|
DevinMcDougallFirstPaper 17 - 22 Aug 2010 - Main.DevinMcDougall
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| | | Ideologies and institutions | |
<
< | Ideologies can be thought of as resources, because they can help build and hold together things, like institutions. "Creed" is a colorful shorthand term used by Thurman Arnold for ideologies. Arnold shies away from precisely defining his concept of a creed, believing precision in definition can inhibit, rather than enhance understanding. 33. However, in his discussion, he indicates that a creed is a system of unconscious beliefs that serve as categories of perception which organize reality and rationalize the status quo. They serve as an organizational glue for groups any significant size, from cities to corporations to countries. | >
> | Ideologies can be thought of as resources, because they can help build and hold together things, like institutions. "Creed" is a colorful shorthand term used by Thurman Arnold for ideology. Arnold shies away from precisely defining his concept of a creed, believing precision in definition can inhibit, rather than enhance understanding. 33. However, in his discussion, he indicates that a creed is a system of unconscious beliefs that serve as categories of perception which organize reality and rationalize the status quo. They serve as an organizational glue for groups any significant size, from cities to corporations to countries. | | | Creeds do so through specifying a panoply of deities as examples of qualities to be emulated or scorned. For example, Arnold identifies the American businessman as the primary divinity of the American creed. The Devil, conversely, is represented by government interference. 37. | | | III. Climate change and the creed of expertise | |
<
< | Climate change brings the issues of expertise to a head, since it pits the scientific community against powerful status quo interests. Yet Arnold is doubtful that the so-called “Thinking Man,” the notional rational citizen who is responsive to scientific pleas, has much political power. | >
> | Climate change brings the issues of expertise to a head, since it pits the scientific community against powerful status quo interests. Arnold is doubtful that the so-called “Thinking Man,” the notional rational citizen who is responsive to scientific pleas, has much political power. | | | Yet, paradoxically, expertise can be a creed itself. Scientists in the United States benefit not only from scientific authority emanating from their curriculum vitae, but also a kind of moral authority emanating from their white lab coats. | |
<
< | Environmentalists can make use of the creed of expertise to advance stronger climate policies. It may be that complex scientific arguments, qua arguments, generate little political force, because most citizens will not be interested in assessing climatological arguments on the merits. However, being able to claim the mantle of science can help bolster claims about policy. The key issue is to avoid being drawn “down into the weeds” of scientific minutiae, but to articulate the big-picture message that the side of the environmentalists is the side supported by science. | >
> | Environmentalists can make use of the creed of expertise to advance stronger climate policies. It may be that complex scientific arguments, qua arguments, generate little political force, because most citizens will not be interested in assessing climatological arguments on the merits. However, being able to claim the mantle of science can help bolster and legitimize claims about policy. The key issue is to avoid being drawn “down into the weeds” of scientific minutiae, but rather to articulate the big-picture message that science is on the side of the environmentalists. | | | This is not to endorse postmodernist spin: the environmentalists possess the considerable advantage that the policies they advocate actually do accord with what the best science tells us about how to protect the conditions of human flourishing. The challenge will be to get that message out, quickly, and effectively. |
|
|
DevinMcDougallFirstPaper 16 - 10 Jul 2010 - Main.DevinMcDougall
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
>
> | | | | Climate Change, Creeds, and Expertise
I. A problem: Climate change is a priority justice issue | |
<
< | There is an international scientific consensus that climate change is real, and that it will hurt us badly and our children worse. Thus, it is past time to focus public debate on the justice dimension of climate change. Climate change should be considered a top priority justice issue because it is a phenomenon which will inflict great amounts of irreversible damage on many people, organisms and places. This damage is unjust because it can be ameliorated but we are not taking the steps necessary to do so. | >
> | There is an international scientific consensus that climate change is real, and that it will hurt us badly and our children worse. Thus, it is past time to focus public debate on the justice dimension of climate change. Climate change should be considered a top priority justice issue because it is a phenomenon which will inflict great amounts of irreversible damage on many people, organisms and places. This damage is unjust because it can be ameliorated but we are not taking the steps necessary to do so. | | | Having identified a moral problem which needs to be addressed, the next step is to organize a response. Identifying opportunities and exploiting them requires a strategy, which can be defined as the matching of finite resources to objectives with a plan.
