CREATIONIST NUTBAGS

But I repeat myself. Less than half of Americans believe in evolution. The President of the United States is on the fence on the topic. Bodes well for science education, doesn't it? (Gee, Mom, why should I study evolution? W doesn't believe in it.) Now, what people take on faith is their own business. What is objectionable is the attempt to bolster the creationist case by -- manifestly falsely -- representing that there is some genuine scientific dispute over the existence of evolution, the age of the Earth (at least as far as a few thousand years versus several billion). Repeat after me. There is no scientific controversy over these matters. All the notions floated in the popular press suggesting the contrary are as intellectually bankrupt as fixed sphere cosmology.

CLONING AND STEM CELLS AGAIN?

That's right, I'm back on my favorite topic. What with: 1) the GOP regaining control of the Senate, making passage of a total ban on cloning more likely; 2) the widely disbelieved announcement that there has indeed been a cloned child born, under the auspices of a group whose scientific credentials and sanity are suspect; 3) Bill Frist, who has been a player (due largely to the fact he is the only M.D. in the Senate and tight with the President) making majority leader; legitimate research pressing forward (notably the announcement that a Stanford lab is making cloned embroys for the purpose of stem cell extraction); and 5) the revelation that the "compromise" the President approved last year, allowing federally funded research to proceed only on then-existing lines of embryonic stem cells, is a crock and, if observed, chokes off the research (far from the 60 lines touted by the White House, turns out there are significantly less than a dozen usable lines in the permitted group), I thought it time to get back on the soapbox.

I've mentioned before Dr. Leon Kass, the influential and to my mind dangerous head of the President's Council on Bioethics. You should read the Council's report, and particularly his contributions as chairman, to see where this fellow is coming from -- somewhere between Jason and Freddy, as far as I can tell. The council website is here.

TRASHING WOODY...

is what John Podhoretz is up to. Here's my response:

I've not seen Hollywood Ending -- though I'll likely go this weekend -- so I must reserve comment. I'm not a "film buff" or a fan of the Sundance channel, nor do I bleed over indie genius. I detest most foreign movies. I like action/adventure, the hero gets the bad guy, boy gets girl(s), and funny movies. Woody Allen makes funny movies.

Your comparison of Allen's post-Mia movies to those he made with her fails. You try to force square pegs into round holes to fit "the moral of the story" and it won't fly. To wit:

Mighty Aprhodite was pretty funny.

Rip offs or not, Jade Scorpion and Small Time Crooks were very funny. The latter, especially, had great doses of those zingers that make some of Woody's movies so delightful; the former was a successful execution of a funny premise with some nice twists and turns.

Deconstructing Harry was absolutely hilarious. Did you not see the riffs with Billy Crystal in Hell? The exchange with Woody's sister featuring one of the greatest setup-punchline exchanges in history ("...in France, I could run on that ticket and win.")? The gag where Woody is right there for Bob Balaban when he faces possibly fatal news from his doctor, but then initially turns a deaf ear to Woody's request to accompany him on the road trip (much insight and humor in that exchange)?

Weren't a lot of the Mia movies, well, ponderous? Didn't you get the feeling that she was the source of the ponderousness? Of the ones you mention, only Hannah and Her Sisters is what I call really entertaining.

Isn't the real comparison between the pre-Mia and Mia movies? What about Annie Hall? Manhattan? What about Everything You Wanted to Know..., Bananas, Love and Death, Sleeper? Isn't that the gamut from terrific bittersweet love story to wonderful farce?

What Hollywood leading man doesn't cast himself opposite much younger beautiful women, if he can get away with it? What regular guy doesn't dream of such for himself? At least with Woody, the premise is floated that a bad-looking, not necesssarily rich older guy can get the babes if he's sufficiently witty, which must bring hope to millions.

As for the Scandal, get over it. News flash: Woody and Mia's set-up was not exactly Ozzie and Harriett. She's a nut. Soon-Yi was not his child, legally or biologically. I've heard it argued, notably by that great moralist and lesbian cow Rosie O'Donnell, that she was his child morally, but again, how can we apply conventional morality to the zoo that was the Farrow household? My only beef with Woody over Soon-Yi is that she's so damn ugly.

