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March 21, 8:30 PM   /   Ratio Juris   /   The "Waste, Fraud, and Abuse" Trope: In Search of Facts

In today's Los Angeles Times we're treated to another insightful column from Michael Hiltzik: "Here We Go Again: Candidates Pledge to Search for Waste, Fraud and Abuse.'"

I doubt any of my state's gubernatorial candidates will mention this during their campaigns: "California's food stamp participation rate is nation's second lowest."

This reminds me of the fact that, in Iris Mudoch's words, "the concept of 'fact' is complex:"

"The moral point is that 'facts' are set up as such by human (that is moral) agents. Much of our life is taken up by truth-seeking, imagining, questioning. We relate to facts through truth and truthfulness, and come to recognise and discover that there are different modes and levels of insight and understanding. In many familiar ways various values pervade and colour what we take to be the reality of our world, wherein we constantly evaluate our own values and those of others, and judge and determine forms of consciousness and modes of being. To say all this is not in any way to deny either science, empiricism or commonsense. The proposition that 'the cat is on the mat' is true, indicates a fact, if the cat is on the mat. A proper separation of fact and value, as a defence of morality, lies in the contention that moral value cannot be [after Hume] derived from fact. That is, our activity of moral discrimination cannot be explained as merely one natural instinct among others, or our 'good' identified with pleasure, or a will to live...."

Robert Nozick puts Murdoch's point this way:

"Values enter into the very definition of what a fact is; the realm of facts cannot be defined or specified without utilizing certain values. Values enter into the process of knowing a fact; without utilizing or presupposing certain values, we cannot determine which is the realm of facts, we cannot know the real from the unreal."

Which is why I'm glad Murdoch mentioned the "cat on the mat," a seemingly innocuous proposition bereft of value. But even this statement is shot through with values of a kind, as Hilary Putnam explains in his inimitable manner:

"[F]act, (or truth) and rationality are interdependent notions. A fact is something that it is rational to believe, or, more precisely, the notion of a fact (or a true statement) is an idealization of the notion of a statement that it is rational to believe. [….] [B]eing rational involves having criteria of relevance as well as criteria of rational acceptability, and…all of our values are involved in our criteria of relevance. The decision that a picture of the world is true (or true by our present lights, or 'as true as anything is') and answers the relevant questions (as well as we are able to answer them) rests on and reveals our total system of value commitments. A being with no values would have no facts either. The way in which criteria of relevance involves values, at least indirectly, may be seen by examining the simplest statement. Take the sentence 'The cat is on the mat.' If someone actually makes this judgment in a particular context, then he employs conceptual resources—the notions 'cat,' 'on,' and 'mat'—which are provided by a particular culture, and whose presence and ubiquity reveal something about the interests and values of that culture, and of almost every culture. We have the category 'cat' because we regard the division of the world into animals and non-animals as significant, and we are further interested in what species as given animal belongs to. It is relevant that there is a cat on the mat and not just a thing. We have the category 'mat' because we regard the division of inanimate things into artifacts and non-artifacts as significant, and we are further interested in the purpose and nature a particular artifact has. It is relevant that it is a mat that the cat is on and just something. We have the category 'on' because we are interested in spatial relations. Notice what we have: we took the most banal statement imaginable, 'the cat is on the mat,' and we found that the presuppositions which make this statement a relevant one in certain contexts include the significance of the categories animate/inanimate, purpose, and space. To a mind with no disposition to regard these as relevant categories, 'the cat is on the mat' would be as irrational as 'the number of hexagonal objects in this room is 76' would be, uttered in the middle of a tête-à-tête between young lovers. Not only do very general facts about our value system show themselves in our categories (artifacts, species name, term for a spatial relation) but, our more specific values (for example, sensitivity and compassion), also show up in the use we make of specific classificatory words ('considerate,' 'selfish'). To repeat, our criteria of relevance rest on and reveal our whole system of values."

In political discussions and debates we often resort to assertions about what we take to be the relevant facts, one problem being that we frequently cannot even agree on the criteria of relevancy, given the roles of consciousnesss, modes of being, and values in the determination and discrimination of the (salient) facts.

We could further complicate matters here with a discussion of the significance of objectivity, perceptual and epistemic relativism, conceptual schemes, and realism about truth.

Cross-posted at ReligiousLeftlaw.com.

March 19, 8:43 PM   /   Ratio Juris   /   Let's Help Put an End to Prison Rape

At her indispensable Prison Law Blog, Sara Mayeux asks, "why not take five minutes to write a letter to the Department of Justice, urging the adoption of the National Prison Rape Elimination Commission standards? You can print out a sample letter from Prison Fellowship here, or read more about the issue — including an interview with Lovisa Stannow, executive director of Just Detention International, over here at Change.org — Criminal Justice."

While you're visiting Sara's site, please check out her list of criminal law blogs in the right-hand column.

Cross-posted at ReligiousLeftLaw.com.

March 19, 2:39 PM   /   Ratio Juris   /   The Left & Liberalism

At my post at ReligiousLeftLaw.com that was cross-posted here on "Justice, Inequality & Health," one of my co-bloggers, Steve Shiffrin, asks the following question in the comments: "I wonder how you conceive the differences between the left and liberalism beyond the remarks you make in this post." Here is my all-too-brief reply:

Steve,

I trust you'll permit me to address your question about the differences between the Left and Liberalism on another occasion (a separate post), so suffice to say for now I think it has to do with how "politics" itself is conceived (hence the truth of your remark that 'the general debate about the nation's health speaks volumes about our politics') and how the economy and "marketplace" are conceptualized as part of the "private" sector. Relatedly, Liberalism lacks the conceptual resources to sufficiently restrain capitalism and overcome the pride of place accorded economistic values. In short, "capitalist democracy" is conspicuous for its capitalism insofar as it is allowed, in the end, to define both the character and structural contours of democratic theory and practice. Yet to think of capitalist democracy as "separate 'parts' is to miss the vital integrity of the system" (Joshua Cohen and Joel Rogers), a system that finds philosophical warrant and ideological blessing in the form of Liberalism. Thus Liberalism can countenance the formal granting of political rights but is often blinded to inequalities in the distribution of resources that decisively affect the exercise of such rights (cf. the recent SCOTUS decision in Citizens United). Furthermore, we have what Cohen and Rogers term a "demand constraint:" "As a result of their control of investment, the satisfaction of the interests of capitalists [qua capitalists] is a necessary condition for the satisfaction of all other interests within the system."

With regard to the workers you cite above, their welfare "remains structurally secondary to the welfare of capitalists, and the well-being of workers depends directly on the decisions of capitalists." Here, the ideological rhetoric of the Right (e.g., when it talks of the 'special intersts' of unions) captures an essential truth of Liberalism inasmuch as it must live with the fact that "the interests of capitalists appear as general interests of the society as a whole, the interests of everyone else appear as merely particular, or 'special.'"

I could say more here but Cohen and Rogers do it better in their little book, On Democracy: Toward a Transformation of American Society (1983).

Mind you, I'm in many respects still a "Liberal" (especially of the Millian sort), hence it is possible and quite likely, in Dick Flacks' words, that one might "be a Marxist in the morning, a pacifist in the afternoon, an environmentalist at dinner, and a feminist in the evening, while going to church on Sunday and voting Democrat on election day."

The Left, generously defined, is sensitive to the limits of the Liberal tradition, and in transcendence of those limits it need not abandon such things as the value accorded moral autonomy or the importance, say, of constitutionalism as found in that tradition (any more than my identification with the 'religious left' means I need turn my back on the progress enshrined in the European Enlightenment).

Again, forgive me if I postpone a deeper treatment until another day.

March 18, 5:20 PM   /   Ratio Juris   /   Tony Judt & The Common Good

There's a nice review of Tony Judt's latest book, Ill Fares the Land (2010) in the New York Times (h/t Michael Perry). For those who haven't followed Judt's recent articles in the New York Review of Books, Dwight Garner writes that

The British historian Tony Judt is dying, slowly and painfully, from a variant of amyotrophic lateral sclerosis (A.L.S.), better known as Lou Gehrig’s disease. He has written matter-of-factly about his condition — he is now, essentially, a quadriplegic — in The New York Review of Books. At some point he will be able to communicate only by blinking an eye. For now he is dictating his words to assistants.

