Miscellaneous Other Systemic Issues

This essay is perhaps particularly meandering. Again, I’ve tried to put my topics in some kind of order, but please don’t be surprised if the text moves on rather abruptly.

Tort Reform.
Corporations and others have been pushing for tort reform for some time. A main desire is for a limit on the amounts that can be awarded for “pain and suffering” or as “punitive damages.”

An important point to understand about tort liability, however, is that those for “reform” want it because they want to limit their liability for the harm they cause. No one is ordered to pay a multi-million dollar judgment unless it’s been proven that they caused the harm for which the judgment was sought.

Nonetheless, I believe the law of torts is indeed in need of reform, though not necessarily in the ways sought by corporations.

First, a brief summary of how the legal system works with respect to “torts.” A tort is a wrong that does not necessarily involve the breach of any criminal law or contractual agreement, but rather a breach of an implied duty, such as a duty not to be negligent in ways that a reasonable person would foresee would be likely to injure others.

Litigation is extremely expensive for both plaintiff and defendant. As of this writing, the attorneys’ fees and other costs just to initiate a law suit in Dallas, Texas can be expected to amount to $5,000 or more. From there, the additional fees and costs mount quickly; it is not unusual for a plaintiff’s attorneys’ fees to run into tens or even hundreds of thousands of dollars, especially when the defendant has a lot of money to spend on its own defense. Moreover, in the U.S., even when a tort plaintiff has proved that she or he was injured and that the injury was caused by wrongdoing by the defendant, such a plaintiff is not allowed to recover her or his litigation expenses.

Perhaps most tort plaintiffs, even those with very good cases, cannot afford such expenses; so in many, perhaps most tort cases, the plaintiff’s attorney is paid on a “contingency” basis; that is, although the plaintiff may be liable for out-of-pocket expenses such as filing fees required by the court, the attorney will receive no fees for her or his services except to the extent the plaintiff’s case is actually won. Such fees are typically calculated as a percentage of whatever the amount of any actual award turns out to be, often around 30%. This may seem like a lot, but attorneys don’t win all their cases, and in some of the cases they do win, the amount of the judgment may not be very big. Litigation is always a bit of a gamble--there are always variables you can’t predict, such as what kind of jury you’ll face, among other things. So in order for attorneys who litigate torts to stay in business, they need to make more money on the big wins to make up for the cases in which they lose or don’t obtain large judgments.

But what about the plaintiff, who has proved that she or he was injured and that it will cost a certain amount to compensate her or him for her or his injury, who may really need that money just to pay her or his medical bills or other expenses--what if she or he has to give up a third of their recovery to their attorney? For better or worse, this is why attorneys and many others oppose putting a cap on damages for pain and suffering or punitive damages--because it is that portion of a judgment that can be used to pay the attorney without eating into funds the plaintiff needs just to compensate her or him for the injury itself.

The other considerations, of course, are that victims perhaps should receive compensation for their pain and suffering, and that it often really is desirable to award punitive damages in an amount large enough so that the corporation is given a meaningful incentive to change its ways rather than continue to treat others’ injuries merely as an acceptable cost of doing business.

Clearly, some judgments are ridiculously large. These can usually be reduced on appeal; but excessive judgments do present the following problem. If plaintiffs who happen to sue first win extremely large judgments, plaintiffs who may have been injured just as seriously but who for one reason or another don’t consider suing until later may find themselves facing a bankrupt defendant. It seems unfair that some plaintiffs may receive a relative windfall while others receive nothing.

One alternative, of course, is more government involvement. For example, our government could be more proactive and protective in regulating safety with respect to, for example, exposure to tobacco smoke or asbestos; or government could possibly administer a more even-handed compensation program. Those pushing for tort reform would doubtless regard this kind of cure as worse than the disease; but in fact it is probably only because of the threat of large damage awards that we get along with less governmental regulation than would otherwise be necessary. (I believe that many other developed countries don’t have the contingency fee system and do have more governmental regulation.)

Another idea is to permit punitive damages but, to the extent they exceed the amounts needed to compensate the plaintiff and her or his attorneys reasonably (which might not be easy to determine, remembering that the attorneys need to make up for the cases they took and lost), put the excess funds in a pool to be used to help pay other plaintiffs injured by the same defendant.

I’m not keen on any of the prospective solutions, but I think it’s important to understand why the system is the way it is and that capping damages awards without making other important changes in the system would have very serious consequences that most tort reformers aren’t talking about.

Work Hours and Benefits. A few decades ago, pundits predicted that our average work week of 40 hours or so would decline to 35 or 30 because of productivity-enhancing technological advances. Such advances have certainly taken place, and per capita worker productivity has greatly increased. The increase in productivity has resulted in part from such advances; however, it has also resulted in large part from the fact that our work week has not declined but inexplicably has gotten a lot longer. This seems especially surprising given that, because so many more women have joined the work force during the same period, many more people are now working.

