ProfessorBainbridge.com

Watch for the coming flood of global warming litigation

My Examiner column:

Let's assume, for the sake of argument, that the climate change phenomenon commonly called "global warming" exists and is being caused, at least in part, by human activity. Who is responsible? The only sensible answer is, everybody. We all contribute to the release of greenhouse gasses, as did our ancestors going back at least to the beginning of the Industrial Revolution.

One would therefore think litigation is no more an appropriate response to global warming than litigation would be to any so-called "act of god." One would be wrong.

Earlier this year, Texas trial lawyer Stephen Susman told the Dallas Morning News that "You're going to see some really serious exposure on the part of companies that are emitting CO2." He added, for good measure, that "I can't say for sure it's going to be as big as the tobacco settlements, but then again it may even be bigger."

Indeed, trial lawyers are gearing up to turn global warming into their next pot of gold. A coalition of environmental groups and cities are suing the Overseas Private Investment Corporation and the Export-Import Bank of the United States for making loans to finance oil pipelines, oil drilling, and similar projects that supposedly result in a net emission of billions of tons of carbon dioxide. After Hurricane Katrina, New Orleans trial lawyers Gerald Mapes and Timothy Porter sued dozens of energy companies, claiming they had contributed to global warming.

Last year, Business Week reported that there were 16 pending global warming cases of these sorts pending around the country. More are surely in the pipeline, so to speak.

Indeed, the prospect of a boom in global warming litigation is prompting law firms to begin setting up units specializing in climate change issues. According to the Dallas Morning News, for example, Dallas law firms Vinson & Elkins and Thompson & Knight have set up global warming units with 41 and 26 lawyers, respectively.

If it weren't for the precedents set by tobacco, alcohol, and obesity lawsuits, one might be tempted to dismiss climate change litigation out of hand. After all, the law typically requires a showing of causation. Before you can hold me liable, you must show that but for my conduct you would not have been injured. Typically, you also must show that my conduct was the proximate cause of your injury.

How can one firm—or even one industry—be blamed for a global phenomenon that took decades to arise? Making causality findings and apportioning responsibility in this context is ludicrous. Yet, what might a New Orleans jury still smarting over Katrina do if they got the chance to decide Mapes and Porter's suit?

This is a classic example of why tort reform is a pressing need. The Institute for Legal Reform offers some chilling statistics: "America's civil justice system is the world's most expensive, with a direct cost in 2005 of $261 billion, or 2.09 percent of GDP.

"Tort costs were $880 per U.S. citizen in 2005, meaning the average American family of four paid a 'litigation tax' of more than $3,500 due to increased costs from lawsuits and other liability expenses that force businesses to raise the price of products and services. That cost is equivalent to nearly an 8 percent tax on wages."

These costs are having a dramatic impact on the US economy. A nonpartisan report prepared for New York Senator Charles Schumer and New York City Mayor Michael Bloomberg, found that the "propensity toward litigation" in the United States is "driving growing international concerns about participating in US financial markets."

Along with regulatory excesses like the Sarbanes-Oxley Act, the litigation industry in this country is making our capital markets and our economy as a whole less competitive.

It's time for Congress and the president to step up with legislation that take the question of global warming out of the arena of ad hoc judicial decision making and put it into the hands of our elected officials. Both fairness and efficiency demand it.

Global Warming Lawsuits

Overlawyered reports on the potential for mass tort litigation against US (and, I suppose, foreign) corporations based on global warming claims. The post concludes:

All of which proves nothing at all about the actual causes or dangers of global warming. It’s just more evidence of a climate of greed and opportunism in the trial bar. And that’s one climate that never changes.

These sort of attacks on US business have a strongly negative impact on the US economy, especially the competitiveness of our capital markets. The bipartisam Schumer-Bloomberg report stated:

Survey respondents said that a fair and predictable legal environment was the second most important criterion determining a financial center’s competitiveness. In this regard, they felt that the United States was at a competitive disadvantage to the United Kingdom. They attribute this US disadvantage to a propensity toward litigation and concerns that the US legal environment is less fair and less predictable than the UK environment. Empirical evidence certainly suggests that litigation has become an important issue: 2005 set a new high for the number of securities class-action settlements in the US, and for the overall value of these settlements. Of course, many of these cases addressed the legitimate claims of investors and consumers in situations of notable corporate wrongdoing. However, in aggregate, some of the unique characteristics of the US legal environment are driving growing international concerns about participating in US financial markets – concerns heightened by recent cases of perceived extraterritorial application of US law.

