The electricity grid is one big machine. Transmisssion must be centrally coordinated. Generating units must all be in sync. Voltage levels have to be maintained. There must constantly be an even match between demand and supply. But you would hardly know it from the way we look at energy policy at the states and on the national level.

Each good policy option has its champions, and each debate occupies its own silo. Distributed solar? Check. Energy efficiency? Check. Transmission expansion? Renewable Portfolio Standard? Smart meters? Check, check, check.

All of these important issues offer complicated choices. Proper analysis takes a lot of time, and there are dozens of interested stakeholders. As a result, regulators and lawmakers tend to look at each option as it if stands alone. What can we do to promote energy efficiency? What kind of incentives will adequately encourage the use of photovoltaics? What kinds of power plants should people be building?There is little doubt that our current energy and climate challenges demand a close examination of all options. So what’s the problem?
Unless we remember that the grid is one big machine, and look at all of these policy options in a coordinated fashion, we are destined to do things that conflict, and take actions with unintended consequence. The result is that we may fail to accomplish the things that we thought were so important.

Take the construction of new electric transmission lines as an example. For renewable energy to make a major dent in our power supply, we need big windfarms, large concentrated solar arrays, and reliable geothermal power plants. These resources tend to be far away from the load center — the place where most of the power is needed. That means we need lots of big transmission lines to bring the power to the load.

To solve this problem, Texas and California have identified renewable energy development zones and started the process of finding and building the highest priority transmission lines to get to the renewable resources. The western states are jointly undertaking a similar effort, and various bills in Congress would establish a national initiative. Congress is also considering giving federal regulators the power to approve such lines in order to make sure that the job gets done. This could lead to excess transmission capacity, but few are complaining, since utilities like capital investment, generation developers want lots of optional pathways for delivery, and transmission operators hardly ever see a new transmission line they don’t like. It is consumers and some environmental groups that are left to disagree.

The danger is that new transmission lines developed outside of a broader context might induce more carbon emissions than any new renewables might save by increasing the ability to import low-cost coal and natural gas derived power. A massive investment in new lines might be at the expense of more targeted “distributed” renewables that could be located at customer premises and tailored to meet local demand. A singular focus on renewable energy and related transmission might ignore less expensive and environmentally superior investments in energy efficiency.

Does that mean that new transmission lines are unimportant? Hardly. But we will likely be putting our broader policy goals at risk if we launch each of our favored programs from an isolated silo. The solution is to marry each of these initiatives with a greater reliance on utility-based, integrated resource planning. Find good places for renewables and related transmission, and then send that information to the states where regulators can insist that each utility develop a comprehensive plan designed to maximize the results we all care about — effective reduction of negative environmental impacts including carbon emissions, resource diversity, grid stability, cost control and (most importantly) a reduction in demand through efficiency improvements. The megawatt not used remains the best choice from an environmental and cost perspective.

Steve Weissman in a Lecturer at Berkeley Law School andAssociate Director for Energy Law and Policy of the California Center for Environmental Law and Policy.

We do not yet know what and when the Treasury Department knew about the now-repaid AIG Financial Products bonuses. But the following is plausible: the traders in that unit had convinced their employer that their skills were so important to minimizing the damage to their company, or would be so dangerous in the hands of their competitors, that they were able to extract compensation at least as valuable as the year before, independent of actual performance or retention. Lawyers then drafted apparently bulletproof guarantees that these bonuses would be paid. Treasury, given legislative cover by Congress, saw the bonuses as a distasteful but necessary cost of minimizing the total losses taxpayers would have to bear. Public outrage at this “business necessity,” however, could scupper the entire bailout plan.

Here is another recent story: intelligence professionals asked to use a range of surveillance and interrogation techniques the law clearly prohibited. They were able to persuade their employers that they needed access to these techniques in order to protect national security. Their employers agreed, and asked lawyers to draft documents that purported to protect the operatives from any legal consequences. Their employers may have agreed because they felt hostage to any future attack, if it might be said that they failed to exhaust all options; or because they genuinely believed that these techniques were necessary to security. When the techniques and the enabling legal documents were leaked to the public, the scandal wrought enormous damage to the reputation of the employer, domestically and abroad.In both cases, secret or hidden arrangements allowed insiders to design – and lawyers to try to bulletproof — agreements that appear narrowly to serve immediate institutional interests, but that threaten grave harm when exposed to the whole enterprise. Certainly the bonus agreements, like the torture and surveillance policies, are distasteful on their faces. But secret lawyering compounded the problem, as well as the damage.

In the national security arena, President Obama and Attorney General Holder have already announced a preference for “transparency” and openness, and have made some important moves in that direction, for example by declassifying some of the most egregious Justice Department memoranda. But their progress has been fitful: DOJ lawyers have continued to insist upon the application of the “state secret” doctrine, which can prevent even meritorious challenges to government action from receiving a hearing. And the development of the successive Treasury bank rescue plans has been virtually as opaque as under the previous administration.

Inevitably, as the government confronts unprecedented challenges, there will be policy mistakes. But mistakes compound within the echo chamber of a small number of exhausted officials working 24/7, because anyone in such an environment comes to overvalue the skills and insights of the others in the chamber, while undervaluing the capacities of outsiders even to understand the problem; and because the tendency of such discussions is for all to focus on the concerns of a majority of the group while ignoring the others. “Groupthink” and “polarization” are psychologists’ terms for these phenomena.

