience may frustrate their realization of others of their interests (in, for instance, fulfilling their duties to God and to each other, securing the good of their loved ones, and so on), interests for the satisfaction of which they are willing to risk personal harm.
Hobbes therefore proceeds to proffer two new sorts of reason for fealty to sovereign political authority that speak to specifically religious types of transcendent interest; one from religious duty, and the other from an interest in salvation; here we'll speak only to the first of these transcendent (religious) interests. And because for Hobbes "the laws of morality—the laws of nature—are identical to the laws of God discernible by unaided natural reason," "a demonstration that his principle of political obligation is compatible with the realization of one's interest in fulfilling one's duty to God, will automatically show that the principle is compatible with one's interest in fulfilling one's moral duties." While we can't here wholly recapitulate Hobbes's methodical redescription of religious duty as a transcendent interest, a critical component of this process involves recognizing that, in the end, so to speak, "what we believe must be a function of whom we believe," if only because, for example, "the Scriptures do not obviously yield a single, determinate body of doctrine," and religious truth is in no way contingent upon the idiosyncracies of motley private judgment. At least this is the case for any specific religious beliefs outside of, or more specific than that which we can come to know of our natural duties from the laws of nature:
The laws of God discoverable by unaided natural reason are just the laws of nature, considered as commands from a deity who exists, who has given laws and rules of conduct, and who offers rewards and punishments. In his natural kingdom, God governs those who acknowledge his providence by the dictates of 'right reason,' these laws of God, which concern the natural duties of one man to another. These duties...may be 'contracted into one easie sum, intelligible even to the meanest capacity, and that is, "Do not that to another, which thou wouldest not have done to thy selfe."' This is all that natural reason tells us about our duties to God in the treatment of one another, and everyone who has use of natural reason will agree about this.
Again, bereft here of details, Hobbes argues that differences involving our duties to God with respect to specific modes of worship and other forms of religious praxis cannot by their very nature (that is, properly understood by the means of natural reason), conflict with the commands of political authority, for on close examination we discover that
...God demands no particular sort of worship such that if the political authority prohibited it, we would be duty-bound to disobey him. There are no grounds in natural reason for preferring some other religious practices to any which the political authority may command us to observe.
What is most important in these matters is the indubitable fact that
We can know that we have a duty to endeavor to obey the laws of God (which command justice, mercy, humility, in sum not doing to others as we wouldn't be done to), and we can know something about 'the honour naturally due to our divine sovereign,' namely, that we should offer prayers, thanks, public worship, considerate speech, and obedience to God's laws. This is all our natural reason tells us about our duties to God. In particular, it doesn't specify determinate ceremonies, gestures, utterances, or postures as required to fulfill our duties to God. Natural reason can't, for example, tell us which prayer book to use, whether to pray facing the east, standing or kneeling, in Latin or in English, with pomp and circumstance or Spartan simplicity. What our natural reason suggests is that it doesn't matter which of these we use in our worship because whichever words and actions we intend to convey honor, do convey honor. Thus we have no natural reason not to worship as the political authority commands us to.
Hobbes displays an almost mystical attitude here (after all, whatever behavior we exhibit to the outside world, only God has knowledge of what is in our hearts and minds, that is, of our true intentions and motivations) toward the myriad modes of ('external') religious praxis in an attempt to negate the denominational expression of what Freud termed the "narcissism of little differences." Furthermore, "although natural reason cannot give us the whole truth about our duties to God, Hobbes insists that what it does tell us is true, and nothing further that revelation or prophecy [both being outside the province of unaided natural reason] might tell us about our duties to God can contradict what we have learned by natural reason." One can only admire the audacious and consistent quality of Hobbes's argument, even if we suspect not a few of his readers would have found it scandalous, or at least far from persuasive.
As part of the struggle to counter the insidious and socially disruptive effects that invariably follow widespread and recalcitrant misconconceptions of what our true moral and religious interests are, Hobbes believed we could shape socialization and educational processes so as to cultivate a correct conception of the rational kernel of these interests, thereby contributing to their proper satisfaction and directly facilitating a stable, enduring, and peaceful social order. Such a moral education enables us to learn the correct exercise of reason and thus attain an awareness of the due scope, hence limits, of private judgment, including an ability to harness our passions toward the end of social harmony and peace. The uninhibited exercise of passions in conjunction with uncircumscribed private judgment is responsible for the sorts of social strife and collective violence we have every reason to avoid, and so we are motivated to find sufficient reason(s) to agree to surrender our right of "absolute" self-governance and locate "absolute" political authority in a sovereign body:
[U]ndivided sovereignty is required to produce, through education, private judgment, it is a necessary condition of stable social order. The most important function of unified authority is to produce unanimity in opinion or uniformity in judgment.... Divided authority, which both produces and expresses a division in the opinions and judgments of supporters, entails division of power. Because what one believes is a function of whom one believes, multiple authorities will produce multiple judgments [an analogous contemporary exemplification being the battle of experts in the courtroom]; and differences in judgment are then expressed by allegiance to different authorities [an analogous contemporary exemplification found in the Islamic world]. Thus the power of a ruler is simply the by-product of his authority, which both reflects and conditions consensus in judgment.
Hobbes has provided his readers with a plethora of reasons for political obedience (owing to the variety of transcendental and other interests): from prudence, from natural moral duties, and from Christian duty. The sovereign authority for its part acts in keeping with the proper fulfillment of its subjects' interests, and thus on behalf of their individual and collective welfare and well-being or common good in a manner consonant as well with their natural moral duties. Hobbes rightly concluded that as long as our private appetites and aversions serve as the standard of good and evil, as the criteria for right and wrong, we will be consigned to a miserable state of nature in which peace is but a distant hope or dream, indeed, "Government by individual appetite—private judgment of good and evil—is the defining character of the state of nature."
Contrary to what most have assumed or asserted, Lloyd helps us to see that Hobbes was not driven by an overweening hostility to or "rational" distaste for religion as such, for he "believed in the truth of the basic doctrines of the Judeo-Christian tradition," as well as in the natural law moral philosophy bequeathed in part by that tradition. Not unlike its fundamental significance in natural theology, Hobbes was convinced of the indispensable role of the God-given faculty of reason on behalf of true religious faith, belief and praxis, all of which should exemplify the core moral principles attained by natural reason (i.e., the (moral) laws of nature) the foremost being expressed in the reciprocity theorem and the Golden Rule. Given the presuppositions and premises of Hobbes's argument, it is hard not to sympathize if not identify with his view that religion is not "inherently, or necessarily, subversive of order," but it is patently and dangerously no less disruptive of civil order and peace when "not authoritatively regulated by the state...." Some of his presuppositions and assumptions were quickened in the crucible of experience:
From where Hobbes stood, experience, both the personal experience of Hobbes's contemporaries on the Continent, and the historical experience of Christians, particularly of the wars of religion—taught quite clearly that Christians had difficulty maintaining peace in the face of religious differences, and so any expectation of toleration without contention, would be unwarrantedly optimistic.
Lloyd has meticulously described the many facets of Hobbes's ingenious and methodical rationalization of religious belief and praxis, as well as his redescription of prudential and transcendental interests generally, thereby precluding the possible grounds individuals might otherwise have had for refusing to renounce their right to private judgment or, as citizens, justifiably disobeying sovereign authority. It goes without saying that the values and principles that make for Liberal sensibility clash with predominant features of Hobbes's absolutism, which we rightly judge repugnant and unacceptable. Nevertheless, and with Professor Lloyd, we might readily concede that Hobbes's "absolutism follows by a valid argument form premises that are by no means obviously false, absurd, unreasonable, or implausible."
In an effort at shameless self-aggrandizement, I'm posting links to some recent work I've done.
Here is a recent article from the Drake Journal of Agricultural Law in which I evaluate corporate-farming measures in the wake of Jones v. Gale.
Here is a recent article from the Nebraska Law Review in which I critically examine the court's opinion in Jones v. Gale and the discriminatory-effects thread of dormant Commerce Clause doctrine.
Finally, I'd recommend to all this book on the Nebraska State Constitution. Nebraska's corporate-farming measure was created as an amendment to the state constitution. This book, however, is much broader, offering an entry-point treatise into the many provisions in our state constitution. We maintain an electronic update here.
to organize a national discussion on new and beginning farmer policy issues;
to gather stakeholders from across the U.S. to identify and inventory innovative policies and projects at the federal, state, and local levels to support new farmers; and,
to provide the Administration and Congress an agenda of ideas for developing a comprehensive campaign to support the next generation of American farmers.
Forum organizer, Professor Neil Hamilton states that the agenda is close to being finalized and that over fifty people from across the nation will participate as speakers, moderators and policy reporters. Professor Hamilton, Janie Simms Hipp, advisor to U.S. Secretary of Agriculture on Tribal Relations and Bill Murphy, Administrator, USDA Risk Management Agency will open the conference on March 4, and USDA Secretary Tom Vilsack has been invited to deliver the Opening Keynote Address, America’s New Generation of Farmers.
To learn more about the Forum, view the agenda, and to register please visit the Drake Agricultural Law Center website. Group rates for rooms at the L'Enfant Plaza Hotel are available up until February 10th.
Nearly 5 years ago I wrote an article, "Law Faculty Ethics: Shirking, Capture and “The Matrix,”" 82 DETROIT MERCY LAW REVIEW 397 (2005), in which I identified the many ways I felt law professors were shirkers. I analogized it to regulatory capture in the sense that faculty who were supposed to govern law schools for the benefit of shareholders -- students, taxpayers, donors -- actually governed to benefit themselves. The range of questionable activities ran from teaching specialized low enrollment courses because the topic was of interest to the teacher (but not to very many students) to foreign boondoggles, pushing ideology in the classroom, and hiring and tenure decisions based on social and political considerations rather than the merits of the candidates. Over on Classbias, were I do most of my complaining about law professor behavior, I attribute much of this to a sense of entitlement.
I realize that many disagree but if you think I am a little bit right, a recent article in the Economist (January 23, 2010) is quite interesting. Psychologists were able to induce in subjects a sense of power or powerlessness. They then asked questions about the rightness or morality of various corrupt acts. Consistently the subjects with power viewed the same sleazy acts as less immoral when they did them than when those with less power did them. In short, power does corrupt.
The kicker in this was a further step. The experiments were repeated by adding the factor of a sense of entitlement. That is, some people were led to believe they deserved their positions of power while others were led to believe the opposite. Here, as you might expect, those with a sense of entitlement were more likely to abuse their power and not understand why there was a problem. After all, they are special.
This may help explain some faculty behavior. After all, law faculties are largely populated by children of privilege. (I wonder what the record is for the most expensive education. I think we have it.) Many times their sense of entitlement is over the top. They deserve, therefore, to teach what they want to teach at the time they want to teach it, they deserve that new furniture or to vote yes on tenure for a pal because they have been told, since birth, that they are special. Some have a virtually infinite capacity to explain why they are deserving and why they are on the moral high road whether or not they are. I am convinced that the most dangerous ones are those who have no sense at all of how their power and sense of entitlement affect their behavior. I'd say in hiring, a law school would do well to hire those without a sense of entitlement although I am not sure how one tests that other than taking a closer look at the socioeconomic background.
Having said all this, it is clear that it does not quite all fit together so simply. Looking at my own faculty which is as heavily populated by children of privilege as any other, I am not sure the corruption level is all that high. In fact "corruption" is not really on point. Self referential decision making and obliviousness to the welfare of the stakeholders is more accurate. It appears mainly in hiring or tenure decisions when people allow social and political factors to influence their votes or even the veracity of their reports on a candidate's reviews. I am not an administrator so I have no way of knowing how demanding people are with respect to exactly the right schedule or for extra travel money or research support. Maybe the most "corrupt" thing going on is looking the other way when someone else is engaged in an activity that cannot be linked to the welfare of the stakeholders. I attribute this to indifference and log rolling but it is shirking nonetheless.
More importantly, not all those with an elite education seem to feel entitled. Far from it. Plus, some of those who do not have an elite education seem to feel an extreme sense of entitlement. Maybe all that can be said is those with the elite educations are more likely to have a sense of entitlement and more likely to justify their anti stakeholder activities than those without the same background.