II. A resource: The creed of expertise | |
<
< | Creeds and social institutions | >
> | Ideologies and institutions | | | | |
<
< | A set of resources which have been used to great effect by those seeking change in America are what Thurman Arnold calls creeds. Arnold shies away from precisely defining his concept of a creed, believing precision in definition can inhibit, rather than enhance understanding. 33. However, in his discussion, he indicates that a creed is a system of unconscious beliefs that serve as categories of perception which organize reality and rationalize the status quo. | >
> | Ideologies can be thought of as resources, because they can help build and hold together things, like institutions. "Creed" is a colorful shorthand term used by Thurman Arnold for ideologies. Arnold shies away from precisely defining his concept of a creed, believing precision in definition can inhibit, rather than enhance understanding. 33. However, in his discussion, he indicates that a creed is a system of unconscious beliefs that serve as categories of perception which organize reality and rationalize the status quo. They serve as an organizational glue for groups any significant size, from cities to corporations to countries. | | | Creeds do so through specifying a panoply of deities as examples of qualities to be emulated or scorned. For example, Arnold identifies the American businessman as the primary divinity of the American creed. The Devil, conversely, is represented by government interference. 37. |
|
|
DevinMcDougallFirstPaper 15 - 08 Jun 2010 - Main.DevinMcDougall
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | Climate Change, Lawyers and the Limits of Expertise | >
> | Climate Change, Creeds, and Expertise | | | I. A problem: Climate change is a priority justice issue | | | III. Climate change and the creed of expertise | |
<
< | Climate change brings the issues of expertise, the thinking man, and politics to a head. It's an issue that pits the scientific community against powerful status quo interests. This presents a dangerous temptation for many lawyers. Lawyers, especially of the type produced by self-styled elite law schools, have a soft spot for left-brained, linear arguments about policy and expertise. In fact, a section of Torts at Columbia this fall skipped intentional torts altogether, spending the bulk of the semester on products liability policy. | | | | |
<
< | As Arnold observes, however, appeals to the thinking man rarely carry the day in American politics - because of the power of creeds over social psychology. Yet, as argued above, expertise can be conceptualized not only as a check on the influence of creeds on the thinking man, but as a creed itself. Scientists in the United States benefit not only from scientific authority emanating from their curriculum vitae, but also a kind of moral authority emanating from their white lab coats. | >
> | Climate change brings the issues of expertise to a head, since it pits the scientific community against powerful status quo interests. Yet Arnold is doubtful that the so-called “Thinking Man,” the notional rational citizen who is responsive to scientific pleas, has much political power. | | | | |
<
< | This creed can be helpful, in certain contexts. Massachusetts v. EPA. "protect expertise from politics" | >
> | Yet, paradoxically, expertise can be a creed itself. Scientists in the United States benefit not only from scientific authority emanating from their curriculum vitae, but also a kind of moral authority emanating from their white lab coats. | | | | |
<
< | BUT: mentioned above: ultimately a moral problem. About taking things from some people and giving them to other people who need them more. | >
> | Environmentalists can make use of the creed of expertise to advance stronger climate policies. It may be that complex scientific arguments, qua arguments, generate little political force, because most citizens will not be interested in assessing climatological arguments on the merits. However, being able to claim the mantle of science can help bolster claims about policy. The key issue is to avoid being drawn “down into the weeds” of scientific minutiae, but to articulate the big-picture message that the side of the environmentalists is the side supported by science. | | | | |
<
< | Lawyers: cannot be bewitched by the science. Larry Lessig. The difference between a scholar and a lawyer. "When Eric Eldred's crusade to save the public domain reached the Supreme Court, it needed the help of a lawyer, not a scholar."
Examine the politics of Massachusetts v. EPA: the rationale of the decision was it was defending administrative expertise from executive-branch political interference. However, many observers believe the key to winning the 5-4 decision was the way in which the arguments were set up to win Anthony Kennedy's swing vote. Special solicitude to states. State attorneys general. | >
> | This is not to endorse postmodernist spin: the environmentalists possess the considerable advantage that the policies they advocate actually do accord with what the best science tells us about how to protect the conditions of human flourishing. The challenge will be to get that message out, quickly, and effectively. |
|
|
DevinMcDougallFirstPaper 14 - 06 Apr 2010 - Main.DevinMcDougall
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | Climate Change, Lawyers and the Creed of Expertise | >
> | Climate Change, Lawyers and the Limits of Expertise | | | I. A problem: Climate change is a priority justice issue | | | The vast American administrative state came to be legitimized through a creed of expertise. Congress justifies delegating great decision-making discretion to agencies, and thus avoiding themselves the political costs of making a decision, on grounds of the powers that experts possess a unique ability to identify the correct answer to the problems at hand. The power of these agencies is legitimated through a belief that it is not politics which motivates their decisions, but apolitical expertise. Thus, the devil of government interference gains a toehold in the American imagination through the wiles of his apprentice demon, the expert. | |
>
> | III. Climate change and the creed of expertise | | | | |
<
< | III. A strategy: Climate change and the creed of expertise
Lawyers can zealously represent the interests of those seeking stronger climate policies in the United States through mobilizing the motifs of the creed of expertise. The political economy of the United States is quite friendly to business interests, but the creed of expertise represents a potentially countervailing source of legitimacy. This is well understood by major environmental advocacy groups, who almost invariably couch their appeals in the terminology of science, rather than morals or politics. As Damon Moglen, Global Warming Campaign Director for Greenpeace, put it in a recent interview: "Our position is that we have to listen to the science, not the politics."
It can be difficult to tease lessons out of the contingency of the past, but the 2007 Supreme Court case Massachusetts v. EPA represents an instance in which expertise-based appeals found a way through the byzantine pathways of the federal administrative state and achieved a highly consequential victory for stronger climate policies. | >
> | Climate change brings the issues of expertise, the thinking man, and politics to a head. It's an issue that pits the scientific community against powerful status quo interests. This presents a dangerous temptation for many lawyers. Lawyers, especially of the type produced by self-styled elite law schools, have a soft spot for left-brained, linear arguments about policy and expertise. In fact, a section of Torts at Columbia this fall skipped intentional torts altogether, spending the bulk of the semester on products liability policy. | | | | |
<
< | MA v. EPA originated as a rulemaking petition in 1999, which requested that the EPA regulate greenhouse gas emissions under the Clean Air Act. The Bush administration denied the petition in 2003, and environmental groups sued under Section 307 of the Clean Air Act, which authorizes the D.C. Circuit to overturn agency decisions which are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” This provision enables the punishment of agency decisions which a court finds stray from expertise into caprice or politicization. The D.C. Circuit ruled in favor of EPA, but on appeal, the Supreme Court found the EPA’s decision to be “arbitrary and capricious,” and ordered EPA to conduct a formal endangerment finding to determine whether greenhouse gases constitute a threat to human health and welfare, and issue the regulation if they find they do. | >
> | As Arnold observes, however, appeals to the thinking man rarely carry the day in American politics - because of the power of creeds over social psychology. Yet, as argued above, expertise can be conceptualized not only as a check on the influence of creeds on the thinking man, but as a creed itself. Scientists in the United States benefit not only from scientific authority emanating from their curriculum vitae, but also a kind of moral authority emanating from their white lab coats. | | | | |
<
< | Under the standard established by Chevron v. NRDC, courts are instructed to review agency decisions deferentially, in recognition of agency expertise. However, in MA v. EPA, the court nonetheless found that EPA, in denying to take any steps to investigate the risks of greenhouse gas emissions, had fallen outside the area of expertise and into politicization. Jody Freeman and Adrian Vermeule characterize the MA v. EPA decision as representing an attempt by the Supreme Court at “expertise forcing,” and write: “Whereas the Chevron worldview sees democratic politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which politics and expertise are fundamentally antagonistic.”