Space Colonization

John Tierney in the NY Times:

In 1993, J. Richard Gott III computed with scientific certainty that humanity would survive at least 5,100 more years. At the time, I took that as reason to relax, but Dr. Gott has now convinced me I was wrong. He has issued a wake-up call: To ensure our long-term survival, we need to get a colony up and running on Mars within 46 years. ...

Since there?s a 50 percent chance that we?re already in the second half of the space program?s total lifespan, Dr. Gott figures there is a 50 percent chance it will not last more than another 46 years. Maybe the reason civilizations don?t get around to colonizing other planets is that there?s a narrow window when they have the tools, population and will to do so, and the window usually closes on them. ?In 1970 everyone figured we?d have humans on Mars by now, but we haven?t taken the opportunity,? Dr. Gott says. ?We should it do soon, because colonizing other worlds is our best chance to hedge our bets and improve the survival prospects of our species. Sooner or later something will get us if we stay on one planet. By the time we?re in trouble and wish we had that colony on Mars, it may be too late.?

Glenn Reynolds writes:

Read the whole thing. And worry a bit.

Unfortunately, science fiction writer Charles Stross - who presumably has a vocational interest in coming up with plausible space colonization scenarios - is dubious.

Mars is ... well, the phrase "tourist resort" springs to mind, and is promptly filed in the same corner as "Gobi desert". As Bruce Sterling has < span style="color: #8b0000;">puts it: "I'll believe in people settling Mars at about the same time I see people settling the Gobi Desert. The Gobi Desert is about a thousand times as hospitable as Mars and five hundred times cheaper and easier to reach. Nobody ever writes "Gobi Desert Opera" because, well, it's just kind of plonkingly obvious that there's no good reason to go there and live. It's ugly, it's inhospitable and there's no way to make it pay. Mars is just the same, really. We just romanticize it because it's so hard to reach." In other words, going there to explore is fine and dandy ? our robots are all over it already. But as a desirable residential neighbourhood it has some shortcomings, starting with the slight lack of breathable air and the sub-Antarctic nighttime temperatures and the Mach 0.5 dust storms, and working down from there.

Actually, there probably is a good reason for sending human explorers to Mars. And that's the distance: at up to 30 minutes, the speed of light delay means that remote control of robots on the Martian surface is extremely tedious. Either we need autonomous roots that can be assigned tasks and carry them out without direct human supervision, or we need astronauts in orbit or on the ground to boss the robot work gangs around.

On the other hand, Mars is a good way further away than the moon, and has a deeper gravity well. All of which drive up the cost per kilogram delivered to the Martian surface. Maybe FedEx could cut it as low as $20,000 per kilogram, but I'm not holding my breath.

In the post from which I've excrpted the Mars discussion, Stross also tackles lunar and even interstellar colonization. It's a provocative read, which I recommend highly.

Reality versus Fantasy: What Effect Would Holosex Have on Population?

Here are PB.com, we don't bog about sex much, but the sci fi geek in me can't help commenting on Jane Galt's criticism of Naomi Wolf:

Naomi Wolf continues giving feminism a bad name by confusing offhand conversations with data:

The onslaught of porn is responsible for deadening male libido in relation to real women, and leading men to see fewer and fewer women as “porn-worthy.” Far from having to fend off porn-crazed young men, young women are worrying that as mere flesh and blood, they can scarcely get, let alone hold, their attention.

Here is what young women tell me on college campuses when the subject comes up: They can’t compete, and they know it. For how can a real woman—with pores and her own breasts and even sexual needs of her own (let alone with speech that goes beyond “More, more, you big stud!”)—possibly compete with a cybervision of perfection, downloadable and extinguishable at will, who comes, so to speak, utterly submissive and tailored to the consumer’s least specification?

I would venture to say that all of us have, from time to time, been a little disappointed when comparing our fantasy partners--whether they be from film, television, or novel--with what is actually available in the real world. Why, those people don't always have something snappy and/or wise to say. They generally have fat in at least a few unsightly spots. Their clothes don't send a coherent statement carefully managed by the wardrobe people. Sometimes they don't pay attention to you, and worse, sometimes you don't really feel like paying attention to them. Few of them can fell an army of rogue ninjas with a series of well-placed kicks. And most annoying of all, you have no idea how it's all going to end.

But I can't say that this has ever stopped me, or anyone I know who is not actually mentally ill, from dating. ... This indicates that actual women have benefits that pornography can't offer, just as actual men are in most ways preferable to Rhett Butler. Online pornography has been pretty freely available for ten years now, and yet marriage and dating still seem to be pretty much de rigeur for most of the country. ...

