The Volokh Conspiracy

So suggests John Avalon, in a Daily Beast column “The Secret History of the Birthers.” He traces birtherism to a Texas woman named Linda Starr, who was a Hillary Clinton delegate to the 2008 Texas state Democratic Convention. Avalon writes that Starr “was also cited as a key source for CBS’ discredited election year investigation into George W. Bush’s National Guard records that led to Dan Rather’s replacement after 24 years as the evening news anchor.” Avalon links to the Thornburgh/Boccardi report, which was conducted at the request of CBS News to examine CBS’s conduct in producing the infamous 60 Minutes story about Bush supposedly evading National Guard service and then having the records scrubbed. As the report details, Starr made the claim about Bush in an article on her website, three days before the 2000 presidential election. She also played a key role in serving as an intermediary for CBS to obtain the document which purported to be National Guard memo regarding the removal of NG records about Bush. The Thornburgh/Boccardi report does not claim that Ms. Starr knew that the document  was a clumsy fabrication.

At the very least, however, the fiasco of the Bush National Guard story shows that Ms. Starr did not provide her Internet readers, or CBS, with a story which could withstand factual scrutiny. Accordingly, if Avalon’s reporting is correct, he has provided yet another reason for people to disbelieve the (already-implausible) assertion that President Obama was not born in the United States. In contrast to the way the mainstream media initially handled the 2004 Bush National Guard story, the mainstream media did a better job in 2008 by not embracing a story about a presidential candidate which could not be supported by solid, verifiable facts.

This is a very fast note on the question of European political economy raised in my last post.  It’s not intended to be exhaustive, and yes, it is pretty conclusory.  My impression over many years as an international law professor who bridges the public and private law divides; not a specialist in EU law but someone watching closely from the outside ...  the movement toward ever closer union in the EU seemed to me always to have a double drive.

On the one hand, the Erasmians — the true believers, the ones who thought you just marched toward political union because it was, well, what civilized people did.  These folks included many of the non-economist professors, the law professors particularly.  I have long been struck by the astonishing levels of intellectual and ideological production — prodigious, really — by EU professors well-funded by the EU itself to come up with theories about why the EU was going to be such a dandy thing.  I long thought of it as a perfect instance of creating your own demand.

The result of all this prodigious activity was the marvelous elaboration of a vast edifice of constitutional structure, most of it aimed at saying that the EU could not go wrong as a project of union, if it just kept at it.  Go onto SSRN and see how much stuff continues to be cranked out in the category of constitutional theory about the EU itself.  What an observer on the outside might have thought was a pretty historically contingent project is made to look like the Unfolding of History as It Must Unfold.

I mean, of course it might work out that way.  But if so, it hardly seems like it on the basis of the theories offered by academics at institutions sponsored by the edifice presumably under study.  (This phenomenon of funders creating their own demand for ideological product is, of course, just as ordinary in the United States.)  Anyway, these are the Erasmian true believers.  They seem to be mostly law professors.

On the other side are the realists and skeptics who might, slightly paradoxically, still favor ever closer union — but for the opposite reason.  Many of them are economists.  They see the whole thing as a bicycle about to fall over.  It has to get up to speed to keep going.  Far from “naturally” unfolding according to a special Natural Law that God has especially enacted for the benefit of the EU, on the contrary, the bike is wobbly, unnatural, lacking in balance, and only forward momentum can save it.  The present moment is the worst, because it represents precisely the gap between currency union and fiscal/political union.

These two are not mutually exclusive positions, of course.  One can have some of both.  It’s simply my perception of the divide, as someone who reads the literature from each.  The easy money years underwrote the feeling that maybe it was possible to have monetary union without fiscal/political union, but the artificial supports have dropped away and everything is wobbling again.  The one thing I can predict with utter certainty as a law professor is that the EU will put up funding to produce yet a new iteration of constitutional theory to show how all this, too, will lead to ever closer union.  Look for the wave of papers over the next four years on SSRN.

My skepticism is about ideology, by the way — I am mostly an admirer of the EU and what it has done in many things, starting with the long term transformations in Spain, Portugal, and Greece, to start with, let alone the expansion eastwards.  But that does not lead me to any belief that it has worked out the deep internal contradictions in the political governance project, and less still any view that the EU points the way to some genuinely new kind of governance structure in human affairs.  It might, I suppose — I’m not ruling it out.  But let’s give it, say, a hundred years to see if it has staying power before we draft up too many theories of its historical inevitability.

In any case, how much does it matter? I’m not referring to myself — I mean simply that the Obama administration’s pooh-bahs seem to have written off Europe as the past, Asia is the future.  The irony is that it is precisely on account of striving so desperately, so mightily, to become a Western European democratic socialist state that the Obama administration feels no need any longer to look to Europe.  It has already priced-in internally anything of ideological value Europe might have to offer, on account of the transformations under way in the US.  We’ve now got — thanks to the decension of Bush and the inclension of Obama –anything of value Europe might offer in the way of values, so why pay attention to those losers?  What could Europe possibly teach President Obama about community, fraternite, welfare, socialism, social safety nets, unions, public sector employment, all the rest of the stuff in which Europe ideologically specializes?  This is President Obama, after all — on all of these things, O Europe, you should learn from him.  And from Rahm Emanuel.

Of course, the one missing piece of that puzzle is how it is that Europe went into decline, and whether that lesson for the US has been priced-in ....

We Atlanticists should all have paid greater attention to Raymond Aron.

In the New York Times, Adam Liptak has a Sidebar column on the remarkable story of Shon Hopwood. I have particular reasons to find the story compelling, as I’ve had the pleasure of working closely with Shon on briefs and I was clerking the Term that the Supreme Court decided Fellers. But it’s a really cool story either way: Sometimes a second chance makes all the difference. 

The WSJ’s ‘Heard on the Street’ has an interesting item today comparing California and Greece from the standpoint of the bond markets.  Bottom line is that California fares far better than Greece in investors’ minds.  It’s a question, of course, how much of that is attributable to how investors see the underlying economies of each place and, instead, how investors are pricing the sugar daddi, er, the US government and EU-Eurozone institutions that might be called upon to offer a bailout.  But in terms of spreads, take a look at this chart from the story:

Thus the article notes with respect to Greece’s dire situation:

Adoption of the euro, by removing the threat of currency fluctuations, encouraged yield-hungry investors to bid up Greek bonds. Leverage allowed Greece to run big current account deficits, despite low productivity growth. The result, once the credit bubble burst, is today’s crisis. There is no easy European fix.

Greece has two main options to restore competitiveness and narrow its current-account deficit: Withdraw from the euro and devalue, or win large and ongoing transfers from European states with surpluses like Germany.

Leaving the euro looks unpalatable. Bilateral transfers to Greece, even dressed up as loans, would be hard to sell to German voters. And such aid wouldn’t address Greece’s lack of competitiveness. Only grinding domestic deflation, with the risk of social unrest, or withdrawal from the euro could do that.

