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Month: July 2023

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Nematodes, Climate Change, and Extinction Level Events

microscopic image of nematode

Human-driven global warming is having devastating impacts around the world. The Earth is warmer now than it has been since records began. Indeed, according to a report by the Intergovernmental Panel on Climate Change, the planet is hotter now than it has been in 125,000 years. This has led to record temperatures across the globe, with doctors in some places, like Arizona, having to treat people for third-degree burns after simply touching the pavement. Combine this with the deadly Mediterranean wildfires, the rapid rise in sea temperatures, and the shifting ocean currents, and we are on course for a bleak future.

However, while scientists have been predicting many of these impacts for decades, some more unusual happenings have come a little out of left field: case in point, the survival of ancient nematodes, a type of roundworm.

Now, I know that worms do not seem exciting compared to entire islands being ablaze or the seas getting so warm that there is a mass die-off of ocean life. Yet, these worms are fascinating as they are old, very old.

In an article in PloS Genetics, scientists recount how they discovered the frozen worms while excavating a fossilized squirrel burrow in northeastern Serbia. After bringing them back to their lab, the scientists thawed the worms, which are less than a millimeter long, and immersed them in a nutrition-rich environment. A couple of weeks later, the worms began wriggling and eating. Sadly, they died after only a few months, but not before reproducing, and now scientists and researchers are studying their descendants.

What makes this interesting is how long the worms had been in suspended animation. Similar species to the one excavated tend to live a total of 20-60 days. Yet, the worms recovered from Siberia were over 46,000 years old. This means that before they had gone into suspended animation, they were sharing the planet with Neanderthals, mammoths, and saber-toothed tigers. In itself, this is incredible. Those worms excavated from the permafrost could have been the oldest living multicellular organism to have existed. At the very least, they are contenders for the crown of the oldest reanimated multicellular creature.

While these worms will not help humanity’s quest for functional cryopreservation, their discovery does have immediate implications for the study of biological evolution; as Professor Teymuras Kurzchalia notes, “Our findings are important for the understanding of evolutionary processes because generations times could be stretched from days to millenia, and long-term survival of individuals of species can lead to the refoundation of otherwise extinct lineages.” In other words, the scale at which some species play out their lives has been extended dramatically.

The reason these worms were accessible to those scientists is because the Siberian permafrost is melting, and it is melting because the planet is heating up. As the frost recedes, scientists and explorers will gain access to more natural time capsules like stumps, crevices, and maybe even small caves. This means that more and more discoveries of this nature might be possible, and even more worms and other invertebrates species could be revived. In turn, this could provide even more insight into the natural mechanisms that underpin life on this planet. After all, if it has happened once, that is some reason to believe it could happen again.

This possibility, however, is not all sunshine and rainbows. While learning about how life came to be is an inherent good, not every organism that emerges from the newly revealed earth might be as harmless as a worm. Some could be actively dangerous. That is not to say that dinosaurs could be exhumed from the ice, brought back to life, and immediately go on a rampage (despite what films like Dinosaurus! tell us). Instead, it is far more likely that global warming could release ancient viruses and other pathogens from their icy slumber. If this happened, it could have devastating consequences.

The prospect is not as far-fetched as it might seem. Jean-Michel Claverie, emeritus professor of medicine and genomics at the Aix-Marseille University School of Medicine in France, has been testing samples taken from the Siberian permafrost to see what viruses are contained within and whether any could still be infectious. He’s managed to revive viruses from samples over 48,500 years old. Fortunately, these viruses are harmless to humans, targeting only amoebas. This, however, is a result of his deliberate choosing, as he wishes to avoid reviving anything which might infect humans. Indeed, pathogens we are susceptible to could be buried just below the surface, simply waiting for global temperature to rise enough to release them.

This is not simply scaremongering either. In 1997, a body discovered in Alaska contained the genomic material from the virus responsible for the 1918 Spanish flu pandemic (which killed roughly 500 million people). In 2012, The New England Journal of Medicine reported that mummified remains could be reservoirs of DNA fragments from ancient pathogens, including smallpox (which has killed more than 300 million people since 1900 alone). Finally, scientists traced an anthrax outbreak in Siberia directly back to the burial grounds of long-dead animals that had, until recently, been covered in permafrost (Anthrax being 100% fatal without treatment and only 55% survival with it).

In addition to the horrors we know about, the permafrost could harbor viruses and pathogens about which we have no idea, and more importantly, which our immune systems have no way of combating. As temperatures rise and increasing amounts of previously isolated ground are revealed, the danger grows that a disease that has not seen the light of day for hundreds of thousands of years, and to which we have no natural defense, could be released.

What does this mean for us? Well, in one sense, it should motivate us to up our efforts to reduce our carbon emissions, slowing and eventually reducing the global warming for which we are all responsible. On the other hand, however, we have already got a plethora of reasons to stop climate change, from ecological collapse to increasing the likelihood of war and famine. Is another potential danger going to tip us over the edge into more drastic action? Probably not.

Unfortunately, it seems that we may have to live with the ever-possible danger that the price for our modern way of life is the release of an ancient pathogen; one which could be as innocuous as the common cold, as deadly as smallpox, or potentially something far worse.

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‘Barbie’’s Stereotypical Feminism

photograph of Barbie dolls in packaging on shelf

Warning: The following article contains spoilers for the Barbie movie.

Greta Gerwig’s Barbie movie is a campy adventure with beautiful and loving attention to detail and the franchise that inspired it. Its thematization of patriarchy, however, feels underdeveloped.

In some ways, the movie’s feminist message works. At its core, Barbie appears to be a critique of girlboss feminism, or the idea that women’s professional success = feminist success. Women are expected to assert themselves and achieve greatness within a capitalist, job-centered framework to advance gender equality. While this kind of representation can be excellent, it can also place undue pressure on women to meet a narrow conception of success.

In the Barbie world at the beginning of the film, women are presidents, Supreme Court justices, astronauts, physicians, Nobel peace laureates, and more. Women hold all the power in the idealized world of Barbieland. Our main character, Stereotypical Barbie (played by Margot Robbie), begins thinking about death, develops flat feet, and finds cellulite on her legs. Afraid of becoming like Weird Barbie (played by Kate McKinnon), Barbie goes to the real world to try to return to her pristine state, and Ken (played by Ryan Gosling) tags along.

Once she gets to the real world, Barbie realizes that the aspirational representation of all the Barbies hasn’t actually solved the problems of patriarchy, while Ken discovers the allure of patriarchy and power. As the movie continues and the Kens take over Barbieland to make it into Kendom, Barbie starts to feel inadequate — she’s not President Barbie who would know how to lead or Astronaut Barbie who has technical competence. She’s just Stereotypical Barbie, expected to be perfect and pretty and happy and never sad. Barbie only begins to find the courage to stand up and fight as she allows herself to become more and more human, finally choosing at the end of the movie to fully experience what it’s like to be a woman in the real world.

The movie’s basic critique of girlboss feminism works. It expects too much of individual women and values women based on their external achievements rather than their internal worth. As Olúfẹ́mi O. Táíwò argues in Elite Capture, tactics like girlboss feminism don’t necessarily shift and change underlying class power structures, and they can easily get co-opted in the service of capitalism.

However, beyond the critique of girlboss feminism, the rest of the Barbie movie has strikingly little to say about the modern feminist movement. Girlboss feminism has been firmly out of fashion for at least two years now, and concerns have shifted more firmly towards anti-racist and LGBTQ+ struggles.

The Barbie movie sidesteps intersectionality, which is one of the core underpinnings of contemporary feminism. Coined by Kimberlé Crenshaw, intersectionality proposes that, for example, the oppression of Black women can’t be reduced to the oppression of Black men + the oppression of white women. Misogynoir looks different from transmisogyny, which looks different from misogyny against white women. Transmisogyny against rich, white trans women looks different than transmisogyny against poor, black trans women. This doesn’t mean that we can’t have a unified feminist movement, but it does mean that any successful feminist movement will need to engage in coalitional politics and recognize different experiences under patriarchy.

The Barbie world represents historically marginalized women – Black women, larger-bodied women, differently-abled women – as holding equal power within the Barbieland matriarchy, and patriarchy is the only axis of oppression and power that is explicitly considered. This somewhat simplifies the task of the film, but it obscures the way that patriarchy can’t easily be isolated from other systems of oppression. It’s nice to see all the different Barbies living their perfect dreams; as a statement on how to understand and fight patriarchy, however, it’s too simplistic and unidimensional.

The current feminist struggle is much more closely tied to LGBTQ+ struggles and anti-racist struggles. In large part this is because trans and gay rights directly challenge the patriarchy and because the patriarchy can’t be easily separated from histories of white supremacy. The feminist struggle against patriarchy, then, is explicitly an intersectional project that goes beyond feminism for white, cis women.

The movie also misses the mark when it comes to intergenerational feminism. At points the movie seems to misunderstand Gen Z activism. Early in the film, Sasha (played by Ariana Greenblatt) calls Barbie a “fascist” as a way to demoralize her. As far as I can tell, Gen Z activists use the word fascist more accurately and sparingly than the film suggests. When young activists called Tennessee legislators “fascists” because they would not allow select house representatives to speak, they were calling out behavior that served to uphold the rights of a limited part of the population under the guise of civility and tradition.

The film more strongly focuses on the feminism of Sasha’s mother, Gloria (played by America Ferrera), who calls out many of the double binds women experience in a patriarchal society to help the Barbies reclaim their power from the Kens. However, despite the film’s recognition of the kinds of emotional labor that women are expected to do, it still falls on Barbie to comfort Ken and help him make sense of his place in the world at the end of the film. Barbie even apologizes for neglecting Ken, though it’s unclear that she owed him more of her attention in the first place.

