Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

24 March 2013

Copyright, Globalization, and the New Roberts Court

How the Court rejected its own earlier hints
Why the Court rejected those hints
Why the decision impacts far more than copyright law


Last Tuesday the United States Supreme Court decided that a US copyright owner who allows a copyrighted item to be sold abroad cannot prevent the buyer from importing it into the United States and reselling it here. The Court reversed a $600,000 judgment against a former student from Thailand who had imported and sold over 600 copies of foreign-made US-copyrighted textbooks to help finance his American education. (Kirtsaeng v. John Wiley & Sons, Inc.)

The decision was remarkable for two reasons. First, in a previous, similar case over fifteen years earlier, the Court had given an unmistakable hint that any case like Kirtsaeng would come out the other way. Second, the Court’s decision was a small step along the long road back from judging by semantics and sophistry.

For the public and posterity, the second reason is by far the most important. Combined with decisions having more universal importance, it suggests a slow sea change in our Supreme Court, as Chief Justice John Roberts and President Obama’s two female appointees begin to put their own unique stamps on it.

How the Court rejected its own earlier hints

The first reason why the decision was surprising was a bit of inside baseball. Our copyright act has two relevant provisions, drafted at different times, by different Congresses, for different purposes. Their language just doesn’t fit together well.

One provision confirms an venerable principle, called the “first-sale” or “exhaustion” doctrine. Under this principle, an item controlled by copyright—a “copy”—loses copyright protection after its first sale under the copyright owner’s authority. That is, the first authorized sale exhausts copyright protection for that copy.

This “exhaustion” of copyright applies only to the single copy itself. Copyright still prevents anyone from making or distributing unauthorized or “piratical” copies, and from doing infringing business. But the copyright no longer prevents the item sold from being subject to the buyer’s whim. Once a consumer buys a book, a CD, or (if without restriction) an MP3 file, he can do with it what he pleases. He can sell it, lend it, bury it in a time capsule, or even destroy it, without accounting to the copyright owner.

What made the issue of importation difficult is another, entirely separate provision of our copyright act. Its prohibits importing pirated copies of copyrighted works while allowing legitimate copies in.

As often happens, the two separate Congresses that drafted these distinct provisions didn’t think nearly hard enough about how they fit together. In tandem, they are a drafting mess, with multiple, confusing and inconsistent internal-cross references to several basic provisions of the copyright act. Their histories are almost equally obscure.

The Supreme Court’s decision in the earlier case, Quality King Distributors, Inc. v. L’anza Research Int’l, Inc., was a mind bender. It tried valiantly to make sense of nonsense. But it strained the mind. I taught copyright law for 23 years. This earlier case was the only one for which I had to review my notes in detail (often several times) every time I taught it. Even my best students had trouble understanding the reasons for the Court’s decision.

I’ll spare you, gentle reader, the complexity of it all. In essence, that previous decision turned on a simple semantic point. The statutory clause expressing the first-sale doctrine refers to copies “lawfully made under this title,” i.e., under our copyright act itself. Like nearly all our law, our copyright act has no direct effect outside our borders. So the Court decided that this language did not apply to copies lawfully made under foreign copyright laws.

In this earlier case, the copies at issue had been made in the United States, exported, and then imported without the copyright owner’s permission. Since the original manufacture had occurred here at home, the earlier Court decided that “this title” applied, and so did the first-sale doctrine. Therefore, the copyright owner could not prevent the importation of the home-made and exported copies.

In her concurring opinion in this earlier case, Justice Ginsburg called the copies’ history a “round trip.” While agreeing with the majority ruling, she emphasized this point. She strongly implied that a copyright owner could exclude from importation copies lawfully made and first sold abroad. While less clear on this point, the majority seemed to accept this logic of their largely semantic ruling.

Together, the two opinions in the earlier case seemed to leave little doubt how the Court would rule in the more pedestrian case, when copies are lawfully manufactured and first sold abroad. The hints were as strong as any the Court leaves as guidance for future decisions.

But last Tuesday’s decision rejected those hints entirely. It re-interpreted the language of the copyright act, holding that copies lawfully manufactured abroad and first sold there, like their counterparts lawfully sold here first and later exported, can be imported and resold freely by anyone, whether or not the US copyright owner objects.

Now here’s the bit of inside baseball. Lawyers and judges know that hints in previous cases are not the law. They are only hints, which lawyers and judges call “dicta.”

Under our Constitution, judges can decide only actual cases, not hypothetical ones. Since the previous decision involved exported copies, the Roberts Court was free to disregard these earlier hints.

Why the Court rejected those hints

Having disposed of the inside baseball, we can now cut to the chase. Did the Court do right in rejecting the clear hints from its own earlier decision?

It did. Economically and socially, the first-sale doctrine is a vitally important rule. It allows buyers to treat copies of copyrighted works like any tangible thing sold and bought in the marketplace. A similar rule applies to patented articles.

Imagine how much more complex your life would be if you had to trace the copyright or patent pedigree of every thing you bought and own in order to know when, how and even whether you can use it. The law and lawyers would not just dominate our society, as they do today. They would dominate all the tiny transactions of your everyday life and make its ordinary functioning a complex, over-lawyered hell.

The old English common law had a powerful antidote to this happening. It outlawed legal restraints on things you buy. It called them “restraints on the alienation of chattels,” and it nearly always struck them down. In so doing, it not only made your life much easier. It made free markets possible.

The common law’s disfavor of restraints on the alienation of chattels is a pillar of our competitive free-market system. The first-sale or exhaustion doctrine in intellectual-property law is an important corollary. It lets the intellectual-property owner control the making, marketing and distribution of copies of protected items, ie, the business protected by the intellectual property. But once the copies are sold under her authority, it keeps markets in them free. (As the Court had done in an old patent case, the Kirtsaeng Court ignored that fact that the copyright owner had tried to limit geographic distribution of foreign-made copies with a restrictive notice. In so doing, the Court implied that restrictive licensing may be possible, but must involve actual assent by the buyer, not mere notice.)

In re-enforcing this age-old principle, the Kirtsaeng decision also advanced and accommodated two increasingly important facets of modern life: globalization and free trade. The first-sale doctrine has been a fact of commercial life in our nation since its Founding. To restrict its application simply because copies were first made and sold abroad would allow copyright owners to engage in a subtle form of trade protectionism.

That was exactly what the copyright owners had tried to do in both Quality King and Kirtsaeng. They had authorized the sale of protected products abroad, in the first case after export and in the second after foreign manufacture. But because of differences in the foreign markets and cultures, their foreign distributors had offered much lower prices than were available here at home. (That’s why Kirtsaeng was able to help finance his American education by buying authorized copies of textbooks in Thailand and reselling them here.)

By agreement with their foreign distributors, both copyright owners had tried to prevent the cheaper foreign copies from coming back into (or just into) the United States. For whatever reason, those agreements were ineffective. So when a discounter or Kirtsaeng bought those legitimate products abroad and imported them into the United States, the copyright owner sued to stop it from selling them.

In the Quality King case, the Court let the cheaper foreign versions in. Why should it not do the same in Kirtsaeng, when the copies’ initial manufacture and sale had been properly authorized by the copyright owner, merely because they had occurred abroad?

The dissenters in Kirtsaeng said it should not because Congress intended it not to. They also noted that our international trade negotiators have pushed to avoid so-called “international exhaustion”—a point on which the TRIPs agreement—the intellectual-property part of the World Trade Organization agreements—is neutral. They argued that the provision prohibiting importation of unlawfully made foreign copies was designed to do just that. They acknowledged that their view would also restrict use and resale of those copies after importation, but they belittled the practical trouble those restrictions would cause.

In essence, the dissenters felt the Court’s decision would undermine the power to restrain unauthorized importation that Congress intended copyright owners to have. The majority felt that allowing that restraint would undermine the first-sale doctrine and the principle of unrestrained trade in chattels that lies at its core. In the end, the decision and the views on both sides were judgment calls, despite an enormous amount of ink wasted on semantics and attempts to divine Congress’ unclear intent.