While there must continue to be opportunity for fully confidential discussions as policy proposals are developed, there must be mechanisms for oversight as those proposals become actual policy. Two things would help.

First, lawyers must be reminded of their duties when they act as advisors rather than as courtroom advocates. Lawyers may not dictate policy, but they have a unique capacity to influence decisions, because they are typically brought into policy discussions early on, to gather the full range of options, and because they have an allegiance to the constraints of the law itself, not just the preferences of their client. When lawyers are advisors, especially within the government, they have a special duty to their clients to provide wide-ranging and critical advice. It is open – and expected in many other countries – for lawyers to say, “this proposal would be legal, but here is why it could be very unwise.” In the case of the AIG bonuses, both the private lawyers drafting the bonus agreements and the Treasury lawyers examining them later should have raised an alarm at “retention” “bonuses” that were independent of actual retention or performance.

Second, we should implement a check on the echo chamber effects: experts who can be brought into the discussion early enough before proposals become policy but late enough that they have not themselves become wedded to any particular proposal. The Vatican called these professional gadflies advocati diaboli, or devil’s advocates: lawyers brought into the saint-making process to offer counterargument. Senior White House staff are already too busy to pay attention to the array of policies emerging from the Cabinet. But a wide-ranging team of counter-advocates could be deployed to raise the full gamut of objections to the high impact policies coming out of the White House. Given the delays in fully staffing federal agencies, a multi-agency task force could also provide valuable efficiencies.

Neither of these proposals would prevent political errors from arising. But both would take us closer to the smarter, more open government President Obama’s election seemed to offer.

Christopher Kutz is Professor of Law and Director of the Kadish Center for Morality, Law and Public Affairs.

Revamp the business model of credit rating services: We must interpose an independent third-party between issuers and rating agencies to overcome inertia in rating agencies reform — before free-marketers take advantage of the current crisis to promote deregulation approaches.

Everyone knows that we are in the midst of the worst credit crisis since the early 1930s. But what the casual observer may not know is that the system set up to protect investors is flawed to the core. The current crisis was driven, in part, by erroneously positive ratings of bonds backed by subprime residential mortgages. At the heart of the problem is the role of rating agencies and rating-driven regulations. These regulations determine how much capital certain institutions (e.g., insurance companies, banks) need to have available in order to own financial instruments. The safer the investment (i.e., the lower the probability of default), the less capital is required. Consequently, how an investment is rated determines how much capital a regulated institution such as a bank needs on hand. Thus, rating agencies have a profound influence on institutional investments – so profound that the rating agencies are the de facto allocators of capital in our system.

Policy-makers continue to appeal for a critical review of rating services, and some commentators now advocate removing rating-driven regulations entirely. They consider that the problem in the recent crisis was not the wrong ratings in itself but the fact that these ratings were incorporated into law through rating-driven regulations. In this conception, regulators should not have relied on ratings agencies to assess the risk of bond holdings but on markets that would be a better judge of risk and value than any analyst or company.This deregulatory approach radically underestimates the benefits of widespread credit ratings. Ideally, credit ratings provide independent, practical assessments of relative credit risk; improve the overall efficiency of the market; reduce costs for borrowers and lenders; and increase the lending market so that smaller actors can obtain financing. Considering these advantages, most market operators (i.e., market authorities, investors, rating agencies, banks) and observers still support the idea of regulations that incorporate independent ratings. However, they have recently expressed major concerns regarding the business model of rating agencies where issuers or arrangers pay for their own ratings, which creates an obvious incentive for a rating agency to award the rating that the issuer or arranger wants.

In the early days of the rating business, beginning in the 1920s, a different “instinctive” market structure was in place: the person seeking an assessment of how risky an investment was – the investor him or herself – paid for it. However, in the early ‘70s, due to the development of photocopying which threatened the investor-pays model, and the widespread and increasing demand for publicly available ratings, in particular following the unforeseen default of Penn Central railway company, Moody’s and Standard & Poors began to charge the issuers – rather than the investors – for their ratings.

To restore confidence in the wake of the subprime mess, I propose a new “investor-centric” rating framework that should address some of the most serious problems in the present system. In the schema I propose here, an independent third-party would represent the market (e.g., representative board of investors or a public authority) and interpose itself between the issuer and the rating agency to manage conflict of interest, achieve the transparency of rating methodologies, and guarantee the public availability of ratings.

We should note in this context that market authorities in the E.U. and the U.S. (e.g., the S.E.C.) are already moving in this direction; they are involved in the initial steps of a public offering of securities through the mechanism of regulated disclosures as well as the granting of exemptions based on the size of the issue or the sophistication of investors.

The proposed structure would therefore require the rating agencies to be selected and instructed by the relevant market authority. Issuers would continue to pay for ratings, but appointment and payment to all rating agencies for rating works would be passed through the market authority. This business structure would eliminate the risk of “rating shopping” and put an end to the widespread practice of direct negotiations between the issuer and the rating agency.

This interposition of the market authority would also be in line with two major concerns expressed by both regulators and rating agencies which make clear that none of the contemplated reforms should (i) impede the flexibility and autonomy of rating agencies’ methodologies and confer on regulatory authorities the right or obligation to influence the content of ratings, for which the rating agencies should retain full responsibility, and (ii) not prevent the enactment of unified global regulations, as credit opinions know no borders.