I'd still like to avoid hiring the privileged for reasons of diversity and because there is no known correlation between how highly ranked a school is and how productive its graduates will be as law professors. But when it comes to the corrupting potential of a sense of entitlement, it would nice to assess it directly by administering to each candidate an "entitlement test."
The Senate today confirmed Chairmen Bernanke's reappointment to a second term at the Federal Reserve by a vote of 70 to 30 (See Bernanke Confirmed). As concerns abounded about the extent of the Federal Reserve's independence, Senator Schummer commented: “If you don’t like monetary policy when the Fed does it just wait until the politicians get their hands on it.” Well said. Bloomberg did a nice (and short) piece about the politics of the reappointment and the need for the Federal Reserve Chariman to go visiting with the politicians to keep his job.
Our second post reviewing S.A. Lloyd's two books on Hobbes will focus largely on Ideals as Interests... (1992). I've divided the discussion of this volume into two parts, (a) and (b), so Part 3 will commence our discussion of Morality in the Philosophy of Thomas Hobbes... (2009).
Among the many tantalizing conclusions reached by Lloyd we begin with one related to a principal topic woven throughout the text as evidenced in the title: "[Hobbes is] the first philosopher to offer a systematic philosophical analysis of civil disorder generated by transcendent interests." Such interests are not of course the only species of interests Hobbes treats, but it is his recognition of the ubiquitousness and powerful effects of transcendent interests that Lloyd brings to our attention. Transcendent interests are non-material and non-prudential (bearing in mind that the interest in salvation is defined as a transcendent form of self-interest), and thus beyond the interest in self-preservation. Transcendent interests are typically (thus not exclusively) moral and religious, and originate in beliefs, opinions, or doctrines passionately held. When such interests are more or less understood and exercised in a proprietary sense, they can be described as "private judgments." As Lloyd carefully explains in her latest book, while Hobbes had an abiding appreciation of the "defeasibility of the natural aversion to violent death, its susceptibility to cultural modification, and its subordination to the satisfaction of transcendent interests," this did not preclude the use of this "natural" aversion in his normative moral theory owing to a conviction that one of the constraints of such a theory is the desirability and likelihood of its justification and adoption (a 'reasonability' constraint?) to those subject to it:
Here the fact of the natural desire to avoid untimely death becomes important, because while it may be true that each person cares most about avoiding bodily death, it is highly probable that people would judge a moral theory that systematically required them to sacrifice their lives to be unreasonable. People are not to be required to behave as if their survival meant nothing to them, and to be subject to blame and moral censure for wanting to resist death. That is too much to ask of men, who, while rational animals, are nonetheless animals, subject to the demands of their animal nature [cf. the Buddhist who speaks about the natural power of a 'will-to-live' throughout sentient existence], who cannot be sure that they would, in the force of a mortal threat, even be capable of squelching thier impulse to defend themselves. Hobbes insists throughout his writings that, absent special obligations, the effort to defend one's life must be accounted blameless. To condemn a man for acting from this impulse, considering its naturalness, is to condemn him simply for being a man; and it is also to self-centeredly criticize God for having made men with the nature he did. This is why 'Among so many dangers therefore, as the natural lusts of man do daily threaten each other withal, to have a care of one's self is so far from being a matter scornfully to be looked upon.... It is therefore—neither absurd or reprehensible, neither against the dictates of true reason, for a man to use all his endeavors to preserve and defend his body.... But that which is not contrary to right reason, that all men account to be done justly and with right.' As this passage clearly illustrates, Hobbes's insistence that all men naturally and strongly desire their bodily preservation is in the service of the normative claim that we ought to allow as justified actions done from this motive. ...[W]e should acknowledge self-defense as morally permissible, ceteris paribus: 'That which is done out of necessity, out of endeavor for peace, for the preservation of ourselves, is done with right, otherwise every damage done to a man would be a breach of the natural law, and an injury against God.' Hobbes's concern in establishing the naturalness of a strong impulse toward self-preservation is...only to ground his claim that actions sincerely meant in defense of one's life are not to be judged blameworthy.'
In other words, Hobbes's invocation of the right to self-defense and self-preservation is for fairly restricted purposes and is not reflective of a belief that such a reasonable or prudent self-interest invariably trumps all other possible interests or that it is simply our principal motivating interest. So while Hobbes recognizes and utilizes within his normative theory the apparently incontrovertible fact that people have "narrowly prudential interests in their physical survival and in 'commodious living,'" his foremost focus is on the socially disruptive force of what are typically "transcendent interests." It is "moral interests in fulfilling their individual duties and moral obligations, religious interests in fulfulling their duties to God, and 'special prudential' interests in achieving salvation," that move people to act that are best described (typically) as "transcendent interests." As Lloyd says, "Hobbes viewed certain disruptive, or competing, passionately held beliefs—beliefs upon which people are willing to act even at the expense of their self-preservation—to be the cause of disorder...." Hobbes's solution to the causes of this disorder eschews coercion, aiming rather at their correction "through a process of redescription and reeducation." An intimation of the "redescription" half of this solution is seen in the following:
Hobbes's recurrent attack on pride is an attack on the sort of pride exhibited in private judgment generally, and in religious judgment particularly—the pridefulness involved in taking one's own private opinion of right and wrong, good and bad, just or unjust, or one's own interpretation of Scripture, as right and reason, and then acting on it in defiance of constituted authority, and attempting to impose it over and against the judgment of others. Social disorder arises from diversity of opinion in conjunction with each person's insistence that his judgment is authoritative and this insistence bespeaks tremendous hubris. Pride becomes a central concept in Hobbes's analysis of social disorder.
In aiming to reconcile competing or conflicting (and thus socially disruptive) transcendent interests, Hobbes endeavors to provide "his readers with a sufficient reason, given all the interests they actually took themselves to have, for affirming and acting on a principle of political obligation that, generally and widely adhered to, could ensure the perpetual maintenance of effective social order." Hobbes's concerns and subsequent endeavor in this regard resonate in our own time if only because Rawls's Political Liberalism is well known for
addressing a closely related problem, the problem of discovering how a just democratic system of social cooperation might reproduce its own support among those who affirm competing and irreconcilable comprehensive doctrines. Both philosophers are attempting to respond to the fundamental problems posed by pluralism: Hobbes to the problem of order simpliciter assuming brute pluralism, and Rawls to the problem of establishing a just social order that could endure within a reasonable pluralism. Both problems arise when people within a society either cannot or will not allow each person free reign to act on his or her own comprehensive doctrine.
But as Lloyd proceeds to point out in Morality in the Philosophy of Thomas Hobbes, "although their [i.e., Hobbes and Rawls's] problems are related, it is their approaches to a solution that distinguish them...." And Lloyd's genius consists in an analytically lucid, nuanced, and original appreciation of Hobbes's approach, an approach that generally speaking and in brief,
involves identifying commonly acceptable resources for settling doctrinal disagreement, and then arguing that these support a unique conception of religious duty fully compatible with civil obedience. Through this process Hobbes aims to move all of his intended audience from their idiosyncratic beliefs to a single comprehensive doctrine, and then to use the full force of the state's power to enforce and to reproduce allegiance to that comprehensive doctrine.
Hobbes's solution is clearly illiberal and one of the reasons that, although we may justifiably view Hobbes's moral and political philosophy at various points to be directly or by implication "proto-Liberal," we lack sound reason(s) for calling Hobbes a Liberal.
Hobbes sought to enunciate a principle of political obligation (i.e., 'a statement of the conditions under which subjects or citizens are to obey the commands of the government of the commonwealth of which they are members') that his readers could find sufficient hence compelling reason to affirm and subscribe to so as to atttain the ends of perpetual domestic peace and order. The foremost price to be paid for peace and commodious living in such a commonwealth is agreeing to constraints on our unfettered liberty, including curtailment of our capacity to dominate others. And here Hobbes does appeal to our basic prudential interests, that is, "the interest in self-preservation and thus in the security of our persons, and the interest in 'commodious living' [which 'requires the possession of personal property and the enjoyment of a certain minimal degree of liberty']." And this appeal is minimally rational insofar as it depends on a principle of reciprocity, for if
each person who has an interest in securing his own preservation and commodious living has a reason from narrow prudence to want others to adhere to the principle [of political obligation], then each has a natural duty not to reserve to themselves any right that they would not be content to have others reserve as well, in this case a right to violate the principle they want others to observe.
While the Hobbesian principle of political obligation is, to put it mildly, stringent, obedience being owed to a sovereign "in all things wherein their obedience is not repugnant to the laws of God," it is clear that a key assumption or condition of such obedience is the ability of the sovereign (or the state) to protect its citizens, to provide them with the security that satisfies the aforementioned interest in self-preservation and commodious living. A state unable or incapable of providing for the "protection and security of its citizens" in effect "extinguishes" obligatory obedience and citizenship, for "if an association can't protect, then either it is not a commonwealth or your are not a member of it, but in neither case are you obligated to obey its political authority."
The University of Wisconsin-Madison Center for Integrated Agricultural Systems (CIAS) and University of Wisconsin-Extension Agricultural Innovation Center just released their report, Scaling Up: Meeting the Demand for Local Food.
The report detailed their study of eleven models of regional food aggregation and distribution that are successful in linking local farmers with regional food chains.
From their website:
Robust local food systems offer social, environmental and economic benefits. Increasingly, wholesale buyers are demanding locally grown food and growers are looking for new regional markets. In order to meet the demand for locally and regionally grown food and move significant quantities of this food into markets such as restaurants, mainstream grocery stores and institutions, local food systems need to be scaled up or expanded from farmer-direct sales of small quantities of product to wholesale transactions. By scaling up, local food systems have the potential to borrow some of the economic and logistical efficiencies of the industrial food system while retaining social and environmental priorities such as sustainable agricultural practices and profitability for small- and mid-scale family farms and businesses.
The models provide examples of how this is being done, benefiting farmers, retailers and consumers.
A few weeks ago, there was a post linking to a moving personal story about atrazine use in agriculture and concerns about the potential cancer risk associated with chemical pesticides. This highly charged issue was in the news again this week, and the divide in the agriculture community was readily apparent.
Syngenta’s atrazine has become one of the most commonly detected pesticides in U.S. ground and surface water. Between 1998 and 2003, 7 million people were exposed to atrazine in their treated drinking water at levels above state or federal health-based limits. The U.S. Geological Survey found that atrazine was present in streams in agricultural areas approximately 80 percent of the time, and in groundwater in agricultural areas about 40 percent of the time.
Earlier this month, a number of commodity groups signed a letter to EPA Administrator Lisa Jackson stating that they were “troubled by the activist forces that seem to be guiding the very intensive and urgent re-evaluation (actually a re-re-evaluation) of atrazine despite its recently completed re-registration, which provided for its continued safe use.”
The farmers involved in the Land Stewardship Project report are deemed to be "activists" and "special interest groups." This is amusing in that this is also clearly what the commodity groups are - and I don't mean that in a derogatory sense. Organizations like the National Corn Growers Association exist to lobby for the interest of their members. The letter argues for a science-based approach, which seems to be what everyone says that they are asking for. It is just that each side reads the "science" differently.
I'd like the EPA to look at atrazine openly, honestly and without pressure from any interest group - including the chemical and agricultural industries. It is simply too hard for them to separate out economic interests. It is universally acknowledged that atrazine is in the drinking water consumed by many farm families and rural communities across the United States. They deserve an honest look at the health impact of that contamination.
In a book I plan to discuss in more depth anon, Larry May's Crimes Against Humanity: A Normative Account(2005), we find a conception of "moral minimalism" beholden to arguments from Hobbes used to justify jus cogensnorms that, in turn, support basic moral and legal principles in international criminal law, principles that sanction fairly widespread agreement in notions of moral and legal responsibility in the pursuit of international criminal justice. Intrigued and inspired by May's original if not philosophically persuasive resort to Hobbesian moral reasoning, I decided to look afresh at Hobbes's moral and political philosophy not only because of May's novel invocation of Hobbes, but because it goes against the grain of references to and reliance upon allegedly Hobbesian ideas and reasoning in modern international law and politics, be it descriptively and normatively by unabashed Realists on the one hand, or critically by those who fancy themselves part of what Hersch Lauterpacht termed the "Groatian Tradition in International Law," on the other, representatives respectively of the traditions of legal positivism and natural law philosophy.