One of Judt's recent essays in particular I recommend: "What Is Living and What Is Dead in Social Democracy?", even if I might have made essentially the same argument in slightly different terms, eschewing, for example, Judt's suggestion that "If social democracy has a future, it will be as a social democracy of fear." By this he means the need to remind the public of the considerable and perhaps taken-for-granted achievements of the twentieth century he believes we're in peril of loosing in toto or in part: "The left, to be quite blunt about it, has something to conserve." Now while this is undoubtedly true, I'm not convinced a "backward-looking" orientation should dominate the discourse of the Left. Still, that's a wee quibble in light of the larger argument.

As for his newest book, I paused for a moment in light of the following from the review:

What caused this dire loss of faith in our government and leaders? Mr. Judt spreads the blame around. He criticizes the narcissistic left of the 1960s, which was largely uninterested in social justice. “What united the ’60s generation was not the interest of all, but the needs and rights of each,” he writes.

One hesitates to criticize Judt, but I think he has this wrong, as does Alan Wolfe and others who have become fond of this fashionable canard, which appears based on an overly whiggish or unduly functionalist view of recent history.

The self-identified Left was in fact quite concerned about social justice. Whatever its other shortcomings, evidence of this concern is found in the Students for a Democratic Society's (SDS) Port Huron Statement as well as in numerous civil rights organizations and is plausibly viewed as a fundamental premise of the Highlander Folk School (and an explict value of today's Highlander Research and Education Center). Think too of the impact of Michael Harrington's The Other America: Poverty in the United States (1962), a work almost singularly responsible for the short-circuited "war on poverty:"

Among the book’s readers, reputedly, was John F. Kennedy, who in the fall of 1963 began thinking about proposing anti­poverty legislation. After Kennedy’s assassination, Lyndon Johnson took up the issue, calling in his 1964 State of the Union address for an “unconditional war on poverty.” Sargent Shriver headed the task force charged with drawing up the legislation, and invited Harrington to Washington as a consultant. (Maurice Isserman in the New York Times)

In fact,

Mr. Judt cites some of the achievements of the Democratic-led Congresses of the 1960s, achievements that would be nearly impossible in today’s political climate: “food stamps, Medicare, the Civil Rights Act, Medicaid, Head Start...."

Much of the inspiration for such achievements came from the direct and indirect effects of political theorizing, agitation, and old-fashioned political pressure on the part of the Left (broadly construed), and several of these programs may have been largely the result of the impact of Harrington's book. Consider too the myriad "experiments in social change" of that time which also revolved around concerns about social justice: see John Case and Rosemary C.R. Taylor, eds., Co-ops, Communes & Collectives: Experiments in Social Change in the 1960s and 1970s (1979). And Martin Luther King's interests and campaigns eventually widened to include a focus on social justice issues both here and abroad, not surprising given that justice is said to have been one of the three key themes (along with love and hope) of King's theology. Again, whatever its considerable shortcomings (e.g., its militancy and Sorelian infatuation with violence), the Black Panther Party demonstrated a principled exemplification of a commitment to social justice:

Before the Black Panther Party officially disbanded in 1982...it succeeded in feeding thousands of hungry childern across the country. It first publicized and then helped to treat sickle cell anemia, a debilitating blood disease primarily afflicting blacks. Panther Free Health Clinics brought decent healthcare to thousands who were mired in poverty and unable to afford medical care.(From Curtis J. Austin's Up Against the Wall: Violence in the Making and Unmaking of the Black Panther Party, 2006).

Narcissism in some measure might be counted among the vices and virtues of the counter-cultural movements and ethos of the 1960s, but this should be distinguished from the actual values, principles and practices of the (Old or New) Left of the period, the memory of which is worthy of conservation as well.

March 17, 1:27 PM   /   Ratio Juris   /   Justice, Inequality & Health

The sociologist, New Left veteran, and my former teacher, Richard (‘Dick’) Flacks,* wrote the following in his important book, Making History: The Radical Tradition in American Life (1988):

“Virtually all of the debates about strategy that have divided the American left in the twentieth century were rooted in false dichotomies; most of the sides in most of these debates were expressing valid understandings of partial truths. These debates—about ‘politics’ vs. ‘direct action,’ about ‘confrontation’ vs. ‘permeation,’ about ‘independent political action’ vs. ‘coalition…about ‘integration’ vs. ‘black power,’ about ‘reformism’ vs. ‘revolutionism’—occurred not because some leftists were morally pure and others were ‘revisionists,’ nor because some were ‘crazy’ and others ‘rational,’ but because there were fundamental differences in the perceptions leftists had of social reality, differences made inevitable by the complexity of that reality. What was mistaken, then, was not this view or that, but the assumption that only pole of each of these debates could be right, or that there was one ‘correct path’ that all organized leftists had to find and follow.”

The point I’d like us to consider is that the current health care debate, including the urgency of passing health care reform legislation, should not be an occasion for forgetting or ignoring the significance of larger and thus more inclusive questions concerning the relation between health, inequality, and social justice. At the same time, and after Flacks, I’m not intending to pose a “false dichotomy” between health care reform and a more theoretical approach that relies on understanding the relevant causal variables linking individual and population health, inequality, and the quest for social justice (although neglect of the latter might plausibly be said to distinguish a Liberal from a Leftist). Rather, I’m simply imploring us not to forget the wider possible social determinants of health, a discussion of which goes far beyond the parameters of the current health care debate, the former necessarily encompassing the latter. In his invaluable entry on “Justice, Inequality, and Health” in the Stanford Encyclopedia of Philosophy (linked below), Gopal Sreenivasan explains that a “social determinant of health is a socially controllable factor outside the traditional health care system that is an independent partial cause of an individual’s health status. Candidate examples include income, education, occupational rank, and social class.” Therefore, writes Sreenivasan,

“Health care (personal medical care and public health) is clearly an additional socially controllable determinant of health. Nevertheless, for different reasons, in both the empirical and the philosophical literatures, health care is something of a separate topic. In the public health literature, variations in access to health care are not regarded as a significant contributor to inequalities in health. But to recognise that there are social determinants of health, in the sense we have defined, is not to deny the importance of health care as another partial cause.”

Consider, for instance, the following quotes from some of the leading analysts in the literature on on health, inequality and social justice:

“Inequalities in health are...closely tied to inequalities in the most basic freedoms and opportunities that people enjoy.”—Sudhir Anand

“We have known for over 150 years that an individual's life and death are patterned according to social class: the more affluent and better educated people are, the longer and healthier their lives. These patterns persist--even when there is universal access to health care--a finding quite surprising to those who think financial access to medical services is the primary determinant of health status. In fact, recent cross-national evidence suggests that the greater the degree of socio-economic inequality that exists within a society, the steeper the gradient of health inequality. As a result, middle-income groups in a more unequal society will have worse health than comparable or even poorer groups in a society with greater equality. Of course, we cannot infer causation from correlation, but there are plausible hypotheses about pathways which link social inequalities to health and, even if more work needs to be done to clarify the exact mechanisms, it is not unreasonable to talk here [after Michael Marmot] about the social ‘determinants’ of health.” —Norman Daniels, Bruce Kennedy, and Ichiro Kawachi

“If we have obligations of social justice to provide equality of opportunity, as in Rawls's robust notion of fair equality of opportunity, then we have social obligations to promote normal functioning [i.e., to prevent significant mental or physical pathology] and to distribute it equitably within society by designing our institutions properly. [….] The broad determinants of health and its distribution in a population include income and wealth, education, political participation, the distribution of rights and powers, and opportunity. These are quite centrally the goods that any general theory of social justice is concerned about. We cannot achieve effective promotion of health in a society as well as its fair distribution without a just distribution of these other goods. Putting together the key results from the epidemiology literature with Rawls's principles of justice as fairness, we learn why justice is good for our health and we get a general answer to the question ‘When is a health inequality unjust?’”—Norman Daniels