Why do I have the feeling that you wrote the heart of your column years ago and have just been waiting for a Woody movie to trash to go with your pet theory?

WHOSE DEATH IS IT?

Wesley Smith condemns Oregon's assisted sucide law in the National Review. I disagree:

Wesley Smith does a good job of attacking the straw man: the admittedly ludicrous fiction that assisting suicide is practicing medicine in the Hippocratic sense.

However, there could be good reasons to require such (if we are going to allow assisted suicide) be done by doctors, and not relatives.

Presumably doctors would be better able to insure a painless, successful (in the sense that the patient dies as he intends) process.

Doctors also could be more qualified to advise the patient of less drastic ways to relieve their suffering/improve their quality of life and thus possibly prevent suicides.

Requiring someone in the process who neither is emotionally involved with nor a potential beneficiary of the death, as opposed to spouses, children, etc., certainly promotes the interest of making sure that the suicide is desired by the patient.

All of which still begs the question, should we allow assisted suicide at all?

What about this? There is no enforceable penalty for the physically capable person who kills himself. Absent assisted suicide, people with debilitating illnesses might well punch the clock prematurely, rushing to act before they became helpless to do so. Thus, the availability of assisted suicide might well extend some lives.

Fundamentally, why is it the government's business if someone wants to off himself? It seems requiring one to stay alive against his wishes is the ultimate denial of liberty. Again, a prohibition against assisted suicide only affects those too weak to do it themselves. Is this fair?

Moreover, under what twisted abandonment of federalism is it the United States' right to tell Oregon that, pursuant to a law adopted by its legislature, its citizens may not have help taking their own lives? What conceivably constitutional federal statute could bar that law? And if the answer to that is "none", how obscene is it for the chief law enforcement officer of the United States, the Attorney General, to subvert the Constitution by the backdoor stunt of taking away the drug-prescribing privileges of physicians who dare act in accordance with a clearly enforceable law, just because he doesn't like it?

I've not addressed the enormous and troubling practical problems with legalizing assisted suicide, most of which boil down to making sure it's the patient's competent wish to end his life. That's a whole other discussion.

What I am most interested in is in making sure that even zealots like Wesley Smith realize they don't have an exclusive claim to the moral high ground on this issue. There is another principled side to this debate. Where one comes down on the issue is truly a matter of conscience. And in America, matters of conscience rightly are decided by each individual for himself.

MORE CLONING ARTICLES

Yes, I am obsessing about this issue. I think there's nothing more important to the future success and happiness of mankind than the full exploration of this science. Here are some further recent articles and my replies:

The Weekly Standard:
There sure IS debate over federal funding for embryonic stem cell research; just because "Bush has spoken" does not mean the question is closed. Of course, as you neglect to mention, what is at stake in the congress right now is not federal funding, but an outright ban on cloning. Talk about vague political speech. I'm glad that you mentioned that Harry and Louise originated in opposition to the Clintons' nationalized health care, because it highlights a point you seem to be missing. The Clinton plan was rejected by, not just insurers and doctors, but by Americans who did not want the government involved in their health care. Cloning opponents like to paint supporters of research cloning as part of the "biotech lobby", "Hollywood", or as forsaking morality in a rush to embrace the benefits of genetic science. They insist embryos have moral standing. That is NOT the only morally informed view. Many see an early stage embryo for what it is: a few to a few hundred cells with no brain function, no self-awareness, no soul. We rebel against the anti-cloning position, because equating a zygote to a human being is in itself morally grotesque. Laying the scientific and logical bankruptcy of the "embryo equals person" position aside, the equiviancy argument offends at its core the idea of what it is to be a human being. We are more than biology. Should we mourn the loss of an early term pregnancy as we do that of a three-year old child? The discarding of an embryo after research should cause the streets of London to fill as when the Queen Mother passed? Should Whitman have written "Oh Zygote, Oh Zygote"? Should we celebrate the abortion of an "evil embryo" (if we learn to detect such) as we will when Charles Manson finally chokes on his own bile? The barbarism lies not merely in foreclosing the benefits of embryonic research. The greater obscenity results from twisting the meaning of "human being" to include embryos.

GRETA AND THE RUGHEADS...

