Sustainable Futures III: Limits to Know(th) II

J-Fav Raj Patel posts something relevant to the recent talk of sustainability here on Anekantavada:

One of the latest nuggets comes from the Proceedings of the National Academy of Sciences. It shows both that communities can manage forests with restraint and sustainability, and that leaving resource management to people who live with the consequences can sequester much more carbon than handing resources over to a government far away, and run by the rich.

Haven't read the original article; the abstract is available here. It's co-written, incidentally, by a former professor of mine and edited by the recently-Nobel-Prize-winning (and J-research-based-fav) Elinor Ostrom.

Response to D: Limits to Know(th)

(This responds to the post from J-fav D here responding to my previous blog post.)

Wow D, you are way too certain of your own premises for my comfort =o

For one thing, despite your pessimism on people and the ability to control ourselves without top-down (or other external environmental) regulation, the recent winner of the Nobel Prize in economics, Elinor Ostrom, has made her career of showing examples of precisely this. There is also a not-insignificant number environmental historians who believe that there are examples of this in the past. There are certainly examples of both groups that have exercise sustainable management of common pool resources, and of groups that have exercise population control (i.e. with the use of various plants that could be used to terminate pregnancies). One can definitely argue that the tendency of other human groups, perhaps the majority, to expand often or inevitably wipe out smaller pockets of sustainable living, but now one is arguing something rather different. That is, if sub-groups of the human population have managed to live sustainably over long periods (and I would maintain the evidence strongly supports that some groups have), then they are indeed examples of biological populations not controlled by “natural limits” but rather self-imposed social limts. To then say that this is wholly disproved by other groups that don’t live by limits is to essentially say that one (albeit significant) set of groups of the human population represents the one “true” nature of the entire human population.

Further, the whole argument that it’s not going to happen pains me almost physically, because it reminds me so vividly and precisely of the arguments that, for example, slavery (especially its “peculiarly American institution”) would never end, or that women would never achieve a more equal place in society, or contribute to science. Go back 75, 100 years, and you could find no doubt thousands of people, perhaps millions, people as smart as you, who would say “Not. Gunna. Happen.” Slavery is here to stay; women are biological incapable of becoming plant ecologists; blacks cannot handle freedom. We know this for a fact.

And they were wrong as the day is long. As wrong as we may be to say that humans can’t/won’t be sustainable; as wrong as we may be to say that humans can/will be sustainable.

The point to me is that I don’t know. Immanuel Wallerstein has pointed out that we’re in a unique juncture in history (though someone since pointed out to me that you could say that about almost all important junctures of history). Be that as it may, I think it’s only scientifically honest of me to say I don’t know. Oh, sure, we can extrapolate from other biological populations, from human history, from so-called first principles, from whatever you like, but since we all admit that both ecological and social systems are more complicated than their underlying phyisco-chemical constituents, it seems nonsensical to me to then essentialize the larger system down to anecdotes of dumb people we’ve seen, met, and heard of and known and believe exist, the biological destiny of unsustainability, and wrap it up and call it a day. It is, to me, an amazing amount of hubris that I’m not willing to take on, nor think it is productive or useful to do so. To me, saying the we can’t/won’t be sustainable is equally preposterous and hubristic as saying we absolutely will be. Who the fuck knows? Besides which, I think most people agree that the complete extinction of the human race in the near-to-medium term is unlikely, almost no matter what we do to the world. To maintain that we will simply rinse & repeat our mistakes ad nauseum is to ignore the possibility of culture and biological evolution shaping us otherwise. It would take an incredible holocaust to wipe out all the humans on earth; barring that, assuming we achieve something like the average species lifespan (what is it, a couple million years?—ah, wikipedia says for mammals it’s one million) it seems hopelessly facile to me to presume that humans 500,000 years from now will be essentially the same as humans today (and to argue that we will, with certainty, find a way to destroy ourselves before then is equally empirically weak). Any given projection of what humans will be like in the (evolutionary) long term is incredibly flawed, given that predicting this for even the simplest of organisms is wildly dicey, to say the least. Doing this for the most socio-ecologically complex organism on earth is lunacy.

Now, most people respond implicitly or explicitly to this by clarifying that they mean the short-term: they're not concerned with the long-term of the human race in terms of millions of years, but rather, can we avoid disaster in the next 50-200. Who the fuck knows? I certainly hope so. I certainly think study of environmental history gives us reason to think it's possible, as much as it gives us reason to be pessimistic that it's likely. I certainly hope we do not have massive depopulation events and tragedy. But I take solace in the idea that it seems almost inevitable that we will change towards a more sustainable way of being. (One can view this as being of a cloth with what my mom calls my abnormal comfort in rationality, inspired by a trip to Ireland 2 months after 9/11. She was worried about my safety, to which I responded "Well, there are something like 37,000 flights per day in the US, so even if I was flying ON 9/11, the chance that I would've been hurt is overwhelmingly unlikely." There was a pause before she told me I was not like normal people and I should just reassure her that I would be careful and call her when I landed.) And if it is possible to reach in the long term, I think it is only sensical to believe in it and try for it in the short.

The point of my post on the Continuum was that if one believes it is physically possible that we will stave off disaster, it makes no sense to go around emphasizing only that it is unlikely or near impossible. If it is physically possible, it is so in some large part because of our will and ability to learn and organize. Or ability and will to do so is negatively affected by emphasizing its implausibility. So if one cares about pulling it off, one needn't be Pollyannish about it, but why persist with dwelling in negative examples and unlikelihoods?

In my work, I've already seen countries and people accomplish things I never thought possible; feeding a city of 2.5 million people, switching a country as a whole to urban and peri-urban and organic agriculture. If humans found a way to fly when it was said it couldn't be done, if we could get to the moon, split the atom against all odds--why not believe and invest in our ability to break the "scientific" laws of human unsustainability?

"Oh, that's different" people say. Possibly, I say. But equally: Bullshit. We knew women were inferior (though I suspect a number of women all along knew they weren't). We knew slavery was forever. We knew that humans flying was ridiculous. We knew that the sun would never set on the British Empire, that agriculture could never be improved to produce more food, that Rome would never fall, that Monarchies were ordained by God--as Tommy Lee Jones said in Men in Black, imagine what we'll know tomorrow. In all of those cases, there were all the reasons in the world, and all the dumb/racist/misogynist/scientifically informed people you could want to say it wasn't possible. I'd rather be one of the ones saying it is and turn out to wrong, but I hardly think I'm in bad company to assert that another world truly is possible.