“Many kinds of social institutions can substantially contribute to the incidence of medical conditions. Of these, economic institutions--the basic rules governing ownership, production, use, and exchange of natural resources, goods, and services—have the greatest impact on health. This impact is mediated, for the most part, through poverty. By avoidably producing severe poverty, economic institutions substantially contribute to the incidence of many medical conditions. Persons materially involved in upholding such institutions are then materially involved in the causation of such medical conditions. [….] In our world, poverty is highly relevant to human health. In fact, poverty is far and away the most important factor in explaining health deficits. Because they are poor, 815 million persons are undernourished. 1,100 million lack access to safe drinking water. 2, 400 million lack access to basic sanitation, more than 880 million lack access to health services, and approximately 1,000 million have no adequate shelter. Because of poverty, ‘two out of five children in the developing world are stunted, one in three is underweight and one in ten is wasted.’ [....] One-third of all human deaths are due to poverty-related causes.”—Thomas Pogge

“In the United States...black men in deprived areas have twenty years’ shorter life expectancy than richer white men. The major contributors to this excess mortality are violent deaths, HIV/AIDS, and cardiovascular disease. Poverty of material conditions does not provide a ready biological explanation for the causes of shortened lives. [....] In so far as material deprivation can be seen to cause homicide or risky sexual behavior or drug use, its effects are likely to be through psychological pathways. To be clear, we have had pathways linking material circumstances to disease via exposure to cold, infections, malnutrition. More recently, these have been supplemented by behaviours such as smoking, diet, and physical activity. The psychosocial approach emphasizes subjective experience and emotions that produce acute and chronic stress which, in turn, affect biology and, hence, mental and physical illness. Our growing understanding of psychological factors points to ways that the social environment can have a powerful influence on health. All three types of pathways—material, behavioral, and psychosocial—should be within our focus.”—Michael Marmot

So, by way of a modest contribution to helping us keep in mind the various social determinants of individual and population health, the effects of inequality on health, and their relation to social justice, I’m providing links to two essential articles by Norman Daniels and Gopal Sreenivasan respectively from the Stanford Encyclopedia of Philosophy; Anup Shah’s page, “Poverty Around the World” from his Global Issues website; and my bibliography, “Health: Law, Ethics & Social Justice.”

Daniels, Norman, “Justice and Access to Health Care,” The Stanford Encyclopedia of Philosophy (Winter 2008 Edition), Edward N. Zalta (ed.): http://plato.stanford.edu/archives/win2008/entries/justice-healthcareaccess/

Sreenivasan, Gopal, “Justice, Inequality, and Health,” The Stanford Encyclopedia of Philosophy (Spring 2009 Edition), Edward N. Zalta (ed.): http://plato.stanford.edu/archives/spr2009/entries/justice-inequality-health/

Poverty Around the World (with a section on ‘inequality and health’)

Health: Law, Ethics & Social Justice—A Basic Bibliography

*For Flacks’ formative role in the Students for a Democratic Society (SDS) and the New Left generally, please Kirkpatrick Sale’s SDS (New York: Random House, 1973) and James Miller’s “Democracy Is in the Streets:” From Port Huron to the Siege of Chicago (New York: Simon and Schuster, 1987).

Cross-posted at ReligiousLeftLaw.com

March 16, 5:49 AM   /   MoneyLaw   /   Size doesn't matter. Really.

Once again it's tournament time. The NCAA men's basketball tournament always seems to bring MoneyLaw themes to the fore. This year is no exception.

Consider this statistical study (.pdf download) by Scout.com of the factors that let talented players elude the major college teams of the six power conferences and slip down, so to speak, to the midmajors:

Perhaps the most telling analysis in the study comes from how to judge a player’s frame. Midmajor big men are often viewed a tick off by powerhouse programs. Be it too short, too skinny or too weak, there is always something holding them back. Guards may be too short or slow. Forwards may not have the proper size to be considered a power forward or the proper skills to be considered a small forward. . . .

[The study concludes] that midmajor programs should evaluate physical attributes differently.

“It seems that, for guards, size in both directions isn’t correlated with success. . . . For forwards, rather than needing both height and bulk, one or the other is enough if the other skills are there.”

Different sport, same result. The mismeasure of athletes — and presumably of students, lawyers, and professors as well — is a long-running theme in MoneyLaw. Some of the funniest passages in Michael Lewis's Moneyball (2004) involve the laughably misguided reliance of baseball scouts on their visual evaluation of prospects' physiques:

Whatever happened when an older man who failed to become a big league star looks at at a younger man with a view to imagining whether he might become a big league star, Billy [Beane] wanted nothing more to do with it. He'd been on the receiving end of the dreams of older men and he knew what they were worth. Over and over the old scouts will say, "The guy has a great body," or, "This guy may have the best body in the draft." And every time they do, Billy will say, "We're not selling jeans here," and deposit yet another highly touted player, beloved by the scouts, onto his shit list. [Id. at 31.]

Or even more crudely:

[Quoting Paul DePodesta:] "You know what gets me excited about a guy? I get excited about a guy when he has something about him that causes everyone else to overlook him and I know that it is something that just doesn't matter." When Brant Colamarino removes his shirt for the first time in an A's minor league locker room he inspires his coaches to inform Billy that "Colarmarino has titties." Colamarino ... does not look the way a young baseball player is meant to look. Titties are one of those things that just don't matter in a ballplayer. Billy's only question for the coaches was whether a male brassiere should be called a "manzier" or a "bro." [Id. at 116-17.]

March 16, 0:43 AM   /   Ratio Juris   /   The Arab/Israeli Conflict, the Middle East & the Islamic World: A Few Resources

For readers wanting to learn more about the Arab (and in particular Palestinian)/Israeli conflict, or about the Middle East, or about the Islamic world in general (a vast majority of Muslims residing outside the Middle East and North Africa), I’ve assembled the following list of websites that should prove helpful. It’s not meant to be at all comprehensive and it reflects my personal preferences insofar as I’m fond of these sites for one reason or another. If you know of something you think would be worthy of addition, please send it along and I’ll consider adding it to the list (i.e., there’s no guarantee I’ll include it but I’ll certainly give it fair consideration). I’m interested in according attention to viewpoints not widely available in the mainstream media as well as political perspectives that receive little support among our political leaders or are unknown in any more than a superficial or distorted sense among the educated public in this country.

Al Ahram Weekly
http://sites.google.com/site/weeklyahramorgeg/

Al Haq: “defending human rights in the occupied Palestinian occupied territory since 1979.” http://www.alhaq.org/

The Arab Association for Human Rights (Association in Service of the Palestinian Arab Minority in Israel): “founded in 1988 by lawyers and community activists, [it] is an independent, grassroots, non-governmental organization (NGO), registered in Israel. HRA works to promote and protect the political, civil, economic, and cultural rights of the Palestinian Arab minority in Israel from an international human rights perspective.”
http://www.arabhra.org/HRA/Pages/Index.aspx?Language=2

B'Tselem: “The Israeli Information Center for Human Rights in the Occupied Territories was established in 1989 by a group of prominent academics, attorneys, journalists, and Knesset members. It endeavors to document and educate the Israeli public and policymakers about human rights violations in the Occupied Territories, combat the phenomenon of denial prevalent among the Israeli public, and help create a human rights culture in Israel.”
http://www.btselem.org/English/index.asp

Informed Comment: Thoughts on the Middle East, History and Religion (Professor Juan R.I. Cole)
http://www.juancole.com/

The Institute of Ismaili Studies: “The Institute of Ismaili Studies was established in 1977 to promote scholarship of Muslim cultures and societies, historical as well as contemporary, leading to a better understanding of their relationship with other societies and faiths.”
http://www.iis.ac.uk/home.asp?l=en

Islamic Law in Our Times: A Realist’s Assessment of Contemporary Islamic Law (Professor Haider Ala Hamoudi)
http://muslimlawprof.org/