Finally, there is the supporting emotional labor provided by Weird Barbie (played by Kate McKinnon) and Allen (played by Michael Cera), both of whom are decidedly queer coded. Patriarchy and other systems of oppression tend to enact a division of labor between genders. Women are generally expected to do emotional labor for men, and lesbians and gay men are also expected to do emotional labor for heterosexual women. Both Weird Barbie and Allen engage in heroic actions to aid the Barbies even when they’ve been marginalized on the sides of Barbie society. If only the movie were more self-aware about the one-sidedness of this labor.

One of the things that the movie gets right is that the feminist struggle is more than just a fight between women and men. As Robin Dembroff argues, patriarchy values “real men,” who just happen to be the elites. In a beautiful dance sequence, Ken (played by Ryan Gosling) and Ken (played by Simu Liu) compete to see who is the more manly and deserving of power. Allen, Midge, Skipper, and other canceled Barbies also exist outside of the Barbie/Ken paradigm and yet are still shaped by its heterosexual norms.

We shouldn’t expect a toy movie to do everything, especially as Mattel would likely reject anything at all directly related to LGBTQ+ issues for its potential political backlash. But for a campy adventure that dives deep into the heteronormativity of children’s toys, it could have done a better job of questioning those gender assumptions in the first place.

I guess it’s time for me to rewatch But I’m a Cheerleader again.

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Alien Disclosure – Is Ignorance Bliss?

image of ufo hovering over desert road

This week – in scenes straight out of an episode of The X-Files – a House Oversight subcommittee has begun hearing testimony regarding an alleged alien cover-up by the U.S. Government. According to retired Major David Grusch, the U.S. has been retrieving and reverse engineering unidentified flying objects (UFOs) since the 1930s. Among the claims made by Grusch, the most audacious – and, perhaps, most unsettling – is that this government activity has included the recovery of non-human biologics.

Put simply: Grusch claims that aliens have visited Earth, and that the U.S. government is well aware of this.

It’s obvious that UFOs exist: I see one every time I spot something in the sky that I’m incapable of identifying. What is controversial, however, is the claim that some of these UFOs are of alien origin. As famed astronomer Carl Sagan noted, however: “extraordinary claims require extraordinary evidence.” And while Grusch has provided a great deal of testimony relating to the alleged cover-up, this has been exclusively in the form of second-hand reports from other government officials. Grusch himself has not seen these alien spacecraft or biologics first-hand, nor has he yet provided concrete evidence of their existence to the subcommittee.

But suppose that Grusch is right. The possibility of the government covering up evidence of alien visitations raises all kinds of ethical questions – especially when it comes to a government’s duty to disclose information to its citizens. Would it be right for the U.S. to keep such a revelation from its people?

Governments keep secrets all the time. Ostensibly, this is done for the benefit of those they govern. We can only assume that something similar would be true in this case. Incontrovertible evidence of the existence of alien life would be an unprecedented turning point in human history. It would shatter the worldviews of many, and have far-reaching implications for many of our religious and philosophical beliefs. It’s conceivable that, despite our best cognitive intentions, this revelation would be accompanied by widespread fear and anxiety.  As the protagonists of Men in Black so eloquently put it:

James Edwards: “Why the big secret? People are smart. They can handle it.”

Agent Kay: “A person is smart. People are dumb, panicky, dangerous animals and you know it.”

The reason for government non-disclosure, then, might simply be to avoid such panic: that is, to maximize the welfare of the citizenry. But how do we measure welfare? Put another way, how do we establish what makes a life go well? One obvious answer is “happiness.” Indeed, this is what the Hedonists believe – that how well a life is going can be measured purely in terms of pleasure and pain. What this means is that if the disclosure of alien life would, on balance, make people’s lives less happy, then the government is maximizing welfare (i.e., doing the right thing) by refraining from sharing that information.

But is pleasure really all that matters? Robert Nozick poses a famous thought experiment to challenge this idea. Imagine that there is a machine that can give you any experience you want. You can program it with whatever will bring you pleasure, and avoid anything that brings you pain. What’s more, upon entering the machine, you will lose any memory of having done so – meaning that your experiences will not be ruined by the knowledge that they are illusory.

The question: would you choose to hook up to this machine for the remainder of your life?

When I pose this thought experiment to my students, they often raise one of several concerns. Many worry about the friends and family they would leave behind. But suppose that these people also have the option to enter their own experience machines – something which they happily do. Others worry that a life filled with constant pleasure wouldn’t be as good – that is, that without the bitter, the sweet wouldn’t be as sweet. But we can take care of that too. If it helps your appreciation of the pleasure, some small amounts of pain can be programmed into your experience too. Ultimately, all that matters is that your life in the experience machine would be one that gives you a greater balance of pleasure-over-pain than your ordinary life.

Yet, despite this, many would be reluctant to enter the experience machine. The most often cited reason for this is that there is more to our welfare than happiness. Sometimes, what’s best for us isn’t what brings us the most pleasure. That’s why we go to bed early, visit the dentist, and read dry philosophical treatises.

And the very same reasoning applies to knowledge. Suppose that you’ve just bought a brand new outfit and ask a trusted friend how you look. Suppose, further, that the outfit is atrocious and makes you look absolutely ridiculous. Which would be better for you: To be told a flattering lie that makes you feel good about yourself? Or to receive the harsh truth – a truth that might allow you to make better decisions going forward? While the former might bring about greater pleasure, there are good reasons why many of us might prefer the latter.

There are many cases where it might be good for us to be given certain information, even when that information brings us sadness or anxiety or fear. Consider, for example, a cancer diagnosis or evidence of the infidelity of a spouse. The question for us is whether or not evidence of alien life is one such example. It’s undeniable that while some would be thrilled by government disclosure of the existence of alien life, many others would suffer from a raft of negative emotions. Given the considerations above, however, it’s no longer immediately obvious that these negative responses justify non-disclosure. It may very well be the case that our lives will go better knowing that we are not alone in the universe, even if that prospect doesn’t make us happier. Maybe, when it comes to evidence of aliens, ignorance isn’t bliss.

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The Call for Supreme Court Reform

photograph of Supreme Court building facade

Representative Alexandria Ocasio-Cortez has called for reforms to the Supreme Court of the United States (SCOTUS), specifically increasing the number of justices. The reforms are needed, she says, because of the rightward tilt of decisions over the past year including Dobbs v. Jackson Women’s Health Organization (abortion) and 303 Creative LLC v. Elenis (public accommodations and discrimination). On CNN she claimed that if reforms do not occur, then SCOTUS will function “without any check on their power, without any balance on their power, then we will start to see an undemocratic and, frankly, dangerous authoritarian expansion of power in the Supreme Court.” The opinion pages of major journalistic outlets like The Washington Post include similar views decrying judicial behavior.

To assess the need for reform and effectiveness of potential solutions, we must first determine what it would mean to have a properly functioning judicial system. One way to evaluate our social and political institutions is through John Rawls’s constructivist lens presented in his seminal work A Theory of Justice (and elsewhere). Rather than starting with a specific (and contentious) ideal, we tie our conception of proper functioning to the product of particular processes. As Carla Bagnoli describes it, constructivism is a view that “insofar as there are normative truths, they are not fixed by normative facts that are independent of what rational agents would agree to under some specified conditions of choice.”

To make sense of this description I like to think about where constructivism fits into a picture of objectivity and subjectivity. At one end we have facts — statements such as “the cat is on the mat” — whose correctness is determined by a set of referents independent of any human observer. As long as there is a mat, there is a cat, and the two objects have the right kind of relationship, the statement is either correct or incorrect. This is a realist view in which there are objective truths to be discovered in the world. But moral, political, and legal decisions are different from such prosaic examples. So, some have argued that normative statements are mere matters of opinion, lack truth value, and may be little more than non-cognitive expressions of emotion like “SCOTUS decision — Boo!” or “SCOTUS decision — Huzzah!” In other words, there is no objective truth whatsoever to Rep. Ocasio-Cortez’s evaluative claim that SCOTUS is involved in “a dangerous creep toward authoritarianism.”

Constructivists attempt to locate themselves in between realist views and non-cognitivist views. In constructivist views, statements about morality, politics, and the law have independence from individual human beliefs and emotions, and thus they have a claim to being objective. But the truths in these normative domains are not discovered facts, as a realist would claim. The truths are created by a combination of the rules of the game which we construct, and the facts as they occur as we play the game.

What does this have to do with SCOTUS? Rawls makes a distinction between different types of games we can be playing in political arenas. The difference between these games is the nature of the procedures used to identify evaluative truths. One of these games involves imperfect procedures; another game uses pure procedures.

Imperfect procedures start with the assumption that there exists an independent criterion concerning what constitutes a correct answer, but that the practices available to an investigator do not guarantee that the correct answer will be identified. Rawls uses a jury trial as an example. Lawyers use the adversarial method to convince a jury of peers that the accused either is or is not legally guilty. But those who are watching often want a verdict to express not legal guilt but something more — namely did the accused actually act in a way that warrants a conviction or acquittal. As Rawls puts it, in a jury trial using the adversarial method, “[e]ven though the law is carefully followed, and the proceedings fairly and properly conducted, it may reach the wrong outcome.” The existence of the appeals procedure, and the work of organizations like The Innocence Project, suggests that the adversarial method does not guarantee the correct answers.

