I recorded it yesterday for the Legal Talk Network, and it runs about 30 minutes; you can listen here. We start off by discussing Judge Kozinski’s stirring dissent from denial of rehearing en banc in United States v. Pineda-Moreno, which has received a lot of press attention. Among the questions discussed: Who lives in gated communities?
Predicting the stock market is either impossible or extraordinarily difficult, so I generally refrain from doing so — in print. Even apparently successful investors who trade daily or weekly are wrong nearly as often as they are right. So with the caveat that the chances of my being right are at best not appreciably better 50–50, I wanted to share an optimistic scenario for the stock market over the next 2–3 years.
Typically, a Democratic majority in the House of Representatives has been bad for the stock market and the economy and Republican control has been good (in the past, I have run, but not published, the numbers back to 1854). The reverse is generally true for the presidency.
There have been two switches from Democratic to Republican control of the House since 1950: in the 1994 election and in the 1952 election.
Cumulative returns in the S&P 500 over the two years following the 1994 Republican takeover (1995–96) were 69.8%. (The three-year returns for 1995–97 were a staggering 127.0% [+38%,+23%,+33%].)
Cumulative returns in the S&P 500 over the two years following the 1952 takeover (1953–54) were 54.7%. (The three year returns for 1953–55 were 98.4% [-1%,+56%,+28%], but the Democrats retook the House in the 1954 election.)
Indeed, the best year for the S&P 500 since World War II was 1954 (56.0%), the second year after a Republican takeover of the House. The best year since 1976 was 1995 (38.5%), the year after the last Republican takeover of the House.
So will we get a huge stock market increase this time, as we have the last two times that Republicans have taken the House? Maybe, maybe not.
If the Republicans take the House, why might we get a strong stock market?
(1) an end to disastrous new government efforts to stimulate the economy (or at least a significant slow down in such wealth-destroying efforts);
(2) a probable reduction in regulatory uncertainty; and
(3) a reduction in the odds for increased taxes (beyond the expiration of the Bush Tax cuts for those making over $250,000).
A strong stock market and a reduction in regulatory uncertainty would likely lead to robust economic growth — and eventually strong job growth. That would make the world a lot better for our students and our children.
I don’t expect that good economic policy will suddenly start coming out of Washington in 2011, but I do hope that the policies will not get increasingly worse, month by month. Though we will never know, I believe that, if the Federal Reserve and the Bush and Obama Administrations had done little else than lower interest rates, provide liquidity, and temporarily guarantee money market funds, we would have had a brief, sharp recession, followed already by robust GDP growth.
So why might this optimistic 2011–2013 scenario not happen?
(1) the Republicans might not retake the House (the number of pick-ups needed is exceedingly large);
(2) the Republicans might act like the Democrats once they regain control, as they mostly did the last time they held sway;
(3) significant tax rate increases are already scheduled for 2011;
(4) because of tax increases, economic activity may have already been shifted from 2011 to 2010;
(5) a new carbon cap or tax may be imposed either by a lame duck Congress or by the EPA;
(6) regulatory uncertainties persist, especially over health care;
(7) two events (1952, 1994) are not enough to define an effect, especially since if one goes back further in time, this effect is not present. (The two-year returns following prior Republican takeovers of the House averaged just 5.6%.); and
(8) there were special circumstances in the 1953–55 period (end of the Korean War, worldwide post-WW2 boom) and in the 1995–97 period (computer revolution; end of the Cold War and expansion of economic freedom).
Ironically, if the Republicans retake the House and the stock market booms as it did after the 1952 and 1994 takeovers, such a strong recovery would greatly increase President Obama’s chances of being re-elected.
So what do I think about the stock market? At the moment at least, I am fully invested in US and foreign stocks and mutual funds — and I hope to remain so over most of the next two years, at least if the Republicans take the House and there are no major new pieces of economy-destroying legislation or EPA regulations.
Josh Gerstein (Politico) reports:
Acting on an emergency request from Maryland Attorney General Doug Gansler, Prince George’s County Circuit Court Judge Larnzell Martin Jr. issued an order Tuesday evening barring anyone from disseminating a sample ballot for the Sept. 14 primary that was recently mailed to Democratic voters and distributed at an early voting site in Oxon Hill, Md.“No materials in the form attached shall be distributed by mail, in person or otherwise under penalty of law,” Martin wrote in the temporary restraining order. “Immediate, substantial and irreparable harm in the form of presentation of false and misleading advocacy information to the electorate will result if such violations were to continue.”
The flier, styled as an “Official Democratic Ballot,” contains at least one error, listing a candidate as running for a county office she isn’t running for. The main objection from some local candidates, however, is that photos of Gov. Martin O’Malley (D-Md.), Rep. Steny Hoyer (D-Md.) and others on the pamphlet suggest the men endorse the candidates marked inside, which in several cases is not true.
Use of another’s name and likeness in a way that strongly suggests that he endorses your speech might well be constitutionally unprotected. It may well constitute, for instance, the tort of “publicity placing person in false light,” as in this illustration from the Restatement (Second) of Torts: “A is a Democrat. B induces him to sign a petition nominating C for office. A discovers that C is a Republican and demands that B remove his name from the petition. B refuses to do so and continues public circulation of the petition, bearing A’s name. B is subject to liability to A for invasion of privacy.” (Note that the label “invasion of privacy” here is a legal term of art; the tort applies even when the information is not generally seen as embarrassing or intimate.) And the Court has held — see Time, Inc. v. Hill and Cantrell v. Forest City Publishing, Inc., cited here — that this tort is constitutionally permissible, if it’s limited to punishing knowing or reckless falsehoods (and perhaps in some circumstances negligent falsehoods, though that wouldn’t be applicable here).
So such speech might be tortious, and it could also probably be criminally punished and even permanently enjoined as well, following a trial on the merits that establishes that the speech is constitutionally unprotected. But preliminary injunctions, such as the temporary restraining order in this case, are generally unconstitutional “prior restraints.” Here’s a summary of the law, from Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147 (1998):
Temple University law professor Duncan Hollis, and my co-blogger at Opinio Juris, has a provocative new paper on SSRN addressing the question of cyber-threats and why he believes the threats need new forms of regulation. Duncan titles his article at SSRN, “An e-SOS for Cyberspace,” and of course I can’t resist adding ‘Sending Out An e-SOS, Sending Out An e-SOS’ ...
Minds more serious than my own have been discussing Duncan’s ideas, however, including our own Orin Kerr, over at Concurring Opinions, to which Duncan responds at OJ. I am not a cyberthreats expert; I tend to stick with the robotics side of things, so I won’t venture a substantive opinion here. But obviously these areas overlap in important ways, and the recognition of cyber-threats and cyber-emergencies as legal issues is both important and overdue, so I do try to follow the literature modestly. Here is Duncan’s abstract:
Individuals, shadowy criminal organizations, and nation states all now have the capacity to devastate modern societies through computer attacks. These new and severe cyberthreats put critical information, infrastructure, and lives at risk. And the threat is growing in scale and intensity with every passing day.
The conventional response to such cyberthreats is self-reliance. When self-reliance comes up short, states have turned to law for a solution. Cybercrime laws proscribe individuals from engaging in unwanted cyberactivities. Other international laws proscribe what states can (and cannot) do in terms of cyberwarfare. Both sets of rules work by attribution, targeting bad actors – whether criminals or states – to deter cyberthreats.
This Article challenges the sufficiency of existing cyber-law and security. Law cannot regulate the authors of cyberthreats because anonymity is built into the very structure of the Internet. As a result, existing rules on cybercrime and cyberwar do little to deter. They may even create new problems, when attackers and victims assume different rules apply to the same conduct.
Instead of regulating bad actors, this Article proposes states adopt a duty to assist victims of the most severe cyberthreats. A duty to assist works by giving victims assistance to avoid or mitigate serious harms. At sea, anyone who hears a victim’s SOS must offer whatever assistance they reasonably can. An e-SOS would work in a similar way. It would require assistance for cyberthreat victims without requiring them to know who, if anyone, was threatening them. An e-SOS system could help avoid harms from existing cyberthreats and deter others. Even when cyberthreats succeed, an e-SOS could make computer systems and networks more resilient to any harm they impose. At the same time, an e-SOS would compliment, rather than compete with, self-reliant measures and the existing legal proscriptions against cyberthreats.
(Update: The first couple of comments were off topic and not very helpful, so I’m going to delete them and close the post.)
Earlier today, I received a robocall from a DNC-affiliated pollster asking whether I plan to vote for the Republican or Democratic congressional candidate in my district, and also asking my opinion of Barack Obama’s performance as president. The rub is that I live in Arlington, Virginia, represented in Congress by Rep. Jim Moran. Moran won reelection with almost 70% of the vote in 2008, and his district is one of the few areas that voted Democrat in last year’s gubernatorial election.
Maybe the DNC had some other reason to want survey voters in my district, but if, as the call suggests, the Democrats are worried about whether Moran is vulnerable, panic must be really setting in.
David Bernstein’s post referencing a commenter who greatly overestimates the extent to which the public pays attention to politics reminds me of an interesting comment on political ignorance from Tony Blair’s recently published memoir:
The single hardest thing for a practising politician to understand is that most people, most of the time, don’t give politics a first thought all day long. Or if they do, it is with a sigh...., before going back to worrying about the kids, the parents, the mortgage, the boss, their friends, their weight, their health, sex and rock ‘n’ roll.....
For most normal people, politics is a distant, occasionally irritating fog. Failure to comprehend this is a fatal flaw in most politicians.
Whatever you think of Blair’s overall record (I have very mixed feelings myself), he was certainly a highly successful politician, leading his party from the wilderness to an unprecedented three consecutive electoral victories. Blair’s claim that most “normal people” pay very little attention to politics is backed up by decades of polling data showing that most voters tend to be ignorant about even basic political facts and issues. As I have argued elsewhere, this is rational behavior, given the very low chance that any one vote will make a difference to an electoral outcome. As David notes, the swing voters who determine electoral outcomes are generally also the most ignorant part of the electorate.