In my re-examination of Hobbes's moral and political philosophy I learned of two remarkable works by S.A. (Sharon) Lloyd: Ideals as Interests in Hobbes's Leviathan: The Power of Mind over Matter (1992), and Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature (2009). Together these books make a critical and original assessment of Hobbes's moral and political thought in a manner that is analytically perspicuous, philosophically sophisticated and exegetically thorough, so much so that one can state emphatically, with Lloyd, that this is "not your father's Hobbes." In brief, these books dethrone the regnant intepretations of Hobbes's moral and political philosophy, interpretations exemplified, for instance, in such otherwise justly influential works of political thought (or 'theory') by C.B. Macpherson, David Gauthier, Jean Hampton, and Gregory Kavka. Moreover, Lloyd enables us to see precisely why "two of the most celebrated analytical approaches to present-day political philosophy—namely, Rawls's Political Liberalism, and Gauthier's Moral Contractarianism," cannot rely on the "real Hobbes...to support [their] admittedly philosophically interesting projects," both Gauthier and Rawls having "claim[ed] Hobbes as their first illustrious ancestor."
A pedagogical incarnation of what Lloyd rightly labels "the standard philosophical interpretation" of Hobbe's moral and political reasoning is here illustrated in a widely adopted text in the undergraduate Political Science curriculum, Glenn Tinder's Political Thinking: The Perennial Questions (6th ed., 2004):
No one has so masterfully argued that people are essentially estranged as Thomas Hobbes (1588-1679), the mordant and witty English philosopher. The natural human state, Hobbes maintained, is one of war 'of every man against every man,' When there is no central government 'to overawe them all,' then 'men have no pleasure, but on the contrary a geat deal of grief in keeping company.' Life in such a state, Hobbes asserted in one of the most famous phrases in the literature of political theory, is 'solitary, poor, nasty, brutish, and short.'
There are, so to speak, two levels of estrangement in Hobbes's philosophy. The surface level is psychological. People are estranged because they are essentially egotistical. One is concerned above all with the preservation of one's own life; one also seeks such things as wealth and prestige. None of these benefits can be gained without power. Thus Hobbes attributed to human beings 'a perpetual and restless desire of power after power, that ceaseth only in death.' We care nothing about others except as they can help or hinder us in reaching our private goals. Such ego-centeredness is not perverse, nor is it avoidable; it is our true nature. To be human is to be concerned exclusively personal interests and personal power.
David L. Norton's exposition of eudaimonistic political theory: Democracy and Moral Development: A Politics of Virtue (1991), likewise reproduces the standard portrait, albeit with more subtlety, as Hobbes is held historically responsible, along with Machiavelli, for "realpolitik's derivation of morality from politics—its 'politicization of virtue:'"
In Hobbes's conception, moral life in civil association is a matter from beginning to end of the selfish acquisition of material goods and power, with such concessions to others as are necessary to the selfish enterprise. For Hobbes there are no upper limits to the intelligent pursuit of material goods and power, no limit beyond which more of these things is recognized as debilitating to persons who continue to pursue them. [....] The notion of sufficiency in material goods and power makes no appearance in Hobbes because the wolf is always at the door. Behind civil association is the state of nature, to which civil association is ever in danger of reverting, and in which life is 'solitary, poor, nasty, brutish and short.'
Finally, the "standard philosophical interpretation" of ideas putatively of Hobbesian provenance is axiomatic within the Realist school of international law and relations, as summarized in an important article by Allen Buchanan and David Golove:
Typically, the Realist characterizes international relations as a Hobbesian state of nature, with the following features: (a) There is no global sovereign, no supreme arbiter capable of enforcing rules of peaceful cooperation. (b) There is (approximate) equality of power, such that no one state can permanently dominate all the others. (c) The fundamental preference of states is to survive. (d) Given conditions (a) and (b), what is rational for each state to do is to strive by all means to dominate others in order to avoid being dominated (to rely on what Hobbes calls 'the principle of anticipation'). (e) In a situation in which each party rationally anticipates that it is for others to dominate, without constraints on the means they use to do so, moral principles are inapplicable. (Allen Buchanan and David Golove, 'Philosophy of International Law,' in Jules Coleman and Scott Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law, 2002: 872-873).
The three examples above help illustrate the continuing power and occasionally pernicious influence of the "standard philosophical interpretation" of Hobbes's moral and political philosophy, distinguished by its adherents' allegiance to the following characteristic features:
that Hobbes intended to derive a necessary form of political organization from fundamentally egoistic, even preservation-centered, human nature; that Hobbes was a materialist, moral subjectivist or relativist, and atheist; that political obligation is prudentially based; that might makes order and, correspondingly, that fear of death and the desire for self-preservation are the strongest motivating passions; and that the state of nature represents a prisoner's dilemma.
When not systematically revealing their shortcomings, Lloyd decisively refutes the arguments that animate this standard interpretation to devastating effect, leaving in its stead a far richer portrait of Hobbes as a profound, prescient and, yes, moral political philosopher deserving of reconsideration.
Forget all this business about credit cards (What You Need to Know About the CARD Act), debit cards (What the Fed's New Overdraft Rules Don't Do) and gift cards (Fed Targets Gift Cards). Here comes mobile payments! Mobile what? At least that is what I said to myself when Jim Chen sent me a link to a CBS article The Mobile Triple Threat (Jan. 22, 2010). Perhaps I've just been in denial that this was coming down the pipeline for real (or too busy complaining about the drawbacks of debit cards). Without knowning more, I found myself reacting "don't even think about doing this . . ." Well, perhaps that is a tad harsh. Merchants are serious about opening this door as handheld phones and readers have increasing amounts of applications for them. And, tighter credit and debit card rules couldn't hurt their motivation either, right?
The whole idea here is that the consumer could be in a store looking at merchandise and not only do research on the product using their mobile device, but also check inventory and make payment for the product (by a charge to their cell phone bill). Other possibilities include small credit card terminals that small merchants could plug into their own mobile device in order to run a customer's credit card (See, Twitter Co-Founder Tackles Mobile Payments). Pretty cool and technically beyond my expertise (See, Discover: Contactless Payment Sticker Users Inadvertently Crippling Performance). But . . . payments wise, this presents the same (and more) problems than consumers just paying at the register with their credit or debit cards. Surely, there are issues about how well the application transfers money and what to do about errors. One would hate to be walking through Best Buy with your phone in your pocket and accidentally purchase several televisions. Moreover, the risk of credit card data being misused or misappropriated is already a problem without the involvement of mobile devices. Poor reliability and speed follow along as potential pitfalls.
Apparently, Paypal, Google and Amazon already have mobile payments capability, so mobile payments appear to be upon us. Mobile payments companies are beginning to receive funding for their ventures, so this will be an area to watch develop (Mobile Payments Startup Boku Lands $25 million). Always a big question regarding payment methods is the cost associated with its use and disclosure to consumers. For me, it will be a while before I pay using my phone.
Bless them boys, Who Dat! and Geaux Saints! As someone that spent most of my life in Louisiana, the Saint's getting to the Superbowl feels like an impossible dream that just came true. As someone who lived in New Orleans most of my adult life, who watched from afar after moving away from Louisiana the city that was the state's most visible symbol destroyed by the "big one," that no one thought would come seeing the Saints eligible to play in the "Big Game," that again, no one thought would come, seems surreal. In New Orleans before Katrina, the newscasts would advertise for hurricane preparedness, asking proverbally "what if the big one hit New Orleans." Well it did, and the city has never been the same. For many, the New Orleans Saints represented a break from the reality of mold covered homes and lost possessions -- a way to forget that the city they loved was now forever marked by the eye of a perfect storm, that destroyed lives, houses, and hopes. No symbol was more emblematic than the Superdome -- a building whose exterior mirrored the cities pain for so long.
Tonight's game was bigger than football. It seemed to confirm that the past is over. And maybe that's ok. In New Orleans, the past, before Katrina seemed ideal. It was the after-Katrina world that was so scary. But tonight's win in the same dome where people's lives in the city were forever changed, maybe offers a glimmer of hope. Perhaps the future can be better than the past was. The past was filled with inequality and political cronyism. Maybe that has not changed, but with every new day lies new hope. The Saint's showed that the future does not have to be worst than the past.
In reality, the last few minutes of the game seemed to encapsulate the Saint's and New Orleans' history. The Saint's offense seemed more like the aints' after the first half; the defense gave up first downs and big plays; and the season seemed like so many others of late -- lots of promise, but just short of the big one. And then, as if by divine intervention, the Big Ones came -- the biggest interception; the biggest forty-yard kick-off return; the biggest fourth and inches conversion, and the biggest forty-yard field goal; and, perhaps, the biggest win that the team and the city of New Orleans needed. The future is bright. The only thing I think I can say to match my thoughts -- Bless them Boys! And Geaux Saints.
And now, pulling a trick from Dean Chen's book, I can think of no better song to offer you than U2 and Greenday's The Saints are Coming
On March 18, 2010, from 1 pm to 5 pm (Eastern Standard Time), we will hold a 'virtual' conference in Second Life (at the Queen's University Faculty of Education virtual island). The topic of this conference will be the same as the one for our most recent blog: 'Human Autonomy, Law and Technology.'
Dean Jim Chen will open the virtual conference with a keynote speech. Then professors, lawyers and others from different countries will appear as avatars to give papers and commentary. More information on this virtual conference including a draft agenda is located here, which will be updated as the conference date approaches.
Individuals can view the conference proceedings in three ways: (a) as avatar audience members attending the conference; (b) via a live video feed; or (c) later viewing of an archived digital copy of the conference proceedings.
Today was downhill all the way. The class hiked Saint John from mountaintop to seashore. Here is how the University of Kansas School of Law Biodiversity Law class describes the highs and lows:
Today we went to St. John by ferryboat. Our mission: to hike reef bay trail. Reef bay trail begins on the highest point in the Virgin Island National Park. We descended the mountain with a Unites States National Park Service Ranger, Don Near. Ranger Don is the most experienced Ranger in the Virgin Islands and has a wealth of knowledge about the National Park. As we began the descent, we noticed that the air was cool, the trees were tall and thin, and there was less under brush. We walked down an old Danish cart trail. Toward the bottom, the forest was denuded, probably from goats. However, this forest was recovering from overgrazing as evidenced by the abundance of saplings. While the canopy was lower at the bottom, there was more vegetation at the ground, including wild pineapple, cactus, and epiphytes.
We observed a lot of native as well as several of invasive species that did not appear to be disturbing the endemic vegetation. The invasive species included the wild pineapple, sweet lime and strangler fig. The native species included the turpentine, the Virgin Island Palms, and cinnamon tree. The National Park also contained an abundance of animal life, both native and introduced. The only natural mammals on the island are bats. However, we also observed a mongoose, deer, and evidence of overgrazing by goats. We also saw large spiders, snails, soldier crabs and lizards.
Due to the presence of the National Park, there is a noticeable difference between St. Johns and St. Thomas. St. Thomas is much more developed than St. Johns and much more people live on St. Thomas than St. Johns. The development leads to vastly different coastlines. In St. Johns the trees go to the ocean, while on St. Thomas, the tree-line begins after expanses of beaches, shops, ports, streets, and parking lots. Due to the lack of development, St. Johns supports a denser and richer population of wildlife.
While there are many biodiversity laws in force that protect the Virgin Islands National Park, enforcement is a problem because of local culture, jurisdictional issues, and financial constraints. One example of the limitation of local culture is that the local population can fish on the waters of the National Park, but they are only allowed to take two specific species. The other fish species are protected as endangered species by the Endangered Species Act. While the natives know of this rule, they take more than they are supposed to without fear of enforcement. The lack of enforcement undermines the ESA as well as other environmental laws. Another example comes from the land mammals. Donkeys are grazers and eat endangered plants thereby impacting the entire forest ecosystem. The local human population finds the donkeys useful and the idea of slaughtering them unsavory. Additionally, cats eat endangered lizards and birds, but the local population fights against any harmful removal efforts based on sympathy.
