ProfessorBainbridge.com

Kudos to the Holy Father

The LA Times reports:

Pope Benedict XVI chose unusually tough language Saturday to tell Muslim leaders they must work harder to combat terrorism and steer youth away from "the darkness of a new barbarism."

On the third day of his first foreign trip as pope, Benedict met with 10 representatives of Germany's growing Muslim community as part of his effort to reach out to other faiths. But he quickly dispensed with the diplomatic niceties and zeroed in on the "cruel fanaticism" of terrorism and the responsibility of religious leaders and educators to prevent it.

"You guide Muslim believers and train them in the Islamic faith," he told his select audience, who traveled to the Cologne archdiocese to meet the pope. "Teaching is the vehicle through which ideas and convictions are transmitted. . . . There is no room for apathy and disengagement, and even less for partiality and sectarianism."

Benedict condemned terrorism as a "perverse and cruel decision" that "shows contempt for the sacred right to life and undermines the very foundations of all civil society." Terrorists, he said, falsely use religion to poison relations between all religions.

Good for him.

The Kelo Backlash

In an article on the continuing backlash against the Supreme Court's controversial decision in Kelo v. New London, which allowed states and localities to use their eminent domain powers to take private property for any "vaguely defined" public purpose, such as higher tax revenues, The Economist correctly explains why the Takings Clause's just compensation requirement is an inadequate constraint on government's power to get in bed with private developers:

Those who are uprooted under eminent domain must be given fair compensation. But if they have no choice but to sell, it may be hard to determine what a fair price for their property is. Developers who know the sellers have to sell will surely be tempted to ?lowball? their offers.

Precisely, as I explained in my TCS column on Kelo.  The Economist goes on to make an apt note on the politics of eminent domain:

What matters is whether the plan represents such a pressing public good that it is reasonable to use the state's vast coercive power to execute it. For most Americans, Interstate-95 passes muster, but yuppie condos don't.

I think that's probably about right. On the other hand, my guess is that Grover Norquist is wildly over optimistic when he claims, according to The Economist that:

Twenty years from now, people will look back at Kelo the way people look back at Roe v Wade [the 1973 Supreme Court decision that barred the states from banning abortion].

Yeah, right.

Crossing the Tiber

Joe Carter of the deservedly popular Evangelical Outpost blog observes:

Over the past thirty-six years I?ve been, at one time or another, a pre-post-a-millennialist, dispensational-covenantal, semi- charismatic, Reformed-Arminian, Wesleyan-Calvinist attending a Southern/Independent/Fundamentalist Baptist, Free-Methodist/Free- Evangelical, Presbyterian (USA/PCA), Pentecostal/Assembly of God, Bible/non-denominational church.

He concludes:

Where does it end? When will we stop being ?wife beaters? of Christ?s bride? And when will we finally heed the exhortation of Titus to, "Avoid foolish controversies and genealogies and arguments and quarrels about the law, because these are unprofitable and useless."

Speaking as a recovering evangelical, I would invite Joe to consider crossing the Tiber. The water's fine!

On a somewhat more serious note, I want to use this opportunity to plug one of the books that was most influential on my evolution from evangelicalism to Catholicism: Thomas Howard's Evangelical Is Not Enough. Here's the Amazon review:

In this deeply moving narrative, Thomas Howard describes his pilgrimage from Evangelicalism (which he loves and reveres as the religion of his youth) to liturgical Christianity. He soon afterward became a Roman Catholic. He describes Evangelicalism with great sympathy and then examines more formal, liturgical worship with the freshness of someone discovering for the first time what his soul had always hungered for. This is a book of apologetics without polemics. Non-Catholics will gain an appreciation of the formal and liturgical side of Catholicism. Catholics will see with fresh eyes the beauty of their tradition. Worship, prayer, the Blessed Virgin, the Mass, and the liturgical year are taken one after the other, and what may have seemed routine and repetitive suddenly comes to life under the enchanting wand of Howard's beautiful prose. Howard unfolds for us just what occurs in the vision and imagination of a Christian who, nurtured in the earnestness of Protestant Evangelicalism, finds himself yearning for "whatever- it-is" that has been there in the Church for 2000 years. It traces Howard's soul-searching and shows why he believes the practices of the liturgical Church are an invaluable aid for any Christian's spiritual life. Reminiscent of the style and scope of Newman, Lewis and Knox, this book is destined to be a classic.

