Category: Law and Policy

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Law and Policy Science & Technology

One Reason I No Longer Jump in to Defend Intelligent Design

A year or two ago, I was much more sympathetic to Intelligent Design than I am now. Part of my waning enthusiasm for ID is that, as I’ve studied the arguments, some of the “proofs” ID uses don’t really seem all that compelling. Of course, I still believe in design. More than that, I think some arguments that are classified as “design” or “ID” arguments remain very strong, particularly when they are used in the classical sense as part of a broader framework of “faith seeking understanding,” rather than as formal, rationalistic evidences of breaks in the created order.

What has really turned my stomach sour about ID, however, is the increasingly politicized tone of some of the ID leadership. Exhibit No. 1 here is Bill Dembski’s blog, Uncommon Descent. I’ve read some of Dembski’s books, and his tone in that kind of writing tends to be erudite and scholarly. On his blog, however, he and some of his guest posters come across, at least in my mind, as strident and angry. They make the political motivations for ID transparent, particularly when they go off on rants about things that are completely irrelevant to the question of design, such as global warming. Dembski’s blog, for me, damages the credibility of ID as a scientific or even generally scholarly enterprise — which is a shame.

Here is what gets my ire today. I participate actively in the American Scientific Affiliation discussion list. One of the friends I’ve made on that list, whom I’ve never met in person but hope to some day, is Ted Davis, a professor at Messiah College (a Christian liberal arts college). From what I’ve seen of Ted’s work, he is a model to me of what a Christian scholar should be like. I may not always agree with Ted (though I usually do), but I can always say that Ted presents his case in a calm, reasonable way.

For some unknown reason, Dembski decided yesterday to attack Ted on Uncommon Descent. This attack was particularly ridiculous because the comments Dembski refers to were in the context of Ted’s criticism of a strident anti-ID commentator who was trying in some absurd way to defend Richard Dawkins. This kind of thing makes it hard for me to trust what Bill Dembski says — which again, is really too bad, because alot of what he says in his more scholarly work is interesting and worthy of careful discussion.

Here is what I wrote in the comments on Dembski’s blog, which undoubtedly will get me flamed over there:

I am the “David” to which Ted Davis refers and whose earlier comments Ted “echoes” in the discussion thread from the ASA email list which Dr. Dembski has referenced. The context of that thread was a discussion of Richard Dawkins’ recent “Fresh Air” interview.

The person to whom Ted is directly responding in that discussion, Pim van Meurs (of Panda’s Thumb), was suggesting that Dawkins’ main target is ID rather than religion generally. Pim seemed to be defending Dawkins as a champion of Science. I reacted strongly to that, and others jumped into the fray, including Ted.

The suggestion that Ted’s post “is written to Pim van Meurs, as a mentor would write to his disciple” is patently absurd, bordering perhaps on defamatory. If you read through the whole thread, and indeed if you were to participate regularly on the ASA list, you would immediately see that nothing could be further from the truth. Ted never hesitates to call out over-the-top nonesense like a defense of Richard Dawkins as a reasonable chap who is just concerned about ID.

Indeed, in my many online conversations with Ted, I’ve come to appreciate deeply his somewhat moderating stance between TE and ID. It is true that Ted also doesn’t hesitate to criticize what he sees as the flaws in the “strong” ID program. But at the same time, he often defends the basic notion of design from excessive criticism by TE’s, and the historical context he is able to provide to these discussions invariably is invaluable.

Above all, Ted is a gentleman as well as a scholar. From what I’ve seen of Ted’s writing and of his leadership in the ASA, he has refused to allow the politics of ID to overwhelm careful scholarship and calm, reasoned discussion.

It is a shame that we can’t say the same for everyone involved in this discussion, particularly for those who publicly identify themselves as followers of Jesus. Personally, I used to be much more sympathetic to ID than I am now. One of the main reasons for my increased skepticism about ID is that nasty, strident, politicized tone of many ID leaders — as exemplified by this unfair attack on a fellow Christian scholar. You may think you are winning a battle here and there, but you will lose the war if you keep going down this track. The shame is that it isn’t really your war to fight, and the tools you’re using to fight it are not those of the Kingdom all of us Christian scholars are supposed to represent.