The imposition of EU “discipline” on Greece in return for transfers would represent creeping political union of an undesirable kind – one forced by Germany for fiscal reasons rather than one negotiated by member states. But Greece’s saving grace may be a default there would likely drag down Spain and Portugal. Such a risk will concentrate minds in Europe to find a solution, even if a bailout would not answer the question of the euro’s suitability for uncompetitive Mediterranean economies.

I’ll take up separately the question of California.  Likewise the question of political economy in the Eurozone — currency union without political or fiscal union?  But the article essentially thinks that California is saved not by a better internal structural economy, but instead because of its place deep in the heart of its guarantor.  California has better political hold-up.  It’s got better positioning to be able to force the US as a whole to internalize its difficulties, in ways (according to the article) that Greece will likely not be able to do with German voters.

My class in private equity and venture capital doesn’t know it yet, but I think I might have them read Harvard Law School’s John Coates’ new empirical paper on the effects of ownership on M&A, or at least some important sections of it.  I’ve just been through it and think it’s terrific, with robust implications for differences between private and public targets.  (Plus, in the context of my class, it’s a good follow-on the some material from Larry Ribstein’s new book The Rise of the Uncorporation.)  You can find the full abstract and the paper at SSRN, but the one-sentence description is:  The paper “shows in a variety of ways how important M&A for private targets is to the economy, how different private target M&A is from public target M&A, and how important law is in creating those differences.”

(My class will have lots and lots of time to read, as class has been canceled and school closed — here in DC, the university hasn’t been open since last Thursday!  So I assume that my students are virtuously all snuggled up with texts on private equity, reading aloud with furrowed brows and cups of hot cocoa in one hand and yellow highlighter in the other.)

From Ware v. South Texas Family Planning & Health Corp. (S.D. Tex. Jan. 26), a case in which a father sued a clinic for giving a “morning-after” contraceptive pill to his 14-year-old daughter without the parents’ permission:

Plaintiff contends that Defendants are a public nuisance because the “activity” that Defendants engage in interferes with a “parent’s right to guide his child in a moral fashion” and interferes with “the moral standards of the community.” Under Texas law, a public nuisance “is maintained by act, or by failure to perform a legal duty, intentionally causing or permitting a condition to exist which injures or endangers the public health, safety or welfare.” Neither in his complaint nor during the initial pretrial conference was Plaintiff’s counsel able to allege the factual basis on which Defendants’ activities could be said to constitute a public nuisance. In fact, Plaintiff’s counsel, when asked during the initial pretrial conference to explain his public nuisance claim, was unable to name the elements of a public nuisance....

Plaintiff bases his third cause of action, his parental rights claim, on the grounds that Defendants failed to obtain parental consent before allegedly providing the morning-after pill to Plaintiff’s daughter. Plaintiff offers no other factual basis for this claim. Further, Plaintiff provides no legal basis for this claim. Indeed, when Plaintiff’s counsel was asked at the initial pretrial conference to provide authority for this cause of action, he stated, “I thought it was so basic I didn’t bother to do research.” Plaintiff has thus failed to state a claim for which relief can be granted for each of the three causes of action asserted, pursuant to Federal Rule of Civil Procedure 12(b)(6).

Not good.

Here’s a draft of the new section on Writing an Abstract, to be published in the fourth edition of my Academic Legal Writing book. There’s still plenty of time to improve it, so I’d love to get feedback. (By the way, the abstracts I give as examples are my own, but I’d prefer to use someone else’s abstracts, especially if they are very effective. So if you have any recommendations for very good abstracts, please pass them along.)

An abstract is a short summary — one to three paragraphs — of an article. Some journals include an abstract at the start of the article, or put all the abstracts from an issue on the issue’s table of contents, or put the abstracts on the journal’s Web site. These journals will either require you to write the abstract, or will offer to write it for you. Reject their offer, and write the abstract yourself: It’s your article, and you’ll know better how to summarize it effectively.

But even if the journal doesn’t publish an abstract, you should write one anyway. Services such as the Social Science Research Network (see p. 265) maintain e-mail distribution lists through which hundreds or thousands subscribers get abstracts of forthcoming articles. These distribution lists are invaluable tools for you to get readers for your work.

Whether in a law review or on a distribution list, the abstract is an advertisement for your article. True, you don’t want money from your “customers” (the audience) — you want their time and attention. But their attention is scarce, and lots of authors are competing for it. You want readers to “buy” your article in one of two ways: 

1. by reading the article (or at least the Introduction) right away, or
2. by remembering it (even if just vaguely) for the future, so that when the underlying issue becomes important to them, they can find and read the article then.

And the audience for your advertisement is quite demanding. They’ve generally found the abstract just through a quick skim of an SSRN e-mail or a law review table of contents. (People who find the article through a citation or a Westlaw or Lexis search are probably more likely to skim the Introduction, which is immediately available to them, rather than starting with the abstract.) Readers of your abstract therefore aren’t at all sure the article will be of any value to them.

You need to quickly show them this value. You need to clearly and tersely tell the reader (1) what problem the article is trying to solve, and (2) what valuable original observations the article offers. Naturally, the abstract can’t go into much detail. But it has to at least give the reader a general idea of what the article contributes.

Here, for instance, is an adequate abstract, adequate because it quickly captures the essence of the value added by the article:

Continue reading ‘Writing an Abstract for a Law Review Article’ »

Paul Krugman writes:

The truth is that given the state of American politics, the way the Senate works is no longer consistent with a functioning government. Senators themselves should recognize this fact and push through changes in those rules, including eliminating or at least limiting the filibuster. This is something they could and should do, by majority vote, on the first day of the next Senate session.

Don’t hold your breath. As it is, Democrats don’t even seem able to score political points by highlighting their opponents’ obstructionism.

It should be a simple message (and it should have been the central message in Massachusetts): a vote for a Republican, no matter what you think of him as a person, is a vote for paralysis.

Actually, I think that this was the central Republican message in Massachusetts.

That’s the odd result of Haskell v. Brown, decided a month ago by Judge Charles Breyer of the Northern District of California. Judge Breyer (not to be confused with Justice Stephen Breyer, his brother) refused to preliminary enjoin the collection of cheek swab samples from arrestees, largely because he thought that the searches are likely consistent with the Fourth Amendment. But wait: The Ninth Circuit had held, in Friedman v. Boucher that such cheek swabs of pretrial detainees are generally unconstitutional. (We’re talking here about the taking of DNA just because someone is arrested or detained; if there’s probable cause to believe the DNA will reveal evidence of some crime — for instance, if there’s probable cause to think that this person is guilty of a rape, and the DNA is to be compared against DNA left at the scene of the rape — and a warrant based on probable cause, that’s clearly constitutional.)