I do disagree with Blair’s statement on one point. Most politicians do in fact understand the widespread nature of political ignorance. That’s why they usually talk in simple sound bites, and constantly try to exploit the public’s ignorance for electoral advantage. Of course few of them are willing to comment on public ignorance openly. If they did, it would look like they were putting down the intelligence of voters, even though ignorance isn’t really equivalent to stupidity. Therefore, most politicians work hard to exploit political ignorance even as they pretend to believe that the voters are repositories of profound wisdom. It’s telling that Blair revealed his thoughts on public ignorance only after he left office.
The people who really overestimate public knowledge are not politicians but political pundits. They follow politics closely and are surrounded by others who do the same thing. Unlike politicians, they have little incentive to study public knowledge systematically. As a result, it’s easy for them to assume that the general public is paying attention to the same things as they are. An excellent example of this is the current debate over the reasons for Obama’s plummeting popularity. Republican pundits tend to claim that it’s because he has adopted very liberal policies that most Americans disapprove of. Many Democratic ones blame the administration’s public relations strategy and relentless Republican attacks.
In reality, most voters have very little understanding of the administration’s policies and have not followed them closely (see here and here for examples). Obama’s falling popularity is primarily caused by the continuing poor condition of the economy. As political scientist Larry Sabato points out, Obama’s poll numbers are roughly in line with those of previous presidents who presided over bad economies. The same thing happened to Ronald Reagan in 1981–82, for example, even though the Great Communicator had an excellent public relations strategy and pursued policies that were arguably more in line with public opinion than Obama’s.
Blaming political incumbents for economic doldrums is often incorrect, or at least oversimplified. After all, Obama did not cause the current recession or the associated financial crisis. While I think that many of his policies made things worse rather than better, the economy might well still be in bad shape at this point even under optimal policies. But simplistically attributing whatever happens in the status quo to the incumbent is the kind of reasoning one would expect from an electorate with very little knowledge of policy. Historically, voters have often blamed or rewarded incumbents for conditions they had no real influence over, including such events as trends in the world economy that national leaders cannot control, droughts and shark attacks.
A minority of voters, of course, do follow politics closely because they find it interesting. They, however, tend to have very strong partisan or ideological commitments, and evaluate new evidence in a highly biased way. As a result, we get an electorate where the majority of voters have very low levels of knowledge and the more knowledgeable minority often does a poor job of evaluating what they know.
Tags: Tony Blair
A while back, I blogged at length about the Third Circuit’s pending case involving government access to historical cell-site records. The issue in the case is what legal standard the government must satisfy to obtain orders requiring phone companies to disclose such information. The district court had ruled that a warrant was required, and the government argued that the correct standard under the law was a “specific and articulable facts” court order under 2703(d) rather than a search warrant. Yesterday, the Third Circuit handed down its decision: In The Matter Of The Application Of The United States Of America For An Order Directing A Provider Of Electronic Communication Service To Disclose Records To The Government. In this post will explain the Third Circuit’s decision; try to figure out what it means (which turns out to be quite tricky); and then explain why I think it misreads the Stored Communications Act on an important point.
I. The Third Circuit’s Decision
The Third Circuit’s decision, written by Judge Sloviter, has three major parts. First, the court ruled that the government is right that under the Stored Communications Act, the government can obtain historical cell-site records under 2703(d) without getting a warrant. Second, the court agreed with amicus the Electronic Frontier Foundation that magistrate judges do not have to issue such orders. According to the Third Circuit, it is up to individual magistrate judges to make the decision of whether to issue the orders or else require a full probable cause warrant. Here’s the core argument:
Section § 2703(d) states that a “court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if” the intermediate standard is met. 18 U.S.C. § 2703(d) (emphasis added). We focus first on the language that an order “may be issued” if the appropriate standard is met. This is the language of permission, rather than mandate. If Congress wished that courts “shall,” rather than “may,” issue § 2703(d) orders whenever the intermediate standard is met, Congress could easily have said so. At the very least, the use of “may issue” strongly implies court discretion, an implication bolstered by the subsequent use of the phrase “only if” in the same sentence. . . .
Under the EFF’s reading of the statutory language, § 2703(c) creates a “sliding scale” by which a magistrate judge can, at his or her discretion, require the Government to obtain a warrant or an order. EFF Br. at 6. As the EFF argues, if magistrate judges were required to provide orders under § 2703(d), then the Government would never be required to make the higher showing required to obtain a warrant under § 2703(c)(1)(A). See id.
So according to the Third Circuit, a magistrate judge has discretion to turn down an application for an order even if the 2703(d) order is satisfied. The third and final question is, does the judge have absolute discretion to decide whether to turn down the order, or is there some guide that the magistrate judge is supposed to use?
Here things get fuzzy. Judge Sloviter instructs that magistrate judges should require warrants “sparingly,” for the reason that “Congress also included the option of a § 2703(d) order.” She also writes that magistrate judges do not have “arbitrary” discretion, and that in the rare cases that a magistrate decides to require a warrant, the judge must “make fact findings and give a full explanation that balances the Government’s need (not merely desire) for the information with the privacy interests of cell phone users.”
What exactly does that mean? That is, what is the standard? To be candid, I’m not sure. A discussion around pages 26–27 suggests that perhaps magistrates should to conduct an ex ante constitutional analysis of whether the cell-site surveillance would require a warrant under the Fourth Amendment. Here the court hints that in its view, cell-site surveillance is analogous from a constitutional standpoint to tracking device surveillance in United States v. Karo and United States v. Knotts rather than the numbers dialed in Smith v. Maryland: Because “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information,” a cell phone user has not conveyed that information to the phone company voluntarily and the third-party doctrine does not apply.
The analysis here is pretty murky, but perhaps the Court is suggesting that if cell-site surveillance reveals that a caller is at home during the call, then under Karo that information could be constitutionally protected and the judge should require a warrant? I’m not really sure what the court is suggesting — elsewhere the court suggests that the decision of what standard to use is entirely up to Congress, so perhaps I’m wrong about that. Ultimately the Third Circuit remands for fact-finding, so perhaps the Court is really punting the issues of what the standard is for another day. In the end, I’m not sure. (If you read the opinion differently and have ideas about the standard, please post them in the comment thread. I would very much appreciate it.)
Judge Sloviter ends with this criticism of the Stored Communications Act:
In the issue before us, which is whether the MJ may require a warrant with its underlying probable cause standard before issuing a § 2703(d) order, we are stymied by the failure of Congress to make its intention clear. A review of the statutory language suggests that the Government can proceed to obtain records pertaining to a subscriber by several routes, one being a warrant with its underlying requirement of probable cause, and the second being an order under § 2703(d). There is an inherent contradiction in the statute or at least an underlying omission. A warrant requires probable cause, but there is no such explicit requirement for securing a § 2703(d) order. We respectfully suggest that if Congress intended to circumscribe the discretion it gave to magistrates under § 2703(d) then Congress, as the representative of the people, would have so provided. Congress would, of course, be aware that such a statute mandating the issuance of a § 2703(d) order without requiring probable cause and based only on the Government’s word may evoke protests by cell phone users concerned about their privacy. The considerations for and against such a requirement would be for Congress to balance. A court is not the appropriate forum for such balancing, and we decline to take a step as to which Congress is silent.
II. Why I Think the Third Circuit’s Opinion is Incorrect
The first part of the Third Circuit’s opinion is pretty clearly right. However, I think the second part misunderstands the Stored Communications Act, and that the court’s constitutional hints are not persuasive. In this part of the post, I want to explain why.
Froom the comments section on Nate Silver’s 538 blog, where he notes a 1 in 4 chance of the GOP taking the Senate:
October is known for its surprises, but I would not be surprised if the electorate became more informed about the facts, and the distortions prevalent on both Network and Cable TV, and of course Talk Radio, as we approach this crucial election. And please don’t underestimate the effect of C-span.org on independent voters, who watch Washington Journal regularly with passion.
The combination of earnest hopefulness that the voters will “come to their senses”, apparent ignorance of the fact that “swing” voters tend to be by far the least informed part of the electorate, and the pairing of “passion” with “Washington Journal,” a show only slightly less dull than watching professional golf on t.v., made me laugh out loud.
Martin Wolf, a prominent British economics journalist, has an interesting blog post criticizing libertarianism. Wolf is an excellent writer, but I think this particular piece is not one of his best. Wolf’s criticisms are that libertarianism rules out certain policy options that should be left up to “politics” and that it is “hopeless” politically. The first argument is weak, and the second greatly overstated.
Here are Wolf’s two key points:
There exists a strand in classical liberal or, in contemporary US parlance, libertarian thought which believes the answer is to define the role of the state so narrowly and the rights of individuals so broadly that many political choices (the income tax or universal health care, for example) would be ruled out a priori. In other words, it seeks to abolish much of politics through constitutional restraints.
I view this as a hopeless strategy, both intellectually and politically.
It is hopeless intellectually, because the values people hold are many and divergent and some of these values do not merely allow, but demand, government protection of weak, vulnerable or unfortunate people. Moreover, such values are not “wrong”. The reality is that people hold many, often incompatible, core values. Libertarians argue that the only relevant wrong is coercion by the state. Others disagree and are entitled to do so.
It is hopeless politically, because democracy necessitates debate among widely divergent opinions. Trying to rule out a vast range of values from the political sphere by constitutional means will fail. Under enough pressure, the constitution itself will be changed, via amendment or reinterpretation.