In one small way, the Court’s decision may help bring jobs back home. If Kirtsaeng had come out the other way, copyright owners who had cheap copies made abroad could block their importation into the US, while those who manufactured copies at home and exported them could not block their re-entry. Thus US copyright owners would have two incentives to outsource the manufacture of copies abroad: (1) the legal ability to price discriminate between foreign and domestic markets, and (2) the presumed lower cost of manufacturing abroad. By ruling as it did, the Supreme Court avoided this possible additional cause of outsourcing.

The decision was a clear win for globalization, legal simplicity, practical simplicity, free markets, American jobs, and common sense. But it had to step over the barrier of the strong hints in the previous case. In doing so, it surprised Justice Ginsburg, who had phrased those hints most clearly in her concurrence, and who accordingly wrote a lengthy dissent in Kirtsaeng. (It also embarrassed me, who had predicted a contrary result in my treatise, based on the earlier strong hints.)

Why the decision impacts far more than copyright law

In allowing products legitimately sold abroad to be imported no matter where they are made, last week’s decision was a practical one. It reaffirmed the age-old rule against restraints on the alienation of chattels. It leveled the playing field between products manufactured at home and abroad. It advanced globalization and free trade and struck a blow against protectionism. At the same time, it avoided an economic disincentive to keeping manufacturing jobs at home.

But it also had importance far beyond copyright. Chief Justice Roberts and the two Obama appointees to the Court (Justices Kagan and Sotomayor, both females) all joined the majority opinion. Their doing so suggests they are beginning to put their indelible stamp on the Court and our law.

There are two irreconcilably opposed views of judging. One holds that judges only “apply” the law; they don’t make it. The other holds that judges really make law, at least in deciding what the law is when it’s unclear.

Cases don’t rise to the attention of the United States Supreme Court when the law on point is clear. The mere fact that a dispute has come to the Court shows that the “law,” by itself, is not clear enough to decide the case. That’s why we have judges.

If the law is so unclear that it can’t decide a dispute big enough to justify the expense and years of delay of a trip to our Supreme Court, can you really say the law exists?

Maybe you can if you are a sophist. But there is little practical difference between a law that decides nothing (insofar as a particular case is concerned) and a law that does not exist. In either case, a human judge has to make a decision based on reason, wisdom, common sense, and simple justice. Human beings, sitting as judges, then must “make” the law.

There is nothing wrong with this. Our Constitution distinguishes judges from legislatures. Legislatures are “sovereign,” in much the same way that kings and queens once were. They can make law on anything, including hypothetical cases and future contingencies. Judges can only make law in “cases and controversies” properly brought before them, which involve past real disputes. In other words, they make law only when, in all practical effect, there is no law that matters, and a real, live dispute awaits resolution.

This simple principle—a fundament of Anglo-American law—prevents unelected judges from ever sitting as legislatures or overstepping the bounds of their limited authority. They “make” law only when the legislature fails to do so—or when our Founders failed to do so in our Constitution— and then only when parties to a lawsuit bring a resulting dispute to their attention.

That is, in essence, the genius of Anglo-American common law. It is realistic. It recognizes that no legislature, however smart and prescient its members may be, can anticipate every contingency, let alone in the tricky and contentious process of political compromise. So it lets courts fill the gaps, as well as make law in a vacuum, as necessary to resolve real disputes and do justice.

In contrast, the so-called “civil law” that prevails in non-English-speaking jurisdictions pretends that legislatures are omniscient. Only their statutes are “law,” it says. Judges merely apply legislatures’ words, with little or no precedential effect, no matter how unclear those words may be. One judge can ignore another’s earlier decision because no judge has power to “make” law, for example, by precedent.

For about two decades, a small minority of justices on our Supreme Court have slyly tried to insinuate a civil-law system into our United States. Legislatures make the law, they said. Judges only apply it.

Anything else, they implied, is judicial “activism,” a pastime of Satan. God forbid that judges should even think about “policy.”

The result has been a generational pendulum swing toward empty formalism and away from wisdom and realism in judging. Semantics and sophistry became the lodestars. Even mentioning “policy” became verboten.

The two longest opinions in Kirtsaeng amply demonstrate how this recent trend reduces judges’ focus to mindless trivia. Both the majority and Justice Ginsburg in dissent devote the vast bulk of their opinions to semantics. They delicately parse the language of the various inconsistent statutory provisions. Then they do the same with the legislative history.

What was their momentous conclusion after this Herculean effort? That the law is unclear. Both sides actually agree on that point, although they scarcely acknowledge their agreement. Both sides could have cut dozens of largely worthless pages from their collective opus by acknowledging that fact and moving on. They could credibly have reached the same conclusion simply by observing that the case had made it all the way up to their supreme tribunal, and that they had agreed to review it.

But that’s not what they did. In their lengthy expositions, each side dissected and attempted to refute the other’s semantic reasoning, politely repeating it to demonstrate detailed understanding of the opposing view. As a result, the two chief opinions resemble summaries of opposing legal briefs, rather than decisions or rulings of a body endowed with constitutional authority.

One suspects that the clerks who produced the first drafts of each opinion actually cribbed much of this semantic clutter from the numerous legal briefs of the parties and amici curiae. Wholly missing—until near the very end of lengthy discussions—is serious treatment of what the public and posterity care about: consequences.

Is it any wonder that such verbal shenanigans are causing the Court and the law to lose respect and public authority? Modern behavioral psychologists tell us how we humans really make decisions. We intuit them. Then, and only then, we rationalize them with linear reasoning.

In the Kirtsaeng case, putting all the inconclusive semantic nonsense first fooled no one. But it does keep most non-lawyers from reading on to the real rationale.

If you read the opinions carefully (and tirelessly!), the real basis of the majority’s and dissent’s views are crystal clear. Both sides agreed that the statute is unclear on the precise point at issue. So the majority decided the case in a way that makes markets freer, the law simpler, and commerce in things subject to copyright protection more fluid. In contrast, the dissent discerned an unrealized intention on the part of Congress to allow copyright owners to engage in geographic price discrimination. Since that practice might enhance the value of their copyrights and thereby, in the long run, encourage the creativity that copyright motivates, they would have given that unexpressed (or imperfectly expressed) intention legal force.

Kirtsaeng was a purely statutory case. The Constitution was not involved. So if Congress doesn’t like the Court’s decision, it can “overrule” it legislatively, any time it wants to.

There is just one practical problem with this nice theory. Congress is utterly dysfunctional. It can’t pass a budget—its most basic task—let alone decide how big to make our military, our public safety nets, or government itself.

Under these circumstances, what do we want our high Court to do? Do we want it to do what the majority did, namely, figure out, in the absence of clarity in existing law, what the best law would be? Or do we want it to do what the dissent did, namely, try to divine what Congress may have meant to do (but failed to express) when it was less dysfunctional, and follow that course? For me as a citizen, law professor and sometime lawyer, the right answer is obvious.

Although our Constitution was not at issue in Kirtsaeng, I can’t leave the subject of the damage our anti-“activism” crusade has done to judging without a few words on interpreting our Constitution.

Where our Constitution is at issue, the anti-“activism” inquisitors have a simple command. Judges should pore over every iota of history, trying to determine what our Founders, dead now for close to two centuries, thought in 1791 when they ratified our Constitution. Like mediums holding a seance, they plumb the minds of specters, whose lives, cities, technology, culture, livelihood and stresses were wildly different from ours.

I can’t imagine any exercise more ridiculous. As a citizen of a great, thriving democracy, I don’t want justices to hold seances, let alone live in the past. I don’t want them to imagine what they might think if they had been Thomas Jefferson or Alexander Hamilton in 1791. I want them to resolve modern problems with knowledge of all that has happened (and not happened) in the intervening 222 years, relying on the Founders’ general vision of a democratic society, but without asking how they would have decided a narrow issue, let alone trying to call them back to life.

Our Founders’ vision (and their brilliance) is apparent from the Constitution as a whole. But their views on particular issues (if they left any hints at all) are hardly relevant to our times. In their day, science was still in the womb. None of the things that enrich and complicate our modern lives existed—not electric power, cars, railroads, aircraft, radio, television, movies, the Internet, cell phones, nuclear weapons or automatic firearms.

What our Founders would have thought about our modern life and situation, when all these things do exist and make a difference, are matters of sheer conjecture. They are just as speculative looking backward as science fiction is looking forward. Do we want our law to be based on retrospective science fiction?