I am a law professor, a Christian scholar along with Ted and Dr. Dembski, though not possessed of anywhere near their achievements, influence or stature. We who are called to serve the Church with our teaching and scholarship, perhaps more than anyone else, ought to model patient, careful, deep and reasonable discourse. We together name Jesus as Lord and agree that all Truth is God’s Truth. Our bond in those facts should transcend this sort of petty sniping.

(And now, let’s see with what love and grace everyone here treats me for daring to defend my friend Ted Davis).

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Law and Policy

Baseball!

The Yankees’ season started just a few moments ago. It was pretty cool to watch the first pitch. A-Rod already has an error, of course.

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Law and Policy

Mom My Ride

A hilarious spoof using “Pimp My Ride” to bust us suburban minivan drivers:

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Humor Law and Policy

How Not to Be Seen

This is a classic mash-up of Monty Python and Halo:

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Law and Policy Uncategorized

Jesus Loves You (But We Hate You)

Today’s e-mail update from the Family Research Council urges Christians to sign a petition against a proposal to amend the federal hate crimes laws to include hate crimes against homosexuals. The FRC has set up a website reflecting a major initiative to oppose what it is calling “thought crimes” laws. The FRC suggests that Christian pastors could be imprisioned under this law for preaching sermons about traditional sexual morality.

I understand some of the FRC’s concerns here, but I have to say that this initiative deeply disturbs me. Before I mention what disturbs me, here are the points with which I agree. There are places in the world, some of them purportedly liberal democracies, in which speech, by itself, can be considered a hate crime. I agree with FRC and other Christian organizations that laws of that sort are abominable and a threat to religious liberty. Religions by definition “discriminate” in the sense that all religions in some way divide the ethical and moral from the unethical and immoral. Christianity is about grace and love, but we affirm that we need grace and love because we are all sinners. Christians don’t, and can’t, hesitate to identify sin for what it is, including in the area of sexual morality (though I would say that there is no reason to single out homosexual practice in this regard in contrast to other issues of sexual morality, and that we could do much better in acting pastorally and missionally towards people who are homosexual). There is no question about the fact that we need to remain vigilant about preserving freedom of religious speech and association.

Having said that, this concern has nothing whatsoever to do with the hate crime law currently being targed by the FRC and other religious right groups. The bill under consideration concerns violent crime. The amendment would increase the penalities for violent crimes motivated by animus against homosexuals. Here is what is covered by this bill: the willfull causing of “bodily injury to any person or, through the use of fire, a firearm, or an explosive device, attempts to cause bodily injury to any person,” including “kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.”

Perhaps I missed it, but I didn’t see any reference there to preaching a sermon. This bill has nothing whatsover to do with preaching or speaking about traditional morality. There is no realistic likelihood that such protected first amendment activity would ever be criminalized in the United States, and even if it were, the “activist judges” would surely overturn such plainly unconstitutional legislation.

In addition, I’m very disturbed by the effort to paint this legislation as a “thought control” bill. The “thought control” meme has been picked up by various conservative organizations (see, e.g., Concerned Women for America’s webpage on the issue). I think this is extremely misleading. The truth is that it is not at all unusual or for the law to impose different penalties depending on a person’s state of mind. In fact, state of mind is an element of many crimes. Murder, for example, as every first-year law student learns, traditionally is defined as “the intentional killing a human being with malice aforethought.” “Intent” and “malice aforethought” are states of mind. This doesn’t make the prohibition of murder some kind of black helicopter “thought control” law.

I could give hundreds of other examples in which state of mind is relevant either to the elements of a crime or civil claim or to the penalty or damages to be imposed. Indeed, it’s fair to say that both the criminal and civil law routinely address a party’s mental state. To suggest that hate crimes legislation is unique in this regard is false.