The increase in productivity has led to a higher standard of living with respect to material goods, at least for many. But our long hours (not to mention the higher stress) have some adverse effects. Among others are the reduced quantity and quality of time spent with our children.

For example, The New York Times has reported a link between the increased proportion of women working outside the home and the rise in obesity, as families increasingly turn to fast-food or take-out because women don’t have time to shop and cook (Daniel Akst, March 2, 2003). As the Times reported, “[o]besity may well be the nation's biggest public health problem; a study by the RAND Corporation last year said it was more serious than smoking or heavy drinking . . . . Obesity, it would seem, is a problem like air pollution; both are serious side effects of economic development.” The article further mentioned that “about half of all health care is paid for by federal, state and local governments.”

We are admonished to spend time with our families, oversee our children’s education, exercise at least three times a week, eat right, be informed consumers, do our own research regarding our medical care, do our own research regarding our investments, do charitable work, etc.,--when in more and more households, both spouses work, and when at least in the U.S., the average work week is near an all-time high and vacation time near an all-time low.

If people weren’t working so hard, many might take more interest in and be more active with respect to politics and current events; but few of us have enough time to keep track of what our school boards are up to, let alone to figure out more complex national and international affairs. The demands of the modern workplace leave both men and women with insufficient time and energy to be the good parents and citizens they’d like to be. This phenomenon, while profitable in the short run for some, may not be in our best interests in the long-run.

We could at least take some modest steps to begin to address this problem. For example, there is nothing fair about permitting employers to maintain unnecessarily large proportions of their workers as part-time employees so as to avoid having to provide insurance and other benefits, with the result that many people have to work more than one part-time job just to make ends meet yet still lack benefits (the costs of which, like those of obesity, for example, get passed on to the rest of us). A simple solution would be to enact legislation to require that all benefits and remuneration to be calculated on a per hour basis--i.e., an employee who worked 20 hours per week would be entitled to 20 hours’ worth of benefits, while an employee who worked 60 hours per week would be entitled to at least 60 hours’ worth of benefits or the financial equivalent thereof. Such legislation would reduce the existing incentives to employers to over-use part-time workers instead of creating more full-time jobs, and also reduce existing incentives to squeeze every possible hour of work out of salaried employees. (Provision could be made to except people who are genuinely self-employed.) I also think that hours worked in excess of 40 per week should earn more per hour than the first 40--for everyone, not just blue-collar workers.

Some kind of similar re-structuring to provide unemployment benefits to free-lancers would also be helpful and fair, for similar reasons.

(It’s difficult not to note that corporate interests are, at least in the short run, well-served by having most of the population employed, feeling too insecure in their jobs to demand shorter hours or higher wages, and with insufficient leisure to scrutinize the records of politicians whose campaigns are financed by corporate interests.)

Children. We say we care about children; we recognize that they are our future; yet we invest little in them. If children were the priority they should be, we should calculate what it costs to actually feed, clothe, shelter, care for and educate a child to minimum levels of adequacy. We should then use that number to calculate support payments, whether from government, parents, or others. E.g., in a divorce case, the first question should be not what can a parent afford, but what does the child need. If a child needs its parents to spend at least $6,000 per year in order to be adequately supported, then each parent should be responsible for whatever share it takes to reach that number. How to allocate as between the parents? I’d do it in proportion to ability to pay; e.g., if the woman makes $50,000 per year and man makes $25,000 per year, the woman would pay $4,000 and the man $2,000. (Note that in order for these calculations to be made fairly, it is crucial to include the cost of day care.)

Similarly, we should determine the minimum needs of children with respect to schooling, day care and health care, and reform our budget and taxation processes to make certain that the needed funds are always there (e.g., provide that there will be NO corporate or upper- or middle-class subsidies, credits, rebates or benefits until all minimum funding needs for children are paid). AND we should require that ALL of the foregoing financial minimums for children be adjusted annually per a realistically-calculated Consumer Price Index (i.e., one that includes food, energy, and housing).

A similar calculation should be made with respect to parents’ time. That is, we should try to determine a minimum time each parent should spend with her or his children, and implement workplace and other regulations to promote that minimum. (I’ve found in my own life that “quality time” can’t fully make up for inadequate “quantity time.” In any relationship, sometimes you need to spend a certain quantity of time just hanging out together, without too many distractions, in order for sensitive information or issues to surface in conversation.) For example, if the Bush administration really cared about families, then rather than abolishing overtime pay, as currently proposed, we should prohibit employers from requiring overtime.

I believe that one day, men and women will share more equally in child care, and that men, women, and children will all be better off as a result.