Alternatively, the major difference with a pure procedure is that a pure procedure does not assume the existence of an independent reality and criterion for what constitutes a correct answer. Instead, the procedure itself, when run, constructs the correct answer. An example of such procedures is a bracket procedure used in professional tennis tournaments. There is no answer to the question “who is the best women’s player at Wimbledon in 2023?” until the tournament is finished. Iga Swiatek may have been ranked number one in the world and the number-one seed at Wimbledon, but before the tournament finished, there was no answer to the question. Now that the tournament is over, we can answer the question: Markéta Vondroušová is the best women’s player at Wimbledon in 2023, despite being unseeded at the beginning of the tournament.

If we want to know whether SCOTUS or the other federal courts are functioning properly or in need of reform, we need to determine what type of procedure governs the practices of the courts and see whether SCOTUS is behaving in accordance with these conceptions. Begin with the following question: Is SCOTUS supposed to be operating in a manner consistent with imperfect procedural justice?

At first glance, that seems to be the case. Decisions made by SCOTUS are supposedly constrained by several independent criteria. First, the content of the U.S. Constitution, especially the Bill of Rights, is supposed to be an independent constraint on their rulings. SCOTUS can’t ignore issues of due process. SCOTUS and the legislative bodies have the ability to shape the nature of due process, but the Fifth Amendment requires that certain rules are followed. Next is the concept of standing which requires a plaintiff to have an interest that is violated, an “injury-in-fact.” This keeps the court from making decisions based on hypothetical cases of legal injury. There is also the concept of stare decisis, the idea that courts should honor precedent to create a predictable and consistent legal system (see here).

A Supreme Court justice that had this many constraints and attended to them should, as Chief Justice John Roberts stated in his confirmation hearing, see their “job as to call balls and strikes.” In other words, the role of a justice is to look at the facts of a case and consider the independent constraints of precedent, statutory laws, and constitutional laws, and merely make a judgment about the truth in the case.

Has SCOTUS lived within these constraints? Some have argued that the Plaintiff Lorie Smith did not have standing in 303 Creative LLC because a) no one asked her to make a website for a wedding between two people of the same sex, and b) no state agency invoked the Colorado Anti-Discrimination Act in legal action against her. She suffered no injury-in-fact. Further, given that Dobbs overturned an almost 50-year-old precedent in Roe v. Wade and SCOTUS overturned decades of precedent in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, there is reason to believe that the court is not abiding by stare decisis. Admittedly, stare decisis is not an absolute constraint, otherwise the ruling of Brown v. Board of Education would also be problematic. However, given the current willingness to claim that a previous case was wrongly decided despite being upheld by other decisions suggests it is currently no constraint at all.

Next, consider that Marbury v. Madison reinforced the concept of judicial review – the Court can invalidate laws and statutes considered inconsistent with the Constitution. Judicial review is effectively the power to interpret the prevailing legal institutions, especially the Constitution, to justify decisions. So, it is not simply the Constitution, but a justice’s interpretation of that document, that is operative in justifying SCOTUS decisions. Ultimately, a justice issues guidance as to the correct answer according to how their particular interpretive lens (originalism, contextualism, legal pragmatism, etc.) makes sense of the facts of the case. But that means the Constitution is not, by itself, an independent constraint on judicial decisions either.

In short, it is not clear that there are constraints on SCOTUS, so it looks like we should not see it as using imperfect procedures.

Does SCOTUS instead operate according to a pure procedure? It might seem so since we don’t really know the correct answer to a legal question until SCOTUS rules. The process of appealing a lower-court decision, SCOTUS hearing the case, and making a decision settles the matter. Pure. Procedure. So, on this view, SCOTUS in Dobbs, 303 Creative, etc., is functioning as it should, and the basis for criticizing the Roberts Court as radical, activist, illegitimate is questionable, as is the call for reform.

But it is important to note that SCOTUS is not like Wimbledon. Tennis tournaments have rules that are drawn up by one group of people, while another group of people act as judges during matches. The procedure — the bracket — then develops based on the actions of the players as overseen by the judges. This is decidedly different from how the Supreme Court currently operates. Between choosing judicial interpretive lens, interpreting the rules of standing, determining whether stare decisis should be honored, SCOTUS is fundamentally not like these sports tournaments. When a case comes before SCOTUS, the justices can act as both the umpires and the rules committee. They make choices about the relevant rules and their application after the legal competition has begun. In sports, all of these decisions are made and publicized prior to the first match. So, in very important ways, SCOTUS operates in a way that is not even consistent with a paradigm example of a pure procedure. In other words, these are not decisions created by a combination of the rules of the game which we construct, and the facts as they occur as we play the game. They are also constructed by those who are changing the rules as the game proceeds.

If we accept the above, then recent decisions show the Court is functioning as designed, but perhaps not functioning as we want. The decisions are not discovered by an imperfect procedure; they are not created by a pure procedure. Instead, they are the result of something else, such as expression of political power. So, what can be done? When evaluating institutions, Rawls would have us ask “is this how a group of rational individuals, unaware of their own biases or even personal characteristics, would design the rules of a judicial system?” If the answer is “No! This is not the design we want,” will increasing the number of judges fix the problem?  Unfortunately, increasing the number of justices, as Ocasio-Cortez suggests, will not make the court function properly — it will simply shift the balance of power. Instead, what is needed are enforceable constraints on the decisions of justices so that SCOTUS operates more like a sporting event and less like a pure exercise of political power.

 

The author would like to acknowledge the help of his colleague Dr. Dominic DeBrincat, Professor of History.

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Is Students for Fair Admissions Good Constitutional Law?

photograph of college gates with students beyond

Last month’s Supreme Court decision invalidating the affirmative action programs used by Harvard University and the University of North Carolina to make undergraduate admissions decisions has, of course, generated a great deal of commentary – so much, indeed, that it easy to lose sight of two important issues: first, what were the arguments by which the Court arrived at its conclusion, and second, whether those arguments are any good in constitutional terms. As it turns out, both issues are more complicated than one might have thought based on the bite-sized encapsulations the media tends to provide.

Given that even the dissenting opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, written by Justice Sonya Sotomayor, accuses the Court of “upend[ing] the status quo based on their policy preferences about what race in America should be like,” it is worth asking at the outset whether the Court’s arguments even merit close examination. Are they not, as the Court’s opponents tend to believe, mere post hoc rationalizations for imposing the policy preferences of the Court’s conservative wing? This complaint rings somewhat hollow coming from critics who generally countenance a place for judicial value judgments in constitutional jurisprudence; and in any case, it is mostly irrelevant. Whatever the Justices’ policy preferences or value judgments, they recognize that they are constrained to furnish public justifications for their decisions in terms of the doctrines and canons of judicial reasoning that constitute the tradition of American constitutional thought. Even if the public justifications are post hoc, they – and not the Justices’ policy preferences or value judgments – are what the public sees, and what judges and lawyers must rely upon, and ultimately the Court’s decisions stand or fall with them.

The Court’s argument that Harvard’s and UNC’s race-conscious policies are unconstitutional is simple in outline: the Equal Protection Clause of the Fourteenth Amendment prohibits racial discrimination by the states unless it is narrowly tailored to further a compelling government interest (this test is known as “strict scrutiny”); the colleges’ policies are racial discrimination, thus subject to strict scrutiny; they do not further a compelling government interest and are not narrowly tailored; therefore, they are unconstitutional.

No one disputes the argument’s first premise – that the Equal Protection Clause prohibits racial discrimination unless it passes the strict scrutiny test. This actually turns out to be important, because it means that everyone agrees racial discrimination by the states could be permissible. One need not read the Clause this way: it says simply that no state shall “deny to any person . . . the equal protection of the laws.” This categorical-sounding language could be interpreted as imposing an absolute ban on racial discrimination. The Court has chosen not to interpret it as an unqualified ban, and instead has allowed racial discrimination in a number of contexts – for example, segregating prison inmates by race to prevent imminent, serious harm from a race riot. And that means that the Court must consider whether the state’s interest is sufficiently compelling to justify racial discrimination.

It is less clear whether everyone on the Court agrees that Harvard’s and UNC’s affirmative action programs are racial discrimination in the sense that triggers strict scrutiny. Although Justice Sotomayor’s dissenting opinion purports to show why they pass strict scrutiny, thus implying that they are racial discrimination subject to this test, this may be because Justice Sotomayor chose not to contest the Court’s practice, which goes back to the first affirmative action cases, of analyzing affirmative action programs as if they were a form of racial discrimination. Indeed, in a way this question of whether affirmative action programs are racial discrimination gets to the heart of the disagreement between the majority and dissenting opinions, which concerns the meaning of the Equal Protection Clause itself.

For the majority, the Clause stands for the proposition that the Constitution “should not permit any distinctions of law based on race or color.” In other words, for the majority the Constitution presumptively forbids any law, policy, or regulation that classifies people by race and distributes benefits and burdens on that basis, on the theory that such classifications are inherently arbitrary and unjust. Thus, the Court approvingly quotes Brown v. Board of Education (1954) as saying that segregation in public schools would be wrongful “even though the physical facilities and other ‘tangible’ factors may be equal” – the “mere act of separating” is bad enough. The remedy is that the law should be formally colorblind.

By contrast, the dissenting opinion presents a view of equal protection that is less formalistic and more functionalist. According to this view, equal protection aims to eliminate racial “caste” systems, which are partly maintained through the state’s treatment of racial minorities in ways “denoting ‘inferiority as to their status in the community.’” On this view, racial classifications may only become problematic when they function to perpetuate or express the racial values of the caste system. Assuming that affirmative action programs do not do this, it might be argued that they do not even count as racial discrimination, and so are not subject to strict scrutiny at all. Again, the dissenting opinions do not go quite this far, but it is an implication that follows logically from their interpretation.