Finally, this business model would facilitate the implementation of incentivisation policies that would take into account the performance of a given rating agency in its remuneration scheme. In this respect, as suggested by Berkeley Research Fellow John P. Hunt, remuneration of rating agencies for new complex products could be improved by requiring an agency to disgorge profits on ratings that are later revealed to be of low quality.

A summary chart of the proposal as compared with the current framework, may be presented as follows (click image to enlarge):

Click image to enlarge

In brief, it is still essential that rating agencies consistently provide investors with ratings, but crucial that these ratings be independent, objective and of the highest possible quality. As these agencies play a vital role in global securities and banking markets, regulatory authorities should not push, once again, for a much-reformed status quo that would lead to increase skepticism and favor deregulation approaches.
This contribution is an extract from an essay to be released in May 2009

Vincent Fabié is a Berkeley Visiting Scholar and Avocat à la Cour d’Appel de Paris - Herbert Smith Paris.

All view expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to Herbert Smith LLP.

(Originally published in the San Francisco Chronicle, March 1, 2009.)

According to the American Medical Association, as many as 150,000 early deaths each year might be saved if Americans were to reduce their salt consumption by 50 percent. Because the sodium in salt raises blood pressure, which in turn increases the risk of heart attacks and strokes, less sodium means better health for many of us.

But merely telling people to eat less salt is unlikely to do the trick. After all, people like salt for its flavor. Moreover, most of the salt we consume is not added in our home kitchens or at the table. Instead, it’s added by food processors to the food we buy in supermarkets and restaurants. We just don’t realize how much salt we’re eating in many products. Although packaged goods today contain standardized information about sodium, it’s easily ignored or misunderstood (cast as it is in terms of portion size and daily recommended amounts).

A more creative way to attack this problem is with performance-based regulation.This approach imposes outcome targets on business by imposing financial penalties if those targets aren’t met.

The more nimble the business, the more likely it is to achieve the targets most efficiently.

For salt, we could demand that large retailers cut the total amount of salt in the food they sell. Regulated firms would include both retailers that sell primarily for home consumption - like Wal-Mart, Costco, Walgreens and supermarket chains - and those that sell prepared foods mostly to eat on site - like McDonald’s and Applebee’s.

If Wal-Mart were told to cut the total amount of salt in the food it sells by 7 percent a year for seven years, by the end of that time its customers would be getting only half as much salt as they do today in the food purchased from Wal-Mart.

To achieve its target, Wal-Mart could engage in a variety of strategies. These could include telling its food providers to reduce the salt they add to their products, reducing the volume of salty products it sells (by raising the price, providing smaller or less-attractive shelf space), introducing and promoting less-salty or salt-free alternative foods, giving Wal-Mart customers more information about the salt they’re consuming, and more.

I have no doubt that Wal-Mart would efficiently achieve its goal, provided that stiff penalties for failing to do so made it financially more attractive to reach its salt-reduction target.

This approach is very much like the cap-and-trade strategy being employed to fight global warming. Businesses such as power plant operators and automakers are being told they have to reduce the carbon their products emit, and it’s up to them to sort out how best to achieve that goal.

Performance-based regulation is also like a special sort of tax strategy - in which the targeted retailers would be taxed only to the extent they failed to meet their salt-reduction quotas.

Most important, performance-based regulation frames a public health problem as one for industry to crack. And that seems quite fair to me. After all, food retailers, who profit from the sale of salty foods, are well positioned to reduce the flow of salt in ways that best satisfy consumer preferences.

With sophisticated bar code data, this sort of scheme wouldn’t be too costly or difficult to administer. Safeway, Kroger and Whole Foods could compete to figure out how best to achieve the reduced salt objective, and their suppliers could compete to offer less-salty (or salt-free) foods.

The market would be used to promote the common good.

Were the American Medical Association goal of a 50 percent reduction of salt in the American diet achieved, it is not clear exactly how much that would lower the blood pressure of the average American. But this would be a big step in a healthier direction, and performance-based regulation is the most promising way to get there.

Stephen D. Sugarman is Professor of Law.

(Also published in the San Francisco Chronicle, March 1, 2009.)

How can we, the people, decide if there is too much or too little telecommunications surveillance in the United States? How can we know if law enforcement is using its surveillance capacities in the most effective fashion?

Ideally, we would answer these questions by examining data about government surveillance practices and their results. Sadly, rational inquiry about telecommunications surveillance is prevented by the haphazard and incomplete information that the government collects about its own behavior. Neither the government nor outside experts know the basic facts about our surveillance practices.

A number of regulations permit government to engage in telecommunications surveillance. Yet only one statute, the Wiretap Act, requires relatively thorough data collection about government behavior. Moreover, Congress has done a miserable job of seeing that the Department of Justice supplies it with required information - and the Department of Justice has itself tended to play “hide the ball” with data. Congress has also further muddied the waters in its FISA Amendment Act of 2008, which allows broad immunity to telecommunication companies that participated in the Bush administration’s program of warrantless telecommunications surveillance. This particular issue is now before a U.S. District Court in the Northern District of California in pathbreaking litigation led by the Electronic Frontier Foundation. The Obama administration needs to redesign our system for collecting surveillance information. The twin goals are to minimize the impact of surveillance on civil liberties and to maximize its effectiveness for law enforcement. Congress should develop uniform statistical benchmarks for laws that authorize telecommunications surveillance and enact amendments to these laws.

It should also revisit its granting of telecommunications immunity. Finally, Congress should end the executive branch’s ability to use the state secrets privilege as a categorical bar to litigation. It can do so by enacting the State Secrets Protection Act, a bill before it that would appropriately restrict this privilege.

