Wednesday, December 26, 2012

Return of the Ghost?

It's not the type of book that I normally would read, but I spent a few hours (that's all it takes) over the long Holiday weekend reading Eben Alexander's Proof of Heaven. I was struck by the premise - a neurosurgeon with a materialistic view of consciousness and human existence, has a near death experience.

What does he think now?

The story is more striking because Dr. Alexander contracted a relatively rare form of a bacterial meningitis. His prognosis was poor from the onset and became virtually hopeless as he went into a coma and failed to respond to treatment. His subsequent recovery was extraordinary - apparently close to miraculous.

During his coma, he had a vivid NDE that both resembles and departs from what is typical for such events. Alexander, who had always dismissed NDEs as dreams or hallucinations, says the can't do it in his own case because he had lost higher brain functioning while comatose. In other words, his brain could not have produced his experience because it wasn't working.

I can' t really evaluate the scientific arguments. Alexander includes an appendix in which he explains, in quite summary form, why he rejected nine different hypotheses of a material cause for his experience. From what I have read - from Alexander and his critics - explaining what happened is somewhat problematic and turns on whether it is possible to know (based on the tests that we have) that his brain was really "off -line" and whether he might have experienced his NDE after he regained higher brain function.

Alexander's story does not mesh with any particular theological view. (There is apparently a Christian "rebuttal" of his story.) It is, in many respects, a bit hokey and does not quite amount to "proof of heaven." (Alexander did not want to call the book that, preferring the title "An N of 1," referring to the unique nature of his case.)

But it does tee up what brain scientists call the "hard question" - what produces consciousness. While we have managed to correlate brain activity with conscious experience, we haven't established what causes that correlation. Is the brain a source or a filter?

One of the things that I found intriguing - although I know precious little about it - is the implications of a quantum view of reality to consciousness. The standard view of consciousness as mechanistic seems a tad Newtonian to me. Alexander doesn't do more than wave at that, but he does suggest that consciousness is stranger and less linear and contained than we might suppose.

One of the fascinating things about Alexander's NDE is that, unlike most of these experiences, he did not know who he was while he was "up there" (he uses that phrase metaphorically). He did not remember his life. It would be a very different kind of "heaven" if those who inhabit it are dissassociated from who they were in life.

Cross posted at Purple Wisconsin

Monday, December 24, 2012

Peace on blogs

World War I (1914-1918) was unspeakably savage. Worse, even, than the Battle of Wisconsin (2011-2012). Much of the war consisted of opposing lines of entrenched soldiers who inflicted massive casualties on each other yet gained no advantage.

Yet, on Christmas in 1914, some of these opposing lines made their own truce. The Germans decorated their trenches and sang carols. The opposing British and French lines did the same, eventually wandering across no-man's land to exchange gifts. A game of soccer was organized. In some places, the "truce" extended through New Year's Day.

The truce was not universal and not without risk. Some of the men who left their trenches were shot. In all instances, the military commands sternly warned their troops that this must never happen again. Adolf Hitler, then a corporal in the Sixteenth Bavarian Reserve Infantry, is reported to have been adamantly opposed.

So I'm imposing my own Christmas truce in our political wars for a few days. It won't last long. There are important issues on which many of us disagree. I would hope that we can express those disagreements in a way that doesn't presume that the other side is stupid, crazy or venal. Whatever response that you make to a point with which you disagree is not made stronger by stringing together adjectives or personal invective.

I know that's not easy. I have trouble with it myself. So I suspect that we'll continue to have our political battles of Yrpes and Verdun.

But, at least for the next few days, good will abounds here at Shark and Shepherd.

So Happy Hanukkah (although its been over for a while), Stupendous Solstice, Joyous Kwanzaa and Happy Festivus (for the rest of us.)

And Merry Christmas.

Cross posted at Purple Wisconsin

Monday, December 17, 2012

Guns and the limits of law

We really haven't have a mass shooting like the one in Newton. The thought of someone opening fire at small children is beyond horrifying. We don't have a word for it. Having said that, mass shootings have become a depressingly frequent topic

Now that a few days has passed, what does this incident - and other episodes of random gun violence - tell us about the need for stricter gun laws?

