On the morning July 7, 2005, when terrorist attacks on the London Tube claimed the lives of 52 British men and women, I had just tapped into the District Line at Earl’s Court on my way to work at Westminster.  As news of the attacks trickled through the communications lines, my train was stopped between stations, held, and eventually stopped at South Kensington, where TfL personnel ordered confused commuters off the train.  We weren’t told why - one official-looking fellow mentioned a “power surge” -  but by the time I walked to Parliament, the Uzis in the hands of the guards outside Portcullis House gave me all I needed to know.  This was no power surge.

Over the next week, I became immensely proud of the way the British people reacted to the tragedy.  Possibly because London had faced terrorism before, in the form of the IRA - hence the annoying lack of garbage cans on the nonetheless bizarrely pristine London streets - the nation rolled with the punch.  I was even told by one Londoner that this had been expected for some time.  Most importantly, and most impressively, the British people refused the temptation to, in the wake of tragedy, give in to anger, violence, xenophobia, and hatred.  At Prime Minister’s Questions the very next week, both parties came together to speak against blaming the atrocity on Muslims as a group, and to blast the extremist British National Party for trying to score cheap political points:

Robert Flello (MP, Labour): I, too, commend and praise the police and security services for their swift and effective identification of the evil extremists who brought death and misery to our streets last week. Will the Prime Minister join me, however, in condemning those right-wing extremists in the British National party, in Barking and elsewhere, who are cynically and sickly trying to exploit people’s tragedy, anguish and understandable anger over the barbaric attack in order to score cheap but dangerous political points? Does not the British National party shame itself and slur the word “British”?

Tony Blair (PM, Labour): I agree with my hon. Friend’s sentiments. If we are right in saying that these terrorist attacks are an attack on our way of life, it is most important to say that part of our way of life is tolerance and respect for other people of different races, religions and faiths. It is therefore particularly revolting for anyone to try to exploit these attacks for the purpose of racism.

What an important message, spoken at such an important time.  Going beyond Mr. Flello and Mr. Blair, to cave to xenophobia and appropriate tragedy to political gain is to give the terrorists what they want: a change for the worst in a democratic, civilized, freedom-loving people.  Terrorism succeeds not by death, but by playing upon our fears and bringing out the worst in all of us.

In our own situation, to invoke 9/11 to limit liberty, to turn misguided rage into misguided war, or to attack political opponents, is to hand terrorism a victory.  But if we respond to terrorism with the best in all of us, national tragedies can even become opportunities to strengthen democracy, by re-affirming our commitments to liberty and pluralism, in spite of sorrow, fear, and foes.

Alas for those of us who still haven’t gotten that message.

Ask anyone. Deadlines breed desperation.

I’ve said it before - the only thing more dangerous than George W. Bush with a mandate, is George W. Bush with nothing left to lose. In what I can only imagine is an attempt to find just one last way to hurt America, Bush has aimed to  cut off women’s access to contraceptives. This time, it’s a regular Texas two-step: (1) de-fund hospitals that “discriminate” against doctors & staff who won’t perform abortions, and (2) expand the definition of “abortion” to include “contraception.”

I respect the fantastic conversation we’ve been having on this site about abortion, but this goes well beyond being pro-life or pro-choice. Bush’s latest nefarious scheme is flat-out anti-women. It will not only prevent women from seeking abortions, but also function to withdraw emergency contraceptives, and even regular, prophylactic birth control pills from a large portion of the American population.

Crusading, fundamentalist Christianity’s latest backhand slap to America’s women has been - dare I say it? - gestating for the past four years. Consistent with the Bush administration mantra that not being allowed to force your beliefs on others is “discrimination,” late in the Congressional session in 2004, radical right-wing conservative legislators tacked a rider onto a massive, must-pass funding bill that required federally funded hospitals to employ pro-life staff, or lose billions of dollars in heretofore free grants. The bill - Public Law 108-447, or H.R. 4818 (2004) - tucked the provision away on page 3,163 of the immense act, in Section 507:

…
(d)(1) None of the funds made available in this Act may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.