Paul M. Schwartz is Professor of Law.

(Also posted on Legal Planet.)

The federal Endangered Species Act (ESA) is a vitally important bulwark in the legal protections for our environment in the United States. The ESA provides essential life support to a wide range of species on the edge of extinction, species such as our native salmon, grizzly bears, and California condors. The Act has helped to bring back species such as our national symbol, the bald eagle.

Of course, there are costs to the ESA. We might lose out on economic development opportunities because of concerns about habitat destruction. The resources we spend on restoring endangered species might be worth spending on other goals. And the ESA regulatory program has its share of paperwork and administrative costs. But when Congress passed the ESA in 1973, it concluded that species protection was generally speaking worth these costs. And Congress hasn’t changed its mind since then.

One of the key provisions of the ESA is what lawyers generally call “Section 7” – it’s the part of the Act that requires federal agencies, when they undertake activities such as development projects, to consult with the agency that implements the Act, the U.S. Fish and Wildlife Service (FWS). The point of that consultation process is to help both the agency proposing to undertake a development activity and FWS to work together to determine what the impacts of that action might be on endangered species. If the proposed action might cause serious harm to the species – what the Act calls “jeopardy” – it is prohibited unless it is changed to reduce or eliminate that harm.Consultation is incredibly useful. It ensures that both the action agency and FWS gather relevant information about endangered species and potential impacts on those species; it ensures that a disinterested agency that is not committed to the development project (FWS) looks over the data and draws reasonable conclusions about what that data means; and it means that if the data show that the project might cause too much harm to endangered species, it will have to be stopped or changed. This consultation process is particularly important because in many cases we know very little about why species are endangered, or what the impacts from development projects might be on their species. By making the development and analysis of information by a neutral, outside agency a precondition for proceeding with the development project, the consultation process helps encourage high-quality research and analysis on endangered species. Better information means better regulation, better protection, and a better chance for recovery.

Unfortunately, the last administration has taken steps to undermine the consultation process. In particular, they have proposed changes to the regulations that implement the ESA that would create substantial loopholes in the Act’s consultation requirements. Those regulations would mean that a wide range of proposed federal actions might not require consultation. Those changes are ill-advised because in many cases the proposed actions that they would exempt from the consultation process are the types of actions for which we have very little information about their effects on endangered species. Indeed, in some cases, the proposed actions would be exempt from the consultation process precisely because we have very little information about their potential impacts on endangered species. But what we need if we are serious about protecting endangered species is not less information, but more.

Congress is currently considering allowing FWS to overturn these changes, and the Obama Administration has also indicated they may seek to overturn them on their own. Both Congress and the new Administration should work together to ensure that the ESA continues to work properly to protect endangered species now and in the future.

For a short article providing a summary and analysis of the changes to the consultation regulations, click here.

Eric Biber is Assistant Professor of Law.

In 1976, a group of thoughtful scientists of the International Union of Geological Sciences expressed a vision of earth resources, time, and man thus:

Mankind is on the threshold of a transition from a brief interlude of exponential growth to a much longer period characterized by rates of change so slow as to be regarded essentially as a period of non-growth. Although the impending period of transition to very low growth rates poses no insuperable physical or biological difficulties, those aspects of our current economic and social thinking which are based on the premise that current rates of growth can be sustained indefinitely must be revised. Failing to respond promptly and rationally to these impending changes could lead to a global ecological crisis in which human beings will be the main victims.

In 1976, global-warming and climate-change were yet to engage the attention of scientists as threats to human habitat.

This vision admonishes President Obama’s team of economic advisers to identify the magnitude of economic growth that can be sustained in the long-term, given a finite, delicately interconnected earth subject unpredictable forces of Nature. The need for revising current economic and social thinking entails a balancing of individual rights to private property and economic prosperity against public guardianship of vital resources common to all. For Obama, the legal scholar, this poses the challenge of modernizing the two traditional models of law: the jus civile, the private law of individuals; and the jus gentium,  the public law of peoples and nations.Many seem to believe that the current economic catastrophe is merely a result of poor regulatory policies, and that with its technological heft, America can maintain uninterrupted economic growth and create unlimited wealth with clever policies to nurture market forces and nourish entrepreneurship. On the contrary, one could argue from an earth perspective that the present market collapse is an indication of virtual wealth created through arbitrary valuation of assets and speculative transactions. Ultimately, real wealth is constrained by the Earth’s resources that sustain humans and other living things. The constraint is fortified by the values of equality, compassion, and dignity to which we are committed in the name of democracy. That different countries, over the past decades, have experienced cycles of boom and bust, accompanied by serious damage to the human habitat, suggests that the present economic crisis portends another step towards the “global ecological crisis” envisioned above.

President Obama has assembled an impressive group of economists and scientists. He has an opportunity to integrate science and economic policy in unprecedented ways. Science can create or destroy: it is ethically neutral. Policy must therefore harness science with social values. Without science, policy will come to nought. Thus, the challenge for President Obama’s intellectual team is to define a magnitude of long-term economic growth that can be justified by Earth resources and so preclude speculative volatility. In this broad context, short-term remedies constitute the means to achieving long-term goals. The strength and the science-policy synergy that the team needs must flow from President Obama’s leadership.