No amount of historical research or speculation can build a time machine. If you really want to say what our Founders would have thought on most particular issues of modern importance, you just have to make the answer up. Far better to think for yourself what would be a good answer consistent with their general plan.

An even bigger problem is that our Founders were not all of one mind. Jefferson and Hamilton, among many others, had widely different ideas about the power and functioning of central government. Jefferson and Adams had similar disagreements about the advisability of war with France, which had been our national midwife.

So which is better? Choosing the Founder you like best, in order to cloak a decision made intuitively on other grounds? Or explaining the real basis for your decision?

That’s how I view the lengthy discussions of legislative semantics in Kirtsaeng. They are a smokescreen—a mask to hide the real reasons for the main opposing views. They come first only because our anti-“activism” crusade forces judges to pretend that judging is a mechanical process, like Chief Justice Roberts’ famous metaphor of a baseball referee calling balls and strikes.


Justice Antonin Scalia is the Grand Inquisitor of the anti-“activism” crusade. But he doesn’t credit legislative histories. He thinks that Congress ought to say what it means clearly in statutory language, not rely on background materials drafted largely by legislators’ staff.

Yet he joined the dissent in Kirtsaeng. He pointedly refrained from joining Justice Ginsburg’s detailed (and excruciatingly long) expositions of legislative history. Nevertheless, he did not refuse to joint Part VI of the dissent, which states, “Congress intended to grant copyright owners permission to segment international markets by barring the importation of foreign-made copies into the United States.”

In other words, Scalia wants to force Congress to be clearer. But he joined both the part of the dissent that demonstrated a lack of sufficient clarity and the part that rewarded Congress for incompletely expressing its intent. Isn’t that inconsistent?

Semantics, sophistry and unexpressed intent. (And, for our Constitution, “original intent.”) Those have been the lodestars and will be the legacies of Scalia and his protégés. But his star is waning.

One reason is his intemperate dissent in Bush v. Boumediene, one of the Supreme Court’s most important decisions in a generation. There, the Court decided that the age-old writ of habeas corpus may apply to aliens captured abroad, and that the Court itself retains power to decide when it does.

With that decision, we Yanks preserved our courts’ ability to restrain the Executive’s unchecked power—a restraint handed down to us nearly eight centuries ago in Magna Carta.

Scalia would have none of it. In his dissent, he hinted that the majority were activists. But in fact it was Scalia himself who would have been the activist. “America is at war with Islamic extremists[,]” he wrote. The rest of his dissent is a paean to raw Executive power in times of stress. He had little doubt that Dubya’s “war on terrorism” (an attack on a few hundred extremists and a noun) was a “war” in the same sense as our Civil War or World War II, the two bloodiest wars in our history, in each of which well over half a million of us died in combat.

You can agree or disagree with that point of view. But there is little doubt that it is “policy,” not law, let alone the law of habeas corpus. The majority opinion in Boumediene, penned by Justice Kennedy, confined itself to law and history. The contrast revealed Scalia, on the issue of judicial “activism,” to be an hypocrite of historic proportions.

So the world turns, and so the pendulum begins to swing back from sophistry to real decisions. Kirtsaeng was a small step in that direction. It gave fulsome obeisance to semantics and legislative intent. But it also discussed consequences, consistency, wisdom, common sense and (dare I say it?) policy. Especially in a statutory matter, where Congress can—at least in theory—change the result of a court’s decision any time it wants to, that seems the least that judges can do.

It is no coincidence that Justice Breyer authored the majority opinion. He is the Court’s leading expert on antitrust law, what foreigners call “competition law.” He is therefore the Court’s leading economist. His brilliant book analyzing public regulation of natural monopolies is still a leader in its field.

Justice Breyer understands what makes free markets work and what can gum them up, including restraints on alienation. So where the law was unclear, he extended the first-sale doctrine, which keeps free markets free, into our modern, global economy, notwithstanding a lack of absolute clarity in the statute.

The two newest members of the Court, Justices Kagan and Sotomayor, signed on to Justice Breyer’s opinion. In so doing, they also recognized what judges really do: make law where law is absent or unclear, bringing to bear their human wisdom and understanding of probable consequences. Judges are not automatons, and semantics is not law.

Chief Justice Roberts signed on, too. His personal philosophy of judging remains unclear. During his confirmation hearings, he made that famous analogy to calling balls and strikes. Does he really believe that we don’t want judges’ wisdom and judgment, just their eyesight?

In upholding most of so-called “Obamacare,” he took a subtle and wise approach. He construed the word “tax” differently as used in legislation and our Constitution, with the finesse of a Cardozo or Brandeis. His end result (and no doubt his goal) was to let the political process, not unelected judges, decide how to manage a socioeconomic dispute over financing health care that had raged for a century and is still raging.

Perhaps his legal legerdemain was only a sign of judicial restraint. But at very least it revealed a mind acute to the need for wisdom, not just semantics and sophistry, in judging.

When Solomon ordered the baby split, there was no “law” to that effect. Any society that regularly split babies would not likely survive. But Solomon made his strange decree in order to reach a just and wise result. The real mother ended up with her child.

Consequences matter. Judicial decisions have real effects on people’s lives. We appoint judges as wise experts not so much for their technical knowledge of the law. That’s only a minimum requirement for judging, an admission ticket. Far more important, we seek the wisdom to make sure that the consequences of decisions where law is unclear are just, practical and reasonable. The process of reasoning is secondary. Semantics and sophistry come in a distant third.

Neither dead words on paper nor attempts to read minds dead for nearly two centuries can make sure we reach wise decisions, let alone at the highest level. Only wise and astute minds, trained in the law and sensitive to human consequences, can do that. The length and focus of its longer opinions give more than a glance backwards, but Kirtsaeng is yet another sign of a younger, more dynamic Court ready to abandon empty formalism and take up real judging again.

Footnote 1: While joining Justice Breyer’s majority opinion in full, Justice Sotomayor (joined by Justice Alito) also penned a brief and incisive concurring opinion. Like Solomon, she would have split the baby, imposing restrictions on importation, but not on subsequent use and resale, of copies lawfully manufactured abroad. That approach might have better realized Congress’ intent in both of the relevant statutory provisions, but doing so would have required overruling Quality King, just fifteen years after a unanimous decision. Apparently there was little support for that.

Footnote 2: As I used to tell my students, in economics the word “discrimination” does not bear the taint that it does in interracial or inter-ethnic relations. Price “discrimination” is just selling the same thing to different customers at different prices.

Where it is lawful, price discrimination can be beneficial. For example, business and leisure air travelers pay famously different fares. Without that price discrimination, which airlines enforce largely by advance-purchase requirements for leisure travelers, tourists would pay much higher prices, and the airline industry would suffer from reduced traffic.

But price discrimination is not always lawful. As I have explained in detail in another post, geographic price discrimination often violates the antitrust laws. It does so, for example, when it is used as a means of subsidizing below-cost selling in one market in order to drive competition out and achieve a monopoly there.

Price discrimination is not always unlawful, or even unwise, as the airline example shows. Because the intellectual-property laws are exceptions to our general rule of free competition, Congress could rationally permit geographic price discrimination by copyright owners in order to increase the economic incentive for creativity that copyright protection provides. What the majority and dissent in Kirtsaeng disagreed on was whether Congress had actually done so with sufficient clarity to decide the case, and whether the clarity, simplicity and free-market-preserving character of the first-sale doctrine required Congress to act with special clarity in undermining it.


15 March 2013

Positive Global-Warming Feedback

What is feedback?
Common examples of positive feedback
Positive feedback in global warming Conclusion
Coda: the President’s NEPA order

One of the most important scientific and engineering concepts that policymakers and the public must understand is feedback. That concept holds the key to our future as a species. Positive feedback, which leads to runaway instability, could destroy us. Negative feedback, whether natural or contrived, could save us.

What is feedback?

Simply defined, feedback is the property of any system to change its own behavior automatically, without human intervention. If the feedback is negative, the automatic changes tend to counter random or accidental ones and make the system stable. If the feedback is positive, small human-made or accidental changes can magnify themselves and make the system unstable. This can happen very quickly.

Examples of positive feedback in our mostly artificial world are relatively rare today. Why? Because the engineers who design our products and systems go to great pains to make sure that feedback is negative, so that systems stay stable and under our control. Nevertheless, there are still stark examples of positive feedback with which most of us are familiar.