My mentor's mentor, biologist Dick Levins, has said that we know from history that the vast majority of today's "scientific fact" will turn out to have been wrong in the future. The challenge is not, therefore, in simply finding science today that is wrong. It is in finding science that will stand the test of time. I think the same applies to this situation; so many of us know it can't or won't be done. I find this attitude to be a fine way of combining hubris, cynicism, and counter-productiveness. I'm not smart enough to say we can't do it. So I spend my time trying to figure out how we can--what facts will allow us to stand the test of time. To me, to do otherwise is self-indulgence almost equal to that of avoiding vaccinations. It may seem fine for an individual to indulge in, but really, we can't afford it.

J's Reasons Why Maybe... We Can Do this: An abbreviated list

Prugh, Costanza & Daly's "The Local Politics of Global Sustainability" (ISBN 978-1559637442)

Elinor Ostrom's "Governing the Commons" (ISBN 978-0521405997)

The City that Ended Hunger (aka Belo Horizonte)

None of these mean or guarantee that we can do this, but I'll tell you what. If in any case I believe in the slogan "Yes We Can!" it is in this arena. No, We Might Not. Yes, It'll Be Hard. No, It Won't Happen Tomorrow. No, It's Not Wildly Likely, A Fait Accompli, or Inevitable. But: Yes, We Can.

Strategicallly Optimistic

I've been reading materials on subsistence food systems, sustainability, environmental problems, and "human nature" well, for a while now but also several as of late. A speech Bill Rees gave at the Ecological Society of America meeting this summer, along with one of his articles and numerous comments by pretty much every ecologist ever (with the exception of certain Marxist ecologists of my acquaintance and likely a couple others) speak of the problems of human nature in achieving sustainability. Humans have an inherent tendency to expand; humans are inherently selfish; etc. etc. Rees, who has a PhD in population ecology, claims in one of his articles that ecologists are reluctant to treat humans as ecological beings and to deal with their population ecology scientifically--and concludes that our "nature" is to expand.

I think this is problematic in a bunch of ways, but there is one that I'm going to address right now that makes reference to a couple of the others. [? -- ed.] Having talked to Prof. Rees in person, he says that we might (he's not very optimistic) be able to head off absolute disaster by constraining human nature through culture; his example was the rituals and efforts towards monogamy overruling our non-monogamous nature. This is a weird mental exercise to engage in, because it puts human culture in the position of being "unnatural." That is, if our nature is to do one thing (expand/consume more, have random hookups) and our culture constrains it, then you're defining our culture out of our nature. This is some extreme mental yoga if you are, as Rees claims to be doing, treating humans scientifically because nothing about humans can be unnatural in a materialist sense: everything that exists is natural, and more to the point, culture, being derived from our biology, must also be natural and hence "part of our nature." Now, intuitively what he says makes sense because the dichotomy between nature and culture, impulse and impulse control, id and superego, nature and nurture go deep, deep, deep into our culture (however natural or unnatural it is). But I would say this dichotomy is not only unscientific but unhelpful twice over: it obscures the nature of the relationship between our "nature" and our "culture", AND I find it extremely unhelpful rhetorically.

Having wandered around for awhile without getting to the point, I'll skip discussing why obscuring the nature of the relationship (or rather, obscuring the fact that culture and biological impulse go hand in hand, and are not clearly distinct; at the very most, they are like water and cold in the analogy of snow: you need both to create snow, and you can't assign priority to one or the other, snow only makes sense in terms of their interaction) is bad science in my opinion, and move on why the splitting of the two is bad strategy in my opinion.

Given that Rees, and many others, thinks it is at least possible for humans to learn/think/choose our way out of this, a key part of doing this is mustering the social movement, structures, and education to support it. Clearly, people of the "humans are naturally unsustainable" camp don't think it will happen "by itself", ex nihilo. If you think the solution is "culture" or some other self-maintained restraint, then seemingly people have to believe that humans are at least capable of said restraint. That is, if restraint is cultural it seems necessary that people think it possible in order for it to be possible. (I'm sure one could argue this is not strictly logically necessary, but I'm not going to.) Certainly it seems to undermine your effort if you convince people that they CAN'T control themselves to be sustainable. Yet this is exactly what the rhetoric of "humans naturally expand/consume" does. People who don't believe self-control is possible certainly seem unlikely to exercise it. People also (understandably) don't usually view saying that human nature is unsustainable to mean that humans can learn to be sustainable; nature is viewed as immutable, insurmountable. To then claim that we can control ourselves through culture plays into a societal narrative that tends deeply towards vulgar biological determinism, i.e. that if something is part of our "nature" we can't control it. So it seems both unwise and unscientific for Rees and others to say our nature is one thing but we can (theoretically) get beyond it through culture* because in our deterministic narrative, we tend to view such attempts to get beyond nature as noble yet doomed (cf. monogamy).

If cultural change can lead us to sustainability and such a cultural change is possible according to the laws of reality, such a cultural change is as "natural" as expansion. Expansion may be easier, or more likely, or our inertial course, or whatever, but if we can stop doing it, then the ability to stop doing it must also be natural, no?

If you think we can control ourselves and successfully achieve sustainability (at least, before the worst of the worst disasters happen) then it behooves you to promote this idea. If culture is the vehicle, surely a culture that believes its objective is possible will be more likely to embrace & achieve said objective. If you're not of the camp that believes it is physically impossible, it makes little sense to contribute to that point of view because you can only fulfill your own prophecy.

This isn't as deep as it seemed to be in my own head, but nonetheless, it seems not to be grasped by people like Rees. It makes one think he doesn't believe his own statements of the possibility, because if you believe in it, why constantly discourage people from thinking it may be? It would be like Civil Rights leaders showing up at rallies 40 years ago and saying "there's really no way we can ever achieve our objectives. Now--let's go do this thing!" You don't have to say it's easy--that's hardly what, say, MLK did--but nor did he say "I may not get there with you, but it doesn't matter, because you won't get there anyhow." I study what I do -- successful or partly successful examples of sustainably providing human rights -- because my analysis is that hearing about and learning and believing in positive examples is more important to a productive solution than talking about their improbability. Talking about the challenges has its place. Scaring people may have its place. But if your very success depends on your belief in its possibility (more so than usual--you know, when it literally depends on it), pessimism seems almost like a selfish indulgence.



*If you aren't materialist about it, that is, believe in the soul or spirit, or some other higher being or place beyond nature, you could be consistent in an argument that our non-material being/spirit/consciousness/soul must get beyond our nature to save ourselves. But outside of this viewpoint, it doesn't make sense, because our nature is all of us that exists; if we can do it, it too is part of our nature and therefore the characterization of our nature as expansionist but controllable is at the very least, imprecise language. Understandable and sensical in a certain context, where one might mean "basic drive" rather than "immutable trait", but certainly imprecise.