As Arnold might observe, a sign of the vitality and flexibility of the creed of expertise is that its invocation can serve both as a rationale for deference to agency decisions, as in Chevron, or as a rationale for judicial intervention to police politicization of agency work, as in MA v. EPA.
The decision of how to regulate greenhouse gases profoundly affects who gets what, when, and how, and therefore, to paraphrase Harold Lasswell, is essentially political. However, framing the issue as a technical one, and formulating an appeal before the judiciary that draws on the tropes of the creed of expertise can sometimes provide a means of intervening into the policymaking process of the other political branches. Whether the Court will continue to be sympathetic to these expertise-based appeals for judicial intervention in the future is uncertain. However, any addition to the quiver of those seeking stronger policies may be welcomed.
In my view, the basic
problem here is that the essay says a great deal less than it seems
to say:
- Global warming is a serious problem we should do something about;
- Experts will be tend to be persuasive;
- Courts may or may not defer to expert opinion, but everything that tends to persuade courts sometimes is useful.
I admit that #3 sounds especially jejune and pitiful, but it's the
actual conclusion expressed in the last two sentences of your essay,
after all the Arnoldian windup. Quoting my brother is cute, but that
does nothing to counteract the "less here than meets the eye" problem,
because the statement you quote is nothing but lobbyist boilerplate,
as you point out yourself. In the end, it's just another appeal to
"the thinking man," who—as Arnold would say—listens to the
scientists, not to the politicians.
You push the "Chevron deference" point much too far.
Chevron stands for a narrower but still highly important principle,
that the agencies are the parties best positioned to understand in
context the Congressional intention embodied in the statutes whose
provisions they administer. It is understood to mean that when the
Securities and Exchange Commission interprets the Securities Exchange
Act or the National Labor Relations Board the NLRA, for example, the
courts ought not lightly to disturb their readings. This may well
lead to the conclusion that the Environmental Protection Agency is
entitled to deference concerning its conclusion that carbon dioxide is
an "air pollutant" within the meaning of the Clean Air Act. But it
doesn't imply that the EPA is entitled to deferential review of all
the other sorts of decisions it makes in the course of its business
that don't involve statutory interpretation. (Hence the
non-deferential view the Court takes on the other critical point
involved in the case you discuss, which is whether the agency's
conclusion that there exists substantial scientific uncertainty is in
itself a sufficient rationale for refusal to regulate.)
There are Arnoldian things to say about the politics of global
warming, to be sure. I feel quite sure that you can find some that
will result in an interesting essay. But this draft takes too easy a
road, and returns with too little to show for the trip. | >
> | This creed can be helpful, in certain contexts. Massachusetts v. EPA. "protect expertise from politics" | | | | |
>
> | BUT: mentioned above: ultimately a moral problem. About taking things from some people and giving them to other people who need them more. | | | | |
<
< | | >
> | Lawyers: cannot be bewitched by the science. Larry Lessig. The difference between a scholar and a lawyer. "When Eric Eldred's crusade to save the public domain reached the Supreme Court, it needed the help of a lawyer, not a scholar."
Examine the politics of Massachusetts v. EPA: the rationale of the decision was it was defending administrative expertise from executive-branch political interference. However, many observers believe the key to winning the 5-4 decision was the way in which the arguments were set up to win Anthony Kennedy's swing vote. Special solicitude to states. State attorneys general. |
|
|
DevinMcDougallFirstPaper 13 - 27 Mar 2010 - Main.EbenMoglen
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
Climate Change, Lawyers and the Creed of Expertise | | | As Arnold might observe, a sign of the vitality and flexibility of the creed of expertise is that its invocation can serve both as a rationale for deference to agency decisions, as in Chevron, or as a rationale for judicial intervention to police politicization of agency work, as in MA v. EPA.
The decision of how to regulate greenhouse gases profoundly affects who gets what, when, and how, and therefore, to paraphrase Harold Lasswell, is essentially political. However, framing the issue as a technical one, and formulating an appeal before the judiciary that draws on the tropes of the creed of expertise can sometimes provide a means of intervening into the policymaking process of the other political branches. Whether the Court will continue to be sympathetic to these expertise-based appeals for judicial intervention in the future is uncertain. However, any addition to the quiver of those seeking stronger policies may be welcomed. | |
>
> | In my view, the basic
problem here is that the essay says a great deal less than it seems
to say:
- Global warming is a serious problem we should do something about;
- Experts will be tend to be persuasive;
- Courts may or may not defer to expert opinion, but everything that tends to persuade courts sometimes is useful.