Common examples of positive feedback

One of the most common examples of positive feedback is amplifier screech. It happens when you have a microphone connected to an amplifier and speakers. If you put the microphone too close to the speakers, any small sound gets amplified through the speakers, fed back into the microphone, and amplified again.

This is a classic case of positive feedback. It maxes out the sound system, producing a horrible, ear-splitting screech, which occurs instantaneously. The screech continues until the operator is smart enough to move the microphone away from the speakers, cut the amplifier’s volume, or kill the power.

Nowadays, clever solid-state circuitry reduces this sort of positive feedback by sensing amplifier overload and reducing the gain electronically and automatically. In other words, engineers have partially solved this problem with artificial circuitry that converts positive feedback into negative feedback.

Positive feedback is not limited to electronic systems. It can happen with mechanical systems, too. It happened to me when I was learning to drive.

In those days, there were no seat belts. Thinking me a bright boy, my mother decided to save money and teach me to drive herself. We took our big, heavy 1950s-vintage car onto a quiet residential street. After I conquered my initial fear, I started to drive the car too fast, and my mother told me to stop.

Being obedient, I hit the brakes quickly and a bit too hard. That car had good brakes, so it slowed down immediately. Without a seat belt, my body did not. The inertia of my body’s forward motion caused my foot to stomp even harder on the brakes than I had intended. The quick stop became a panic stop.

All this happened in an instant. The tires squealed. My torso hit the steering wheel, and my mother’s head hit the windshield. She decided that she was not such a good driving instructor after all, so she sent me to a commercial driving school. If I remember correctly, its cars had seat belts, even though they were not then required by law.

This was another example of positive feedback, and one of the many reasons for wearing seat belts. If we had been in traffic, my unintended panic stop might have caused a car behind me to hit mine, producing another kind of positive feedback—the kind that causes multi-car pile-ups in fog and rain.

Positive feedback can affect financial systems, too. The so-called Flash Crash of May 2010 was such an event. Apparently mistaken orders caused an instability in our automated electronic trading systems. Those systems had (and still have) multiple connected trading algorithms, each trying automatically to gain an advantage over the others. In mere milliseconds, the electronic market went into a tailspin. During the next hour, Dow dropped about a thousand points, and some stocks lost over 90% of their value.

That was a classic example of positive feedback, but the result was hardly positive. The screeching of traders and brokers was nearly as instantaneous as the screech from a runaway amplifier. What stopped the process from becoming a serious financial panic was the cutoff rules earlier established by regulators and the ability of regulators and market makers to unwind the bizarre transactions, slowly and carefully, after the fact.

Positive feedback in global warming

Now that we recall what positive feedback is—and how quickly it can cause disaster—we can explore the two big sources of positive feedback in global warming.

The first is the melting of our ice, including the polar ice caps and our glaciers. Melting ice feeds back positively to cause further global warming in two ways. First, ice is a big heat sink. It take a lot of energy (in the form of heat) to melt ice. When the ice has melted, the heat sink is gone, and warming accelerates. The other big cause of feedback is the release of methane, a greenhouse gas ten times more potent than carbon dioxide. Both the melting of permafrost and the breakdown of methane hydrates add to this effect. Let’s examine each of these causes of positive feedback in turn.

    Melting of ice
Readers who remember their high-school physics might recall two key numbers. The first is the definition of a calorie of energy. That’s the amount of heat it takes to raise the temperature of a cubic centimeter of water one degree Centigrade. At room temperature, a cubic centimeter of water masses one gram, also by definition. The Centigrade scale, as its name implies, divides the temperature “distance” between the melting point of ice and the boiling point of water (at normal atmospheric pressure) into 100 degrees.

The second number to remember is the melting heat of ice. The melting temperature of ice is 0 degrees Centigrade or 32 degrees Fahrenheit. But once ice is at that temperature, it takes 80 calories of energy to melt each gram (or cubic centimeter, which is the same thing), without raising its temperature at all. This quantity—80 calories—is called the latent heat of melting.

Together, what do these two facts mean? They mean that the same quantity of heat—of energy—needed to melt a gram of ice would raise the resulting water to 80 degrees Centigrade, i.e., four-fifths the way to boiling.

That’s why ice is such a great heat sink. It takes a lot of energy to melt it. But once it’s melted, the same quantity of energy that melted it raises its temperature nearly to boiling.

Fortunately for our species, the vast majority of water on our planet is liquid, not ice. If it were ice, and that ice all melted, we would self-extinguish as a species in about the same time after our planetary ice melted as global warming took to do the melting. No human can survive at 80 degrees Centigrade, and the century or so it would take our Earth to get there is far too short for evolution to make survival possible.

Even so, our ice caps and glaciers hold a lot of frozen water in the form of ice. After they melt, the same global warming that caused their melting will feed back into warming our oceans. The loss of ice’s great heat sink will cause positive feedback in global warming.

The second reason why melting ice causes positive feedback in global warming is reflection. Ice is white, smooth, and highly reflective. Water is blue, wavy and much less so. Soil and rock, with their various topographic guises and floral ground cover, are still less so. (Where there are plants, their photosynthetic green absorbs light.)

So ice reflects a far larger proportion of the Sun’s electromagnetic energy back into space than does water or land. When glaciers over land melt, the effect is even more pronounced, because land reflects even less than water.

Scientists call the reflectivity of a planet “albedo.” As our ice melts, the albedo of our planet decreases. More electromagnetic energy gets absorbed, and less gets reflected. The temperature of our planet goes up because it absorbs more energy from the Sun. All this is simple physics.

These two effects of melting ice—loss of our heat sink and decreased albedo—are noncontroversial and well known. What is not known is how quickly the positive global-warming feedback they cause will act.

The Earth is a very complex place. Its albedo will be highly variable geographically, even after the ice melts. We also don’t know whether the loss of our ice heat sink will affect global atmospheric temperature immediately, or only through a process of slow diffusion, from the polar regions to the rest of our planet.

Our atmospheric temperature is the result of incredibly complex processes of atmospheric diffusion, convection, water-vapor formation and transport, ocean currents, ocean layering and weather. Scientists are still trying hard to model the impossibly complex system with useful reliability and accuracy.

But what we do know is that ice melting is occurring faster than anyone predicted. In just the 34 years since reliable satellite measurements began, our summer Arctic sea ice has decreased nearly 30% in extent.

    Release of methane
The second cause of positive feedback in global warming is even more dangerous and less understood than melting ice. It’s methane release.

Methane is a so-called “greenhouse” gas. When released into our atmosphere, it causes global warming just like the carbon dioxide that we generate by burning fossil fuels.

But methane is a much more powerful greenhouse gas than carbon dioxide. Gram for gram and molecule or molecule, it causes ten times as much global warming as carbon dioxide.

Here is where positive feedback gets really scary. Our planet contains enormous amounts of natural methane, left over from the decay of ancient vegetation. Much of it is right near the surface, frozen in the “permafrost” of Arctic and Siberian tundra. As global warming melts the permafrost, it will release enormous quantities of this potent greenhouse gas into our atmosphere.

There is little we can do about this melting process. Global warming is already baked into our climate, a result of the carbon dioxide our industry has spewed into the atmosphere over two centuries. We can’t exactly cover Alaska, most of Canada and Siberia and (once its ice cap melts) Greenland with plastic sheeting.

As the permafrost melts, it will spew methane into our atmosphere in huge quantities. It will so do in years or decades, not centuries. And remember, each gram of methane has ten times the warming effect of the carbon dioxide that we know is causing warming now.

Because of the factor-of-ten increase in the greenhouse effect and the enormous quantity of methane trapped in frozen soil so near our planet’s surface, the effect of that soil’s melting is likely to be infinitely more rapid and destructive than the relatively slow increase of carbon dioxide from human industrialization. The release of methane frozen into our soil is the positive-feedback “wild card” that could literally decimate our global population.

And that’s not all. There is also an enormous amount of methane locked in methane hydrates under our seas. These compounds are basically methane held in a cage of frozen water molecules. Recently, they have been the subject of intense interest as an energy source, as Japan and India begin work to unlock the methane and use it as a fuel like natural gas (which is mostly methane and propane).

Unfortunately, methane hydrates are also a potent source of positive feedback in global warming. This is so for two reasons. First, global warming may release the methane in methane hydrates entirely apart from their commercial exploitation.