Finally, and perhaps most importantly, I think the religious right’s crusade against hate crimes laws, from a missional perspective, is misguided and selfish. What does this communicate to a homosexual person about the love of Jesus? Will this do anything to move any person involved in homosexual behavior to turn towards Jesus and the community of faith, where hope and healing could be found? Is the Christian community speaking the truth in love (Eph. 4:15) here, or are we just demanding our “rights?” I think the FRC might be right in identifying the homosexual activist movement in Western countries as a key area in which the Church will face a post-Christian culture in coming decades. The question is, do we confront that culture with a sort of jihad, or do we take up the way of the cross and face it with sacrificial love?

Appendix: here is the full text of the bill currently being considered by Congress. I think it is abundantly clear that this has nothing to do with so-called “thought crimes” and everything to do with the kind of violence that all followers of Jesus should deplore, whether against homosexuals or anyone else:

HR 254 IH

110th CONGRESS

1st Session

H. R. 254
To enhance Federal enforcement of hate crimes, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

January 5, 2007
Ms. JACKSON-LEE of Texas introduced the following bill; which was referred to the Committee on the Judiciary

——————————————————————————–

A BILL
To enhance Federal enforcement of hate crimes, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `David Ray Hate Crimes Prevention Act of 2007′ or `David’s Law’.

SEC. 2. FINDINGS.

Congress finds that–

(1) the incidence of violence motivated by the actual or perceived race, color, national origin, religion, sexual orientation, gender, or disability of the victim poses a serious national problem;

(2) such violence disrupts the tranquility and safety of communities and is deeply divisive;

(3) existing Federal law is inadequate to address this problem;

(4) such violence affects interstate commerce in many ways, including–

(A) by impeding the movement of members of targeted groups and forcing such members to move across State lines to escape the incidence or risk of such violence; and

(B) by preventing members of targeted groups from purchasing goods and services, obtaining or sustaining employment or participating in other commercial activity;

(5) perpetrators cross State lines to commit such violence;

(6) instrumentalities of interstate commerce are used to facilitate the commission of such violence;

(7) such violence is committed using articles that have traveled in interstate commerce;

(8) violence motivated by bias that is a relic of slavery can constitute badges and incidents of slavery;

(9) although many local jurisdictions have attempted to respond to the challenges posed by such violence, the problem is sufficiently serious, widespread, and interstate in scope to warrant Federal intervention to assist such jurisdictions; and

(10) many States have no laws addressing violence based on the actual or perceived race, color, national origin, religion, sexual orientation, gender, or disability, of the victim, while other States have laws that provide only limited protection.

SEC. 3. DEFINITION OF HATE CRIME.

In this Act, the term `hate crime’ has the same meaning as in section 280003(a) of the Violent Crime Control and Law Enforcement Act of 1994 (28 U.S.C. 994 note).

SEC. 4. PROHIBITION OF CERTAIN ACTS OF VIOLENCE.

Section 245 of title 18, United States Code, is amended–

(1) by redesignating subsections (c) and (d) as subsections (d) and (e), respectively; and

(2) by inserting after subsection (b) the following:

`(c)(1) Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person–

`(A) shall be imprisoned not more than 10 years, or fined in accordance with this title, or both; and

`(B) shall be imprisoned for any term of years or for life, or fined in accordance with this title, or both if–

`(i) death results from the acts committed in violation of this paragraph; or

`(ii) the acts committed in violation of this paragraph include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

`(2)(A) Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B), willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive device, attempts to cause bodily injury to any person, because of the actual or perceived religion, gender, sexual orientation, or disability of any person–

`(i) shall be imprisoned not more than 10 years, or fined in accordance with this title, or both; and

`(ii) shall be imprisoned for any term of years or for life, or fined in accordance with this title, or both, if–

`(I) death results from the acts committed in violation of this paragraph; or

`(II) the acts committed in violation of this paragraph include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

`(B) For purposes of subparagraph (A), the circumstances described in this subparagraph are that–

`(i) in connection with the offense, the defendant or the victim travels in interstate or foreign commerce, uses a facility or instrumentality of interstate or foreign commerce, or engages in any activity affecting interstate or foreign commerce; or

`(ii) the offense is in or affects interstate or foreign commerce.’.