Who is right here? It is important to recognize that to be “right” in this context is not, at least in the first instance, a matter of moral judgment. Instead, it is about the proper interpretation of the Equal Protection Clause. In a sense, the issue is what ideal – the law as colorblind or as eliminating racial caste – was guiding those who drafted or ratified the Fourteenth Amendment, Congressmen who legislated during and just after it was passed, and others who might have insight into how it was understood at that time. The dissenting opinion can, and does, point to numerous examples of contemporaneous laws passed by Congress, such as the law creating the Freedman’s Bureau, as evidence that equal protection was thought to be fully compatible with color-consciousness. But that evidence is only so persuasive, given that these laws were largely addressed to ex-slaves, not Blacks as such; and more importantly, both sides agree that the Constitution’s bar on racial discrimination is merely (though strongly) presumptive. In other words, since the majority concedes that some racial discrimination passes strict scrutiny, the obvious reply is that, for example, the law creating the Freedman’s Bureau was racial discrimination and was perhaps understood as such, but it was thought to be necessary to meet the compelling needs of newly-freed slaves. Since no one in 1868 talked about these issues using terms like “strict scrutiny,” “race conscious,” or “colorblindness,” and since Congress was addressing a set of issues very different from those we now confront, it is difficult to be sure whether the congressional proponents of apparently race conscious laws saw them as justified racial discrimination or not racial discrimination at all. That is a somewhat fine distinction for your average Congressman.

In any case, as I mentioned, the Court’s opinion presumes that affirmative action is racial discrimination subject to strict scrutiny, and the dissent does not strongly contest that claim. So, let us consider why the Court held that affirmative action fails strict scrutiny. Its principal argument is that in order to justify racial discrimination, the government’s interest, or the goal it is trying to achieve, must be sufficiently “coherent” and “measurable” to be “subjected to meaningful judicial review”; and racial discrimination must be necessary to achieve the goal. According to the Court, the Harvard and UNC programs fail on both counts. Harvard identified the following educational benefits that its program helps facilitate: “training future leaders in the public and private sectors”; preparing graduates to “adapt to an increasingly pluralistic society”; “better educating its students through diversity”; and “producing new knowledge stemming from diverse outlooks.” Although the Court calls these aims “commendable,” it complains that “it is unclear how courts are supposed to measure any of these goals.” And even if they could be measured, the Court asks, “how is a court to know when they have been reached[?]” In addition, the Court questions whether assigning students to racial categories “furthers the educational benefits that the universities claim to pursue.” The Court’s point here, which is consistent with the racial skepticism evinced by a number of Justices during oral argument, is that racial categories are arbitrary and say relatively little about a person’s outlook or experience. Indeed, the Court also accuses Harvard and UNC of engaging in racial stereotyping, assuming that “[students] of a particular race, because of their race, think alike.”

On its face, these criticisms seem to have some merit. In the context of the rest of the Court’s constitutional jurisprudence, however, it is difficult to resist Justice Sotomayor’s claim that the Court here “moves the goalposts” of strict scrutiny in order to arrive at its preferred conclusion. Prima facie, the Court should consider the diversity goals of affirmative action programs sufficiently concrete to be compelling because it has in the past, in Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), and Fisher v. University of Texas at Austin (2013). The Court also previously found the “plus factor” approach to affirmative action sufficiently well-connected to those goals. In other contexts, the Court has approved of such nebulous compelling interests as “protecting the integrity of the Medal of Honor,” “public confidence in the judiciary,” or “maintaining solemnity and decorum in the executive chamber.” The Court could reply that it seriously misapplied strict scrutiny in the past, although in its opinion it claims that it “never permitted” admissions programs like Harvard’s and UNC’s, without explaining in detail how the programs at issue in Bakke, Grutter, or Fisher were relevantly different (Justice Gorsuch’s concurrence is less cagey about the fact that SFFA overrules the earlier cases). It could also claim that the standards of concreteness or measurability are higher in the equal protection context because the Constitution so disfavors racial discrimination, but that, too, would represent a departure from the Court’s previous approach.

On the whole, the Court’s reasoning in SFFA is unconvincing. The Court plumps for a formalistic conception of the Equal Protection Clause that focuses on a particular means – racial classification – divorced from an appreciation of its substantive end. In a different world, the Court might have decided long ago that affirmative action programs do not even qualify as racial discrimination in the sense relevant to triggering strict scrutiny. Even if they do, the Court’s strict scrutiny analysis places high hurdles in front of affirmative action programs that the Court has not used in other contexts.

All of that said, no one can be surprised at the demise of affirmative action. Starting with Bakke, the Court has never shown much enthusiasm for it. First, it decided that strict scrutiny applies, which in any context imposes a tough burden on the government to justify the law under review. Second, it held that remedying the effects of past discrimination is not a compelling government interest because it is an “amorphous concept of injury that may be ageless in its reach into the past.” This forced institutions like Harvard to rely on the argument that affirmative action is necessary to achieve the educational benefits of a diverse student body, which is perhaps a less compelling rationale. Boxed in by these two moves, the defenders of affirmative action were always fighting uphill.

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Honesty in Academia

photograph of Harvard's coat of arms

Honesty researcher Francesca Gino, a professor at Harvard Business School, has been accused of fabricating data in multiple published articles.

In one study, participants were given 20 math puzzles and awarded $1 for each one they solved. After grading their own worksheets, test subjects then threw them out and reported their results on another form. Some participants were asked to sign to confirm that their report was accurate at the bottom of the form, while others signed at the top. Gino’s hypothesis was that signing at the top would prime honest behavior, but she then allegedly tampered with the results to drive the intended effect. Gino is now on administrative leave while Harvard conducts a full investigation.

While it would obviously be ironic if Gino had been dishonest while researching honesty, there is a further reason that such dishonesty would be particularly galling, as dishonest research violates one of the cardinal virtues of the academic vocation.

Let me explain. Some readers might already be familiar with the traditional list of the cardinal virtues: Justice, Courage, Prudence, and Temperance. Honesty, of course, is nowhere on this list. So what do I mean when I call honesty a cardinal virtue?

Different vocations have their own characteristic virtues. It is not possible to be a good judge without being particularly just. Likewise, it is not possible to be a good soldier on the front lines without being particularly courageous. That is because each of these vocations emphasize certain virtues. A soldier must have the virtue of courage to repeatedly thrust themselves into battle, and a judge must have the virtue of justice in order to consistently reach fair verdicts.

Are there any characteristic virtues of the academic vocation? Professors typically have two primary tasks: the generation and transmission of knowledge. For both of these tasks, an emphasis on truth takes center stage. And this focus on truth means that professors will do better at both of these tasks by cultivating the intellectual virtues – virtues like open-mindedness, curiosity, and intellectual humility. For this reason, we can think of these intellectual virtues as cardinal virtues of the academic vocation.

But along with these intellectual virtues, honesty is also particularly important for the academic vocation. When students learn from their professors, they often simply take them at their word. Professors are the experts, after all. This makes students especially vulnerable, because if their professors deceive them, they cannot detect it.

This is true to an even greater extent with cutting-edge research. If professors are being dishonest, it could be that no intellectual discoveries are being made in the first place. In Gino’s case, for example, she may have concealed the fact that the study she performed did not actually support her findings. But without specialized training, few people can understand how new knowledge is generated in the first place, leaving them completely vulnerable to the possibility of academic dishonesty. Only other academics were able to spot the irregularities in Gino’s data that has led to further questions.

We thus have reason to take honesty as a cardinal virtue of the academic vocation as well. Not only do academics need to be open-minded, curious, and humble, but they must also be honest so that they use their training to further higher education’s most important goals. If academics regularly passed off false research and deceived their students, it would threaten to undermine the university enterprise altogether.

Distrust in higher education is on the rise, and to the extent that academics acquire a reputation for dishonesty, it is sure to only decline further. Gino’s work is just the tip of the iceberg. One of Gino’s co-authors has also been accused of faking his data, and Stanford’s president is stepping down due to questions about his research, but these are isolated incidents in comparison to the widespread replication crisis. When researchers tried to reproduce the results from 98 published psychology papers, only 39 of the studies were able to be replicated, meaning that over half of the “research” led to no new discoveries whatsoever.

While a failure of replication does not necessarily mean that the researchers who produced that work were being dishonest, there are many dishonest means that can lead to a study that can’t be replicated, including throwing out data that does not confirm a hypothesis or questionable methods of data analysis. Until the replication crisis, and discoveries of fake data, begin to wane, it will be difficult to restore public trust in social science research.

Is there anything that can be done? While public trust in higher education will not be restored overnight, there are several changes that could potentially help professors cultivate the virtue of honesty. One strategy for curbing our vices is limiting the situations in which we are tempted to do the wrong thing. As one example, pre-registering a study commits a researcher to the design of a study before they run it, removing the opportunity to engage in questionable statistical analysis or disregard the results.

Another way to increase virtuous behavior is to remind ourselves of our values. At the college level, for instance, commitment to an honor code can serve as a moral reminder that reduces cheating. Academic institutions or societies could develop honor codes that academics have to sign in order to submit to journals, or even a signed honor code that is displayed on published articles. While some professors might still be undeterred, others will be reminded of their commitment to the moral values inherent to their vocation.