I have no dog in that argument. Instead, I want to use it a springboard for mentioning an interesting hypothesis I ran across a while back while browsing SF Site.com (on my off time, of course, and definitely not at work):

... actions have consequences, and I think we need to consider the consequences of sex with holograms. Who could resist the temptation? And yet, not to put too fine a point on it, what is going to happen to the human race? Who will risk the ups and downs of a real relationship when they can be in complete control and act out their every fantasy on the holodeck? Also, sex isn't the only thing you can use the holodeck for. You want children? I bet holo-children are a lot better behaved than real children. Computer, delete dirty diapers. Once you accept holo-sex, you open the door to a lot of other holo-options.

Maybe this explains why the Federation is so peaceful, rich, and uncrowded. I've never seen a slum on a Federation planet. Maybe all the work is done by holo-slaves, who don't eat or sleep, and the entire real human population has decreased to just a few million, as fewer and fewer people have children. That would explain all those empty parklands we see on the future Earth. Instead of overpopulation, we have underpopulation. It also explains why, in seven years, only one child has been born aboard Voyager.

Almost every negative Megan mentions about real partners would not exist in a holodeck partner:

• "something snappy and/or wise to say" - so write a program with Churchillian wit
• "They generally have fat in at least a few unsightly spots" -- Lara Croft doesn't and I bet Minuet didn't either
• "Their clothes don't send a coherent statement carefully managed by the wardrobe people" -- Minuet's did
• "Sometimes they don't pay attention to you, and worse, sometimes you don't really feel like paying attention to them." You can always turn off a holodeck (unless you've created another Moriarty)
• "Few of them can fell an army of rogue ninjas with a series of well-placed kicks" -- Worf's holodeck opponents could. So turn one to, shall we say, peaceful pursuits.
• "And most annoying of all, you have no idea how it's all going to end." Sure you do, you wrote the holodeck program.

Megan is undoubtedly correct that "actual women have benefits that pornography can't offer, just as actual men are in most ways preferable to Rhett Butler," but is that merely conditional on our current state of technology?

We now return you to your usual non-salacious programming.

Should Gore Take the Pledge? Do Carbon Off-sets Work?

Washington Times:

A leading skeptic of global-warming science is challenging celebrity activists such as Al Gore and Sheryl Crow to lower their "carbon footprint" to the same level as the average American by Earth Day in April 2008. "I simply believe that former Vice President Al Gore and his Hollywood friends who demand we change the way we live to avert this over-hyped 'crisis' not only talk the talk, but walk the walk," said Sen. James M. Inhofe, Oklahoma Republican. "How hard is it for these elitists to become as frugal in their energy consumption as the average American? I think the American public has a right to know they are being had."

A so-called "Gore Pledge" was introduced last month when the former vice president appeared before a Senate committee to discuss his views on climate change. Mr. Inhofe asked Mr. Gore to sign the pledge to reduce his use of products that produce greenhouse gases, but he declined, instead citing alternative carbon trade-offs. Mr. Gore says he pays a self-imposed "carbon tax" to offset the environmental impact of his large home and global travels.

Do these so-called carbon off-sets really work? Over at SSRN, I found a paper that uses formal models to conclude that:

Carbon offsets can be purchased by consumers who wish to mitigate their emissions. In a model where the demand for such offsets is driven by consumers who feel guilt about their emissions, it is show that the introduction of offsets are complements to existing "dirty‟ consumption and can cause such consumption to increase. Net emissions are shown to decline, however, regardless of whether prices are regulated, chosen strategically or offset prices are endogenous.

The paper concludes that "voluntary purchases of offsets would likely reduce environmental harm." As the purchasers of off-sets feel less guilt, they increase their consumption (explaining Al Gore's huge electric bills and Laurie David's private jets?), but that effect is more than offset by a decrease in net emissions.

I have to admit that the math in the paper is way over my head; the narrative analysis, however, seems very plausible. So maybe the answer is not to demand that Hollywood elites cut their consumption, but simply to insist that they document their purchase of carbon off-sets before hectoring the rest of us?