The Islamic Texts Society: “The Islamic Texts Society is a publishing house founded in 1981 and registered as an educational charity in the UK (reg. no. 283832). The Society produces English translations of works of traditional importance to the Islamic faith and culture, including editions of hitherto unpublished manuscripts, and also sponsors contemporary works on Islamic subjects by scholars from all parts of the world. The Society hopes thereby to promote a greater understanding of Islam among both Muslims and non-Muslims, catering for laypersons as well as academics in the field of Islamic studies.”
The Islamic Texts Society

The Middle East Research and Information Project: “The Middle East Research and Information Project (MERIP) was established in 1971. The original conception of MERIP was to provide information and analysis on the Middle East that would be picked up by the existing media. Issue number one of MERIP Reports, published in May 1971, was a six-page mimeographed publication with three brief articles. Throughout 1971 and 1972, the Report appeared irregularly, and it was only in 1973 that the group made a commitment to publish it on a regular basis. Since then, MERIP has never looked back and, in the words of French journalist Eric Rouleau, “No person, specializing or not in Middle Eastern affairs, can afford ignoring Middle East Report.” Professor Rashid Khalidi, a leading American scholar, says “Middle East Report is the best periodical (in English) on the Middle East -- bar none.” MERIP is a non-profit, non-governmental organization based in Washington, DC. A completely independent organization, it has no links to any religious, educational or political organizations in the US or elsewhere. Income needed to produce the magazine is earned from subscriptions to Middle East Report, small grants from European and American foundations and gifts from readers and subscribers.”
MERIP - Middle East Research and Information Project

Middle East Online
Middle East Online

Palestinian Centre for Human Rights (PCHR): “A central principle of PCHR's work is that a just, lasting, and comprehensive peace in the region, as well as the healthy development of Palestinian society, must be built on a foundation of respect for human rights and democratic principles.”
Palestinian Center for Human Rights

Public Committee Against Torture in Israel: “PCATI advocates for all persons - Israelis, Palestinians, labor immigrants and other foreigners in Israel and the Occupied Palestinian Territories (OPT) – in order to protect them from torture and ill treatment by the Israeli interrogation and law enforcement authorities. These include the Israel Police, the General Security Service (GSS), the Israel Prison Service and the Israel Defense Forces (IDF). PCATI acts in accordance with moral and democratic values, and the standards set in Israeli and International law. PCATI was founded in 1990 in reaction to the ongoing policy of the Israeli government, which permitted the systematic use of torture and ill treatment in GSS interrogations.”
http://www.stoptorture.org.il/en

SSRN/Islamic Law & Law of the Muslim World Research Paper Series
http://www.ssrn.com/link/Islamic-Law-Muslim-World.html

My bibliography for Islamic Studies is here: http://www.jurisdynamics.net/files/documents/IslamicStudiesBibliography.doc

The image is courtesy of the Los Angeles County Museum of Art(LACMA).

Cross-posted at ReligiousLeftLaw.com

March 15, 3:19 PM   /   MoneyLaw   /   Just Go to This Cite

http://www.youtube.com/watch?v=mLC7Q3DTzi4

March 14, 11:51 PM   /   Agricultural Law   /   "Women in Bluejeans"

While its been a period of time since my last entry as a guest blogger, Jim Chen's recent entry on Feminist Agricultural Law serves as a reminder of a related corollary. Specifically contrasting with the ongoing demise of traditional dominant farmers women are actively entering farming as independent owner operators. Yet whether as independent operators or as consumers women in agriculture remain primarily on the outside of mainstream legal investigations to the detriment of the nation's health.

A gendered perspective on food production is underscored when for example pesticide use in industrial agriculture is contemplated. Studies outside of legal academic investigations demonstrate that women take the brunt of the many toxic chemicals employed in conventional agriculture with the pact on their children obligating the further need of greater study. In contrast, formalistic investigations dominate studies on the regulatory state of farming leaving pesticide absorption rates for women and children on the margins of legal scrutiny.

Agricultural legal history moreover is dominated with well-defined gaps on the impact of gendered farming interests. Yet since the earlier colonial periods when female-farming interests confronted adverse federal hostility and arbitrary treatment of their independent operations. Further study of how they sought to defend their property moreover remains primarily lacking in formal legal studies.

Additional examples surface such as the active participation of women in the rural insurgency movements of the 1920s and 1930s that sought to protect independent owner operators. Yet once again rural women witnessed injurious treatment with consequences into the present. Until recently, the agricultural census for example failed to enumerate women operators in data sets thereby losing opportunities to assess gendered capital accumulation in the operation of their interests. Into the contemporary period women operators also continue to face inequities such as in accessing credit or failing to qualify for federal funds permitted dominant based agricultural interests in specialized programs notwithstanding their origins in the populism of the past.

Against the backdrop of inter alia increasing hunger levels, consumers seeking the specialized ethnic products that women produce, and the realm of food safety issues facing the nation from large scale food production, thereby renders imperative the above plea for gendered and feminist studies in law.

March 13, 8:24 PM   /   Jurisdynamics   /   Feminist agricultural law: A scholarly confessional

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

March 13, 4:36 PM   /   Agricultural Law   /   Feminist agricultural law

Let me begin with a scholarly confession: Ever since I read Helen Fisher, Anatomy of Love: A Natural History of Mating, Marriage, and Why We Stray (1993), nearly two decades ago, I've longed to write an article called Feminist Agricultural Law (or, alternatively, Agricultural Legal Feminism). Fisher's observations on agricultural technology stirred my blood:

The Plow. There is probably no single tool in human history that wreaked such havoc between women and men or stimulated so many changes in human patterns of sex and love as the plow. [Id. at 260.]

Alas, it never came to pass. I envisioned Feminist Agricultural Law as an offshoot from (or at least a section of) the anticipated conclusion to my would-be "Vanderbilt trilogy" of articles on agricultural law: The American Ideology, 48 Vand. L. Rev. 908 (1995) and Of Agriculture's First Disobedience and its Fruit, 48 Vand. L. Rev. 1261 (1995). I never did finish that third article. To be sure, I salvaged some of my work in Fugitives and Agrarians in a World Without Frontiers, 18 Cardozo L. Rev. 1031 (1996) (which, in the fashion of I'll Take My Stand's Stark Young, preached agrarian ideas by remote control from New York City), and in my subsequent scholarship on Wickard v. Filburn. But neither the grand conclusion nor Feminist Agricultural Law ever emerged from my fingertips.

Read the rest of this post . . . .My own failure to finish what I started, however, takes nothing away from the idea of feminist agricultural law. At least one Australian legal scholar, Malcolm Voyce, has devoted his career to sex-based differences in farmland tenure. Organizations such as American Agri-Women (on Twitter as @women4ag) advance the cause of women farmers. As a global matter, perhaps nothing contributes more to preparedness in times of disaster — let alone overall social justice — than the complete economic and political empowerment of women. As an open supporter of Feminist Law Professors (the blog) and feminist law professors (the group as a whole), I'm glad I made this point in the latest edition of Disaster Law and Policy.

The role of women in farming is as old as agrarian society, and it remains every bit as relevant and as contested as ever. Just today, Peggy Orenstein, author of the memoir Waiting for Daisy, performed a very clever twist on the theme of Michael Pollan's classic, The Omnivore's Dilemma: A Natural History of Four Meals (2006). Her New York Times essay, The femivore's dilemma, highlights a middle way that has drawn women seeking to avoid both the glass ceiling and the gilded cage: joining the growing cohort of chicks with chicks.

From the depths of remembrance and heights of romance, I now reach present time and real space. In the here and now, I remain painfully aware that I will probably never write a comprehensive piece called Feminist Agricultural Law. But I shall not flinch from promoting the idea, even if by so doing I am effectively assigning the mission of completing that piece to another scholar. I shall continue to ponder feminist agricultural law and agricultural legal feminism. These ideas lie close to the project — the one and only project — I regard as the sole legitimate expression of legal scholarship, that of translating legal knowledge for real-world use, that of realizing the dream of the law made flesh.

March 11, 7:06 AM   /   Jurisdynamics   /   Exotic game, lethal invaders

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

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

Editor's note: Cross-posted at Biolaw.