Wolf’s first argument ignores the fact that modern liberal democracies already rule out a wide range of “political choices.” Indeed, they rule out the vast majority of the major political ideologies in the world. For example, nearly all current liberal democratic constitutions forbid fascism, communism, full-blown socialism, and theocracy — forbidding them in the sense that they cannot be adopted through “normal” legislation, but only by constitutional amendment. Some liberal democratic constitutions (e.g. — Germany’s) forbid the enactment of certain policies even with an amendment. The various ideologies ruled out by liberal democratic constitutions surely embody “values” that many people hold dear, and on which they are “entitled to disagree” with liberals. For example, theocracy embodies the widely held view that religious truth is important and that we should not allow people to imperil their souls by persisting in religious error.
The distance between status quo constitutional constraints in most of the Western world and those that most libertarians would prefer is actually much smaller than that between the former and many of the alternatives we have already ruled out of bounds. There may be good reasons to reject libertarianism and constitutional constraints on “economic” legislation. But the supposed general undesirability of ruling out policies that embody “values” on which people are entitled to disagree isn’t one of them.
Wolf’s political argument is also unpersuasive. It is not a given that “[t]rying to rule out a vast range of values from the political sphere by constitutional means will fail.” To the contrary, that is exactly what liberal democracies have successfully done already by entrenching freedom of speech, freedom of religion, gender and racial equality before the law, and so on. It is probably true that “[u]nder enough pressure, the constitution itself will be changed, via amendment or reinterpretation.” But the point of constitutional constraints on government power is not to make certain kinds of change impossible, but to make it hard. On this front too, liberal democratic constitutions have a long history of at least partial success. No serious libertarian thinker believes that constitutional constraints are a fool-proof protection for the rights they value. They are merely a better safeguard than the ordinary political process.
Perhaps Wolf’s broader point here is that libertarianism is unlikely to sweep the political field any time soon. That is surely true. The vast majority of public and elite opinion is not libertarian, and is not going to suddenly convert in the near future. On the other hand, much of the public does greatly distrust government and is willing to support substantial reductions in its size and scope. And libertarian ideas have also made progress among political and intellectual elites over the last several decades, moving from near-total marginalization to a considerable degree of respectability. It may never be possible to have a fully libertarian society (even if libertarians agreed among themselves what such a society would look like, which we don’t). But we can reasonably hope to make substantial progress in a libertarian direction. It is also politically unlikely that we can ever fully implement the principles of liberalism or conservatism. But that fact does not discredit these ideologies. The same point applies to libertarianism.
UPDATE: Wolf also discusses several specific policy issues and argues that libertarians are wrong about them. His arguments on these points are very conclusory and mostly ignore the vast literature libertarian scholars have produced on public goods, externalities, insurance problems, and other issues that he seems to assume only government can address. In this post, I’m not going to try to address these specific policies. Instead, I wanted to respond to Wolf’s two more general criticisms of libertarianism. For my summary of what I consider the most important general libertarian arguments against large and complex government, see here.
UPDATE #2: I just noticed that Wolf’s post, which I found only recently, was written about a month ago. Since the issues he raises are hardly time-sensitive, I don’t think this is a major problem.
John McWhorter has thoughts about this in an NPR interview. I generally like McWhorter’s work, and his comments on this in particular struck me as quite apt. Plus he and I agree on what an awful name “Ebonics” is.
No doubt many readers have seen the press articles announcing George Soros’ gift of $100 million to Human Rights Watch. Most interesting to me was that the gift is aimed, in part, at diversifying the organization, staff, and board away from its current US-centric arrangement. As the AP puts it:
But the money also is meant to make its donor base as international as its outlook. Plans call for Human Rights Watch to draw at least half its income and most of its board members from outside the U.S. within five years. Now, about 70 percent of the money and 80 percent of the board members are U.S.-based.
Soros considers that a liability — one he blamed on a frequent target of his, former President George W. Bush.
“They’re basically an American organization advocating human rights all over the world. But the United States has lost the moral high ground, during the Bush administration, and, therefore, it runs into opposition because there’s resentment of American interference,” Soros said in an interview in his sleek office in a midtown Manhattan high-rise. ” ... It’s a drawback, to be American in this context.”
HRW agrees, although it already believes it is seen as independent of the US government.
“But it is helpful for our organization to personify the global values we promote,” Executive Director Kenneth Roth said.
(Note: I have updated and considerably expanded what follows, picking up comments I made at Opinio Juris.)
I wonder if it is quite so easy to personify global values in that way, however. Multinational corporations, for example, often talk about how global they are, in outlook, in values, in all those ways. Query whether it actually works that way in MNEs. The Daimler-Benz model, for example, in which it was supposed to be a merger of equals between the American car company and the German one. Under a surface veneer of the “global” company, in fact the true owners of the enterprise, Daimler, quickly asserted itself, and for a simple reason — the post-merger was turning into a disaster, and the immediate response was for management to seek to reduce its internal transaction and agency costs by asserting a command and control decisionmaking model that relied upon one side of the enterprise. That is, a “mixed” culture inside an enterprise is a costly one in terms of many decisionmaking factors, because it invites much more negotiation inside.
An alternative model but with the same problem is something like Citicorp, in the glory days as it tried to become the global consumer banking firm; my wife worked for it in NY, and I had many friends who worked for its various units in Europe, Asia, and Latin America. Anecdotally, they all told the same general story from different places over the past fifteen years — a “global” corporation that was in fact balkanized, sometimes viciously so, in its local business units around the world along ethnic, national, and similar lines. Management in NY would sing the praises of the “universal” company and its “universal” values — but there was only one matter in which there was general agreement about universals, and that was finance. Finance — quoting the extremely business-credentialed financial engineer spouse of a close friend — was the only truly common language among the various business units. Human resources, in her view, had the worst job of all, because the legal department believed (I assume correctly but it’s not my field) that a single global company would be held accountable in US courts for a single standard on such things as sexual harassment or discrimination law — the US standard — but the global corporation had a nearly impossible task trying to make that real given the vast cultural divides.
The argument for the globalized company — a company that takes globalization internal, so to speak, rather than simply engaging with the global market — is that incorporating whatever exactly that is into a company, by diversifying and, in Ken Roth’s term, personifying globalized values, they are incorporated into production and make for a more attractive product. As Coase pointed out a long time ago in theorizing the reason why firms, rather than mere markets, exist to organize production, however, simply replicating the market inside the firm produces sizable transaction costs. Maybe the transaction costs are justified by what it produces — or maybe it just makes it really, really hard to get anything done. My sense of the MNE world is that the only truly global firms, in an internal governance sense, are ones that deal in financial markets and are more like collections of professionals engaged in a mutual activity, almost like an internal market, rather than integrated and organized production. Finance provides a common measure of rationalization of the production process inside. The point of finance, seen in a certain way, after all, is to find the truly common denominators of the human experience, the ability to reduce things down to comparable present values so to be able to compare comparable cash flows. It is superficial with respect to the human experience, yes, but superficiality is what makes it possible to be global and universal.
In my experience of the global NGO world, like firms typically, they are rarely truly global in the sense that Soros seems to mean. They achieve effectiveness through cultural cohesion inside the firm in a way that allows the organization to be relentlessly and effectively focused on a external mission that it, and perhaps others, regard as universal and global, even if the organization is not. Because that seems somewhat parochial, organizations make moves to “diversify” and “globalize” (which are far from equivalent terms, but opposites in important ways), but smart organizations and smart leaders understand that this risks the internal culture of effectiveness. This is perhaps not obvious to Soros, because his formation is in finance and financial firms in which, as I suggested, there is a common denominator along with an objective that in many ways makes the internal financial firm closer to an internalized market than is ordinarily true of firms.
The intriguing question is whether human rights is, as a kind of parallel claim to universality, akin to finance as a common denominator. I have long thought that HRW was the Goldman Sachs of the NGO world — super-elite, highly rationalized, effective to the point that it appears to be able to make no mistakes, disciplined internally around a strictly rational objective shared by one and all in the firm. That’s so despite the recent public relations (and more — upd.) mis-steps of both organizations. Universal human rights as the common denominator in the sense that GS takes finance as its common denominator. And yet ... how to square that form of hyper-rationality as the basis for internal discipline and effectiveness with the equally strong sense that, in another way, both HRW and Goldman achieve their success in no small part because their internal culture, the non-rational part, is a shared and highly specific, indeed parochial, one of several generations of elite New York City Jews? A shared American Jewish culture of high achievement, a respect for education as simultaneously a means of culture and enlightenment and goodness but also worldly success, and all the many cultural things that make for the admirable success story of American Jewry?
And that combined with a particular culture of Jewish philanthropy across the generations in New York City, specifically. HRW has broadened its donor base, its base of support, its offices worldwide, all that stuff, over years and years, but one has to wonder whether, if Soros’s gift has the intended effect, it has an unintended effect which can be described in two different ways. One is to say, in Coasean terms, that internal transaction and agency costs go up as the advantages of a uniform and shared internal business culture are diminished. The other way to put it — I’m quoting a former HRW executive board member from many years ago — what is lost when the organization, in support of its universal external mission, is no longer a “bunch of New York Jewish philanthropists and we all instinctively understand each other”?
This “shared cultural phenomenon,” of course, is not simply a question for HRW and New York Jewish philanthropy. It comes up in many settings in the NGO world. A version of the same question, for example, is at the heart of the cultural identity of the International Committee of the Red Cross. It struggles with the same kinds of questions; universality in virtue of being a specific nationality that is itself characterized by its neutrality. And in the case of the ICRC, one can push the question back to “within” the Swiss identity, and the specifically Protestant and Genevan and haut bourgeois origins of the original committee (see Caroline Moorehead’s excellent account of the origins of the ICRC, Dunant’s Dream). The internal culture and the external mission; the specific interplay with ethnicity, nationality, and religion, and how these particularities and parochialisms influence the formation of the cultures of public service and philanthropy on which these organizations, with their universal missions, are so frequently founded and thrive — all of this plays out in many places and ways.