We don’t fully understand what keeps the methane locked in its cage of water molecules far below the oceans’ surface. Undoubtedly the massive pressures in deep seas are part of the answer. But temperature may be, too. As deep-ocean temperatures rise with global warming, it is possible that methane hydrates might release their methane into the atmosphere just as melting permafrost releases its raw methane.

The evidence we have suggests that rapid global warming as a result of methane release may have helped end the last Ice Age 15,000 years ago. Here is a summary of the key conclusions, taken from a report of a meeting at the Department of Energy on the subject of “Catastrophic Methane Hydrate Release Mitigation”:
[T]he example of a 1 GtC release . . . . represents 0.01% of the total methane hydrates in the ocean. The quantity degassed to the atmosphere 15,000 years ago, at the end of the last ice age is now believed to be around 4 GtC as methane or 0.04%. The average temperature of the Earth increased from 30°F to 60°F within a few decades. The radiative forcing from the methane alone would have been insufficient to cause more than a 3°F increase. It is thought that feedback effects from additional methane released from melting permafrost, carbon dioxide and water vapor contributed to the rest of the warming. But the initial methane hydrate release from the ocean may have been the catalyst.
In other words, the warming effect of a methane release from hydrates might have triggered further release of methane from melting permafrost. Together, the cascade of methane releases might have produced catastrophic acceleration of global warming through two kinds of positive feedback. The result: an increase in average temperatures of between 30 and 60 degrees Fahrenheit, or between 16.6 and 33 degrees Centigrade “within a few decades.” Our agriculture and civilization, let alone our coastal areas, would be unlikely to survive such a precipitous rise in global temperature in so short a time.

The second source of methane-related positive feedback is likely to be smaller but is almost certain to happen. As we humans exploit methane hydrates as a new energy source, we could accidentally release disastrous amounts of methane into the atmosphere.

If we could recover 100% of the methane from methane hydrates and burn it all, we would make a vast improvement over coal. In fact, we would cut our carbon dioxide emissions per unit of energy (from burning fossil fuels to generate electricity) by about 50%. At the same time, we would vastly reduce pollution, for burning methane produces none of the sulfur dioxide (acid rain), mercury pollution, or disease-causing particulate smog that burning coal does.

But unfortunately, we fallible human beings seldom do anything with 100% success. If we let just 5% of the methane from hydrates escape into the atmosphere in the process of mining or extracting them, we will nullify their global-warming advantage over coal. (Methane’s tenfold increase in greenhouse effect over carbon dioxide, multiplied by 5%, cancels the presumed 50% greenhouse advantage of burning pure methane over coal.) If we let as much as 15% of the methane escape, we will double the greenhouse effect of our energy operations, and thereby double the acceleration of global warming now, even with coal.

Here we run up against a basic law of economics and indeed nature generally. There is no such thing as a free lunch. Unless we do it with the 100% care for which our species is not generally noted, an energy “gold rush” toward methane hydrates could create a powerful additional positive feedback mechanism, massively accelerating global warming.


Positive feedback is inherently nonlinear and counterintuitive. “Common sense” simply does’t work with it. “Common sense” tells you—counterfactually—that amplifiers don’t screech unless you turn the volume control up too high. But if you put the microphone too close to the speakers, the screech will come anyway.

In order to understand positive feedback, let alone control it, you have to know and use math. That’s why we have scientists. (As a scientist/engineer, I once used this sort of math to design a negative feedback system for stabilizing the temperature of a small experimental apparatus.)

Positive feedback happens fast, and it happens hard. That’s why a screeching amplifier hurts your ears far more quickly than you can raise you hands to cover them. That’s why I hit the steering wheel and my mother’s head hit the windshield. That’s why securities regulators are still worried (and rightly so!) about another “flash crash,” which might create a real financial panic, just as did the sudden mortgage-backed-securities meltdown in 2008.

We don’t know enough about the detailed structure and the physics our of huge, complex planet now to make accurate predictions of positive feedback. But that’s precisely the point. Once positive feedback begins, tiny changes in our global climate system can drive it into catastrophic instability in impossibly short times. Those changes and that instability are difficult or impossible to predict reliably. They are impossible to stop. That’s the nature of nonlinear systems and nonlinear math.

So by the time it starts to happen, it will be far too late to stop. Already we have warning signals. The Arctic summer ice pack has dwindled by about 30% in 34 years. No one, not even the most fervent climate alarmists, expected that.

We still have the Antarctic ice pack, which is much bigger and melting more slowly. But Arctic and near-Arctic average temperatures are rising rapidly, far more than average temperatures in the rest of the globe. And there is little or no permafrost in the Southern Hemisphere, because our Antarctic continent is surrounded by a wide ocean.

All our frozen tundra is in the Northern Hemisphere, right near the Arctic, where rapidly rising temperatures threaten to release its methane from melting permafrost. This is a gigantic positive feedback loop waiting to go unstable.

There may not be much we can do now. After two centuries of burning fossil fuels, we’ve already baked in (pardon the expression) a certain amount of global warming. Atmospheric carbon dioxide takes decades or centuries to be net absorbed. It may be that all that methane is destined to erupt, and there’s nothing we can do to stop it. It would be ironic if, after barely avoiding species self-extinction by nuclear fire in 1962, we approached the same result by a slower and more “innocent” path in this century.

We have no way of taking carbon dioxide or methane out of our atmosphere. All we can do now is slow the acceleration of global warming and not make things much worse. Even doing that will take more understanding and political will, more universally held, that we have ever demonstrated as a species. But if we don’t act, our fate will be sealed. The Earth on which we evolved will change in a way that will make it much harder for our present, let alone future, population to survive. Positive feedback threatens to make that happen far more quickly than anyone now expects.

All is not yet lost, however. We can still act. During the 1960s, we became aware that atmospheric testing of nuclear weapons was poisoning our air and putting radioactive isotopes in our children’s milk. We managed to forge—and to obey—a treaty banning above-ground nuclear weapons testing. We did so at the height of the Cold War, when mutual distrust and suspicion had reached the level of paranoia. Maybe, with that positive example in mind, we can avoid the disaster of positive global-warming feedback.

That sort of feedback would be “positive” only in a mathematical sense. In its effect on our lives and longevity, “positive” global-warming feedback would be a catastrophe.

Footnote: The abbreviation “GtC” stands for “[metric] gigaton of carbon,” or a billion thousand kilograms of carbon. Since methane (CH4) consists of four hydrogen atoms and one carbon atom, and since the atomic-mass ratio of carbon to hydrogen is about 12, the corresponding mass of methane would be about 16/12, or a factor of 1.33, higher. The 33% difference between the two masses is inconsequential because of the approximate nature and huge magnitude of the numbers discussed.

Coda: The President’s NEPA Order

Once again, readers may consider me prescient. I’m posting the foregoing essay on the same day that President Obama is ordering federal agencies to use the Nixon-era National Environmental Policy Act (NEPA) to fight global warming.

But no, I’m neither an insider nor clairvoyant. I’ve been working on this essay for several days. News of the President’s action motivated me to publish it earlier than I had planned.

The President, of course, has much better information than I do. Unlike others, he does not engage in wishful thinking or kill messengers. He no doubt has been briefed about the threat of disastrous positive climate-change feedback since well before the election.

That’s why he mentioned energy and climate change so prominently in his second inaugural address. But he had to get re-elected before he could do anything about either. Now he is making good on his promise as a rational leader, using all the power at his disposal to do what he can.

NEPA doesn’t stop any project. By itself, it won’t even delay positive feedback, let alone stop it. All it does is require federal agencies to consider relevant information in making decisions on projects “significantly affecting the quality of the human environment[.]” By virtue of the President’s order, that information now must include likely effects on global warming, as well as local pollution.

Henceforth all federal agencies with power over projects that might accelerate positive climate-change feedback must consider that possibility in deciding whether to approve them. And if they don’t, NEPA will give injured parties a chance to ask the courts to require the agencies to take a second look. That’s the least we could and should do to avert potentially devastating climate surprises.


11 March 2013

Why Our Pentagon Must Slim Down

Weakness and misdirected strength
The half-truth of civilian “fallout”
Waste wholesale, not retail
Conclusion: dieting and focus


Amidst all the turmoil of our domestic politics, there is one thing on which right-wing and left-wing rank and file all agree. Our Pentagon must slim down.