Fundamental Rights. The U.S. Bill of Rights (which consists of the first ten amendments to the Constitution) sets out rights many people agree are fundamental. These include (but are not limited to):

  The right to practice the religion of your choice;
Freedom of expression and publication;
Freedom to gather with others peaceably;
Freedom to petition Congress for redress of grievances;
The right to keep and bear arms;
The right not to have the government force you to house soldiers except during war
and in a manner regulated by law;
The right not to be subjected to unreasonable searches and seizures, whether as to one’s
own person or one’s home or belongings, with any such searches being made only
if authorized by a warrant supported by probable cause and that particularly describes
the place to be searched and persons or things to be seized;
The right not to be punished for a capital crime except upon indictment by a Grand Jury;
The right not to be tried for the same crime twice;
The right not to be compelled to testify against oneself;
The right not to be deprived of life, liberty, or property without due process of law;
The right not to have one’s property taken by the government without just compensation;
The right to a speedy and public trial by an impartial jury;
The right to be informed of the nature and cause of the accusations against one;
The right to confront the witnesses against one;
The right to be able to compel witnesses to appear that might be able to help one’s case
The right to have the assistance of counsel for one’s defense; and
The right not to be subjected to excessive bail amounts, or excessive fines, or cruel and
unusual punishment.

And the U.S. Constitution has also been amended to prohibit slavery.

Every one of the rights set out in the Bill of Rights is expressly protected because, within the living memory or accepted knowledge of the “Founding Fathers,” one or more governments had abused its citizens by violating such rights.

Even fundamental rights are not absolute, of course, because they sometimes come into conflict. As the saying goes, “my right to swing my arm ends at the other fellow’s nose.” U.S. courts have developed careful guidelines to help them in balancing competing rights, including such considerations as when governmental regulation is reasonably believed necessary in order to protect public health and safety.

I believe the U.S. Constitution contains a great many of the most important fundamental rights that should be recognized and assured to all human beings around the world. I am deeply disappointed at doctrines developed within U.S. jurisprudence to the extent they limit application of such rights to U.S. citizens.

The European Union’s Charter recognizes most of the same fundamental rights plus the following, among others:

  The right to be treated with dignity;
The right to life (i.e., the death penalty is prohibited);
The right of physical and mental integrity (i.e., not to have one’s person or mind subjected
to unwanted intrusions);
The rights of access to one’s files and to protection of one’s personal data;
The right to education;
The right to asylum and protection against deportation to places where one would be
at risk of death, torture, or degradation;
The right not to be discriminated against based on race, ethnic or social background,
language, religion, opinion, sex, sexual orientation, disability, age, or property;
The right of children to be protected and cared for;
The right of workers to unionize, strike, and take other collective action;
The right to safe and fair working conditions;
The right to maximum limits on working hours and an annual vacation;
The right to protection from dismissal from work because of pregnancy and to paid maternity
and parental leave;
The right of those in need to social security and housing assistance;
The right to health care;
The right to environmental protection;
The right to consumer protection; and
Freedom of movement and residence.

See http://www.europarl.eu.int/charter/default_en.htm as of January 28, 2004 .

However we choose to define fundamental rights, I think those rights we do call fundamental are generally ones that tend to enhance the welfare both of individuals and the state as a whole. I believe that in consequence of our efforts to better our world, we will continue to develop our understanding of what can usefully be posited as fundamental human rights and that such rights will be recognized and adopted by more and more countries.

One right that interests me is the right of travel and to reside in the country of your choice. As a general matter, e.g., I believe that anyone who wants to move to the U.S. and who manages to get here should have the right to do so. I recognize there are lots of issues about how we might deal with floods of immigrants and what entitlements we should afford them, but I see those as matters that would better be dealt with on their own merits than by simply avoiding them by forcibly restraining people from moving. I also believe those issues will become less acute if the gaps between rich and poor countries narrow, which I believe they will tend to do over time. I also think that generally, no nation should have the power either to prohibit its citizens from leaving or to force them to do so.

In this connection, it seems quite possible that ease of travel and the internet will make it increasingly easy for people to form communities that may become more important than their nationalities. Why shouldn’t membership in a cyberspatial network based on purposeful criteria become more important than the accident of where you were born?

I also believe our rights of privacy and regarding our own personal information (to the extent such rights are recognized at all in the U.S.) need to be beefed up.

Trading Freedom for Security. This is a reasonable trade-off, but only up to a point. As Benjamin Franklin put it in his Historical Review of Pennsylvania, “[t]hey that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” See http://www.ushistory.org/franklin/quotable/quote04.htm as of January 28, 2004 .

I’m willing to enter into the social contract, to obey laws, cooperate with authorities, based on my understanding that government will in turn protect me from invasions and criminals, provide basic services, and generally deliver enhanced security and stability. The equation is similar to that between child and parent: I render you my obedience, giving up some of my personal freedom, and in exchange I hope you will take care of me. However, outside the parent-child relationship (in which the parent’s natural love for the child at least somewhat restrains the parent’s tyrannical impulses), this kind of trust tends to be misplaced. Without the restraint arising from a parent’s love for her or his child, if one in power is unchecked by other restraints, the one in power is almost irresistibly tempted to take advantage of her or his position, and corruption or worse ensues.