The rider was the natural expansion of a 1991 Supreme Court case, Rust v. Sullivan, 500 U.S. 173 (1991), which, in one the most nakedly partisan and legally tortured opinions ever penned by the Justices, allowed the government to pull funding from federally funded clinics that counseled recommended even mentioned the word “abortion.“

Bush’s new partisan magic comes from deciding to enforce this overlooked provision, while simultaneously redefining “abortion,” through the Department of Health and Human Services, as:

[A]ny of the various procedures that results in the procedures that result in the termination of the life of a human being in utero between conception and natural birth whether before or after implantation. [click here]

That’s right. The new HHS proposal would (1) define conception as life’s beginning, and (2) define anything that happens to the two-to-eight celled embryo immediately after fertilization - even before implantation - as an “abortion.” It would torpedo the morning-after pill, and, by extension, potentially prophylactic birth control pills too, at least insofar as it would end the ability of any publicly-funded medical care facility to dispense them.

While pulling pills from hospitals and federal clinics might sound like “not a big deal” - after all, can’t women just see a private practitioner, or get a prescription from Duane Reed? - the consequences of this decision, like so many of the Bush administration’s missteps, will (if enacted) be felt most heavily by women who lack those options, who live in towns with only hospitals, who rely on government-subsidized care because they can’t afford any better, or who face a rush, like rape victims, to prevent implantation. Bush’s HHS won’t end abortion & birth control: it’ll simply pull the option from the poor and those who need it most.

If there’s any upside to this new revelation - and I stress the “if” - it’s that Our Boy McCain is going to face a decision. Either way, he loses: he can join the President’s trip back in time to the 1920s, driving away women and moderates, or pick the moderate course and firmly alienate evangelicals, who see milestones like this as steps on the road to the Rapture.

Bush drove our country apart to further his partisan agenda; now he stands to drive his party apart, too, in a desperate final grab for power over women’s bodies.

Unsurprisingly, especially in the winter, this entire island is a humongous waste of energy. While my law firm turns off the lights in the elevator lobbies to save energy, that’s small pennies compared to the amount we squander on heat during the winter. Every pre-war residential apartment building (”brownstone”) throughout Manhattan - i.e., almost every residential building - uses the single most wasteful winter heating system ever conceived of by mortal man (right).

Enemy of the People.

If you’ve ever lived in a brownstone, you’ll know the terror of which I speak. It’s the little metal abomination that, together with the heat pipe, somehow manages to raise your apartment’s temperature to the mid-90s despite the fact that it’s snowing outside. It’s the reason you have to open the window just to stave off heat stroke. Turning it off isn’t an option. The heat pipe is centrally controlled by someone who doesn’t have to live in the hell they’re creating, and the radiator, I’m told, can’t be turned off without imperiling the safety of the entire building.

What kind of sick operation, fully aware of our dependence on foreign oil and $4 gasoline, squanders valuable fuel by heating an entire island twenty-five degrees above the comfort zone? I can only chalk this criminal waste up to corrupt incentives somewhere in the supply chain, and the truly legendary inertia of the Manhattan landlord (why install a better heating system when you can get a new, less annoying tenant just by sneezing?). But something has to change. Quite apart from comfort, if all of Manhattan could slice their winter heating bills in half, we’d be taking a sizable bite out of our national energy crisis.

Feminism is an umbrella term that demands very little.  While academics can debate the finer points of the ideology, parse the movement into “waves,” and wrangle with MacKinnon and Dworkin, the result is a “big tent” philosophy united on the single, unoffensive, and simple point that women are entitled to the same rights and respect as men, and ought to have the same choices as men. 

Choice is the operative word there.  While the right tries endlessly to equate the entire philosophy with its radicals - we’ve all heard from conservative pundits that, apparently, ”feminists hate stay-at-home moms” - feminism doesn’t require that women do anything with their lives, other than what they want.  And that’s the beauty of it. One can be a feminist lawyer, a feminist soldier, a femimist stay-at-home mom, or even a feminist man.  It’s all about respect, and the freedom to choose.

A freedom that, in whatever form it takes, John McCain opposes (kudos to Judith Warner).  McCain’s idea of women is one who has no choice but to get pregnant (no birth control), stay pregnant (no abortion), and, dare she work, get paid less (no equal pay).  Make no mistake: John McCain will do no favor for women.

Editor’s introduction: I would like this post to become the first in a series about the nature of science, and its intersection with law and public policy. I have a great deal of interest in the subject - in fact, my note for my Journal is on this very subject - and I think some of the readers here have the same interest. Since it’s an ongoing series, please leave a comment if you like the topic, don’t like the topic, or have an idea for the way the topic should go.