But in the case of the human rights movement, and HRW’s hegemonic role within it ... we gasp at Soros’ generous $100 million gift; we should gasp, rather, at Ken Roth’s ability to raise a $44 million annual budget year in and year out. The question of whether Soros’ aim to transform HRW’s internal culture will make the organization more effective or less in the long run is an important one. That leaves aside a whole different series of questions invoking many important controversies as to whether it properly conceives of its mission, what exactly it is today, and lots of other things, and focuses on one specific question, internal effectiveness to an external mission. I have many grounds of criticism of HRW which are left aside here. This narrow question of philanthropic effectiveness is important in its own right.
Jonathan links below to Adam Liptak’s front-page New York Times article on the ideology of law clerks, and Jason Mazzone’s critique of it. Echoing the point at the end of Mazzone’s critique, I think the ideology of law clerks roughly matches that of the Justices because the Justices are trying to solve the principal-agent problem. As Wikipedia explains:
In political science and economics, the problem of motivating a party to act on behalf of another is known as ‘the principal–agent problem’. The principal–agent problem arises when a principal compensates an agent for performing certain acts that are useful to the principal and costly to the agent, and where there are elements of the performance that are costly to observe. This is the case to some extent for all contracts that are written in a world of information asymmetry, uncertainty and risk. Here, principals do not know enough about whether (or to what extent) a contract has been satisfied. The solution to this information problem — closely related to the moral hazard problem — is to ensure the provision of appropriate incentives so agents act in the way principals wish.
Supreme Court Justices solve the principal/agent problem by tending to hire law clerks who generally agree with their bosses’ views of the law. That agreement gives the Justices more confidence that their law clerks will be faithful agents without the Justices having to engage in costly monitoring of law clerk performance.
I think this happens roughly equally among the liberal and conservative Justices. The data Liptak presents misses this a bit by suggesting that the trend is more pronounced among the conservative Justices. Justice Thomas has never hired a clerk who worked for a Democratically-nominated circuit judge, Liptak notes. In contrast, Justice Breyer hires clerks who worked for GOP-nominated circuit judges on a regular basis. The numbers are accurate, but in my view, they don’t reflect a greater willingness among liberal Justices to hire conservative clerks than conservative Justices have to hire liberal clerks. Rather, I think the numbers reflect the fact that the pool of today’s circuit court law clerks is considerably to the left of the pool of today’s circuit court judges.
Consider the dynamic. Because the pool of potential circuit clerks is more liberal than the pool of existing circuit court judges, ideological mixes between clerk and judges tend to be one-way. Specifically, it is common for many GOP-nominated circuit court judges to hire liberal clerks. After all, most of the applicants out there are liberal. Even if you slightly prefer conservative candidates, you’re likely to end up with lots of liberal clerks given the pool. In contrast, it is rare for a Democratically-nominated circuit court judge to hire a conservative clerk. (Not unheard of, but rare.) If you’re a Democratically-appointed circuit judge, and you slightly prefer liberal clerk candidates, you’ll find you have tons of qualified liberal applicants to choose from.
This dynamic then leads to the chart we see in the Liptak article with conservative Justices hiring almost exclusively from GOP-nominated circuit court chambers while liberal Justices have a more mixed record. If you’re a conservative Justice, you’ll find ideological matches only in the ranks of alumni of GOP-appointed circuit court judges. On the other hand, if you’re a liberal Justice, you’ll find ideological matches among the alumni of both Democratically-appointed circuit court judges and some GOP-appointed circuit court judges. To put some names on it, a liberal Justice can hire lots of Boudin clerks, and an occasional Kozinski clerk or Wilkinson clerk, without hiring a clerk who is actually conservative.
Finally, I should point out that all of this discussion is of course very much oversimplified. Terms like “liberal” and “conservative” are blunt and often misleading labels. Each Justice, and each clerk, has a wide range of views that often are hard to classify. Still, I think the oversimplification at least leads to some helpful generalizations, even if it’s important not to look at the problem with too simple a lens.
Lawfare is not just the name of a great new national security law blog, it’s also the subject of a conference this Friday at the Case Western Reserve University School of Law. Details, including information on viewing the webcast, here.
UPDATE: Thoughts on “lawfare” and “Lawfare!” by Jack Goldsmith at Lawfare.
Adam Liptak reports on the apparent polarization of Supreme Court clerks. According to Liptak, Supreme Court justices increasingly hire only those who clerked for judges who share their ideological disposition. Justices appointed by Democratic presidents hire those who clerked for lower court judges appointed by Democratic presidents and justices appointed by Republican presidents hire those who clerked for lower court judge appointed by Republican presidents.
Jason Mazzone comments on Liptak’s story at Balkinzation. According to Mazzone, Liptak’s failure to account for the changing composition of lower courts causes him to exaggerate the trend.
Liptak overlooks a key change between 1975–1980 and 2005–2010 in the composition of the circuit courts. In 1980, there were 50 circuit court judges who had been nominated by a Republican President; 86 of the circuit court judges had been nominated by a Democratic President. (There were also 4 circuit judgeship vacancies in 1980.) In other words, in 1980, 37% of the circuit court judges were nominated by a Republican President and 63% were nominated by a Democratic President.
By contrast, today there are 91 sitting circuit court judges who were nominated by a Republican President and 68 circuit judges who were nominated by a Democratic President. (There are also 20 circuit judgeship vacancies). In other words, of the current federal circuit judges, 57% were appointed by a Republican President and 43% were appointed by a Democratic President.
Some of what Liptak identifies as increased hiring of Supreme Court law clerks from Republican circuit judges simply reflects the increased number of law clerks from Republican circuit judges because there are today more Republican circuit court judges.
Mazzone also questions whether the Justices’ clerkship hiring patterns really matter all that much. Mazzone finds Liptak’s suggestion that the alleged polarization in clerkship hiring increases the ideological polarization of the Court to be unpersuasive. He ends his response with this intriguing thought:
If, like Liptak, we think the Justice should be in the driver’s seat, then surely it is better for a Justice to hire law clerks who will be faithful lieutenants and who will perfectly execute the Justices’s wishes. Liptak’s argument for diversity presents the risk of having a law clerk who tries to manipulate outcomes: providing selective information to the Justice, hiding key facts, burying cert. petitions, inserting language in an opinion to lay the groundwork for overruling a case with which the clerk disagrees, or colluding with clerks in other chambers who share the clerk’s own political disposition.
Diversity in chambers presents a greater risk of law clerks aggrandizing power at the Court than comes from clerks whose views are close to those of the Justice they serve.
Concurring Opinions is hosting a lawblog symposium on Jonathan Zittrain’s book The Future of the Internet — and How To Stop It. I’m one of the many contributors.
Following the August 23 preliminary injunction issued by federal District Court Judge Royce Lamberth to block NIH funding of embryonic stem cell research, the Justice Department filed a motion requesting that the injunction be stayed pending an appeal to the D.C. Circuit. In a very short, 2-page order this afternoon, Judge Lamberth denied the stay motion.
Lamberth’s decision is not surprising, given that the issues at the root of both a motion for a preliminary injunction and a motion for a stay order are essentially the same: the court must weigh (1) the relative harm that each side would suffer if they ultimately prevail on the underlying merits of the dispute but are precluded from acting in the way desired while the underlying issue wends its way through the legal system and (2) the “irreparable” nature of such harm. I believe Lamberth’s ruling today is legally incorrect, for the same reasons articulated in my August 25 post analyzing the preliminary injunction. I won’t rehash those arguments in their entirety, but a couple of points bear noting in light of today’s order.
For practical purposes, the most important point in today’s order — and the one that should be the lead in tomorrow’s newspapers — is Lamberth’s surprising statement that his injunction does not prohibit the NIH from continuing to fund embryonic stem cell research that was permitted by the Bush Administration under its restrictive rules. This is a silver lining for some stem cell researchers, because it means that research projects on the 21 Bush-approved stem cell lines that has been ongoing for as long as eight years need not be shut down. But it completely undermines the reasoning of Lamberth’s decision on the merits of the case, and helps to illustrate why it should be overturned on appeal.
To briefly review, Lamberth ruled that the Congressionally approved, recurring Dickey-Wicker Amendment, which prohibits federal funding of “research in which…embryos are destroyed…” extends to the funding of research on embryonic stem cell lines, which are created by removing cells from 5-day old human embryos (thereby destroying the embryos) but thereafter replicate themselves in culture without any further involvement of embryos. Lamberth’s reasoning is that “research” is a very broad concept, such that a grant applicant seeking to work with embryonic stem cells is engaged in the same “research” as the non-applicant who, at a prior date, created the original stem cell line.
The Bush Administration funded embryonic stem cell research only when the cell lines used had been created prior to 2001, whereas the Obama Administration last year expanded funding to embryonic stem cell research that uses cell lines that the government has verified were originally created from embryos left over from in vitro fertilization efforts, regardless of when the cell lines were produced. There is nothing in Lamberth’s reasoning that would distinguish between cell lines created before or after 2001. If researchers who work Obama-approved cell lines are engaged in the same “research” as the scientists who created the cell lines, researchers who work on the 21 Bush-approved cell lines are engaged in the same “research” as the scientists who created those lines.
Judge Lamberth apparently recognizes this logical inconsistency, because he attempts two subtle rhetorical devices in today’s order to try to blunt this criticism. First, he notes that the “Plaintiffs agree that this Court’s order does not even address the Bush administration’s guidelines.” But if Bush allowed funding of A, Obama allowed funding of A and B, and Judge Lamberth finds that the law prohibits funding of A and B, it is hard to understand how the NIH may continue to legally fund A, just because the plaintiffs’ complaint was focused on the Obama rules rather than the Bush rules. Second, Lamberth points out that the Bush rules allowed research only on “existing stem cell lines, foreclosing additional destruction of embryos.” This distinction might matter if Lamberth’s underlying reasoning were that the Dickey-Wicker Amendment prohibits funding of research projects that might create an incentive to destroy embryos in the future, but this is not at all his reasoning. His entire argument is retrospective, not prospective: that research on a stem cell line is the same research project as the prior creation of the line. (By the way, Lamberth’s attempted distinction is factually questionable as well, because the Obama rules only allow funding of research on lines derived from embryos that would otherwise be destroyed anyway; thus, they do not actually create an incentive to increase the number of embryos destroyed).