Since 9-11, many people seem willing to sacrifice any number of fundamental rights and privacies (pursuant to the Patriot Act and otherwise), notwithstanding that there is virtually no evidence that the powers thus ceded to the government will result in any significant reduction in terrorism and that, on the contrary, there is much evidence that such powers will likely be abused (e.g., think of the dossiers maintained by the U.S. government in the not-so-distant past against Martin Luther King and John Lennon, and actually used by the government to pressure Lennon into giving up his anti-war efforts, among other instances.) As discussed elsewhere, unchecked power is an invitation to abuse.

The Principle of Self-Defense. U.S. law recognizes a right of self-defense. This right is carefully circumscribed, however. Generally, one must believe one is in danger of harm, the danger must be imminent, and the belief must be reasonable under the circumstances. Moreover, the degree of force used in one’s own defense must be proportionate; you are allowed to use only that degree of force that appears reasonably necessary under the circumstances.

These limitations developed through hundreds if not thousands of years of human experience, and I think they’re good ones. It appears to me that the Bush administration’s decision to invade Iraq was in disregard of one or more of those limitations and was a mistake, and that the resultant costs to the U.S. and the world will be high.

First Amendment and Privacy Issues. I wish I had more time to discuss the importance of the First Amendment. For now, let me just say that the “free market of ideas” that the amendment partly protects, in which the widest possible array of ideas and points of view should be freely expressed and heard, is absolutely critical to our nation’s health and vitality. Everyone benefits when more voices are heard.

Should Money = Speech? This is in essence what current U.S. law holds, but there is widespread discomfort with some of the effects. The problem is that those with more money get heard a lot more, distorting the free market of ideas. The effects are similar to those of allowing sellers of products to control all the channels of distribution or retail shelf space. Perhaps we need anti-monopolistic regulations regarding access to forums for the expression of ideas.

First Amendment vs. Privacy. The First Amendment
was intended to protect expressions in public forums; it was not intended to permit harassment of individuals in their private lives. For example, allowing abortion protesters to picket the private homes of individual doctors makes no sense to me; this is not speech intended to persuade others generally, but harassment intended to intimidate a particular individual in order to prevent the lawful exercise of that person’s other rights.

Similarly, to hold as U.S. courts have that telemarketers have a First Amendment right to call us in our own homes has it backwards. A key distinction is whether we are in our own private place or have put ourselves in a public space. When we’re in public, marketers and others should have a right to talk to us, politicians and businesses should be able to blare their speeches or ads at us, and so long as they’re not blowing out our eardrums, we shouldn’t be able to stop them. But when we’re in our own homes, we should have the power to limit or exclude them in any way we like, just as we can refuse to answer the door or turn off the radio or t.v.

Property. One thing many people fail to realize is that, while the concept of property certainly seems to accord with the human desire to hang on to what one has created or collected with one’s own hands, it is in fact an artifice or figment upheld only through law. Property can and has been defined in various ways in various times and places. E.g., under U.S. law, as I understand, the public owns the broadcast airwaves, but the airwaves can be licensed to private companies; you may or may not own the air rights over your land, and the air may be subject to laws permitting or restricting use by aircraft; many coastlines are subject to easements or other rights in favor of the public, regardless of who owns the coastal lands; the ownership of oil and other resources beneath your land are governed by different rules than govern the ownership of your land; and the government can condemn and take your land at any time for a variety of reasons, although our Constitution requires that you be paid just compensation. The concept of property rights is a creature of the law, malleable and subject to change.

Capital Punishment. If anything can be said to be “sacred”, it has to include human life. But we needn’t rely on conclusory characterizations. Each and every human life is in fact valuable, as a practical matter and in demonstrable ways.

We know that each person is unique, both genetically and in terms of his accumulated experience, and each represents a huge investment of biological, social, economic, and other resources. In the case of a capital offender, we can agree that that investment has in some important sense proved a failure. As any scientist can confirm, however, more can often be learned from our failures than from our successes.

We can safely say that much of the information that was in a criminal’s head is gone forever once he’s been killed; and we can never be certain that we wouldn’t have needed any of it. Timothy McVeigh is an excellent example. Never mind what helpful info psychologists might have gleaned from studying him further; what about whatever he knew about “John Doe”? Those who have reviewed the documents produced at the last minute by the FBI seem generally to agree that the documents would not have led to McVeigh’s exoneration. They also seem to agree, however, that the documents contained substantial evidence that McVeigh acted in concert with at least one other person. Had McVeigh lived another 50 years, I think the odds were pretty good that sooner or later, he would have let drop at least some further clue about who that person was. Similarly, I've read that Nazi prosecutors found themselves unable to convict at least one suspect because the only witness who could have given compelling evidence against the suspect had already been executed.

