Tuesday, May 25, 2010

Law Professor Self-Cititillation Presented with Additional Symptoms

Routine cases of what would normally be considered minor instances of self-cititillation not worthy of note may approach the level of pathology when manifested in combinations with other citation pathologies. A case in point:

Kathryn Abrams, Exploring the Affective Constitution, 59 Case W. Res. L. Rev. 571, 593 (2009)

These insights aren't unique to the constitutional area, but there are particular advantages to acknowledging the role of emotion here, because the claims of dispassion and objectivity are particularly prominent, even exaggerated, in this area.122

122The confirmation hearings for Justice Sonia Sotomayor, which were marked by acute anxieties on the part of several Senators about the threat to objectivity implied by the nominee's “wise Latina” remarks, provided a vivid illustration of this tendency. See Kathryn Abrams, Empathy and Emotion in the Sotomayor Hearings (Oct. 1, 2009) (manuscript on file with author).
Thus in this case the patient presented both an instance of self-cititillation and premature publication, the cited reference being both one "written" by the author herself, and which had not, yet, technically been published.

In fact, this was a cite to not even a draft article, but an unpublished speech (which, of course, the professor may be turning into an article), that she gave at at Ohio Northern College of Law last fall:
Dr. Kathryn Abrams will speak on "Empathy and Experience in the Sotomayor Hearings" to kick off the Ohio Northern University Pettit College of Law Dean's Lecture Series in the Moot Court Room on Thursday, Oct. 1, 2009, at 11:30 a.m.
(See http://www-new.onu.edu/node/22101)
Also, notice that in the article, she doesn't indicate the "manuscript" is from a speech. And that's another rant for another day: citing AS AUTHORITY something that is "unpublished" and which only the author, or the law review, has on file. I admit the possibility of some LEGITIMATE use of doing this: if, for example, you're citing to some rare document you viewed at the national archives, I guess. But... oh, God - I just ran a quick search in Westlaw's JLR, just to see how often this is done, just trying the first thing that came to my mind:

"unpublished manuscript" /5 "on file"

And - just guess - well, I don't really have any readers, but if anyone ever comes across this, think to yourself how many hits you imagine this would get. I was thinking MAYBE one or two hundred, at the most, and THAT would have been excessive. But, no. Wow. This query maxes out the Westlaw search engine and returns the default TEN-THOUSAND hits.

I do NOT have time to process that. TEN THOUSAND cites to unpublished manuscripts? I know that a few law reviews are putting these "on file" resources on their web sites and are including links to them in the articles, but most are not.

OK, concluding point to the original blog topic: Yes, if you’re the top, leading expert in a narrow area of law, and you’re building on some earlier research that you published, citing your own work is acceptable. But to support a statement that, basically, says the debate about the role of "dispassion and objectivity" in judges' interpretation of the Constitution is on-going and controversial, and how Justice Sotomayor's confirmation hearings dealt with that debate (said hearings and accompanying were, I believe, well-covered in the news last summer, right?), by citing to your own unpublished speech transcript is both lazy and self-aggrandizing.

Full blog post...

Friday, May 7, 2010

BP Oilspill and Possible Related Graffiti?

My update Tuesday about Professor Houck, Jazzfest, and Global Warming is sort of a minor issue these days here in town because of the largest Gulf of Mexico oil spill in 30+ years that’s now threatening Louisiana and the rest of the central Gulf Coast. Technically, its not a “spill” since its still flowing out of this uncapped well; I think “oil spew” is more accurate, even if #oilspill is the main Twitter hashtag for this event (I really liked #oysterocalypse, @agramsci’s hashtag, but I think he and I were the only ones using it, and I think we both realized as funny as that is, this isn’t really a situation to make light of.)
This is tragic in so many ways, the main way, I think, is that no one is sure how much oil is flowing out of this uncapped well and just what the long-term consequences may be. I’ve seen statements that the flow may have already exceeded the oil spilled by the Exxon Valdez, and that at the current rate, the Valdez spill will be matched in a month or so.

And as bad as all this sounds, some perspective is helpful. For example, the low end estimate of the flow, 210,000 gallons a day is, like the PBS site linked above notes, is the equivalent of filling up one olympic sized pool every three days. Yes, it doesn’t take much oil to contaminate a lot of water, but how many olympic sized pools could you fit into the Gulf of Mexico? We’re probably talking about the equivalent of a few drops in a bathtub, right?