President Obama spoke eloquently at his inauguration of balancing rights with responsibility. Invariably, in the post-WWII world, democracy is treated synonymously with “rights.” At one end, the poor have rights to resources adequate to their basic needs and inherent dignity. At the other, the rich have the rights to amass unlimited wealth. But, in a world whose resources have to be shared, “responsibility” remains elusive. Is there a philosophical, cultural, or historic basis for discussing rights and responsibility? Surprisingly, the roots of Roman law, dating back to the 6th century A.D., provide guidance.

Two thousand years ago, Greek philosophers departed from a theological view to a scientific view of Nature. Inspired by this, Roman jurists under Emperor Justinian of Byzantium recognized that water, air, and the oceans, vital for the survival of all, were subject to immutable laws of Nature, while human laws changed with time. Therefore, they revolutionized the foundations of law, which until then consisted exclusively of a jus civile devoted to rights of citizens to private property. To protect the rights of all people to share vital resources such as water, air, and the sea, they balanced the jus civile with the new concept of the jus gentium, the law of all peoples. The doctrine of public trust, which plays an important role in natural resources law, is founded on one of the major parts of the jus gentium. Although the system of jus gentium played an important role in the development of European law, including the Magna Carta, it fell largely into desuetude in the aftermath of the Industrial Revolution. For two centuries, humankind believed that technology could conquer Nature at will and achieve ever-growing economic prosperity. The second half of the twentieth century has taught otherwise.

This vision of a comprehensive legal order, including both the jus civile and the jus gentium, is not as far-fetched as it might seem. The European Union of 27 nations is headed in this direction with its Water Framework Directive, requiring all its members to formulate water policy conforming to a single unifying philosophy, according to which water is held in trust for all peoples, not for individuals.

President Obama’s challenge of balancing rights and responsibility in a democracy is fundamentally tied to the foundations of legal philosophy. His challenge is to modernize the concepts of jus civile and jus gentium in a technological world where science and freedom can take us down a path of harmony or conflict. Following Emperor Justinian of Byzantium, Obama may wish to assemble the best legal minds he can find to forge a balance between private and public, rights and responsibility, jus civile and jus gentium.

Some years ago, the noted biologist E.O. Wilson pleaded for consilience, a concurrence of ideas among different groups of thought. We now have consilience between Justinian’s scholars and modern science. Let us hope that this consilience guides our modern society in transition.

T.N. Narasimhan is Professor Emeritus in the Department of Materials Science and Engineering and the Department of Environmental Science, Policy, and Management.

As President Obama prepares to address a joint session of Congress, what can we expect to hear?

The pundits will stress the nuts-and-bolts policy issues: the banking system, education, energy, health care. But beyond policy, there will be a vision of America—a moral vision and a view of unity that the pundits often miss.

What they miss is the Obama Code. For the sake of unity, the President tends to express his moral vision indirectly. Like other self-aware and highly articulate speakers, he connects with his audience using what cognitive scientists call the “cognitive unconscious.” Speaking naturally, he lets his deepest ideas simply structure what he is saying. If you follow him, the deep ideas are communicated unconsciously and automatically. The Code is his most effective way to bring the country together around fundamental American values.

For supporters of the President, it is crucial to understand the Code in order to talk overtly about the old values our new president is communicating. It is necessary because tens of millions of Americans—both conservatives and progressives—don’t yet perceive the vital sea change that Obama is bringing about.

The word “code” can refer to a system of either communication or morality. President Obama has integrated the two. The Obama Code is both moral and linguistic at once. The President is using his enormous skills as a communicator to express a moral system. As he has said, budgets are moral documents. His economic program is tied to his moral system and is discussed in the Code, as are just about all of his other policies.
Behind the Obama Code are seven crucial intellectual moves that I believe are historically, practically, and cognitively appropriate, as well as politically astute. They are not all obvious, and jointly they may seem mysterious. That is why it is worth sorting them out one-by-one.

1. Values Over Programs
The first move is to distinguish programs from the value systems they represent. Every policy has a material aspect—the nuts and bolts of how it works— plus a typically implicit cognitive aspect that represents the values and ideas behind the nuts and bolts. The President knows the difference. He understands that those who see themselves as “progressive” or “conservative” all too often define those words in terms of programs rather than values. Even the programs championed by progressives may not fit what the President sees as the fundamental values of the country. He is seeking to align the programs of his administration with those values.

The potential pushback will come not just from conservatives who do not share his values, but just as much from progressives who make the mistake of thinking that programs are values and that progressivism is defined by a list of programs. When some of those programs are cut as economically secondary or as unessential, their defenders will inevitably see this as a conservative move rather than a move within an overall moral vision they share with the President.

This separation between values and programs lies behind the president’s pledge to cut programs that don’t serve those values and support those that do — no matter whether they are proposed by Republicans or Democrats. The President’s idealistic question is, what policies serve what values? — not what political interests?

2. Progressive Values are American Values
President Obama’s second intellectual move concerns what the fundamental American values are. In Moral Politics, I described what I found to be the implicit, often unconscious, value systems behind progressive and conservative thought. Progressive thought rests, first, on the value of empathy—putting oneself in other people’s shoes, seeing the world through their eyes, and therefore caring about them. The second principle is acting on that care, taking responsibility both for oneself and others, social as well as individual responsibility. The third is acting to make oneself, the country, and the world better—what Obama has called an “ethic of excellence” toward creating “a more perfect union” politically.