There’s still some small dissent among the right. People like John McCain and Lindsey Graham still want us to arm ourselves to fight two world wars at once. They never say where those two wars could possibly come from in our Pax Atomica, now two-thirds of a century old.

Only two nations on Earth today could threaten those old kinds of wars: China and Russia. Both are peaceful and devoid of any interest in global conquest. China hasn’t fought a major war beyond its borders since Mao reunified it in 1949. Russia’s sole post-Soviet incursion was in former Soviet Georgia; it disciplined and intimidated that perennial thorn in its side and withdrew in weeks.

The ghosts of history past still haunt us. The Nazi-Imperial Japanese run at global conquest was a disastrous, misguided venture. But it’s been history now for 68 years. It’s extremely unlikely to be repeated. Ditto the Cold War.

So where is the necessity or profit in building an armed force designed to repel these two disastrous mistakes of human history? Preparing to refight the last two wars in a world that is infinitely wiser and more peaceful may be the ultimate waste of money and talent.

Weakness and misdirected strength

But it gets worse, much worse. Not only is our Pentagon preparing to refight the wrong wars. It is both inefficient and ineffective. It is making us weaker, not stronger, through both sloppy procurement and misdirected energy.

I have written before about the utter bloat, stupidity, inefficiency and corruption of our military supply chain. I won’t repeat the analysis here. But it bears notice that the products of that crippled monster are as bizarre as its procurement procedures.

Take a close look at the ten weapons system so helpfully catalogued and pictured by Bloomberg.com recently. You don’t have to be an engineer or weapons designer to understand how ungainly they are. Just look at them. They don’t even look sleek and mean. Your neighborhood traffic-control helicopter, let alone the Dreamliner, is self-evidently better designed. The military monstrosities look like creations of video-game artists, not engineers.

In fact, they look just like what they are: bastard systems designed by committees with too much time and money on their hands. Many have failed repeatedly even in peacetime testing.

War has a way of enforcing efficiency. The prime directive of survival promotes people who are smart, efficient and effective, even if somewhat rough. Generals Patton and MacArthur come to mind. But peacetime does just the opposite; it brings forward bureaucrats, sycophants and political compromisers. You don’t build machines or armies that work well or efficiently with that sort of leadership.

The proof of the pudding, of course, is in the eating. We were attacked on 9/11 by a motley group of extremists led by Osama bin Laden. With all the subtlety and finesse of a West-Texas Sheriff, Dubya declared “Wanted! Dead or Alive!” and mounted an invasion. Ten years later, we had nothing to show for that effort but a costly and bloody nation-building exercise in which we are still engaged today.

In contrast, President Obama got bin Laden and decimated Al Qaeda with ninjas and drones, at a tiny fraction of the cost of our invasion and occupation of Afghanistan. Smart matters. Lean and mean matter. Accurate targeting matters.

There are right ways and wrong ways to use force. Intelligent, proportionate and measured force is usually better. We live today in a world where rogue major powers no longer exist, where disputes among major powers are resolved in meetings, not on the battlefield, and where nuclear arsenals are absolute proof against invasion of any major power, including us. So militaries can and must be smaller, cheaper, nimbler and more accurately targeted. The tiny drone, not the world-destroying ICBM or strategic bomber, is the weapon of choice today.

Kill the bad guys, and you don’t have to kill the civilian population. The last century’s “total war” was a gigantic strategic and moral blunder. It almost led us to species self-extinction in October 1962.

Now we are smarter, or should be. We use military means to enforce personal responsibility, as Assad will soon find out. (Why did we and several European nations recognize the Syrian rebels? Now that Assad is no longer the recognized leader of a sovereign state, he’s personally on the target list, as he ought to be.)

The half-truth of civilian “fallout”

But it gets still worse. Apologists for military excess often speak of civilian technological “fallout” from military projects. That is, they tout useful civilian business spinoffs from military research-and-development projects.

For example, the teflon that coats your non-stick frying pan or makes your Gore-Tex ski jacket waterproof was a spinoff of nuclear-weapons research. Its original purpose was keeping corrosive uranium-hexafluoride gas from burning out the stainless steel tubing in uranium-enrichment centrifuges.

Yet this spinoff effect is overblown. Sometimes presumed military necessities don’t aid civilian development. Instead, they distort and pervert it.

So it was with nuclear power. Atomic energy in the peaceful sense grew out of nuclear weapons development, not vice versa. War goals shaped its very design criteria.

We designed our first nuclear power reactors at the height of the Cold War. At that time, we wanted fissionable material suitable for nuclear weapons. We didn’t care then about weapons proliferation. Besides our European allies, the Soviets and we were the only societies capable of building nukes, and the Soviets already had them. And we didn’t worry about meltdowns because we were only beginning to understand the dangers they and nuclear radiation posed to civilian society. (The devastation of Hiroshima was a closely guarded military secret.)

So what did we do? We built all our power stations around the same Uranium-235/plutonium fuel cycle that we used for nuclear weapons. We Yanks were not alone. The whole world did the same thing.

In consequence, our whole species is stuck with an enormously expensive global nuclear-power infrastructure that came right out of weapons design. Into this horrendously expensive cake we baked meltdown risk, radiation risk, and the risk of proliferation of nuclear weapons.

There was a path not taken. We experimented with thorium-cycle reactors in the 1950s. But we abandoned them, mostly because we wanted weapons yesterday, and thorium is not good for weapons.

Today, thorium-cycle reactor research promises orders of magnitude less radioactivity (both operational and residual) than todays’s designs, zero meltdown risk, far more scalable power plants, and a thousand-year supply of fuel right here in America. But there’s a big problem. We have invested astronomical sums in uranium-plutonium technology and a vast infrastructure to support it. We simply don’t have the money or the interest to do it all over again a different way. So the path not taken—which could have powered our entire world safely, cleanly, and with no air pollution or global warming—remains a distant dream. There are consequences to building civilian research and development around military objectives, especially enormously expensive ones.

Similar analysis applies to our committee-designed military aircraft. Together with Airbus’ “pregnant frog” A380, Boeing’s “Dreamliner” is the first civilian aircraft of radically new design in decades. It’s now grounded because of a single fire in a critical onboard lithium battery. No one wants to risk a single catastrophic failure of such an expensive aircraft, let alone with potentially massive civilian casualties.

Military manufacturers have no such compunctions, for military pilots and crew have ejection seats and parachutes. No civilian aircraft could survive regulatory review and business competition with the dismal records of failure and disaster of our F-35 fighter or V-22 Osprey. If they had been civilian aircraft, they would have been redesigned or scrapped early in their development process. But with the military mindset “bordering on theology” that former Secdef Gates so brilliantly described, they limped on despite record budgetary overruns and constant complaints from pilots.

For safety and reliability, civilian standards are higher than military ones. Only in a real war, as the loss of expensive aircraft mounted and live pilots had to eject behind enemy lines, would the military begin to correct its dismal record of operational failure of these aircraft and similar committee-designed weapons systems.

It’s kind of funny, isn’t it? So-called GOP “thinkers” insist that government can never boost our economy the same way private industry can. But when it comes to making the connection to the military, they balk. They never even seem to notice the inconsistency.

Military and civilian objectives are different. In the final analysis, the military makes stuff and trains people to kill and destroy. Sadly, those objectives sometimes are necessary, and military projects can create good, paying jobs. But the jobs just don’t have the same economic multiplier effect that civilian jobs do because they don’t build civilian infrastructure. At the end of the day, their value and legacy are limited to war readiness.

Russia learned that lesson after the Cold War. In its Soviet guise, it once had a world-class military-industrial complex. Now, after two decades, it is still scrambling to create a viable and competitive civilian economy. We are just waking up to similar lessons now, as we begin to ken how much money we have wasted with little or no lasting economic payback.

Waste wholesale, not retail

The final argument for slimming the Pentagon is large-scale waste. Here I don’t mean “retail” waste, i.e., thousand-dollar toilets or hundred-dollar bolts. I mean wholesale waste: the economic waste of spending money on machines that add nothing to our domestic economy because they are used only in training or abroad, because they self destruct in normal use (missiles, bombs and bullets), or because they enjoy no civilian economic multiplier.