Rove versus Crow and David

So Sheryl (one piece of TP per potty trip) Crow and Laurie David had a dust-up with Karl Rove in re global warming. I gather they arrived in DC via a biodiesel-powered bus. It must be tough for Laurie David to be roughing it. After all, this is the activist of whom Gregg Easterbrook has written:

In the new Atlantic Monthly, Eric Alterman notes that Laurie David, wife of Larry David--among Hollywood's wealth elite owing to "Seinfeld" royalties--has become an influential environmental crusader, but herself travels in chartered Gulfstream jets. Laurie David has organized numerous celebrity save-the-environment events and "reviles the owners of SUVs as terrorist enablers, yet gives herself a pass when it comes to chartering one of the most wasteful uses of fossil-based fuels imaginable," a private jet, Alterman writes. I did a few quick calculations. The mid-sized Gulfstream G200 model can carry about 2,100 gallons of jet fuel, which is made from petroleum, and would burn around 1,200 to 1,500 gallons flying from New York to Los Angeles, depending on wind speed and how many passengers were aboard. A Hummer driven 15,000 miles, the average put on a car per year, would burn around 1,250 gallons of gasoline. So for Laurie David to take one cross-country flight in a Gulfstream is the same, in terms of Persian-Gulf dependence and greenhouse-gas emissions, as if she drove a Hummer for an entire year. But then, conservation is what other people should do.

Of course, Sheryl's roughing it too. I wonder, for example, whether she gets her bottle of Marker's Mark every Monday? (Check out Smoking Gun's list of Crow's backstage requirements)

Glenn Reynolds has more:

MORE CELEBRITY GREENHOUSE HYPOCRISY:

Laurie David, the producer of "An Inconvenient Truth" and global warming activist, told Texas A&M students to change their "individual behavior" in order to consume fewer resources and to help battle global warming. As an employee of Easterwood Airport, I would like to point out that Mrs. David flew to our campus in a luxurious private jet, which could be seen from 10 miles away due to the thick plume of smog it left in its wake. I am neither denying nor confirming the epidemic of global warming, I am simply pointing out that hypocrites such as Mrs. David don't care about the environment, only their own political agendas. This is proven time and again by these celebrities' and lobbyist's "do as I say, not as I do" attitude.

We need a database of private-jet-flying celebrities. Can that be created from publicly available information?

But wait, there's more:

Even worse is David's chic but hypocritical environmentalism at her summer home in Martha's Vineyard. She was issued a "notice of apparent violations" for building a 26-foot-long barbecue station, stone-and-concrete bonfire pit, and outdoor theater on an environmentally sensitive patch of their 14-acre North Road property without the proper permits. They were also cited for tearing up protected vegetation to make way for a lush, sodded lawn, among other crimes against nature.

The commission has since ordered her to remove the offending structures and restore the area to its previous state. All these violations were allegedly done to prepare for a political fundraiser hosted by Robert F. Kennedy, Jr. (another faux Green). Alas, there's no such thing as cheap environmentalism on the Vineyard.

Laurie David has been labeled a "Gulfstream liberal" by Eric Alterman, himself a proud member of the Left and a regular columnist for the Nation. He recognizes that Ms. David's brand of environmentalism is nothing more than a facade, a distraction from the financially secure yet intellectually boring life of the fabulously wealthy. But this hobby has dire consequences for the rest of us.

Well, some of them are dire. The rest provide a good, hearty laugh.

Organ Harvesting: On the Necessity of Consent

"Jane Galt" blogs:

This morning as I got ready for work, I watched Fox News talking about this case, in which a California doctor apparently administered fatal doses of drugs to a dying man, so that he would die within the window that would allow his organs to be harvested. The guy didn't die, though; he lingered until the next day, apparently rendering his organs useless.

The doctor on television was indignant, saying you can't hasten anyone's death even by a matter of hours just to save someone else. Apparently this struck the interviewer as good moral sense. It struck me as horrifying. Keep me alive for another two hours in some sort of twilight state, when killing me just a little bit sooner could allow someone else to enjoy a rich, full life for years or even decades? Note to next of kin: don't be shy. If I'm really a no-hoper, in a coma, and bound to die in a few hours or days, pump me full of morphine and give away my organs to anyone who can use them.

In the first place, wasn't this the exact plot of a law and Order episode a few years ago? if memory serves, the doctor was convicted (or pled guilty).

I think it's important to avoid mixing apples and oranges here. If Megan is willing to have the plug pulled and her organs harvested, under the conditions posited, I see no basis for the law preventing her from doing so. (Although I believe voluntary euthanasia is gravely illicit in a moral sense, I see no basis for overturning the harm principle in this seeting with morals legislation.)

Assume, however, that the patient in question had made no such advance directive. I would begin the analysis with Kant's categorical imperative. "Act in such a way that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end and never simply as a means." By hurrying the death of an individual, even with the intent of aiding others, we turn that individual into a means rather than an end. The imperative demands respect for the bodily integrity of the dying patient and mandates that medical intervention be directed solely at helping the patient.