...make delightful fodder for the screamingly funny Larry Miller, but he misses a small point, as I lay out in this letter to him:

I wish I could write that well, hammered. I would have never left the frat house.


Greta, of course, is proof that the shiboleth about only good looking folks getting on TV is false. Wait, so are you, Larry. At least you don't have a laydown malpractice suit against your plastic surgeon. Wait, do you? Perhaps I can get on TV!


As a trial lawyer -- could you guess? -- I have to take issue with your condemning Cohen for representing these vermin (although I sure as hell wouldn't). Say it with me one more time: everyone, no matter how vile, has the right to counsel; that's what makes it America. And Jewish lawyers, you know, have a tradition of representing the grossly unpopular ( I cannot bring myself to apply the term "underdog" here; how about just "dog"?). If the principles we live by have meaning, then they apply to the most heinous.


Your remarks about drinking remind me of the bit you used to do (maybe still, but I didn't have a coupon for the last time you did stand-up in Houston) about being out on a school night and, as the clock spins, telling yourself repeatedly that as long as you get ___ hours of sleep, you'd be cool. A classic! I howl everytime I watch my Napster-supplied illicit download of it.


Give Greta a break and remember she's a short-term phenomenon. Absent some blind guy's friends playing a cruel joke on him, she's unlikely to reproduce

CLONING, AGAIN

Wesley Smith weighs in on the side of adult stem cell research. Facts are always welcome, but what does it prove? Here's what I wrote him:

Mr. Smith once again catalogues adult stem cell successes and thus adds much to the debate, although his implicit thesis: that the media pushes embryonic stem cell research because it wants to promote the destruction of embryos as part of some sort of institutional agenda to denigrate the view that such are human life with moral standing, strikes me as insuppportable.


As a lawyer -- and Mr. Smith was a successful one before he became a pundit -- one learns to cast the debate in terms that favor ones client's side, and Mr. Smith, it seems, is indulging in just that when he discusses stem cells and their promise only in terms of regenerative medicine, i.e., cures for existing conditions. He ignores the larger issue of genetic medicine applied at or before the point of conception to remove/deactivate genes causing birth defects, congenital illnesses, etc., or add/activate genes promoting desirable characteristics (general robustness, intelligence, etc.), and whether promise in that area is linked to embryonic or adult stem cells.


In so doing, he joins President Bush and other opponents of pre-birth genetic medicine in defining what are acceptable goals for genetic science in advance of the development of the science. The end result these opponents frankly seek is to foreclose individuals' choosing to utilize such science for their children-to-be. This is being accomplished. not by seeing what is and is not possible first, then making appropriate judgments, but, through enforced ignorance, delaying at all costs the development of the science so no one can have its (arguable) benefits.


That is simply barbaric.

TOM DELAY, SACK OF HAMMERS

There's a report in today's Houston Chronicle on a speech Tom DeLay gave at a church urging parents not to send their kids to A&M or Baylor if they want them to get a Christian education. While I'd ordinarily applaud any advice that keeps kids out of College Station, I can't subscribe to DeLay's reasoning. Seems the failure to teach creationism, combined with the fact that some students have sex in the dorms (how shocking!), makes these campuses un-Christian. Wake up, Tommy. Some of us Christians can get our minds around the fact that God could just as easily have created man through evolution as out of a lump of clay (and the former is perhaps more miraculous than the latter). Some of us can even understand that the scientific method rests on proof, not faith, and that we do not betray our faith by embracing science to explain the state of this world.



The Chron dug up an old quote of DeLay's linking, with the subtle, clever sarcasm only a true wordsmith can muster, the Columbine tragedy with the teaching of evolution. As a bonus, he makes up a word ("evolutionized") in the process.



I shouldn't be surprised at Delay; after all, there's a picture of him next to "dogmatic" in the dictionary. I was interested to hear that his daughter, who went to A&M, "had horrible experiences with coed dorms and guys who spent the weekends in the rooms with girls." What horrible experience could this refer to? Walking in on a roommate and her boyfriend? Not getting any herself? Wait, I forgot she was Tom DeLay's daughter. Her problem must be with the fact that someone, somewhere (it just happened to be on her campus) was doing something of which she disapproved, and by God, they needed to be stopped. Good thing such an intolerant, silly little girl is not in a position of influence in this country. Whoops.