I’ve also seen several references which mentions that seven million gallons of oil and fuel were spilled in southeast Louisiana during Hurricane Katrina. One contemporaneous news story I found backs that up:
44 Oil Spills Found in Southeast Louisiana, MSNBC, Sept. 19, 2005
This story notes - and this was three weeks after Katrina - that by then “1.3 million gallons had evaporated or dispersed”. As nasty as all that oil on the open water is, its not going to be an ocean of black sludge forever, or possibly even into the near future. Some of it will evaporate and much of it will eventually be dispersed naturally: the Gulf of Mexico is BIG and as horrific as these images are, and as bad as New Orleans has smelled a few days this past week, the lingering effects will probably not be as horrific as some of the current predictions suggest. A few stories I read even noted that, yes, crude oil is biodegradable. All of it isn’t just going to evaporate and biodegrade overnight but, yes, it bears repeating, crude oil is biodegradable. I even found an authoritative source that supports this:
Biodegradation, in The Environment Dictionary By David D. Kemp
Ahh - and a story on the National Geographic web site I just read (Twitter really is most useful during events like these), mentions that the smell we smell when the wind is coming our way, and which people down on the coast are apparently smelling all the time, is
[T]he pungent scent of evaporating surface oil, which rises into the atmosphere and gets broken down by sunlight.
So there are natural processes at work that will help mitigate the oil spew. We shouldn’t wash our hands of BP’s culpability and leave it at that, but, no, its probably not going to be the end of the world for the Gulf Coast and the fishing industry.

But it’s the unknowable aspect of this that is most alarming and, like many other people have said, its like watching the possible projected path of a Cat 5 hurricane when its three days out: you just don’t know for sure what’s going to happen, and you feel completely helpless while you’re waiting.

And on a possibly related tangent: inspired by one of the only blogs I look at regularly, What I Saw Riding My Bike Around Today (the excellent photo-journal/blog of a nameless fellow bicycler), I’ve started carrying my small digital camera with me. And Thursday, while taking a varied route to work, I saw this stenciled message on Prytania:
Oil Dances Unihibited

Since I don’t ride by there regularly, I don’t know if its new, I’m not sure what it means, and I’m not even sure if this has anything to do with the BP oil spew. No references online to the phrase “Oil Dances Uninhibited” that I could find. Is it a comment on the oil spill? On dancing? An exhortation that we should dance in as uninhibited a manner as the oil spill is dancing over the Gulf waters? I’m baffled.

Despite my possibly unfounded optimism, I am still concerned, so concerned I put that PBS Gulf Leak Meter up on the right there. Yes, like a lapel ribbon, it shows my sincere, deep concern.

Full blog post...

Tuesday, May 4, 2010

Jazzfest, and Global Warming: The First Annual Update

Well, “first annual update” since I initially addressed this last year. In brief summary, Professor Oliver Houck of Tulane School of Law, in his article Can We Save New Orleans?, 19 Tul. Envtl L. Rev 1 (2006) (PDF), mentions several possible effects of climate change on New Orleans, including:
Here in Louisiana we will be warmer in summer (think, maybe, 103 degrees at Jazz Fest) .... Houck, 19 Tul. Envtl. L. Rev 1, at 27.
But the source he cites to:
Envtl. Prot. Agency, Climate Change and Louisiana 3 (1997) available at http:// yosemite.epa.gov/OAR/globalwarming.nsf/UniqueKeyLookup/SHSU5BURCA/$File/la_ impct.pdf
merely says:
[It] is projected that by 2100, temperatures in Louisiana could increase about 3̊ F (with a range of 1-5̊ F) in spring and summer, slightly less in winter, and slightly more in fall. Envtl. Prot. Agency, Climate Change and Louisiana 2 (1997).
(Yes, I found that on page 2 of this report; I didn't see any discussion of temperatures on page 3 like Prof. Houck cited. And the EPA report is no longer at the URL he provided in his article - a perfect example of link rot in law reviews - so I put it on DocStoc.Com.)