As such, respect for the dignity of the individual requires that the individual consent to the ending of his or her life being manipulated for the benefit of others. Indeed, is this not one explanation for why organ donation laws require advance consent?

The same result would seem to follow from a purely liberal perspective. If the autonomy of the individual is paramount, the individual must be allowed to choose, even if that choice is "wrong." Choosing on behalf of another, even when that other is incapable of choice, is an infringement on the sovereign autonomy of the individual.

Likewise, the same result follows from Catholic social teaching. As John Paul II observed, "to use the body as an 'object' is to violate the dignity of the human person."  The late Pope further argued that this "point has an immediate consequence of great ethical import: the need for informed consent.  The human 'authenticity' of such a decisive gesture requires that individuals be properly informed about the processes involved, in order to be in a position to consent or decline in a free and conscientious manner. The consent of relatives has its own ethical validity in the absence of a decision on the part of the donor."

A prohibition on accelerating death in order to harvest organs, absent clear consent of the dying individual, thus strikes me as eminently "good moral sense."

Posner on Global Warming

Richard Posner is not a name one normally associates with proposals for more regulation and hugher taxes, which is what makes his recent thoughts on global warming all the more interesting:

... there are at least three arguments for incurring hefty current expenditures on trying to reduce carbon dioxide emissions in the near term. The first is that global warming is already imposing costs, and these will probably increase steadily in the years ahead. Discounting does not much affect those costs. They may well be great enough to warrant remedial action now.

The second argument for incurring heavy expenditures today to reduce global warming is that there is a small risk of abrupt, catastrophic global warming at any time, and a small risk of a huge catastrophe can compute as a very large expected cost. "Any time" could of course be well into the future, and so there is still a role for discounting, but it is minimized when the focus is on imminent dangers.

The third argument is that reducing our consumption of energy by a heavy energy tax would confer national security benefits by reducing our dependence on imported oil. Our costly involvement in the Middle East is due in significant part to our economic interest in maintaining the flow of oil from there. It is true that because our own oil is costly to extract, a heavy energy tax would not cause much if any substitution of domestic for foreign oil. But that is fine; our oil would remain in the ground, available for consumption if we decide to take measures abroad, such as withdrawing from Iraq, that might reduce our oil imports.

Is There 'No Obligation to Act'?

From TCS Daily:

A recent report from the UK's Nuffield Council on Bioethics, Critical care decisions in fetal and neonatal medicine: ethical issues, concludes that "there are some circumstances in which imposing or continuing treatments to sustain a newborn baby's life results in a level of irremediable suffering such that there is no ethical obligation to act in order to preserve that life." Accordingly, the Council opines that physicians ethically may withhold or withdraw treatment from such infants. Indeed, while the Council claims not to accept active euthanasia as ethical, it invokes the principle of double effect to justify the use of "potentially life-shortening but pain-relieving treatments."

Given the trends in Western society towards acceptance of abortion and euthanasia, one is no longer surprised when a principally secular ethical body reaches such a conclusion. The attitude of the Church of England came as something of a surprise, however, at least to observers outside the Anglican sphere.

The Daily Mail recently reported that "a bishop representing the national church has now sparked controversy by arguing that there are occasions when it is compassionate to leave a severely disabled child to die. And the Bishop of Southwark, Tom Butler, who is the vice chair of the Church of England's Mission and Public Affairs Council, has also argued that the high financial cost of keeping desperately ill babies alive should be a factor in life or death decisions." (Bishop Butler's full submission to the Nuffield Council has now been released and is available here.)

In suggesting that some children be left "to die," Bishop Butler broke with 2000-plus years of Judeo-Christian ethics.

It was commonplace in pagan Greek and Roman society for parents to "leave a ... child to die." Although active infanticide was known, apparently passive euthanasia was more common. Parents would simply abandon their children in the outdoors to die of exposure.

Jewish and Christian theology, however, squarely forbade this practice. Numerous early Christian sources, for example, confirm the Didache's teaching that it is a grave sin to "murder a child" or to "kill that which is born."

To be sure, Justin Martyr's Guilt of Exposing Children justified the prohibition in part on grounds that "almost all so exposed (not only the girls, but also the males) are brought up to prostitution." Yet, in a later chapter, Justin makes clear that the possibility abandoned children would be brought up in a life of prostitution was not his sole concern, writing: "And again [we fear to expose children], lest some of them be not picked up, but die, and we become murderers." (Emphasis supplied.)