New Books

Regular readers know that I participate in Amazon.com's Associates program (see the recommendations in the right side bar). Checking my reports tonight, I noticed that somebody who placed an order through my site had bought a couple of books that look interesting. First, Tom Standage's A History Of The World In Six Glasses. Sandage is the technology editor of The Economist, which is the only weekly news magazine worthy of the name (IMHO). Here's the Publishers Weekly review from Amazon:

Standage starts with a bold hypothesis?that each epoch, from the Stone Age to the present, has had its signature beverage?and takes readers on an extraordinary trip through world history. The Economist's technology editor has the ability to connect the smallest detail to the big picture and a knack for summarizing vast concepts in a few sentences. He explains how, when humans shifted from hunting and gathering to farming, they saved surplus grain, which sometimes fermented into beer. The Greeks took grapes and made wine, later borrowed by the Romans and the Christians. Arabic scientists experimented with distillation and produced spirits, the ideal drink for long voyages of exploration. Coffee also spread quickly from Arabia to Europe, becoming the "intellectual counterpoint to the geographical expansion of the Age of Exploration." European coffee-houses, which functioned as "the Internet of the Age of Reason," facilitated scientific, financial and industrial cross-fertilization. In the British industrial revolution that followed, tea "was the lubricant that kept the factories running smoothly." Finally, the rise of American capitalism is mirrored in the history of Coca-Cola, which started as a more or less handmade medicinal drink but morphed into a mass-produced global commodity over the course of the 20th century. In and around these grand ideas, Standage tucks some wonderful tidbits?on the antibacterial qualities of tea, Mecca's coffee trials in 1511, Visigoth penalties for destroying vineyards?ending with a delightful appendix suggesting ways readers can sample ancient beverages.

Second, Elin McCoy's The Emperor of Wine: The Rise of Robert M. Parker, Jr. and the Reign of American Taste. (I've blogged about the validity of the notion of national palates and, of course, a number of Parker's books are on my wine canon.) Here's the Booklist review from Amazon's site:

Wine critic Robert Parker, explains McCoy in this engaging new biography, is "the most powerful critic in any field, period." Parker's initial role was as a skeptic and consumer advocate, a kind of Ralph Nader of the wine world; one aspect of his straight-shooting approach was his now-celebrated 100-point scale for rating wine. But after more than a quarter-century of publication, Parker's newsletter has inevitably and ironically become the voice of the establishment, and Parker himself has come under attack for dogmatically imposing his tastes upon the wine-drinking public. More broadly, as McCoy shows, the influence of American consumers and critics on the world wine industry (traditionally dominated by the French) has grown by leaps and bounds. It is in tackling these broader themes that McCoy really shines: Parker as a man is mostly remarkable for his ordinariness, and McCoy occasionally overreaches in trying to dramatize the quotidian. She tells the larger story with panache and fairness, though, and has written a book that every oenophile should read.

I've decided both look worth picking up.

Turn About is Fair Play

From today's WSJ($):

Jim Chilton is one of hundreds of ranchers targeted by environmental groups for allegedly allowing cattle to despoil the West's backcountry. Now Mr. Chilton is showing ranchers how to turn the tables on the green groups by using their own playbook.

The Center for Biological Diversity in Tucson is known for its lawsuits against ranching practices -- and for its methods of posting photos on the Internet that it says depict land destruction. So when the Center came after Mr. Chilton, he struck back with a defamation suit in Arizona Superior Court in Tucson last year.

He produced his own photos of lands the group claimed he spoiled in order to argue that their photos had exaggerated the damage. He snapped one photo, for example, of a hillside featured on the Center's Web site to show that what looked like barren earth was just a tiny patch surrounded by lush grass.