March 11, 1:11 AM   /   Commercial Law   /   Hooray for Bank of America's New Overdraft Rules?

Is the end of the $39 cup of coffee in sight (See How Your $4 Cup of Coffee Can Cost You)? Today, Bank of America announced that it is doing away with debit card overdraft fees and will just decline consumer transactions that result in an overdraft on their debit card (See Bank of America to End Bank Overdraft Fees). Seems that is just what consumer groups have said for some time that banks should do, but that some banks claimed they couldn't technologically do. Bank of America is crediting itself with listening to consumer preferences on debit cards and their desire to help customers avoid unexpected fees. Bank of America has turned into the kinder, consumer friendly bank? Apparently, they are even notifying customers now when an ATM withdrawl will result in an overdraft (and a $35 fee), rather than just pushing the transaction through. But not to worry, Bank of America will continue to have overdraft coverage that most consumers want on their checks and routine account payments. Rather than trying to convince customers that they really want the $39 cup of coffee, Bank of America has apparently caved on this one. Good for them. Doing the right thing by customers (even if under pressure from the Federal Reserve) is a big step. Hopefully, this will set the tone for other large banks to follow suit. Apparently Citibank has stopped charging overdrafts on debit and ATM transactions.

For those banks not doing away with these fees, the Federal Reserve's new opt-in rules on debit cards are due to come into effect on July 1, 2010. The Federal Reserve’s Final Rules came down on the side of the consumer on many issues. Because the Truth-in-Lending Act applies to credit cards, but does not apply to debit cards, the Federal Reserve’s Final Rules are under the Electronic Funds Transfer Act (15 U.S.C. 1693 et seq.) (EFTA). The thrust of the Final Rules is primarily disclosure and consent based, rather than tackling some of the troublesome banking practices involved in the processing of overdrafts for enrolled customers and the amount banks charge for overdraft services. Specifically, the Final Rules ensure that:

(1) banks cannot enroll customers in overdraft services for ATM and one time debit card transactions without their consent (an opt-in);
(2) banks do not condition the payment of overdrafts on other items, such as checks and ACH transactions, on the customer opting-in for ATM and debit card services and cannot decline overdrafts on checks and ACH transactions for this reason;
(3) banks provide the same account terms, conditions and features to customers whether or not they opt-in; and
(4) the opt-in approach applies to existing and new accounts beginning July 1, 2010.

The Final Rules specifically declined proposals regarding the practice of debit card holds, suggesting instead that banks, networks, and merchants should address this problem.

With any luck, we'll see other large banks doing away with the debit and ATM overdrafts over the coming months. Seems easy enough just to deny the transaction at the counter. Not sure I'd say this, but good job Bank of America.

- JSM

March 6, 9:46 PM   /   Agricultural Law   /   Problems With FDA Food Additive Approval Process

When I first began teaching food law, I was rather astonished to discover the process that the FDA has for approving the overwhelming number of food additives used in our processed foods. Let me rephrase that - I was astonished by the lack of a cohesive approval process. I wrote about FDA's non-approval system in my article, Reconnecting Consumers and Producers.

The Food Drug & Cosmetic Act requires pre-market approval for new food additives and states that no additive should be approved without a showing that its specified use will be safe. 21 U.S.C. sec. 348.

However, two huge categories of ingredients are excepted from the definition of "food additive." These exceptions are "prior approved substances," i.e., substances in common use prior to 1958 and ingredients that are "generally regarded as safe" or GRAS. Food companies initially had to submit scientific information to the FDA and wait for the agency to affirm GRAS status. Since 1997, however, the FDA has operated under a proposed rule that allows companies to self-determine that a new ingredient is safe and then to voluntarily notify FDA of its use. FDA can either affirm the GRAS status (a process that may take years) or simply not question it. 62 Fed. Reg. 18,938 (proposed Apr. 17, 1997) (to be codified at 21 C.F.R. pts. 170, 184, 186, and 570).

The GAO shares my concern with the workings of the GRAS process. In a recently released report, Food Safety: FDA Should Strengthen Its Oversight of Food Ingredients Determined to Be Generally Recognized as Safe (GRAS) it finds:

FDA’s oversight process does not help ensure the safety of all new GRAS determinations. FDA only reviews those GRAS determinations that companies submit to the agency’s voluntary notification program—the agency generally does not have information about other GRAS determinations companies have made because companies are not required to inform FDA of them. Furthermore, FDA has not taken certain steps that could help ensure the safety of GRAS determinations, particularly those about which the agency has not been notified. FDA has not issued guidance to companies on how to document their GRAS determinations or monitored companies to ensure that they have conducted GRAS determinations appropriately. Lastly, FDA has yet to issue a final regulation for its 1997 proposed rule that sets forth the framework and criteria for the voluntary notification program, potentially detracting from the program’s credibility.

March 6, 7:31 PM   /   Agricultural Law   /   In Response to Bunny

In response to Dean Jim Chen's Bunny call out to me. Thanks, Jim, for reminding me of my pet lamb, "Tiger" and my happy childhood on the farm. But, I followed the bunny link, started the news story (rabbit slaughter training) and thought to myself, "No, thanks." I will comment, however, that of all of the various types of dietary changes that American's might consider, I do not think that finding additional sources of meat is one that we should pursue. We all know that little secret that we in agriculture are not supposed to talk about - we would be better off eating less meat...

March 4, 6:10 PM   /   Ratio Juris   /   Miscellany

The latest issue of Logos (apologies to my Catholic friends, who might have thought of this) is available online, and while there are several intriguing articles I want to recommend in particular Steve Niva's review of three recent books that examine the Israeli-Palestinian conflict through the lens of a sophisticated geopolitics. Of the three, I've found Makdisi's to be the most informative. Not reviewed but also worth reading: Adi Ophir, Michal Givoni and Sari Hanafi, eds., The Power of Inclusive Exclusion: Anatomy of Israeli Rule in the Occupied Territories (New York: Zone Books, 2009). This volume includes essays by two of our authors, Gordon and Weizman, from the aforementioned review.

Los Angeles Times columnist Steve Lopez changes his mind about the value of "super-intelligent mammals performing circus tricks for us humans." Relevant background reading would include Dale Jamieson's essays, "Against Zoos," and "Zoos Revisited," in his book, Morality's Progress (New York: Oxford University Press, 2002): 166-189.

Finally, the indispensable online Stanford Encyclopedia of Philosophy is beginning to cover subject matter from Indic religio-philosophical traditions which are of course dear to my own heart. Nevertheless, if you have a philosophical temperament and are interested in learning more about these worldviews, I suggest spending time with the following entries: Analytic Philosophy in Early Modern India, Nāgārjuna, and Śāntaraksita. The Internet Encyclopedia of Philosophy also has entries on significant concepts, doctrines and figures from Indic worldviews.

Please note: the links to Amazon.com are for informational purposes only.

Cross-posted at ReligiousLeftLaw.com (Perhaps some readers would also be interested in my post on 'Spirituality, Religion, and Philosophy' at this blog.)

March 4, 5:15 PM   /   Commercial Law   /   FunnyorDie.com Presidential Reunion

In case you've not seen it, former Presidents Bush, Clinton, Bush, Ford, Carter and Reagan wake up President Obama in the middle of the night to urge him to pass the Consumer Financial Protection Agency (CFPA). One of the funniest parts is President Bush commenting that he had no idea that when he put the Iraq war on his credit card, he'd be paying 28%! Here it is:

- JSM

March 4, 1:08 AM   /   Commercial Law   /   New Sales Survey Available!