Here’s the district judge’s explanation:

Plaintiffs will argue that so holding conflicts with the Ninth Circuit’s decision in Friedman. However, Friedman did not engage in a thorough totality of the circumstances test: it did not consider government interests beyond supervision, nor did it examine the extent of Friedman’s privacy interest. See 580 F.3d at 862–65 (Callahan, J., dissenting) (dissent, instead, conducted balancing analysis between individual’s privacy interests and government’s legitimate interest in identification). Though Friedman warns that “[n]either the Supreme Court nor our court has permitted general suspicionless, warrantless searches of pre-trial detainees for grounds other than institutional security or other legitimate penological interests,” the Court finds that doing so here — certainly at this stage of the litigation — is proper under the totality of the circumstances test required by Rise, Kincade and Kriesel [earlier cases upholding forced DNA swabs of people convicted of a crime].

But I don’t see how this can be right: Part III-C of Friedman expressly considered whether the search was justifiable under a general Fourth Amendment “reasonableness” analysis — the same analysis that is often described as a “totality of the circumstances” test — and held that it wasn’t justifiable. It also did consider “the extent of [the claimant’s] privacy interest,” holding that “We have long recognized that pre-trial detainees retain greater privacy interests, for the purposes of Fourth Amendment analysis, than do persons who are incarcerated pursuant to a valid conviction” (thus distinguishing Friedman’s claim — and by extension the plaintiffs’ claim in Haskell — from the Rise, Kincade, and Kriesel precedents). And it also considered, in the “special needs” discussion, the asserted “government interest asserted by Nevada in taking Friedman’s DNA was to help solve ‘cold cases,’” certainly a “government interest[] beyond supervision.”

Now perhaps the district judge thinks that Friedman’s analysis of this was too sketchy; and maybe he’s right. (I’m not sure what the right Fourth Amendment analysis should be here, either as a matter of Fourth Amendment first principles, or under the emerging Fourth Amendment “reasonableness” test.) But it seems pretty clear that Friedman is the most on-point precedent, and that under it the testing of arrestees’ DNA — especially for purposes that include solving crimes, and not just identifying this particular arrestee — is unconstitutional. Or am I missing something here?

Over at The Faculty Lounge, there are some pictures of sit-ins from the early 1960s.  Regarding a 1963 sit-in in Jackson, Mississippi, TFL writes: “By one account, members of the all-White Jackson police force stood guard outside, while several FBI agents (the guys in back wearing shades) ‘observed’ from inside. That White guy at the counter, that’s Tougaloo professor and community activist Hunter Gray (John R. Salter) who helped organize the Jackson sit-ins.  And that’s blood on his shirt.  All of the protesters had been covered in slop, and some were beaten with brass knuckles and broken bottles.”

The non-violent Civil Rights protesters allowed themselves to be beaten in public while the media watched; the images helped win sympathy for the Civil Rights Movement in the North, and proved to be crucial in developing the political will for the passage of the Civil Rights Act of 1964.

In a limited sense, the media’s presence provided some protection for the protesters; there was never a case in which a civil rights protester was murdered in front of media cameras. At night, when everyone had gone home, things were very different. As Salter later explained:

I was beaten and arrested many times and hospitalized twice. This happened to many, many people in the movement. No one knows what kind of massive racist retaliation would have been directed against grassroots black people had the black community not had a healthy measure of firearms within it.

When the campus of Tougaloo College was fired on by KKK-type racial night-riders, my home was shot up and a bullet missed my infant daughter by inches. We received no help from the Justice Department and we guarded our campus — faculty and students together — on that and subsequent occasions. We let this be known. The racist attacks slackened considerably. Night-riders are cowardly people — in any time and place — and they take advantage of fear and weakness.

Later, I worked for years in the Deep South as a full-time civil rights organizer. Like a martyred friend of mine, NAACP staffer Medgar W. Evers, I, too, was on many Klan death lists and I, too, traveled armed: a .38 special Smith and Wesson revolver and a 44/40 Winchester carbine.

The knowledge that I had these weapons and was willing to use them kept enemies at bay. Years later, in a changed Mississippi, this was confirmed by a former prominent leader of the White Knights of the KKK when we had an interesting dinner together at Jackson.

In the 1970s, I was Southside director of the large, privately-funded Chicago Commons Association. Our primary focus involved assisting minority people in developing sensible community organizations — vis-a-vis schools, city services, anti-crime.

We were opposed by white racist organizations (e.g., Nazi Party) and various youth gangs of many sorts. My staff and I received countless death threats, there were arson attacks on our offices, and, on one occasion, men with weapons came to my home and told my wife and children that they intended to kill me. (I happened to be at work.)

Again, I was glad I had many firearms and, again, we guarded our home and let this be known. We responded to hate calls on the telephone by telling the callers we were quite prepared for them.

For Salter, the right to own a handgun was apparently a crucial part of his ability to exercise his right to defend himself and his family, which was a sine qua non of his ability to stay alive in order to exercise his First Amendment rights to advocate for enforcement of the Fourteenth Amendment.

Yet in modern Chicago, decent law-abiding citizens are forbidden to own handguns. As I detailed in my amicus brief  in McDonald v. Chicago (pages 39–45), many people find that a handgun is best choice for family defense, especially in urban areas such as Chicago. As the history of the Civil Rights Movement demonstrates, the denial of the constitutional right to own a handgun could endanger other constitutional rights, particularly the rights of community organizers.

A pretty poor argument (see p. 6), it seems to me — the law applies to speech of a certain content, and is justified by a worry that the content of the speech will mislead people. 

I’ve argued that the ban is constitutionally permissible, because it fits within the knowingly-false-statements-of-fact exception to First Amendment protection. But it is definitely not content-neutral.

I saw this ad during the Super Bowl–sorry, I mean “The Big Game”–yesterday, and originally thought it was some sort of political issue ad. Although it is funny, in a creepy way, it is not clear to me what the ad agency and Audi are saying here about The Green Police (besides buy an Audi diesel).

There are more clips on YouTube of other Green Police spots, so this looks like the start of an ongoing campaign. I suspect the visceral reaction of many Americans will not be what Audi intended or desired, but maybe these folks are not the Audi market. Is Audi the new Volvo? How is Volvo doing these days anyway?

Last week’s National Journal poll of political bloggers asked for an estimate of House Democratic losses in the 2010 election. While the answers are reported in clusters of 10, the median estimate for the Left appears to about 20 seats. The median on the Right was in the mid-30s. I estimated 38, adding “Could be less if the congressional leadership and Obama correct their course, but they do not seem inclined to do so.”

Question 2 asked the Left if Democrats would benefit politically from another televised Q&A session by President Obama with House Republicans. Seventy-eight percent of the Left expected Democrats to benefit. Right-leaning bloggers were asked if Republicans would benefit, and 57 percent said yes. I was in the majority: “All Americans would benefit. All Republicans are Americans. Ergo, Republicans would benefit. The metric of success should not be partisan benefit, but rather national benefit.”