After a jury trial this year, Mr. Chilton was awarded $600,000, including $500,000 in punitive damages against the environmental group. "I had to decide whether I was a cowboy or a wimp," Mr. Chilton says. "I decided to be a cowboy...and not ignore people saying bad things about my ranch." The Center denies wrongdoing and has appealed the decision.

Good for him. BTW, an interesting wrinkle is raised by this observation in the article:

A third of the Center's $3 million in income in 2003 mainly came from court awards and settlements. Center officials say much of the money from those awards covers the group's legal costs. Much of its other money comes from such things as membership dues, donations and foundation grants.

Note that the Center only claims that much of their legal fees and awards goes to pay legal expenses, which perhaps implies that at least some goes to other purposes. Like, maybe, salaries? Maybe these public interest law firms aren't just in it to go good; maybe they're in it to make money for themselves and their organizations? After all, Birkenstocks are getting pretty pricey.

Update: Well, maybe it's not the profit motive. In a long feature on this story, the Phoenix New Times reports:

The Center's members truly believe in their mission. (Even Chilton admits this.) None of them is getting rich; not even close. They're fighting to protect endangered species and preserve wild places, and on the latter front, at least, they've been wildly successful.

But the New Times story has some unsettling other details: Like Forest Service employees contibuting to the Center's litigious environmentalists:

The Forest Service biologist who supervised the chub studies [on Chilton's land], Stefferud, has donated money to the Center over the years, as he admits. (New Times found records indicating he gave at least $200 in 2002 alone.) "There's nothing wrong with contributing to the Center," he says. "For a long time it was on the United Way form and you could contribute as part of your paycheck. A lot of employees did it that way." His wife Sally also worked on the case as a senior fish biologist for U.S. Fish and Wildlife.

Meanwhile, another Forest Service employee penned a report claiming that the Chiltons' ranching was likely to harm the Lesser Long-Nosed Bat, another endangered species. That employee is married to a biologist who also donated to the Center -- a man who even co-authored a research paper on ponderosa pine with one of the Center's founders, Kieran Suckling. (Since no one has ever been able to prove that the bat in question lives on the Chiltons' allotment, that issue eventually went away.)

To the Chiltons, those ties were clear evidence that the government was not a neutral party, simply acting as mediator between their interests and those of the environmentalists. Instead, the government and the environmentalists were one and the same.

Like the New Times story says, just because you're paranoid, doesn't mean they're not out to get you. Having a government employee giving money to a litigious environmental group suing the same guy the government scientist is investigating sure looks like a conflict of interest and potential for prejudgment to me.

The Jury System and the Vioxx Verdict

As a fan of limited government and an amateur student of the growth of English liberties (I once wrote a long essay on the roots of the right against self-incrimination in Stuart England), I have long accepted - at the level of an article of faith - that the jury is an important bedrock of our liberties. I must confess, however, that nothing since the OJ criminal verdict has shaken my faith in juries as much as the details coming out of the recent verdict against Merck in the first Vioxx suit.

At the outset, I am prepared to admit that the evidence of cover-ups and so on at Merck is non-trivial. But that wasn't the gravamen of this suit. The question here was whether Vioxx caused Robert Ernst 's death. This is, obviously, a question of medical science. What killed Ernst and could Vioxx have caused it?

Unfortunately, if the WSJ($)'s reporting is to be believed, the jurors basically didn't understand - and, indeed, didn't even try to understand - the science:

Merck argued that Vioxx couldn't have caused Mr. Ernst's death because, according to his death certificate, he died of an arrhythmia or irregular heartbeat, not a heart attack. While scientific evidence suggests Vioxx can promote blood clots leading to a heart attack, no data have linked the drug with arrhythmias.

Jurors who voted against Merck said much of the science sailed right over their heads. "Whenever Merck was up there, it was like wah, wah, wah," said juror John Ostrom, imitating the sounds Charlie Brown's teacher makes in the television cartoon. "We didn't know what the heck they were talking about."

At the very least, this incident thus raises serious questions as to the competence of lay jurors to resolve technical issues. To be sure, there is some evidence that how technical evidence is presented matters a lot, and some suggestion in the press accounts that Merck's lawyers may not have done a very good job of presenting the evidence in a way that would maximize understanding. Even so, at the very least, this case confirms the urgent need for objective study of the ability of lay juries to understand and process scientific evidence. If it turns out that they cannot do so, perhaps it is time to take these sorts of issues out of their hands.

