The Public Policy

...For one thing, there have been real improvements this year in world food sup= ply...

...In the meantime, let us pray for rain...

...It is unclear now just how costly the food shortage has been in terms of human lives and suffering...

...Johnson estimates that between 12 and 15 million people have died from starvation in the twentieth century...

...The Green Revolution cannot succeed in multiplying crop productivity without intensive irrigation and fertilization, so poor countries like Bangladesh and India cannot take full advantage of the new strains...

...Is there a long-term food crisis...

...More than half the world's arable land is presently uncultivated...

...The big pother now is whether American businesses have been tinkering with their grain exports...

...The paramount theory that Fleming addresses is the idea of perfectibility" the concept that with the expenditure of sufficient time, patience, energy, and money it is possible eventually to achieve perfect justice in all legal process...

...As Johnson and Science point out, however, technical capability to eliminate food worries is not the same thing as economic, political, or institutional capability...

...By pursuing the will-o'-the-wisp of perfection, Fleming contends, the courts have neglected the key elements demanded of effective procedure: "the resolution of controversies within a reasonable time, at a reasonable cost, with reasonable uniformity...

...It is an unpleasant tradeoff...

...A year ago, that would have been the least of our worries...

...Long-term problems persist, as always, and prices are still climbing, though Johnson predicts that after a few years real grain prices will return to their long-term pattern of decline...

...It simply been unprofitable for farmers t< 32 The Alternative: An American Spectator October 197 increase food production under these circumstances...

...The quest for perfect procedure has had its greatest impact on criminal law, where the modern doctrine has almost completely displaced the concept of effective procedure...

...These figures, however, are subject to some dispute—for the study of nutrition is still an inexact science—and they refer to 1970, before the crop shortfalls of 1972-74...

...But, as both the Science issue and the AEI report make clear, the recent food scare has been neither the world's first nor its worst...

...And in 1898 Sir William Crookes, no crackpot, declared in his presidential address before the British Association for the Advancement of Science that "England and all civilised nations stand in deadly peril of not having enough to eat...

...Two thoughtful publications have recently appeared—the May 9 issue of Science, devoted exclusively to food and nutrition, and an American Enterprise Institute report by D. Gale Johnson, World Food Problems and Prospects—which suggest that the world food outlook is rather promising...

...Lester Brown, who these past few years has been one of our leading pessimists, was at that time a great herald of the Green Revolution...

...And if the trail does not meet all of these requirements, then the cause must be tried again...

...and it is this impact which is Justice Fleming's major concern...

...The first, of course, is population...

...From Argen...

...There were dangerous food shortages after World War II, in Europe, and in the middle 1960s, when India and Russia both experienced serious crop failures...

...In short, under 'the reigning standards of perfect procedure the guilt or innocence of the accused has become almost irrelevant because the emphasis in criminal proceedings has shifted to the determination of the correctness of the procedure used in the prosecution...

...suffice it to say that, parReappraising World Food Prospects titularly in South and Southeast Asia and in Africa, the toll has been high...

...And it is in this sense that America's enormous generosity in food aid ($25 billion since World War II) has been counterproductive, for recipient governments have had no incentive to develop local incentives for agriculture...

...Had world weather remained as bad as in the last three years, some of the dire predictions might easily have come true...

...But although the Soviet Union seems to have suffered from an unexpected summer drought, the heavens have favored both North America and India, which expect the best harvests ever, and rain fell on the Sahel for the first time in six years...

...For instance, it does not help starving Bengalis or Javans very much to know that most of the world's arable land is still uncultivated, because that untilled soil is not in Bengal or Java...

...most of it is in sections of Latin America and Africa where there is no one to cultivate it...

...Famines have afflicted mankind since the eviction notice was served at Eden, and they have taken greater tolls when world population was much lower...

...For by the late sixties, as the introduction of high-yield wheat achieved spectacular successes in the Punjab, thepessimism of the middle sixties had given way to an unbridled optimism about food...

...No one knows the dimensions of starvation and malnutrition in the last few years...

...In its 1969 report on the State of Food and Agriculture, the FAO declared that the food problems of the future would be how to dispose of surpluses rather than how to alleviate shortages...

...The callous disregard of population problems by some governments, particularly in Africa, when there is widespread malnutrition among their own people, is an arrant disgrace...

...Department of Agricult ture predicts that fertilizer prices will decline (though not to pre-1972 levels) by the end of the decade...

...And as the courts, in striving to achieve perfect justice, have been ready to apply increasingly rigorous standards of legal procedure, this strategy has become a powerful weapon to shape policy and effect change in society: construction of new power plants can be indefinitely delayed, issuance of licenses The Price of Perfect Justice by Macklin Fleming Basic Books $10.95 postponed, construction of highways halted, and military service avoided...

...Norman Borlaug, Nobel Prize winner and the genius of the Green Revolution, predicted last year that twenty million people might die from starvation this year...

...in 1968 he hailed our "new agricultural era...

...but the oil cartel shows no signs of breaking up, indeed oil prices are expected to rise again this year...

...According to Fleming, the quest for perfect justice and legal procedure has dominated legal thought for the past twenty years, and has spawned an ever increasing scope and pace of judicial action: courts are no longer concerned simply with the adjudication of private controversies and the interpretation of traditional legal rights, but also with the resolution of almost all public issues which can be brought to life as legal causes because of alleged shortcomings in legal procedure...

...There are usually good short-run arguments against letting farmers raise their prices in LDC's: namely, thousands of the poorest citizens would no longer be able to afford a bare subsistence...

...World resources are not so limited that the rich must kick the poor out of the lifeboat...

...With reserve stocks low and acreage limited in the major grain-exporting nations, and with informed opinion overly optimistic about food supplies, the world was wholly unprepared when, in 1972, because of some unfortunate weather coincidences, world food production declined by 3 %—the first decline in twenty years—while demand kept rising...