Jurisdictional issues in the National Park also undermine the enforcement of biodiversity laws. When an offense is committed in the Park, sometimes it is unclear whether the National Park Service or the Virgin Island’s local police has jurisdiction. This confusion leads offenses being overlooked and locals not respecting the law. If the local police claim jurisdiction over a case, it is less likely that they will hold the offender accountable to the environmental provision than the National Park Service.
Finally, financial constraints limit the ability for the National Park Service to enforce their laws. The National Park Service is the recipient of limited federal funds. The staff and equipment is limited and cannot cover the extensive grounds of the park on a regular basis. The lack of coverage means that offenses may go unnoticed.
The class has one day left in the Virgin Islands. Watch here for their final report.
Our third day took us to Jost van Dyke and Sandy Cay in the British Virgin Islands. Here is the University of Kansas School of Law Biodiversity Law class' account:
We went to Jost Van Dyke, a small island in the British Virgin Islands. After braving the sea and a small squall with our fearless Captain Ron, we arrived safely. We met with Susan who works for a non-profit organization that is committed to preserving biodiversity in the BVI. After our introduction Susan took us to a very small island called Sandy Cay. Sandy Cay was a private island owned by the Rockefeller family but was recently donated to the BVI government and is now designated a national park. It only takes twenty minutes to walk across Sandy Cay, however, it supports a very diverse ecosystem. The islands plant and land structure varies greatly from the sandy beaches on one side to the higher rock cliffs that support cactus. Before the island was donated it was used as a botanical garden and during this time people introduced several invasive species to the island including but not limited to rats, spider lilies and different species of palm trees.
When the BVI government acquired control and designated the land as a national park, some people involved with Susan’s organization worked diligently to eradicate the invasive species. They have successfully removed the rats. They still monitor the possible presence of rats, but there has been no evidence of rats inhabiting the island in six years. Because of the removal of the rats, the native species such as several different types of species of lizards, and soldier crabs have flourished on the island. The amount of lizards and solider crabs is vastly higher on Sandy Cay than on neighboring Jost Van Dyke. This is an example of how invasive species can decimate a population of native species and how removing the invasive species, the native populations can be restored and thrive.
The spider lilies are abundant on the island, however the removal of them has not been as widely supported because they are seen as threats, and they are quite beautiful when they bloom. However, judging by the shear mass of spider lilies on the island, it would be interesting to see what plants might flourish on the islands if this invasive species was removed.
In order to preserve the ecosystem of these islands, there needs to be a structured enforceable legal framework. Eradicating a species requires cooperation from the local governments. An example of this is the successful eradication of rats on Sandy Cay whereas Jost Van Dyke’s biodiversity is still plagued by the presence of mongoose and goats. Without local support it is impossible to begin and or carry out the lengthy process of eradicating these invasive species. Local people are opposed to the eradication of goats because they depend on them for their economic independence. The eradication of mongoose is opposed because the mongoose effectively controls snake populations, and while not poisonous the locals have a deep-rooted fear of snakes.
There are several ideas for future statutes and regulations to control invasive species. One idea would be to educate the local population on the benefits of biodiversity and the threats invasive species cause to the entire ecosystem including the people themselves. If the local people were more amenable to control invasive species, the invasive could easily be eradicated as evidenced on Sandy Cay. Another idea might be strict liability for releasing an invasive species. This strict liability should include not only fines for releasing the invasive but also liability for the costs of retribution including the costs of eradicating the species.
Despite the laws currently imposed or laws proposed, in order to see any benefits to biodiversity strong, consistent enforcement is necessary. There is extreme sporadic enforcement of environmental laws on the island causing most people to ignore them without the fear of repercussions that undermines the effectiveness of the law.
Tomorrow, the class will hike on Saint John, from mountaintop to seashore.
Today, the University of Kansas School of Law Biodiversity Law class was invited to Legislative hearings at the Virgin Islands Legislature. Here is the students' account of what they experienced and learned:
The US Virgin Islands have recently been consumed by a project that proposes to take combustible waste and petroleum coke (pet coke) and burn it to produce energy. This project is alternatively styled as a waste incinerator or waste-to-fuel project, among other terms. The project was put out to bid by the USVI WPA and a firm called Alpine won the bid to construct the project. In the lead-in to securing approval and permitting for the project, the territorial government and Alpine have engaged in public town hall meetings, and the USVI Senate scheduled hearings to gather facts about the project. These legislative hearings provided a forum for administrative officials, consultants, community leaders, and concerned citizens to voice their facts and opinions to the USVI senators concerning the proposed waste-to-fuel project to be built on St. Thomas. The hearings were conducted in the committee responsible for economic development and technology and included a witness list of just under twenty people. After being sworn in, each speaker was given five minutes to introduce themselves. Upon motion, the committee moved to allow each speaker ten minutes. In the afternoon, the Senators would pose questions to whichever witnesses they desired.
The proponents of the project spoke first. These included the executive director of the VI Water and Power Administration, the Commissioner of Planning and Natural Resources, and the Waste Management Authority executive. Accompanying these territorial government administrators were the consultants from the fields of law and engineering. The gist of the administrators and consultants’ presentation was that the incinerator project was an efficient way to remove garbage from the island while providing a relatively cheap and renewable source of energy. In addition, they repeatedly noted that the project met the best available control technology standards mandated by the EPA, although no standards for pet coke exist.
Opponents of the project included the president of the Bovoni homeowners association, the director of the St. John Community Foundation, environmental activists, and concerned private citizens. Their main concern was this project did not address the waste management problem in the Virgin Islands because current dumping sites would continue to leach toxic effluent, and the project would only account for a small percentage of the waste generated on the islands. Additionally, the opponents of the plant highlighted the potentially deleterious environmental and public health effects of the plant.
The hearings may or may not have had a lot to do with whether the plant is approved. The chairman of the committee indicated that the comments from the hearings would help the Senators make an informed decisions. Throughout our meetings with witnesses and senators and others, though, there was evidence that the decision may have already been made. In other words, the hearing’s real goal may be to let the public know that the Senators are seriously deliberating over the issue. If the Senate does approve the plant and the power purchasing agreement between WPA and Alpine, then further permits and laws may play a part in how the plant affects biodiversity.
Effects of the Proposed Incinerator on Biodiversity The proposed incinerator could have a number of ramifications for biodiversity. The most direct effect will be felt through habitat destruction, as the proposed site is an undeveloped hillside. In order to build the site, the top of the hill will be leveled off. This could result in loss of species habitat, and some of the species affected include endangered animals, such as the Virgin Islands Tree Boa, and an endangered grass species. Construction will also result in erosion that will run into the ocean, possibly interfering with coral reef and other marine life, including endangered coral species. The long term effects from the operation of the plant mainly stem from pollution. The pollution could take the form of particulate matter, non-toxic releases, and toxic emissions. These emissions could fall down on the Virgin Islands and the surrounding seas, and possibly be swept through the air into more distant locations. More locally, the emissions can fall down onto the island and be absorbed into terrestrial and aquatic environments. The long-term buildup of toxics could affect endangered species on the island, and decrease habitat by disturbing vegetation. A secondary concern is what will happen to solid waste that results from the burning of ash and pet coke. This will have to be deposited somewhere, and may result in more habitat loss if an area must be cleared to place this waste.
Some existing laws could aid in combating the potential biodiversity loss from the incinerator. For instance, the Endangered Species Act could come into play because the incinerator could possibly result in a taking of endangered species. If the Fish and Wildlife Service were to get involved, the builders of the incinerator would have to be deal with the possible taking through mitigation activities. The Clean Air Act and Clean Water Act could also play a role in the regulation of the proposed incinerator. The Clean Air Act would have an effect by regulating the type of control technology that would have to be utilized in the emission of burned materials. Particulates will result from the burning of certain materials, and these are also regulated by the CAA. Additionally, because there is a national park nearby, the National Ambient Air Quality Standards (NAAQS) would probably apply; and so there would be a duty to keep the air of St. Thomas pristine. The Clean Water Act could play a 2 roles: first, the resulting solid waste would likely have to be dumped somewhere, and the incinerator would be subject to point source regulation. Second, the water could be affected by the burnt ash making its way into the watershed and could incidentally have an effect on the pollutant levels in the water regulated by the CWA.
For the 10th year in a row, Biodiversity Law is being taught in the Virgin Islands. Here is the University of Kansas School of Law Biodiversity Law class' report from Day 1:
Today we went to Mermaid’s chair, located in Botany Bay on St. Thomas in the United States Virgin Islands. First we walked along the beach and observed the native flora and fauna. We noted a variety of flora, ranging from cactus to sea grapes, and a variety of fauna, ranging from soldier crabs to pelicans. We then observed tide pools, which acted as natural hatcheries.
After exploring the land we hit the water for some snorkel time to observe the marine life. As we snorkeled for an hour and a half, we were impressed by the abundance of fish and coral in such a small area. As a group we estimated on average each person saw 35 “species” of fish and coral. A few examples are:
Fish: Parrot fish Blue tang Squirrel fish Zebra fish Trumpet fish Neon fish Sea urchins Snails Ghost crab Duster worm Surf perch Clown wrasse Sergeant Major Tube sponge Flounder
Coral: Brain coral Staghorn coral Fire coral Pipe of pan coral Elkhorn coral Fan coral (in shades of yellow and coral)
Ecosystem Generally
Mermaid’s chair is a small cove at the intersection between the Caribbean and Atlantic. The cove is protected from the worst of the swells of the unprotected open sea, but enough waves crash into shore that the animals that call this place home must be adapted to the rough life. The water is temperate, with year round temperatures warm enough allowing for the existence of an incredible amount of coral and fish. Soldier crabs, ghost crabs, and snails live on virtually every land surface, from holes in the sand to various rock formations. The watershed feeding the cove with fresh water runoff is heavily forested and contributes little runoff or sediment, allowing for clearer water in the cove.
Policy Change/ Preexisting Laws For Mermaid’s Chair
Currently, there are laws and institutions in place for the conservation of biodiversity in Mermaid’s chair that could be applied to the existing ecological situation. For instance, the Endangered Species Act could prove useful to protecting many of the various organisms from coral to fish and birds. The Elkhorn coral is in such limited supply that is qualifies as an endangered species, as is the brown pelican. Extending the protection of the Endangered Species Act would ensure that government agencies had to be mindful of their actions as it would affect the endangered species. The ESA would also protect against takings by private parties; thus, individuals would be prevented from breaking coral or causing harm in any way to any endangered species. The ESA is already applicable to these endangered species, but further enforcement is necessary for the species to be effective.
Another possibility for conserving the biodiversity on the land and continuing to keep the beach a quiet and less-traveled beach is acquiring conservation easements on the private land currently slated for development. By stopping the development of the area, it would keep the integrity of the soil intact, would help prevent more destruction of native species, and keep further invasive species who hitchhike in on lumber and personal gardens out.
Possibilities for conserving the biodiversity at Mermaid’s chair include enacting zoning requirements and entering into use and development agreements with the builders. Zoning requirements would have to be enacted by the local government and would have to be constitutional in nature, but these could be anything as building density requirements to setbacks from the water. Entering into use and development agreements with the builders could accomplish these same goals, and could additionally require the development to be environmentally respectful and to preserve as much of the existing biodiversity as possible. These could take the forms of restricted covenants or contracts. This option allows the developers to take more initiative, and keep a better public relations perspective from the community and potential buyers.
Paul Krugman wrote a nice op ed piece in today's New York Times titled Bankers Without a Clue. Krugman observes disappointingly that the bankers just don't get it. In truth, comments like the financial crisis was just a perfect storm (Goldman Sachs’s Lloyd Blankfein) and that no one could have predicted its coming (Jamie Dimon of JPMorgan Chase & Co.) are pretty unbelievable. I hope that the executives of these large financial insitutions aren't and weren't really that clueless. That said, I agree with Krugman that I don't expect the banks to give much concrete advice on financial reform. The distrust the banks have of regulators (and desire to protect their own pocketbooks) has resulted in many of the banks repaying the TARP funds as soon as possible.