Babbling, hopefully in an interesting way, about veganism

This responds to this article on the HuffPo by Ari Solomon.
---------------------
Despite agreeing with much behind what Solomon says, I think he undermines himself in this article that is, basically, a screed on vegan's rationality. Yet, he clearly has feelings about veganism that go beyond the rational or "logical." There is nothing inherently wrong about this, but from a rational/logical perspective, I find this sentiment ill-formulated:

"All animals deserve to be free from unnecessary pain, fear, and suffering at the hands of humans."

It may be morally hard to disagree with that, but it *is* a statement on morality, a value statement, not a logical proposition. I wouldn't argue that working to help fellow humans or, say, broad secular humanism are purely "logical" systems. For example, I myself choose to work in an area pertinent to social justice because of my relevant beliefs, not because it is in some unassailable way "logical." And of course, one cannot actually practice what Solomon is talking about literally, because the growing of vegetable crops takes an undoubtedly huge toll on animals as well, from their production (i.e. pest elimination, exploitation of pollinating bees) to their harvest (i.e. threshers killing field animals; tractors crushing soil fauna), their processing (even vegan and vegetarian processed foods tend to be made in plants, where there again will be pest control and likely "maximum allowable" animal parts from processing plant mishaps with resident rodents, say), and their transport (I'm sure we could cut down the number of insect deaths and roadkill if we demanded all food transport took place at low speeds, i.e. not interstate highway speeds.)

Read more at: http://www.huffingtonpost.com/ari-solomon/who-you-callin-vegangelic_b_290582.html

This is not to critique veganism as inherently flawed, and heaven forbid that someone think I'm defending careless or thoughtless eating. Local food, ethically produced food, organic food, food where you personally know the farmer, and yes, vegetarianism and veganism all help address numerous problems in our food system, that threaten our ecosystems and ourselves. But come on--addressing many of these issues is a moral choice, verging on a choice of "faith" in how the world should be run and for whom.

"...if we say we care about cruelty to animals then it's time we start caring about all animals. Yes, dogs and cats are companion animals but in terms of suffering our canine and feline friends feel the same as a pig, cow, chicken, lamb, or turkey. To pick and choose species in terms of whose pain we care about is incredibly hypocritical and inconsistent."

Read more at: http://www.huffingtonpost.com/ari-solomon/who-you-callin-vegangelic_b_290582.html

There is much, *much* to agree with in veganism. But this article sets out to talk about its logical premises, and then leaves numerous logical holes, filled in with values. Values that may be noble, or righteous, or just, but nobility and righteousness verge on what one could call spiritual choices.

Solomon seems to aspire to the intellectual rigor of, say, a Peter Singer, but seems unwilling to fully embrace utilitarianism or a similar system where there is consistency, but as with any system, absolute consistency or certainty leads to counter-intuitive or extreme results. An absolutely consistent veganism along his lines would lead to conclusions way beyond what most would consider reasonable or, dare I say, "rational". For Singer's utilitarianism, this comes in often with his famous equating of animals with humans without higher reasoning/brain functions; in Solomon's case, the inescapable conclusion that "consistency" would demand could be, for example, not eating almost all crops in the US, considering the animals killed in the production of almost all plant-based products, especially those processed or transported for any significant distance. By the same consistency, one could similarly critique and therefore conditionally ban the use of, say, wind power, airline travel, and tall city buildings that, even with technological advances, will likely inevitably kill significant numbers of birds, etc.; one could conditionally ban non-emergency speeds above, say, 30 or 40 mph to avoid killing insects or inadvertent roadkill.

I don't disagree with the aspirations of veganism; but seeking to avoid the "exploitation" or unnecessary pain on all animals is a *value decision*. It must be discussed as such, especially if you wish to talk about all meat and all animal products; veganism has no special claim on logic, and to appeal to such a claim is not only inconsistent, verging on perhaps hypocritical, but also counterproductive. Just like telling religious people that they can't possibly be religious and care about logic, telling everyone that they can't possibly care about animals unless they follow vegan rules generates far more self-satisfaction and (illogical) righteousness than it does converts or reasoned discussion.

HoYay! brought the Visigoths at the Gates

-or-
"I wanna be noted for the fall of your Civilization! At the Gay Bar, Gay Bar, Gay Bar, Woo!"**

Interesting article on the otherwise-annoying-me-quite-a-bit-recently Slate today, reviewing James Davidson's "The Greeks and Greek Love." Author Emily Wilson goes over Davidson's "fascinating, meandering, funny, and thought-provoking study of how ancient Greek men loved one another." Observing the current state of things vis a vis gay marriage and the status of same-sex relationships, Wilson calls it

"a central problem for modern Westernized societies. Many countries allow same-sex couples the right to a "civil union" but withhold from them the name of marriage. The Netherlands was the first modern nation to legalize marriage proper for gay people, in 2001. Since then, seven U.S. states have also legalized gay marriages, although one, California, has just backtracked. On May 26, Californian lawmakers upheld a ban on same-sex marriages in the state... The ban is based on the idea that there is—or should be—something fundamentally different about sexual and romantic relationships between people of the same sex and those between a man and a woman. Since history is so often invoked, either implicitly or explicitly, on both sides of the debate, now is a particularly good time to look back at the history of same-sex relationships."

She goes on to say that the book

"ought to be required reading for anybody curious about the antecedents of the current impasse. [It] is a landmark study that challenges earlier historical interpretations of the evidence. For instance, [some] scholars... have argued that the Athenians were obsessed with anal sex, which they saw as an act of domination and humiliation. Davidson brilliantly shows that this interpretation is largely a projection on the part of modern historians, who have been reluctant to imagine a world where gay relationships could be expressions of love, affection, and appreciation, rather than deeply skewed power arrangements."

Observing Davidson's arguments on the Athenians ("same-sex relationships—which seem to have generally taken place between youths in their late teens and young men in their early 20s—were an important part of a boy's journey to manhood... [and] many men continued to be interested in "boys" even after marriage; happily married poet Sophocles and unhappily married philosopher Socrates both flirted with young men at drinking parties and caused no scandal in doing so. (The amazing thing about Socrates' sex life, according to Plato's Symposium, was not that he fancied the gorgeous Alcibiades but that he resisted having sex with him, even when snuggling under the same blanket"), Cretans ("Cretan rituals were equally strange, from an Athenian perspective..."), and Spartans ("In Sparta... a curious kind of sex seems to have been the custom between well-behaved men and chaste teenage boys. Apparently the lover was supposed to relieve himself only by rubbing against the boy's cloak: The cloak had to remain on at all times, as a sort of all-body condom"), I realized that I must have missed that part of The 300.