SEC. 5. DUTIES OF FEDERAL SENTENCING COMMISSION.

(a) Amendment of Federal Sentencing Guidelines- Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall study the issue of adult recruitment of juveniles to commit hate crimes and shall, if appropriate, amend the Federal sentencing guidelines to provide sentencing enhancements (in addition to the sentencing enhancement provided for the use of a minor during the commission of an offense) for adult defendants who recruit juveniles to assist in the commission of hate crimes.

(b) Consistency With Other Guidelines- In carrying out this section, the United States Sentencing Commission shall–

(1) ensure that there is reasonable consistency with other Federal sentencing guidelines; and

(2) avoid duplicative punishments for substantially the same offense.

SEC. 6. GRANT PROGRAM.

(a) Authority To Make Grants- The Administrator of the Office of Juvenile Justice and Delinquency Prevention of the Department of Justice shall make grants, in accordance with such regulations as the Attorney General may prescribe, to State and local programs designed to combat hate crimes committed by juveniles.

(b) Authorization of Appropriations- There are authorized to be appropriated such sums as may be necessary to carry out this section.

SEC. 7. AUTHORIZATION FOR ADDITIONAL PERSONNEL TO ASSIST STATE AND LOCAL LAW ENFORCEMENT.

There are authorized to be appropriated to the Department of the Treasury and the Department of Justice, including the Community Relations Service, for fiscal years 2007, 2008, and 2009 such sums as are necessary to increase the number of personnel to prevent and respond to alleged violations of section 245 of title 18, United States Code (as amended by this Act).

Categories
Justice Law and Policy Theology

The Ontology of Peace

In the past, I’ve referenced my interest in Radical Orthodoxy, which developed after I attended an RO-heavy conference at Baylor last fall. I’m working up a proposal for a presentation at next year’s Baylor conference, with the vague thought of how the “ontology of peace” can apply to information law and policy. I stumbled across this nice summary of the Augustine-Aquinas-Milbank trajectory through the “ontology of peace” in a delightful little essay by Joel Garver about “Kenny” from “South Park” as a Christ figure:

An Ontology of Primordial and Final Peace

Let’s begin sketching an alternative by examining some of the suggestions and presuppositions of two Christian philosophers and saints–Augustine and Thomas Aquinas. Then we will consider some considerations of a contemporary Christian philosopher–John Milbank.

Augustine

The fundamental presupposition of Augustine is that the material world is a result of free creation by God–as opposed to violence. Since, for Augustine, God is a Trinity of persons in a relation of love, freely shared, God is free to create a reality that may enter into that love. Futhermore, human beings who are in the image of God possess free will by which they do wrong–as opposed to find evil’s source in mere ignorance. Moreover, evil has no ontological purchase on Augustine’s view. It is defined negatively as the choosing of lesser goods over greater goods and so evil is seen as a privation–as opposed to an ontological reality.

In his Confessions Augustine presents the history of his person, lived before the face of God and offered up to God, redeeming his painful memories of the past. Thus, Augustine can be credited with the first deep theorization of psychology and personality as we know it–as opposed to the ultimate impersonalism of the Greeks.

Finally, in his City of God Augustine proposed an alternative city, a re-telling of the pagan myths which unmasks their inherent violence. Moreover, it is the proposal of a new narrative that is plausible by out-narrating the alternatives.

Let us turn then to Thomas.

Thomas Aquinas

For Thomas the fundamental nature of the world is to be understood by means of the analogy of being (analogia entis) in which the relations and reality of creation find an analogy in the very life of God. Thus being and difference must be seen in the final context of relation and love within the Trinity. God is who he is–both in the unity of the Godhead and in the differences between the Persons–only in virtue of his internal relations of love.