A DeLay hatchet man -- er, staffer -- reacted decisively, reminding us that the recording of the speech was unauthorized (after all, is it the public's damn business what the third most powerfull man in the House says to a gathering of hundreds?) and that the offending taper is a former member of the ACLU whose organization is to the left of Hillary Clinton. How he forgot to take a swipe at the trial lawyers, I don't know.



Yuo sure have to hand it to DeLay for being forward looking though. He reminded the crowd that there were "still some Christian schools out there -- good, solid schools. Now, they may be little, they may not be as prestigious as Stanford, but your kids will get a good, solid, godly education." Bob Jones University, maybe? Frankly, I think this recommendation was a master stroke. By urging parents to send their kids off to these schools, he promotes the creation of more narrow-minded conformists that blindly obey authority -- his very constituency!



As for where to send your kids to college, how about this? First, teach them right from wrong and to think critically about whatever they see and hear, in class and out. Then send them to the most intellectually rigorous college you can afford and they can get into. If you've done the groundwork, they won't come back crazy, or corrupted, but educated. And that's what it's all about.

CIVIL LIBERTIES AND TERROR

Anyone else troubled by the recent news of the indictment of the lawyer for convicted terrorist Sheik Omar Abdel Rahman? She's accused of assisting him in passing messages to his cohorts outside prison. Now, let me first say that if she did it, she needs to be shot. The familiar and maddening idea of a gang leader/Mafia boss continuing to control his criminal empire from "inside" is all the more horrific when applied to terrorists.

However, under a justice department directive adopted post-September 11, the attorney general -- that guardian of your civil liberties, John Ashcroft -- can monitor otherwise privileged conversations if he merely suspects wrongdoing. Here's an idea: why not have a third party, say an official who is not beholden to the Justioce Department or the administration, pass on whether the AG's suspicions justify eavesdropping on privileged conversations? Say someone whose status is protected by Article III of the Constitution, i.e., a federal judge? Lord knows the application for surveillance could be ex parte, and the GOP has enough law and order zealots who skipped Constitutional Law 101 on the bench that complying with such a requirement should minimally inconvenience any legitimate investigation. At least we could sleep better knowing some attention was being paid before we violate a privilege that's one of the cornerstones of our system of justice.

POLITENESS IS DEAD...

...according to this article by John Derbyshire at National Review Online. I agree, but find his blaming lawyers and lawsuits (imagine that, from a conservative publication) not credible. Here's what I wrote him:

I enjoyed your piece. Thank you for writing it. I'm 45, and was raised in Houston (where I still live) by parents for whom politeness in children was not an option, but an imperative. Yes Sir, No Ma'am, Mr., Mrs./Miss (both pronounced, in the southern manner, Miz; cf. the odious Ms.), please, thank you.

My father is remarried and I have brothers 13 and 7, both of whom are getting similar instruction. It appears to be taking.

Sadly, though, by and large, things are as you report. I find myself angered at tradespeople on the phone calling my by my first name, uninvited, not to mention cheeky waiters. My last trip to California I wanted to throttle several youngsters who called me "Joe". I could go on.

I must disagree with your laying the blame for this phenomenon at the feet of the rule of law and its enforcement by "ingenious lawyers". For one thing, a suit over bad manners is always laughed out of court, if you can find a lawyer green enough or hungry enough to take it. We must draw a distinction between rudeness, which ladies in the workplace regrettably must sometimes put up with, and groping, or conditioning continued employment or advancement on sexual favors, or others acts which I'm sure we agree ought to carry a penalty more severe than a reprimand from the manners police.

There are many plausible sources of the decline in manners: the breakdown and rebellion against class distinctions ("Why should I address you politely just because you are older, my boss, a person of authority, etc.? I'm just as good as you."); the ubiquitousness of technology which makes communications instantaneous and often impersonal; the concentration of population which both increases the frequency of unintended encounters with ones fellow citizens and the likelihood that one will never see most who he comes into contact with again, lowering the cost of rudeness (this reason applies particularly to rude driving).