Historian Lynn Hunt, in Inventing Human Rights, has shown that those values, beginning with empathy, lie historically behind the human rights expressed in the Declaration of Independence and the Constitution. Obama, in various interviews and speeches, has provided the logical link. Empathy is not mere sympathy. Putting oneself in the shoes of others brings with it the responsibility to act on that empathy—to be “our brother’s keeper and our sister’s keeper”—and to act to improve ourselves, our country, and the world.

The logic is simple: Empathy is why we have the values of freedom, fairness, and equality — for everyone, not just for certain individuals. If we put ourselves in the shoes of others, we will want them to be free and treated fairly. Empathy with all leads to equality: no one should be treated worse than anyone else. Empathy leads us to democracy: to avoid being subject indefinitely to the whims of an oppressive and unfair ruler, we need to be able to choose who governs us and we need a government of laws.

Obama has consistently maintained that what I, in my writings, have called “progressive” values are fundamental American values. From his perspective, he is not a progressive; he is just an American. That is a crucial intellectual move.

Those empathy-based moral values are the opposite of the conservative focus on individual responsibility without social responsibility. They make it intolerable to tolerate a president who is The Decider—who gets to decide without caring about or listening to anybody. Empathy-based values are opposed to the pure self-interest of a laissez-faire “free market,” which assumes that greed is good and that seeking self-interest will magically maximize everyone’s interests. They oppose a purely self-interested view of America in foreign policy. Obama’s foreign policy is empathy-based, concerned with people as well as states—with poverty, education, disease, water, the rights of women and children, ethnic cleansing, and so on around the world.

How are such values expressed? Take a look at the inaugural speech. Empathy: “the kindness to take in a stranger when the levees break, the selflessness of workers who would rather cut their hours than see a friend lose their job, the firefighter’s courage to storm a stairway filled with smoke, but also a parent’s willingness to nurture a child…” Responsibility to ourselves and others: “We have duties to ourselves, the nation, and the world.” The ethic of excellence: “there is nothing so satisfying to the spirit, so defining of character, than giving our all to a difficult task.” They define our democracy: “This is the meaning of our liberty and our creed.”

The same values apply to foreign policy: “To the people of poor nations, we pledge to work alongside you to make your farms flourish and make clean waters flow; to nourish starved bodies and feed hungry minds.” And to religion as well: By quoting language like “our brother’s keeper,” he is communicating that mere individual responsibility will not get you into Heaven, that social responsibility and making the world better is required.

3. Biconceptualism and the New Bipartisanship
The third crucial idea behind the Obama Code is biconceptualism, the knowledge that a great many people who identify themselves ideologically as conservatives, or politically as Republicans or Independents, share those fundamental American values—at least on certain issues. Most “conservatives” are not thoroughgoing movement conservatives, but are what I have called “partial progressives” sharing Obama’s American values on many issues. Where such folks agree with him on values, Obama tries, and will continue to try, to work with them on those issues if not others. And, he assumes, correctly believe, that the more they come to think in terms of those American values, the less they will think in terms of opposing conservative values.

Biconceptualism lay behind his invitation to Rick Warren to speak at the inaugural. Warren is a biconceptual, like many younger evangelicals. He shares Obama’s views of the environment, poverty, health, and social responsibility, though he is otherwise a conservative. Biconceptualism is behind his “courting” of Republican members of Congress. The idea is not to accept conservative moral views, but to find those issues where individual Republicans already share what he sees as fundamentally American values. He has “reached across the aisle” to Richard Luger on nuclear proliferation, but not on economics.

Biconceptualism is central to Obama’s attempts to achieve unity —a unity based on his understanding of American values. The current economic failure gives him an opening to speak about the economy in terms of those ideals: caring about all, prosperity for all, responsibility for all by all, and good jobs for all who want to work.

I think Obama is correct about biconceptualism of this sort — at least where the overwhelming proportion of Americans is concerned. When the President spoke at the Lincoln Day dinner recently about sensible Midwestern Republicans, he meant biconceptual Republicans, who are progressive and/or pragmatic on many issues.

But hardcore movement conservatives tend to be more ideological and less biconceptual than their constituents. In the recent stimulus vote, the hardcore movement conservatives kept party discipline (except for three Senate votes) by threatening to run opposition candidates against anyone who broke ranks. They were able to enforce this because the conservative message machine is strong in their districts and there is no nationwide progressive message machine operating in those districts. The effectiveness of the conservative message machine led to Obama making a rare mistake in communication, the mistake of saying out loud in Florida not to think of Rush Limbaugh, thus violating the first rule of framing and giving Rush Limbaugh even greater power.

Biconceptual, partly progressive, Republicans do exist in Congress, and the president is not going to give up on them. But as long as the conservative message machine can activate its values virtually unopposed in conservative districts, movement conservatives can continue to pressure biconceptual Republicans and keep them from voting their conscience on many issues. This is why a nationwide progressive message machine needs to be organized if the president is to achieve unity through biconceptualism.

4. Protection and Empowerment
The fourth idea behind the Obama Code is the President’s understanding of government—“not whether our government is too big or too small, but whether it works.” This depends on what “works” means. The word sounds purely pragmatic, but it is moral in operation.

The idea is that government has twin moral missions: protection and empowerment. Protection includes not just military and police protection, but protections for the environment, consumers, workers, pensioners, disaster victims, and investors.
Empowerment is what his stimulus package is about: it includes education and other forms of infrastructure — roads, bridges, communications, energy supply, the banking system and stock market. The moral mission of government is simple: no one can earn a living in America or live an American life without protection and empowerment by the government. The stimulus package is basically an empowerment package. Taxes are what you pay for living in America, rather than in Congo or Bangladesh. And the more money you make from government protection and empowerment, the more you owe in return. Progressive taxation is a matter of moral accounting. Tax cuts for the middle class mean that the middle class hasn’t been getting as much as it has been contributing to the nation’s productivity for many years.