Again, expensive manned aircraft are illustrative. Civilian aircraft are a vital part of our nation’s economic infrastructure. They transport business people who make our private economy go. They carry expensive cargo that can’t wait for slower delivery, making modern “just in time” inventory systems work. They ferry tourists who spread money around and bring knowledge of global cultures back home. They transport the diplomats and commercial and technical liaisons who make war less likely and global cooperation more efficient.

In a nation as large geographically as ours, civilian aircraft are as essential a part of our national infrastructure as our roads, railroads, telephone lines, cellphone towers and the Internet. Every dollar spent on them brings multiple dollars to our civilian economy.

Military aircraft do none of these things. In peacetime, fighters and bombers spend all their time in hangars or on training missions, burning good fuel for no other purpose than military readiness. In wartime, they do their jobs, but at a much higher risk of sudden destruction than any civilian aircraft. They add nothing to our civilian economic infrastructure besides training pilots and mechanics, who often must be retrained to handle civilian aircraft and procedures.

The difference is simple. Civilian aircraft are investments in hope. Military aircraft are investments in fear. Over the nearly seven decades since the end of World War II, our investments in fear have grown wholly out of proportion to any seriously impending threat, let alone our hopeful investment in useful economic infrastructure. It’s time to mend the balance.

Conclusion: dieting and focus

Fixing our bloated, corrupt and inefficient Pentagon is a lot like fixing our problem of national obesity. There are innumerable ways to go on a diet. If you’ve ever known anyone who’s wanted to lose weight, you probably know several by name.

You can argue interminably about which diet is better. But you won’t lose weight and start getting lean and mean until you stop arguing and start eating less.

And so we have the Sequester. Are across-the-board cuts ideal? Not hardly. But they are a start—a real start after six decades of Cold-War excess, extended yet another decade by the national paranoia after 9/11.

We desperately need to cut the excess and refocus on real twenty-first century threats. Of course it’s better if you do the cutting with a scalpel, rather than a meataxe. But finesse can come later.

You’ve got to start somewhere. That’s why Wall Street and the stock market have shrugged off the Sequester. They would hardly have done that if the wolf—or the dragon or bear—were really at our door. But the only wolf on our horizon is a creation of our fevered imagination. The D.C. area and its Beltway Bandits will survive, perhaps with a more empathetic understanding of what the rest of us have gone through these past six years.

Now that he’s confirmed, it will be Chuck Hagel’s responsibility to clean up the mess at the Pentagon and rationalize and extend the cuts. He’s not the world’s most impressive orator, and his hearing testimony was uninspired. But he is an impressively independent thinker in a city full of lemmings. He’s got the right party credentials, and he comes from a reliably red state. If anyone can do the job, he can.

Yet Hagel has to keep his eye on the ball. He can’t afford to fall into Rumsfeld’s trap. Rumsfeld began his (second) Pentagon career killing the Crusader Cannon—a massive, absurdly heavy weapons system straight out of action comics, with a name not well suited for peace with the Islamic world. Killing it was a good start.

Then Rumsfeld tried to play soldier, earning infamy as the worst or second-worst Secdef in US history. Hagel has to do better. He has to let soldiers be soldiers, stopping them only when they want to invade and occupy two foreign countries just to kill or disable a few hundred terrorists. If he can do that and keep his mind on the Pentagon’s diet and twenty-first century focus, he may save our economy and our military readiness, too. Godspeed.


06 March 2013

Solar Car Payback

[For a recent post on our global moral crisis, click here. Sorry to upstage it, but energy trumps morals, as it always has and always will.]

By installing a solar photovoltaic array for your home or business, you can cut your electric bill. If your power company offers net metering, you will save the cost you would otherwise pay for every kilowatt-hour of energy your array generates.

If your array generates excess energy (more than you use), you may also receive a credit for each kilowatt-hour that the array produces that you don’t use. Usually, that excess-energy credit is at a lower rate, fixed more by politics than economics. (Most power companies also limit the amount of excess energy that they have to pay for. After all, they do tend to capture the public utility commissions that are supposed to regulate them.)

Together, your savings and any so-called “rec credit” for excess energy determine your “payback period,” that is, how long the array has to run before its savings and earnings have repaid its initial fixed cost. Thereafter, the power your array generates is free, and any excess power gives you extra income.

But suppose you install a solar photovoltaic array not to power your home or business, but to power one or more electric cars. Then your savings per kilowatt-hour are much higher. Why? Because you save not just the cost per kilowatt-hour that you would otherwise pay for electric energy, but the higher energy cost of gasoline.

How much higher? It’s easy to make an accurate estimate. Suppose you have a small car, comparable in size to an electric car. Say it gets 30 miles to the gallon, and gasoline costs $3.60 a gallon. That works out to 12 cents a mile.

Now suppose you had a Nissan Leaf instead. The EPA rates its range as 73 miles per charge, and its battery holds 24 kilowatt-hours of energy [scroll to “Cell Power”]. That works out to almost exactly three miles per kilowatt-hour. So for each kilowatt-hour of electric driving, you would save three-miles worth of gasoline, or 36 cents by our estimate above. That’s over three times the savings of the price of electricity at the national average residential retail price for 2012 (11.88 cents per kilowatt-hour).

As compared to lower electric rates, the gasoline-cost multiplier is even higher. For example, the 36-cents-per-kilowatt-hour-equivalent is over five times the national average cost of industrial electric power for 2012, namely, 6.70 cents per kilowatt-hour.

These large differences between the energy cost of gasoline and the average cost of electricity make payback periods particularly attractive for solar arrays used to charge electric cars.

The following table shows the payback periods in years for solar arrays used only to charge electric cars, assuming the present 30% federal tax credit and an additional 10% tax credit (as in New Mexico) for the array expense:

Payback Periods for Solar-Driving Arrays

Mfg Cost M
of 1 W cell
Turnkey Factor TPayback Period

This table assumes a nominal array power of three kilowatts per car—sufficient to charge a Leaf’s 24-kilowatt-hour battery in eight hours. It assumes that each electric car runs fifty miles every weekday of the year (a total of 210 days), for a total annual mileage of 10,500. Finally, it assumes the same 2,000 hours of useful array operation per year derived in my previous post, which also explains the array cost parameters M and T.

The car’s assumed operation, less than two days out of three (210 weekdays per year), comports with our previous reasonable assumptions about the availability of useful solar radiance. Net metering eliminates the intermittency issue and accounts for the fact that the cars charge at night. In fact, charging them at night while producing net power during the day actually facilitates grid management because other loads (such as air conditioning, industry, and interior lighting of offices) are heavier during daytime.

With these reasonable assumptions, the payback period in years is the 3-kW array construction cost 3,000MT, in cents, reduced by the total 40% tax credit, and divided by the annual gasoline savings, also in cents, thus:

Payback period = 1,800MT/(12 x 10,500) = 0.014 x MT

These short payback periods derive from the high energy cost of gasoline. My own retail solar array, for which I just signed a contract, costs out at an M of 100 and a T of 6. These numbers are not theory; they are fact. So if my array was just for driving, not running my household as well, I could recover its cost in about 8 years, seven months. After that, my driving energy would be absolutely free, except for the small cost of maintaining the solar array.

As solar-cell costs drop to 50 cents per Watt capacity, the payback period drops to a bit over four years. As Turnkey Factors drop as well to 3, for large-scale commercial arrays, the payback period becomes compelling: 4.2 years for Turnkey Factors of 3 or cell capacity costs of 50 cents per Watt, then just over two years for both of these lower parameters. After these short periods, there is no cost for running the cars, other than maintaining them and the solar-array, as long as the array lasts. With projected effective lifetimes well above the half-century mark, the cost advantages of solar driving over gasoline are compelling.

The Cost of Electric Cars

The short payback period for solar-powered driving does not by itself cancel out the initial-cost disadvantage of electric cars. Not quite yet. But it does go a long way toward neutralizing that price disadvantage over the car’s warranted lifetime, let alone its probable useful life.

As of early 2013, Nissan reduced its MSRP for the entry-level Leaf to $28,800. That’s still higher than what a comparably performing gasoline car would cost. But if you have a solar array for power, and if you run the Leaf only 10,500 miles per year, you will save $1,260 per year on gasoline over a 30 MPG gasoline car.