There are a few guiding principles for such a conversation. The first is that, however awful, mass shootings probably have little to tell us about what our gun policy should be. They get a great deal of attention but are a small fraction of gun homicides. Placing too much attention on them is likely to create misguided policy.

Second, such a conversation should be tempered by constitutional, political and practical realities. We are not about to ban the private ownership of guns in the United States. It would be unconstitutional and politically impossible. More fundamentally, it would be close to physically impossible. There are, by most accounts, well over 200 million guns in private hands in the United States. Even if we prevented another one from being made or sold, they'd be around for a very long time.

We might prevent sane, law abiding citizens from owning them but they are not the ones that we are worried about. Anyone who would shoot up a school or a shopping center is unlikely to be deterred because it is illegal to oen the gun with which he does it.

Third, the irony seems to be that gun controls laws offer relatively little prevention with respect to situations like this. In most cases, no set of reasonable regulations would have prevented the shooter from purchasing a firearm. The profile for a mass shooter has become almost a cliche. In most cases, he will turn out to be a "quiet guy" who was "strange" but who "no one would have expected" to do what he did. Perhaps people who were close to him knew that something was seriously awry but it's hard to imagine a legal screen that would take into account such amorphous "danger signs." Calls to stop selling guns to people with "mental illness," gloss over the difficulty in determining who those people are.

Fourth, we talk about regulation on the type of weapons that can be sold and the process by which they are purchased.  While it is true that "guns don't kill people,people kill people," it is certainly easier to kill a lot of people with a rifle than a baseball bat. But the list of restrictions that might make a material difference in the mass shooting context is short.

It might be reasonable to limit magazine size, but people who know guns better than I do say that this is not likely to make much difference. One could, I suppose, ban semi-automatic weapons - often misleadingly called "assault" weapons. That might slow a shooter down but how much difference it would make is unclear. Whatever "benefit" there is in such a restriction must be balanced against the cost in reducing the effectiveness of weapons for personal defense. There probably ought to be background checks for private gun sales, but we shouldn't fool ourselves into thinking that would be a momentous reform.

In the end, the desire to make this go away by passing a law is understandable, but misplaced. This type of tragedy cannot be prevented by fiat. It is, in fact, unclear that it can even be made less likely. The problem is not in our laws, but in ourselves.

Cross posted at Purple Wisconsin.

Thursday, December 13, 2012

Goo goos and their limits

I tend to be skeptical of structural changes that are designed to remove politics from fundamentally political undertakings. I doubt. for example, that nonpartisan redistricting will really be nonpartisan. I know that so called "merit based" selection schemes for judges simply drive the politics underground.

The reason is simple. When a decision has political implications, politics, like water, finds its own level. While the selection of lower court judges is not politically salient, the selection of justices for a state supreme court usually is. These courts are law developing tribunals of last resort. They decide issues that are unsettled.

Many of these issues do not have ideological or political implications, but some - very important - cases do. While it is wrong to think that the justices who decide these politically charged cases simply do whatever they want or vote as partisans, their world view will affect how they approach questions to which the legal answer is unclear. It is natural for liberals and conservatives to seek like-minded justices.

This turns merit selection into a political process. If you don't believe me, consider the case of North Carolina. Out going Democratic Governor Beverly Perdue -she who spoke of suspending elections so that things could get done - posed for holy pictures a while back when she signed and executive order setting up a Judicial Nominating Commission "to take the politics out of appointing judges in North Carolina." The Commission would recommend candidates for judicial vacancies. Governor Perdue would select from one of these recommended candidate.
There is now a vacancy on the state Supreme Court but there is also a problem. The Commission cannot get its work done before Governor Perdue leaves office next month and Republican Pat McCrory takes over. If she relies on the Commission, she will not get to appoint North Carolina's next justice.
So she is scrapping the Commission although she urges future Governors to use it.
Are the politics back in judicial selection of North Carolina? They never left. It's fine to have a panel of lawyers make recommendations to the Governor. We do that here. But that doesn't make the process of selecting judges - particularly for a state Supreme Court - nonpolitical.
Governor Perdue has just demonstrated the obvious.
At a certain level, I don't blame her. She wants to use what remaining power she has to appoint a justice whose judicial philosophy she supports. So would I. But I would prefer that she not pretend otherwise