This view of government meshes with our national ideal of equality. There needs to be moral equality: equal protection and equal empowerment. We all deserve health care protection, retirement protection, worker protection, employment protection, protection of our civil liberties, and investment protection. Protection and empowerment. That’s what “works” means—“whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified.”

5. Morality and Economics Fit Together
Crises are times of opportunity. Budgets are moral statements. President Obama has put these ideas together. His economic program is a moral program and conversely. Why the quartet of leading economic issues—education, energy, health, banking? Because they are at the heart of government’s moral mission of protection and empowerment, and correspondingly, they are what is needed to act on empathy, social and personal responsibility, and making the future better. The economic crisis is also an opportunity. It requires him to spend hundreds of billions of dollars on the right things to do.

6. Systemic Causation and Systemic Risk
Conservatives tend to think in terms of direct causation. The overwhelming moral value of individual, not social, responsibility requires that causation be local and direct. For each individual to be entirely responsible for the consequences of his or her actions, those actions must be the direct causes of those consequences. If systemic causation is real, then the most fundamental of conservative moral—and economic—values is fallacious.

Global ecology and global economics are prime examples of systemic causation. Global warming is fundamentally a system phenomenon. That is why the very idea threatens conservative thinking. And the global economic collapse is also systemic in nature. That is at the heart of the death of the conservative principle of the laissez-faire free market, where individual short-term self-interest was supposed to be natural, moral, and the best for everybody. The reality of systemic causation has left conservatism without any real ideas to address global warming and the global economic crisis.

With systemic causation goes systemic risk. The old rational actor model taught in economics and political science ignored systemic risk. Risk was seen as local and governed by direct causation, that is, buy short-term individual decisions. The investment banks acted on their own short-term risk, based on short-term assumptions, for example, that housing prices would continue to rise or that bundles of mortgages once secure for the short term would continue to be “secure” and could be traded as “securities.”

The systemic nature of ecological and economic causation and risk have resulted in the twin disasters of global warming and global economic breakdown. Both must be dealt with on a systematic, global, long-term basis. Regulating risk is global and long-term, and so what are required are world-wide institutions that carry out that regulation in systematic way and that monitor causation and risk systemically, not just locally.

President Obama understands this, though much of the country does not. Part of his challenge will be to formulate policies that carry out these ideas and to communicate these ideas as well as possible to the public.

7. Contested Concepts and Patriotic Language
As President, Barack Obama must speak in patriotic language. But all patriot language in this country is “contested.” Every major patriotic term has a core meaning that we all understand the same way. But that common core meaning is very limited in its application. Most uses of patriotic language are extended from the core on the basis of either conservative or progressive values to produce meanings that are often opposite from each other.

I’ve written a whole book, Whose Freedom?, on the word “freedom” as used by conservatives and progressives. In his second inaugural, George W. Bush used “freedom,” “free,” and “liberty” over and over—first, with its common meaning, then shifting to its conservative meaning: defending “freedom” as including domestic spying, torture and rendition, denial of habeus corpus, invading a country that posed no threat to us, a “free market” based on greed and short-term profits for the wealthy, denying sex education and access to women’s health facilities, denying health care to the poor, and leading to the killing and maiming of innocent civilians in Iraq by the hundreds of thousands, all in the name of “freedom.” It was anything but a progressive’s view of freedom—and anything but the view intended in the Declaration of Independence or the Constitution.

For forty years, from the late 1960’s through 2008, conservatives managed, through their extensive message machine, to reframe much of our political discourse to fit their worldview. President Obama is reclaiming our patriotic language after decades of conservative dominance, to fit what he has correctly seen as the ideals behind the founding of our country.

“Freedom” will no longer mean what George W. Bush meant by it. Guantanamo will be closed, torture outlawed, the market regulated. Obama’s inaugural address was filled with framings of patriotic concepts to fit those ideals. Not just the concept of freedom, but also equality, prosperity, unity, security, interests, challenges, courage, purpose, loyalty, patriotism, virtue, character, and grace. Look at these words in his inaugural address and you will see how Obama has situated their meaning within his view of fundamental American values: empathy, social and well as personal responsibility, improving yourself and your country. We can expect further reclaiming of patriotic language throughout his administration.

All this is what “change” means. In his policy proposals the President is trying to align his administration’s policies with the fundamental values of the Framers of our Constitution. In seeking “bipartisan” support, he is looking beyond political affiliations to those who share those values on particular issues. In his economic policy, he is realigning our economy with the moral missions of government: protection and empowerment for all.

It’s Us, Not Just Him
The president is the best political communicator of our age. He has the bully pulpit. He gets media attention from the press. His website is running a permanent campaign, Organizing for Obama, run by his campaign manager David Plouffe. It seeks issue-by-issue support from his huge mailing list. There are plenty of progressive blogs. MoveOn.org now has over five million members. And yet that is nowhere near enough.