Equally troubling are the reports suggesting that the jury was swayed by emotional and personal considerations.

... [juror] Ostrom, 49, who has a business remodeling homes, was also disturbed that former Merck Chief Executive Raymond Gilmartin and another top Merck official gave videotaped testimony but weren't in the courtroom. "The big guys didn't show up," said Mr. Ostrom. "That didn't sit well with me. Most definitely an admission of guilt."

I have observed that giving folks unaccustomed to power a small dose of it often results in them taking offense at any perceived slight. (Mea culpa.) They expect to be kowtowed to and will react negatively when they are "dissed." But are we really better off if the top Merck management has to spend the next 10 years or so sitting through thousands of trials? (I understand that cruise ships have two captains - one to actually run the ship while the other glad hands the passengers. Maybe that's what Merck should do. One CEO to run the company, while another strikes jurors in every backwater court in the US.)

Then there's the Oprah effect:

One juror, Ms. Blas, had written in her questionnaire that she loves the Oprah Winfrey show and tapes it. "This jury believes they're going to get on Oprah," Ms. Blue told Mr. Lanier. "They only get on Oprah if they vote for the plaintiff."

Two days later, facing the jury with his final argument, Mr. Lanier ... hammered home the point that they would be sending a message that would be heard widely. "I can't promise Oprah," he said, but "there are going to be a lot of people who'll want to know how you had the courage to do it."

As he made the Oprah reference, Mr. Lanier looked at Ms. Blas in the eye. She says she broke out into laughter and liked the lawyer's attention to her. "That told me he read those profiles and tried to assess each and every one of us," Ms. Blas said.

Leaving liability determinations in the hands of people like Ms Blas has real costs, as Richard Epstein explained in a WSJ($) op-ed:

I would like to send my message to Mr. Lanier and those indignant jurors. It's not from an irate tort professor, but from a scared citizen who is steamed that those "good people" have imperiled his own health and that of his family and friends. None of you have ever done a single blessed thing to help relieve anybody's pain and suffering. Just do the math to grasp the harm that you've done.

Right now there are over 4,000 law suits against Merck for Vioxx. If each clocks in at $25 million, then your verdict is that the social harm from Vioxx exceeds $100 billion, before thousands more join in the treasure hunt. Pfizer's Celebrex and Bextra could easily be next. Understand that no future drug will be free of adverse side effects, nor reach market, without the tough calls that Merck had to make with Vioxx. Your implicit verdict is to shut down the entire quest for new medical therapies. Your verdict says you think that the American public is really better off with just hot-water bottles and leftover aspirin tablets.

Ah, you will say, but we're only after Vioxx, and not those good drugs. Sorry, the investment community won't take you at your word. It realizes that any new drug which treats common chronic conditions can generate the same ruinous financial losses as Vioxx, because the flimsy evidence on causation and malice you cobbled together in the Ernst case can be ginned up in any other. Clever lawyers like Mr. Lanier will be able to ambush enough large corporations in small, dusty towns where they will stand the same chance of survival that Custer had at Little Big Horn. Investors can multiply: They won't bet hundreds of millions of dollars in new therapies on the off-chance of being proved wrong. They know they'll go broke if they win 90% of the time.

Your appalling carnage cries out for prompt action. Much as I disapprove of how the FDA does business, we must enact this hard-edged no-nonsense legal rule: no drug that makes it through the FDA gauntlet can be attacked for bad warnings or deficient design. In plain English, Mr. Lanier, you're out of court before you make your opening statement. You've already proved beyond a reasonable doubt that the fancy diagrams that university economists use to explain why the negligence system maximizes social welfare is an academic delusion that clever lawyers use to prop up a broken tort system.

It would be a good start.

Larry Ribstein, Walter Olson and, especially, Ted Frank have more. Tom Kirkendall offers an intriguing guess as to the trial lawyers' next target.