Bill Thomas who is Vice Chairman of the Financial Crisis Inquiry Commission has assured us that at least the questions will be asked. Question is, whether any meaningful financial overhaul will come from this?
This interdisciplinary Summit, hosted by Florida Coastal School of Law and co-sponsored by Jacksonville University, featured eight panels and three plenary speakers addressing various issue areas under the broad theme of sustainability. Many of the presentations may be of interest to Biolaw readers, including the panles on Land Use, Biodiversity & Ecosystems, and Forestry & Agriculutre.
For consumers looking for basic information about the CARD Act, the Federal Reserve just published What You Need to Know: New Credit Card Rules. What credit card companies must tell you:
when they plan to increase your rate and fees
how long it will take you to pay off your balance.
The circular also covers all the new rules on fees, rates and limits:
no rate increases for new cards in the first year
rate increases only apply to new charges
restrictions on over-the-limit transactions
caps on high fee cards
protections for underage consumers (under 21)
Finally, the circular contains some new rules on billing and payments:
standardized payment dates and times (i.e. payments due on the same day each month)
payments applied to highest risk first
no two-cycle billing.
All and all, the circular is easy to read and even contains handy definitions and links to other information. Hopefully, consumers will be able to find this easily on the Internet (and will read it). Three cheers to the Fed for trying to get the word out.
As part of my interest in rural development, natural resources management, and agricultural land use, I recently spent twelve days traveling to and around Namibia to research how its citizens market the rural landscape. More specifically, I was interested in the legal arrangements folks have used to help them develop agricultural operations (primarily ranches) into enterprises that encompass a variety of income streams. Below, I'll talk about Namibia and some of its history, the way in which ranchers have capitalized on the landscape and the wildlife there, and how that experience could be relevant to Nebraska's landowners.
Namibia is a large country with a relatively small population. It is roughly twice the size of California with about two million people. It achieved independence in 1990. It was a colony of Germany until World War I, and it was ruled by South Africa until independence. Much of the land in the country is privately owned, though there are significant parts of the country that remain governmentally owned. The governmentally owned land includes national parks (Etosha, The Namib Desert and the Sossusvlei (pictured below) are examples), the diamond mining area of the southern coast, and communal areas, which are somewhat like the reservations we have in the United States. Most of the landowners in Namibia are of German descent or Afrikaaners, who are of Dutch descent. The privately owned land is cut up into "farms," which we would call ranches in the United States. Each farm has set borders encompassing about four to five thousand acres. Many landowners own more than one farm and use it in their operation. The operations are primarily geared at livestock production and, more specifically cattle. Many of the areas don't look all that different than landscapes you could find in the midwest (picture) There is no significant feeding industry in the country because there is little rain and insufficient crop production. The cattle are raised to slaughter weight on grass and typically sold into European markets.
Insofar as wildlife are concerned, landowners in Namibia may generally kill any game occurring on their property. Trophy hunting, selling game meat, and other economic activities related to game hunting must be done with a government permit. The permits are issued by a governmental agency and are limited to the farm for which the permit is issued. In the areas where I was located (mainly in the central and southern parts of the country), the game I saw include Gemsbok (Oryx, pictured immediately below), Kudu, Springbok (both pictured below), Cheetah, Leopard, Warthog, Zebra, Ostrich and Jackal (as well as some other birds that I can't recall the name of - they don't really care much about bird hunting in Namibia). Notably, there is a robust market for game meat in Namibia. In fact, one of the ranchers I met with said that they eat no beef in their household, opting instead for the game. And I noticed a lot of game meat in the supermarket and restaurants.
Because there is economic value in the game for the ranchers, they have an incentive to manage their properties in a way that increases the presence of game and maintains species' populations. Moreover, many ranchers are engaged in activities other than hunting that benefit from the presence of a diverse array of species. Many, for instance, market their landscape and the relative solitude of open spaces by running guest lodges. Thus, managing the landscape for species' benefit, as well as cattle, yields economic returns to the ranchers.
However, the scale of an individual operation is an insufficient area in which to effectively manage game from year to year. Unless the rancher wants to invest in a huge (and relatively expensive) fence and operate a "game farm" within its borders, it makes more sense to allow the game to cross property boundaries as they always have. And with many species there is little choice to do otherwise, given the size of the animal's habitat needs. But this poses significant problems. The fact that game don't respect our boundaries eliminates many of the opportunities to profit. There is no guarantee from year to year that the game will come to the ranchers' land. And there is no guarantee that the neighbors will compensate the rancher for the benefits they reap from his management practices, let alone contribute to the species management.
Given the boundary and scale problems, many ranchers have formed what they call "conservancies". Basically, the ranchers join together in an association at a scale where game management becomes feasible and effective. These associations range in size from 250,000 acres to nearly one million acres. The landowners forming these associations write up a document outlining their goals and the activities they will undertake to achieve these goals. Most of the goals relate to game populations. Thus, the landowners, for example, may agree to conduct three game counts over the course of a year. They then meet annually to discuss how many of the existing population can be consumed for trophy hunting or other uses during the ensuing year on each ranch. The goal, of course, is to maintain the game populations at whatever level the group decides is appropriate, given the ranching activity, forage availability, likely rainfall, and species' health. Once the group agrees on these quotas, they forward their information to the agency in charge of permits. To the extent permits need to be issued (for example for meat hunts, meat sales after a culling operation, catch and sell, trophy hunts, etc.), there is an informal understanding with the government agency to issue the permits.
Interestingly, there has been an ongoing push for legislation that would formalize the permitting arrangement with the landowner associations and limit the level of government oversight. After all, the ranchers argue, there is no permitting required to raise cattle, and they do just fine in managing that species. Nonetheless, there has been some resistance to a wholesale relinquishment of game management to the private sector.
The viability of these sorts of associations in the grasslands of the midwest is something that I am considering. Many parts of Namibia resemble the grasslands of the US (see the picture below), and there is much we can learn from Namibia, and vice versa. For instance, we have never left much of anything to the private sector when it comes to wildlife management. Namibia is proof that the private sector, and more specifically, privately owned lands, can be a positive force in wildlife management, provided the incentives are there. Financial returns can also follow for landowners and others in rural areas.
Namibia's associations, however, have their problems. In general, they increase the value of individual ranchers' properties. However, there is always the possibility that individuals will withdrawal from the association, choosing instead to capitalize on the benefits of the surrounding landowners' management activities without contributing at all to the overall enterprise. Or the landowners may sell their property, leaving the choice of joining to a new owner who may ride along with the association for free. In the United States, we have the ability to create obligations that inure in the title to real estate and bind both present and future owners. We do that, for instance, with many residential housing developments (e.g. gated communities) in urban areas, which often involve associations. My work is considering how that aspect of American law can be used to avoid some of the problems that Namibian associations have encountered. Leases to an association are another option. In the end, we have an array of useful property law tools that landowners can use to create associations. And those tools can be used to helps landowners engage in the sort of cross-border enterprise that has worked fairly well in Namibia.
We also permit hunting somewhat differently than they do in Namibia. However, for reasons that would take too long to explain here, I tend to think that wholesale changes to our game laws are unnecessary. Landowners' ability to exclude hunters and others from their property and their ability to charge a fee for access make the differences in permitting somewhat irrelevant, provided enough permits are issued to effectively manage the population of the relevant species.
Finally, it should be noted that there are many different ways of doing business in this area and many more details that I have left out. There is one more aspect of these associations that is interesting. Many conservancy members in Namibia are perfectly content to raise cattle on their land without running guest farms or hunting operations. They remain part of the conservancy, however, for a couple of reasons. One is the desire to be a good steward of the game and landscape where their community exists. The most successful conservancies, after all, are comprised of landowners who see themselves as part of a larger community. Being a good neighbor is important. Additionally, and probably more importantly, even the passive member gets economic benefits from his membership. Sometimes they sell access to the property to third-party outfitters or neighbors who want to bring people onto the property for hunting or hiking or whatever. And one can structure the enterprise so that the association (owned by the landowners) pays dividends to the owners.
In the end, I think this is an interesting example of how agricultural lands can be used in ways that generate alternative revenue streams for landowners and ranch families. It has for some ranchers in Namibia, like the Pack family pictured below. If you are interested in this sort of thing, have questions, or would like to visit Namibia, give me a call or drop me an e-mail.
Mental health professionals have shown that there are serious emotional disturbances (SED) among children as a result of Hurricane Katrina. The Category 3 storm ravaged the Gulf Coast in August 2005. Characteristics of SED include inappropriate behavior, depression, hyperactivity, eating disorders, fears and phobias, and learning difficulties.
A team made up of mental health professionals, emergency response experts, and researchers from several universities, including Virginia Tech, has published the results of a study that shows serious emotional disturbances among children who were affected by Hurricane Katrina. The Category 3 storm ravaged the Gulf Coast in August 2005.
The study, published in a recent issue of the Journal of the American Academy of Child and Adolescent Psychiatry, showed the estimated prevalence of serious emotional disturbances (SED) among residents of the affected areas was 14.9 percent. Of those, 9.3 percent of youths were believed to have SED that was directly attributable to Hurricane Katrina.
"Stress exposure was associated strongly with serious emotional disturbances," said Russell Jones, professor of psychology in the College of Science at Virginia Tech and member of the research team. "More than 20 percent of the youths with high stress exposure had hurricane-related SED."
The study found that youth who experienced death of loved one during the storm had the strongest association with SED. Exposure to physical adversity was the next strongest. "The prevalence of SED among youths exposed to Hurricane Katrina remains high 18 to 27 months after the storm," Jones said. "This suggests a substantial need for mental health treatment resources in the hurricane-affected areas."
Katrina was the costliest hurricane in United States history as well as one of the five deadliest. Four years after the storm, nearly thousands of residents of Mississippi and Louisiana are still displaced from their homes.
Faculty meetings may have their charms, but efficiency does not rank among them. Many a time I have looked around a room full of my colleagues, long minutes into a winding discussion of what was supposed to take only a few moments to resolve, considered the full agenda still stretching before us, and bemoaned the deadweight social costs of law school governance. Allow me, then, to share a couple of partial cures—one an old favorite and the other a new find—from Robert's Rules of Order.
I've long been a fan of "calling the question," as we casually style the motion at my school. Full-on Robert's geeks know it as the "Previous Question" motion. Call it what you like, you have to love its effect: It takes precedence over every debatable question and, if the motion carries, forces a vote on the issue under debate.
Suppose, for instance, that a handful of faculty members have been arguing back and forth about some relatively inconsequential motion for 20 minutes or so, as everyone else's attention wanders and more important business goes untended. You get the Chair to recognize you and simply say, "I move to call the question." Once the motion carries—and often with sighs of relief—you and your colleagues can vote on the trifling motion and move on to other topics. (Section 20 of the Rules offers caveats and details, but most law school faculties seem to manage, surprisingly enough, with less than the full panoply of formalities.) Try calling a question the next time a faculty meeting starts spinning its wheels. You—and most your colleagues—will enjoy the ride.
Calling the question does not cure all the inefficiencies that afflict faculty meetings, however. Because we law profs so love to hear ourselves speak, for instance, we sometimes run on (and on and on) a bit. Polite coughs, finger drumming, and the like usually suffices to keep our monopolizing tendencies in control, happily. In fact, it was only very recently that I found myself wondering what a fellow could do when those informal measures failed. Here, too, Robert's Rules offers a remedy: a Question of Order pertaining to decorum.
Roberts Rule's provides, in § 34, that "no member shall speak more than twice to the same question . . . nor longer than ten minutes at one time, without leave of the assembly, and the question upon granting the leave shall be decided by a two-thirds vote [§ 39] without debate." Upon encountering an infraction of that rule, you have the right to interrupt the speaker. As section 14 says, one who so objects "shall rise from his seat, and say, 'Mr. Chairman, I rise to a point of order.'" The Chair must then decide the issue immediately, without debate. If the Chair finds the challenged speaker out of order, and if anyone objects to the speaker continuing, he or she must cede the floor unless the assembly votes to grant leave.