In a mere six years, your savings will have reduced the effective price to $21,240—a respectably low price for a small car for short-range commuting and shopping. And with the Leaf’s eight-year battery warranty, you’ll still have two years left to recover the cost of your solar array.

All this is without any incentives for the car itself. But incentives there are. If you live in California, for example, combined federal and state tax credits can reduce the entry-level Leaf’s price to as low as $18,800. That’s about as little as you can expect to pay for any car that runs reliably. With that price, you can pay back your solar array before the Leaf’s battery warranty runs out, even if you pay today’s high home-retail prices for your solar installation. Then you can power your next electric car absolutely for free, for its entire useful lifetime.

For businesses, the news is even better. If you have a fleet of city runabouts, you might secure the lower Turnkey Factor (3) for commercial solar arrays, and/or the lower M (50 cents per Watt capacity) for recent solar cells. Then you could achieve payback on your solar array in about four years or less, securing energy-cost-free driving for the foreseeable future. You would still have to maintain the vehicles, but maintenance would be much cheaper than for gasoline-driven cars because electric cars are much simpler.

The bottom line is clear. To “go electric,” you have to be willing to plan ahead and work with contractors. But with current federal and state tax credits, cost factors no longer weigh on the decision. You can acquire small, light electric cars for much the same initial outlay as for similar gasoline cars. And with a little extra planning and foresight you can arrange, after a short payback period, to pay nothing at all for their fuel (and much less for maintenance than with gasoline cars) for the foreseeable future.

The era of pollution-free electric driving already has begun. It offers not just freedom from environmental guilt, but also cost savings and personal energy independence.


03 March 2013

Our Global Moral Crisis

Unbeknownst to urban sophisticates, our species is in a moral crisis. Materially, we have never had it so good. Yet we are full of angst.

In the space of a single lifetime (mine), we have more than doubled our population, from 2.5 billion to over 6 billion. Yet we are not ever more mired in poverty. A greater proportion of us has overcome poverty than ever before. Every year, tens or hundreds of millions more rise above it.

We have conquered most acute diseases. The ones that still threaten us are chiefly those associated with aging. We haven’t beaten death, but we have made life much longer, healthier and happier than ever before.

We are mostly at peace. There has not been a major conflict among major powers fighting on their own territory since 1945. Today there are wars in Syria, a few small ones in Africa, and the remnants of the United States’s misguided nation-building in Afghanistan. That’s it. If you had looked at the globe at almost any time up to this century, you would have seen bitter conflicts all over it, as numerous as weather systems but far bloodier.

Governments are infinitely better than ever in our history. The vast majority of powers on earth have democratic governments, with varying degrees of freedom of expression. China has a cautious, meritocratic, collective government with term limits. Russia has something similar, but less collective. The notable holdout tyrannies you can count on the fingers of one hand: Bloody Syria, Cuba, Iran, North Korea, and Zimbabwe. (Despite their present authoritarian leaders, Bolivia and Venezeula are still teetering on the brink of democracy. Certainly they are nothing as bad as Argentina during Perón’s regime or Chile during Pinochet’s.)

Yet the country (ours) that helped lead this transition to a much better place is paralyzed. Its voters and leaders are so split along ideological lines that it can’t function. Its leaders, and even this author, talk of secession.

At the same time, the Catholic Church (which has no term limits) is imploding in a welter of scandal. Not long ago, its supreme leader helped spark the movement that threw off the yoke of Communism and freed Eastern Europe and the Baltics. Today, that same Church has become the butt of jokes and, for members, a source of doubt, embarrassment and shame. The venerable institution, having withstood the wars, heresies and empires of two millennia, may soon fall prey to the arrogance and insularity of its own internal leaders’ unchecked power.

The other muscular, proselytizing religion (Islam) is faring no better. Its 1.3 billion adherents are trying to decide whether to embrace the modern world’s weak, semi-secular religiosity, or to return to the certitude of a bygone age. Some of them still dream of global conquest by jihad, killing innocent people without scruple or care as they seek that goal. No genuine religious leader considers those acts wise or moral.

The problem, I think, is a moral crisis—a species-wide, global one.

In the last century, the great powers fought many battles—both internal and external—over capitalism and Communism. Capitalism won. Now some of us want to continue that cold war with the mild socialism of Europe, or with Medicare. Like good jihadis, they yearn to expunge any taint of uncapitalism with sword and fire.

But these struggles will never satisfy, no matter how they come out. For they are not the moral struggle we need to have. They are just struggles over means.

Capitalism and profit are only tools. They are better tools than Communism because they motivate people in natural ways. They excite our evolutionary desire to survive, proposer and help our families do so. So they are more “economically efficient” than central control.

We proved that beyond dispute in the last century. Two great nations that had adopted Communism and tried it for decades both abandoned it of their own free will. The one (China) that abandoned it sooner and quicker surpassed the other (Russia) by miles. It now bids to become the world’s strongest economy. Capitalism works.

But like any tool, capitalism doesn’t tell us how it should be used. What are its ends? What are its limits? What purposes should it serve? It can no more answer these questions than can a hammer.

My mind turns to the chilling opening scene in Stanley Kubrick’s film masterpiece 2001. The ape, having killed his rival using a bone as a weapon, leaps and screeches his triumph and throws the bone aloft. It turns lazily over. In a few heartbeats, it becomes a space station, rotating slowly through empty space to the tune of Richard Strauss’ Blue Danube Waltz.

As brilliant that scene is, Kubrick’s film doesn’t show us the denouement. Does the ape henceforth use hand tools to kill, or does he use them also to build? What is the purpose of the space station: to explore, to understand, to gain military supremacy, or to relieve a world full of famine, pollution and strife? Kubrick doesn’t show us.

Free markets and capitalism are powerful tools. We know that now, beyond dispute. We don’t have to keep exhuming the corpses of Marx and Engels and shooting them down again to prove the point.

But what next? What do we do with these tools? Do we build a society where the strong and smart live in obscene wealth and the rest get by in near poverty and squalor? Do we Yanks—the self-appointed apostles of capitalism—continue to spend almost half what the whole world spends on “defense,” while neglecting infrastructure and education, let alone moral advancement? Aren’t hospitals just as capitalistic, at least here in America, as arms makers?

Do we admire people like Bill Gates, whose business tactics were every bit as rapacious as John D. Rockefeller’s, but whose philanthropy is even broader and more inspired? Do we seek to emulate people like Donald Trump and Jamie Dimon just because they are rich and successful? Do we think them admirable? Should we?

As our lives get richer and more comfortable, should we work harder to achieve even more? Or should we devote more time to leisure, our families, moral philosophy, and the arts? We’ve heard a lot about faith recently, but whatever happened to hope and charity?

And what do we do about market failure? What happens when banks get too big to fail and disconnect themselves from market discipline and capitalism itself? What do we do with our private health insurance, which is surely a gigantic market failure, and which every other developed country handles differently than we?

Our Congress can’t tell us. It’s so busy angrily disputing means that some day we may see fisticuffs in its public chambers. As good and smart a man as he is, our President can’t help us. He’s too busy keeping our government working and our enemies at bay. The Catholic Church can’t tell us; after two millennia, it’s falling apart before our very eyes and losing credibility even with its own members. Islam can’t tell us, for it’s undergoing the same conflicts and doubts, as recently became self-evident in Egypt.

Our businesses, engineering, law and medical schools can’t tell us. They teach us tools, not morals. (If the truth be told, that’s part of our problem.) As for science, it teaches us only the laws of the natural world, not our own, let alone what our laws should be.

Nor can capitalism itself help us. Should we worship a hammer?

We need a new Plato. Or at least we need to reread the old one. We need to think and study what makes a good life. Not just students; all of us.

Today more people than ever before not only have adequate food, clothing, and shelter. They also have means of communication and transportation, as well as chances to travel, of which the ancients could never have dreamed. Yet they won’t be happy, and their discord and angst will continue, until they seek moral clarity.

Tools don’t dream or set goals. Only humans do. We and our leaders need to think more about our species’ dreams and goals, in the long term. We need to think more about what makes us human, not what makes us rich.

The quest for profit has swept the world, even Arabia and Africa. But profit is only a tool. It’s not a religion or a moral guidepost. We need to think harder about its ends.