Update: CE Petit has some very sound thoughts on how to improve juries.

New Books

Regular readers know that I participate in Amazon.com's Associates program (see the recommendations in the right side bar). Checking my reports tonight, I noticed that somebody who placed an order through my site had bought a couple of books that look interesting. First, Tom Standage's A History Of The World In Six Glasses. Sandage is the technology editor of The Economist, which is the only weekly news magazine worthy of the name (IMHO). Here's the Publishers Weekly review from Amazon:

Standage starts with a bold hypothesis—that each epoch, from the Stone Age to the present, has had its signature beverage—and takes readers on an extraordinary trip through world history. The Economist's technology editor has the ability to connect the smallest detail to the big picture and a knack for summarizing vast concepts in a few sentences. He explains how, when humans shifted from hunting and gathering to farming, they saved surplus grain, which sometimes fermented into beer. The Greeks took grapes and made wine, later borrowed by the Romans and the Christians. Arabic scientists experimented with distillation and produced spirits, the ideal drink for long voyages of exploration. Coffee also spread quickly from Arabia to Europe, becoming the "intellectual counterpoint to the geographical expansion of the Age of Exploration." European coffee-houses, which functioned as "the Internet of the Age of Reason," facilitated scientific, financial and industrial cross-fertilization. In the British industrial revolution that followed, tea "was the lubricant that kept the factories running smoothly." Finally, the rise of American capitalism is mirrored in the history of Coca-Cola, which started as a more or less handmade medicinal drink but morphed into a mass-produced global commodity over the course of the 20th century. In and around these grand ideas, Standage tucks some wonderful tidbits—on the antibacterial qualities of tea, Mecca's coffee trials in 1511, Visigoth penalties for destroying vineyards—ending with a delightful appendix suggesting ways readers can sample ancient beverages.

Second, Elin McCoy's The Emperor of Wine: The Rise of Robert M. Parker, Jr. and the Reign of American Taste. (I've blogged about the validity of the notion of national palates and, of course, a number of Parker's books are on my wine canon.) Here's the Booklist review from Amazon's site:

Wine critic Robert Parker, explains McCoy in this engaging new biography, is "the most powerful critic in any field, period." Parker's initial role was as a skeptic and consumer advocate, a kind of Ralph Nader of the wine world; one aspect of his straight-shooting approach was his now-celebrated 100-point scale for rating wine. But after more than a quarter-century of publication, Parker's newsletter has inevitably and ironically become the voice of the establishment, and Parker himself has come under attack for dogmatically imposing his tastes upon the wine-drinking public. More broadly, as McCoy shows, the influence of American consumers and critics on the world wine industry (traditionally dominated by the French) has grown by leaps and bounds. It is in tackling these broader themes that McCoy really shines: Parker as a man is mostly remarkable for his ordinariness, and McCoy occasionally overreaches in trying to dramatize the quotidian. She tells the larger story with panache and fairness, though, and has written a book that every oenophile should read.

I've decided both look worth picking up.

Merck

Drug giant Merck lost the first of 4000-odd Vioxx suits pending against it. The odds that Merck eventually ends up pulling a Johns Manville and resolving these cases via bankruptcy reorganization just went up - a lot.

The verdict was a whopping $253 million, split $24 million in compensation for wrongful death and $229 million in punitive damages. The plaintiff's lawyer conceded that the punitive component likely will be reduced in post-trial proceedings or on appeal.

Jim Copland comments:

... in essence, the jury expropriated Merck's Vioxx sales from Oct. 2001 through Feb. 2002. Though the verdict seems not to have been structured as a punitive award (Texas has a strict limitation on punitives at twice economic damages and $750,000 above noneconomic awards), it sure sounds like one.

And thousands of other Vioxx suits are pending--for which this expropriative penalty won't have any preclusive effect.

Jonathan Wilson has more on why the punitive component won't hold up. Walter Olson has links to prior discussion on the tort reform blogs. Finally, Evan Schaeffer (who I gather is litigating Vioxx cases on the plaintiff's side) writes:

One important thing to take away from today's verdict, even though it will presumably be reduced by virtue of the Texas law on punitive damages, is that this was a case perceived to have causation problems that made it virtually unwinnable for the plaintiffs. The verdict is very good news for victims of Vioxx and a terrible omen for Merck.