I've just put the new Sales Survey up on SSRN. It will be out in the Business Lawyer sometime next summer. An excerpt regarding a a fun warranty case, Nigro v. Lee, 63 A.D.3d 1490 (N.Y.A.D. 3 Dept. 2009) about a car sold on Ebay:

Whether a seller’s statements made during negotiations or through advertising constitute an express warranty is a common point of contention between disgruntled buyers and their sellers. The Supreme Court, Appellate Division, of New York upheld summary judgment in favor of the defendant seller from Nevada who advertised a 1995 Mercedes Benz automobile on Ebay as “gorgeous” and with just minor blemishes, but sold the car “as is.” Upon arrival of the car to the buyer in New York, the buyer discovered the car had been damaged in an accident and had been painted, the upholstery was stained, the undercoating was worn out and parts were rusted, and that body work would cost $1,741.66. While the court recognized that any description of the goods could create an express warranty, the seller’s generalized expression was merely the seller's opinion of the car and constitutes “no more than ‘puffery,’ which should not have been relied upon as an inducement to purchase the vehicle,” particularly in light of the fact that this was a used car transaction. Moreover, the plaintiff could have discovered any deficiencies in the car by performing a routine inspection, which he did not do.

See U.C.C. 2-313.

- JSM

March 3, 1:09 PM   /   Agricultural Law   /   Bunny: It's what's for dinner (again)

Once again, a leading media source has put rabbit on the menu. The mere prospect of eating rabbit, lamb, or other animals with pet credentials (as tweeted by me) has generated a thoughtful response from Susan Schneider. I wonder anew: Will Susan once again hop to it?

March 3, 3:14 AM   /   BioLaw: Law and the Life Sciences   /   Top 50 biotech blogs

The Jurisdynamics Network is pleased that the Medicareer blog has listed both Agricultural Law and Biolaw among the top 50 biotech blogs.

March 2, 10:46 PM   /   Commercial Law   /   New Credit Card Rules Go Into Action

Happily, the CARD act provisions are in full effect now. So, what to look for on your statements? I think the disclosure about how long it will take you to pay off your credit card if you only pay the minimum is helpful, especially when coupled with how much you need to pay in order to pay off the debt in just three years. But, consumers must actually read the statements to get the disclosure . . .

CNN has a good piece on credit card reform (click here, as I could not embed it). With card companies increasing rates, there has been a greater proliferation of high rate cards. First Premier has a card for high risk customers that carries a 59.9% interest rate! Yikes! Interestingly, the National Credit Union Administration caps credit unions at 18% interest on credit union cards by law, but private card companies have no such similar limit (See LA Times, Seattle Times). Of course, its all about access to credit, according to the American Banker's Association. While I can understand access to credit and the need for people to build credit, 59.9% is over-the-top and at that rate perhaps some people should not be getting credit, as the cost is too high. Perhaps there is a role for the traditional usury statutes again.

Whose to blame for all this mess? Well, the Supreme Court had a part to play with its 1978 decision in Marquette vs. First Omaha Services making it legal under the National Bank Act for banks to locate in states without interest rate restrictions. Although the Court recognized that this would impair the effectiveness of state usury laws, the problem is "better addressed to the wisdom of Congress than to the judgment of this Court." Despite the passage of the CARD Act, Congress has not addressed the interest rate differential. Perhaps the increases in rates after the CARD Act might provide some impetus for changes to the extent banks overreach in their charging of customers.

- JSM

March 2, 10:00 PM   /   Commercial Law   /   UCC Legislative Update

It has been a fairly quiet eight months on the UCC legislative front since my last update.

Revised Article 1

As of March 1, 2010, Revised Article 1 was in effect in thirty-seven states: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, and West Virginia.

State legislatures continue to grapple with the definition of "good faith," although the uniform § R1-201(b)(20) definition has the upper hand. Of the 37 enacting states, 26 have adopted the uniform definition, while 11 have retained the pre-revised definition that, in conjunction with § 2-103(1)(b), imposes a different good faith standard on merchants and non-merchants. Effective July 1, 2010, one of those eleven minority states (Indiana) will join the majority as SB 501, enacted in 2009 primarily for the purpose of amending Articles 3 and 4, also revises Ind. Code § 26-1-1-201(19) to require all parties to act honestly and to observe reasonable commercial standards of fair dealing. (At present, Indiana's Revised Article 1 requires only “honesty in fact.”) This change will take effect July 1, 2010, and further tip the balance among enacting states in favor of the unitary good faith definition in uniform R1-201(b)(20).

With many state legislatures occupied with more pressing issues of the moment, 2009 yielded only three new adoptions -- Alaska, Maine, and Oregon -- down from five in 2008, and seven in 2007. While a downward trend in new enactments eventually becomes inevitable once two-thirds of the states have signed on, 2009's three enactments were the fewest in a year since 2003 (when Idaho became the third state overall to enact Revised Article 1).

As of March 1, only two states -- Mississippi and Wisconsin -- appear to be serious candidates to enact Revised Article 1 in 2010.

Mississippi SB 2419, introduced and amended (to replace a choice-of-law provision that appeared to have derived from the original § R1-301 that all 37 enacting states have declined to adopt and the ALI and NCCUSL have disavowed with one that reflected the substitute § R1-301 the ALI and NCCUSL promulgated in 2008) in January, unanimously passed the Mississippi Senate on February 10. It is presently before the House Judiciary Committee.

Wisconsin AB 687, introduced on January 25 and amended on February 16 to replace the uniform R1-201(b)(20) "good faith" definition with the pre-revised 1-201(19) version, received the Assembly Committee on Financial Institutions's unanimous approval on February 26. It is presently before the Assembly Rules Committee.

Two other bills, Massachusetts HB 89 and Washington SB 5155, seem less likely to produce results.

Massachusetts HB 89, the fifth attempt to enact Revised Article 1 in the Commonwealth, was assigned to the Joint Committee on Economic Development and Emerging Technologies on January 20, 2009. No further action had been reported as of March 1, 2010.

Washington SB 5155, introduced on January 15, 2009, appeared to be drawn directly from the language of official Revised Article 1 circa 2001, including the original version of § R1-301. At an initial public hearing on January 23, 2009, all those testifying in support of and in opposition to the bill opposed the choice-of-law provision. The Washington Senate appears to have taken no further action except to "reintroduce and retain [the bill] in present status" on January 11, 2010.


Article 2 and 2A Amendments

As of March 1, 2010, only three state legislatures (Kansas, Nevada, and Oklahoma) have considered bills proposing to enact the 2003 amendments to UCC Articles 2 and 2A. The Kansas and Nevada bills died on the vine.

In 2005, Oklahoma amended Sections 2-105 and 2A-103 of its Commercial Code to add that the definition of “goods” for purposes of Articles 2 and 2A, respectively, “does not include information,” see 12A Okla. Stat. Ann. §§ 2-105(1) & 2A-103(1)(h) (West 2009), and amended its Section 2-106 to add that “contract for sale” for purposes of Article 2 “does not include a license of information,” see id. § 2-106(1). The net effect is similar to having enacted Amended §§ 2-103(k) & 2A-103(1)(n), both of which exclude information from the meaning of “goods” for purposes of Article 2 and 2A, respectively. Otherwise, no state has enacted any of the 2003 amendments.

While the list of states enacting any of the 2003 amendments may not change in the near future, the number of amendments Oklahoma enacts may. Introduced on February 1, 2010, Oklahoma HB 3104 proposes amendments to forty-nine sections of Article 2 and four sections of Article 2A. The bill includes neither the reformulation of Sections 2-206 and 2-207 nor the addition of Sections 2-313A and 2-313B included in the 2003 Article 2 amendments. Many of the amendments appear designed to facilitate electronic signatures and transactions and to accommodate the terminology surrounding them that grows out of UETA, E-SIGN, and Revised UCC Articles 1 and 7, or to otherwise align Article 2 and 2A terminology with that used in Revised Articles 1 and 7. That is not to say that HB 3104 proposes only cosmetic changes to Oklahoma's versions of Articles 2 and 2A. Several of the proposed amendments alter existing substantive rights, obligations, or remedies. Some of those alterations (e.g., raising the § 2-201 floor from $500 to $5,000) do not seem to be inherently controversial; some (e.g., granting/recognizing a right to cure after a justifiable revocation) may or may not be controversial depending on how courts have interpreted the current Article 2; and some (e.g., giving sellers the right to recover consequential damages) do seem inherently controversial. More on this if the bill progresses.