Last fall I was on a great panel at Stanford Law School on robotics and the law.  It had great people on it — Dan Siciliano, Paul Saffo, and Ryan Calo.  Great discussion; one of the things it brought home to me, as someone who came to law-and-robotics issues from laws of war questions, was how much those issues have cognates in other areas of emerging robotics, such as elder-care.  The panel discussion is up on video here:

Legal Challenges in an Age of Robotics, November 12, 2009.  One of the things I really liked about this panel was the way that Ryan Calo served as a very active moderator — he’s an expert in these issues himself, and so was able to lead the discussion, including the audience discussion.  The best parts are actually Dan Siciliano and Paul Saffo; I was a little unsure of how much the audience knew about the battlefield issues, and had too much wind-up.

(Ryan has also written very interesting stuff on privacy and technology.)

Thoughts on the game, the ads, or whatever.

NOTE TO SELF: If you are ever asked to sing the Star-Spangled Banner at the Superbowl (unlikely, I realize,but you never know for certain), do not — REPEAT, DO NOT — attempt to sing it a cappella. Remember Carrie Underwood’s gruesome, off-key performance at the 2010 SuperBowl, and resist the temptation to show off your magnificent singing voice and get yourself a backup band.

I realized, talking in office hours with a couple of my law students, that they did not really understand what is meant by the phrase “borrowing from our children” — as we often hear it raised or referenced these days in budget, deficit, and other policy debates.  These are bright students who have often taken some economics, but haven’t necessarily learned to think through common economic tropes in current arguments.  So it hadn’t really occurred to them to ask, what does it mean to “borrow from our children”?  The children who mostly don’t yet exist, and in any case don’t have any money from which to borrow.

As soon as it’s put that way, it is obvious that what we actually mean is, we will borrow today from people who do have money — and who are willing to forego consumption today, presumably in China and the rest of Asia — and our children will repay the principal and interest.  We have internalized the consumption (er, investment? –ed.) currently and externalized the repayment.  It might be more accurate to say that we have exercised an option with regards to the future — we are the holders and they the involuntary writers of an option.  But the fundamental public policy point is that in order to engage in this borrowing exercise today, even if we are going to “put” the repayment to our children, someone today has to be willing to give up consumption now and lend us those resources today.

To that end, David Sanger has a nice piece in the New York Times Week in Review, “The Debtor the World Still Bets On.” While we’re at it, Irwin Steltzer’s Weekly Standard essay, “Government Intervention Will Leave a Nasty Hangover.” 

And  finally Joshua Kurlantzick, in the Boston Globe, “Dazzled by Asia,” arguing that if you’re assuming an emerging Chinese hegemony, you might be disappointed.   (To which I’d add my own oft-repeated observation that if the corollary is longing for American decline and the rise of a new, post-American-hegemony, world of cooperative great powers in peace and harmony, think again — the human right universalism of the last fifteen years has been an epiphenomenon of American hegemony, and if it fades, the human rights universalists fade with it.  A multipolar world is competitive and more aggressively Westphalian, not less.)

Kurlantzick on President Obama’s Asia trip:  “Major media outlets covered the president as if he was some kind of Dickensian vagrant, appealing to his increasingly powerful creditors in China for leniency.”  And, to judge by spiraling Chinese hubris in its demands concerning the Dalai Lama, Taiwan weapons, and other things — well, the appetite grows with the eating, and the President has fed the beast.  (Responding to someone in the comments asking on what basis I thought China had raised the stakes, see among many articles in the last few weeks, this Jan 31, 2010 Washington Post front page new analysis, “China’s Strident Tone Raises Concerns Among Western Governments, Analysts.”)

(Update:) An Instalanche (thanks, Glenn) — and Megan McArdle’s quote of the day! Wow!

One last thought about thinking about various things as options.  Some of the comments have expressed surprise, and a certain amount of derision, at the idea that the option running in favor of the present at the expense of the future is non-trivial.  Speaking as a teacher, I consistently find that when students who are not in econ, business, or finance discover for the first time that what looks to be a “loan” actually (because of the limits of downside created by many legal rules, such as bankruptcy, or non-recourse rules, etc.) turns out to be an option is an “ah-ha” moment.

And even more so when, as in this case, one realizes that it is a loan from Party C(hina) to Party A(merica), but also a put of the loan from Party A(present) to Party A(future).  That’s not a trivial observation, whether speaking pedagogically or intellectually.  Commonly-made these days — of course — but not trivial, which is why unpacking “borrowing from our children” has to be unpacked if you’ve never unpacked it before.

And note that one of the comments notes with some condescension that this is merely pretentious — but then gives as an analogy something that doesn’t actually fit.  Kids “write” their parents “involuntary” options all the time and, yes, that’s pretentious and trivial. However, they less frequently (at least in the past) write them in the form of loans in the present from third parties located in China, with consumption by the present borrower and repayment by a future obligor.  That’s neither trivial nor pretentious.

And touching the intersection of debt and security, I cannot recommend highly enough the monumental history of the intertwining of public debt and democracy, A Free Nation Deep in Debt: The Financial Roots of Democracy, by James Macdonald.

Via Julian Ku at Opinio Juris comes news that the Obama Administration has no plans to submit the Rome Statute of the International Criminal Court (ICC) to the Senate for ratificaiton.  Prof. Ku comments:

This is not exactly a surprise, but it shows just how far the U.S. is from the Rome Statute. If President Obama and his sort-of supermajority in Congress do not wish to join the ICC, then it is hard to imagine the U.S. joining during a future Sarah Palin or Mitt Romney administration.  This doesn’t exactly bother me. But this raw political fact suggests that the U.S. failure to join the ICC is rooted in deeper political and structural concerns than partisan politics and ideology.

Indeed, if the Obama Administration is not even willing to sign the ICC treaty, the prospects of U.S. participation in the foreseeable future would appear to be quite small.

When President Obama met with House Republican leaders he noted that Rep. Paul Ryan, the ranking Republican on the House Budget Committee, had put forward a “serious proposal” for controlling federal spending and balancing the federal budget.  Rep. Ryan has also supported an alternative approach to health care reform, the “Patients Choice Act.” Unlike some (many?) Republicans, Rep. Ryan wants the GOP to be more than the “party of no” and wants to put forward a serious, principled policy agenda.

This past week, Ross Douthat considered whether Ryan’s proposals represent  a serious alternative agenda. Liberal blogger Ezra Klein also has a very interesting interview with Ryan about his proposals for health care.

British news organizations are now combing through the IPCC reports, finding more errors and material sourced to non-peer-reviewed material, including student papers and reports by advocacy organizations.  Most of these errors continue to relate to the more policy-oriented aspects of the IPCC reports — practical consequences of climate change and potential policy responses.  This is further evidence that the more IPCC sought to make its reports relevant to policy-makers, the less reliable the reports became.

UPDATE: According to the Telegraph, former IPCC head Robert Watson believes the IPCC will lose credibility if it does not address its mistakes.

The Who — or what’s left of them — will perform during halftime at the Super Bowl today.  They’re easily one of the greatest rock bands of all time.  Among the songs they will reportedly play is “Baba O’Riley,” a classic track from their classic album, Who’s Next.  Here’s how the song begins:

Out here in the fields
I plowed for my meals
I get my back into my living
I don’t need to fight
To prove I’m right
I don’t need to be forgiven

Don’t cry
Don’t raise your eye
It’s only teenage wasteland

Here are the song, the full lyrics, and an older and more recent live version.