By the analogy of being we can then also see that the ultimate nature of things is love. Difference within the creation is established in love. Moreover, being unveils itself to me and so knowledge is a gift of love, but since love is fundamental to knowledge reason and faith are not extrinsically and externally related to one another and to knowledge, but are mutually and intrinsically related. This ontology and epistemology provides an alternative to empirical-positivist model of science by invoking formal and final causality, intrinsic relationality, and gift–as opposed to a privileging of control, atomism, and force.

John Milbank

Augustine and Thomas show us, then, that it is possible to narrate reality in a way that does not presuppose and perpetuate violence either as a primordial condition of ontology or as a sustaining event within the world and human practices and discourse. There is an alternative within the Christian message.

For Milbank, the Christian message is not to out-argue the ontology of violence by an appeal to some supposedly neutral and universal discourse of rationality. Rather, Christian belief claims to out-narrate and out-practice any alternatives. Part of that narrative is the example of Jesus who embodies the ultimate rejection of violence by refusing to play the game and answering conflict with transforming love. In him, the church is to be the space in which the alternative world is manifest with its alternative narrative and counter-history. Thus the ontology of violence is to overcome with a lived narrative and ontology of peace.

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Justice Law and Policy

Family Research Council Beats the War Drum

I get a daily mass email from the Family Research Council. Honestly, most of the time it ticks me off. Today’s missive was particularly infuriating. Under the headline “The War Over War Rages On,” the message states,

In the four years since coalition troops first invaded Iraq, it has become painfully obvious that some Americans have short memories and even shorter attention spans. While our brave men and women risk their very lives for freedom, some at home have grown weary of the fight.

First, what does this have to do with family issues?

More importantly — well, no, we don’t have “short memories and even shorter attention spans.” We’ve been paying close attention, and we remember all to well that our troops were committed to an unwinnable war, with great cost to American and Iraqi lives, at untold financial cost, on false pretenses, and without any coherent plan for victory and no realistic hope of resolution.

All Christians should be disgusted that this organization, which purports to represent our interests in Washington on family issues, has instead become the mouthpiece of neoconservative warmongers. In my view, this is just another evidence that FRC speaks only for a radical fringe and not for mainstream evangelical Christians who care deeply about peace and justice.

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Law and Policy

Quote of the Day — History and Logic

“A page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J., dissenting).

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Justice Law and Policy

Al Gore's Carbon Offsets — Or, How the Wealthy Combat Global Warming

There was an amusing story in the Wall Street Journal this week about Al Gore’s indoor heated pool and the way in which he purchases “offsets” for his personal carbon emissions. According to the story: “Last August alone, Gore burned through 22,619 kWh–guzzling more than twice the electricity in one month than an average American family uses in an entire year.” Gore “offsets” this energy usage by purchasing blocks of “green” power from wind farms and such.

The story also notes that Oscar attendees received as part of their “swag” 100,000 pounds worth of carbon credits from an outfit called TerrPass. Here’s how TerraPass describes itself: “When you buy a TerraPass, your money funds renewable energy projects such as wind farms. These projects result in verified reductions in greenhouse gas pollution. And these reductions counterbalance your own emissions.”

As I’ve said before, I’m not a skeptic of the basic scientific conclusions about global warming. I am, however, skeptical of international emissions trading schemes, and the above is one reason why. The market dynamics of this “offset” process mirror some potential problems with a global market — specifically the differential between the wealthy and poor concerning elasticity of demand.

Gore and his fellow Oscar winners aren’t really “offsetting” their carbon energy use. What these “offsets” are really doing is maintaining the supply of carbon energy such that the elite’s demand can be satisfied. Here, the concept of the “elasticity” of demand is important. A demand curve usually is not constant. At different places in the curve, demand responds more or less sharply to changes in price. Demand is “elastic” if demand is relatively sensitive to incremental changes in price. Demand is “inelastic” if demand is relatively insensitive to incremental changes in price.