Of course, the funniest thing to me about the article (and somewhat exemplifying Slate's more-than-occasional breathtakingly tone-deaf and dumb contrarianism) is that it reminds me of a typical Slate contrarian years ago who was all "can't we have just ONE uber-violent movie with mainly manly men battling, oiled and sweaty, without just ASSUMING homoerotic tones?" To which I thought, sure, go ahead, but if I were you, I wouldn't take my stand on HoYay's inappropriate over-application and tie up the end of my mediocre article on the (lack of real) homoerotic undertones in action movies by talking about "The 300" and fucking SPARTA, where there actually WAS homoeroticism, you know, in the form of HOMOSEXUAL SEX. Not explicitly in The 300 itself, if I recall, but in that silly thing called "real life."

This being, after all, the same real life where two of Western Civilizations's most influential cultures, Greece and Rome, had common and rather accepted forms of gay love and managed to, oh, form the rhetorical and historical basis for much of modern Western society. (Not to mention the many celebrated philosophers we so often cite in our paeans to reason or democracy who, at the very least, batted for both teams, and of course that historical war juggernaut, Alexander the Great.*) But, I'm sure Rome's eventual fall was probably due to a lack of heteronormative "family values."






*"Alexander the Great, just steaming through Persia; took out Darius the 3rd as we all know. And then he ran on... and after a while his army's going, 'Hang on. Alex, I think we lost 'em. You know, I don't know where we live any more, and we've killed most of the people we've met. So would you just like to chill out.' And Alex is going, 'Look, I'm 32, I'm gay, I'm on a roll. Let's go!' On you go."

**

Brilliance: "Obama Administration Statements On The Public Option or A Nervous Boyfriend Trying To Talk His Girlfriend Into Anal Sex"

From J-Fave Fire Mickey Kaus:

Which is it?
Obama Administration Statements On The Public Option

or

A Nervous Boyfriend Trying To Talk His Girlfriend Into Anal Sex

"I’d be happy [if we didn't] do it ... and if there was a way of doing it that [was okay with you], I’m happy to do it that way, as well."

"I'm just kinda talkin' about how it might be okay to do. If you're into that sort of thing."

"No-one is being forced to [do] it."

"I see nothing wrong with having [it] as a choice."

"Whether we have it or we don’t have it, is not the [issue]."

"It's certainly not a deal-breaker."

"Only if you're cool with it."

"These are legitimate concerns, but ones, I believe, that can be overcome."

“I just want to figure out what works.”

"No, I'm just kidding! Unless you were serious ..."

I can't top or add anything to that, except to say that these all seem to be Obama, except the last and fourth-to-last. And the second... ok, so it looks like there are 3 examples that are, as far as I can tell, "Nervous Boyfriend Trying To Talk His Girlfriend Into Anal Sex", and 7 "Obama Administration Statements On The Public Option (That Could Feasibly Double As 'Nervous [and Overly Officious] Boyfriend Trying To Talk His Girlfriend Into Anal Sex')".

*Addendum to previous post (Genetically modified Crops: Critics of the GM Critics Gone Wild?)

(*&#@(*$&)@#%!

I'd already half typed this out and then accidentally deleted form the copy'n'paste clipboard... argh.

Ok.

Let's give it another go...

----begin digression----
*One may ask how this fits with my and others generalized critique of corporations, especially as relates to their role in food and GM crops. That is, you could fairly argue that I tend to paint them with a broad brush, rather categorically. Firstly, I wouldn't really consider corporations a "side" the same way I consider "pro-GM" as a "side." Corporations are not equivalent to a point of view, and my point was that you can't (or shouldn't) dispute a point by dismissing everyone advocating that point as cynically motivated. Corporations are far from everyone advocating GMs; you have food activists, university researchers and even researchers within ag. corporations who cannot be uniformly assumed to be irrational or motivated by, say, greed over the welfare of others. (Of course, I don't really accuse corporations of being irrational in their pursuit of objectives I think are often detestable, or at least questionable.) Indeed, I have friends and colleagues who believe in the potential and need for genetic modification, and I don't presume that they are irrational, motivated by greed or other ulterior motives, or anything but, in most cases, genuine concern for others and an intellectual belief in the need/utility of GM crops. This is more what I was referring to. One shouldn't, of course, categorically dismiss *groups* OR *sides*, but besides pointing out that corporations aren't, to my mind, a proper "group" in this sense (in that they're made up of people with a wide diversity of opinions, even some that dispute the primary positions of their own company) and insofar as they are a group, they're a group that as a matter of record and fact are committed to profits and not to social welfare; when the two conflict, they have and do argue that the former must come before or even at the expense of the latter due to the rules of their constitution and "personhood." This is a topic for another time, but is a primary component of what I see as problematic with corporations.
---------end digression-----------

Genetically modified Crops: Critics of the GM Critics Gone Wild?

See this story in Nature on the backlash against an article published finding that

"...[caddis-fly larvae] fed only on Bt maize debris grew half as fast as those that ate debris from conventional maize. And caddis flies fed high concentrations of Bt maize pollen died at more than twice the rate of caddis flies fed non-_Bt pollen. The transgenic maize "may have negative effects on the biota of streams in agricultural areas" the group wrote in its paper, stating in the abstract that "widespread planting of Bt crops has unexpected ecosystem-scale consequences.""

I've said much on GM before, but as far as this article about the swift and forceful critical attacks--as attacks they can be described, when the scientists are charged of scientific misconduct by critics, as we were in an article on organic agriculture, when most would admit that the "misconduct" is usually, at most, from strident but perhaps valid disagreement on wording or analytical approach, my challenge to the types critiquing the GM crop critiques is:

1) Find studies that *find negative effects from GM crops* that you feel are well-conducted. The probability that all studies that critique/find negative effects of GM are poorly done is exceedingly low.
2) If you actually feel all the research finding negative effects are poorly done, for the sake of science and balanced analysis, point out how this is similar/dissimilar to problems in "pro"-GM articles. That is, while it's unlikely all "anti"-GM science is badly done, the probability that all of them are badly done and all of the studies supporting GM are well done (back of the envelope calculations here...) zero point zero percent. A synthesis of the methodological flaws in each body of literature would be far more helpful than systematically decrying all articles with contrary findings and pointing to all positive findings.

In essence, it would be nice for those advocating GM to stop pretending all the evidence against it is bunk, bad science, or politically motivated. The feeling that those opposing GM accuse you of the same is not an excuse, especially considering the attitude in the Nature article of some critics that "That's just science." Accusing people of intentional misconduct is not an everyday reaction, or it shouldn't be, and anyone categorically insisting that their side is rational and the other sides aren't (or otherwise assumes bad faith on an entire side of a discussion and not on the others*) shouldn't really be listened to.

Starving during surplus; surplus of starving

Another bit here reinforcing the importance poverty/lack of socio-economic power in causing hunger and malnutrition (a topic J recently got in an extended discussion with J-friend NP; to be re-posted here eventually).