Universities could also reconsider which professors they hold up as exemplars. For many academic disciplines, researchers that produce the most surprising results, and produce them on a regular basis, are held up as the ideal. But this of course increases the incentive to fudge the numbers to produce interesting “research.” By promoting and honoring professors that have well-established, replicable research, colleges and universities could instead encourage results that will stand the test of time.

None of these solutions is perfect, but by adopting a combination of measures, academics can structure their vocation so that it is more conducive to the development of honesty. It is impossible to eliminate all opportunities for dishonesty, but by creating a culture of honesty and transparency, professors can restore trust in the research they publish and in higher education more generally.

For her 2018 book, Rebel Talent, Francesca Gino opted for the tagline “Why it pays to break the rules at work and life.” The jury is still out on whether that was true in Gino’s case. If she was dishonest, it enabled her to ascend the ranks, landing at the top of the ladder as a professor at Harvard. To prevent more accusations like these moving forward, universities need to put in the work to ensure that honesty is what’s rewarded in academia.

 

This work was supported by the John Templeton Foundation grant “The Honesty Project” (ID#61842). Nevertheless, the opinions expressed here are those of the author and do not necessarily reflect the views of the Foundation.

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What Titan Teaches About Technological Recklessness

render of Titan submersible

Since it was discovered that the Titan submersible had imploded, many have noted how reckless and irresponsible it was to “MacGyver” a deep-sea submersible. The use of off-the-shelf camping equipment and game controllers seemed dodgy, and everyone now knows it is absolute folly to build a pressure capsule out of carbon fiber. Yet, for years Stockton Rush claimed that safety regulations stifle innovation. Rush’s mindset has been compared to the “move fast and break things” mentality prominent in Silicon Valley. Perhaps there’s something to be learned here. Perhaps we’re hurtling towards similarly avoidable disasters in other areas of science and technology that we will come to see as easily avoidable in hindsight if not for our recklessness.

Since the disaster, many marine experts have come publicly forward to complain about the shortcuts that OceanGate was taking. Even prior to the implosion, experts had raised concerns directly to Rush and OceanGate about the hull. While search efforts were still underway for the Titan, it came to light that the vessel had not been approved by any regulatory body. Of the 10 submarines claiming the capacity to descend to the depths where the Titanic lies, only OceanGate’s sub was not certified. Typically, submarines can be safety rated in terms of their diving depth by an organization like Lloyd’s Register. But as the Titan was an experimental craft, there was no certification process to speak of.

What set the Titan apart from every other certified submarine was its experimental use of carbon fiber. While hulls are typically made of steel, the Titan preferred a lightweight alternative. Despite being five inches thick, the carbon fiber was made of thousands of strands of fiber that had the potential to move and crack. It was known that carbon fiber was tough and could potentially withstand immense pressure, but it wasn’t known exactly how repeated dives would impact the hull at different depths, or how different hull designs would affect the strength of a carbon fiber submarine. This is why repeated dives, inspections, and ultrasounds of the material would be necessary before we get a firm understanding of what to expect. While some risks can be anticipated, many can’t be fully predicted without thorough testing. The novel nature of the submarine meant that old certification tests wouldn’t be reliable.

Ultimately, Titan’s failure wasn’t the use of carbon fiber or lack of certification. There is a significant interest in testing carbon fiber for uses like this. What was problematic, however, was essentially engaging in human experimentation. In previous articles I have discussed Heather Douglas’s argument that we are all responsible for not engaging in reckless or negligent behavior. Scientists and engineers have a moral responsibility to consider the sufficiency of evidence and the possibility of getting it wrong. Using novel designs where there is no clear understanding of risk, where no safety test yet exists because the exact principles aren’t understood, is reckless.

We can condemn Rush for proceeding so brashly, but his is not such a new path. Many of the algorithms and AI-derived models are similarly novel, their potential uses and misuses are not well-known. Many design cues on social media, for example, are informed by the study of persuasive technology, employing a limited understanding of human psychology and then applying it in a new way and on a massive scale. Yet, despite the potential risks and a lack of understanding about long-term impacts on a large scale, social media companies continue to incorporate these techniques to augment their services.

We may find it hard to understand because the two cases seem so different, but effectively social media companies and AI development firms have trapped all of us in their own submarines. It is known that humans have evolved to seek social connection, and it is known that the anticipation of social validation can release dopamine. But the effects of gearing millions of people up to seek social validation from millions of others online are not well known. Social media is essentially a giant open-ended human experiment that tests how minor tweaks to the algorithm can affect our behavior in substantial ways.  It not only has us engage socially in ways we aren’t evolutionary equipped to handle, but also bombards us with misinformation constantly. All this is done on a massive scale without fully understanding the potential consequences. Again, like the carbon fiber sub these are novel creations with no clear safety standards or protocols.

Content-filtering algorithms today are essentially creating novel recommendation models personalized to you in ways that remain opaque. It turns out that this kind of specialization may mean that each model is completely unique. And this opacity makes it easier to forget just how experimental the model is, particularly given that corporations can easily hide design features. Developing safety standards for each model (for each person) is essentially its own little experiment. As evidence mounts of social media contributing to bad body image, self-harm, and suicide in teenagers, what are we to do? Former social media executives, like Chamath Palihapitiya, fear things will only get worse: “I think in the deep, deep recesses of our minds we knew something bad could happen…God only knows what it’s doing to our children’s brains.” Like Rush, we continue to push without recognizing our recklessness.

So, while we condemn Rush and OceanGate, it is important that we understand what precisely the moral failing is. If we acknowledge the particular negligence at play in the Titan disaster, we should likewise be able to spot similar dangers that lie before us today. In all cases, proceeding without fully understanding the risks and effectively experimenting on people (particularly on a massive scale) is morally wrong. Sometimes when you move fast, you don’t break things, you break people.

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Is Murder Really Worse Than Polluting?

photograph of oil mixing with water

In a May 25th decision, Sackett v. Environmental Protections Agency, the U.S. Supreme Court placed further restrictions on the regulatory powers of the federal government. It has been longstanding practice that under the Clean Water Act the Environmental Protection Agency can regulate wetlands connected to navigable waters. But the recent 5-4 decision now requires “continuous surface connections” between regulatable wetlands and navigable waters, disregarding groundwater pathways.

This is obviously a victory for industries most likely to pollute waters – mining, construction, ranching, etc. – but more broadly it highlights the separation between two very different legal regimes. One governs the actions of corporations and white-collar through administrative agencies, regulations, and fines. The other involves the more familiar legal regime of cops, imprisonment, and even executions.

Criminal prosecution for harms such as pollution does occur, but is generally of a lesser order. The most severe penalty under the Clean Water Act is “knowing endangerment” – if, for example, a business owner ordered deadly chemical waste dumped in a river they knew was used as drinking water. The maximum penalty for knowing endangerment is 15 years in prison and a $250,000 fine.

But is polluting a river, with chemicals possessing the power to kill someone, a lesser crime than murder? (Even if one generally rebukes the American criminal justice system, the inconsistency can be an independent concern.) Should we, if we strive to be consistent in matters of justice, allow for harsher penalties?

One way to think about what severity of punishment would be justifiable is via theories of punishment. These attempt to justify the use of punishment in society. The two most common justifications deployed are consequentialist or retributivist.

Consequentialist theories of punishment – namely deterrence, incapacitation, and rehabilitation – justify punishment as a means of achieving specific social aims. Deterrence theories justify punishment on the basis of discouraging further crimes. Incapacitation theories argue punishment is justified to remove harmful elements from society. Rehabilitation theories explain punishment as a process to reform the criminal and reintegrate them in society. As the aim of consequentialist theories is to produce certain outcomes, the form of punishment depends on the most effective means for achieving the social goal.

Take deterrence as an example. It is sometimes assumed a harsher punishment is a stronger deterrent, but evidence indicates the primary deterrent is often the likelihood of being caught. Therefore even for very serious crimes a staunch deterrence theorist may not care how severe the punishment is, as long as it is rigorously enforced (which, incidentally, seems not to be the case with environmental crimes).

Retributivism is the approach to punishment where questions of proportionality between crimes and their punishments is most significant. It is also the dominant theory in the American legal system. The idea behind retributivism is not to achieve a specific social good or prevent harm, but ensure criminals get what they deserve. This has enormous psychological appeal, although philosophers have struggled to establish a clear basis for the intuition that crimes “deserve” punishment. What exactly does it mean for punishment to “fit” the crime?

Retributivism often holds that punishments should be fair or proportionate. Tax fraud, for example, probably shouldn’t merit death. But does this suggest there are retributivist grounds for claiming crimes like assault, mugging, or murder deserve a harsher punishment than knowingly disposing of toxic chemicals in a river used for drinking? It may depend on the exact details of the harm caused. We generally punish murder more severely than assault, and assault more seriously than shoplifting. On this analysis, large-scale crimes such as polluting a river should have extremely severe punishments. For more distant harms, say a cancer diagnosis 10 years after the disposal of chemical waste, it may be challenging to tie the crime to the particular harm. But this is a prosecutorial challenge and does not concern what punishment is in principle deserved.

What about violence? Violent crimes are often distinguished from non-violent crimes, with violent crimes meriting harsher sentencing. Is a crime like dumping toxic waste in a river less severe because it is less violent? One challenge to this is that violence is often simply a proxy for harm caused, where bodily harm is treated as more severe than, say, monetary loss. But environmental crimes can cause bodily harm. Presumably poisoning someone to death is not a lesser crime than stabbing someone to death, even if it is nonviolent.