I'm glad you mentioned the Lampoon. It was a favorite. Many of the best old articles are on the website; I just finished rereading the classic "Foreigners Around the World."

Let me close with a question that I hope you won't find impolite. Do you NR writers receive a per instance fee from the insurance industry and big business for negative references to lawyers and lawsuits, or is it an annual lump sum?

DEATH TO SMOOCHY...

...is hilarious, edgy, dark, outrageous, profane, and a treat. It's the "Network" of kids TV. If your sense of humor runs to the bizzare and rough language does not bother you, you will howl with laughter. Imagine Robin Williams as a corrupt kiddy show host, who, after he gets fired, plots to murder his successor. It gets stranger, and funnier, from there.

CLONING PART...

There's a piece in the New York Timeswhich points out the strange bedfellows on the right and left aligning against cloning research. Here's a letter I wrote to the author:

I read your piece in the Times today with great interest. I classify myself neither as an environmentalist -- I have serious questions about whether science truly supports many theses of the movement and suspect it is driven much more by a desire to dictate "natural" living to the society at large on aesthetic grounds than is let on -- nor a social conservative -- the imposition of controversial moral strictures on ones fellows to me is a vile repudiation of everything American.

Thus perhaps it will not surprise you that I'm for cloning research, emphatically including steps that might improve the human animal. Moreover, I'm angered to the point of distraction by those on the left and right who oppose the idea. In your analysis of the strange bedfellows of cloning opposition you miss, perhaps because it's quite unflattering, the philosophical principle, much broader than unity in opposition to this science, which these disparate elements share: a willingness to tell others what they may and may not do in their personal pursuit of health, long life, and happiness. That anyone had the right to tell me I may not seek, through all available means which do not directly injure my fellows, to extend and expand life, health, abilities, resistance to disease and other adverse conditions, for myself or my children, I reject totally. It's widely, and correctly in my view, predicted that if Roe vs.. Wade were overturned and a significant number of states moved to seriously restrict abortion, major civil unrest would follow. I think that disturbance would be nothing compared to the reaction to prohibitions on genetic enhancement of humans, once the possibilities are more closely within our technical grasp and more widely understood.

I think opponents realize this last proposition and are therefore all the more determined to keep the science from reaching the place where dramatic changes are possible. I brand this thinking as cynical and morally bankrupt.

Even the debate on genetic enhancements is being unfairly spun by opponents by resort to comparisons to the Nazis and Brave New World to describe the risks. In addition to their total lack of resemblance to modern Western culture, both of these comparisons suffer as predictors of what could happen because they are based on what is being proved every day to be a false paradigm: that development of this science and its application will be state-controlled and mandated. Much more likely is that these technologies will be harnessed by private institutions, yes even some for profit, and the benefits, and risks, will be available to those that choose them, and that they will penetrate society, or the market, if you prefer, gradually. This scenario drains all the horror out of the genetically enhanced future, from where I sit.

It comes down to whether you are really willing to shoulder the moral burden of telling me I may not, for example, pursue measures that might enable me to live healthily and happily into my second, or even third century, based on unknown and ultimately unknowable costs. I hope you have a strong back.

HAPPY BIRTHDAY TEXAS

Another Texas Independence season is upon us. This is the term I apply to the period from March 2nd, the day in 1836 that the brave men declared Texas independent from Mexico at Washington-on-the-Brazos, to April 21, 1836, where more brave men, led by a giant in American history, Sam Houston, defeated a much larger Mexican force and captured Santa Anna, "the Napolean of the West", effectively ending the war. Sandwiched between these events, of course, the bravest of men held the Alamo with less than 200 defenders against Santa Anna's army of 8,000, until the mission fell on March 6.

Texas Independence doesn't get much press or even much celebration, which is a damn shame; it makes a wonderful story. For starters, the odds of success were perhaps less than those of the British colonists of 1776. While no one would mistake Santa Anna's Mexico for the England at its height as a world power, no ocean separated Texas from Mexico. Nor was the dictator constrained by the niceties of gentleman's warfare. He'd succeeded in the past by ruthlessly crushing his opponents and showed every sign of giving the Texans the same treatment. Then something nothing short of miraculous happened: the Alamo held for 13 days.