    To dramatize its claim that Campbell is a big-spending wolf in fiscal-conservative sheep’s clothing, the video contains, well, a demon sheep — a sheep with glowing red devilish eyes. 

  The ad apparently has more than 375,000 views is something of an eye-opener, leading Mary Ham to write at the Weekly Standard:  “Someday, when your children are grown and the election of 2010 has long past, people will ask where you were when the demon sheep first came to American politics.”  (Read the whole thing here.)

  The ad is being widely lampooned across the internet (example here).  To mock the ad, another opponent of Fiorina in the Republic primary (Chck DeVore) has website that is the “home” of SFTEODSFOPD, or Society for the Eradication of Demon Sheep from our Political Discourse.

  The ad seems a bit over the top to me.   While the ad’s defenders say it is attracting lots of attention to the Fiorina campaign, the kind of buzz it is attracting will test the old saw that there’s no such thing as bad publicity.  I close with [insert your favorite sheep pun here ...] 

Update:  A reader suggests I should have closed with any of the following:

1. The ad’s creator should take it on the lamb.
2. Ewe can fool all the voters some of the time, and some of the voters all of the time, but ewe. . . .
3. Fame is fleecing.
4. Baaaa humbug.
5. Where there’s a wool there’s a way.
6. I must be a mutton for punishment.
7. Cogito ergo ram. (I think; therefore, I ram.)

The Times (London) reports:

The Judicial Complaints Office is to look into a complaint by the National Secular Society that [Cherie] Blair, [the wife of former Prime Minister Tony Blair, who is a part-time judge] suspended a six-month jail sentence passed on Shamso Miah on the ground that he was devout.

Miah was convicted at the Inner London Crown Court last month of assault after he broke a stranger’s jaw [over an argument about who was first in line at a bank]....

Mrs Blair said that violence on the streets had to be taken seriously but added: “I am going to suspend this sentence for the period of two years based on the fact you are a religious person and have not been in trouble before. You are a religious man and you know this is not acceptable behaviour.”

He was ordered to complete 200 hours of community service and pay £200 in costs.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

In response to popular demand, The University of Chicago Federalist Society has posted a podcast of my recent debate on Kelo and post-Kelo eminent domain reform with former U of Chicago Law School Dean Saul Levmore. Current UC Dean Michael Schill moderated. The podcast is available here. A good time was had by all, and I got some interesting new ideas for my planned book on Kelo and its aftermath. I am grateful to the UC Federalist Society for organizing this event, and to Dean Levmore and Dean Schill for their excellent participation.

I would like to briefly comment on a point Dean Levmore made that I didn’t get a chance to address at the debate. He claimed that “90 percent” of people whose property is condemned are happy about it (perhaps because they get high compensation). I would very much like to know the source for this statistic. Most studies of eminent domain compensation suggest that undercompensation is very common. For an excellent recent example, see this article by Yun-chien Chang, which finds that a majority of New York City takings involved less than fair market value compensation. 

Many property owners actually value their land above the market price, which is one reason why they continued to own it in the first place instead of selling. So even fair market value compensation often won’t fully offset their losses. Studies of victims of blight and economic development takings (some of which I noted in the last part of this article) show that many of them end up far worse off than before. In that same piece, I also explained some reasons why even fully adequate compensation would not eliminate all the dangers of Kelo-style economic development takings.

Levmore is right that overcompensation is also problematic, since it might lead to people lobbying for their property to be condemned. That, however, rarely happens in the status quo, which is yet another indication that undercompensation is far more common than the reverse.

It’s possible that I misunderstood Levmore, and he simply meant to say that 90% of people whose land is condemned don’t contest the taking in court. That may well be correct. But if so, it is largely the result of the high cost of litigation and the low likelihood of winning, rather than actual satisfaction with the condemnation. 

As a general rule, I avoid aggressive monitoring of comments. Megan McArdle explains my reasoning well in describing her own similar policy:

As y’all know, I exercise a pretty light hand on the comments section. That’s a tough choice. I could probably have a more civil comments section if I were more willing to delete nasty comments and ban trolls.

On the other hand, I don’t trust myself in the position of censor.... One will always find most outrageous those people who disagree with one’s own pet notions. If I started deleting comments, the net effect would be to pull the comments section towards agreeing with my particular brand of libertarianish, market-loving philosophy. This is not, to my mind, the point of the comments section. So I delete comments only when they are obscene or intolerably nasty; I ban people only when they have a history of repeatedly derailing threads, defaming my family, or similarly doing things that would get them kicked out of any decent private home.

So I have to ask you guys to do it for me. Play nice. Don’t call people names–any names, not just profane ones. Don’t characterize people as having bad motives. Don’t make absurd statements about how liberals, Republicans, or some other group are less virtuous, clever, empathetic, rational, pragmatic, civic-spirited, patriotic and so forth, than the fine, upstanding Americans on your side. 

In the first place, it’s incredibly rude. In the second place, it’s basically never true..... And in the third place, while you lightheartedly believe that you are opening your opponents to justified ridicule, in reality all you achieve is to start everyone else snickering at you, because you sound like such a bigoted, arrogant fool.

I disagree slightly with Megan’s analogy between comment moderation and government censorship. The latter is far more dangerous than the former. Nonetheless, aggressive moderation is problematic for the reasons she describes. I also agree with Megan’s point about comments that attack motives, and would add that even if your opponents really do have bad intentions, that doesn’t prove their arguments are wrong, so it doesn’t really help make your case.

I could perhaps overcome the tendency to favor commenters who support my own views by adopting consistent bright line rules (e.g. — ban anyone who call anyone else an “idiot” or “unpatriotic”). But such rules have serious shortcomings of their own: they are insensitive to nuance and context, and can be cleverly circumvented once they become known (e.g. — using various euphemisms to substitute for “idiot”). A related problem is that I don’t want to devote my limited blogging time to careful analysis of comments to determine which ones deserve to be deleted, issued warnings, and so on. I think both my goals and those of the readers will be better served if I devote as much of my blogging time as possible to actually writing posts.

For these reasons, I rely mostly on the good sense of commenters and social norms (weak as they often are on the internet) to police the comments. I only ban people in very extreme cases, and have resorted to it only about three or four times since I’ve been on the VC. I’ve probably deleted individual comments only a handful more times than that.

That said, if the proportion of obnoxious and stupid comments gets high enough, I could rethink my tolerant policies. If at all possible, I prefer to use the velvet glove to deal with commenters. But if really necessary, I reserve the right to bring out the iron fist.

UPDATE: Steve Bainbridge responds to this post here:

My policy on comment moderation is based on the moment in the 1980 Presidential campaign when Ronald Reagan declared “I paid for this microphone.”

This is not a public forum. I pay for it. So there are no rules. There is simply an arbitrary despotism in which freedom of speech depends mainly on how cranky I’m feeling at the moment. Granted, long time readers get more slack than newbies, but nobody has a “right” to be heard in this space any more than you would in my house. If you think that’s censorship, you’re wrong. It’s just private property.