This argument parallels the argument for concern regarding premature extinctions of species. We almost never know all the valuable services performed by a given species within our ecosystem, or all the potentially valuable substances for which it may be the unique source; and once the species is gone, so are its gifts. Destruction is easy; creation is hard. Is punishment in and of itself really so precious to us that we're willing to pay any price for it?

Another urgent consideration is that we have never yet been managed to devise a system that effectively ensures that only the guilty are executed. Many innocents have in fact been killed, and no other punishment is so utterly irreversible: good reasons to leave such judgments to the omniscient.

Again, if there is one ethical injunction that seems inherently compelling, it’s “thou shalt not kill.” Most people would probably agree to an exception when reasonably necessary for self-defense; but society need not kill for that reason when it can impose life imprisonment. In our civil legal system, only that degree of force is considered justified which is reasonably necessary in order to defend oneself from imminent danger; you’re not allowed to shoot someone threatening to pelt you with tomatoes, or who’s already been caught and confined.

And even an agnostic like me believes that killing, however justified, takes a toll on the psyche and soul of the killer, whether the killer be an individual or a society. Turnover among executioners is notoriously high. The fact that most of us are more insulated from the effects of the killings we condone does not mean there are no indirect effects. “[W]hatever a man soweth, that shall he also reap.” (The Bible, King James Version, Galations 6:7.)

What about the other pros and cons? Here’s a tally:

1.To satisfy the victims. I find this reason the most difficult to refute; who am I to say what should satisfy the victims of heinous crimes? Certainly, they deserve all our sympathy and more. Nonetheless, I do not believe killing the criminal is really the best means to alleviate victims’ suffering in the long run, and even if it were, I'm not sure anyone's life should be forfeit just to make someone else feel better.

2.To do justice. Two wrongs don’t make a right; and they certainly don’t make the world a better place.

3.To make sure the criminal never has the chance to repeat his crime. Life imprisonment would be just as effective. Shame on us if we can’t trust ourselves not to let lifers out. If the parole system needs to be reformed, it’s our responsibility to do it.

4.Deterrence. Studies show little if any deterrent effect. First, criminals don’t believe they’re going to get caught, and those with sufficient foresight to be deterred probably are less likely to be caught. Second, for those with sufficient foresight to be deterred, life imprisonment should be as effective.

5.To avoid the great expense of incarcerating the criminal for life. Capital punishment is even more expensive--even if you base the cost only on the system as it presently exists, which we know has in fact resulted in the execution of innocents. If we improved the system to try to obtain greater assurance that such mistakes were avoided (as we certainly should, if we’re not going to abolish capital punishment), implementation of capital punishment would likely become still more expensive.

As for vengeance, “Vengeance is mine, I will repay, saith the Lord. Therefore if thine enemy hunger, feed him; if he shall thirst, give him drink” (Romans 12:19-20, King James Version.)

Personally, I believe anyone who kills other than in self-defense is mentally or emotionally ill or defective, and I’d prefer rehabilitation. To the extent rehabilitation is not feasible, I’d prefer restraint. (I used to suggest only half-jokingly that the best way to make sure the punishment fit the crime would be to confine criminals only with others convicted of the same crime; i.e., pot heads could be confined with other pot heads and would have to live in a society in which everyone is mellow but not much gets done; thieves would suffer theft but little worse, etc.--and as an incidental benefit, imprisonment would no longer afford training for worse crimes.)

Given all these considerations, I hope and believe that we in the U.S. will eventually evolve to the point that we join the rest of the developed world in abolishing capital punishment.

Cloning and Abortion. I believe we have a way to go in our understanding of ethical issues in these areas.

Literature and history caution that if we attempt to create or design living beings, or even to exert selectivity regarding which human beings we’ll keep alive, we usurp divine prerogatives, we’ll inevitably botch the job, and we’ll pay a monstrous price (e.g., Mary Shelley’s Frankenstein and Nazi eugenics programs).

We have feared to broach questions about what makes a life valuable or worth protecting, for the best of reasons. In the past, those who were willing to take it upon themselves to make judgments about who is valuable and who is not have used their judgments to justify horrific crimes. Nonetheless, I don’t believe we will succeed in avoiding such questions forever.

Several important issues need to be distinguished:

(a)Is human life more valuable than other life? For purposes of this essay, let me use “valuable” as short-hand for “worthy of protection.” Such value might or might not be economically calculable for certain purposes; however, I mean to encompass all possible types of worth, not just economic.
(b)Is all human life equally valuable?
(c)Is potential human life as valuable as actual human life?
(d)If human life is more valuable than non-human life, why?
(e)What is it that makes any life, human or non-human, more or less valuable?