Quoting Ms. Nierenberg of the WorldWatch Institute,

One of the most interesting things Thurow explained was how the success of African farmers became their failure-in 2001, the Ethiopian harvest was the best most farmers had ever seen. They had record yields and had more food than ever to feed their families, as well as to bring to market. But that surplus caused prices to collapse more than 80 percent. Farmers couldn’t pay their debts and they cut back their expenses the next season-they planted less, they used less inputs like fertilizers and hybrid seeds, and planted just enough to (hopefully) feed their families. When the famine hit hard in2002-2003 , the same farmers, write Thurow and Kilman, who had carried their surplus grain to market the season before, were now carrying their malnourished and starving children to food aid centers. And at the same time, Ethiopian grain traders had warehouses packed to the ceiling with surplus food because foreign aid agencies were buying foreign-mostly U.S. grain-instead of from local suppliers. As a result, while millions of people in Ethiopia went hungry, more than 300,000 tonnes of grain rotted either in fields or in storage.

This is rather similar to a story that was formational in the J-career related to food issues, from a 2002 NYT story, Poor in India Starve as Surplus Wheat Rots (original article is here, but I wanted to make sure readers weren't blocked by a possible NYT subscription wall). Not to pick another debate with NP, but these articles reinforce the pivotal role of poverty/lack of political power in hunger, as in both cases, there are surpluses that are going to waste rather than feeding people (although the details seem reversed, with farmers getting high, possibly inflated prices in one circumstance but underpaid in another, although J highly suspects that the farmers benefitting in India in 2002 were primarily large farmers). Fortification or yield increases or self-generation of pesticides (through genetic modification or other means) would none of them address the problems of hunger confronting the millions of people in these cases, because neither production nor nutrient content were the problem. (The argument with NP to be reprinted here revolved somewhat over Golden Rice (yes, again); one of his points was the fact that it might not solve "the" problem is not a reason it can't solve "a" problem; we'll leave it here by saying that is at least plausibly true, even if I think it to not be the case in the overwhelming majority of the time that genetic modification can solve hunger problems when market/governance problems are at root in the examples given, so even granting his point it appears like it may not be generally applicable solution, beyond potential safety and health problems J sees with GMOs... BID (but i digress)). One certainly can't make the point that production could have a secondary positive effect by lowering food prices in the Ethiopia case as in that case, low food prices (and a reliance on agricultural sales rather than self-sufficiency) contributed to hunger via farmer poverty; in the Indian case it appeared that the government was controlling the distribution of surpluses based on international and domestic political pressures, so price and supply themselves weren't necessarily prime factors there either.

BONUS J
Great quote from J-friend JCR, in response to a quote from another J-friend (""Americans are a stupid people by and large--we pretty much believe whatever we’re told.” -- Det. Norris, Baltimore PD, "The Wire"):

We have a very long history of mistrusting the government and believing in the importance of the individual over the community. We're steeped in it, and we don't often question it. This fundamental attitude is easy to manipulate, so that health care for everyone is bad (because you need more government investment to do it), while tax cuts for the rich are good (on the assumption that someone who is rich got that way by individual merit).

We're no lazier or dumber than the rest of the world, but our basic beliefs don't serve us as well as they could.

For the record, JCR partly credits this blog post by Frank Schaeffer for what he calls a not "completely original" sentiment. (Of course he's right; "There's nothing new under the sun", but then again, genius is, in a way, saying what others have thought but perhaps did not realize: "In every work of genius we recognize our own rejected thoughts; they come back to us with a certain alienated majesty.")

Oh, for fuck's sake

Sigh.

Apparently, the US is a criminal sex offender. So be on the look-out should this country move into your neighborhood.

I suppose this shouldn't come as a surprise... I've found myself rather in agreement with critiques of recent years observing that we've come to accept prison rape as an informal additional punishment, a nonchalance which can't help but be reflected in the actual approach of the prison-industrial complex to investigating and stopping it. There's a good point to be made that we shouldn't accept rape as an informal punishment any more than we would accept it as a formal one -- I can't imagine (or I can, but'd rather not) it would pass Constitutional muster as a NON-"cruel and unusual" punishment, but our being so blase about invites it to stay part of our system.

Speaking, unfortunately, of rape, there is the continuing and seemingly worsening wave of sexual violence in the Congo, where apparently we're (the US and UN) helping to mentor other countries' armed forces in sexual violence:

AMY GOODMAN: Now, what about this issue of the US-, the UN-backed Congolese army in the area now increasing the rate of rapes? And we’re actually not just talking about women and girls, but also of men and boys, as well. Is that right, Christine?

CHRISTINE SCHULER DESCHRYVER: That’s totally right. I have to say, since they started like with the new operation called “Kimia II” with the Congolese army and supported by the UN forces, the situation here on the ground is terrible, terrible, because now we have the militias just—not just going and rape the women, they are burning villages, they are killing the people, they’re raping men. They are like—they already use the same methods like Janjaweeds in Darfur. So now the level of violence in both North and South Kivu is just incredible. There’s no more words to describe what’s going on. And we still, like—we all, like—like the international NGOs, the local, the national NGOs, all of them made reports to alert the world that there’s a tragedy going on with this operation. But they’re still continuing, and we don’t understand that.

I... have nothing else to say, really. This has sort of sapped the pithiness right outta me.

The Hell?

There's an at least plausibly accurate survey out there showing that most Americans think women should be required to take their husband's name when they get married. The hell?

The J Continuum: Anekantavada has aspirations of doing some sort of Latin America-thingy with the future Mrs. J Continuum: Anekantavada where perhaps he adopts her last name as his middle and vice versa (making her prospectively more accurately named as the "Future Mrs. J Continuum: Anekantavada-Hyphen-Her-Name-Here") or some such other compromise; as a fan of some small amount of ritual and symbolism, I like the idea of reflection of a union of people in some sort of union of names. But a) I wouldn't even WANT her to simply replace her last name with mine, b) legally REQUIRED? c) the HELL?

Being a world-renowned professor while black

Prof. Henry Louis "Skip" Gates, Jr. -- Harvard University Professor, editor of the Root, etc. etc. -- was arrested on his own front porch after it was determined that he was, indeed, the legitimate homeowner as far as I can tell. Writer Samantha Henig of Slate and the Double X Factor comments on this and links to some other good commentaries:

Just as upsetting to me as the Henry Louis Gates Jr. arrest, Emily, is the way that so many people have been responding, including in our own comments section. There’s this reflexive defense mechanism that so often kicks in with white people (of which I am one) in situations like these; an urge to stand up for the white person accused of discrimination because hey, I’m white, and I’m not racist. I’ll admit, I feel that pull too at times—I cringe at people who fling around groundless accusations of racism [and other hot-button issues].