Lamberth’s order today also attempts to narrow the scope of his August 23 decision by saying that the injunction does not prohibit NIH from maintaining its Human Embryonic Stem Cell Registry and from funding induced pluripotent stem cell (iPSC) research. (iPSCs are adult cells reprogrammed to behave like embryonic stem cells). Again, this is hard to square with the breadth of his reasoning. Embryonic stem cell lines are necessary for the maintenance of a registry, and they are necessary for iPSC research, because the iPSC cells must be compared to embryonic stem cells to determine if the former are behaving like the latter (as is the goal). Lamberth’s reasoning is that it is illegal for NIH to fund any research that uses embryonic stem cells. It logically follows from this premise that funding the registry and iPSC research are illegal.
One other interesting element of today’s order is a point on which Lamberth is completely silent. In its brief requesting the stay, the Justice Department compared the potential harm to the plaintiffs if the stay were granted pending appeal to the potential harm that would result if the stay were not granted. On the former side of the equation, the Justice Department presented two new facts, of which I was not previously aware: that one of the two plaintiffs claiming harm from having to face increased competition for grants from allegedly illegal embryonic stem cell research grant proposals has recently been awarded an NIH grant, and that the other plaintiff who claimed the harm of increased competition has never applied for an NIH grant! These facts, provided in an affidavit by NIH head Francis Collins, suggest that the likelihood that the plaintiffs would suffer any real harm if the stay were lifted until the merits of the case are resolved is vanishly slight. Yet Lamberth completely ignores them.
The only defense of today’s decision offered by the order is that “a stay would flout the will of Congress, as this Court understands what Congress has enacted in the Dickey-Wicker Amendment.” The problem with resting the denial of the stay solely upon his interpretation of Dickey-Wicker is that, if the legal question concerning whether a stay were appropriate were supposed to be exactly the same as the question concerning the proper interpretation of Dickey-Wicker, we wouldn’t need a separate legal process for considering the stay.
Tags: stem cell research
Over at the Lawfare Blog, Jack Goldsmith offers an interesting take on the recent announcement that David Addington has joined the Heritage Foundation as its new Vice President of Domestic and Economic Policy Studies.
SCOTUSBlog has unveiled a new look and new content. Check it out.
The NYT reports on studies on effective study habits. Among other things, the it discusses studies showing that some simple, and potentially counter-intuitive, techniques can enhance recall and retention. In particular, it suggests that varying study environments and mixing up content in study sessions enhance the effectiveness of studying. So don’t always study in the same cubicle or space and don’t focus on a single subject on a single day. The story also notes that research supports the value of some conventional recommendations as well, such as the value of taking breaks and self-testing.
In case you’re wondering about the fate of the Ultimate Legal Blog Comment thread, it seems that it is now at 1,032 comments and is still going. Fraud!!!
UPDATE: I have amended the post, as it seems that my earlier conclusion that the thread had been shut down by the software was incorrect.
As Orin wisely notes in the immediately preceding post, the typical law review article first footnote disclaimer “all errors are the author’s alone” provides no useful information to the reader. Below are some alternatives which I have used:
“All errors are society’s fault.” 29 Hamline L. Rev. 520.
“Any errors are the fault of no-one in particular; rather, society itself is to blame.” 68 Alb. L. Rev. 305.
“All errors are the authors’ sole responsibility, but persons aggrieved by any such errors are encouraged to sue the companies which manufactured our computers.” 34 Conn. L. Rev. 157.
“Any errors in this article are the fault of society, and cannot be blamed on an individual.” 18 St. Louis U. Pub. L. Rev. 99.
“Errors are entirely the responsibility of sinister unknown forces, not the authors.” 30 Conn. L. Rev. 59.
Feel free to use any of these, provided of course that you include a citation to the original source. :)
Orin’s post may also be considered an oblique foreshadowing of the 2014 bestselling book: Barack Obama, My Autobiography, Part III: The Four Presidential Years, with the first footnote stating, “All my errors were because I did not listen to Cass Sunstein.”
It is common in the author footnote of law review articles — you know, the footnote that follows the author’s name that tells you who the author is — to thank people who have read drafts of the articles and offered comments to help improve it. It is also common to follow that expression of gratitude with a remark that any errors in the article are responsibility of the author rather than the people who helped with it. Here are a few examples of the latter from recent articles, found by running a search for “thank! /p error! /s mine & da(2009)” in Westlaw’s popular journals and law reviews database:
All errors are mine and mine alone.
Any errors contained herein are mine.
All errors are mine.
All errors, of course, remain mine.
All errors contained herein are mine and mine alone.
All errors and conclusions are mine.
As always, any errors or oversights are mine alone.
Any errors that remain in the paper are mine.
The sentiment of the “all errors are mine” comment is supposed to be a generous one. You wouldn’t want anyone who just read the paper and offered some comments — or perhaps who helped do some research for it, such as a research assistant — to be blamed for errors in the paper.
At the same time, am I right that the “all errors are mine” comment is pretty useless? If a paper has an error in it, I put the responsibility for that on the author. If it’s a Bluebooking error, I might put the responsibility on the editors of the journal who were in charge of Bluebooking. But it would never occur to me to blame a person who read an article and offered comments for any errors found in the paper. Comments are just comments. They’re food for thought that the author can accept or reject, not a mandate to adopt the argument that the commenter suggests. The author is the person with her name on the front page: No one needs to be reminded that the author is ultimately responsible for the contents of what follows.
Assuming others see it the same way, can we all agree to retire the “all errors are my own” line? I realize that it isn’t the most pressing problem facing America right now. But it would be very easy to fix, and I don’t think anyone would miss it.
From the concurring opinion of four Justice in Ex Parte Milligan (1866), arguing that Congress has the power to establish domestic military tribunals for certain crimes during wartime:
We have no apprehension that this power, under our American system of government, in which all official authority is derived from the people, and exercised under direct responsibility to the people, is more likely to be abused than the power to regulate commerce, or the power to borrow money.
A few weeks ago, Israeli newspapers reported that an Arab man had been convicted of “rape by deception” after having intercourse with a Jewish woman while pretending to be a Jew.
Various blogs ran with the story. The more sober blogs noted that the crime of rape by deception was established as a crime in Israel in a context having nothing to do with inter-ethnic/religious sex, and various law professors noted the interesting hypotheticals that could arise under this crime.
The more hysterical anti-Israel blogs (do I even need to mention Juan Cole?), by contrast, found that the case reflected a deep illness in Israeli society. For example, Andrew Sullivan:
But it’s the visceral emotional core of this that is so offensive. It’s about racism, religion and the risk of miscegenation. It’s about the deep disgust of some Israeli Jews toward Arabs, upheld by the courts. It’s a variant of the racial sexual panics of the Jim Crow South.
Gideon Levy, an Israeli whose vitriol for his own country puts Sullivan to shame, added:
It was no coincidence that this verdict attracted the attention of foreign correspondents in Israel, temporary visitors who see every blemish. Yes, in German or Afrikaans this disgraceful verdict would have sounded much worse.
It turns out, however, that the victim actually accused the perpetrator of “simple” violent, forcible rape, and the charge of “rape by deception” was a plea bargain (original Hebrew, but here’s an English translation) agreed to by the defendant to avoid trial on the real charge, and agreed to by the prosecutor because the victim, a past victim of significant sexual violence, would have been traumatized by pursuing the case.
We sometimes see a similar dynamic in the U.S., where, say, a 22 year old is convicted of statutory rape of a 17 year old. This seems absurd, an abuse of prosecutorial discretion, until you learn that the 22 year old was accused of a forcible rape, and the statutory rape charge was a plea bargain.
I would severely admonish Sullivan, Levy and others for leaping to conclusions based on a single, unverified and uninvestigated news story, but I’m not at all certain that I never do the same thing. (Even worse are the various news outlets that reported and embellished the original story (e.g.) without investigating the facts.) However, I do try to post corrections and retractions when I turn out to have made inferences that turn out to be mistaken. We’ll see if Sullivan, et al. do the same. Put it this way: if you read a blog that gave this story an anti-Israel spin and you don’t see a correction in the next day or two, you can cross it off your credibility list.
H/T: Michael Davis and Steven Lubet.
“Say goodbye to Mr. Chips with his tattered tweed jacket; today’s senior professors can afford Marc Jacobs.” Andrew Hacker and Claudia Dreifus, Higher Education? How Colleges Are Wasting Our Money and Failing Our Kids — And What We Can Do About It.
I share many of the concerns expressed in Christopher Shea’s Sunday NYT book review essay, The End of Tenure. About the higher education pricing bubble, the collapse of the university as a vehicle for teaching writing and thinking, about the intellectual collapse of the humanities, etc.
I also share the concerns about tenure as an economic construct of lifetime sinecure. That said, and one of these days I’ll blog about it for real, I think deeply that conservative and libertarian professors who downplay the protection that tenure offers for unpopular political opinion ... umm. I think that the dismantling of tenure would have a rippling cascade of very bad unintended consequences for diversity of political opinion, even such as it is, in the university. But I sidetrack myself and do intend to leave that for another time.
Shea mentions, in passing, the above-quoted aside in the book under review. Now let me say that I didn’t know who or what Marc Jacobs is, until I went to the link above, but I did recall it somewhere. And behold, in my closet, a suit that dates back to the 1980s and my days of law practice, not teaching, but almost certainly not bought at retail, though it predates ebay, a suit by one Marc Jacobs. Out of style, certainly, crossed garters and all, but a rather handsome suit.