Consider the Alamo: no medieval fortress complete with high walls and a moat, this mission proved defensible only because of the courage of the defenders and their uncanny skill as marksmen.

Consider William Barret Travis: the commander of the Alamo was between 25 and 27 years old. Most of us will live thrice that long, and more. He had a young son. Yet he never thought of surrender. How different the wolrd might have been had he not been of such iron character.

Consider Houston and San Jacinto: Houston trained the army of the Republic, such as it was, and lay in wait for Santa Anna. Then he pulled off a brilliant victory, capturing the dictator. He restrained his men, and himself, and instead of killing Santa Anna, he traded the man's freedom for Texas'.

FRIVOLOUS LAWSUITS (PART 2) -- ENRON

A friend whom I should listen to told me he found the previous post on this topic condescending. After getting him to explain what "condescending" means, I decided he had a point and I should take another stab at the subject. With luck, this will create even more rancor and confusion than the first one.

In describing what I think to be two definitions of "frivolous lawsuit", one understanding held by lawyers and the other by laymen, I was trying to illustrate that the very fact of these different definitions makes a discussion of the topic difficult. Without a common understanding of the terms involved, it's hard to frame the nature of the problem, much less reach consensus or a conclusion.

Having firmly inserted my foot in it on that point, let me shift mid-post to the Enron case, which I am involved in on behalf of the bond purchasers that lost money during the company's collapse. It's clear to me that the primary culprits as identified in the media -- the top officers and Andersen -- are going to get hammered, at least civilly. Not so clear, but vitally important from both a legal and economic standpoint, is what is the liability of the outside directors of Enron? Legal: what are, or should be the boundaries of directors' duties to inquire into management's practices? If you answer "minimal" or "none", then why have a board anyway? Doesn't that make the concept that directors are to look out for and answer to the shareholders and creditors a joke, and a sick joke at that, given the billions of losses due to fraud at Enron? Just what were these folks doing for their $300,000 annual stipends? Attending quarterly meetings and rubber-stamping management decisions, apparently. On the economic side, it's a grim fact that, even if the aforementioned primary culprits are denuded of their assets to pay claims, there will still be multiple billions of unsatisfied losses. As between the directors, who, the facts may well show, were merely negligent and not actually in on the fraud, and the innocent shareholders and creditors, where should those losses land? When the really guilty can't pay the whole freight, the slightly guilty have to pick up the slack until the innocent are made whole.

NOW WITH ARCHIVES!

On the passing chance that folks might want to refer to old posts that have disappeared from the main page, I've created Archives pages which can be accessed from the links at left.

STUPID LIBERAL SOFT-ON-CRIME QUOTE OF THE DAY

"Quite frankly it bothers me as a lawyer to see members of our Congress, in their inflection and their tone, suggest there's something wrong with taking the Fifth. It's a right we all have. It's a precious right. And if they think only the bad guys take that, they're wrong."

Who can guess which bleeding-heart ACLU member offered up this gem to the Houston Chronicle when asked about Enron executives invoking the Fifth Amendment before congress?

That's right, Johnny Holmes, longtime Houston district attorney who sent more people to death row than any other prosecutor. Hmmm, maybe there's something to this Bill of Rights business.

CLONING (PART 7)

The Daily Standard ran another piece on the horrors of cloning research and the terrible folly we risk if we make possible genetic enhancements to humans. Here's my reply.

Well, the opposition to cloning and embryonic stem cell research finally comes clean. The real horror is not the techniques of this nascent science (though those techniques are quite terrible, Smith hastens to point out, having decided for all of us that the soul attaches at conception -- has he brought other stone tablets down from on high?), but the result that will follow if this science is not stamped out, and now: people might actually be able to choose for their children the potential of longer lives, abetted by bodies and brains that are genetically predisposed towards greater abilities and fewer limits. How horrible! God forbid that a Steven Hawking might be born without a wracked shell for a body. Let's make sure that the lottery of cancer, heart disease, diabetes and slow-wittedness continues unabated. Don't deny parents the thrilling chance to have their own Downs syndrome, cerebral palsy, blind, or other special child. After all, it builds character. And let's for sure keep the chance of passing on sparks of genius in the arts, athletics, the professions, science and every other field of human endeavor totally random, as God intended. We wouldn't want a bunch of Picassos, or Ruths, or Darrows, or Curies, or Churchills running around. Who'd be left to watch Oprah and Rosie?