There has to be a better way of running the tort railroad than this.

This looks interesting

The WSJ($) gave a very positive review for David Schoenbrod's new book Saving Our Environment From Washington:

With personal anecdote and scientific fact, Mr. Schoenbrod makes a compelling case that, by delegating lawmaking responsibility to government agencies, Congress has imposed huge costs on the economy and bad choices on the environment.

This was probably not what the Framers had in mind. The "nondelegation" clause of the Constitution -- Article I, Section 1 -- states unequivocally that federal laws must be passed by Congress. But all too often today Congress merely sets vague goals and then delegates to regulatory bureaucrats -- who are, by definition, unaccountable to the people -- the task of deciding what, specifically, industries and individuals must do. When the bureaucrats make controversial decisions -- decisions painful to various voter constituencies -- congressmen and senators complain, of course. But in fact, Mr. Schoenbrod notes, they like this system. It allows them to pass feel-good laws while blaming someone else for their effects.

They sold me. The Supreme Court's evisceration of the delegation doctrine is at least as much to blame for the expansion of the federal government since the New Deal as is the court's Commerce Clause jurisprudence. So I'm looking forward to getting my copy of Schoenbrod's to see what he has to say about it.

Today's Rant

In a WSJ($) article on the intersection of progressive politics and folk music, Dave Shiflett observes:

"You definitely won't see a Bush sticker here," said Charlie Stagmer, an engineer with CSX Railroad who has been playing old-time fiddle for about 30 years. "We're the caring people, the compassionate people." Mr. Stagmer, whose flowing white hair and beard suggest Moses after the famed encounter with the burning bush, was clearly pleased not to be rubbing shoulders with professing Republicans.

Sigh. With all due deference to the principle against making sweeping generalizations, this is probably what bugs me most about some liberals: smug self- satisfaction in their own moral superiority. If I met Mr. Stagmer, I'd like to ask him whether he feels compassion for the unborn? For those who are out of work because society provides too few incentives for entrepreneurs to create jobs? For people whose lives have been messed up by uncaring and/or incompetent government bureaucrats running ineffectual (or outright harmful) spending programs?

I find it instructive that low-income red states tend to give more to charity than rich blue states, BTW.

In any case, what the heck is so caring and compassionate about liberal policies that invoke the government's monopoly on the use of coercive force to redistribute other people's money? A better use of that monopoly might be to make Marvin Olasky's classic book The Tragedy of American Compassion a required read in our schools. Or maybe Olasky's citizen's guide: Renewing American Compassion: How Compassion for the Needy Can Turn Ordinary Citizens into Heroes. As he compellingly demonstrates, we've tried that approach and it doesn't work.

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.

Roberts "Well-Qualified"

The American Bar Association's committee on juidicial nominations gave SCOTUS nominee John Roberts a unanimous well-qualified vote. No real surprise there, but I still don't trust the ABA process to be politically neutral over time.

SSRN Rankings: A Study and a Little Self-Promotion

Bernard Black and Paul Caron have posted to SSRN a paper entitled Rankin g Law Schools: Using SSRN to Measure Scholarly Performance. Here's the abstract:

There are several methods for ranking the scholarly performance of law faculties, including reputation surveys (U.S. News, Leiter); publication counts (Lindgren & Seltzer, Leiter); and citation counts (Eisenberg & Wells, Leiter). Each offers a useful but partial picture of faculty performance. We explore here whether the new ?beta? SSRN-based measures (number of downloads and number of posted papers) can offer a different, also useful, albeit also partial, picture. Our modest claim is that SSRN-based measures can address some of the deficiencies in these other measures and thus play a valuable role in the rankings tapestry. For example, SSRN offers real-time data covering most American law schools and many foreign law schools, while citation and publication counts appear sporadically and cover a limited number of U.S. schools. The SSRN measures favor work with audiences across disciplines and across countries, while other measures are more law- centric and U.S.-centric. SSRN is relatively new and thus favors younger scholars and improving schools, while other measures favor more established scholars and schools. At the same time, the SSRN measures have important field and other biases, as well as gaming risks. We assess the correlations among the different measures, both on an aggregate and on a per faculty member basis. We find that all measures are strongly correlated; that total and per faculty measures are highly correlated; and that SSRN measures based on number of papers are highly correlated with measures based on number of downloads. Among major schools, all measures also correlate with school size.