(ps. I sound too defensive there. Meaning, I think that professors, including me, would do well to dress up more than we do for classes. I don’t think the problem of professors, including extremely well compensated ones at super elite schools, is so much one of Marc Jacobs so much as it is Tom Wolfe’s complaints about superannuated middle aged male professors dressing as though undergraduates or teenagers or five year olds. Cf. Althouse on the topic of men in shorts. I include myself as one of the culprits. My students would be very pleased to think that I took them seriously enough to dress up in a Marc Jacobs suit for class, and even more if they thought I had expended real funds to buy it full price, not on ebay, as a mark of respect for them. Would it persuade them to read any more thoroughly for class or do less texting and web surfing? That, I do not know.)
Ross Douthat pens another excellent column in yesterday’s New York Times. He observes that “obsessing about the paranoia of the masses is often a way for American elites to gloss over their own, entirely nonsymbolic failures.” For example, “Today, establishment liberals would much rather fret about the insanity of the Republican base than reckon with the unpopularity of Barack Obama’s domestic program.”
For a good example, see this recent episode of Bloggingheads.tv, featuring Michelle Goldberg (The Daily Beast) and Sally Steenland (Center for American Progress) talking each other into ever-higher levels of paranoia against the American people, based on gross misinterpretations of the Tea Party movement.
Behold, the personal drone, controlled by Ipad, Itouch, Iphone, available on pre-order for later this year from Amazon.
The Parrot Helicopter Drone
Due to the press of a deadline for something else, I am not able to comment as fully as this all deserves, but I wanted to flag this morning’s editorial in the Washington Post, essentially defending and, in some ways, extending the Obama administration’s position on targeted killing, whether using drones or human teams, including American citizens under certain circumstances.
[DOS Legal Adviser Harold] Koh correctly asserted that the 2001 Authorization for the Use of Military Force, international law and the country’s inherent right to defend itself put it on solid legal footing for such attacks, including those outside traditional battlefields ... In his [March ASIL 2010] speech, Mr. Koh did not address whether U.S. citizens could be the targets of these strikes.
The American Civil Liberties Union took up Mr. [Anwar] Aulaqi’s cause last week, arguing that it would be unconstitutional for the government to carry out such a strike against an American, especially one located outside a recognized war zone.
U.S. citizens who take up arms against the country are enemy combatants and are indistinguishable on the battlefield from other belligerents. The political, legal and moral calculus of addressing the threat posed by an American enemy combatant such as Mr. Aulaqi changes when he is located outside a recognized war zone. The discussion should be — and we trust would be — dramatically different if he were residing in an allied country willing to use lawful means to capture and turn him over.
But when a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance. Mr. Koh said in his speech that this practice is already followed, even in cases involving non-citizens.
I agree with the fundamentals of the editorial; so does Ben Wittes, commenting at the new — and I suspect soon to be indispensable — national security blog, Lawfare. Not everyone does, to be sure; over at Opinio Juris, my co-blogger Kevin Jon Heller argues that, at least outside of a recognized war zone, an American is entitled to adversarial judicial process, and adds:
We would never allow a state to execute an American citizen simply because the Governor has decided that he was guilty of capital murder (or, worse, that he intended to commit capital murder at some unspecified point in the future); such an execution would be a paradigmatic violation of due process. So how can anyone argue in good faith that due process permits the targeted killing regime adopted by the Obama administration?
There is, of course, an easy and fair solution to this problem: require the government to obtain judicial authorization for a targeted killing by proving, in an adversarial hearing, that the American citizen has committed a capital crime. If the government has reason to believe that notifying the target of his status will cause him to disappear, it can appoint counsel — perhaps the ACLU or the CCR? — to represent him in a secret proceeding.
It’s an interesting scenario — CCR Michael Ratner representing a gone-missing-in-Yemen Aulaqi, getting a chance to review the government’s secret evidence, being able to review the secret methods of secret evidence collection in a secret proceeding, not only the contents of which presumably need to be kept secret but the very fact of the proceeding as well? I wonder what the internal reaction to this scenario would be inside Koh’s shop at the State Department, let alone at DOJ, DOD, NSC, DNI, or CIA. But now a couple of final comments which go to issues that haven’t been so much discussed.
First, if one reads the ACLU-CCR filing as well as the Washington Post opinion piece by the two advocacy groups which has also been discussed at Lawfare and Opinio Juris, it is hard not to notice that the underlying argument is only secondarily about an American citizen being targeted — and primarily about the idea that an armed conflict in a legal sense is necessarily geographically bounded, limited to particular battlefields and acknowledged “theatres of conflict.”
On the citizenship point, one understands the problem — the progressive left of which these groups are a part tend to put no weight on citizenship much of the time, treating it as a morally accidental and therefore morally suspect category — except when it comes time when it can be invoked to offer protection. (One might regard this as a theory of citizenship premised on the view that it promises only goodies, and is merely a mechanism for internalizing benefits and externalizing costs. As with most situations of continuous moral hazard, such a conception can’t really last.) At the end of the day, the advocacy groups see the citizenship issue merely as a strategic argument for protecting a group (Americans) that has no actual special moral claim. And so, whatever the argument over targeted killing are at any given moment to advance the cause of prohibiting them, the advocacy work won’t be done until it also addresses the presumptive human rights of non-Americans equally. Citizenship is merely strategic.
Second, going to the geographic definition of war as a legal concept. This idea that armed conflict as a matter of its legal conception is geographically limited in this way has gained currency primarily from the writings of the International Committee of the Red Cross’s Nils Melzer, who so argued in an important book, Targeted Killing in International Law. And also Notre Dame law professor Mary Ellen O’Connell, who has argued this proposition (as well as an associated claim that all participation by CIA personnel in the use of force is an international crime). I cannot say that these claims — although heroically urged by the advocacy groups and their academic allies — have a basis in the law of war as the US (or really, leading war-fighting states) has traditionally understood it. Certainly the State Department, under Harold Koh, no less, does not even entertain it. And even military lawyers who are very far from defending the Bush administration’s war on terror do not endorse the “geographical” limitation. (I have a complicated legal view of all this, related to self-defense and armed conflict, but not one that really matters for this purpose.)
Rather, the customary view of the US — and the traditional view of war-fighting states — has always been that the fight can lawfully go wherever the participants go. It goes where they go. “Battlefield” and “theatre of conflict” are not legal terms in the treaty law of war, not as limitations on the armed conflict itself. The law of war accepts as a practical reality that the armed conflict is where hostilities happen to take place, which means, of course, that the armed conflict is a reflection of hostilities and hostilities can be undertaken as a matter of jus in bello where the participants are. The reason for this traditional rule is obvious — if the armed conflict is arbitrarily limited in this way, then it invites combatants to use territory outside of the “armed conflict” as a haven. Under some circumstances, for diplomatic or other political reasons, a state might choose not to attack even though participants are taking haven, but the reason is not a matter of the law of war jus in bello.
The ACLU-CCR view acknowledges (at this point in its advocacy campaign, anyway) that a US citizen might be lawfully targeted — not to put too fine a point on it, and a note, per Orin’s earlier post, to judicial clerks — without the permission of Proconsul Kennedy, provided that he be on an “actual” battlefield as the ACLU legally defines it in its own way. That being the ACLU’s view for the nonce, then the geographical distinction is crucial as a matter of law. Within it, the US citizen can be treated as a combatant like any other; outside of it, then in the ACLU and CCR’s view, constitutional rights follow the citizen.
It is important to understand, then, that the ACLU and CCR’s advocacy position is not limited at all to US citizens — it is to impede targeted killing by requiring, among other things, the permission of a Federal judge at a minimum, including for non-US citizens. Since it seems, as a matter of political advocacy at least today, a bit of a stretch even for the ACLU or CCR to try and argue that an American shooting at US soldiers in Afghanistan is owed a judicial hearing, the crucial premise is to separate out those “active” war zones as a matter of law from places where constitutional due process meted out by a federal judge obtains.
The citizenship issue is best understood, then, as a stalking horse for a larger advocacy strategy in which, in the case of US citizens, constitutional rights follow US citizens even beyond territorial borders — a questionable proposition, in my view, if that is supposed to mean “all” or even “all important” ones. (There are many reasons why territory matters in the existence of constitutional rights — the actual exercise of actual police powers over the national territory, versus Yemen or Somalia, for one thing; it is partly, but not just a formal concept about sovereign territory. The Post editorial dealt with that correctly, in my view.) And in the case of non-citizens, outside of what the ACLU defines as the legal armed conflict zone, full human rights law applies on the ACLU-CCR, to render the targeted killing an extrajudicial execution; likewise, in my view, a questionable proposition. But in the discussion of the current ACLU lawsuit, I think the fundamental premise, and the most dubious one as a matter of law — geographical limits on the legal state of armed conflict — has been somewhat passed over as people have argued instead about citizenship.
Third observation — why the assumption that in everything, including crucial issues of national security abroad, there is always a role for the Federal judiciary? The Washington Post editorial emphasized, correctly, in my view that indeed a US citizen was deserving of greater scrutiny in deciding whether or not to target; I deliberately use “scrutiny” as a non-legal term rather than “due process.” The Post was seemingly careful not to suggest that this scrutiny should be that of a judicial process or Federal judge. Rather, the Post quite correctly, to my mind, emphasized that this consideration should be built into the intelligence oversight process — some kind of mechanism to ensure that the fact of citizenship has been acknowledged and a heightened evaluation made.
The WP says that the bi-partisan intelligence committees should be informed — a matter with which I could not agree more, on this as well as other matters involving Congressional oversight of the intelligence community. But there is a special salience here. Because in these targeted killings and other intelligence actions, officials tasked to carry out these missions need to have assurance that they will not be scapegoated afterwards. They do not have it now. A crucial political mechanism is to ensure that the intelligence committees have been fully and completely informed — so that there can be no later deniability as to what Congressional leaders were informed in secret.