The Problem of Pseudoscience

Science is dangerous. In the context of a public policy debate, the invocation of science to justify, oppose, or recontour the issue in controversy either removes an element of the debate from contest, or elevates it to another level, where (ideally) objective fact must be met by objective fact, subject to the procedural rigors of the scientific method. In most cases, though, proffered scientific arguments are accepted at face value: science connotes objectivity and trustworthiness, and requires expert training to give it a closer look. Since most of us lack that level of training, we must trust the expert’s assertion that the science is correct: the use of science to debate public issues, then, carries with it an implicit promise that the expert’s scientific knowledge is being used correctly, in good faith, and with the benefit of experience. The scientist has to act as the fiduciary of the public, leading the untrained wisely and without prejudice or bias. In return, in the abscence of proof to the contrary, we assume good faith on the part of the social-minded scientists.

Thus, the problem of pseudoscience. While we in the public sphere are conditioned to trust science, and scientists, the potential for largescale abuse of trust lurks just beneath the surface. As Answers in Genesis and Expelled have shown us, dressing anything up as “science” automatically puts your opponent on weaker footing, because they then have to rebut the contention of special expertise or disprove the “science” scientifically, before even addressing the merits of the underlying argument. While science may be a wise policy guide, to the unprincipled, it can become a shield for bad ideas.

Filtering Out Bad Science in the Courtroom

Lawyers frequently face (and sometimes create) this problem in court. When scientific evidence is required to prove a legal or factual issue to the jury, the potential for prejudice is vast. Since laypersons (i.e., the members of the jury) are likely to trust scientists, a lawyer has every reason to trot someone with “Dr.” in front of their name up to the witness stand, just to say whatever the lawyer puts in their mouth, reaping the benefits of the respect accorded to the scientific profession, regardless of the scientific validity of the “scientist’s” testimony. Unrestrained, a lawyer with money to burn and a jury willing to believe would be foolish not to try to use pseudoscience to make their client’s point: “Doctor, isn’t it true that absestos is harmless?” “Oh my, yes!”

Obviously, courts have become wise to the game, and responded. Now, before someone purporting to be an expert can even talk to the jury, provided opposing counsel objects, an attorney must qualify their expert under an exacting legal standard known as the Daubert rule. Daubert gives me hope that the law “gets” science: it closely tracks the standards the scientific community uses to evaluate itself, appealing to what Thomas Kuhn called the rigorous empiricism, “without which no man is a scientist.” It places validity of process over validity of result: when investigating a potential scientific expert witness, the judge applying Daubert looks to see if the expert’s methodology (NOT conclusion) is peer reviewed, generally accepted, testable, and, if necessary, possessed of a reasonable error rate. By placing the judge as the referee, Daubert mediates the dialogue between the scientific community and the larger world, screening the latter from ideas that respected scientists, as guardians of the public trust, have already rejected. It forces the scientific community to live up to the trust that the jury wants to put in it. Done right, it ensures that good science becomes good law.

Filtering Out Bad Science in the Public Dialogue

The success of Daubert at addressing the problem posed by unscrupulous lawyering ought to show us the vital need for an intermediary between the scientific community and the unruly marketplace of ideas.

In the marketplace of ideas, there are no guarantees of procedural fairness, and no guarantee of an educated audience, meaning that “expert testimony” must be well-argued to rise to the top, regardless of its objective merits. As a result, especially when science bears bad news and is therefore unpalatable, it generally has a noticeable “lag time” during which the general public takes its time to catch up to, and agree with, the scientific community.  Examples of the communication “lag” abound.  Let’s pick two relatively unpopular ideas: the science of global warming, which goes against the popular need to feel comfortable and safe in our world, and the science of evolution, which goes against popular mythology. Unsurprisingly, both face(d) uphill battles. Global warming is just now coming to common public acceptance years after it achieved common expert acceptance, and evolution still, 150 years later, suffers from bad P.R. (kudos nonetheless to its advocates).

Democracy throws another wrench into the works. Since the political process is keyed to the unrestrained marketplace, not the expert’s marketplace of ideas, the people are given the option of “voting out” uncomfortable scientific realities if they don’t “come across” well. We vote down regulations designed to combat global warming, against scientists’ recommendations; we don’t want to think about it, and $4.50 is more than enough for a gallon of gas, thank-you-very-much. We vote down stem-cell research, because in the “spin cycle,” all we hear about is the destruction of fetuses, not the promise for Parkinson’s. And we vote in regulations on abortion, even when those constraints negatively meddle in doctors’ medical judgments, to the detriment of patients.

Of course, that’s not a real problem until the law puts its rubber-stamp on political pseudoscience. But that’s an issue for next time.