But this is not a case where people should get all smug about being “brave” and “honest” enough to question whether race was a factor; to suggest that maybe it was Gates who was out of line, not the cop. In all the steps of this story—the neighbor who called the cops, the way the officer spoke to Gates, the fact that the kerfuffle between them, no matter how much it was instigated by Gates, led to an actual arrest—it is just so hard to imagine that not one of them was influenced by Gates (and his driver) being black.

Blogger Kate Harding has a thorough explanation of why declarations that race isn’t a part of this arrest are coming from a position of white privilege. And to “people are trying to be all devil’s advocatey about it and suggest that Gates bears responsibility for making matters worse,” she offers this: “I’m sorry, who wouldn’t be a belligerent prick after getting off a long flight, coming home to a jammed door, then finding a cop in your living room accusing you of trying to steal your own shit? I sure would.” Ditto that.

Read the rest here.

Obama and Cheney, together in bed, giving H-E-A...

With apologies to The Coup.

But; srsly?

The Obama administration asserted a legal argument that a federal judge called the Jon Stewart “Daily Show exemption,” as the Justice Department continued a court fight to protect ex-Vice President Dick Cheney from disclosures about his role in the leak of a CIA officer’s identity six years ago.

At a federal court hearing Tuesday, Jeffrey Smith, an attorney in the Justice Department’s Civil Division, argued that the transcript of Cheney’s 2004 interview with special prosecutor Patrick Fitzgerald about the CIA leak should remain secret for as long as 10 more years.

Last month, Smith cited the possibility that the transcript’s release might discourage future vice presidents from cooperating with criminal investigations because their words could become “fodder for The Daily Show.”

When Smith revived that argument on Tuesday, U.S. District Court Judge Emmett Sullivan said, “You’re getting back to the Daily Show exemption. You’re not going back there, are you?”

Read the whole thing, "Obama Lawyers Shield Cheney on Leak" by Jason Leopold, at Consortium News.

It might be inaccurate, but at least it's fast

An article today at Slate discussing Body Mass Index (BMI) and how it's actually a poor measure of obesity -- and why it's used so commonly to diagnose said obesity. Rather like many population measures -- time at menarche or onset of puberty, age at death, literacy, whatnot -- the overall averages won't tell you what's going on with any given individual. But alas, the almight BMI is convenient, so it's commonly used.

This reminds of the (related) phenomenon, back during the Atkins Diet craze, when I read an article talking about it and its actual relationship to healthy eating and longevity (questionable at best, negative at worst). It quoted some scientists as arguing that at least Atkins brought people's attention to dietary questions; in my experience, however, it was just another fad diet, and people adhered to it specifically. There was little spillover into more generalized health concerns, exercise, etc., just cutting down on carbs -- which as many scientists in that article and out pointed out, is not terribly related to long-term health, as the fats associated with much of the protein people ate instead did little for their cardiovascular health, and they missed out on the nutrients and micronutrients chiefly gleaned from eating complex carbs (i.e. the anti-Wonder Bread).

Anyway, like BMI or even worse our focus mainly on weight, the article expressed a point of view that I like to summarize as, "Things are so bad, we need a solution -- even if it's a wrong one that won't work."

Sigh.

Frank Ricci: Firefighter, Successful Supreme Court Litigant... Serial Suer?

Dahlia Lithwick writes at Slate about Frank Ricci's penchant for filing suits over jobs. In what might be irrelevant background, a pattern of sour grapes, or a person "repeatedly victimized by a cruel cadre of employers, first for his dyslexia, then again for his role as a whistle-blower, and then a third time for just being white," the recent victor along with the others of Ricci v. DeStefano also just might be "a serial plaintiff—one who reacts to professional slights and setbacks by filing suit, threatening to file suit, and more or less complaining his way up the chain of command." Ricci, who will testify during Judge Sonia Sotomayor's confirmation hearings, is, as Lithwick says, thus "not the typical GOP heartthrob." The GOP's stance on discrimination lawsuits seems to be along the lines of J-Friend Dan's philosophy of complaining. As he once said: "I don't believe in complaining about things you can't do anything about. On the other hand, I don't really believe in complaining about all the other stuff either." Switch "complaining" with "lawsuits" and you have the Republican philosophy, or its seeming one, regarding lawsuits for rights infringements (see their repeated attacks on tort lawyers and all that rigmarole).

Lithwick's piece is little more than a trifle, though it certainly paints Ricci in a different light (whether or not that's a fair different light is a different conversation) and makes one wonder why this wasn't brought up before now? Surely, this wasn't just discovered. And like I say, it might be irrelevant, but it could've been a choice part of the discourse anyway, considering how much the focus was on "being fair" to Ricci and his colleagues, who "earned" their promotions based on the standards given, regardless of whether the standards were the best ones to evaluate people with or were discriminatory as such Title VII was heretofore determined.

So, 6 heads of state walk into a summit...

What's wrong with this picture?



That's right: not only aren't half of the leaders women, none of the pictured leaders are women.

Oh, yes, and the failure to agree on a climate plan.

Though, black (male) head of state of a predominantly white country: check. We're still working on consistently representing the other (female) half of humanity, among other things.

New Haven's Firefighters: Race, White firefighters, and civil rights, Part the Nth

A really fantastic piece, or seemingly from my quick readthrough, by Richard Thompson Ford again, Stanford scholar and previously linked-to commentator on the "New Haven Firefighter Case" of Ricci v. DeStefano.

Ford analyzes how the SCOTUS' finding for the white firefighters (and one Hispanic firefighter) in this promotion case overturns years of civil rights precedent, while going with more recent precedents of treating any attempt at addressing civil rights as creating their own racial (or sexual, in the case of homosexuality) preferences, "reverse discrimination" or "special privileges."

There are two interesting points here (well, many more than that, but two I will make right now.) One is that recent discussions with various J-friends have, unhappily, split pretty clearly along racial lines (though not with any racial overtext, that is, whether or not people agreed or disagreed with the SCOTUS decision fell quite racially within my very small subsample of my friends). BUT, the point of contention seemed to (mainly) fall into "Ricci et al. deserved to win because they played by the rules," that is, the test happened, and taking back what they'd "earned" by going along with the test as written would not be fair, regardless of the errors, biases, whatever of the test. (The "compromise" position found between J-fave D and J was that they were deserving of some recompense for the efforts they put into preparing for the test, even if they were not owed a promotion.) Essentially, as I discussed with J-Mom, it seemed to be a focus on the individual, individualism, and the rights of the individual not to be "harmed" for the good of the whole, or good of another group at least. (This is not at all how the J-friends phrased it, but my interpretation of their objections to my points of view). J-friend Sean felt that institutional racism was real, but of a lessor magnitude than perhaps I may think it was, a lessor magnitude than discrimination from poverty (which is hard, if not impossible, to parse, but suffice it to say I think institutional racism is a profound and not terribly diminished problem, something D seems to agree with to some degree.) Indeed, Sean argued (if I am restating it correctly) that essentially positive preferences for any group are essentially the same, such that discrimination "for" blacks was as bad as discrimination against them (and you can replace "black" with white or Hispanic or what have you here).