Last year I finally got around to researching the average temperatures of all Jazzfests during the past 40 years and, long story short, its never been so hot at Jazzfest that a 3 degree increase (or even, at the high end of the EPA range, a 5 degree increase), would get us anywhere close to 103 degrees: the hottest Jazzfest ever was 2002, with a average daily high temperature of 89.7 degrees (and, yes, I know, I know, you can argue that Prof. Houck was just being all folksy and informal, essentially saying “gosh-its-gonna-be-a-hunnert-an-three-at-Jazzfest-if-we-don’t-DO-something!!!”).

But this WAS written in a leading environmental law journal published by one of the country’s top fifty law schools and if this is the level of argument that counts as serious scholarship, then law professors everywhere should give up all pretense at objectivity and logic and just preach what they think the law SHOULD be. (Most of them are already doing this, but if they didn’t bother with “supporting” sources, citations, and footnotes, all these beleaguered law review students could be saved a lot of needless effort doing their sub-and-cites.)

So here’s my update of the charts I made last year, now including this year’s average temperatures at Jazzfest. (For the methodology, read last year’s post.) This year’s Jazzfest was in the cooler half of all 41 Jazzfests, with an average daily high of 81.0 degrees. Here’s the charts:

First, the average temperatures of all 41 Jazzfests, in chronological order:

Jazzfest High Temperatures, Chronologically

Yes, we had a very mild week and a half of Jazzfest, a full 2.6 degrees cooler than last year. And, yes, the climate change alarmists will say that normal variations may results in an unusually cool week and a half in a certain location despite “global warming”, but you’d be hard pressed to find one say that, by the same reasoning, normal variations may also result in an unusually hot week and a half (like Jazzfest was in 2002). The bottom line is we’re 23 degrees away from Prof. Houck’s apocalyptic - and totally unsupported by the source he cited in the relevant footnote in his article - prediction, and in the four years since he wrote this Jazzfest temperatures have been trending down.

Here are the 41 Jazzfests ranked hottest to coolest:

Jazzfest High Temperatures, Hottest to Coolest

And ranked coolest to hottest:

Jazzfest High Temperatures, Hottest to Coolest

Conclusions, like last year, to be drawn are that, yes, the planet got measurably warmer in the past century but temperatures have reached a plateau and stayed at about the same point for the past decade, despite predictions that global temperatures should keep increasing steadily.

Even some of the anthropogenic global warming alarmists will admit this, though they can't all keep their stories straight. Last month, in his New York Times Magazine cover story, Building a Green Economy, Paul Krugman wrote:
Second, climate models predicted this well in advance, even getting the magnitude of the temperature rise roughly right. While it’s relatively easy to cook up an analysis that matches known data, it is much harder to create a model that accurately forecasts the future. So the fact that climate modelers more than 20 years ago successfully predicted the subsequent global warming gives them enormous credibility. (Id. (Emphasis Added))
Except that, according to a story on NPR - which you would expect to be hand in hand with Krugman and the New York Times on this:
Global warming skeptics have made quite a fuss over the fact the planet hasn’t actually warmed that much over the past decade, and there lies a genuine scientific mystery. The planet has been receiving more solar energy than it's been releasing back into space. Heat ought to be building up somewhere but scientists can't find it. Richard Harris, Examining A Climate Conundrum, All Things Considered, April 27, 2010.
So which is it? Is the planet warming like the scientists predicted or are they baffled by how global warming has stalled in the past ten year? The NPR story at least references a few scientists and articles, which Krugman does not, and it concludes with a discussion of one scientist who has what is apparently the only working theory on this, and that he is finding
[E]vidence of warming deep in the ocean. He's still analyzing that data, so he can't yet say whether it will explain the entire paradox. But he says it will explain at least a chunk of it, and thats how science proceeds: mysteries, explanations, more questions and gradually deeper understanding. (Id.)
So the data is still fresh, but the scientist is sure it will explain away the “apparent” lack of warming in the past decade. Thus NPR placates the alarmists with a pat re-assurance that this new research will explain the lack of predicted warming in the past decade and that - oh, relief - yes, mankind IS causing a catastrophic increase in global temperatures, but its just not evident right now. So please continues buying carbon credits from Al Gore.

Full blog post...