This tradition remains a core part of the magisterial teaching of the Christian Church. In 1980, for example, the Catholic Church's Congregation for the Doctrine of the Faith issued a Declaration on Euthanasia, in which it stated that "Nothing and no one can in any way permit the killing of an innocent human being, whether a fetus or an embryo, an infant or an adult, an old person, or one suffering from an incurable disease, or a person who is dying."

More recently, Pope John Paul II feared that "the point has been reached where the most basic care, even nourishment, is denied to babies born with serious handicaps or illnesses," which is, of course, precisely what the Nuffield Council and the Church of England contemplate.

On behalf of the Church of England, Bishop Butler justifies his departure from this 2,000 year-old Church tradition on grounds that:

There are many instances in the life of Christ where he overrode rule-based systems. There may be occasions where, for a Christian, compassion will override the 'rule' that life should inevitably be preserved.

Butler's argument is specious. The tradition of opposition to infanticide is not just a "rule." To the contrary, as John Paul proclaimed, "The Gospel of life is at the heart of Jesus' message."

Although most infants allowed to die per the Nuffield Council's recommendations likely will do so in a hospital setting, there is little ethical difference between allowing a child to expire from denial of nourishment or other forms of care, and allowing a child to die of exposure. Indeed, in both cases, hunger or thirst will be the agent of death.

As Western culture has given increasingly short shrift to the sanctity of life, the Christian Church - whether Catholic, Orthodox, or Protestant - has been a prophetic voice in favor of life. Sadly, as part of its ongoing accommodation to the values of post-Christian secular society, the Church of England has chosen to turn its back on the Gospel of Life.

Stem Cell Research and Double Effect

My TCS column:

In his recent TCS column, For Stem Cell Research: A Lesser Malevolence, Michael Rosen offered a thoughtful and balanced analysis of the morality of embryonic stem cell research. There is much in Rosen's analysis that people of good will on both sides of this contentious debate should embrace; most notably, his "to calm the heated rhetoric on both sides of the issue."

I would not presume to critique Rosen's analysis of Jewish theology as applied to the problem of stem cell research, but I must take issue with his venture into Christian theology. Rosen writes:

"In my understanding, ESC research satisfies the four prongs of ["double-effect" principle in traditional Catholic doctrine]: (1) creating stem-cell lines for research is not wrong in itself; (2) the intention of the scientist extracting the lines is right, namely saving lives through research; (3) the bad effect (i.e. killing the embryo) is not a means to the good effect (i.e. saving lives) because although the embryo dies after the stem-cells are extracted, its death is not a "means" to that extraction but rather a result thereof; and (4) the gravity of the reason for creating the ESC lines is commensurate with the foreseen (but unintended) bad effect, namely the death of the embryo."

Unfortunately, in my understanding, Rosen has misapplied the doctrine of double effect.

The principle of double effect is an old doctrine, traceable back at least to St. Thomas Aquinas, which seeks to sort out the moral problems inherent when a proposed action has both good and bad consequences (a so-called "double effect"). Specifically, the principle distinguishes between an act that deliberately causes harm in order to achieve some desirable outcome and an act that achieves a desirable outcome in a manner by which some harm foreseeably results as a side-effect. The former is never morally permissible, while the latter may be if the act satisfies the principle of double effect.

The New Catholic Encyclopedia identifies four conditions for the principle of double effect to be satisfied:

1. The act itself must be morally good or at least indifferent.
2. The agent may not positively will the bad effect but may permit it. If he could attain the good effect without the bad effect he should do so. The bad effect is sometimes said to be indirectly voluntary.
3. The good effect must flow from the action at least as immediately (in the order of causality, though not necessarily in the order of time) as the bad effect. In other words the good effect must be produced directly by the action, not by the bad effect. Otherwise the agent would be using a bad means to a good end, which is never allowed.
4. The good effect must be sufficiently desirable to compensate for the allowing of the bad effect.

In applying the doctrine, the initial question thus is: What is the "act" to be evaluated. Rosen uses the clinical and neutral phrase "creating stem-cell lines for research" to identify the morally relevant act. Yet, given the current state of technology, there is a clinically necessary prior to creating such lines; namely, the destruction of an embryo so that stem cells may be harvested.

My claim that Catholic theology would view the destruction of an embryo as the morally relevant act to be evaluated under the tenets of double effect is supported by the highly authoritative Declaration on the Production and the Scientific and Therapeutic Use of Human Embryonic Stem Cells by the Pontifical Academy for Life: "the ablation of the inner cell mass (ICM) of the blastocyst, which critically and irremediably damages the human embryo, curtailing its development, is a gravely immoral act and consequently is gravely illicit." (Emphasis in the original.)