The conservative message machine is huge and still going. There are dozens of conservative think tanks, many with very large communications budgets. The conservative leadership institutes are continuing to turn out thousands of trained conservative spokespeople every year. The conservative apparatus for language creation is still functioning. Conservative talking points are still going out to their network of spokespeople, who still being booked on tv and radio around the country. About 80% of the talking heads on tv are conservatives. Rush Limbaugh and Fox News are as strong as ever. There are now progressive voices on MSNBC, Comedy Central, and Air America, but they are still overwhelmed by Right’s enormous megaphone. Republicans in Congress can count on overwhelming message support in their home districts and homes states. That is one reason why they were able to stonewall on the President’s stimulus package. They had no serious media competition at home pounding out the Obama vision day after day.

Such national, day-by-day media competition is necessary. Democrats need to build it. Democratic think tanks are strong on policy and programs, but weak on values and vision. Without the moral arguments based on the Obama values and vision, the policymakers most likely be unable to regularly address both independent voters and the Limbaugh-FoxNews audiences in conservative Republican strongholds.

The president and his administration cannot build such a communication system, nor can the Democrats in Congress. The DNC does not have the resources. It will be up to supporters of the Obama values, not just supporters on the issues, to put such a system in place. Despite all the organizing strength of Obama supporters, no such organizing effort is now going on. If none is put together, the movement conservatives will face few challenges of fundamental values in their home constituencies and will be able to go on stonewalling with impunity. That will make the president’s vision that much harder to carry out.

Summary
The Obama Code is based on seven deep, insightful, and subtle intellectual moves. What President Obama has been attempting in his speeches is a return to the original frames of the Framers, reconstituting what it means to be an American, to be patriotic, to be a citizen and to share in both the sacrifices and the glories of our country. In seeking “bipartisan” support, he is looking beyond political affiliations to those who share those values on particular issues. In his economic plan, he is attempting to realign our economy with the moral missions of government: protection and empowerment for all.

The president hasn’t fooled the radical ideological conservatives in Congress. They know progressive values when they see them — and they see them in their own colleagues and constituents too often for comfort. The radical conservatives are aware that this economic crisis threatens not only their political support, but the very underpinnings of conservative ideology itself.

Nonetheless, their brains have not been changed by facts. Movement conservatives are not fading away. They think their conservative values are the real American values. They still have their message machine and they are going to make the most of it. The ratings for Fox News and Rush Limbaugh are rising. Without a countervailing communications system on the Democratic side, they can create a lot of trouble, not just for the president, not just for the nation, but on a global scale, for the environmental and economic future of the world.

George Lakoff is Goldman Distinguished Professor of Cognitive Science and Linguistics. He is the author of The Political Mind and Don’t Think of an Elephant!

(Also published in the San Francisco Chronicle, Feb. 25, 2009.)

The Obama administration’s response to the problem of unsafe imports—from tainted foreign-made toys to adulterated drugs—must reflect the realities of globalization.

U.S. regulators possess a full toolbox to police domestic production. When laws mandating product safety aren’t enough, the production process itself is regulated – effectively placing a regulator on the each factory floor. For foreign products, however, American regulation of the production process is often impossible.

The dominant regulatory response to date has been more government inspections, ignoring the fact that there are simply too many imports for inspections to work. There are eight inspectors in the FDA’s new Beijing office, while Chinese exports to the U.S. total $321 billion. Even doubling or tripling the number of inspectors would clearly not be enough.

There is another option: giving U.S. importers incentives to monitor compliance with domestic consumer protection laws. Where imports are likely to pose a threat to consumers, higher legal penalties should be imposed against U.S. companies trading in these products, making these firms liable for the true costs of their foreign activity. Drug companies using foreign supply chains, for example, would face increased administrative penalties if harmful products enter the U.S. Companies would respond by taking safety costs into account when deciding where and how to conduct their business—extending the force of American consumer protection far beyond the formal reach of U.S. law. Companies would compete for the cheapest way to produce safe goods, rather than competing to produce the cheapest goods.

(An article detailing this proposal can be found in the California Law Review (December 2oo8).

Kenneth Bamberger is Assistant Professor of Law and Andrew Guzman is Professor of Law and Director of Graudate Programs.

(This essay was also posted with the San Francisco Chronicle, February 23, 2009.)

The Obama administration must not try to speak to something called the “Muslim world.” It does not exist!

To offer a dialogue with the Muslim world is precisely to play on the narrative of Osama bin Laden: the world is divided into two parts, the “West” and the “Muslims.” This narrative allows bin Laden to cast himself as the best protector of such a virtual Muslim world.

From Gaza to India, most of the conflicts where Muslims are involved have nothing to do with Islam. Hamas represents Palestinian nationalism under a thin Islamic garb. In Iraq, factions are competing over land and power, not Islamic law. The Bombay attacks stemmed from the conflict between India and Pakistan, fueled by the Pakistani army.

Moreover, Muslims in the West want to be considered first as Western citizens, not as the bridge-head of a foreign influence. Speaking of a Muslim world means pointing to “our” Muslims as foreigners. By addressing the “Muslim world,” do we mean to suggest that the West is defined by Christianity or by secularism?

President Obama cannot speak as the head of the Christian world. But to present the rule of law and human rights as typically Western secular values gives credence to authoritarian Arab leaders and Muslim conservative clerics, who are happy to present these values as “foreign.”

If President Obama tries to open an official dialogue with them, he will effectively define these leaders as representative of the “Muslim world,” thus pre-empting any change. Our policy must recognize the diversity of Islamic people, not assuming a monolithic world.

Olivier Roy is Visiting Professor of Political Science aand author of “The Politics of Chaos in the Middle East,”(Columbia University Press, 2008).