I would write that as an amendment — perhaps; I could also be persuaded putting anything in writing is merely an invitation to judicial intervention — into USC 50. This would be partly to make clear both that the process is vested in the political branches as a matter of national security, but that in the case of Americans abroad and possibility the subject of forcible actions by the actors in the “intelligence community,” the President shall, in the lawful exercise of his discretion, take into account that the person is American. But it would also be to say explicitly that nothing in the exercise of that discretion confers any substantive rights on any individual and that the judiciary has no power to review such exercise of Presidential discretion.
As various people have pointed out, the current ACLU lawsuit is not likely to go anywhere. From the advocacy point of view, that is not really the point. It is instead to keep create as much legal uncertainty as possible by raising the possibility that at some point down the road, perhaps some Federal judge will decide to entertain these possibilities, and hold some CIA official liable for something done years before — does any, these days, think that we are in a period of settled institutional views on liability? If anyone thinks that even a small amount of legal uncertainty for individual officers involved does not have consequences, they should think again. Leveraged legal uncertainty affects behavior.
Moreover, the US government, under any administration, is perennially unable to see the larger advocacy campaign — this as well as other ones. They are textbook examples, whether one agrees with the cause or not, of The Logic of Collective Action; they look to the ten year framework, and they understand something that seems to elude too many law and economics scholars, viz., the framing power of legitimacy. Hence the current formulation of the ACLU lawsuit — execution without trial of an American citizen abroad by his government. One might think that “execution without trial” tendentiously presumes the conclusion, but it has been faithfully picked up and repeated by numerous journalists and commenters as though it were the obvious starting point rather than a tendentious conclusion.
When I talk with government lawyers about this public advocacy issue, however, their response tends to be ... but Harold Koh already addressed this in his speech! It’s been settled, already! But if you are engaged in an advocacy campaign for the long run, Koh merely gave momentarily the wrong answer, and the task is to endlessly reframe until everyone has forgotten what he said and what’s left is, “execution without trial.”
Finally, the long march of advocacy groups through the institutions puts a greater importance on that least-impressive branch of government, the US Congress. It needs to get involved — to take up its responsibilities as one of the political branches to set the most basic terms of national security.
But for a sharply contrary view to all of this — a view that, when contrasted with this or with Harold Koh’s views, shows just how much these basic conceptions of national security are today ships passing in the night — read Kevin’s (several) posts at OJ as well as Ben’s comments at Lawfare to which Kevin is partly offering a reply.
Once virtually eliminated in the United States, bedbugs are back with a vengeance. Earlier this summer Environmental Protection Agency and Centers for Disease Control and Prevention reported the little pests had made an “alarming resurgence,” possibly due to increased resistance to available pesticides and a decline in local pest control programs. Some pesticides once used for bedbug control have been phased out from indoor use, if not altogether, and the blood-sucking insects have developed resistance to their replacements. Lifestyle changes also play a role in the bedbug rebound.
As the Washington Post reports some state and local officials are seeking EPA approval for indoor use of chemicals that retain their effectiveness against the pesky parasites. Ohio Governor Ted Strickland, for one, has sought approval for use of propoxur, a pesticide currently banned from residential use, but so far the EPA has said no. Without a safe and effective indoor pesticide to use, bedbug infestations are spreading. As the Columbus Dispatch reports, bedbugs are spreading to schools, fire departments, and group homes, among other places, and increasing burdens on charities that collect and sell used clothes and furniture. There are also increasing reports of health problems caused by ill-advised efforts to use available outdoor pesticides indoors.
Health officials in Ohio and several other states believe that the risks posed propoxur are outweighed by the severity of the bedbug problem. The EPA disagrees. The EPA has the legal authority to preempt state preferences, and is often obliged to under existing statutes, but should it? Why should the EPA’s assessment of the relevant risk-risk trade-offs override those of the states?
There is an unquestionable case for federal intervention where activities in one state cause spillovers into another. Think of air pollution. But there’s no risk of such spillovers here. Indeed, if there’s any risk it operates in reverse — jurisdictions that fail to control bedbugs can increase the risk of infestation for their neighbors. By limiting local pest control options the EPA is protecting local jurisdictions from themselves, and some don’t want this protection.
If local communities wish to strike a different risk balance than the feds, the EPA should not stand in their way. It is one thing for the EPA to inform local choices, and help clarify the relevant health trade-offs, quite another to impose one set of health preferences on the nation as a whole. If EPA’s resistance to propoxur was motivated by spillover concerns, such as potential groundwater pollution that could cross state lines, the federal rule would make sense. But it is not and does not. This is precisely the sort of environmental problem which state and local preferences should control.
At Econlog, GMU economist Bryan Caplan and Princeton economist Bill Dickens have been debating the signaling model of education. See this post for Bryan’s most recent contribution and links to earlier parts of the debate. Bryan argues that a large part of our education spending (perhaps as much as 80%) is socially wasteful “signaling.” It is a kind of arms race where students try to get more education than than their rivals in order to signal their conscientiousness, conformity, and intelligence to potential employers. Crucially, however, much of the information learned is actually not needed for their careers; the real objective is just to rack up better-looking credentials than the Joneses in order to look good to employers.
Both sides make many good points. Overall, I am not persuaded by Bryan’s argument, at least not yet. The crucial objection, raised by Dickens, is that if most education expenditures are primarily about signaling, it should be possible to find other, cheaper ways to signal these desirable traits to employers. Bryan in fact concedes that “intelligence is fairly easy to observe (even in a regime where IQ tests are only semi-legal).” For example, applicants can submit their standardized test scores even if employers don’t require them to do so. Intelligence can also be signaled by getting a high grade in one or a few difficult courses at the high school or college level. You don’t really need four years of college grades. So the debate really turns on the extent to which it’s possible to find easier and cheaper ways to signal conscientiousness and conformity. Here, Bryan argues that there is an adverse selection problem:
[C]onscientiousness and conformity are often hard to spot — especially when people have a strong incentive to fake them. Even worse, low educational attainment relative to IQ is a strong signal of low conscientiousness and conformity. So when employers interview a smart person with little education, they infer that the person is well below-average in other productive traits.
As Bryan sees it, a cheaper or quicker method of signaling (e.g. — a college that takes only one or two years to complete) will tend to attract noncomformists and slackers, the types of people whom most employers seek to avoid. As a result, they will shun graduates of such institutions. This key part of Bryan’s argument is not entirely persuasive. For one thing, the cheaper or quicker method will not attract a disproportionate number of slackers if it is hard to pass. Consider, for instance, a college that will give you a degree in only one year, but requires you to pass a series of extremely difficult courses that are very strictly graded. If higher education is primarily about signaling and the actual content of courses doesn’t matter very much, that type of program will attract hardworking, capable people eager to get into the work world faster and at lower cost. It should spread quickly. Indeed, employers might even start to look askance at the slackers who spend four years hanging out and socializing at conventional colleges.
A second relevant consideration is that conscientiousness and conformity is better signaled by good work at boring and unpleasant tasks than at relatively interesting ones. If you do the latter well, it could just be because you enjoyed them, not because you are dedicated and trustworthy. In most four year colleges, students have considerable choice as to which courses to take, and can usually avoid those they find boring or off-putting. By contrast, many blue collar and service jobs have extremely boring and unpleasant elements that are hard for workers to avoid. If your goal is to signal conscientiousness and conformity, a year of good performance at McDonald’s is probably a better signal than a year of academic success at most colleges. And unlike college, McDonald’s doesn’t charge tuition and pays you a salary (even if a small one).
When I was in high school, I did a lot of babysitting and lawn work. These jobs were generally boring and repetitive, and I often hated them. Yet, for the most part, I did fairly well. My effective performance of these tasks was a much better signal of conscientiousness and dedication than my work in various academic classes, especially the ones I took in college where I had a free hand in picking most of my courses. Indeed, what could be a better signal of conscientiousness and conformity than the fact that people were willing to entrust their children to me, sometimes for many hours at a time?
Yet few if any white collar employers cared about this part of my record. Had I tried to get a job based on a combination of my standardized test scores (signaling intelligence) and glowing recommendations from the people I did babysitting and lawn work for (signaling conscientiousness and conformity), I probably wouldn’t have done very well.
I suspect that my experience was not atypical. Perhaps most employers are simply too stupid or too tradition-minded to hire workers based on these credentials alone. But, as economic history shows, the first employer to recognize and correct a major inefficiency in hiring labor is likely to get a huge competitive advantage. Over time his rivals will have strong incentives to copy his innovations.
In sum, I think that Bryan overstates the extent to which signaling drives education expenditures. Like Dickens, I conjecture that successful completion of college courses often improves people’s qualifications even if the specific knowledge they learn has very limited market value in itself. For example, it could do so by improving the students’ reasoning ability, writing ability, or organizational skills. Bryan doesn’t deny this completely, but his argument can only work if such effects are very small relative to the impact of signaling. At the same time, I agree with him that the education system has numerous inefficiencies, many (though by no means all) of them caused by government subsidies and regulation. I’m just skeptical that the signaling arms race is nearly as big a part of the problem as he contends.
It’s Labor Day weekend. I’m not ready for summer to be over, but it’s not like I have much choice in the matter. Death Cab for Cutie’s “Summer Skin” seems appropriate. Here’s the second verse:
I don’t recall a single care
Just greenery and humid air
Then Labor Day came and went
And we shed what was left of our summer skin
Here are the full lyrics, the song, a fan made video. and a live version.
The Jerusalem District Labor Court last week rejected a temporary appeal by a Muslim teacher at a private Christian school to allow her to continue working after she decided to wear a hijab in class after teaching without one for 27 years.
Essentially, the court rule that as a private Christian school that sought to maintain a strict equality between its Muslim and Christian students, the school was entitled to enforce its dress code even though it infringed on the teacher’s statutory religious freedom rights.
The category of “Best Rosh Hashanah Video on YouTube” is probably not that competitive, but here’s a favorite of mine. The Hebrew is actually PG-13 or so, and not especially profound. But I love how the “author” worked with a popular and very catchy Muppets song.