Unsurprisingly, I agree with the New York Times: especially if Iraq wants us out, it’s time to get out of Iraq. While I’ve previously wondered aloud about whether pulling out of Iraq is the right thing to do, especially since we knew (or would have known, absent a lying president and a complicit press corps) that going in that Iraq was a long-term commitment, when the rebuilding nation’s will comes into play, our task must inevitably narrow, lest our presence subtly transition from nation-building to occupation.

It’s also well past time that we transition from our futile and naive “democracy-building” mission back to focusing on our initial causus belli: fighting terrorism (remember that?). Especially If Obama plans to draw down troops but not entirely abandon the Iraqis - his plan incorporates residual forces tasked with derailing Al Qaeda - we can call this a “victory,” as long as “victory” is realistically defined.

That will mean abandoning the goal of building perfect democracy in Iraq.

While I acknowledge the honor and raw optimism - dare I say, the audacity of hope? - behind the pipe-dream of building lasting western democracy in Iraq, that goal was never realistic, and it completely failed to account for the importance that historical tradition plays in building democracy. Looking back on our own history, the Anglo-Saxon democratic model grew over the course of a thousand years, a thousand injustices, and a thousand sacrifices. The stunning realization that democracy is “the worst of all forms of government, except all the others that’ve been tried” is a realization bought by blood and the passage of time. Democracy never grows by fiat, it never grows without a fertile historical tradition, and if forced on a nation before its time, it’s never quite right. We need only look at Russia’s slow slide to despotism, and Algeria’s tragicomic early-90s democratic experiment, which ended with the election of an anti-democracy party. Without the proper historical soil, democracy just doesn’t “take”: while we needn’t abandon all hope on Iraq’s democratic experiment, we mustn’t expect it to work perfectly or quickly. It may yet work out, but we can’t “hold our breath.”

And here is John McCain’s problem. All of the experience in the world can’t save America, and can’t save Iraq, unless it’s applied to sensible goals. What we need from our next president is experience, yes, but experience plus perspective.

Earlier this week, Unnamed Law Firm LLP (not my own) hosted a “women’s forum” event at Saks Fifth Avenue, where female attorneys were given cocktails, free reign of the “shoes” floor of the prestigious fashion venue, and one-day-only 15% discount cards.

While I don’t see eye-to-eye with Catharine MacKinnon, I consider myself an enlightened, feminist, pro-equality man. So, when I first heard about this event from an Unnamed Friend, my immediate reaction was, “how patronizing and anti-feminist for Unnamed Firm to pigeonhole all women as shoe-addicted fashionistas! Who do they think they are, billing this as an ‘equality’ and ‘feminist’ event?!?”

I’ve since changed my tune. Putting this argument and male outrage at a perceived stereotyping event to my female friends, I couldn’t even get through the word “anti” in that short little speech before receiving the following reactions:

• <Eyes glazed> “…that’s…. awesome…”
• <Eyes glazed> “NO. WAY. Wait, Saks?”
• <Chat window glazed> “SHUT. UP.”

I guess some stereotypes are fine if they’re applied to bring near-uniform happiness. Equally, I for one wouldn’t object to a similar event at Best Buy or the Apple Store, so my gender might be just as easily pigeonholed. In fact, if I were a male associate at Unnamed Law Firm LLP…

If you’ve ever argued with someone on the far right, the type that drinks daily from the cup of Human Events and WorldNetDaily, you’ve likely heard and become familiar with the argument that Darwin and Margaret Sanger were racist eugenecists; ergo evolution, abortion, and family planning are racist and evil. Sadly, these bits of spin have become “mainstream,” through such breathtaking works of staggering genius as Expelled, and bear commentary.

Let’s pretend this is a motion for summary judgment, and accept all of “plaintiff’s” allegations of fact as true, just for the sake of argument. So, let’s assume that Sanger and Darwin were both monsters who wanted to “select” or “engineer” away other racists. What of it?

The answer is, nothing. Especially in the case of science, where the idea evolves exponentially beyond its original conception, a “founder’s” personal beliefs are practically meaningless. More generally, there’s no concept “original sin” in philosophy; provided a belief system does not retain the bigoted beliefs of its adherents, it retains none of the guilt for the same. If a philosophy, like a snowball rolling down the incline of history, gathered all the scum of its adherents, no idea would be innocent. All of Christianity would be counted a murderer (the Crusades), all of Islam the same (the wars of expansion), and even democracy and America would be irredeemable (the Indian wars). The mere fact of the continuance of history requires us to forgive the sins of our ideological fathers, and focus on the present. Since conservatives so readily agree that historical revisionism is a flawed way of looking at the world, it’s odd (or, unsurprising) that fundamentalist conservatives forget that simple truth when it comes to ideas they don’t like.