Article 3 and 4 Amendments

As of March 1, 2010, the 2002 amendments to Articles 3 and 4 were in effect in eight states: Arkansas, Kentucky, Minnesota, Nevada, New Mexico, Oklahoma (for a second time), South Carolina, and Texas. They will take effect in Indiana on July 1, 2010.

As of March 1, 2010, the only pending Articles 3 and 4 bill is Massachusetts HB 90, which has been languishing for more than a year.


Revised Article 7

As of March 1, 2010, Revised UCC Article 7 was in effect in thirty-six states: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Virginia, and West Virginia.

Additional bills are currently pending in Georgia, Massachusetts, Washington, and Wisconsin; but only the Wisconsin bill appears to be making any progress.

First introduced on February 18, 2009, Georgia HB 451 won unanimous approval in the Georgia House on March 12, and the Senate Judiciary Committee recommended passage on March 26. However, the legislature adjourned on April 3 without a third reading and final action in the senate. HB 451 was "recommitted" to the Georgia Senate on January 11, 2010. No further action has been reported.

Massachusetts HB 89, which also proposes adopting Revised Article 1, was assigned to the Joint Committee on Economic Development and Emerging Technologies on January 20, 2009. No further action has been reported.

Washington SB 5154 was introduced on January 15, 2009, scheduled for a public hearing on January 23, 2009, and then stalled, like its Revised Article 1 counterpart, but without as compelling a reason. It was "reintroduced and retained in present status" on January 11, 2010. No further action has been reported.

Wisconsin AB 688 was introduced on January 25, 2010. On February 22, the Assembly Committee on Jobs, the Economy and Small Business unanimously recommended passage. The bill is now before the Assembly Rules Committee.

March 2, 6:15 PM   /   Commercial Law   /   ESPN on How to Create Markets

Humorous link on supply and demand. Though I must agree. Mike Greenberg is far more valuable than Kenny Mayne!

March 1, 10:51 PM   /   Agricultural Law   /   AALS Agricultural Law Section

I am posting the following on behalf of David Myers, Professor of Law and Michael and Diane Swygert Teaching Fellow, Valparaiso University, School of Law.



Professor Myers, Valparaiso University, School of Law, chairs the AALS Section on Agricultural Law for 2011. He is pleased to announce that the Section will hold a joint program with the AALS Property Section at the 2011 AALS Conference in San Francisco. Professor Kali Murry, Marquette Law School, chairs the AALS Property Section.



The joint program has the theme "Changing Concepts of Water in Law." Professor Myers and Murray invite agricultural law professors to submit a proposal for presentation to the joint program. Please send a working title, a brief description of the paper, and (if available) any draft outline or manuscript.



The deadline for submitting a proposal is March 22, 2010.



Professors Myers and Murray will select the proposals that will be presented in San Francisco. They plan to have the presentations published as a symposium in a law review. Consequently, submitted proposals must be for unpublished work. They will establish deadlines for completing manuscripts after they have selected proposals for the joint session.



If interested, please send your proposal to both david.myers@valpo.edu and kalimurry@marquette.edu . They look forward to receiving your proposal.



On their behalf,

Drew Kershen

March 1, 1:06 PM   /   Agricultural Law   /   My Thoughts on the Divide

I just read a news release about the launch of a "social media website" sponsored by the Missouri Beef Industry Council. It's goal is to keep Missouri beef producers "apprised of 'activist attacks' on agriculture." The site, "Farmer Freedom" portrays itself as providing factual information to correct the record in the face of distortions in the media. I just visited the site. To be honest, I was very disappointed. While there are some interesting facts posted, the main focus of the website seems to be to attack the media, animal welfare groups, and environmentalists with an 'us against them' tone that I find destructive.

There are many positive and amazing aspects of American agriculture. I come from a farm family, and my legal career has always focused on agriculture. I am clearly not an activist attacking agriculture.

But I recognize - as do many others - that there are problems that we need to address. Some of these problems take their highest toll on the farmers themselves. When rural wells are contaminated, farm families suffer the consequences. When antibiotic resistant infections increase as a result of over-use of antibiotics in feed, farmers, farmworkers, and their families are most likely to be infected. When farm production methods evolve to require farmers to de-sensitize themselves from the pain that their farm animals suffer, most farmers that I know hate what they are doing, even if they don't admit it.

Farmers don't need a website providing propaganda telling them that there are no problems. What they need is an honest discussion about how we can address the problems that do exist.

And, on the hot button issue of animal welfare, wouldn't it be inspiring if farmers came out in force when a video of clear animal abuse came out - like the recent video of abuse of young calves at the Vermont slaughterhouse - not to criticize the media, not to demand laws banning video taping, but to shout out - we don't support treating animals that way. We can do better. The image of the American farmer would be enhanced, not weakened.

February 28, 9:12 PM   /   MoneyLaw   /   Well orchestrated

From a former student's touching tribute to her violin teacher:

Mr. K. pushed us harder than our parents, harder than our other teachers, and through sheer force of will made us better than we had any right to be. He scared the daylight out of us.

I doubt any of us realized how much we loved him for it.

February 25, 1:47 AM   /   Agricultural Law   /   FAO Report: Livestock in the Balance

The Food and Agriculture Organization of the United Nations recently released its report, State of Food and Agriculture: Livestock in the Balance. This report concludes that:

• The livestock sector is expanding rapidly, driven by population growth, rising affluence and urbanization.
  
  
• Decisive action is required if increasing demand is to be met in ways that are environmentally sustainable and contribute to poverty alleviation and improved human health.
  
  
• The contribution of the livestock sector to poverty alleviation should be enhanced through appropriate policy reform and investments within a framework of broader rural development policies.
  
  
• Governance of the livestock sector should be strengthened to ensure that its development is environmentally sustainable and that it both adapts to and contributes to mitigating climate change.
  
  
• The neglect of animal-health systems in many parts of the world must be redressed, and producers at every level must be involved in the development of animal-disease and food-safety programmes.

The State of Food and Agriculture 2009

View more presentations from FAOEconomics.

February 24, 5:57 PM   /   Ratio Juris   /   Remembering Bobby Lipkin

I remember Bobby Lipkin very fondly as a founding member of the Ratio Juris weblog. He was thrilled to discover the joys of blogging and soon founded his own blog, Essentially Contested America. These new channels for communication gave him a voice and an immediacy unique to online media. Bobby mastered this craft and quickly developed a devoted following.

As so often happens in our wired world, Bobby and I never personally met. I regret that I never even heard his voice on the telephone. We nevertheless enjoyed a rich professional relationship. Frankly, his e-mail correspondence and his blog posts were so vivid that he always seemed near. Bobby loved his family, including his cats. His posts about the loss of a cat to tainted food were among his most moving contributions to Ratio Juris and Essentially Contested America.

Bobby Lipkin touched so many lives, within his family, his circle of friends, his students, and the academic community. I valued his friendship and will miss him.

February 24, 6:13 AM   /   Commercial Law   /   The Roller Coaster Ride of Bankruptcy

When this news story popped into my feeder today, I knew Google understands me. Roller Coasters, Fixtures, Bankruptcy, Creditor priority challenges... Its all there.

Six Flags Inc., currently in chapter 11 Bankruptcy, has decided to close its Louisville Park -- Kentucky Kingdom. The dispute relates to the ownership of certain rides in the park. The creditors are Six Flags America and the State of Kentucky. The state of Kentucky (in what appears to be a futile argument) alleges that the rides are affixed to the realty and therefore belong to the state of Kentucky. (The park leased the real property from the State of Kentucky for a term of years). The state also argues that the lease provides that if Six Flags terminates the lease with the state, the landlord will accede to the ownership of the rides.

Taking these issues separately, its clear that the lease agreement between Six Flags and the State of Kentucky establishes certain privileges to personalty on behalf of Six Flags (the tenant). Under the common law trade fixtures doctrine, a tenant has the right to remove those things he attaches to the realty in furtherance of his trade. (I believe its pretty clear that amusement rides would be in furtherance of Six Flag's trade). The single caveat is if the fixtures cannot be removed without damage to the realty. Thus, the rides are not treated as realty, but rather as personalty.