Cross posted at Purple Wisconsin

Tuesday, December 11, 2012

Judicial elections and promises

Did Supreme Court candidate Vince Megna violate the Judicial Code of Ethics in saying that he is a Democrat, opposes voter ID and would, if elected to the Court, vote against vote suppression?

There are two issues.

The first is easy. The Code (to which all candidates for judicial office are subject) says that a judge may not be a member of a political party. But this prohibition was declared unconstitutional in a case called Siefert v. Alexander. Megna can say he is a Democrat. Whether he should call attention to his partisan affiliation is another question. Liberal and conservative matters on the state Supreme Court, but not in the same way it matters in the legislature or Governor's office.

The second issue is whether Megna's comments on voter ID were improper.The United States Supreme Court has made clear that a candidate for judicial office may express his or her opinion on disputed legal or political issues. But it has left open the possibility that a state may restrict a judicial candidate or judge from promising to rule in a particular way. Wisconsin does prohibit a candidate from making "pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of the office."

So, while it may be acceptable for a candidate to express a view on, say, the existence or nonexistence of a constitutional right to bargain collectively, it is not acceptable for a candidate to commit to overrule - or uphold - Act 10.

The distinction may seem to be overly fine but it is rooted in reality. It is disingenuous for candidates to pretend they have no opinion about critical questions. If. for example,  I really have no  view on the great legal issues of the day, then I am probably unqualified to be a candidate for the state supreme court.

On the other hand, I ought to be willing to be consider arguments from the other side. I should be open to persuasion.

Megna stretched that distinction. Having all but called voter ID requirements a form of "voter suppression," he then promises to vote to overturn "voter suppression" laws. He may not have crossed the line but he came very close. However, he then backed away noting that "every case comes down to the facts of the case and the arguments and the law."

So, taking his comments in context, I would argue that the rules were not broken. On the other hand, most candidates would not comment so directly on an issue that is almost certain to come before the court in the near future.

 A related - but distinct - question is whether his comments would lead to an obligation to recuse himself in a voter ID case.

Cross posted at Purple Wisconsin.

Tuesday, December 04, 2012

The Fiscal Cliff: It's not a bug, it's a feature.

It might be too much to say that President Obama wants to go over the "fiscal cliff." It seems increasingly clear, however, that he wouldn't mind it much.

And the reason that he wouldn't mind is not so much that he sees it as a price to pay for some other desired policy. The "policy" that he seems to be insisting on - expiration of the Bush era tax cuts for those making over $250,000 and an equivalent amount of additional taxes on the same ground - yields modest deficit reduction and nothing for the additional spending that Obama wants. It is small ball.

When you appreciate that, the going over the fiscal cliff is not a cost of Obaman intransigency, it's a feature.

Here's why. It has been a long time since the Democrats - and many Republicans - had a vision of government restricted to the provision of a limited number of essential services and a social safety net. But the President has an aggressively ambitious view of what the state can do. It can reorder industries and engage in more substantial redistribution of income that it does today.
But you can't have that kind of state without substantial tax increases on the middle class. No European state does it. We can't either. As the President likes to say, "the math tends not to work."
The problem for the Democrats has been that they can't call for middle class tax increases. If they had, they would have lost the election. (This should be a sobering thought for those who believe there is a permanent Progressive majority.)

Thus comes the beauty part of the "fiscal cliff." The Democrats can help themselves to a substantial tax increase by doing nothing. To be sure, they'll have to live with sequestration for a while but it is heavily weighted toward defense and, if there is one thing that Congress has proven itself capable of doing, it is raising spending.

The "fiscal cliff" becomes a down payment on the Obama agenda.

Cross posted at Purple Wisconsin.