...There are often very good economic and cultural reasons to maintain high population growth, and the governments of many, if not most, LDC's have chosen not to encourage population control...

...And fearing overproduction, governments and farmers in the United States, Canada, and Australia—which together account for 90% of world grain exports—took steps to restrict grain acreage, lest "excess stocks" accumulate...

...The ironic thing about the recent shortages is that they took everyone by surprise and that they confounded the expert wisdom...

...And modern telecommunications brought image after agonizing image of shriveled children into every living room...

...International grain reserves, we were constantly told, had fallen to their lowest level in twenty years...

...Only Africa, during this period, has had a per capita decline in food production...

...In addition, every legal or factual argument of any possible relevance must be considered in depth, exhaustively and repetitively, in order to eliminate the possibility of error from theproceeding...

...Moreover, the environmentalists notwithstanding, the world has the technical capability of feeding many times its present population—some plausible estimates go as high as 40 or 50 billion people...

...Book Review/Terry O'Rourke Overloading the Scales of Justice • • Justice Macklin Fleming of the California Court of Appeal has written perhaps the most perceptive and acute criticism of judicial activism yet to appear in print...

...Second, with the passage of time and the reprieve from Mother Nature, scholarly opinion is turning away from its pessimistic forecasts...

...As a result, partisans of particular causes, unable to convince a majority of voters or legislators of the verity of their positions, routinely seek to invoke the power of the courts by accusations of imperfect procedure, thereby hoping to direct the course of subsequentevents by imposing impossible procedural demands...

...Perfect procedure is unable to convict the guilty promptly or to acquit the innocent in a manner that retains public confidence in The Alternative: An American Spectator October 1975 33...

...in the Third World as a whole, per capita food production has increased 0.4% a year (compared with 1.5% in the MDC's) and in India it has increased 0.6% a year...

...But without suitable incentives, LDC's will in the long run be unable to stimulate the local production of which they are capable...

...America can be very helpful, not by curtailing her own consumption but by continuing generous technical assistance—improving grains and grain markets in the developing countries...

...For example, if India could follow the agricultural example of Japan, Taiwan, or her own province of Punjab—where wheat yields are higher than in the United States—the Ganges Plain could become a breadbasket for Asia...

...During the recent food scare it was widely believed that food production was not keeping pace with population growth in the developing countries (LDC's...

...And with the spread of Green Revolution grains, proper irrigation, and fertilizer, yields on already cultivated land could be multiplied many times...

...and there are a number of structural problems in the political economy of world food...

...By drawing on some of their observations and conclusions, I hope to set the recent scare in some perspective...

...Incidentally, American food giveaways were as much a function of our domestic farm price support system as of our humanitarian and tactical policies...

...Today, the news from Dacca and Dakar still brings occasional photographs to haunt us...

...Actually, as Johnson and the authors in Science show, the LDC's have been making extraordinary progress in agriculture...

...The second problem is that prices for fertilizer and for oil (necessary for irrigation) have quadrupled in the last two or three years, and that the countries which need them most can afford them least...

...the target is no longer the accused's own conduct, but the legal machinery used against him...

...Beyond this, there are three major problems which, so long as they persist, will bedevil food supply in the LDC's, and hold back the even greater progress that is possible...

...A study by the U.S...

...Acre-age is now replanted, stocks are slowly being replenished, and according to Science and Johnson, the difficulties of the last few years are not a prelude to coming disaster, but a temporary aberration caused by some accidents in the weather and by a lack of foresight...

...According to Food and Agricultural Organization (FAO) statistics, 462 million people, or 16% of the world's population, suffer from malnutrition...

...in the last quarter alone of the nineteenth century his figure is between 20 and 25 million...

...Predictions are always risky, especially with food supply, but I predict that with occasional setbacks, some luck, and a lot of hard work, people all over the world will continue to eat more and better...

...Under standards of perfect legal procedure, the parties must be free to present their contentions to the fullest extent to a jury "which must have never heard of the cause, the parties, the witnesses, and the issues, and must be wholly free from opinions or preconceptions about any proposition of law or fact likely to arise in the trial...

...Since 1950, life expectancies have increased by about forty percent in the LDC's, not only because of public health advances but also because people are eating better...

...Probably not...

...Those readers accustomed to viewing critics of judicial activism primarily as yahoos whose malignant and narrow pursuits have been thwarted by the courts will be confounded by this book...

...But so long as population grows as rapidly as it does in the Third World (2.4% per year), the enormous increases in agricultural productivity will_ lead to only modest per capita improvements in nutrition and consumption...

...For Justice Fleming is a stern legal scholar and craftsman dismayed by other judges' substitution of slogans for reasoning and personal predilection for the dictates of text and precedent...

...Whatever happened to all that talk about mass starvation...

...Food production has increased at the same rate in the last twenty years-2.8% annually—as in the developed countries (MDC's...

...tina to Niger to Thailand, and almost everywhere in between, government have kept food prices artificially low, foi the benefit of urban consumers...

...Fleming documents numerous instances of the pursuit of perfect procedure by the courts: five months spent in the selection of a jury, the same murder charge tried five different times, prosecutions pending a decade or more, and the same issue of search and seizure being reviewed over and over again, as many as 26 times...

...Justice Fleming persuasively argues that the attempt to achieve perfect legal procedure has seriously impaired the capacity of the legal system to achieve the basic goals for which it was created: namely, "to settle disputes promptly and peacefully, to restrain the strong, to protect the weak, and to conform the conduct of all to settled rules of law...

...But the scare is gone, and the headlines and hoopla have changed...

...The third problem is that in most of the world, pricing policies offer little incentive to increase production...