Not so my God. He created us in the midst of this universe of infinite size, infinite danger, and infinite possibility, and He gave us just one weapon to match against that vastness: the human mind. Our long ascent from the caves, through barbarism, to our current semi-civilized state, we owe to that tool. And we owe Him, and ourselves, continued striving towards something better. It's not necessary that we have mapped out what that something is. What is needed is a commitment to continue the struggle, unburdened by irrational fear, sometimes referred to as "the wisdom of repugnance." New science always offers possibilities, not promises. We should trust ourselves, and our essential humanity, which is surely resilient enough to withstand changes in the vessel which houses it (remember, Yoda teaches: "Luminous beings are we, not this crude matter [flesh and blood]").

Before we buy the bogeyman of Brave New World, mustn't we recognize that the horror of that world lies not in the genetic techniques that are such an instrument of oppression, but in the fact of oppresssion? Try thinking of an open, democratic society governed by the rule of law, where genetic enhancement is an available choice, not a totalitarian requirement.

Of course, this science is coming, no matter what the President and congress do. All they can do by enacting prohibitions is: 1) delay things, so the lottery grips a couple more generations and 2) make sure that America follows, not leads, the charge. And the leaders might well be nations who don't share our libertarian institutions and unwillingness to see science used for oppression.

WHAT IS A FRIVOLOUS LAWSUIT?

On Febrauary 3, I attended the second day of a very interesting conference on the costs of the legal system at the University of Texas School of Law. A variety of academics with training in law and economics presented studies they had done which belied much of the popular wisdom about the expense of the American civil justice system.

The topic of frivolous suits -- whether they are in fact a problem, and whether measures designed to discourage them (sanctions against lawyers and clients who file them) work -- was discussed. In the course of the discussion, I realized that the law's (and presumably most lawyers') definition of a frivolous suit and that of the seemingly legion lay critics are quite different. I also realized that this difference in definitions is the source of much "signal noise" in attempts by trial lawyers (like me) to explain that frivolous lawsuits are not a big problem. The law defines a frivolous suit, subject to sanctions, as one not justified by the facts, the law, or a good faith argument for change in existing law. For example, Federal Rule of Civl Procedure 13, governing standards for pleadings filed in civil cases, including the suit itself, provides, in part:

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for
the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery;

Lay people, on the other hand, seem to define frivolous lawsuit in terms of either a trivial injury -- suing over a hangnail -- or what they perceive as an improper shifting of blame from an injured party to the defendant. The most famous example of the latter is, of course, the McDonald's coffee case. We can leave aside the "trivial injury" cases; except in popular (and inaccurate) myth, they do not exist. Even after you clean up the tremendous inaccuracies in the popular version of the McDonald's case (a good account of the actual facts can be found here), many conservative folks still disagree with the result, on the grounds that anything that happens to you when you spill coffee on yourself is solely your own fault, irrespective of how hot the coffee was. Thus they define even the idea of suing over spilled coffee as frivolous.

The law is a set of generalities designed to govern specific situations. One such generality is that makers of unreasonably dangerous products ought to pay for the consequences when those unreasonable dangers cause injury. We have judges and juries to apply those generalities to specific disputes. Twelve people, not under hypnosis, not having taken stupid pills, decided that the McDonald's coffee, which the company's own expert admitted was "unsafe for human consumption" was unreasonably dangerous. What's frivolous about that?