I admit that #3 sounds especially jejune and pitiful, but it's the
actual conclusion expressed in the last two sentences of your essay,
after all the Arnoldian windup. Quoting my brother is cute, but that
does nothing to counteract the "less here than meets the eye" problem,
because the statement you quote is nothing but lobbyist boilerplate,
as you point out yourself. In the end, it's just another appeal to
"the thinking man," who—as Arnold would say—listens to the
scientists, not to the politicians.
You push the "Chevron deference" point much too far.
Chevron stands for a narrower but still highly important principle,
that the agencies are the parties best positioned to understand in
context the Congressional intention embodied in the statutes whose
provisions they administer. It is understood to mean that when the
Securities and Exchange Commission interprets the Securities Exchange
Act or the National Labor Relations Board the NLRA, for example, the
courts ought not lightly to disturb their readings. This may well
lead to the conclusion that the Environmental Protection Agency is
entitled to deference concerning its conclusion that carbon dioxide is
an "air pollutant" within the meaning of the Clean Air Act. But it
doesn't imply that the EPA is entitled to deferential review of all
the other sorts of decisions it makes in the course of its business
that don't involve statutory interpretation. (Hence the
non-deferential view the Court takes on the other critical point
involved in the case you discuss, which is whether the agency's
conclusion that there exists substantial scientific uncertainty is in
itself a sufficient rationale for refusal to regulate.)
There are Arnoldian things to say about the politics of global
warming, to be sure. I feel quite sure that you can find some that
will result in an interesting essay. But this draft takes too easy a
road, and returns with too little to show for the trip.
|
|
|
DevinMcDougallFirstPaper 12 - 15 Mar 2010 - Main.DevinMcDougall
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
Climate Change, Lawyers and the Creed of Expertise | | | III. A strategy: Climate change and the creed of expertise | |
<
< | Lawyers can zealously represent the interests of those seeking stronger climate policies in the United States through mobilizing the motifs of the creed of expertise. The political economy of the United States is quite friendly to business interests, but the creed of expertise represents a potentially countervailing source of legitimacy. This is well understood by major environmental advocacy groups, who almost invariably couch their appeals in the terminology of science, rather than morals. | >
> | Lawyers can zealously represent the interests of those seeking stronger climate policies in the United States through mobilizing the motifs of the creed of expertise. The political economy of the United States is quite friendly to business interests, but the creed of expertise represents a potentially countervailing source of legitimacy. This is well understood by major environmental advocacy groups, who almost invariably couch their appeals in the terminology of science, rather than morals or politics. As Damon Moglen, Global Warming Campaign Director for Greenpeace, put it in a recent interview: "Our position is that we have to listen to the science, not the politics." | | | It can be difficult to tease lessons out of the contingency of the past, but the 2007 Supreme Court case Massachusetts v. EPA represents an instance in which expertise-based appeals found a way through the byzantine pathways of the federal administrative state and achieved a highly consequential victory for stronger climate policies. |
|
|
DevinMcDougallFirstPaper 7 - 28 Feb 2010 - Main.DevinMcDougall
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
Climate Change, Lawyers and the Creed of Expertise | | | MA v. EPA originated as a rulemaking petition in 1999, which requested that the EPA regulate greenhouse gas emissions under the Clean Air Act. The Bush administration denied the petition in 2003, and environmental groups sued under Section 307 of the Clean Air Act, which authorizes the D.C. Circuit to overturn agency decisions which are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” This provision enables the punishment of agency decisions which a court finds stray from expertise into caprice or politicization. The D.C. Circuit ruled in favor of EPA, but on appeal, the Supreme Court found the EPA’s decision to be “arbitrary and capricious,” and ordered EPA to conduct a formal endangerment finding to determine whether greenhouse gases constitute a threat to human health and welfare, and issue the regulation if they find they do. | |
<
< | Under the standard established by Chevron v. NRDC, courts are instructed to review agency decisions deferentially, in recognition of agency expertise. However, in MA v. EPA, the court nonetheless found that EPA, in denying to take any steps to investigate the risks of greenhouse gas emissions, had fallen outside the area of expertise and into politicization. Jody Freeman and Adrian Vermeheule characterize the MA v. EPA decision as representing an attempt by the Supreme Court at “expertise forcing,” and write: “Whereas the Chevron worldview sees democratic politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which politics and expertise are fundamentally antagonistic.” | >
> | Under the standard established by Chevron v. NRDC, courts are instructed to review agency decisions deferentially, in recognition of agency expertise. However, in MA v. EPA, the court nonetheless found that EPA, in denying to take any steps to investigate the risks of greenhouse gas emissions, had fallen outside the area of expertise and into politicization. Jody Freeman and Adrian Vermeule characterize the MA v. EPA decision as representing an attempt by the Supreme Court at “expertise forcing,” and write: “Whereas the Chevron worldview sees democratic politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which politics and expertise are fundamentally antagonistic.” | | | As Arnold might observe, a sign of the vitality and flexibility of the creed of expertise is that its invocation can serve both as a rationale for deference to agency decisions, as in Chevron, or as a rationale for judicial intervention to police politicization of agency work, as in MA v. EPA. |
|
|
DevinMcDougallFirstPaper 6 - 26 Feb 2010 - Main.DevinMcDougall
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
Climate Change, Lawyers and the Creed of Expertise
I. A problem: Climate change is a priority justice issue | |
<
< | Climate change is an issue which is frequently cast in popular discourse in scientific terms. This is due in part to the fact that climate change is a highly complex phenomenon which unfolds on a time scale which is rather long compared to contemporary attention spans. But mostly the framing of climate change as a scientific issue is the result of a successful campaign by skeptics and status-quo interests to sow doubt about the science of climate change. The recent kerfuffle over the emails stolen from the East Anglia Climatic Research Unit is an example of these efforts.