Taking the state's argument that a provision in the lease grants it an interest in the rides if Six Flags terminates its contract with the state, there seems to me to be a question of what type of interest the state obtains. First, in theory the state could obtain such a right, at least in as much as lessees may grant an interest in its property to its lessor. The question is what kind of transaction does this grant create. It seems that when a creditor (in this case a landlord) reduces its claim to a debtor's (in this case a tenant's) property, that is a security interest, and therefore must comply with the provisions of Article 9 -- the problematic point being if there is another creditor in the picture. The state may very well have a security interest, but may lose out in the priority scheme if other creditors have a claim.

If the state's position is that it has a state possessory lien on the tenant's possessions for failure to pay rentals (which does not appear to be the state's theory), the case may be more clear cut -- particularly given the preference for liens under Article 9-333.

Whichever it is, we will keep an eye on this case to see what the bankruptcy court does with the various roller coasters. If the Court needs (after a safety evaluation) a thrill description of the roller coasters in Kentucky Kingdom park, I would be happy to offer my services; though I suspect I would need to include at least four other theme parks in my assessment in order for my report to be complete.

Image is of the Chang Roller Coaster, Courtesy of Coaster Gallery. Chang's statistics are:

Built: 1997

Composition: Steel

Height: 154 Feet

Drop: 144 Feet

Top Speed: 63 mph

Ride Time: 2 Minutes, 30 seconds

MLR (Marc )

February 21, 1:20 AM   /   BioLaw: Law and the Life Sciences   /   Asian Carp

Asian carp in the Illinois River and other waters west of the Great Lakes are becoming an infamous invasive species and threatening to wreak havoc on the Great Leaks ecosystems if they cross an electric barrier meant to block them from Lake Michigan. Some species grow to over 100 lbs., while others have become notorious in popular media for their quantity and jumping into and over boats.

The carp are also the subject of a multi-state effort to persuade the U.S. Supreme Court to re-open the 1929 case Wisconsin v. Illinois. In that case, the Court ruled against Illinois' excessive water withdrawal but retained jurisdiction as Illinois worked to find alternatives. The case was reopened several times, including as recently as 1980.

The current controversy is over the option of closing the canal and locks connecting Chicago area rivers to Lake Michigan as a means of prevent the carp from entering the Lakes. Michigan unsuccessfully requested an injunction from the U.S. Supreme Court to close the locks, and the Obama Administration has just released a new Asian Carp control plan that opts not to close off the connection. Instead, the plan relies on an electric barricade and targeted efforts to kill the fish closest to the lake.

The effort to reopen the Wisconsin v. Illinois case, joined by several lake states (most recently Indiana) is pending before the U.S. Supreme Court. Michigan Attorney General Mike Cox initiated a project seeking to organize public pressure on the Obama administration to close the Illinois River connection to Lake Michigan, and has been joined by Indiana, Ohio, Pennsylvania, and Wisconsin.

The interests driving the controversy are partly economic -- lake states fear lost jobs and revenues if the carp enter the Great Lakes, while closing the locks would have major economic implications for shipping in the Chicago area -- but there is also a major environmental risk if the carp make the crossing into Lake Michigan. For that reason, this issue seems an occasion requiring a precautionary approach in which the locks would be temporarily closed as the effectiveness of other methods is determined.

More broadly, the Asian carp situation highlights a need for a more comprehensive and consistent legal mechanism to address invasive species. The problem will only become worse, and the current ad hoc approach leaves the response to each arising problem dependent on the direction of the political winds.

February 20, 7:39 PM   /   Ratio Juris   /   Robert Justin Lipkin, 1943-2010 (Memorial Update)

I learned today from Jack Balkin at Balkinization that my co-blogger, Robert Justin ('Bobby') Lipkin, has died. Alas, I only knew Bobby from his thoughtful posts and writings, as well as from kind e-mail correspondence. His training in philosophy was evident both in his published work and the posts here at Ratio Juris. I readily inferred from his written words that Bobby's heart and mind worked in perfect tandem toward the greater good. And I'm sure Jack's sentiment rings true among those who knew him: "Bobby was a lovely man and will be deeply missed."

Jim Chen writes that he is "quite shaken" by news of Professor Lipkin's death, and that "truly no one had a kinder soul than Bobby."

The memorial notice from Widener Law is here.

Update from Professor Andrew Strauss of Widener Law School:

My colleagues and I would like to let you know that Widener Law School will be hosting a memorial for Bobby at 4:00 on March 8th at the Law School's Delaware Campus in Wilmington. The formal program will last about an hour to be followed by a reception where people can share their thoughts and memories on a more informal basis. The address and directions to the Delaware campus are here: Click here: Widener Law - Delaware Visitors Center.

Also, we are preparing a book of thoughts and remembrances about Bobby for his family and other people who were close to him. In addition to the comments from the list serve, if anyone would like to write something specifically for the book, please let either Associate Dean Erin Daly or me know in the next few days. Also, please feel free to email with any questions about the memorial. I can be reached at andrewstrauss@comcast.net, and Erin can be reached at edaly@mail.widener.edu.

Andrew Strauss
Distinguished Professor of Law
Widener University School of Law
4601 Concord Pike
Wilmington, DE 19803

302-477-2254

February 18, 2:14 AM   /   First Movers   /   First Post

Hello everyone,

I am new to the blog and would first like to extend a very warm thanks to Dean Chen for inviting me to contribute. I graduated from Temple University last year and will likely be starting at the University of Chicago for law school this fall (still haven't made a seat deposit, but am almost 100% sure about enrolling).

I am not quite sure what subjects I will cover and am sure my interests will change once school begins. For now, I will focus mainly on civil rights law and public interest/policy issues that relate to the volunteer work that I do for the Philadelphia ACLU.

That's all for now, I am thrilled to be a part of this very accomplished group.

February 12, 9:54 PM   /   Commercial Law   /   Odel Initiative on Consumer Protection Legislation

Professor David Oedel over at Mercer University Law School is heading up a legislative proposal that some of you might be interested in signing onto:

Dear Senators and Congresspersons,

As law professors concerned about encouraging the most thoughtful, effective and flexible forms of financial reregulation, we urge that federal law should permit states also to protect financial consumers. In other words, any new financial regulation emerging from Congress this year should include a provision that would allow states the freedom to protect financial consumers with state rules that are stricter than (but consistent with) the minimum consumer protection standards established by federal law. This basic model of state regulatory freedom to protect state interests in ways that do not conflict with federal law has worked well in a number of other arenas, such as in some areas of environmental protection and insurance. Our sense is that many recent financial troubles could have been averted had the states been freer to regulate on behalf of their consumers on the main streets of their states.

We do not propose to alter the current law of federal preemption as it relates to national systemic safety and soundness. Our proposal is only to free up state innovation on matters of consumer financial protection.

Thank you for your consideration.

If you are interested in being a part of this initiative, contact Dave at oedel_dg@law.mercer.edu with e-mail, including your name, title, and institution.

- JSM

February 12, 5:04 PM   /   First Movers   /   Publication Announcement

David Schraub, Comment, The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement, 77 U. Chi. L. Rev. __ (forthcoming 2010).

February 11, 5:44 AM   /   Agricultural Law   /   Blog symposium on competition in agriculture

The Antitrust and Competition Policy Blog is conducting a symposium on competition in agriculture. Check it out.

February 10, 7:26 AM   /   Jurisdynamics   /   The agony and the sweat

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

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

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

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

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

February 9, 8:23 PM   /   Agricultural Law   /   Ethanol: The Real Growing Problem

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.”

Alas, no one asked me.

February 8, 10:32 PM   /   Agricultural Law   /   Journal of Food Law & Policy Seeking Articles

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

February 8, 8:12 PM   /   Commercial Law   /   The CISG and the Vis International Moot: Twin Ideas for Effective Lawyering in a Globalized World

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.

February 5, 4:18 PM   /   Agricultural Law   /   USDA Drops Controversial National Animal ID Plan

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.