That sounds like strong medicine, granted, and would doubtless ruffle some feathers. But faculty meetings pose a classic tragedy of the commons, one where just a few overly-talkative people risk consuming far more than their fair share of everyone else's time and attention. Raising a Question of Order can help you save you—and thus your school—from the perils of a grossly inefficient faculty meeting.
For several years now the hot payment card story has been the rising interchange fees effectively paid by merchants to card-issuing banks on credit card transactions. A major class action attacking those fees is well underway, and the Department of Justice, Antitrust Division, has an open investigation.
Commentators have disagreed about whether market competition between Visa, MasterCard, American Express and Discover could yield an appropriate interchange fee or whether more aggressive industry regulation is required. Some say that the only competition is to increase fees to encourage banks to issue a particular network's cards. But some historical evidence suggests that competition among networks does create pressure to lower interchange fees to increase merchant acceptance. There has also been considerable debate about whether interchange fees constitute an unfair tax on those who do not use credit cards.
Surprisingly, however, debit card interchange fees have coasted under the radar since the 2003 settlement in which Visa and MasterCard agreed to pay merchants $3 billion and permit the acceptance of credit cards but not off-line signiture debit cards. At that time, Visa also significantly lowered the interchange fee on its signiture debit cards.
Today's New York Times has a front page story Visa's Strategy in Debit Cards: Push Up Costs by Andrew Martin taking Visa to task for its more recent debit card pricing practices. This attention is long overdue. In contrast to credit cards, the case against Visa and MasterCard's interchange fee pricing practices and the need for regulation are much stronger in the debit arena. Under the right conditions, American Express and Discover could possibly serve as a competitive check on credit card fees, but neither has a significant enough presence in the debit market to challenge the banks issuing Visa and MasterCard. And while the spending flexibility created by credit cards creates significant benefits for consumers and potentially increased sales for merchants -- benefits that may outweigh the cost of credit cards -- debit card benefits are considerably more limited for both consumers and merchants, and their costs are thus significantly less likely to be justified.
The development of debit cards is quite interesting. They began as extensions of ATM cards issued by regional networks of banks with the goal of saving costs by encouraging consumers to switch away from paper checks. Interchange fees were virtually non-existant and, in some cases, banks even paid merchants and consumers to stimulate use of the cards. But banks faced two problems. Like ATM cards, these early debit cards required the entry of a PIN, and most merchants did not have card acceptance systems that could handle PIN entry. Second, because the cards did not generate significant revenue for the banks, they could not justify investing in the advertising necessary to educate consumers about the cards.
Visa responded in the mid-1980s by creating a signiture-based debit card that could run over the Visa credit card network. It permitted any merchant accepting credit cards to also accept debit. And because the card was priced at near credit card levels, the banks were willing to support heavy advertising to stimulate debit card use. The scheme worked. Debit card use exploded.
An initial period of competition arose between Visa and the regional networks (as well as MasterCard) which argued that on-line PIN-based debit was a safer, lower cost option compared to Visa's signiture debit. During this era, Citibank's representative on the Visa board reportedly called the regional network operators "through-put jockeys" because they cared only about increasing volume on the network without paying sufficient attention to bank profits. The campaign thus began to encourage consumers to use signiture debit -- despite the greater potential for fraud and higher processing costs -- through rewards programs and other methods.
These practices led to a mid-1990s major class action led by Walmart and Sears, arguing that Visa and MasterCard illegal tied acceptance of signiture debit cards to credit cards. Six years later, Visa and MasterCard agree to settle the case by permitting merchants accepting credit cards to reject signiture debit and to reduce signiture debit interchange fees.
Although PIN acceptance is now widespread, expensive signiture debit remains a significant market force shifting billions of dollars annually from the retail industry to the banking industry. Why? After the settlement, very few merchants refused to accept signiture debit, fearing that they could lose customers. Today, Costco limits acceptance to PIN debit, and a few other major retailers try to steer customers to PIN, but most do not. In addition, even before the settlement, Visa began a strategy of increasing the interchange fees on its own PIN debit cards, including a major jump in 2007 that left its PIN system's interchange only slightly below its signiture debit interchange. The strategy has had the dual benefit of (1) forcing MasterCard and the regional networks to increase their PIN debit interchange to avoid losing bank support to Visa, and (2) discouraging merchants from disfavoring signiture debit by reducing the pricing spread. A former regional debit network CEO, Ronald Congemi, bemoaned Visa's strategy in the Times article: “What we witnessed was truly a perverse form of competition. They competed on the basis of raising prices. What other industry do you know that gets away with that?”
Critically, debit card issuance is much less costly for card issuers than credit card issuance. Debit cards are issued virtually costlessly to checking account holders as part of the ATM card package. Moreover, they carry virtually no credit risk for the issuer, as the money for the charge is removed from the checking account promptly for signiture debit and immediately for on-line PIN debit. On-line PIN debit also dramatically reduces fraud risk.
Perhaps because credit interchange fees have increased so much, debit cards may appear to be a good deal for merchants. But given the cost differences for card issuers, debit card fees may be much less justifiable and thus a more appropriate target for regulatory attention.
A few months ago, Oxford published When Cooperation Fails: The International Law and Politics of Genetically Modified Foods, an interesting new book by Gregory Shaffer and Mark Pollack. Today, Opinio Juris is hosting a one-day book discussion about the book, with yours truly as a guest blogger. Please join the conversation--it should be fun!
At the American Association of Law School's Annual Meeting in New Orleans, there will be a special open source program presented on Food, Law & Values. This program will be held on Friday, January 8, 4:00 – 6:00 p.m.
The agenda for the program, provided by organizer Professor Donna M. Byrne, William Mitchell College of Law is as follows:
Food Production beyond Technology: Risks, fears, environment, and labor 4:00 – 4:50
Moderator: Bret C. Birdsong, University of Nevada, Las Vegas, William S. Boyd School of Law
A program on food law would naturally begin with food production. Increasingly, consumers are interested in how food was produced, demonstrating that food production is more than agricultural and scientific techniques. Food production raises value-laden questions of identity, personal autonomy, and concern for culture. In addition, advancing technology implicates uncertainty and risk. This panel presents several points of focus on values in food production, approaches to risk and uncertainty in food production, and the appropriate roles for governmental intervention.
Panelists:
Stephanie Tai, University of Wisconsin Law School – Food safety regulation development and confined animal feeding operation (CAFO) siting management may seem to be widely disparate subjects, but Professor Tai will bring these together by focusing on the tensions between public participation and scientific expertise in these two different contexts. Rather than providing normative recommendations regarding these issues, however, the focus is on recognizing the implications of public participation structures for the epistemic nature of the scientific information used by agencies in reaching their regulatory decisions.
Guadalupe T. Luna, Northern Illinois University College of Law – Agricultural laws affect more than food. Professor Luna will discuss globalization of the agricultural workforce and its impact on domestic Indians and the Purepecha Indians from Mexico. The Purepecha are farmworkers residing on the Cahualla Indian Reservation in California and in difficult housing conditions. The immediate intent is not to lay blame on the tribe housing the farmworkers; but to illustrate how agricultural laws are directly harming both groups with further attendant harm on the environment of an Indian nation.
Dean James Ming Chen, University of Louisville, Louis D. Brandeis School of Law -- The mass marketing of foods derived from organisms modified through recombinant DNA technology has put extreme pressure on the interpretation and implementation of the United States' basic food safety law, the venerable Food, Drug & Cosmetic Act. In its classic form, the FD&CA reflects its Progressive and New Deal roots. It vests enormous trust in a specialized agency, the Food and Drug Administration, which is presumed to have nonpareil expertise over food safety. The political reality of GM foods, however, has placed the FD&CA and its implementation by the FDA in severe tension with the Organic Foods Production Act and with commercial speech doctrine. Fear about food is one of the most deeply seated forms of behavioral protection against the natural world. It is precisely here, where food comes into contact with notions of good and evil, that the classic regulatory state must take its stand. The FDA's regulation of foods using rDNA technology upholds the best of the Progressive regulatory tradition and deserves to survive the challenge posed by the OFPA, the revived commercial speech doctrine, and contemporary consumer distrust of governmentally supervised review of science and safety.
Marne Coit, Coit Consulting, Fayetteville, Arkansas – Local food systems and sustainability. For people who work in agriculture, there is often a tendency to view one's work as either helping farmers or as helping consumers. A dichotomous viewpoint such as this is not necessarily productive. In particular, when thinking about sustainability, it is more productive to use a systems approach, and to think about these issues in a way that takes farmers, consumers, the environment, culture, and ethics into consideration. One model that seeks to accomplish this is that of local food systems, a model which works to meet the needs of both farmers and consumers in a sustainable manner. This model has become increasingly popular in recent years.
The Role of Governments – Labels, Regulation, Economy, and Safety 4:55 to 5:25
Moderator: Donna M. Byrne, William Mitchell College of Law
The Obama administration seems to be taking a more aggressive approach with respect to controlling the food industry through increased regulation. States and local governments are also taking a more pro-active approach. One area where regulation has an obvious role is labeling. Food labeling should be a way to provide consumers with the opportunity to make decisions about what they eat - decisions that may be based not only on safety or nutrition but on other factors such as social or economic issues. But, how can the law better assure that food labels serve these larger purposes? How do other countries address these issues?
Panelists:
Margaret E. Sova McCabe, Franklin Pierce Law Center -- the relationship between scientific certainty, food label claims, and consumer information. Professor McCabe will use the gluten-free definition as an example of how Congress asked FDA for a definition in the FALCPA, but that FDA interprets this mandate to require comprehensive review of the status of science on celiac disease as well as product testing.
Neil D. Hamilton, Drake University Law School – A perspective from the Obama/Vilsack administration. Professor Hamilton chaired the Iowa Food Policy Council for six years under then Governor Vilsack and is now serving as an informal adviser to him and USDA on various issues - including the new Know Your Farmer Know Your Food effort as well as the People's Garden project.
Thomas Wilson, Alabama A&M University School of Agricultural & Environmental Sciences – A view from across the pond. Professor Wilson started the online Food Law Certificate Program at Michigan State and was chair of the Institute of Food Technologists food law committee for a year as well. More recently Professor Wilson has lived in Europe working with the Food Directorates in the Netherlands.
Food Law, Food Law Scholarship and where we go from here. 5:30 – 6:00
Moderator: Stephanie Tai, University of Wisconsin Law School
One of the driving notions behind the open-source program idea is to get folks together who often think about disparate things that bear some relation to food law. Although many scholars have been writing about food law for a long time, others are moving into the area from other disciplines. This panel will provide a chance for us to discuss, albeit briefly, where we, as legal scholars, see our particular niche (or niches) in the development/transformation of food policy.
Panelists:
Susan Schneider, University of Arkansas School of Law – From agriculture to food. The LL.M. program at the University of Arkansas School of Law now includes food law courses in its curriculum and recently changed its name to LL.M. in Agricultural & Food Law. When is agricultural law food law? Professor Schneider's recent scholarship calls for a reassessment of agricultural policy to reflect a closer connection to food policy goals and environmental sustainability. The shift in focus to consumer-driven issues with value-laden agricultural implications is bringing food law issues into the spotlight.
Bret C. Birdsong, University of Nevada, Las Vegas, William S. Boyd School of Law – Critical Rice Theory. What is the role of the academy? Are we asking the right questions? The food choices that are available to us as individuals and collectively are bound up with our system of food law. Law shapes and informs those choices, and the food system shapes and informs the law. The enterprise for legal scholars should be to explore the interlinking web of law and food, taking into account the wide array of values that food and food production systems implicate, and suggest improvements that can help to transform the system into one that is more balanced, just, and sane.
Large Panel -- Where do we go from here? Any or all can chime in.
This announcement came in from Beth Crocker, J.D. Drake University School of Law, LL.M. Agricultural Law, University of Arkansas School of Law. Beth serves as Counsel for the South Carolina Department of Agriculture and has been instrumental in their impressive local foods campaign. Note the January 8 Registration deadline for this workshop.