Despite these complexities and obfuscations, there is an international scientific consensus that climate change is real, and that it will hurt us badly and our children worse. Thus, it is past time to focus public debate on the justice dimension of climate change. Climate change should be considered a top priority justice issue because it is a phenomenon which will inflict great amounts of irreversible damage on many people, organisms and places. This damage is unjust because it can be ameliorated but we are not taking the steps necessary to do so. | >
> | There is an international scientific consensus that climate change is real, and that it will hurt us badly and our children worse. Thus, it is past time to focus public debate on the justice dimension of climate change. Climate change should be considered a top priority justice issue because it is a phenomenon which will inflict great amounts of irreversible damage on many people, organisms and places. This damage is unjust because it can be ameliorated but we are not taking the steps necessary to do so. | | | Having identified a moral problem which needs to be addressed, the next step is to organize a response. Identifying opportunities and exploiting them requires a strategy, which can be defined as the matching of finite resources to objectives with a plan. | |
<
< | | | | II. A resource: The creed of expertise
Creeds and social institutions | | | A set of resources which have been used to great effect by those seeking change in America are what Thurman Arnold calls creeds. Arnold shies away from precisely defining his concept of a creed, believing precision in definition can inhibit, rather than enhance understanding. 33. However, in his discussion, he indicates that a creed is a system of unconscious beliefs that serve as categories of perception which organize reality and rationalize the status quo. | |
<
< | Creeds are rarely internally rational and their substance matter little, as their primary function is to structure thought and promote unity. Creeds do so through specifying a panoply of deities as examples of qualities to be emulated or scorned. For example, Arnold identifies the American businessman as the primary divinity of the American creed. The Devil, conversely, is represented by government interference. 37. Arnold describes how Yale Law School sought to emulate the methods of industrial production of the corporation, before the corporation’s (ultimately temporary) fall from grace in the New Deal. | >
> | Creeds do so through specifying a panoply of deities as examples of qualities to be emulated or scorned. For example, Arnold identifies the American businessman as the primary divinity of the American creed. The Devil, conversely, is represented by government interference. 37. | | | The creed of expertise | |
<
< | If the New Deal represented in the American imagination a titanic battle between the avatars of government and business, one of the lesser deities which profited from the conflict and developed its own minor creed was the expert. During the New Deal, President Roosevelt recruited a corps of bright lawyers, including Felix Cohen and Thurman Arnold, to help administer the complex new “alphabet soup” of agencies created. | >
> | If the New Deal represented in the American imagination a titanic battle between the avatars of government and business, one of the lesser deities which profited from the conflict and developed its own minor creed was the expert. During the New Deal, President Roosevelt recruited a corps of bright lawyers, including Felix Cohen and Thurman Arnold, to help administer the complex new "alphabet soup" of agencies created. | | | | |
<
< | The vast American administrative state came to be legitimized through a creed of expertise. Congress justifies delegating great decision-making discretion to agencies, and thus avoiding themselves the political costs of making a decision, on grounds of the powers that experts possess a unique ability to identify the correct answer to the problems at hand. The power of these agencies is legitimated through a belief that it is not politics which motivates their decisions, but apolitical expertise. Thus, the devil of government interference gains a toehold in the American imagination only through the wiles of his lesser demon, the expert. | >
> | The vast American administrative state came to be legitimized through a creed of expertise. Congress justifies delegating great decision-making discretion to agencies, and thus avoiding themselves the political costs of making a decision, on grounds of the powers that experts possess a unique ability to identify the correct answer to the problems at hand. The power of these agencies is legitimated through a belief that it is not politics which motivates their decisions, but apolitical expertise. Thus, the devil of government interference gains a toehold in the American imagination through the wiles of his apprentice demon, the expert. | | |
III. A strategy: Climate change and the creed of expertise
Lawyers can zealously represent the interests of those seeking stronger climate policies in the United States through mobilizing the motifs of the creed of expertise. The political economy of the United States is quite friendly to business interests, but the creed of expertise represents a potentially countervailing source of legitimacy. This is well understood by major environmental advocacy groups, who almost invariably couch their appeals in the terminology of science, rather than morals. | |
<
< | It can be difficult to tease lessons out of the contingency of the past, but the Massachusetts v. EPA case represents an instance in which expertise-based appeals wove a way through the hardened arteries of the federal government and achieved a highly consequential victory for stronger climate policies. | | | \ No newline at end of file | |
>
> | It can be difficult to tease lessons out of the contingency of the past, but the 2007 Supreme Court case Massachusetts v. EPA represents an instance in which expertise-based appeals found a way through the byzantine pathways of the federal administrative state and achieved a highly consequential victory for stronger climate policies.
MA v. EPA originated as a rulemaking petition in 1999, which requested that the EPA regulate greenhouse gas emissions under the Clean Air Act. The Bush administration denied the petition in 2003, and environmental groups sued under Section 307 of the Clean Air Act, which authorizes the D.C. Circuit to overturn agency decisions which are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” This provision enables the punishment of agency decisions which a court finds stray from expertise into caprice or politicization. The D.C. Circuit ruled in favor of EPA, but on appeal, the Supreme Court found the EPA’s decision to be “arbitrary and capricious,” and ordered EPA to conduct a formal endangerment finding to determine whether greenhouse gases constitute a threat to human health and welfare, and issue the regulation if they find they do.