The issue of “value” or “worthy of protection” should be considered from many points of view
; the following come to mind:

1.That of the being itself; i.e., right now I’m plenty valuable to myself, but if I were brain-dead, I presumably wouldn’t know the difference.
2.That of the beings most immediately affected by its existence or non-existence; i.e., I am, I hope, precious beyond all measure to my boyfriend, probably less so to my cat, etc.
3.That of the larger system or ecology of which it is part; i.e., I contribute in various ways to the welfare of my clients, my friends, certain arts organizations and charities, my nation, the world. Of course, I also suck sustenance from them in turn, although I hope it all works out in an ecologically sustainable manner, so to speak.
4.That of future generations, to the extent that the being under consideration may possess unique attributes or information that would be lost not only to us, here in the present, who might or might not be able to put it to use, but also to our successors in the future, who might find uses for it that we can’t imagine; i.e., maybe the unborn will pillage my journals; or see the discussion above on the death penalty, re- the failure the prosecution of a Nazi because his fellows who might have testified against him had all been executed.

The point of view of future generations is, of course, the most difficult to assess except in hindsight but is extremely important. As you can see, if you look at the first three criteria, you might expect we’d usually conclude that the most valuable people were the ones that are the most conscious and appreciative of themselves, with the biggest, most loving families, and who are the most successful and helpful in their work and communities. Now, a person like that might indeed also be valuable to future generations; but there have also been many people who were relative or even utter failures by some or all of the first three criteria but whose beneficial impact on the world--foreseen by no one during their lives--was enormous after they were dead. Van Gogh and Edgar Allen Poe leap to mind, and there are many others. The admonition is that we should be as slow as possible in making such judgments, for we’re blinkered by our times, among other things.

Also, I think the Hindus or someone like that are on to something with the idea that ALL life is valuable and worthy of protection. And I believe that far too often, we succumb to arguments or, more often, fears, that the resources available to us are limited and will force us to make unpleasant choices such as, for example, we cannot afford to feed every child, so we’ll only feed our own. (In truth, if we took all the resources we now devote to destroying one another and devoted them instead to helping one another, it’s hard to believe we couldn’t lick our problems sooner or later.)

One more note: It is very important that we be able to accept that, for a number of reasons, we may never be able to answer all of the questions set out above, at least not for now and perhaps never.

All that being said, however, it is equally important that we allow ourselves to ask such questions. Asking them is not a useless exercise, for it is only after giving ourselves permission to ask such questions that we can best become aware of some of the issues we’ve been avoiding and assumptions we’ve been making.

With respect to cloning, as a practical matter, it seems clear that holding ourselves back from exploring new technologies has usually proved both futile and benighted. We can’t even stop ourselves from advancing nuclear weapons technology; surely that science is no less “evil” than cloning, which seeks to create life. Remember the discussion of systems and dharma above: if you create an artificial blockage in the hope of restraining natural tendencies, you should expect to have to make continual efforts to shore up the blockage, and even then, the forces restrained will probably eventually either overflow or otherwise escape the blockage. We humans have probably tried to restrain ourselves from exploration since humankind began, and we seem to have failed nearly every time. The Amish have resisted most technological advances within the last 200 years or more, but in doing so have all but amputated themselves from the rest of humankind. Very few such prohibitions have stood up to our lust for knowledge and power over our environment. And more often than not, humankind has benefitted as a result, although nuclear war and pollution can certainly be adduced to the contrary. If there is any way to use and abuse knowledge, someone will probably do it; nonetheless, overall, I for one believe we are better off as a result of most of the exploration and invention humans have managed so far.

With respect to abortion, current U.S. law recognizes a woman’s right to abortion, subject to certain restrictions, based upon her Constitutional right of privacy. It also seems to me that forcing a woman to carry an unwanted pregnancy to term amounts to involuntary servitude, which is prohibited by the Constitution. As I understand, this argument has rarely been made and has thus far been rejected by the courts but, in my view, without adequate consideration. If medicine discovered a way for fathers to carry a fetus to term, I seriously doubt the courts would decide that they should under any circumstances be required to do so.

I also think a crucial distinction should be made between actual human life and potential human life. Embryos of the age that I gather are likely to be used in cloning research, for example, are far from having a human brain in any meaningful sense, let alone consciousness. I do not believe a week-old human fetus with the I.Q. of a carrot deserves the same protection as an adult, or even the same protection as a chimpanzee capable of using sign language (not to mention gorillas, whales, dolphins, porpoises, and other creatures that probably have more actual consciousness, intelligence, and emotion than many of the fetuses some people are so anxious to protect.) U.S. courts acknowledge the need to balance fundamental rights when they conflict, but it does not seem to me that the “rights” of a fetus that merely has the potential to become human, but has not yet developed anything resembling consciousness, should weigh the same as the mother’s.

It’s not that potential human life has no value. To would-be parents with limited ability to produce an embryo of their own, the value of such an embryo might be beyond measure. And clearly, as a human fetus gradually develops from being only a potential human to being an actual human, the value or regard we accord it should increase.

But among other things, I’d like us to get beyond the human chauvinism, if not myopia, that seem to prevail.