Thompson argues that this places many, many programs to address racial programs at risk, as in the end, they all hinge on treating one group differently than another or end up displacing some people who would otherwise have received a job, promotion, or college acceptance. (He uses the example of the 10% programs, where, for example, Texas admits the top 10% of students in their high school class, a supposedly "race-neutral" way of achieving the end of diversity and representation of minorities. As has been pointed out by others, this only works because Texas schools are segregated, thus, you get diverse representation because the top 10% of the class at predominantly black or Latino schools is itself predominantly black, so minorities get represented essentially because they are not integrated (or have lower relative average scores where they are more integrated). As Thompson says:

The university now admits any student in the top 10 percent of his or her public high-school class, and because so many of the public schools in Texas are racially segregated, this guarantees a racially diverse student body. Opponents of race-conscious affirmative action have pointed to this policy as an example of a viable, race-neutral alternative. But no one denies that the motivation for dropping the traditional admissions criteria in favor of the 10 percent plan is to achieve a better racial mix. Extending the logic of Ricci, this looks like impermissible race discrimination against the students who would have been admitted under the old criteria, just as dropping the firefighter promotion exam was impermissible race discrimination against the white firefighters who would have been promoted.

I think this poses a challenge to those who agree with the Ricci decision, unless they hold the very narrow stance that it is only because the test already happened that it was unfair discrimination. As Thompson points out, how would the case be (legally) different if, before the test, the city chose to use one test that they knew from previous data would tend to favor a more diverse mix (i.e. less whites and more minorities) rather than a test that would favor more whites. The intent there is almost exactly the same as throwing out the results for, as some of my friends posed it, "having too many white people". So if Ricci is unfairly discriminating against whites, using a test that you know would admit more minorities also should be, to be logically consistent.

The second point, which you may have forgotten I even supposedly had at this point, is that Ford reiterates that Ricci is a change in the status quo. As J-Mom AND the article by Bazelon I've prattled about here for the past week pointed out, the previous standard for a "discriminatory" test was just that the results were discriminatory. Governments typically used an "80% rule":

Title VII requires employers not just to inspect their hearts and not find any discriminatory intent, but to consider the racial impact of things like tests. And the EEOC, in interpreting this requirement, has given clear guidance about what impact counts as suspect:

"A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact."

The rates at which blacks and Hispanics passed the New Haven tests were well below 80% of the rate at which whites passed. That means that those tests were presumptively in violation of the law. (from Obsidian Wings)

Thus, the Court set aside the typical way things were done, where (as I have pointed out to J-friends), a test that has that much racial disparity is presumptively discriminatory, which seems to me a fine first pass at such things in a world of institutional discrimination, which I see as a very large on-going problem, contra J-friend EssEee.

As to the earlier point over the "fairness" to the individual, two other interesting bits:

Obsidian Wings: I have read many professions of outrage about this decision, but most of them focus on whether it is a good thing or a bad thing that Frank Ricci didn't get his promotion, rather than what the law requires. This puzzled me.

And Walter Dellinger:

Given that no one had been promoted and no one had been denied promotion, it's very hard to see how the firefighters who brought suit were able to establish the very first element of a Title VII action: the existence of an "adverse employment action." In addition to satisfying the statute, it would have been far better for the process to judge New Haven actions after promotion decisions were actually made using whatever new standards the city chose to adopt. Completing the process would have shed light on the question of whether there were in fact equally good (or perhaps, better) criteria for determining promotions, and with far less racial disproportion... Which takes us to the fact that Justice Kennedy's opinion relies in part on a logically flawed, categorical error. He writes: "If an employer cannot rescore a test based on the candidates' race [citing the Title VII provision], then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates..." This is wrong. There is a very powerful difference between setting aside the results of a test based on what you learn from general racial statistics about those who took the test, on the one hand, and adjusting individual test scores on the basis of race, on the other... Using race to identify a problem has never before been considered problematic. It is what necessarily happens before institutions adopt the most widely accepted race-neutral actions, like using admissions criteria for every applicant that have less of a racial impact (for example, accepting students in the top 10 percent of their high-school class, which, in states like Texas, would produce a racially diverse student body). Contrary to Kennedy's assertion, deciding not to use test results should be far less problematic than "rescoring based on race." ...Here, all New Haven did was set aside the results of a test. It seems to me that test would have been very hard to defend, given the other questionable employment rules that surrounded it. New Haven counts the multiple-choice test as 60 percent of what determines promotion. That places twice the weight on test-taking as the median for firefighter promotions around the country. How can that unusually great a weight be justified? Kennedy says only that it was insisted upon by the union. Yep. That was two decades ago, when the union was dominated by the white firefighters. That so great a weight should necessarily be given to a multiple-choice test used to pick leaders out of a group of qualified firefighters is hard to see.

Going back to Ford to wrap up, he asks:

And why stop there? Even recruitment efforts aimed at underrepresented minorities are designed to increase the representation of those groups in work forces and entering classes with a limited number of openings. If these outreach efforts are successful, some minorities will necessarily displace some whites who would otherwise have been hired or admitted. Are those efforts discriminatory, too?

Among other things, I see this case as reflecting a problem of where many want us to be, especially in white America, and where we actually are (or at least how we perceive it in black America, to speak in broad generalities). If you think racism is a significant and real, persistent still-present problem, interventions of a certain size, from affirmative action to throwing out the New Haven test (which depending on how you look at it, was unfair to those who would have been promoted based on how the test was set up before hand by taking away what they'd earned, or would have been permissible because it threw out results based on the heretofore legally correct presumption that such skewed results were de facto racist) seem reasonable. If you think, know, or wish that racism has receded to the point where a lot less aggressive, race-blind, and minor intervention is all that's needed, it seems understandable to take it from Ricci's side.

Argh. Ok, I have a headache now (unrelated to the post, I think). Até...

GoldFISHER... The Waste with the Supreme Court Touch

Ok, that title is horrible.

BUT, so (seemingly) is the Supreme Court decision in Coeur Alaska v. Southeast Alaska Conservation Council. AND, the seeming complete LACK of analysis of this decision anywhere other than The Colbert Report. (If you can find some other good analyses, please let us at the Continuum know.)