A further question is whether harms “add up.”  Is stealing 100 dollars from 100,000 people worse than murdering one person? If harms compound in any way, then crimes with very widespread effect, such as environmental crimes, high-level political corruption, and financial crimes, could be among the most severe of all crimes even if their per-person impact is small.

As for arguments in favor of less severe sentencing for crimes such as pollution, perhaps the best defense concerns intent. When someone engages in financial shenanigans or dumps toxic waste in a river, their intent in most cases is not, presumably, to cause harm. By contrast, with a murder or assault the harm is often the central aim. The question that emerges is whether callous indifference to the harm caused is preferable to intentionally seeking to cause harm. Such judgments are hard to make, but even if preferable to an overt intent to harm, indifference to harming others is not a particularly exculpatory state of mind.

There is also a notable inconsistency here. In the United States there exists the practice of felony murder, where if someone dies during the course of a felony (e.g., a robbery), the defendant can also be charged with murder. For example, a lookout in a robbery was charged with murder after cops responding to the robbery accidentally killed someone. This practice is unsurprisingly controversial, but if it exists for crimes like robbery where there was no intent to kill, then it should logically exist for dangerous environmental crimes as well.

Overall, the retributive case for lesser punishment for environmental crimes is not compelling. If anything, on a retributive analysis, the punishments for large-scale crimes should be exceptionally severe. Beyond philosophical analysis, there are two other plausible explanations for asymmetries in crime and punishment.

First, our sense of justice thrives on the visceral. We are shocked at crimes of singular brutality and cruelty with identifiable (and sympathetic) victims. It is well established that we can quickly go numb to widescale harms. And yet, our society is dominated by large institutions.  And it is those ensconced in the upper echelons of these institutions who have the most capacity to cause harm, even if they are very far removed from the consequences. The obfuscation of climate change by fossil fuel companies is the biggest, although far from the only, example. We  psychologically struggle with more abstract crime with more diffuse consequences.

Second, is the unequal distribution of power in society. It is in the interest of the mugger to have minimal sentences for mugging and the coal executive to have minimal sentences for polluting. But there is a vast difference in their ability to shape the law.

Together, these two considerations often confound what should otherwise be a more straightforward question.

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How I Learned to Worry About the Bombs: Cluster Munitions in Ukraine

photograph of cluster bomb model

On Friday, July 7th, Colin Kahl, the Undersecretary of Defense for Policy, announced that the U.S. is sending additional military aid to Ukraine, including cluster munitions or cluster bombs. Cluster munitions are, effectively, bombs that contain many smaller bombs – they are designed to open mid-air before reaching their target, releasing smaller bombs, called submunitions or “bomblettes,” into a large area. Military decision makers view them as more effective than traditional artillery but cheaper than more advanced weaponry like guided missiles. Nonetheless, the Biden administration has faced pushback for this decision. U.S. allies have criticized the decision and some Democrats in Congress have expressed concerns.

The problem is that cluster munitions pose significant risks to civilians. All munitions can fail – there are still unexploded bombs from the Second World War found in Europe. Since cluster munitions may contain hundreds of submunitions, failure of at least one submunition is significantly more likely than the failure of a conventional explosive. Further, because submunitions are numerous and small (some the size of a tennis ball), it is difficult to determine when one has failed to detonate and to track it down afterwards.

For instance, the United States made use of cluster munitions to heavily bomb Laos during the Vietnam war, in an effort to disrupt North Vietnamese supply lines. As much as 30% of the munitions may have failed to detonate as intended. The Mines Advisory Group reports that it disarmed its 300,000th bomb in Laos since beginning operation there in 1994. They also estimate that 50,000 people, half of whom were children, were killed by unexploded ordnance in Laos, with 20,000 of those deaths occurring after the war in Vietnam concluded. Civilians may unintentionally activate the explosives after unknowingly stepping on them, or when attempting to move or scrap the munitions.

As a result, many nations have sought to eliminate the use of cluster munitions. The UN Convention on Cluster Munitions has 108 signatories. These nations agreed to never produce, store, transfer or use cluster munitions, and to destroy their stockpiles of these weapons. Notably, the United States, Ukraine, and Russia did not sign on to the agreement.

Is it morally justifiable for the U.S. to send cluster munitions to Ukraine? I have previously written on just war theory and the war in Ukraine. In that discussion, I enumerated three criteria that theorists assess to determine the permissibility of wartime acts. To be morally justified, first, acts must not intentionally target civilians. However, acts which knowingly result in the deaths of civilians may be permissible. This is known as the doctrine of double effect. But justification requires two further standards. The harms of the act must be proportionate to the good that it aims to secure, meaning the outcomes it aims to achieve must “fit” the harms produced; the greater the harm, the greater the gain must be. Additionally, the harms ought to be necessary to achieve the goal – if there is some other, less harmful measure that can bring about the same results, then the more harmful act is not justified. With this in mind, let us consider some of the arguments public officials have offered to defend this decision.

Secretary of State Anthony Blinken argued, among other points, that providing cluster munitions to Ukraine would not radically change the risk to civilians – after all, the Russian military has already used cluster munitions. In fact, independent investigators believe that the Russian military deliberately targeted civilian locations with cluster munitions. Indeed, then White House Press Secretary, Jen Psaki commented on these reports stating that “If that were true, it would potentially be a war crime.”

Ultimately, this point fails to demonstrate anything from a moral point of view. Past wrong acts do not justify further, albeit lesser, wrong-doing in response. Even if there is already a risk posed to civilians from prior Russian use of cluster munitions, further use increases that risk. Thus, this point raised by Secretary Blinken is either irrelevant or incorrect, and perhaps both.

Several members of the Biden administration have emphasized the low dud rate of the cluster munitions the U.S. is sending to Ukraine. Purportedly 2.5% or fewer of these munitions fail to detonate as intended. They have contrasted this to the Russian military utilizing munitions with a dud rate they claim is as high as 30 to 40%. However, the previous reports from the Pentagon state that some submunitions in U.S. cluster bombs have a failure rate of 14% or greater.

Even if we take for granted the lower of the reported dud rates, it is unclear what this is supposed to demonstrate, morally speaking. Again, this dovetails with the previous point about the Russian military’s use of cluster weapons. Some of these munitions will undoubtedly fail. Thus, U.S. provided cluster munitions may still kill innocents. At best, this line of thought shows that the use of U.S. provided cluster munitions is more likely to be proportionate than the Russian use, given the lesser risk to civilians. But it is possible that both would be unjustified.

A more plausible defense of sending cluster munitions to Ukraine stems from the notion that they are necessary. President Biden has argued that the munitions are currently needed for a “transitionary period” so Ukraine’s military can keep up pressure while conventional munitions are restocked. Secretary Blinken also claimed that Ukraine would be defenseless without these additional munitions.

I lack the expertise to comment directly on the military necessity of using these weapons. So, in this sense, my analysis here is limited. Perhaps Ukrainian armed forces could hold the line until restocked with conventional munitions. Alternatively, perhaps this would give the Russian forces more time to dig in their defenses. This could make any Ukranian counter-offensive more difficult and deadly. More troublingly, it could help the Russian military regain previously lost ground in Ukraine.

Regardless, this line of argument seems suspect in that it appears self-undermining. Even proponents of sending cluster munitions to Ukraine want their use limited. Specifically, they should be used only until conventional weapon stockpiles can be replenished. This, ultimately, suggests skepticism that cluster munitions are morally justified. If they were, then it would indeed be quite odd that Ukrainian forces should only temporarily utilize them.

Of course, one might argue that even questioning whether the U.S. ought to send these munitions misses the point. The people of Ukraine are fighting a war against an unjust aggressor and defending their sovereignty. In the face of this existential threat to a democracy posed by an authoritarian regime, perhaps the least we can do is arm them with whatever munitions they request, within reason of course.

In the Republic, when discussing the nature of justice with Cephalus, Socrates asks his interlocutor to consider the following scenario: Suppose you borrowed a sword from a friend. Later your friend, now in a crazed state, asks you to return the sword. Both agree that even if justice requires paying one’s debts, surely justice would require withholding the sword if innocent lives are at risk. The consequences of what happens after you give your friend the sword, or in this case, the bombs, affect the morality of your act as well. The supplier does not have moral carte blanche.

Ultimately, whether supplying cluster munitions to Ukraine is justified turns on what these munitions will accomplish – are they necessary to achieve some substantive good that is worth the risk to civilian lives? If there is some less risky alternative with a reasonable chance of achieving the same goals, then it appears that alternatively is morally preferable. Further, even if cluster munitions are required to achieve some current objective, there must be an honest examination of whether those gains are worth the loss of civilian lives. Thus far, the arguments offered by the Biden administration speak minimally to these points.

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Privacy, Discrimination, and Facial Recognition at Airports

photograph of line of people with luggage at airport

If you find yourself traveling, you may notice that your identity is being verified in a new and different way. Instead of showing your ID to an employee in the security line, you may find that you’re asked to insert it into a machine while a camera captures your image. The machine software will then determine whether that image matches the person on your ID. Some airports use databases for identification so that the ID does not even need to be scanned.

The technology has been developed by the transportation security administration, and they’ve been quietly rolling it out at airports across the country. The primary advantages are that this system is potentially faster, easier, and more accurate. Airline travel in the middle of the 20th century was advertised as glamorous and comfortable. There now seems to be no end to the inconveniences travelers have to endure. To some, anything that makes the process less like an interrogation would count as an improvement.