Bainbridge misunderstands my argument. I don’t claim that anyone has a legal right to comment at the VC. To the contrary, the other bloggers and I have the right to delete whatever comments we want, for any reason we want. That’s why I said in the original post that I reserve the right to use the “iron fist” against obnoxious commenters if necessary.

My point, rather, is that aggressive comment moderation is likely to defeat the purpose of allowing comments in the first place, for the reasons Megan McArdle points out. The blogger will tend to treat comments antithetical to his views more negatively than those supporting them, which in turn will undermine the objective of having a free discussion with various sides represented. Aggressive moderation also strikes me as a poor use of my blogging time relative to writing more and better posts. Thus, I will only resort to it if things get so bad that there is no alternative. Even then, I might simply prefer to shut down comments entirely rather than spend a lot of time policing them. Ultimately, I blog primarily to express my views, not to supervise the way others express theirs.

Cato Unbound has recently completed an interesting debate between several scholars on the strengths and weaknesses of Ayn Rand’s philosophy. All of the contributions are worth reading for those interested in the subject. But I agree most with University of Colorado political philosopher Michael Huemer:

What is the best way to defend freedom intellectually? Is it, as Rand believed, to connect the philosophy of individual rights to a version of ethical egoism, which in turn derives from the metaethical theory presented by Rand in “The Objectivist Ethics”? I don’t think so. Objectivists seem to find that essay completely convincing. But hardly anyone else finds it at all convincing. This is not a trivial observation—one often finds that people who do not accept a whole philosophical system nevertheless find certain parts of it plausible. And one often finds that people who are not ultimately persuaded by an argument nevertheless see some plausibility in it. But neither of these things is true of the argument of “The Objectivist Ethics”—hardly anyone finds that argument even slightly plausible, unless they also buy into virtually all of Ayn Rand’s views.....

There are two major reasons why the best hope for political freedom is not to connect it ideologically with Rand’s ethical and metaethical theories. The first is that those theories are utterly unconvincing to almost everyone.... Connecting the two together serves only to discredit the cause of freedom and individual rights. It plays into the hands of those who say that the only opposition to socialism derives from greed and selfishness.

The second major reason is that ethical egoism does not support the philosophy of individual rights in the first place. Quite the opposite. Take Rasmussen’s statement of the basic individualist premise: “Each individual human being is an end in him‑ or herself … not merely a means to the ends of others.” This is a very common idea in classical liberal writings. Nearly identical statements appear in Rand, in Nozick, and of course in Kant. It is also, pace Rand, directly and obviously contrary to ethical egoism. For ethical egoism posits that the only thing that ought to matter intrinsically to me is my own welfare—for me, my own welfare or happiness is the only end in itself. It follows from this that I ought not to regard other individuals as ends in themselves; rather, I should see them only as means to my happiness—just as I see everything else in the world. This is a very simple and straightforward implication of the theory. I cannot hold my own well-being as the only end in itself, and simultaneously say that I recognize other persons as ends in themselves too....

At this point, most Objectivists fall back on the contention that, luckily, it is impossible for rational people’s interests to conflict. More particularly, that although it would be praiseworthy to use others for one’s own advantage if one should get the chance, opportunities are peculiarly scarce, so much so that there has never (or almost never) been a case in which anyone would have benefited by violating another person’s rights (for instance, by initiating the use of force against another). It would be truly wonderful if this could be proven. But actual arguments for this claim are unsurprisingly hard to come by, and it remains unclear why anyone would accept the claim, apart from a drive to reconcile Rand’s ethics with her politics. 

Ironically, Ayn Rand’s egoistic defense of libertarianism runs into particularly serious problems in a society filled with statist injustices.
In such a regime, many people have obvious egoistic interests in maintaining the status quo, or at least not taking the risk of becoming open dissidents. Eliminating the horrible oppression of North Korean communism is surely desirable. But it just as clearly runs counter to the egoistic interests of North Korean dictator Kim Jong Il. Similarly, when people like Vaclav Havel and Andrei Sakharov risked their lives and careers to become dissidents in communist societies, they struck a blow for freedom. But they also undermined their own egoistic interests. Sakharov especially would have been better off had he remained a loyal member of the privileged Soviet elite. 

In her novels, Rand praises characters like John Galt who risk their livelihood to oppose statist oppression. But it’s hard to reconcile this praise with her egoistic philosophy, except perhaps by positing that Galt’s victory will happen so soon and with such certainty that resisting the regime actually maximizes his narrow self-interest. Whether or not this was true of the fictional Galt, it certainly is not true of many dissidents in the real world.

Despite the shortcomings of her philosophy, I think Rand deserves enormous credit for being perhaps the greatest-ever popularizer of libertarian ideas. Huemer also argues that her positive legacy outweighs the negative. One can acknowledged that while simultaneously recognizing that her philosophy has major weaknesses and is ultimately a flawed justification for a free society.

Tags: Ayn Rand

In honor of the DC snowstorm — it is still coming down! — this passage from On Love, Book 2, Chapter 50, Love in the United States:

In the Winter, which as in Russia is the festive season of the country, young people of both sexes drive about night and day over the snow in sleighs, gaily traveling distances of fifteen or twenty miles without anyone to look after them; and nothing untoward ever occurs.

Unchaperoned and “nothing untoward” happens ... does Stendhal here anticipate the courtship culture brought about by the automobile a century later?  (It is important to keep in mind both how little Stendhal actually knew about the United States, apart from thinking it even more a Nation of Shopkeepers than England, and how willing he was to imagine anything he didn’t actually know.  Still, at least for those of us who are Stendhal’s Happy Few, no less fun for all that.)

Jim N., in the comments to my post below on snow removal — sometimes it’s good for us academics to hear from a real-world expert, so thanks for commenting:

As a non-lawyer, non-academic, snow removal company owner I am relishing this opportunity to be the “expert” for the first time ever on VC!

Snow removal is NOT cheap, because the costs of operation are equally high. For plowing and spreading salt my trucks bill out on average $300 per hour. And I didn’t have to go to school for 7 years, have judges belittle me, and work in a profession despised by the general populace.

But I do have to get out of a warm bed at 3:00 am and go out and work in the snow.... Ok maybe you guys are better off!

So holds the Massachusetts Supreme Judicial Court in Commonwealth v. Zubiel. The case involved a sting aimed at catching pedophiles. Zubiel approached a supposed 13-year-old online (actually an adult deputy sheriff), and engaged in sexually themed conversations with her. This was apparently likely a prelude to his trying to have sex with her, but he wasn’t prosecuted for attempted sex with a minor (perhaps because it wasn’t clear that his actions had gotten close enough to count as attempt). Instead, he was prosecuted for “attempt[ing] to disseminate matter harmful to a minor,” based on the sexual discussions. Note that the law of attempt, in Massachusetts and other states, allows for punishment even when the crime was factually impossible, as when someone tries to kill with a gun that he thinks is loaded but proves to be unloaded, or when someone tries to have sex with or send sexually themed matter to someone who he thinks is a minor but proves not to be a minor.