Interesting stuff.

Now for the self-promotion. I've taken the liberty of reprinting one of their tables (from page 45):

 

Table 10. Top 25 SSRN Corporate Faculty Rankings (August 2005)

Bernard Black (Texas) 1 2 2 3

Lucian Bebchuk (Harvard) 2 3 1 1

Stephen Bainbridge (UCLA) 3 6 3 5

John Coffee, Jr. (Columbia) 4 8 4 9

Ronald Gilson (Stanford) 5 10 8 18

Reinier Kraakman (Harvard) 6 13 6 14

Lynn Stout (UCLA) 7 18 9 19

Margaret Blair (Vanderbilt) 8 19 13 30

William Bratton (Georgetown) 9 22 12 27

Jesse Fried (Berkeley) 10 23 10 20

Mark Roe (Harvard) 11 24 14 31

Roberta Romano (Yale) 12 25 5 11

Steven Schwarcz (Duke) 13 28 17 49

Stephen Choi (Berkeley) 14 29 15 32

Larry Ribstein (Illinois) 15 30 11 24

Frank Partnoy (San Diego) 16 33 19 66

Allen Ferrell (Harvard) 17 42 7 15

Mitu Gulati (Georgetown) 18 52 16 36

Katharina Pistor (Columbia) 19 55 18 65

Adam Pritchard (Michigan) 20 69 24 102

John Coates (Harvard) 21 81 - 175

Curtis Milhaupt (Columbia) 22 90 23 98

Guhan Subramanian (Harvard) 23 93 - 134

George Triantis (Virginia) 24 96 - 188

Donald Langavoort (Georgetown) 25 110 - 142

The numbers after one's name refer to, respectively, one's rank among corporate law professors and all law professors for all-time number of downloads and recent downloads of one's papers from SSRN. So, for example, I'm 3rd among corporate law professors for all- time downlloads, sixth among all law professors professors for all-time downloads, third among corporate law professors for recent downloads, and fifth among all law professors for recent downloads. Note that my friend and colleague Lynn Stout and her frequent co-author Margaret Blair are right in the hunt too.

UCLA's law faculty as a whole ranks 5th among law schools for SSRN downloads. Our tax faculty is doing great too, by the way, with 5 professors among the top 25.

 

Radical Roberts

Mark in Mexico does a very good job of fisking the news coverage of the memo John Roberts wrote back in the 1980s about comparable worth legislation (i.e., the one in which he supposed called equal pay for equal work "radical"). (Ann Althouse pithily disposes of Kos' coverage of it as "tiresome exaggerations.")

In contrast, Kevin Drum says:

...the White House must consider the stuff they're holding back to be more embarrassing than a memo criticizing comparable worth as "radical." That's a scary thought.

Since it's anachronistic to judge a 20 year old memorandum by today's standards (and remember that comparable worth remains controversial even today), I did a quick Lexis search and kicked up the following samples of elite legal opinion from back in the 1980s:

"...comparable worth constitutes the cutting edge of an ideal of distributive justice. It betokens a radical reworking of our fundamental social and political principles. Elizabeth Fox- Genovese, Women's Rights, Affirmative Action, and the Myth of Individualism, 54 GEO. WASH. L. REV. 338, 369 (1986)

" ... a policy of comparable worth would require a radical reordering of the economic system inasmuch as courts and the government would be given greater power in setting wages. Such a policy would lead inevitably to governmental control of wages, as occurs in the Soviet Union, and a disruption of the free market." Christopher Osakwe, Equal Protection of Law in Soviet Constitutional Law and Theory -- A Comparative Analysis, 59 Tul. L. Rev. 974, 987 (1985)