Under the standard established by Chevron v. NRDC, courts are instructed to review agency decisions deferentially, in recognition of agency expertise. However, in MA v. EPA, the court nonetheless found that EPA, in denying to take any steps to investigate the risks of greenhouse gas emissions, had fallen outside the area of expertise and into politicization. Jody Freeman and Adrian Vermeheule characterize the MA v. EPA decision as representing an attempt by the Supreme Court at “expertise forcing,” and write: “Whereas the Chevron worldview sees democratic politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which politics and expertise are fundamentally antagonistic.”
As Arnold might observe, a sign of the vitality and flexibility of the creed of expertise is that its invocation can serve both as a rationale for deference to agency decisions, as in Chevron, or as a rationale for judicial intervention to police politicization of agency work, as in MA v. EPA.
The decision of how to regulate greenhouse gases profoundly affects who gets what, when, and how, and therefore, to paraphrase Harold Lasswell, is essentially political. However, framing the issue as a technical one, and formulating an appeal before the judiciary that draws on the tropes of the creed of expertise can sometimes provide a means of intervening into the policymaking process of the other political branches. Whether the Court will continue to be sympathetic to these expertise-based appeals for judicial intervention in the future is uncertain. However, any addition to the quiver of those seeking stronger policies may be welcomed. |
|
|
DevinMcDougallFirstPaper 5 - 26 Feb 2010 - Main.DevinMcDougall
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
Climate Change, Lawyers and the Creed of Expertise | | | Climate change is an issue which is frequently cast in popular discourse in scientific terms. This is due in part to the fact that climate change is a highly complex phenomenon which unfolds on a time scale which is rather long compared to contemporary attention spans. But mostly the framing of climate change as a scientific issue is the result of a successful campaign by skeptics and status-quo interests to sow doubt about the science of climate change. The recent kerfuffle over the emails stolen from the East Anglia Climatic Research Unit is an example of these efforts. | |
<
< | Despite these complexities and obfuscations, there is an international scientific consensus that climate change is real, and that it will hurt us badly and our children worse. Thus, it is past time to focus public debate on the justice dimension of climate change. Climate change should be considered a top priority justice issue because it is a phenomenon which will inflict great amounts of irreversible damage and unjust suffering on many people. This damage and suffering is unjust because it can be ameliorated but we are not taking the steps necessary to do so. | >
> | Despite these complexities and obfuscations, there is an international scientific consensus that climate change is real, and that it will hurt us badly and our children worse. Thus, it is past time to focus public debate on the justice dimension of climate change. Climate change should be considered a top priority justice issue because it is a phenomenon which will inflict great amounts of irreversible damage on many people, organisms and places. This damage is unjust because it can be ameliorated but we are not taking the steps necessary to do so. | | | | |
<
< | Having identified a moral problem which needs to be addressed, the next step is to organize a foray into politics to alter the conditions which are feeding the problem. Sociologist Harold Lasswell usefully defined politics as the process of determining "who gets what when and how." Identifying political opportunities and exploiting them requires a strategy, which can be defined as the matching of finite resources to objectives with a plan. | >
> | Having identified a moral problem which needs to be addressed, the next step is to organize a response. Identifying opportunities and exploiting them requires a strategy, which can be defined as the matching of finite resources to objectives with a plan. | | | | |
<
< | Lawyers have played an important role in achieving stronger environmental protections in the United States because they have access, through their training, social capital, and law licenses, to resources which can usefully be applied to those objectives. | | | | |
<
< | A set of resources which have been used to great effect by those seeking change in America are what Thurman Arnold calls creeds.
Subsection A
Subsub 1
Subsection B
Subsub 1 | >
> | II. A resource: The creed of expertise | | | | |
>
> | Creeds and social institutions | | | | |
<
< | Subsub 2 | >
> | A set of resources which have been used to great effect by those seeking change in America are what Thurman Arnold calls creeds. Arnold shies away from precisely defining his concept of a creed, believing precision in definition can inhibit, rather than enhance understanding. 33. However, in his discussion, he indicates that a creed is a system of unconscious beliefs that serve as categories of perception which organize reality and rationalize the status quo. | | | | |
>
> | Creeds are rarely internally rational and their substance matter little, as their primary function is to structure thought and promote unity. Creeds do so through specifying a panoply of deities as examples of qualities to be emulated or scorned. For example, Arnold identifies the American businessman as the primary divinity of the American creed. The Devil, conversely, is represented by government interference. 37. Arnold describes how Yale Law School sought to emulate the methods of industrial production of the corporation, before the corporation’s (ultimately temporary) fall from grace in the New Deal. | | | | |
>
> | The creed of expertise | | | | |
<
< | II. A resource: The creed of expertise | >
> | If the New Deal represented in the American imagination a titanic battle between the avatars of government and business, one of the lesser deities which profited from the conflict and developed its own minor creed was the expert. During the New Deal, President Roosevelt recruited a corps of bright lawyers, including Felix Cohen and Thurman Arnold, to help administer the complex new “alphabet soup” of agencies created. | | | | |
<
< | Subsection A | >
> | The vast American administrative state came to be legitimized through a creed of expertise. Congress justifies delegating great decision-making discretion to agencies, and thus avoiding themselves the political costs of making a decision, on grounds of the powers that experts possess a unique ability to identify the correct answer to the problems at hand. The power of these agencies is legitimated through a belief that it is not politics which motivates their decisions, but apolitical expertise. Thus, the devil of government interference gains a toehold in the American imagination only through the wiles of his lesser demon, the expert. | | | | |
<
< | Subsection B | | | III. A strategy: Climate change and the creed of expertise | |
<
< | Case Study: Mass v. EPA | >
> | Lawyers can zealously represent the interests of those seeking stronger climate policies in the United States through mobilizing the motifs of the creed of expertise. The political economy of the United States is quite friendly to business interests, but the creed of expertise represents a potentially countervailing source of legitimacy. This is well understood by major environmental advocacy groups, who almost invariably couch their appeals in the terminology of science, rather than morals.