Here’s the heart of the court’s decision:

General Laws c. 272, § 28, provides: “Whoever disseminates to a minor any matter harmful to minors, as defined in section thirty-one, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors, shall be punished ....” “Matter” is defined in G. L. c. 272, § 31, for purposes of G. L. c. 272, §§ 28-30D,(3) as “any handwritten or printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.” ...

Penal statutes must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.” Therefore, criminal statutes are strictly construed against the government....

There are four broad categories of “[m]atter:” (1) any handwritten or printed material; (2) any visual representation; (3) any live performance; and (4) any sound recording.... 

[Visual representation:] General Laws c. 272, § 31, does not define “visual representation.” However, it does define “[v]isual material,” listing numerous specific media that are considered “visual material” under the statute [– ” any motion picture film, picture, photograph, videotape, book, magazine, pamphlet that contains pictures, photographs or similar visual representations or reproductions, or depiction by computer”]. When elements are listed in a series, the rules of statutory construction require the general phrase to be construed as restricted to elements similar to the specific elements listed. This principle, ejusdem generis, “allow[s] the specific words to identify the class and [restricts] the meaning of general words to things within the class.” 

Here, the specific elements listed as “[v]isual material” are limited to the class of pictures — moving or still, whether on paper, film, or computer. The statute indicates nowhere an intent by the Legislature to include words, such as those used in online conversations, in this definition.

In addition, the use of the phrase “visual representations” in the definition of “[v]isual material” provides insight into the definition of “visual representation.” The definition of “[v]isual material” includes “pictures, photographs or similar visual representations.” The inclusion of “similar visual representations” following the words “pictures” and “photographs” indicates that it refers to images, not purely written words.

Because the statute provides no definition of “visual representation,” this court must interpret the words of the statute according to their usual and accepted meaning. No Massachusetts court has defined “visual representation” to include pure text, such as the online conversations in this case. The ordinary meaning of “visual representation” does not include purely textual material. Accordingly, we hold that the Legislature did not intend online conversation to be considered as “visual representation” under § 31....

[Handwritten material:] The online conversations in this case were not handwritten. While there is no statutory definition of “handwritten” materials, in the absence of such definition, “we give [the words] their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.... We derive the words’ usual and accepted meanings from sources presumably known to the statute’s enactors, such as their use in other legal contexts and dictionary definitions.” 

The relevant definition of the word “write” is “to form or trace (a character or series of characters) on paper or other suitable material with a pen or pencil.” ... [H]andwriting is what it is commonly understood to be: writing performed by hand with a pen or pencil, as distinguished from print, which is “mechanically produced.” ... [T]he online conversations in this case, as they were not written with pen or pencil, cannot be considered “handwritten” materials under § 31.

[Printed material:] [B]ecause there is no definition of “printed materials” in § 31, we look to the usual and accepted meaning of the words, from sources presumably known to the Legislature at the time the statute was enacted. Webster’s Third New Int’l Dictionary defines the verb “print” as “to make a copy of by impressing paper against an inked printing surface or by an analogous method.” Here, Zubiel electronically transmitted text, which did not involve the impression of paper against an inked printing surface, and did not cause any mechanically produced text to be printed on paper. Because criminal statutes must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited,” and any ambiguity in such statutes must be strictly construed against the government, we cannot hold that electronically transmitted text falls within the definition of “printed material.” ...

If the Legislature wishes to include instant messaging or other electronically transmitted text in the definition of “[m]atter” under § 31, it is for the Legislature, not the court, to do so.

The statutory interpretation decision sounds right to me, though I do think the legislature should broaden the statute to include electronically transmitted text.

Libertarian policy analysts William Eggers and John O’Leary recently published a provocative article entitled ““Five Reasons Why Libertarians Shouldn’t Hate Government.” The article generated good responses by Bryan Caplan (here and here), and my fiancee. Tyler Cowen and Will Wilkinson have defended Eggers and O’Leary.

Eggers and O’Leary make some good points. On balance, however, I agree with most of what the critics say. As they point out, it is often unclear whether Eggers and O’Leary are saying that libertarians should learn to like government because that is the right view on the merits, or whether libertarians should merely pretend to like government for the sake of political strategy. If the latter, it is certainly true that a radical libertarian platform is unlikely to win elections — a point that few would deny. The same, of course, is true of a radical conservative or left-wing platform. 

That does not mean, however, that libertarians can’t make gains by tapping into popular suspicion and distrust of government. In addition, as Bryan notes, there is a natural division of labor between moderate and radical libertarians, with the first group concentrating on incremental reforms of the existing system, and the second focusing on more comprehensive critiques of it.
If Eggers and O’Leary mean that loving government is actually the right position in itself, then I think they conflate intelligent and sophisticated analysis of government with affection for it.

Here are my comments on Eggers and O’Leary’s five specific points:

#1: Bad government leads to bigger, badder government....

[I]n societies where people distrust large institutions–whether government or big business–the demand for more regulation and for more government is higher, even when government is incompetent or downright corrupt. 

This is true in some cases, but far from universally so. Distrust and dissatisfaction with government was an important cause of most of the major free market reforms achieved in democratic societies over the last several decades. Think of the US in the 1980s and 90s, Thatcher in Britain, the free market reforms in Ireland and New Zealand, and so on. In every case (with the possible exception of Ireland), the leaders who promoted these reforms made a point of tapping into popular frustration with and distrust of government. This is even more true of successful free market reforms in post-communist societies such as Poland, Estonia, and the Czech Republic.

Eggers and O’Leary are, of course, correct in suggesting that distrust in government doesn’t necessarily lead to support for reducing its size. It could lead to a belief that things will be better if only the right people are elected to office. This is the sort of conviction that libertarians have to work to dispel. Nonetheless, it’s hard to deny that people who distrust government and believe it performs poorly are more likely to support shrinking it than those trust the state and believe it works well.

#2: To shrink government, you need to love government....

Until small-government types better master the nuts and bolts of the public sector–how to design policies that work in the real world and how to execute on large public undertakings–their initiatives to downsize government will continue to disappoint.

This is mostly false. It’s true that downsizing government sometimes requires “master[ing] the nuts and bolts of the public sector.” But such mastery doesn’t require you to “love government.” You can study something closely even if you view it with suspicion and distrust. People can study dictatorship, crime, and racism without loving dictators, criminals, and racists. The same is true of “the nuts and bolts of the private sector.” Moreover, Eggers and O’Leary write as if libertarians have largely ignored the workings of the public sector. In reality, libertarian scholars have produced a vast literature on this subject. For example, libertarian economists William Niskanen and Gordon Tullock are two of the founders of modern economic analysis of government bureaucracy. There is a also a large libertarian literature on the details of environmental policy (co-blogger Jonathan Adler is an important contributor), privatization strategy, land use regulation and many other related topics. This literature surely has its flaws. But it’s wrong to assume that libertarians have mostly ignored the workings of the public sector.