"... the idea of equal pay for work done by women that is decreed to be of comparable worth to that done by men is a debatable social and economic policy to redistribute income -- a concept foreign to the meaning of civil rights as developed in the American tradition." Morris B. Abram, Affirmative Action: Fair Shakers and Social Engineers, 99 HARV. L. REV. 1312 n.53 (1986)

"The reduction in GNP associated with comparable worth is fairly small as compared with its redistributive impact. For s = 1, for example, GNP falls by 0.3% -- about $ 12 billion in 1985 terms. The real incomes of holders of men's jobs and of all holders of women's jobs also fall by 0.3%. The important effect of comparable worth is a redistribution of income from workers in the women's job 2 to those who are lucky enough to obtain a covered women's job." George E. Johnson and Gary R. Solon, The Attainment of Pay Equity Between the Sexes by Legal Means: An Economic Analysis, 20 U Mich JL Ref 183, 203 (1986).

In context, Roberts' actual statement - "I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept" - thus was consistent with a broad swath of conventional opinion at the time. Even liberals like Fox-Genovese (she's been called "a renowned scholar who spent most of her life promoting the radical feminist agenda in the academy," at least prior to her late 1990s conversion to Catholicism), recognized that comparable worth was radical in its redistributive implications. In sum, this is a tempest in a MSM teapot.

Director Primacy in Shareholder Voting

I ran across an interesting paper recently by Harry G. Hutchison, Director Primacy and Corporate Governance: Shareholder Voting Rights Captured By the Accountability/Authority Paradigm, 36 Loy. U. Chi. L.J. 1111 (2005), which deploys my director primacy model to very good effect in analyzing shareholder voting rights. I put the abstract below the fold.

Abstract: Claims calculated to defend the shareholder franchise are often riveted by fears of insufficient accountability including those related to the fiduciary obligations of loyalty, good faith and care. Fretfulness about the shareholder franchise requires positioning along a continuum between accountability and authority as part of the interplay between Blasius and Unocal. The real question is whether Blasius adds anything in the context of a takeover battle despite the questionable claim that outside of contest for control, Blasius supplies an independent standard of review that properly constrains directorial discretion.

It has been suggested that the application of Blasius alongside Unocal is functionally unhelpful and unnecessary. If correct, then the relationship between Blasius and Unocal/Unitrin doctrines is a fruitful subject for some doctrinal pruning. Although the case-law indicates that the board can neither completely block shareholders from receiving tender offers, nor halt all proxy contests, the compelling justification criterion, recently revitalized by MM Companies, Inc. v. Liquid Audio, Inc., raises questions pertaining to whether, and to what extent, Delaware courts will also apply the stringent Blasius standard of review where the actual ability to obtain control is not thwarted but where the challenged action merely dilutes the "substantial presence" of an insurgent on that board. It is possible that allowing the dilution of the influence of a potentially hostile bidder is consistent with the assumption that directors should retain discretionary control of a hierarchy that comes in the corporate form. By contrast, Liquid Audio, apparently, presents a model of when the compelling justification standard of Blasius must be applied within Unocal's requirement that any defensive measure be proportionate and reasonable in relation to the threat posed. The case implicates two contrasting conceptions of corporate governance: (A) that the power of managing the corporate enterprise is vested in the shareholders' duly elected board representatives; and (B) that shareholders as principals are not simply captives of the business judgment of directors who purportedly act as their agents; hence, authority remains firmly in the hands of stockholders. Additionally, this case involves another crucial tension in corporate governance today: the tension between deference to directors' decisions and the scope of judicial review.

I apply director primacy analysis to criticize the courts and the predisposition of commentators to favor shareholder governance by exposing their opinions to the implications derived from the two principal alternative approaches to corporate governance - authority and accountability. Favoring the authority model that inevitably promotes director primacy, I contend shareholder choice may have little independent normative significance and that the appropriate, but necessarily limited, question is whether a board's decision foreclosing shareholder choice was based on proper or improper motives. In other words, did the board exercise its prerogative in ways that suggest that the transaction was driven by management self-interest? Or on the other hand, was the board properly motivated in its justifiable exercise of its discretion?

Download here.