Sustainable South Carolina Local Food Systems Workshop January 29, 2010 8:00 a.m. until 4:30 p.m. Hilton Columbia Center 924 Senate Street Columbia, South Carolina
Currently the demand for locally-produced foods in South Carolina is much greater than the supply, creating tremendous economic opportunities for local farms and markets and also consumers interested in a more healthy diet. This workshop will address local food policies in South Carolina from farm to fork, looking at all aspects of food policy in South Carolina including sustainable production, distribution and consumption trends and why a sustainable food system is advantageous to South Carolina. The goal of the workshop is to explore challenges and opportunities leading to the development of sustainable food systems for South Carolina, including key economic, environmental, food distribution and health aspects that are critical to sustainable, local food systems. The result of this workshop will be a set of written guiding principles for achieving a more sustainable, local food system in South Carolina. The registration deadline is January 8, 2010. More information and registration details can be found on the South Carolina Department of Agriculture Food Policy Counsel website.
Not everyone reads the details on their food labels. And there is a lively debate about how much information to provide to consumers, how to provide that information, and how much our "storied food" tells a true story. However, I recently read about the exposure of real food fraud, thanks to a New York high school DNA testing project. Two students uncovered some mislabeling of the most overt sort. Stuff that was just not what it was supposed to be.
Through DNA testing the students found food labeled as sturgeon caviar that was in fact Mississippi paddlefish; "sheep's milk cheese" that made from cow's milk; "smelt" that was Japanese anchovy; and "venison dog treats" made from beef.
The LA Times blog, Booster Shot picked up the story and quoted the students report:
"We do not know where or why the mislabeling occurred, but most cases appeared to involve substitution of a less expensive or less desirable item, suggesting the possibility of deliberate mislabeling for economic gain. We also think mislabeling is a serious problem because certain individuals have allergies or dietary restrictions regarding certain foods. ... Like a powerful flashlight, DNA exposes hidden identities of living and once-living things. We look forward to more explorations!"
There are, of course, a couple of good aspects to the story. First, what a great way to introduce students to the power of information and of science. Second, what a good way to catch mislabeling. My guess is that companies may be less hesitant to cheat if they worry about getting caught.
The Drake Forum on America's New Farmers: Policy Innovations and Opportunities will take place Thursday and Friday March 4-5, 2010, at the L'Enfant Plaza Hotel in Washington DC. This two day meeting will bring together policy advocates, government officials, and beginning farmers from across the nation to consider how best to support policies creating the next generation of America's farmers. Drake University is pleased to have the financial support of USDA Risk Management Agency, the Farm Credit Council, and others in making the Forum possible. A dozen agricultural groups and institutions involved with new and beginning farmers are cooperating with Drake on this initiative. Registration for the conference is now open and can be found on the conference website.
The Forum will begin with a panel of new farmers talking about their hopes and needs for public policy. Discussion sessions are planned on: land access and availability; innovations in finance and credit; lessons from beginning farmer efforts; new farmer training and education programs; opportunities for new farmer communities; and markets and sustainable rural revitalization. The closing plenary will address the road ahead in identifying opportunities for national policy action.
Senior leaders from Congress and USDA have been invited to provide keynote presentations. A local food reception and a new farmer film festival are planned for the evening of March 4th.
Forum organizer, Professor Neil Hamilton is working to finalize the agenda of speakers and panels and reports that he is pleased to have several new national organizations joining Drake as co-sponsors for this event. Anyone with questions or suggestions for the Forum should e-mail americasnewfarmer@drake.edu or call 515-271-4956.
They came, they jawed, they Accorded. The 15th United Nations Climate Change Conference ("COP15") is now history. When I was in Copenhagen recently, both the pride of the Danish in hosting COP15 and their high hopes for a diplomatic breakthrough to tackle climate change were tangible. For example, the spirit was festive in the Kongens Nytorv, a major public square in the city's center, despite its being filled with dozens of large globes representing different interpretations of climate change's perils and a large exhibition of human-sized photos depicting habitats and inhabitants from around the world endangered by rising concentrations of greenhouse gases. Danes I spoke to seemed to believe a meaningful treaty to reduce greenhouse gas emissions was likely.
It is early days yet, but there are some worrying signs that Hopenhaven may instead have become Nopenhaven. Discord between less and more developed countries was immediately a dominant theme, and at one point a number of delegates from African countries actually brought official proceedings to a halt to protest perceived intransigence and injustice by "rich" developed countries. Connie Hedegaard resigned her post as COP15's president partway through the conference. Most significantly, the conference ended without a draft - let alone signed - treaty. Instead, the world was left with a consolation prize of uncertain vitality: the "Copenhagen Accord" that COP15 made a rather hollow "decision to note".
The New York Times lamented that
Despite two years of advance work, the meeting failed to convert a rare gathering of world leaders into an ambitious, legally binding action plan for reducing greenhouse gas emissions.
The Financial Times' editorial page pronounced a more lacerating judgment: "Dismal outcome at Copenhagen fiasco". Finally, environmental groups from around the world came to their own coincidental "Copenhagen Accord" with the market for trading carbon emissions, where the European Union’s December 2010 carbon contract declined 8% today to €12.41 per tonne after declining by a similar amount last week. Talk may be cheap, but so, in wake of COP15, is emitting carbon.
Please note: This concluding post in the series presumes one has read the prior posts on the subject, but in particular the posts commencing with "Power: An Introduction—Part 3(a)."
Our final discussion of "power" examines the de that comes from the possession and exercise of spiritual and moral authority. It draws on examples and exemplars from several classical Chinese worldviews.
The Art of Rulership (Huainanzi, 2nd century BCE) is, arguably, a provocative attempt to integrate conventional conceptions of legal and political power with the more obscure or ill-understood notions and descriptions of moral and spiritual power we find in circulation among classical Chinese worldviews. But such an integration was not literally possible owing to the vastly different presuppositions and assumptions one finds at the root of Legalist thinkers and their Confucian and Daoist counterparts. As Roger Ames informs us, the text is littered with ostensibly Legalist terminology, analogies, metaphors and allusions but it does not "read" at all as a Legalist work of political philosophy or even an attempt to integrate or harmonize this philosophy (were that possible) with writings we today identify as Confucian and Daoist. Instead, the "spirit of eclecticism" and "creative syncretism" (what Goldin prefers to call 'insidious syncretism') that characterizes this Han dynasty treatise, suggests its animating purposes are best described as Confucian and (especially) Daoist, and thus Legalist assumptions, beliefs and premises about power cannot be reconciled with those purposes: "The political theory contained in The Art of Rulership, although constructed with an obvious Legalist facing, shares an underlying sympathy with precepts of Taoist and Confucian origin and, taken in total, contains a systematic political philosophy that is not only unique but compelling" (Roger Ames).
Two passages must suffice here to illustrate the distance of the Huainanzi from the (im)moral and political views of the Legalists, First: "Punishment and penalties are inadequate to put an end to wickedness. Only godlike transformation is estimable and only the most essential vapors [zhijing, 'subtle or utmost essence.' As Ames explains, this expression 'is a special term in this treatise connoting a powerful though intangible inner potency which, when concentrated and retained intact, can be directed at others to influence their activities and effect their transformation.'] can do it in this way." Second: "There is that by which a State is preserved; there is that by which a man stays alive. That on which a State exists is benevolence and rightness; that on the basis of which man lives is doing good." Therefore my take on the Zhushu chapter of the Huainanzi is akin to Ames's interpretation and in opposition to Paul Rakita Gordin's plausible but (what I believe to be) unpersuasive argument that the principle (or ideal) of limin or "benefiting the people," "represents a consciously articulated ideology of autistic paternalism." I would rather characterize it as an early Chinese variant of "benevolent libertarian paternalism" or perhaps an "ethics of care and empathy" writ large!
From The Analects(Ames and Rosemont translation):
1.2 Master You said: 'It is a rare thing for someone who has a sense of filial and fraternal responsibility (xiaodi) to have a taste for defying authority. And it is unheard of for those who have no taste for defying authority to be keen on initiating rebellion. Exemplary persons (junzi) concentrate their efforts on the root, for the root having taken hold, the way (dao) will grow therefrom. As for filial and fraternal responsibility, it is, I suspect, the root of authoritative conduct (ren).' Comment: Notice that this does not mean that a junzi will never have a reason for deying authority. As virtue ethical theory reminds us, the source of sound character and goodness is cultivated first in the family and intimate relations. Likewise, ren is no less relevant to questions of authority and responsibility in wider social relations, in particular, the political realm, and the junzi will therefore have a proper understanding of the reasons behind the exercise of authority beyond the intimate sphere in the arena of collective conduct.
1.10 Ziqin asked Zigong: 'When the Master arrives in a particular state and needs to learn how it is being governed, does he seek out this information or is it offered to him?' Zigong replied: 'The Master gets all he needs by being cordial, proper, deferential, frugal and unassuming. Perhaps this way of seeking information is somewhat different from how others go about it.'
1.15 Zigong said: 'What do you think of the saying, "Poor but not inferior, rich but not superior?"' The Master replied: 'Not bad, but not as good as "Poor but engaging the dao, rich but loving li."' Zigong said: 'The Book of Songs states, "Like bone carved and polished, Like jade cut and ground." Is this not what you have in mind?' The Master said: 'Zigong, it is only with the likes of you then that I can discuss the Songs.' Comment: One reason I've included this passage is that it provides us with an exquisite excuse to introduce, by way of Michael Nylan's book (2001), the significance of the Five Classics (namely, the Book of Documents [or Book of History], the Book of Odes [or Book of Songs], the Yijing [or Book of Changes], the Rites [Li] Canons, and the Spring and Autumn Annals), but in particular and especially the Book of Odes in both Confucianism and Chinese civilization of the period in general. In addition to the Analects, these texts quicken our appreciation of the role of li and wen in the self-cultivation or spiritual askesis of the (would be) junzi and more widely as the social forms and institutions through which jen is made manifest and thus the power of de is expressed and felt. In other words, here we witness the power of de in action, that is, the de of wisdom and judgment embodied in the praxis of the microcosmic realm of the intimate sphere on the one hand, and in the praxis of the interrelated and complementary macrocosmic political sphere on the other:
"As a textbook of style and the language of diplomacy (in both senses of the word), the Odes could hardly be outdone. A storehouse of elegant language and refined formulae, preferably intoned with special pronunciations in set keys, it served as a kind of early thesauras and book of etiquette rolled into one, whose limited format was of limitless applicability. The social graces in turn were what made for an impressive character: the 'sound of virtue' capable of influencing others for the good. Good students of the Odes, according to tradition, 'incite [others'] emotions, observe their feelings carefully, keep company with others, or express grievances, either in the service of their fathers at home or their princes abroad.' [....] This potential for suasive power, the most typical motive cited for the study of the Odes and for the inclusion of the canon in the curriculum of the polite arts, rested on an admirable virtuosity. The ability to select on the spot an apt citation from the anthology so as 'to round out meaning' displayed erudition and perceptiveness. To go on to compose minor variations on an ode or to match or 'cap' a verse, returning it with one better, took greater improvisational insight. The ultimate test of a person's discernment—the capacity to make perceptive connections—occurred in the social arena in contests of oratorical skill in which the recitation of short selections from the odes or extemporaneous variations on them could sway the course of events [emphasis added]. [The indissoluble ties sketched here between literature, etiquette and ethics bear comparison with the concept and praxis of adab in Islamic history, as well as with the Republic of Letters in the Parisian salons of the European Enlightenment, governed by remarkable salonnières like Marie-Thérèse Geoffrin: the female equivalent of the Confucian junzi.]
[T]hose who could chant odes and respond appropriately to them were considered 'qualified to become great officers' who would 'turn their merits to account.' Conversely, the lack of such abilities was deemed sure proof of the person's loutishness, ignorance, insensitivity, and lack of suasive influence, in that 'words lacking pattern and refinement do not go far [in persuading others].' Based on his knowledge of odes, one could get a fair grasp of a man's training, self-discipline, and resourcefulness. And this ability to know men via their knowledge of the Odes, was considered the most valuable type of knowledge available to the ruling elite. To know others and to be known favorably by them was the one skill essential to those wishing to acquire or retain high rank. At the same time, those already in power needed to exercise their powers of discernment in knowing others, lest they fail to measure merit accurately, employ it suitably, and reward it proportionately, for only thus can a superior attract good men to his service and secure their loyalty [emphasis added].