From Colbert and quick skimming of other sources, it seems to be that a gold company in Alaska got permission from the Army Corps of Engineers to dispose of "tailings" from a gold mine but filling up a lake of a depth of 75 ft or so to a depth of 74 ft, killing (of course) everything in the lake, what with the lake becoming a "kiddie pool" and the toxic nature of the "tailings."

Apparently, the issue was: the gold mine waste is technically "fill" and "fill" is under the jurisdiction of the Army Corps of Engineers, not the EPA, which only has jurisdiction of "waste". So the toxic fill could be used to fill up the lake because it wasn't toxic waste, but toxic fill. Somehow involved in this was a Bush Administration regulation (I believe they changed it so that "fill" was no longer covered by the EPA, but I could be off on that), and the Court ruled that it should give deference to the EPA's own interpretation of its regulations, such that apparently filling up a lake with toxic fill isn't the same as filling it up with toxic waste. (This seems to me to clash with Scalia's untenuous philosophy of using only the "plain sense meaning" of laws, but whatever.)

I'd really like to read more in depth analysis of this case, but it seems to be lacking. I guess we're too busy with celebrity deaths, strip-searching teenagers, and firefighters.

Actual SCOTUS decision is here.

Deforestation for Sustainable Development neither Develops nor is Sustainable

A recent study by Rodrigues et al. finds that development projects in the Brazilian Amazon didn't really increase people's long-term quality of life (there was an increasing quality of life as deforestation began and then it decreased back to a similarly low point as it started at). Among other things, this sort of belies (yet again) what's been called the environmental Kuznet's curve, roughly speaking, the idea that the economy has to "develop" or expand before you can "afford" environmental protection. If you in the end neither provide measurable development nor protect the environment, well... Anyway. Bjorn Lomborg: 0; Reality: Many.

There's much more to be said about development, resource use, sustainability, and the economics, politics and forces at work encouraging deforestation and supposed development scheme, but they won't be said right now.

Once again, Ruth Bader Ginsberg proves to be the Voice of the J Continuum

God love her. Though I still can't see how RBG and Scalia are supposedly personal friends; I guess they don't let politics get in the way, which in a way is admirable, and another way, kind of... blergh. I guess it's mostly admirable, but it's weird to me: "You have a fundamentally different view of justice, rights, appropriate behavior, and the roll of state than I do, to the point that where I see oppression, you see correctness, where I see sound reasoning you see soft-headedness, and where you see correctness, I see incorrect or wistful interpretation, and continuing of an oppressive system." I guess it's good -- and much needed -- to have friendship across political lines, but when it's someone like Scalia... It'd just be weird hanging with someone who not only differs with you on, say, whether or not the state should put people to death and what constitutes torture, but has and has used his position (quite correctly) to advance his views. (Like I say, it's of course correct for Scalia to do so, it just adds a creepy element to political disagreements, when you each have the power to make your stance part of the "correct" interpretation of the laws of the land.)

Anyway, Emily Bazelon returns to my good graces with this in her recent post on the recent Ricci decision:

Why all the competitive storytelling? The Supreme Court's ruling today will apply whenever cities try to base promotions (or, by extension, hirings) on a procedure that turns out to eliminate most or all of the minority candidates. This is called disparate impact, and Congress wrote it into Title VII in 1991. New Haven's test for promoting firefighters had such a disparate impact—that's one thing all the justices do agree on. The question is, What happens next? Can the city say, hey, we think there's another better way to make these promotions that won't leave us with a fire department led only or mostly by white people; now let us go figure that out? Until today, the answer seemed to be yes. Now the answer is clearly no. If a city in this position sees a disparate impact problem coming toward it like a right, it can only step out of the way if it has, as Linda explains, a "strong basis in evidence" for thinking that the test can't be defended—in other words, that the test it used is more job-related, and a better measure of performances, than the other measures of assessment it didn't use.

The city can't throw out its test even though the results allow for the promotions of no black firefighters because it would be making such a decision based on race or, as Kennedy writes, because "the City rejected the test results because the higher scoring candidates were white." He is treating the decision to throw out the test and start over as an absolute racial preference. Here is where the bad facts come in: Frank Ricci and the other white (and one Hispanic) firefighters who sued did what they were supposed to do. They studied for the test the city offered, and they scored the highest. But they didn't get the promotions they felt entitled to because no black firefighters scored as well. Justice Ginsburg points out that Ricci and his fellow plaintiffs "had no vested right to promotion." She's right. But to the majority, that doesn't really matter, because the majority focuses only on this test and this round of promotions in New Haven. And when you frame the case that way, Frank Ricci and his dashed hopes take up the whole screen. At which point, you think about justice for them and only them.

Ginsburg widens the lens. She goes back to the early 1970s, when African-Americans and Hispanics made up 30 percent of New Haven's population and only 3.6 of the city's 502 firefighters. This is when the black firefighters in New Haven started suing. Their efforts yielded much better representation among the rank-and-file in the department. But as Ginsburg says, not among the fire department's leadership: "The senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Departments' 21 fire captains is African American." (More from me about the history of New Haven's fire department here.) New Haven threw out the test results because it was trying to rectify that imbalance. To Ginsburg, this should surely be permissible—a city trying voluntarily to comply with Congress' 1991 mandate to address disparate impact.

And then, Ginsburg points out, the majority raises the bar for what New Haven must show to justify throwing out these test results. Kennedy dismisses as "stray facts" in the record the doubts raised about how the test was weighted—60 percent written, 40 percent oral—and the city's proposal to replace the test with an assessment center, which are designed to evaluate the particular skills needed for a job. But Ginsburg sees that the 60-40 weighting simply reflects the demands of the union—the same union that filed its own suit against the city in support of Frank Ricci. And she sees the merit of the assessment centers as an alternative measure. "Relying heavily on written tests to select fire officers is a questionable practice, to say the least," she writes. "Successful fire officers, the City's description of the position makes clear, must have the '[a]bility to lead personnel effectively, maintain discipline, promote harmony, exercise sound judgment, and cooperate with other officials.' These qualities are not well measured by written tests." No wonder, in Ginsburg's view, a 1996 study found that two-thirds of the cities surveyed were using assessment centers in making promotion decisions.

They make a good point that I've been (inadvertently) dancing around with my fellow discussants in other fora: the (reasonable) sympathy evinced for Ricci and his fellow white (and one hispanic) firefighters in this case is in conflict with the institutional history and less acute but nonetheless real plight of black firefighters in New Haven. And I would differ with my friend EssEee (Sean) who sees institutional racism as less of a problem than institutional discrimination against poverty; I guess part of my counterexample would be the various problems women have with equality of management positions, salary, and promotion (see i.e. Lilly Ledbetter), where the problems of disparity and inequality for women is, if not completely distinct from poverty, relatively so.