Vol. 15 No.5 (May 2005), pp.429-431

CATASTROPHE: RISK AND RESPONSE, by Richard A. Posner. New York; Oxford University Press, 2004. 336pp. Hardback. £16.99/$28.00.  ISBN: 0-19-517813-0.

Reviewed by Stephen Meinhold, Department of Political Science, University of North Carolina Wilmington. Email: meinholds@uncw.edu .

After reading the first sentence of federal judge Richard Posner’s CATASTROPHE, I was reminded of the way a weather service professional friend of mine once described what would happen if a category five hurricane made a direct hit on our community: “we’re all going to die” he said.  Posner’s book examines hazards that are apocalyptic in scale—major asteroid collisions, bioterrorism, lab accidents and abrupt global warming.  This is scary stuff—no less than the extinction of the human race!  Posner’s trademark style is evident throughout, a careful author and analyst he presents cogent arguments supported by firm evidence.  But by the last sentence, which is a call to action, I was left more confused than certain about what to do about these hazards.  The hazards are real, that is for sure, but whether the strategies he proposes for protecting us from them are reasonable deserves much more debate.  So much of the book is about the hazard events and how to calculate the risk presented by them that I am going to make a rather unorthodox suggestion to readers who are mainly interested in the “law” part of the Law and Politics Book Review—read only Chapter 4.  I will briefly discuss the contents of Chapters 1-3 and then focus the bulk of my review on the chapter most closely connected to the law.

Chapter One introduces the reader to a variety of catastrophic risks, including pandemics, asteroids, stranglet disasters, omnivorous nanomachines, genetically modified crops, artificial intelligence, global warming, exhaustion of natural resources, loss of biodiversity, population growth, nuclear winter, bioterrorism, and cybertorrism.  Each of these hazards is examined in a serious yet brief way that should be accessible to a wide audience.  One can quibble with the degree of attention given one hazard over another—nuclear winter gets four pages while stranglet disasters get five—but the overall treatment is readable and makes the point about the great potential for catastrophes. Wondering what a stranglet disaster is?  It is described as the accidental production of “strange” quarks from the collision of atomic particles.  A stranglet, once created might “keep growing until all matter was converted to strange matter” (p.31)).  A serious catastrophe!  Despite my preference for greater attention to the more likely (as I see them) hazards, focusing on such worst case scenarios (or highly improbable hazard events) can be beneficial (Clark 2005).  But in the end little of Chapter One is directly related to the law.

Chapter Two addresses the reasons why we do not much care about the realities of or the expected results of these catastrophic risks.  Posner examines cultural (scientific illiteracy—especially of lawyers and judges, science worship, science fiction, scientific doomsters, [*430] optimists, and limited time horizons), psychological (false positives, attention span, and temperament) and economic factors (economics of innovation, global decentralization, and public choice) that limit efforts to deal with these hazards.  This chapter is a call for greater scientific literacy more than anything else.  A theme that Posner will return to in the more law related content of Chapter Four.  The logic of his presentation suggests that greater scientific literacy would offset the strong limiting forces of psychological and economic factors, which get considerably less attention.  The evidence presented for a scientifically illiterate population is convincing, but the conclusion that leaps in scientific understanding would make people care more about these highly improbable events is more a testable hypothesis than it is accepted fact.

Chapter Three advocates the application of cost-benefit analysis to the evaluation of catastrophic risks.  Cost-benefit analysis is creatively applied to several of the doomsday scenarios that Posner describes in Chapter One.  This chapter could prove useful in modules or classes on cost-benefit analysis, public policy, or hazards and disasters.  His conclusion that the benefits of mitigating (or eliminating altogether) the effects of such catastrophes as stranglet disasters, global warming, and bioterrorism outweigh the costs of action will not go unchallenged, but they do present a unique and creative attempt to address the problems faced by advocates of immediate action on these vexing hazards.

For the law and courts inclined, it is Chapter Four that raises the issues of greatest interest.  The Chapter title is “How to Reduce the Catastrophic Risks,” and not surprisingly, Posner blames the law and lawyers for not doing more to reduce the likelihood of catastrophic events.  Specifically he makes two points.  First, the legal profession (and judges) is mostly scientifically illiterate.  Second, and more importantly, he argues that lawyers may be hindering attempts to reduce the likelihood of terrorist events because of their overly enthusiastic (and unwarranted in his view) protection of civil liberties.  In particular he makes an argument for greater “police” and “extreme police” measures in combating such catastrophes as bioterrorism and computer hackers—for whom he singles out particularly harsh treatment.  I address both of these chapter topics in greater detail below.

For prelaw students and others engaged in thinking about the quality and content of legal education, Posner’s arguments in favor of a scientifically literate legal profession are sure to stimulate debate.  He makes the clearest articulation I have seen in some time of the divide between science—in which “propositions are accepted only if they survive confrontation with experimental data” and law—where “the idea of subjecting a legal proposition to a decisive experiment—an experiment that might refute it—horrifies the lawyer” (p.201).  Posner offers several ways to fill the void of scientifically trained lawyers—including requiring law students to show proficiency in math and science, or expecting that law school applicants would have more than a trivial amount of undergraduate math and science.  He even goes so far as to suggest a new subfield, the catastrophic-risk lawyer.  I [*431] teach at a University (UNCW) where a substantial number of students enroll as science majors (mostly marine science) but end up interested in something else—sometimes the law.  As a prelaw advisor I often find myself trying to persuade these science-oriented students to stick with their science major and then apply to law school, even though they often want to bail out and choose a non-science degree program.  This section of Posner’s book is going to become required reading for these students!

The second, and much more controversial, section of this Chapter deals with a variety of different police measures that Posner argues could successfully be employed to reduce catastrophic risk.  He argues that the threat of post-disaster sanctions is inadequate to deter terrorist behavior and thus greater emphasis should be placed on “prophylactic measures, possibly including some curtailment of the civil liberties to which Americans have grown accustomed” (p.226).  In a very fine fashion Posner sets up and then confronts a series of arguments by civil libertarians against the curtailment of rights.  He suggests that civil rights lawyers make two general mistakes.  First, they overstate the constitutional importance of the recent expansion of civil rights, such as the fourth amendment.  Here he argues that searches related to national security are more reasonable than unreasonable because the threat posed by those who threaten our national security is so much greater than that posed by common criminals.  The second point is that civil libertarians do not understand the magnitude of the risk from catastrophes—because they are scientifically ignorant—and therefore they mistakenly reject any restriction or reductions to civil liberties.  Posner also includes a fairly lengthy discussion of torture as a police measure which may provide some benefit to authorities charged with protecting the national interest.  This section will be particularly useful to scholars and students grappling with the merits and drawbacks of using torture to extract information from suspects.

It is a rather unconventional recommendation to suggest picking up a book for just one chapter, but I think it is fair to suggest that law and courts scholars and students will find most of Posner’s CATASTROPHE unrelated to their work.  But Chapter Four provides important and useful material for the study and teaching of law and courts, and even better, it stands alone and can be read without studying the earlier material.  Once again, judge Posner has added to our cultural dialogue in a useful and interesting way.

REFERENCE:

Clark, Lee. 2005. WORST CASES: TERROR AND CATASTROPHE IN THE POPULAR IMAGINATION. Chicago: University of Chicago Press.

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© Copyright 2005 by the author, Stephen Meinhold.