On the other hand, many are alarmed to see this technology emerge without much warning. Some are concerned about the government having access to this kind of data. They are now allegedly using it to make airline travel easier, but there are lingering suspicions about what it could be used for in the future. It has become commonplace for people to become aware that a corporation has used their data for purposes to which they did not knowingly consent; data is sold to third parties and used for targeted advertising. For many, these concerns are even more troubling when the entity gathering the information is the government. The government could potentially build a database of everyone’s faces and use it in settings in which citizens would not be comfortable. For instance, while smart buildings offer significant potential for more environmentally friendly institutions, some are also designed with facial recognition technology. Some argue that this would be an improvement — the technology could recognize potential threats or disgruntled former employees before acts of violence can take place. Others respond that this benefit would not be worth the violation of privacy that would result — the government could potentially know where people are all the time, at least when they are in or near government buildings. If the moral right to privacy involves maintaining control over one’s own body, that right seems to be substantially violated when corporations and the government are cyberstalking people all of the time.

There are also serious concerns about how these systems will determine which individuals count as threats. People are concerned about what’s become familiar forms of algorithm bias. There is data to support the idea that facial recognition programs do less well identifying the faces of people of color. A recent study concluded that Native American, Black, and Asian people were 100% more likely to be misidentified than their white counterparts, and women were much more likely to be misidentified than men. (Middle-aged men had the highest accuracy rate of identification overall.) People of color already encounter racial profiling at airports, and this policy has the potential to make these problems worse. Our current political circumstances make discrimination even more likely. Heated political rhetoric has made life more challenging for Muslims and Chinese people, especially at airports. Further, concerns about being misidentified by AI airport security may create a chilling effect on travel for members of these groups, constituting a form of systemic racial oppression.

Those who defend the system point out that travelers can opt out of facial recognition by simply saying, “Please don’t take my photo.” If this is the case, the argument is that the government isn’t really violating people’s autonomy — they have the right to say “no.” There are, however, a number of responses to this argument. First, travelers may be concerned about what might happen to them if they refuse to comply. Travel is a critical human need, especially as our experience is increasingly globalized and our loved ones and livelihoods are more likely to be scattered across states, countries, and even continents. If a person is detained by security, they might miss the birth of a child or saying goodbye to a dying relative. The circumstances at airports are inherently coercive and people might be deeply concerned that they won’t get to their location unless they go along. Second, a person may have a right to say “no” as a matter of policy, but it is very unlikely that any particular passenger will know that they have it. Finally, a person is unlikely to want to make waves, delay other travelers, and potentially embarrass themselves. If a “right of refusal” policy is coercive and lacks transparency, citizens cannot give fully free and informed consent.

Like so many recent developments in technology, facial recognition motivates questions about authority and political legitimacy. Who gets to make these decisions and why? The answers to these questions are far from obvious. Allowing those who stand to gain the most power or earn the greatest profit to dictate protocols seems like a bad idea. Instead, we may have to trust our elected representatives to craft policy. The problem with this approach is that, for many legislators, winning re-election takes precedence over any policy issue, no matter how dire. We need look no further than lack of progress on climate policy to see that this is the case. Alternatively, we could bring questions of the greatest existential import to public referendum and decide them by a direct democratic process. The problem with this is the standard problem for democracy posed by philosophers for decades — the population as a whole can be woefully underinformed and act tyrannically.

One lesson that we’re left with is that we shouldn’t let these major changes blow by without comment or criticism. It’s easy to adopt a kind of cynicism that causes us to believe in technological determinism — the view that any development that can happen will happen. But policies are made by people. And one of the most important roles that sound public philosophy can play is to demand justification and ensure that policy is supported by deliberate and defensible moral principles.

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The Ethical Tradeoffs of Medical Surveillance: Tracking, Compassion, and Moral Formation

photograph of medical staff holding patients hand

Our ability to track doctors – their movements, their location, and everything they accomplish while on the job – is increasing at a rapid pace. Using RFID tags, hospitals are able to not only track patients and medical equipment, but hospital staff as well, allowing administrators to monitor the exact amount of time that physicians spend in exam rooms or at lunch. On top of that, electronic health record systems (EHRs) require doctors to meticulously record the time they spend with patients, demanding that doctors spend multiple hours a day charting. And more could be on the way. Researchers are now working on technology that would track physician eye movement, allowing surveillance of how long a doctor looks at a patient’s chart or test results before making a diagnosis.

There are undeniable benefits to all of this tracking. Along with providing patients and their families with detailed examination notes, such detailed surveillance ensures that doctors are held to a meaningful standard of care even when they are tired or stressed. And workplace accountability is nothing new. Employers have used everything from punch clocks, supervisors, and drug tests to make sure that their staff is performing while on the job.

Yet as the surveillance of physicians becomes ever more ubiquitous, the number of moral concerns increases as well. While tracking typically does improve behavior, it can also stunt our moral growth. Take, for example, plagiarism detectors. If they are 100% accurate at detecting academic dishonesty, then they drastically reduce the incentive to cheat, making it clearly counterproductive for those who want to pass their classes. This will cause most students to avoid plagiarism simply out of sheer self-interest. At the same time though, it robs students of an opportunity to develop their moral characters, relieving them of the need to practice doing the right thing even when they might not get caught.

On the other hand, while school might be an important place to build the virtues, hospitals clearly are not. We want our doctors to be consistently attentive and careful in how they diagnose and treat their patients, and if increased surveillance can ensure that, then that seems like a worthwhile trade-off. Sure, physicians might miss out on a few opportunities for moral growth and formation, but this loss can be outweighed by not leaving it up to chance whether any patients fall through the cracks. If more surveillance means that more patients get what they need, then so be it.

The problem, however, is that surveillance may not mean that hospitals are always getting more quality care, but simply getting more of what they measure. As doctors become more focused on efficient visit times and necessary record-keeping, there is evidence piling up that suggests that technological innovations like EHRs actually decrease the amount of time that physicians spend with their patients. Physicians now spend over 4 hours a day updating EHRs, including over 15 minutes each time they are in an exam room with a patient. Many doctors must also continue charting until late into the night, laboring after hours to stay on top of their work and burning out at ever increasing rates. So, while patient records might be more complete than ever before, time with and for patients has dwindled.

All of this becomes particularly concerning in light of the connection between physician compassion and patient health. Research has shown that when healthcare providers have the time to show their patients compassion, medical outcomes not only improve, but unnecessary costs are reduced as well. At the same time, compassion also helps curtail physician burnout, as connecting with patients makes doctors happier and more fulfilled.

So maybe the moral formation of doctors is not irrelevant after all. If there is a strong link between positive clinical outcomes and doctors who have cultivated a character of compassion (doctors who are also less likely to burn out), then how hospitals and clinics form their physicians is of the utmost importance.

This, of course, raises the question about what this means for how we track doctors. The most straightforward conclusion is that we shouldn’t give physicians so much to do that they don’t have any time for empathy. Driven by an emphasis on efficiency, 56% of doctors already say that they do not have enough time for compassion in their clinical routines. If compassion plays a significant role in providing quality healthcare, then that obviously needs to change.

But an emphasis on compassion and the moral characters of doctors raises even deeper questions about whether medical surveillance is in need of serious reform. It is extremely difficult to measure how compassionate doctors are being with their patients. Simply tracking a certain period of time, or particular eye movements, or even a doctor’s tone of voice might not truly reflect whether doctors are being empathetic and compassionate towards their patients, making it unclear whether more in-depth surveillance could ever ensure the kinds of personal interactions that are best for both doctors and their patients. And as we have seen, whatever metrics hospitals attempt to track, those measures are the ones that doctors will prioritize when organizing their time.

For this reason, it might be that extensive tracking will always subtly undermine the outcomes that we want, and that creating more compassionate healthcare requires a more nuanced approach to tracking physician performance. It may be possible to still have metrics that ensure all patients get a certain baseline of care, but doctors might also need more time and freedom to connect with patients in ways that can never be fully quantified in an EHR.

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Supervised Injection Facilities and the Morality of Harm Reduction

photograph of discarded syringe on asphalt

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

People often support policies that lessen the harms others experience. For instance, proponents of abortion rights often argue that banning abortion does not eliminate abortions, it only makes them unsafe. Some high school sex education programs provide condoms to students to curb the spread of sexually transmitted diseases. Although traditionally alcohol is banned in homeless shelters, some have shifted to a “wet” model allowing residents to use alcohol and in some cases even prescribing alcohol. The rationale here being that it is easier to get one’s sobriety under control in a managed environment and when one has shelter at night.

More recently, some have considered the role harm reduction may play in addressing the U.S. opioid epidemic. According to the Centers for Disease Control, 93,655 Americans died of drug overdoses in 2020, a 30% increase from 2019, and a further 107,622 died of overdose in 2021. One of the leading contributors to this spike in deaths is the increased presence of fentanyl. Because of its potency, lower cost, and addictive potential, fentanyl is often mixed with other powdered drugs or sold in their place. As a result, people who unknowingly consume fentanyl may accidentally overdose, not realizing the strength of the drug they are consuming.

In response, policy makers have been taking measures to reduce the risk of harm fentanyl poses. For instance, although once labeled as “drug paraphernalia” lawmakers across the U.S. have worked to decriminalize fentanyl test strips, hoping to help drug users avoid fentanyl. Some have called for further steps including the creation of Supervised Injection Facilities (SIFs). At these facilities, individuals are permitted to bring in and consume drugs. They are then provided with the means to use these drugs as safely as possible; they receive clean needles, alcohol pads to sterilize injection sites, and medical staff remain on standby to monitor for potential signs of overdose. Additionally, staff can help secure access to resources such as addiction counseling and treatment. The idea is to reduce overall harm by ensuring that those who would otherwise use drugs in public are instead in a private, controlled space with access to resources which can help secure their long-term health. OnPointNYC, the organization running the SIFs, reports they have intervened in 848 overdoses on site and zero deaths have occurred in 68,264 uses.