Let us also take responsibility for the fact that we are now--by default--making lots and lots of decisions every day that determine which innocents, developed or undeveloped, human or non-human, get to live or die. By choosing to spend, or not to spend, our money, time, and energy helping people who are sick or starving, let alone animals. By choosing whether or not to start a war.

I’m not anxious for governments to start making a lot more decisions for us as to which lives deserve protection. Rather, I’m saying it’s time for us to start thinking about such decisions and trying to make them in a responsible way, instead of throwing up our hands in horrified helplessness, as if the refusal to decide were not a decision in itself.

Responsible action is not going to sound like, “It’s a matter of God’s will--and we know what He thinks and you don’t.” It’s going to sound more like, “We’re not sure what the heck we should do, but we recognize our responsibility, so let’s start by gathering information and asking questions, including the ones we’ve been avoiding.”

Discrimination. First of all, many of us are terrible human chauvinists. To me, it seems obvious that many animals feel emotions little different from ours, and we know that some are capable of using language and even tools. I simply do not see how such creatures can be believed not to deserve respect and consideration. Cf. the discussion of abortion, above.

I also believe that discrimination based on race, ethnicity, sex, gender orientation, or age is far from overcome and that it hurts us all.

It’s not that we should never recognize any distinctions relating to gender, age, etc. Rather, I think we should try to understand as fully as possible the inherent natures of different kinds of creatures, so that that understanding can be used for everyone’s benefit. (See the concepts of dharma and justice in the essay on this website entitled, Cells and Systems.) However, we must at all times be keenly alert to the hazards of generalization, and, absent conclusive proof to the contrary, we should assume that any negative assessments arise from nurture rather than nature.

I doubt most proponents of affirmative action ever claimed it would be an ideal solution. What it clearly WAS--although no one seems to want to say so--was the CHEAPEST solution. There are lots of other possible solutions that might be more fair and effective, and would probably cost a lot more.

My objection to proposals to abolish affirmative action is that no one is offering any alternative solution
to discrimination, the consequences of which, as of this writing, still seem to me to be much more serious both for its victims and for society in general than do the problems resulting from affirmative action.

Gay Marriage. I’d like someone to acknowledge in so many words that, if we restrict marriage to “one man, one woman,” we’re basically saying that THE most important thing about marriage, to the exclusion of all others, is that there must be one penis and one vagina.

Apparently we've decided that love, commitment, children, sex, etc.—none of that really matters. Because ALL of those criteria can be lacking, and we'll still allow you to marry or remain married, so long as you happen to have the right bits of flesh between your legs; and even where all other possible criteria are present, if you don’t have the right bits of flesh, you can’t be married.

We don't even require sexual relations between the penis and the vagina, since we'll permit a gay man and a lesbian to marry. BUT THERE MUST BE ONE PENIS, ONE VAGINA—this we hold so sacred that it merits a constitutional amendment.

Right. I can imagine that in eons past, this definition of marriage might have been the best we could come up with; but by now, I think we can and should do better.

Arguments that permitting gay marriage would somehow weaken the institution of marriage seem unpersuasive. At the minimum, surely it would be more effective to use direct incentives or educational programs, than to exclude certain classes of people from eligibility. I suspect that a "culture" that encourages both partners in a marriage to work 60 and 70 hours per week does far more to weaken the institution.

Nuclear Power. High-level radioactive waste from nuclear power plants must be stored for 100,000 years or more before it can be safely disposed of as ordinary refuse. (See site maintained by the University of Rochester History Dept. at http://www.history.rochester.edu/class/EZRA .) To put this in perspective, the last ice age ended only 8,000 to 10,000 years ago. Although not all radioactive waste from nuclear power plants is high-level, if nuclear power continues to be used, the amounts of such wastes that are generated will accumulate.

When I was in grade school (ca. 1965) and first heard of the debate about nuclear power, we were told that even though no one knew what to do with the nuclear wastes now, science would soon solve that problem. As of this writing nearly four decades later, the closest we’ve come to a solution is to pile all the wastes under Yucca Mountain.

I’m not saying we should never use nuclear power. In deciding whether and when we should use it, however, we should try to take all of the true costs and benefits into account, including the expenses not only of transporting and storing it now, but also for monitoring and maintaining that storage for up to 100,000 years (not to mention the costs due to accidents, etc., that should be expected over such a long period). I’m no economist, but I don’t see how the benefits could possibly be worth the true total costs. Even if they were, however, I strongly doubt that any of the companies who profit from nuclear power production, our government, or anyone else are in fact saving up to pay for 100,000 years of storage (or buying sufficient insurance to cover 100,000 years of accidents).

Environmental Insurance. Since the potential costs of many activities may be uncertain, it may be that they should be dealt with through insurance. E.g., we need to take into account the potential costs of failing to limit harmful automobile emissions now: extreme weather, climate and shoreline shiftings, disasters, diseases, extinctions, mutations, etc.