With the morally relevant act correctly identified, it is clear that embryonic stem cell research violates at least the first and third conditions of the principle of double effect. As to the first condition, the act itself is neither "morally good" nor even "indifferent," but rather a grave evil.

As to the third condition, the actor is "using a bad means to a good end." The Declaration states: "No end believed to be good, such as the use of stem cells for the preparation of other differentiated cells to be used in what look to be promising therapeutic procedures, can justify an intervention of this kind. A good end does not make right an action which in itself is wrong." (Emphasis in the original.)

The Declaration therefore concludes that it is not morally licit to (1) "produce and/or use living human embryos for the preparation of ES cells," (2) "engage in so-called therapeutic cloning," or (3) "use ES cells, and the differentiated cells obtained from them, which are supplied by other researchers or are commercially obtainable."

We owe Rosen thanks for bringing faith-based moral principles into the public square. Faithful Catholics looking for a moral justification for embryonic stem cell research, however, cannot take comfort from Rosen's analysis. The principle of double effect simply does not justify the acts necessary for such research to occur.

Global Warming - Gore - Petard

I'm in DC today and while my lunch companion, a local resident, thought the weather was fine, I'm finding it oppressively hot and humid. And I remember what August in DC was like when I worked here in the 1980s. All of which gave me an idea:

I believe global warming is real and a serious problem. I believe big government is a serious problem. I also believe I have come up with a win-win scenario. Wasn't it former Senator Howard Baker who said that the invention of air conditioning was the worst thing that ever happened to Washington, because it made year round government possible?

Let's ban air conditioning within the city limits of Washington, DC. At one stroke, we'll save an enormous amount of energy, cut back on carbon emissions, and effectively shut down the government for 3-6 months a year. As I said, a win-win. I await Al Gore's early adoption of this breakthrough idea.

Stem Cell Debate

The latest UCLA magazine offers four perspectives on California Prop. 71, the voter referendum proposition that created state funding for stem cell research, including that of your's truly.

Impeding Science

Here in the US, it is mostly the left that complains (with some justice) that the right is impeding the march of science. (My po st about UC admissions was intended as a comment on political correctness rather than on creationism, which most folks seem to have missed.) At least US social conservatives are trying to save human lives (even if those lives have not yet been born). This week's Economist reminds us that elsewhere, such as in Great Britain, it is the left that is trying to impede science - and with some success - through an animal rights campaign that can only be described as eco- terrorism:

AROUND 30 years ago, the Hall family diversified from dairy and sheep farming into breeding guinea pigs for use in research laboratories. Six years ago, they became the target of animal rights activists. They have been abandoned by frightened suppliers and employees and lost their entire dairy herd, which was slaughtered when their tormentors made it impossible for the milk to be collected. The nadir came last year, when activists stole the body of Gladys Hammond, mother-in-law of one of the Hall brothers, from its grave in the churchyard at Yoxall in Staffordshire.

This week, the family gave up its struggle, saying that by the end of 2005 they would stop breeding guinea pigs at Darley Oaks Farm. They hope this will at last lead to the return of Mrs Hammond's remains.

As for me, I will always come down on the side of people (even if they haven't been born yet). It's clear that animal research can help improve the quality of human life:

One disease under study is cystic fibrosis, which is caused by one of around 200 defects on a single gene. It has no satisfactory treatment, and sufferers cannot expect to live much past 30. Researchers can now create mice with the same genetic defects and test potential treatments on them, or study the progress of the disease. This research could not be carried out on tissue cultures, as the disease affects several organs, and nor could it be done on humans?at least, not without killing them to study the results.

Eco-terrorists are at work here, but our problems don't seem to be as severe as those in the UK. I can't help but wonder, however, how long it will be before this particular brand of terrorism arrives in full force here.

Using Fetal Tissue for Humanitarian Purposes

Hugh Hewitt comments on a WaPo article reporting that tissue from aborted fetuses can be used to treat burns, asking:

What if "tests show" that the only fetal tissue that works is ninth month fetal tissue? {Ed. Good question!}

"One fetus could theoretically provide material for hundreds or thousands of burn victims, although Hohlfeld said he suspected that would not remove some people's objections to the use of tissue from an aborted fetus."

That is the only discussion of the moral aspect of this "testing." Can the Washington Post editors at least ask around a bit about implications?