It can be difficult to tease lessons out of the contingency of the past, but the Massachusetts v. EPA case represents an instance in which expertise-based appeals wove a way through the hardened arteries of the federal government and achieved a highly consequential victory for stronger climate policies. | | | \ No newline at end of file |
|
|
DevinMcDougallFirstPaper 4 - 26 Feb 2010 - Main.DevinMcDougall
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
Climate Change, Lawyers and the Creed of Expertise | |
<
< | Climate Change: A Justice Issue | >
> | I. A problem: Climate change is a priority justice issue | | | | |
<
< | Climate change is an issue which is frequently discussed in scientific terms. In the United States, a substantial number of citizens doubt that the science of climate change is legitimate, leading to the expenditure of much energy on the part of those interested in stronger climate policies simply on defending the science. | >
> | Climate change is an issue which is frequently cast in popular discourse in scientific terms. This is due in part to the fact that climate change is a highly complex phenomenon which unfolds on a time scale which is rather long compared to contemporary attention spans. But mostly the framing of climate change as a scientific issue is the result of a successful campaign by skeptics and status-quo interests to sow doubt about the science of climate change. The recent kerfuffle over the emails stolen from the East Anglia Climatic Research Unit is an example of these efforts. | | | | |
<
< | Despite a well-financed campaign by energy companies to sow scientific doubt, the science is in fact settled, and the most critical dimension of the climate problem now is moral. To connect to a concept frequently discussed in class, climate change represents a justice issue. Climate change should be considered a justice issue because it is a phenomenon which will inflict great amounts of unjust suffering on people. This suffering is unjust because it can be ameliorated but is not. | >
> | Despite these complexities and obfuscations, there is an international scientific consensus that climate change is real, and that it will hurt us badly and our children worse. Thus, it is past time to focus public debate on the justice dimension of climate change. Climate change should be considered a top priority justice issue because it is a phenomenon which will inflict great amounts of irreversible damage and unjust suffering on many people. This damage and suffering is unjust because it can be ameliorated but we are not taking the steps necessary to do so. | | | Having identified a moral problem which needs to be addressed, the next step is to organize a foray into politics to alter the conditions which are feeding the problem. Sociologist Harold Lasswell usefully defined politics as the process of determining "who gets what when and how." Identifying political opportunities and exploiting them requires a strategy, which can be defined as the matching of finite resources to objectives with a plan. | | | | |
<
< | Section II | >
> | II. A resource: The creed of expertise | | | Subsection A
Subsection B | |
>
> | III. A strategy: Climate change and the creed of expertise
Case Study: Mass v. EPA |
|
|
DevinMcDougallFirstPaper 3 - 24 Feb 2010 - Main.DevinMcDougall
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
<
< | As I work on my essay, I thought I would post some ideas I am trying to pull together. | >
> | Climate Change, Lawyers and the Creed of Expertise | | | | |
<
< | Any feedback would be most welcome. | >
> | Climate Change: A Justice Issue | | | | |
<
< | Broadly, I am interested in what lessons I can take from LCS thus far to make me more effective at effecting the changes I would like to see in the world concerning climate change policy. | >
> | Climate change is an issue which is frequently discussed in scientific terms. In the United States, a substantial number of citizens doubt that the science of climate change is legitimate, leading to the expenditure of much energy on the part of those interested in stronger climate policies simply on defending the science. | | | | |
>
> | Despite a well-financed campaign by energy companies to sow scientific doubt, the science is in fact settled, and the most critical dimension of the climate problem now is moral. To connect to a concept frequently discussed in class, climate change represents a justice issue. Climate change should be considered a justice issue because it is a phenomenon which will inflict great amounts of unjust suffering on people. This suffering is unjust because it can be ameliorated but is not. | | | | |
<
< | Positivity, Critique and Persuasion | >
> | Having identified a moral problem which needs to be addressed, the next step is to organize a foray into politics to alter the conditions which are feeding the problem. Sociologist Harold Lasswell usefully defined politics as the process of determining "who gets what when and how." Identifying political opportunities and exploiting them requires a strategy, which can be defined as the matching of finite resources to objectives with a plan. | | | | |
<
< | I do think that part of a successful campaign for stronger climate policy in the United States has to be a positive, detailed vision of a low-carbon future. This idea sort of bubbled up and became clear to me in my dialogue with Ron and Nona about the de Saint Exupery quote she discussed on NonaFarahnikFirstPaper. The idea of focusing one's persuasive efforts on a positive vision rather than criticism is not a new idea. But I think it is nonetheless important generally, and perhaps particularly so in the context of climate activism. | >
> | Lawyers have played an important role in achieving stronger environmental protections in the United States because they have access, through their training, social capital, and law licenses, to resources which can usefully be applied to those objectives. | | | | |
<
< | On reflection, one thing that strikes me about Eben's remarks about the free software movement (linked below) is the symbiosis between positive vision and critique. Part of the reason his appeal to use free software is compelling is the undesirable consequences of proprietary software. Relating back to de Saint Exupery - it may be difficult at times to articulate a positive vision which does not contain elements of critique. More pragmatically, it may be undesirable to do so, because criticism may be a vital means of persuasion. I think the question may resolve into a tactical question about which are the effective buttons to push to motivate a particular audience.