For most of us, I suspect that demand for energy is relatively elastic. A relatively small fluctuation will cause us to change behavior — lower thermostats, not driving as much, etc. For the very wealthy, however, demand for energy probably is much less elastic. They aren’t likely to notice a few thousand dollar increase in cost of electricity for the swimming pool.
At best, then, the “offets” Gore is buying will allow some alternative energy supplier to offer energy to the more elastic segments of the market (us regular Joes) at prices competitive with traditional carbon-based suppliers. But this is highly unlikely, since the “offsets” purchased aren’t anywhere near the amount needed to make up for the higher variable costs of supplying alternative energy (not to mention the sunk costs of research and development and building infrastructure). Thus, demand for traditional energy is not likely to decrease among the more elastic segments of the market, or if it does, the decrease will be marginal.

Meanwhile, the “offsets” allow the more inelastic segments of the traditional energy market to feel good about their conspicuous energy consumption, fueling additional demand. The net is likely to be an overall increase in traditional energy usuage!

Once the problem is conceived in terms of elasticities of demand, another solution suggests itself. Where there are differing elasticities of demand for the same good, a typical efficient response is differential or “Ramsey” pricing. Differential pricing means that the more elastic segments of the market are charged more than the more inelastic segments.

This is one reason why a graduated carbon tax seems to make sense. Instead of buying “offsets,” the price of energy should be graduated based on the amount used. After a basic level, the price would increase sharply, to the point where even elastic segments of the market would feel pain for conspicuous use (either through regulation, taxation, or both). I’ll be this would do more to fuel research into alternative energy sources than an “offset” market that only allows the wealthy to buy their peace.

Categories
Justice Law and Policy

Global Warming, Kyoto, and the EU Experience

I’m not a global warming skeptic. That is, I accept the general scientific consensus that there has been anthropogenic global warming over the past century.

I am, however, a skeptic of alarmist projections about the dangers of global warming. The consensus views reflected in the reports produced by the International Panel on Climate Change present a range of scenarios ranging from moderate to severe. No one is anywhere near certain that the “severe” scenarios will obtain. In particular, no one knows what sorts of technologies will develop over the next one hundred or so years to mitigate any negative effects of warming. Nevertheless, because we are supposed to be good stewards of the creation and because the negative effects of global warming are unpredictable, I believe it’s wise to take reasonable measures to reduce the emission of greenhouse gas pollutants.

Even more than my skepticism about alarmist predictions, however, I am skeptical of efforts like the Kyoto treaty to create an international greenhouse gas regulatory regime. The European Union’s effort to implement Kyoto, I think, is informative.

The biggest problem with the EU system is that the supply side is decentralized, which allows individual member states and their constituent industries to game the system. In the EU system, a central authority designates the industrial sectors that will be subject to the trading scheme, but each member state is free to allocate allowances from a national allowance budget to affected industries within their borders. As a result (a) supply doesn’t respond efficiently to demand; and (b) strong local industries can capture the national allocation process. (For a good summary of the EU experience, see this report.

This centralized demand / decentralized supply aspect of the EU system makes it very different than most of the cap and trade programs tried in the U.S. The U.S. experiments have been ones in which the same central authority identifies target industries and allocates the tradeable credits, establishing a more unified and efficient market. My understanding is that, while some of the U.S. experiments have succeeded in reducing target emissions, Phase I of the EU program under Kyoto has seen no net reductions in CO2 emissions.

A full-on implementation of Kyoto would make the EU decentralization problem look like child’s play — unless there were a central authority of sufficient strength to regulate both demand and supply of credits. I think the prospect of ceding national sovereignty to such a central authority is the heart of the issue concerning Kyoto or a Kyoto-like regime. Anyone who wants to propose a global cap and trade program must answer this question of sovereignty. I think it’s awfully difficult to argue that the precautionary principle as applied to the current science on global warming justifies devolving sovereignty to an unelected international body comprised of countries like China, Russia, and France.