The Long View 2003-06-13: Rough Justice

Did I mention that John predicted that there would be no major changes in the intellectual movements of the twenty-first century? Who is on top of the struggle at a particular time keeps changing, but the argument never changes. Everything in this post from 2003 is still current, even though the technology supposedly driving it has advanced.

Probably because I read too much science fiction, I tend to think that there are better ways to reduce atmospheric CO2 than the ones we have been pursuing. Many of these means are technological, and grand in scope, which gives many in the environmental movement hives. I don't particularly care, because most of them don't know anything.

That being said, there is tremendous risk in most posited geoengineering schemes. It isn't crazy to feel uneasy about this kind of thing [although I think many vocal advocates and opponents are, in fact, crazy]. There is also tremendous benefit, which is why people keep talking about it. Risk management and compliance is what I do for a living, and I think complex risks can be successfully managed, and I am not the only one to think so. This is the sort of thing that should be run by accountants, instead of activists.

GMOs are similar. Most of the popular panic about genetically modified organisms is based on a complete lack of knowledge about how agricultural science works. All of the crops we grow today are genetically modified from the source, the primary difference in modern techniques is that you have much better control in what you change. Although, to give credit where credit is due, there are some who think Norman Borlaug is a great villain for using conventional breeding techniques to create the plants that feed the world, instead of allowing people to starve to death in the manner predicted by Paul Ehrlich.

 

Rough Justice
Scientists at the California Institute of Technology have suggested that a hydrogen power economy could damage the ozone layer. They don't exactly say this will happen if people start using fuel cells. Rather, they posit a complicated process involving water-vapor formation at the poles that might decrease ozone production. Though I have not seen a report from the researchers themselves, this effect is unlikely on its face; hydrogen is so reactive that it's pretty certain to bond close to the point of production. Of course, we have no experience of mass production of hydrogen, so it is conceivable that there will be enough leakage to affect the composition of the atmosphere. In other words, this is yet more environmental "science" that concludes "unforeseeable effects cannot be experimentally precluded." Well, yes.
This is just the kind of rhetorical device that the activist Jeremy Rifkin has been using these many years to close down the genetically modified food industry. There is no evidence at all that genetically modified foods present special health hazards. There isn't even a theoretical reason to think that they might. His argument, taken up by the protectionist agricultural lobby in the European Union, has been that such foods should not be used until it is proved they have no adverse effects. Unfortunately for him, he has also been a great promoter of fuel cells, perhaps under the misapprehension that fuel cells are a power source and not just very good batteries. What is his reaction to this new set of concerns?
"[W]hen you move into a new energy source you have to assume there's going to be some environmental impact...[Hydrogen] is our hope for the future...We know we can't continue to burn fossil fuels because the planet is warming up. And we know hydrogen is where we have to head."
That is also the argument for nuclear power, but that's another issue. The interesting thing to note now is the coincidence of the hydrogen story with the growing campaign against wind power. Not so long ago, the word "windmill" was a trump card for environmental activists when they came out to oppose the construction of conventional power plants. Silent, smokeless, beautiful: windmills were the Platonic ideal of electricity- generation technology. Unfortunately, a combination of improved technology and government subsidies made wind power economical in some regions, and the power-generating utility companies took the environmentalists at their word. The actual windmill generators turned out to be huge, noisy, industrial installations. They are usually strung along the ridges of windy landscapes like the towers for high-tension powerlines. These installations have also displayed a gratifying tendency to go up in the backyards of the country houses of environmentalists. The planned windmills for Nantucket have the Kennedy family incensed: unless their lawyers can stop it, they might find themselves looking at something as tacky as heavy industry from the patios of their summer homes.
* * *
Speaking of litigation, part of the package of reforms that President Bush wants to lower the cost of drugs involves caps on punitive damages in malpractice suits. There is a lot to be said for this, but the president insists on casting the question in terms of restraining frivolous lawsuits. "No one was ever healed by a frivolous lawsuit," he said as he introduced the most recent version of his plan.
This misstates the problem. The courts are actually pretty good at throwing out frivolous suits. Defendants (or their insurance companies) often do just buy off nuisance plaintiffs, but those are not the payments that have driven malpractice insurance premiums through the roof. The real trouble has, for the most part, come from perfectly valid suits that occasioned arbitrarily high awards. The moral here is that the ability of the tort system to compensate real injuries has limits. When the president casts the question in terms of frivolous suits, he leaves himself open to true horror stories about duplicitous drug companies and drunken doctors.
* * *
And what about the judges in the federal system who are supposed to decide these issues? Although it seems at this writing that there will not be any Supreme Court vacancies this summer after all, the Bush Administration's judicial appointments are still largely tied up in knots in the Senate. The current victim of the Judiciary Committee is Bill Pryor, who has been nominated for the 11th Circuit. His problem is that he was impolitic enough to tell the committee that he thinks the Supreme Court's reproductive rights decisions are gibberish. That is true, but it misses the point. All but the dimmest judges and law professors know that those decisions are gibberish. They can support the results because, like Bertrand Russell in his long silly period of political activism, they have accepted the philosophical position that political questions are inherently non-logical.
What we have here is the spectacle of the Senate try to fix the canons of construction of the Constitution by intuiting the canons favored by the nominees that come before it. Since the Senate is unable or unwilling to discuss the canons openly, the senators often do a very poor job of mind reading.
What are the canons of construction? They are the law before the law, the set of rules that tell judges how to interpret a text of a statute, including the Constitution. The rules can be common sense, even trivial, such as the principle when two statutes are in conflict, the later governs. Some are less obvious, such as the rule that when a law repealing an earlier law is itself repealed, the first law does not come back into effect unless the legislature says so explicitly. The canons of construction are often informal, but they can also be codified: that is what Title I of the United States Code does. State codes have their own canons.
Might I suggest that it is not obvious that canons of constitutional construction are themselves part of the Constitution? Obviously, a canon might be introduced by amendment. Barring that, however, they could be codified by legislation. That would at least compel a judge to state when he was ignoring a canon.
* * *
Readers will be relieved to know that Secretary of Defense Donald Rumsfeld seems to have turned back the Belgian menace. While traveling in Europe, he said that if Belgium did not stop using its law against human-right violations to indict American officials, then the US would not put up the 22% it promised for the cost of a new NATO headquarters in Brussels. The issue is that the law claims universal jurisdiction for Belgian courts, whether or not the violations in question had anything to do with Belgium or its citizens. The statute has been used to file complaints for political reasons. These cases are nuisance prosecutions, but they do make it just possible that US officials in Europe might be detained. Belgium officials have said that amendments to the law are likely.
That is all well and good, but the US did start the decline of jurisdictional restraint. The Helms-Burton Amendment famously penalizes foreigners living a broad, who do business with other foreigners living abroad, if they did business involving property expropriated by the Cuban government from Cuban exiles now living in the United States. Civil suits can be filed in US courts against governments alleged to promote terrorism, which makes it hard to deal diplomatically with those countries. Some of the Holocaust suits brought against German corporations and Swiss banks were little more than shakedown operations.
Some canons of construction at the international level might be in order, too.
Copyright © 2003 by John J. Reilly

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