Long-term Strategy
I am intrigued by the possibility of finding lessons for climate activism from the free software movement. Over the weekend I read a speech that Eben gave at Seattle University last March that discussed the strategy and successes of the free software movement. If you haven't read this piece, I recommend it. I am less informed than I would like to be about the history of the free software movement, but from Eben's narrative, it seems to be an example of a social movement struggling relatively successfully against very powerful and wealthy antagonists. Eben states:
"Things have changed. Something is happening which has never happened before, and it changes the outcome of the game. We are exactly where we have always been, with respect to what we want, but the methods of gaining it have changed, and they are now possible in ways that they were never possible before. And the great riddle of romantic socialist politics, the great worry of the French revolution, the great difficulty that has presented itself to every struggle for human equality since the beginning of the struggle, has been lifted in substantial part. Because we now live in a world where we can make enough for everybody with our own hands. Because we are capable of achieving the relationship we needed to achieve: From each according to his ability, and to each according to his need.
...We are ready now.
That doesn’t mean there isn’t any work to do. Fortunately there is plenty of work to do. For lawyers, moreover.
But there is good news about it. Because we have been doing it for a very long time, and it has wearied many a loyal person, and it has worn out many a strong one. The difference is: This time we win."
What is the most effective work for lawyers in climate activism? Are there lessons from the role of lawyers in the free software movement? The role that lawyers have played in social justice movements more generally? Are the structural changes that Eben cites as relevant to the free software movement relevant to climate activism? If yes, are they being utilized as effectively as possible?
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Paper Title
-- By DevinMcDougall - 09 Feb 2010
Section I | >
> | A set of resources which have been used to great effect by those seeking change in America are what Thurman Arnold calls creeds. | | | Subsection A | | | Subsection A
Subsection B | |
<
< |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, DevinMcDougall
Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list |
|
|
DevinMcDougallFirstPaper 2 - 22 Feb 2010 - Main.DevinMcDougall
|
| |
| META TOPICPARENT | name="FirstPaper" |
|---|
| |
>
> | As I work on my essay, I thought I would post some ideas I am trying to pull together.
Any feedback would be most welcome.
Broadly, I am interested in what lessons I can take from LCS thus far to make me more effective at effecting the changes I would like to see in the world concerning climate change policy.
Positivity, Critique and Persuasion
I do think that part of a successful campaign for stronger climate policy in the United States has to be a positive, detailed vision of a low-carbon future. This idea sort of bubbled up and became clear to me in my dialogue with Ron and Nona about the de Saint Exupery quote she discussed on NonaFarahnikFirstPaper. The idea of focusing one's persuasive efforts on a positive vision rather than criticism is not a new idea. But I think it is nonetheless important generally, and perhaps particularly so in the context of climate activism.
On reflection, one thing that strikes me about Eben's remarks about the free software movement (linked below) is the symbiosis between positive vision and critique. Part of the reason his appeal to use free software is compelling is the undesirable consequences of proprietary software. Relating back to de Saint Exupery - it may be difficult at times to articulate a positive vision which does not contain elements of critique. More pragmatically, it may be undesirable to do so, because criticism may be a vital means of persuasion. I think the question may resolve into a tactical question about which are the effective buttons to push to motivate a particular audience.
Long-term Strategy
I am intrigued by the possibility of finding lessons for climate activism from the free software movement. Over the weekend I read a speech that Eben gave at Seattle University last March that discussed the strategy and successes of the free software movement. If you haven't read this piece, I recommend it. I am less informed than I would like to be about the history of the free software movement, but from Eben's narrative, it seems to be an example of a social movement struggling relatively successfully against very powerful and wealthy antagonists. Eben states:
"Things have changed. Something is happening which has never happened before, and it changes the outcome of the game. We are exactly where we have always been, with respect to what we want, but the methods of gaining it have changed, and they are now possible in ways that they were never possible before. And the great riddle of romantic socialist politics, the great worry of the French revolution, the great difficulty that has presented itself to every struggle for human equality since the beginning of the struggle, has been lifted in substantial part. Because we now live in a world where we can make enough for everybody with our own hands. Because we are capable of achieving the relationship we needed to achieve: From each according to his ability, and to each according to his need.
...We are ready now.
That doesn’t mean there isn’t any work to do. Fortunately there is plenty of work to do. For lawyers, moreover.
But there is good news about it. Because we have been doing it for a very long time, and it has wearied many a loyal person, and it has worn out many a strong one. The difference is: This time we win."
What is the most effective work for lawyers in climate activism? Are there lessons from the role of lawyers in the free software movement? The role that lawyers have played in social justice movements more generally? Are the structural changes that Eben cites as relevant to the free software movement relevant to climate activism? If yes, are they being utilized as effectively as possible? | | |
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. |
|
|
DevinMcDougallFirstPaper 1 - 09 Feb 2010 - Main.DevinMcDougall
|
|
>
> |
| META TOPICPARENT | name="FirstPaper" |
|---|
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Paper Title
-- By DevinMcDougall - 09 Feb 2010
Section I
Subsection A
Subsub 1
Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, DevinMcDougall
Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list |
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|