In the political domain...acts of knowng and persuading rested upon wise use of the Odes. Where the Documents canon enjoin rulers to know men, the phrase is always in the context of selecting the very best men for bureaucratic office. But if the odes, or at least the State Airs, were in any part the powerful expressions of unlettered commoners, then the task of knowing men ultimately required at the same time the development of a fine sensitivity to the less overtly political, an attention to the essential, irreducible nature and feelings common to all people at all eras, regardless of rank, so as to arrive at the broadest, most long-range, and most compelling views possible. [....] [T]he very existence of the Odes anthology and its reputed origins implied the necessity for members of the ruling elite to attend closely to the stories, duties, and songs circulating among the very lowliest subjects in the state, even the fuel and fodder gatherers, for only in that way could one know enough men well enough to persuade and be persuaded by them, as appropriate [emphasis added]." (Michael Nylan)
2.1 The Master said: 'Governing with de can be compared to the North Star: the North Star dwells in its place, and the multitude of stars pay it tribute.' Comment: As Ames and Rosemont remark in their note to this passage, "This is the Confucian version of the Daoist 'nonassertive action' (wuwei) where patterns of deference make governing 'noncoercive' and 'authority' is authoritative rather than authoritarian." In The Art of Rulership (1994) Ames elaborates: "The ruler 'does nothing' inasmuch as his personal cultivation, possible only through interaction with his people, does not require the projection of arbitrary demands on his subordinates. His relationship with these subordinates is characterized by a total absence of compulsion. That the particular realization of these subordinates happens to be congruent with that of the ruler is due to their common participation in a creative moral order."
2.3 The Master said: 'Lead the people with administrative injunctions (zheng) and keep them orderly with penal law (xing) and they will avoid punishments but be without a sense of shame. Lead them with de and keep them orderly through observing li and they will develop a sense of shame, and moreover, will order themselves.' Comment: Much could be said about this passage but I'd like to exploit the mention of li to once more share a bit from Nylan's brilliant treatment of the Five Classics, this time round on the meaning of li in the Li canons:
"[The three Rites canons] assume that everyone can be perfected; they stipulate that a code of manners, aristocratic in origin, be learned and applied to all humans; they advocate the assignment of social rank according to virtue and merit, defining both in terms of relative contributions to the larger society, and they aim to school each person, through theory and praxis, in the very social skills that facilitate effective interaction. Accordingly, it should come as no surprise that nonelites in early, medieval, and late imperial China were at times more eager than the social and political elites to embrace the precepts set forth in the Rites canons. The rites could empower commoners to join the elites justs as easily as they empowered elites.
Training in ritual [li]...habituated persons to strict order and hierarchy while providing the periodic indulgences and spectacles that gave people welcome release from their daily drudgery. At the same time, it served to preclude or regulate unhealthy or unrealizable desires, making the expression of human feelings both refined and satisfying. Finally, the aesthetic coherence of individual rites were then deeply pleasurable to participants and audience alike, which tended to reinforce the desire to behave well. By contrast, the penal code hardly guaranteed better conduct. Written laws, which did nothing to reform the person from within, would more likely spur men to look for legal loopholes or to turn litigious. Rites worked to instill morality, in other words, penal law could only define the illegal, notify people that crimes are to be avoided, and punish crimes after the fact, For Confucius, then, rule by ritual is manifestly better than rule by law, not only because it is inherently more humane, but also because it is more effective. Whereas rule by law can only at best deter crime, rule by ritual can preempt the impulse to crime by fostering in humans, through symbolic systems, the desire to create and enhance community, and so teach humans to satisfy their most basic needs without hurting others."
2.21 Someone asked Confucius, 'Why are you not employed in governing?' The Master replied, 'The Book of Documents says: It is all in filial conduct (xiao)! Just being filial to your parents and befriending your brothers is carrying out the work of government. In doing this, I am employed in governing. Why must I be "employed in governing?"' Comment: Self-government is morally obligatory and prior to wider forms of governance and government. Like eudaimonistic ethics, Confucianism offers us a type of moral individualism (or moral autonomy in the minimal sense) if only because of its concentration on self-cultivation and character development, as well as the fact that individuals are responsible for actualizing objective value in the world. Again, like eudaimonism, self-government made possible through self-cultivation (by way of li and wen) is the ideal model or paradigm of good collective government. Therefore one of the criteria for assessing the moral legitimacy of the latter form of government is its ability to generalize throughout society the opportunity and capacity for self-cultivation and self-government and thus the attainment of ren. More fundamentally, collective good government should provide the necessary preconditions of self-cultivation that are not self-suppliable by individuals. Individuals, in turn, are under an individual and collective moral obligation to support a state that endeavors to meet these conditions and criteria (cf. David L. Norton, Democracy and Moral Development: A Politics of Virtue, 1991: 6-11).
4.1 The Master said, 'In taking up one's residence, it is the presence of authoritative persons (ren) that is the greatest attraction. How can anyone be called wise who, in having the choice, does not seek to dwell among authoritative people?'
4.25 The Master said, 'Excellent persons (de) do not dwell alone; they are sure to have neighbors.'
8.9 The Master said, 'The common people can be induced to travel along the way, but they cannot be induced to realize (zhi).' Comment: The junzi and the sage possess the requisite ren and zhi that can motivate others, through the power of de, to follow the dao, to practice or emulate good behavior, even if the common people lack the wisdom and self-knowledge possessed by the sage and junzi. There is an implicit recognition here and elsewhere in the Analects of the necessity for what James MacGregor Burns has termed "transforming leadership" (Burns thought Mahatma Gandhi was 'perhaps the best modern example' of such leadership. For a brief but informative discussion, see Dennis Dalton's Mahatma Gandhi: Nonviolent Power in Action, 1993: 191-194). According to Burns, "Transforming leadership [in contrast to the 'transactional' type] ultimately becomes moral in that it raises the level of human conduct and ethical aspiration of both leader and led, and thus it has a transformative effect on both."
12.19 Ji Kangzi asked Confucius about governing effectively, saying, 'What if I kill those who have abandoned the dao to attract those who are on it?' 'If you govern effectively,' Confucius replied, 'what need is there for killing? If you want to be truly adept, the people will also be adept. The de of the junzi is the wind, while that of the petty person is the grass. As the wind blows, the grass is sure to bend.'
15.5 The Master said, 'If anyone could be said to have effected proper order while remaining nonassertive, surely it was Shun. What did he do? He simply assumed an air of deference and faced due south.' Comment: Ames will again be our guide: "This passage is not an unrepresentative excerpt from the Analects. On the contrary, it can be regarded as a succinct characterization of the Confucian attitude toward government. In this ideal Confucian administration, the ruler does not personally attend to matters of government, but by setting a positive example and through the charismatic influence of his virtue (de), the people are led into a manner of conduct in which they seek moral achievement" (cf. 2.1 above). And although this is the only instance of the term wu-wei in the Analects, "it can be argued that wu-wei is an appropriate description of the ideal Confucian ruler: one who reigns but does not rule." Philip J. Ivanhoe confirms and expands upon the above, noting that, in the case of rulers, it is de that "enabled them to attract loyalty and worthy followers; it gave them a way to legitimize a noncoercive form of government."
From the Daodejing (Translations by LaFargue [L], Ivanhoe [I]):
67 [L]: I have three treasures, I protect and keep hold of them. The first is called 'gentleness' The second is called 'frugality' The third is called 'not promising to act like leader of the world.' Gentle, so able to be bold frugal, so able to be lavish not presuming to act like leader of the world, so able to become head of government. Now: To be bold without being gentle to be lavish without being frugal to act like a leader without putting oneself last: this is death. Yes, gentleness: 'Attack with it and you will win defend with it and your will stand firm.' When Tian wants to resuce someone, it surrounds them with a wall of gentleness.
7 [I]: Tian is long lasting; Earth endures. Tian is able to be long lasting and Earth is able to endure, because they do not live for themselves. And so, they are able to be long lasting and to endure. This is why sages put themselves last and yet come first; treat themselves as unimportant and yet are preserved. Is it not because they have no thought of themselves, that they are able to perfect themselves?
23 [I]: To be sparing with words is what comes naturally, And so, A blustery wind does not last all morning; A heavy downpour does not last all day. Who produces these? Tian and Earth! If not even Tian and Earth can keep things going ofr a long time, How much less can human beings? This is why one should follow the Dao in all that one does. One who follows the Dao identifies with De. One who follows loss identifies with loss. The Dao is pleased to have those who identify with the Dao. Loss is pleased to have those identify with loss. Those lacking in trust are not trusted.
46 [L]: When the world has Dao, they have no use for saddle horses, using them to haul manure. When the world has no Dao, they raise war horses on sacred ground.
Nothing is more crime producing than desirable things, nothing is a worse misfortune than not being content, nothing makes for more guilt than desire for gain. Yes: Be content with enough, and there will always be enough.
59 [L]: 'When it comes to governing the people and securing Tian, there's nothing like a farmer.' Just being a farmer— This means getting dressed early. Getting dressed early means increasing one's store of De
AP reports that talks over REDD are faltering because developed countries are not willing to finance developing country readiness for the program. This is not surprising since financing disputes have repeatedly limited the development of international environmental law. The significance of financing disputes are nowhere more apparent than in the history of efforts to secure a binding international agreement to slow deforestation (which, after over 16 years of on-and-off efforts, is not even close to realization).
However, REDD promises a way to overcome the issues that have derailed prior efforts to secure tropical forest protection. Among other things, it offers developed countries an opportunity to buy carbon credits for less than the cost of reducing their domestic emissions, while giving developed countries a chance to sell credits for more than the costs of avoiding deforestation . . . if they can establish the necessary verification and monitoring systems to demonstrate avoided deforestation.
I've offered an option for incentivizing protection of biodiversity through a voluntary certification option within REDD in a recent article. I think that a similar approach could offer a way around the current financing disputes as well. REDD could be a two-tier system that offers a choice for developing countries to develop either relatively streamlined mitigation projects without international financing, or more elaborate adaptation-oriented REDD projects with certification for biodiversity and socio-economic co-benefits that is underwritten by international assistance. I am currently working on an article to develop this concept, but it certainly won't be ready by the time negotiations wrap up later this week. :-)
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The New York Times reports that the USDA is dropping plans for the National Animal Identification System (NAIS). USDA Drops Plans to Drop Program to Trace Livestock, Feb. 5, 2010. The department will announce a new traceability plan based on state-based programs and the regulation of livestock shipped in interstate commerce. Information about the new approach is available on the USDA Animal Plant Health Inspection Service (APHIS). Credit to Aimee Witteman,Executive Director, National Sustainable Agriculture Coalition for the link.
What does it mean to be free? When many of us open up a new checking account, it is with the intention of doing business with that bank for a period of time. After all, I've not got my online banking set up to send up bill payments. I've ordered printed checks for when I need them. I've got my debit card. It is a hassle to switch banks and have to redo all this. So, it is important that banks disclose account fees at the outset.
So might have believed customers over at Citibank who opened checking accounts advertised as free. Despite the free-hook, Citibank announced that it would begin imposing account fees on these same customers. Apparently about 1 million free accounts were included. The Truth In Savings Act requires banks to disclose account fees. So, free means free. Moreover, one might expect the free status to last for some time. Not surprisingly then, New York Attorney General Andrew Cuomo's office complained about the Citibank fee increase. Today, Citibank announced that free will remain free, putting aside overdraft and other fees, for the time being. (See Citibank to Keep Free Checking).- JSMOur nine month course of study attracts attorneys from throughout the United States and from abroad. While many of our students are recent law school graduates, others enter the program as experienced practitioners. Our alumni are among the leaders in the agricultural law and food law communities.
Please note: Our prior posts, in order, are here and here.