Walker, Treason, Words, Actions, and the Bill of Rights

The very funny Larry Miller has a piece in the current Daily Standard on the pathetic John Walker. As many have, he stresses Walker's saying he supported September 11 and the USS Cole attack. It's a big mistake. Those remarks, detestable as they are, do not make up an element of any crime charged, nor of treason, and are as irrelevant as his lawyers' and parents' current protestations that "John loves America." (While one might argue persuasively that the remarks show a state of mind predisposed to the acts Walker is charged with, a fair judge would exclude the remarks as their prejudicial impact outweighs the probative value.) Irritating as it is, this mutt is an American citizen, and he enjoys the right to free speech. He must be convicted based on his actions. If the proof of those actions makes out a case for treason, as it seems to me it should, unless Marcia Clark is assigned to prosecute, then by all means hang him. However, the end of appropriately judging this case is not served by taking the easy route and concentrating on Walker's words. Indeed, such runs the risk of playing into a defense argument that the government, lacking proof of treasonous acts, seeks to punish Walker for his odious views

Nor does attacking the defense of civil liberties by lambasting every conservative's favorite whipping boy, the ACLU, advance the ball. Vigorous support of the Bill of Rights is not inconsistent with vigorous patriotism, nor with robust law enforcement, whether against the common thief or a creature like Walker. It is, in fact, the height of informed patriotism to insist that we can and will enforce the laws to protect our society in a manner consistent with fundamental notions of fairness and justice. Viewing the Bill of Rights as an impediment to justice shows a lack of understanding, a lack of faith, or both.

STEM CELLS, EMBRYOS, CLONING, AND HUMANITY (PART 6)

Lest I be thought too hard on The American Prospect, I must endorse the linked article as a well written, researched, and reasoned essay on why Leon Kass is so dangerous. Perhaps scariest: "The Madisonian idea ... of a marketplace in which good ideas will eventually chase off bad ones is lost on him." I won't further rehash the article, but I think Dr. Kass' insistence on Huxley's Brave New World as the paradigm of what we are in store for if we embrace genetic science is instructive. Huxley, of course, was an irresolute pessimist. His work has been enfolded into the literary canon such that most that graduated high school, at least in the US, have read the book. Along with1984 (penned by perhaps a greater pessimist than Huxley, Orwell), Brave New World is about the only near-future cultural speculation many of us are exposed to in our youth. For this we must blame the literature departments, whose criteria for the canon, at least as far as twentieth century works go, seem to include pessimism. Perhaps Dr. Kass has been exposed to only these works in the genre -- certainly he has expressed a contempt for science fiction in the past. This is too bad, because there are examples aplenty of optimistic speculative fiction written in the last 50-75 years, and many are a darn sight more enjoyable, and just as "literary" as Huxley or Orwell.

A shining example is the work of Robert A. Heinlein, a Naval Acedemy graduate who loved the military but thought the draft was always immoral, rugged individualist, civil libertarian in the extreme, hard-core pro-American and anti-communist, and tireless advocate for questioning everything, from religion to sexual mores (hard to pigeon hole, eh?). Best known for Hugo-winning novels such as Stranger in a Strange Land and Starship Troopers, Heinlein also wrote Beyond Thiis Horizon, a rousing adventure and exercise in cultural commentary set in a world where genetic design of children for the improvement of humanity was, and had been for many generations, practiced. This was accomplished by government encouraging, but never coercing, specific genetically well-endowed couples whose genotypes would, it was thought, make for good offspring, to pair off and have kids together. Couples were offered the opportunity to select the best chromosomes out of their genetic material for their children. The difference between Heinlein's world and Huxley's or Orwell's is that in the former, a libertarian society, people were free to choose for themselves whether to participate. Some chose to have kids the old fashioned way, with no genetic manipulation.

While I'm not running a comparative literature seminar, I think this exercise is important becaue it so well illustrates what should be obvious, but appears lost in the ESCCR discussion: The danger lies not in genetic research, nor in the development of genetic technologies, but that those technologies will be used coercively and immorally by an oppressive government. That's why comparisons to Mengele and the Nazis, while good for scaring the children, don't advance this debate.

Why should we rely on science fiction to guide us as we decide these critical issues? Maybe we shouldn't, but Dr. Kass et al certainly have, and their exclusively citing the pessimistic viewpoint when there are other views of the furture to be drawn from undermines their credibility and any semblance of objectivity. Further, we shouldn't underestimate the ability of science fiction authors to predict the future. Everything from atomic power and weapons and space flight to waterbeds appeared in science fiction stories and novels, often in remarkable detail, long before these items became a reality. One author writing about atom bombs in the early 40s guessed so close that he got a visit from the FBI, who thought he'd penetrated the Manhattan Project.