Abortion is a complicated issue with no easy answer. Just ask Kang (impersonating Bob Dole).

Just like any issue, there are principled stances on both sides. While I disagree vehemently with the position that abortion should be illegal in all instances, it is intellectually consistent, and draws its strength from a deep (and indisputable) belief that human life begins at the very second of conception, and is sacrosanct. I can’t debate that. I can’t debate away someone’s religion. I have to respect it.

Oddly, though, this position commands a bare 13% of Americans. In fact, polls like this suggest that reproductive choice is becoming a valence issue - but let’s set that aside for a minute. I’m interested in the 24% who oppose abortion in “most” cases.

Those who believe that abortion should be illegal in most cases get to that position by starting with a categorical ban - like the above 13% - and then carving out exceptions. However, carving out exceptions, under the “sanctity of life” reasoning, is carving out lives from the protective umbrella of the law: granting any exception to a categorical ban, besides an exception for the health of the mother, literally vitiates the “sanctity of life” justification for opposing abortion. If these moderate pro-lifers can no longer (logically) rely upon the “sanctity of life” argument, why do they oppose abortion at all?

Here, the exceptions carved out by moderate pro-lifers are illuminating. At the risk of mixing polls, 81% of Americans believe that abortion should be legal in cases of rape. Thus, for some Americans, rape is on a short list of very few cases under which abortion should be legal. Why? If every fetus is a sacred human life, ergo illegal to terminate, why would it matter if its mother isn’t complicit in the sexual act?

Because, for many pro-lifers, the abortion issue isn’t about defending life, it’s about punishing fault. The difference between rape and consensual sex is a difference in culpability. If recreational sex is a sin, both members of the couple who engage in it are sinners. But in the case of rape, only the man is a sinner; the woman is innocent. In a philosophy where sex is immoral, rape removes the cloud of fault from the woman.

By making a legal distinction based on rape, then, provided that abortion is otherwise illegal, we let the concept of culpability determine whether or not abortion is an option. In short, a notion that women are “at fault” for sex, and ought to be punished, lurks nastily behind the “sanctity of life” rhetoric spouted by moderate pro-lifers.

This betrays the true injustice of banning abortion. If we ban abortion only because we believe women ought to be punished for sex, we force upon her punishment that, if justly leveraged against anyone, ought to be leveraged against both members of a consensual sexual couple. The law becomes a tool by which women are punished for their humanity, while men get away free; it becomes a tool of enforcing a caste system.

I don’t mean to suggest that the choice is between banning all abortions, and legalizing all abortions. Dole/Kang was wrong at least the first two times. I merely suggest that where “the sanctity of life” is the only reason to ban abortion, and where “life” begins at conception, exceptions to a categorical ban vitiate that reasoning and expose the true malignant thought process behind the pro-life movement: namely, anti-feminism.

Starting from a different point, though, allows one to honestly and morally come to a middle ground. I believe that every life is sacred, but I draw the line for what constitutes “life” at the end of the second trimester (possibly first - I haven’t worked that out yet), and would categorically ban all abortions after that point except those necessary for the mother’s health. Unlike Justice Kennedy, I don’t think we can dispose of that exception.

About half of the internet has been trying to sort out and properly react to Barack Obama’s alleged turn to center on FISA, the death penalty, and a few other issues.

The other half would’ve joined the party, but they were busy captioning pictures of cats.

I’ve resolved the issue to my personal satisfaction by reasoning that Obama’s “rightward turn” might be partly attributed to a heartfelt desire to reach across the aisle and be every person’s president, and partly chalked up to simple politics, both of which are fine by me.  But why listen to a law student when you could listen to a law professor?  Kyron Huigens of Cardozo Law reasons that Obama’s turn is not a turn at all, but rather explained by his principled beliefs in the way the law works.  I think he’s probably on the right path.

And this, my friends, is why you want an “elitist” as a president.  The Bush years have so blinded us by partisan gamesmanship that we’re looking for spin when there may not be any: “what’s that crazy Obama kid trying to prove?”  For once, we might just have a candidate who’s researched the issues, thought long and hard about them, and reached an intellectual conclusion.  He may not be as fun to sit down and have a beer with as George W. Bush, but when the tab comes, at least Barack Obama can calculate the tip.