We should require the companies that profit from automobile or gasoline sales or that give rise to nuclear or other wastes to include in the prices they charge an amount to cover the potential costs. Rather than having the gasoline companies or government decide what cash reserves might be needed to cover such costs, however, we could let the actuarial experts, insurance companies, analyze the risks and price and sell the necessary insurance coverages. Insurance companies will then either offer the coverage and perhaps become lobbyists for action limiting deleterious business activities, or they’ll decline to offer such coverage, in which event the companies profitting from such activities should themselves have to fund appropriate reserves. Such an approach would be subject to miscalculation and risk, but it would be better than the current situation, in which we, our children, and future generations are and will be picking up the tab for profits to company executives and shareholders in the short-term. In this connection, we’ll need to develop even more sophisticated methods for assigning standardized measures of uncertainty re- long-term costs and benefits.

And if the risks of any activity are uninsurable, we should be thinking very hard about whether we should continue to do it.

Need for a New “Religion.” We can only be agnostics, or have faith; if we're honest, there are no other possibilities. Some people think that without belief in God, we’d all become amoral monsters. I whole-heartedly disagree. Life need not be meaningless for agnostics or atheists--we CREATE meaning, by choosing worthwhile goals and acting toward realizing them (see the essay entitled, The Meaning of Life).

Thus far, many fundamentalist and other traditional religions have had an aggressive strain similar to the drive that helps biological species survive among and even obliterate other species competing for the same resources. That strain in religions consists of doctrine to the effect that those who do not adhere to the chosen religion are damned and that it is the duty of the adherents of the chosen religion to convert all others to it. I’d like to believe the world is in the process of learning a lesson about the limits of such doctrines, especially to the extent they’re used to justify violence. Maybe we’re getting ready for an evolutionary advance, one that recognizes that competing beliefs should be respected, examined for their potential value and discussed, rather than exterminated. I also believe it would be an advance for religion to place more emphasis on personal responsibility, as opposed to blind adherence to the dictates of church officials.

I've been reading up on Islam and have been struck that Mohammed, like other greatly inspired and well-intentioned persons, said many extremely helpful things, many of which enabled important, even revolutionary advances for his time. But the moment he died, struggles began among his followers, purportedly about matters of doctrine but which also look a lot like power struggles; and this seems to me to have occurred to some degree in the history of every religion. Sometimes the struggle is for the survival of the religion against nonbelievers; most of the time there is also struggle within the religion among factions within it; in either case, there is more often than not a political dimension. And it seems to me that in every religion I know of, it was from and after the death of the founder of the faith and in the course of an ensuing political struggle that many of the most ridiculous or cruel bits of doctrine were adopted or at least prioritized.

E.g., in the actual sayings of Mohammed and other great religious leaders, sayings about what's important in order to be "good" are usually predominantly oriented toward: avoid doing harm to others, help the weak and the poor, concern yourself with amending your own faults rather than with finding fault in others, don't be overly concerned with amassing material wealth, etc.

Somehow, through the generations following the original leader's death, the emphasis seems to come around to, if you don't follow our exact doctrine you're damned, various strictures relating to sexuality (re- homosexuality, birth control, masturbation, gender and celibacy of priests, etc.), or to hair (shave your head, wear side curls, never cut your hair because it functions as antennae), or to food (never eat meat, never eat meat with milk, eat a cracker and pretend it's your god but don't chew it), etc.

It seems obvious that any god worth a goddamn would take one look at us and say, "Hey, whatever you think I said about masturbation or hair cuts, let's just forget that part for now. Please just concentrate on NOT KILLING. Like, no killing at all, none, ever, at least not of human life. Most of you actually can probably already handle that; it's mainly just a matter of figuring out how to fortify yourselves against being talked into it by psychopathic leaders, or figuring out how to deal with smaller-scale psychopaths. [I mean, it's pretty obvious by now, most wars mostly benefit an elite who profit from them, not the average folks who actually fight them.]

"If you really need another focus point, how about protecting and caring for every single child on the planet.

"If you really need yet another focus point, how about, saving your planet.

"When you've got those three things covered, call me back and we'll work on the next level; but for now, all that other stuff about obedience to religious officials, masturbation, hair, etc., seems to be more of a distraction than a help."

[So, like, if you buy that, when you think about voting to fill a governmental office, ask first what each candidate has actually done to reduce killing, ensure the welfare of children, protect the environment.]

I'd also like to propose a simple guideline for evaluating religious or other strictures: Do unto yourself as you would do unto others. I.e., I'll have more confidence in the good intention behind any stricture if those imposing it subject themselves to it. E.g., you think all women should wear a burka? More convincing if you impose the same on all men. Genital mutilation? Ditto. (As Gloria Steinem put it, "If men could get pregnant, abortion would be a sacrament.")

[Obviously, this all needs work.]

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