Shanah Tovah, for the uninitiated, means “Happy New Year.” Rosh Hashanah, the Jewish New Year, starts Wednesday night.
A few days ago I linked to a couple of articles on VAT tax proposals that have been circulating, including an attack by Daniel Mitchell at the Cato site, and a short blog post from Greg Mankiw explaining why, as a replacement for the rest of the tax system, he thought it was a better tax mechanism, as well as being the functional equivalent of certain versions of the flat tax.
I received several interesting emails from tax professors in response. One pointed to a paper very much on the point of the post by Brian D. Galle, Hidden Taxes, upcoming in Washington University Law Journal; the SSRN abstract says:
The idea of hidden taxes is as old as John Stuart Mill, but convincing evidence of their existence is new. In this Article, I survey and critique recent studies that claim to show that there are some taxes that can go unnoticed by those who pay them. I also develop the array of unanswered theoretical questions and policy implications that potentially follow from the studies’ results.
Probably the central question for hidden taxes is whether they might enable government to raise revenue without also distorting the economy. If so, I argue, they have the potential to radically refashion the architecture of redistributive government. But, as I also show, whether that is true turns on the cognitive mechanisms that might permit taxes to go unnoticed. For example, if hidden taxes are caused not by rational ignorance but by cognitive shortcomings, then it is likely that the burden of a hidden tax will be borne disproportionately by poorer taxpayers, and vice-versa. Thus, I attempt to integrate with the tax literature some recent developments in our understanding of bounded rationality in consumers more generally.
But I also received an email from a friend and colleague on my own Washington College of Law faculty, tax professor Benjamin Leff. (Ben is a junior — ie, untenured — professor, and he had some hesitation about putting out views on a blog. I assured him that people understand that this is informal, first draft discussion, not a final academic or scholarly product, and moreover, it is a space to think about the political ramifications of various policy positions, in ways that one might not think appropriate for a scholarly paper.) I’m delighted to say that Ben is letting me put up his remarks as an embedded guest post, and my thanks to him for taking this up:
Your post on why the “hiddeness” of a VAT tax is “a bug, not a feature” was very interesting. Basically, if I understand correctly, you’re dipping into an old argument about the relevance of tax “salience.” The argument you’re making is that a less salient tax (a more “hidden” one) creates a public choice problem, because it enables policy-makers to tax more with less protest from the taxed. The implication is that if the people fully felt the sting of the taxes they pay, they would do the hard work of cutting government spending down to optimal levels, rather than overspending as they currently do (if they do). Thus, if a VAT were passed, and if it had the benefit of being less salient than current taxes, it would permit additional spending by the government.
I think the most common answer given to your argument currently is that the discovery of limitless deficit spending put an end to plausibility of the “starve the beast” argument you’re making. In other words, the link between taxing, voting, and spending that you propose is broken by the option of neither taxing nor reducing expenditures. That seems convincing to me, but I have no special knowledge about it. In recent memory, tax cutting has not generally been accompanied by reduced government spending, but obviously that doesn’t really prove anything. At root, it’s an empirical question: if a VAT were introduced, would the government use the revenue generated to (1) reduce non-VAT federal taxes (keeping overall revenue neutral); (2) reduce the deficit; or (3) increase federal spending. That question may or may not have anything to do with how “hidden” a VAT is. It may have more to do with the public debate that supports the imposition of a VAT, the intentions of Congress in enacting it, and the continuing commitment in Congress to whatever choices made with regards to spending and deficits.
But, more important than whether the argument is convincing or not, I think, is some context for it. You describe “hiddeness” as a feature that makes a VAT “particularly special” among tax mechanisms, but that’s not really true. We currently have a broad range of “salience” in the federal taxes that are imposed. What is especially problematic from a public choice perspective in the current system is that the “hidden” taxes appear to be disproportionately borne by wage earners. Therefore, as wealth increases (generally), one’s sense of being taxed increases more sharply than one’s actual tax burden. That is, (again, generally) rich people think they’re more taxed than they are and working people think they’re less taxed than they are. That’s a distributional public choice problem, and I think it should be clear why a distributional public choice problem would do more damage to the political process than a general one.
The “hiddeness” of wage-earners’ taxes is generally caused by two phenomena. First, wage-earners pay flat payroll taxes (generally social security and medicare), which is 7.65 percent of their income right out of their paycheck. This largely invisible (as evidenced by the fact that some of your commenters said that the bottom half of the country pays no federal tax, when in fact the vast majority of that bottom half pay a relatively steep flat tax on their very first dollar earned). But it’s not completely invisible, because at least it shows up on their paychecks and decreases their stated wage. But payroll taxes are even more invisible than that because employers are paying an additional 7.65% on their employee’s wages that doesn’t even get reported to them. There may be some argument about what the incidence of that tax is, but the consensus is that it falls at least substantially on labor. In other words, every employee in the country pays a flat 15.3% tax on their first dollar earned. Commentators often ignore it or are confused about it (especially conservative commentators who want to claim, falsely, that working people don’t pay federal taxes). Oops, I forgot to mention that it’s not a flat tax. It’s a regressive tax, because (at least for the social security component) once you earn above a ceiling ($106,800) the tax disappears.
The second factor that “hides” the taxes paid by working people is withholding. Because of withholding, wage earners often experience taxes as a refund, rather than an expense. When it was introduced, the biggest argument against withholding was exactly the argument you are making — that it’s a public choice problem to hide taxes. Many would argue that the biggest reason why our tax system can work at all is because of the withholding system. So, if you’re afraid of hidden taxes, the game has already been played (at least for the vast majority of Americans who are employees). Then the question if you’re still committed to “visible” taxes is whether a VAT is more or less hidden that withheld wages.
Thus, there’s currently a distributional problem with the federal tax system, because high-income taxpayers generally pay visible taxes, while low/middle-income taxpayers generally pay invisible ones. Because a VAT taxes only consumption, and exempts income from capital, it is yet another “hidden” tax primarily on wage earners, exacerbating the distributional salience problem that already exists in our current system. But if you think that the point of an income tax is to roughly measure “ability to pay” (as I and other liberals generally do), then you will be unhappy with a VAT not primarily because it is more or less “hidden” than current federal taxes, but because it actually increases the tax burden on wage earners while decreasing the burden on the wealthy. My view is that because a VAT excludes from tax income from investments, an income tax does a better job of tracking “ability to pay,” which is the cornerstone of an equitable tax system. But that discussion is well beyond the scope of your post.
All that to one side, though, what I think makes your post interesting to think about has to be the sharpness of the opposition of the “public choice” argument to the “economic” one, because your readers may be drawn to both. The way you cast it, the public choice argument seems infuriating to economists (or anyone who cares at all about economics), as you point out, because (generally) everything that makes a tax “efficient” also makes it less visible. And so, under the public choice argument – assuming that you thought that government spending is bad – the best tax would be the least efficient one. The more a tax changed market choices, the more it would “sting” (by thwarting one’s desires) and therefore, the more likely it would be to encourage the populace to reduce taxes. That should be true of spending programs too, by the way. If you’re opposed to government spending, then the worst possible thing is efficient government spending that really makes people’s lives better. You should be promoting wasteful spending that messes people up as much as possible. That is to say, if you’re looking for a revolution, make the current system work as badly as possible.
But on reflection, the economic argument and the public choice argument are not actually so opposed. Because, according to the economic argument (at least the welfarist economic argument), the government should do what it is most efficient for it to do to provide for the greatest happiness. So, if many things are public goods, for example, which are likely to be undersupplied by the market, then as an economist, you should not be for reduced government spending, but for spending sufficient to supply those public goods. You should be for exactly the right amount of government spending. It’s not a foregone conclusion, then, that we have excessive government spending, though we may be spending on the wrong things. Then you have a much more nuanced “salience” question. Taxes should be exactly “hidden” enough to permit people to make the right choices about how much government spending there ought to be. You have a problem of baseline, though. What is “the right” amount of hiddeness?
(Corrected, and thanks to commenter for pointing it out, to shift the last paragraph from Galle’s abstract from Ben’s discussion, where it wound up accidentally, back to Galle’s abstract.)
Althouse notes the following, in a discussion of Megan McArdle criticizing a book while only half-way through it:
A rule against criticizing books you haven’t finished would overprotect authors, since you shouldn’t finish a bad book, and it would also underprotect authors, since the critics wouldn’t disclose that they hadn’t read the whole thing.
I think Althouse is right; she goes on to talk about the difference between blogging and a formal book review, and I think that’s right as well — although there are blogs and there are blogs when it comes to books, given the general collapse of the formal book review as a publication in newspapers. Blogs are a large part of the critical review commentary still left standing. And yet blogs, including my own blog posts, have this troubling tendency to switch back and forth at will (and too often at the intellectually laziest point, I have to say in my own case) from a certain formal rigor into deliberately informal, and suddenly indistinct and chatty mode that somehow never quite gets to the deep insight, or more precisely, the argument for the deep insight.
That’s about criticizing, though. What about just plain reading? The older I get, the fewer books I finish, and the more I read highly selectively — fast forward set on high. This is either the getting of wisdom — or the gradual shutting down of (what to call it?) one’s social and engagement functions as one gets closer to in-turnedness of dying, the inability of the aging to take in new stuff because we are too occupied trying to process the accumulation of the previous decades.
But I am also reminded of that book from a couple of years ago, which I did read cover to cover, albeit quickly, by the literature professor in Paris who admitted that he hadn’t actually read nearly anything, including nearly everything in the canon for his classes. How to Talk About Books You Haven’t Read. Pierre Bayard. He offered not just a tuquoque defense that no else actually read the things they claimed to read, either — but a ringing defense of not reading for its own sake, while still being more than willing to discuss it. Including the argument that, at least in literature, since it was the argument, the criticism, the interpretation on its own that mattered, the actual text got in the way and also offered contra but frankly irrelevant bits. The text at issue would only muck up the purity of the critical argument, I think that was Bayard’s point.