I was wondering about those implications from my usual perspective of a Catholic layman with an amateur's interest in moral theology, so I did a little research. I didn't find anything directly on point, but I did find a statement by the Pontifical Academy for Life on the use of vaccines prepared from cells derived from aborted fetuses, which strikes me as a close enough analogy.

The Statement is lengthy, but this strikes me as the critical section:

... one must consider morally illicit every form of formal cooperation -- sharing the evil intention -- in the action of those who have performed a voluntary abortion, which in turn has allowed the retrieval of fetal tissues, required for the preparation of vaccines. Therefore, whoever -- regardless of the category to which he belongs -- cooperates in some way, sharing its intention, to the performance of a voluntary abortion with the aim of producing the above-mentioned vaccines, participates, in actuality, in the same moral evil as the person who has performed that abortion.

As regards the preparation, distribution and marketing of vaccines produced as a result of the use of biological material whose origin is connected with cells coming from fetuses voluntarily aborted, such a process is stated, as a matter of principle, morally illicit, because it could contribute in encouraging the performance of other voluntary abortions, with the purpose of the production of such vaccines. [Ed.: This strikes me as the most problematic portion of the analysis. Given the vast number of abortions that already occur, it would have seemed to me that a pro-life doctor's use of such cells for therapeutic purposes would be most unlikely to provide any incentives for additional abortions. I suppose the argument would be that such use removes feelings of guilt and so on, which might marginally increase the odds of a woman choosing to abort, but this seems pretty attenuated to me.]

As regards those who need to use such vaccines for reasons of health, it must be emphasized that, apart from every form of formal cooperation, in general, doctors or parents who resort to the use of these vaccines for their children, in spite of knowing their origin -- voluntary abortion -- carry out a form of very remote mediate material cooperation, and thus very mild, in the performance of the original act of abortion, and a mediate material cooperation, with regard to the marketing of cells coming from abortions, and immediate, with regard to the marketing of vaccines produced with such cells.

...It is up to the faithful and citizens of upright conscience -- parents, doctors, etc. -- to oppose, even by making an objection of conscience, the ever more widespread attacks against life and the "culture of death" which underlies them.

From this point of view, the use of vaccines whose production is connected with procured abortion constitutes at least a mediate remote passive material cooperation to the abortion, and an immediate passive material cooperation with regard to their marketing. Furthermore, on a cultural level, the use of such vaccines contributes in the creation of a generalized social consensus to the operation of the pharmaceutical industries which produce them in an immoral way.

Therefore, doctors and parents have a duty to take recourse to alternative vaccines [13] -- if they exist -- putting pressure on the political authorities and health systems so that other vaccines without moral problems become available. They should take recourse, if necessary, to the use of conscientious objection [14] with regard to the use of vaccines produced by means of cell lines of aborted human fetal origin.

Equally, they should oppose by all means -- in writing, through the various associations, mass media, etc. -- the vaccines which do not yet have morally acceptable alternatives, creating pressure so that alternative vaccines are prepared, which are not connected with the abortion of a human fetus, and requesting rigorous legal control of the pharmaceutical industry producers.

As regards the diseases against which there are no alternative vaccines which are available and ethically acceptable, it is right to abstain from using these vaccines if it can be done without causing children, and indirectly the population as a whole, to undergo significant risks to their health.

However, if the latter are exposed to considerable dangers to their health, vaccines with moral problems pertaining to them may also be used on a temporary basis.

The moral reason is that the duty to avoid passive material cooperation is not obligatory if there is grave inconvenience. Moreover, we find, in such a case, a proportional reason, in order to accept the use of these vaccines in the presence of the danger of favoring the spread of the pathological agent, due to the lack of vaccination of children. This is particularly true in the case of vaccination against German measles [15].

If I'm reading this right, the orthodox Catholic opinion would be that fetal tissue should be used to repair burn damage only where the patient faces "considerable dangers to their health" and there is no viable medical alternative. Given what I know about burn treatment, that seems unlikely to be the case very often. Hence, I don't think that exception would come into play.

Scientists not so smart

If it sometimes seems like health sciences professionals are constantly changing their minds about what's good or bad for you, maybe it's because some of them are just lousy scientists:

New research highlights a frustrating fact about science: What was good for you yesterday frequently will turn out to be not so great tomorrow.

The sobering conclusion came in a review of major studies published in three influential medical journals between 1990 and 2003, including 45 highly publicized studies that initially claimed a drug or other treatment worked. Subsequent research contradicted results of seven studies -- 16 percent -- and reported weaker results for seven others, an additional 16 percent. That means nearly one-third of the original results did not hold up, according to the report in Wednesday's Journal of the American Medical Association.