SIFs, however, are not popular in the U.S. Although other locales have considered opening SIFs, New York City contains the only two officially operating in the U.S. – one in East Harlem and one in Washington Heights. However Representative Nicole Malliotakis of New York’s 11th District has called on the Justice Department to shut down “heroin shooting galleries that only encourage drug use and deteriorate our quality of life.” Pennsylvania’s state senate recently passed a bill banning SIFs by a 41-9 margin. Senator Christine Tartaglione, a Democrat from Philadelphia, stated that her “constituents do not want safe injections site in the neighborhood” and claimed that these sites “enable addiction… [and] we should be in the business of giving these folks treatments.”

These, and other potential objections, warrant further examination. For the purposes of this discussion, I want to consider arguments against harm reduction in the context of SIFs. However, in doing so, these reflections may lead to some insight about harm reduction arguments in other contexts.

One might object to SIFs because they appear to publicly endorse illegal behavior. Yet we may have reason to find this reason uncompelling – the law and morality often diverge. To oppose SIFs because the drugs consumed there are illicit is to merely pass the buck. Why should we regard the use of particular drugs morally objectionable? Why prefer a policy of abstention to moderation? Our focus is better placed on arguments that target SIFs themselves.

The claims by public figures quoted earlier suggest that SIFs fail to prevent harm and instead increase it. There seem to be two purported reasons for this. First, that SIFs enable or even promote drug addiction. Second, that SIFs lead to a deterioration of the surrounding area, encouraging drug users to occupy it, which leads to drug dealing, public drug use, and further threats to the local community.

The available data, however, does not support these arguments. Researchers have found that SIFs lead to lower rates of overdose and decreases in infectious disease rates among drug users. So, SIFs appear to lessen harm to addicts, at least in the short term. Further, SIFs do not seem to impact local crime rates, and, at worst, have no impact on public drug use and needle litter (though there is some evidence that they reduce both).

There is an intuitive argument that these facilities will deteriorate neighborhoods by drawing in drug dealers – the supply may seek out the demand. However, support for this claim is primarily anecdotal. Further, while narcotics arrests have increased in New York neighborhoods with SIFs, these areas now have additional police presence outside of SIFs. It’s at least plausible that an increased police presence is the cause of additional arrests.

Further, there seems to be little, if any, data on the long-term effects of SIFs for overcoming addiction. Perhaps more clarity on long-term consequences of SIFs will come as their impacts are further researched. But currently there seems to be little evidence suggesting they are harmful. They seem to benefit addicts, at least in the short term, and there does not appear to be conclusive evidence that they harm the surrounding community.

But perhaps considering only the consequences misses the point. As I have argued elsewhere, sometimes the consequences of a policy do not seem to matter in the face of other moral objections. Consider, for instance, someone arguing that making cannibalism illegal just produces additional harms – it pushes the market for human meat into the underground, making regulation and oversight impossible, harming both the producers and consumers of human meat. Thus, this person concludes that legalizing cannibalism and regulating human meat consumption would make things safer.

These points, however, fail to resonate as objections to prohibiting cannibalism. This is because harm is just one factor (if even a factor) behind cannibalism’s illegality. Part of the reason why we have laws is to express our attitudes towards a behavior. In this case, eating human flesh simply seems deeply morally wrong to us.

Following this logic, the opponent of SIFs could argue that there is something morally objectionable in drug use, even if SIFs do reduce harm in the long run. That explanation could come in various forms. For instance, in the Groundwork of the Metaphysics of Morals, Immanuel Kant argues that someone who refuses to develop their talents acts immorally by disrespecting her own humanity – she has a potential that she is ignoring in favor of seeking pleasure. Alternatively, one might ground an objection to drug use in virtues. Given the long-term risks associated with drug use, one who regularly uses may fail to demonstrate the virtue of prudence. Thus, one might argue that, if drug use is morally wrong, then facilitating it via SIFs would make one complicit in wrongdoing.

Even if one can give a compelling argument that drug use is in some way immoral (although this may be difficult given the disease model of addiction) there are hurdles this explanation must overcome. Namely, it is unclear whether these concerns are the proper basis of legislation. The government has, at best, a limited prerogative to promote virtue, at least in a society with robust individual rights to self-determination. Further, given the sheer scale of deaths from drug overdoses in the United States, it seems more plausible that reducing harms by participating in or facilitating wrongdoing is a lesser evil than continuing with a status quo that results in tens of thousands of deaths a year. And even still, it is not clear that facilitating a wrong behavior for the sake of minimizing harm is itself wrong.

Opponents of SIFs seem to have two rhetorical options available to them. They may argue that SIFs do not, in fact, reduce harm. But this claim has a tenuous relationship to current data. Alternatively, they may argue that even if they do reduce harms, SIFs are ultimately unjustifiable for moral reasons. There is more flexibility in developing arguments of this nature, but there are still serious theoretical difficulties one must resolve even if they can give a plausible argument for drug use’s immorality. Perhaps this is why opponents of SIFs couch their arguments in terms of the consequences of SIFs, even when they lack the data to support these claims.

Ultimately, if OnPoint’s figures are accurate, SIFs show great promise at limiting deaths from overdose. Even if this is their only benefit, this alone should make us pause before rejecting them. While they may only address the symptoms of the opioid crisis in the U.S., we have compelling moral reason to minimize harms while solving the underlying problems behind addiction.

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Is NIMBYism Immoral?

photograph of high cedar fencing on neighborhood homes

Why can’t we make significant strides in combating homelessness? Why does the construction of adequate housing in high-demand regions persistently falter? Why are we unable to execute the extensive setup of wind farms and solar plants? Why does the emergence of next-generation nuclear power plants seem a distant dream? Among the complex array of answers that emerge, one frequent, simple response often floats to the top: “NIMBY-ism.”

The acronym “NIMBY,” which stands for “Not In My Back Yard,” is a phrase emblematic of certain residents who vehemently oppose development projects in their local areas. Their opposition, interestingly, is not necessarily premised on any deep-seated issues with the project itself. Rather, it is the development’s proximity to their home that evokes their protest. The term NIMBY has an unsurprisingly pejorative tone. It conjures an image of an individual prioritizing personal comforts over the common good. NIMBY tends to paint a picture of selfishness — an individual who comprehends the potential advantages of a project for the broader community and could even endorse it enthusiastically, provided it happened elsewhere. Picture a resident who resists a development project for fear it may reduce the exclusivity of their neighborhood, cause a slight dip in their property value, or result in the tiniest disruption to their everyday routine.

This portrayal often transforms NIMBYism into a moral failing — an ethically suspect character-type indicative of a lack of empathy and commitment to collective responsibility. Indeed, many philosophers suggest that the cornerstone of morality is impartiality — an unbiased concern for the rights and well-being of all individuals. This view implies that moral violation occurs when a person fails to act with such impartiality, demonstrating inequitable concern for others.

Can anything be said in defense of NIMBY sentiment? Is it possible that some NIMBYs could be misunderstood “NIABYs,” defenders of the principle: “Not in Anyone’s Backyard”? There can be instances where opposition to development springs from genuine impartial concerns about preserving local community values, upholding neighborhood aesthetics, or ensuring environmental and cultural preservation. The impartial NIABY opposes development in any area where these values are at stake, not merely in their own. This perspective, in contrast to NIMBYism, doesn’t seem selfish and doesn’t appear to violate the impartiality central to morality.

But what about the true NIMBYs? Aren’t they necessarily morally deficient? Well, the moral demand for strict impartiality isn’t always clear-cut. We wouldn’t demand a parent care equally about the well-being of a stranger’s child as they do their own. Likewise, we wouldn’t expect someone to invest the same effort for anybody as they would for a dear friend. Thus, some level of partiality — varying degrees of care contingent on the significance and the special nature of relationships — might not just be morally permissible but could even be an aspect of having good moral character, of being connected to others in the right kind of way.

Viewed through a generous lens, NIMBYism could be seen in a similar light. Just as it seems socially acceptable for most of us to contribute to a friend’s healthcare costs (despite the fact that our dollar could have more impact donating to highly effective charities), perhaps it is also acceptable to care particularly about the welfare of one’s own community and its residents. After all, people share deep and meaningful connections with their communities, akin to their ties with friends and family members.

This defense of NIMBYism, however, has its limits. Even if morality can accommodate a degree of partiality, there comes a point when the needs of the wider community must be taken into account. NIMBYs still might be taking their partiality too far, just as a parent might inappropriately overprioritize the well-being of their own child above the well-being of others.

If morality does allow for some degree of partiality, if it makes space for special concern for specific relationships, then perhaps the issue with NIMBYism lies elsewhere. Perhaps NIMBYism’s ultimate problem lies more in the realm of justice. Certain people and communities are strategically positioned to leverage existing zoning and development laws to block local development. Areas populated by educated, wealthy, and time-rich residents have an apparent advantage here, thereby nudging undesirable development towards areas with fewer resources to resist effectively. This inevitably creates disparities in the distribution of developmental benefits and burdens.

So, if this perspective on NIMBYism holds water, then perhaps the typical moral condemnation of NIMBYs is misguided. But what’s the appropriate alternative? One solution could be a reform of development and zoning laws to ensure a level playing field amongst communities. If it’s morally permissible for all of us to harbor special care for our own communities, then it becomes crucial to have a political system that equally enables all of us to express that special care.