#3: Market-based reforms are not self-executing....

Without a keen appreciation of the process by which legislation and programs are designed and implemented, efforts to move from monopoly to markets carry a high risk of failure.

As Bryan points out, this is true for some market-based reforms but not for others. Privatization of state-owned enterprises and partial deregulation require careful planning lest disaster ensue. Many harmful government interventions, however, can be simply abolished. The repeal of Prohibition in 1933 and the abolition of price controls in the 1970s and 80s were great success stories of this type. 

Moreover, “keen appreciation” of the details of reform strategies doesn’t require you to “love government” or even not hate it. And as with point #2, libertarian scholars have in fact produced a vast literature on strategies for privatization and deregulation. They certainly haven’t ignored these issues. Robert Poole is a leading contributor to that literature, which he summarizes here.

#4: Government bashing alienates those you want to reach....

Incessant government-bashing may make you feel good, but alienates most everybody who knows and loves a police officer, firefighter, teacher, social worker, anyone who has ever collected an unemployment check, and anyone who saw NASA put a man on the moon.

There is some truth to this, but it is overstated. First, “bashing government” doesn’t require trashing all the people who work there. The point of libertarian government-bashing is not that government employees are unusually bad people, but that they operate in institutions with poor incentives. The Postal Service and public schools can be dysfunctional even if your daughter’s teacher and your mailman are wonderful people. Liberals, for their part, routinely attack corporations without anyone assuming that they are thereby “bashing” all the millions of people who work for them.

Second, we should not underrate the massive distrust of government that exists in society today, and the growing belief that its scope should be reduced. Most of the people who feel this way are not consistent libertarians. But they may be willing to support substantial reductions in government relative to its current size.

Finally, some categories of government employees really are widely hated by the public, especially politicians. I think that the public overrates the extent to which politicians are bad people and underrates the ways in which they simply have bad incentives. Nonetheless, the political process does favor of the election of ruthless power-seekers, and libertarians should do all they can to point this out. On this point, public opinion may be more receptive to libertarian insights than on most others.

#5: Nobody will care what you know until they know you care...

Many voters today may indeed want smaller government, but what they want most of all is competent government. In addition to pointing out the flaws of government, free-marketers also need to communicate a genuine interest in the effective performance of the important duties of government.

I don’t think these two objectives are mutually exclusive. All but anarchist libertarians would concede that there are “important duties of government” that should be performed as well as possible. However, we must make the case that smaller government is also likely to be more competent government. I don’t think libertarians need to love government in order to do that. The right strategy for libertarians is to persuade people that you can “care” without supporting big government, indeed that the objectives of caring people are often best accomplished by shrinking the state. I doubt that we can achieve that goal by learning to love government or by pretending to do so. Indeed, if people come to think that government is so wonderful that even libertarians love it, why would they want to reduce its power?

There is also an issue of comparative advantage here. Lots of people of varied political persuasions focus on improving government performance. The special insight of libertarians is pointing out those areas where we should eliminate or at least greatly reduce government intervention.

UPDATE: I should mention that I don’t think that Eggers and O’Leary are simply unaware of the libertarian literature on privatization, bureaucracy, and other “nuts and bolts” of government. Eggers is himself a privatization scholar. But it does seem that they failed to consider its relevance in this particular article. 

Could any of our readers who are familiar with Dutch law speak about this development:

[T]hree Islam experts proposed by [Dutch MP Geert] Wilders [in his defence against charges of discrimination and inciting hatred] will be heard behind closed doors, the judges said on Wednesday afternoon. They include American Syrian psychiatrist Wafa Sultan who believes the world is witness to ‘a battle between modernity and barbarism which Islam will lose’....

Wilders has stated his case not only rests on freedom of speech legislation but on the fact that he is speaking the truth....

Wilders faces five counts of religious insult and anti-Muslim incitement. In January, the public prosecution department extended the prosecution case to include inciting hatred of Muslims, Moroccans and non-Western immigrants....

In the U.S., criminal trials must always public, with some very narrow exceptions that wouldn’t be applicable in such a case. The public is entitled to observe the trial, so as to better judge for itself whether the trial is proceeding fairly and whether the ultimate verdict is consistent with the evidence presented at trial. Is the Dutch tradition different?

I assume, by the way, that the court’s rationale is that the witnesses would themselves criticize Islam, which might be seen by some as itself constituting “inciting hatred” of Islam and by extension of devout Muslims. Is that really a legally viable justification under Dutch law? Or am I misunderstanding the court’s rationale? [UPDATE: The assumption seems to be incorrect; see below.]

Thanks to Religion Clause for the pointer.

UPDATE: Commenter Martinned, who seems to know a good deal about Dutch law, reports:

Trials are held in public, except in cases determined by law. (art. 121 of the Dutch constitution.) However, given that ours is an inquisitorial system with no jury, this doesn’t get you as much as it would in the US. The judges also consider the criminal dossier, i.e. all the documents prepared in advance, such as documentary evidence, transcripts of interrogations, etc. Such things don’t have to be read into evidence somehow, they are evidence themselves.

(Just to clarify: the benefit of having the judges as the trier of fact is that they have to explain in their ruling why they found the facts that they did. That can be difficult, but at least it’s better than a guilty/not guilty verdict from a jury, where only the jurors know why they decided the way that they did. Especially in a controversial case like this one, the ruling will discuss the evidence, the facts and their connection to the elements of the crime in some length.)

As for the grounds upon which part of the testimony was closed off to the public, there is this ruling (in Dutch) concluding the “regiezitting”, i.e. the case management session. The most notable aspect of it was, at least to the Dutch press, that most of the witnesses Wilders wanted to hear, including a couple of Iranian ayatollahs, have been rejected. (Not probative to the case, etc.)

The three witnesses you mention are the islam specialists who have not been rejected as experts. (According to the court, their testimony will suffice, without any need for hearing a dozen more people.) The fact that they are heard behind closed doors is not as such the point. The point is that they are not heard by the court, in open court, but by a “rechter-commissaris”, a “judge-commissioner”. That is normally the way this is done. That way, the witness can speak to their heart’s content, calmly, whenever it is convenient for them, away from the court buildings if necessary, via teleconferencing if necessary, etc. Such “depositions” are chaired by a judicial officer, with the “judge-commissioner” and the parties asking questions, but is not “in court” as such. The transcript simply becomes part of the official record.

In this case, the defendant has an obvious interest in making the entire proceeding as public and TV-friendly as possible. The court, however, declined to deviate from ordinary practice. Part of the reason for this is that the relevance of what these people have to say still has to be established. (The court has not yet decided whether they can be considered “experts” in the sense of the Code of Criminal Procedure.)

Unfortunately, I couldn’t find a translation of the relevant legal provisions. I did come across art. 269(1) of the Code of Criminal Procedure, which states the reasons why a trial might be held wholly or partially behind closed doors: “public morality, public order, security of the state, the interests of minors, and the privacy of the accused, other parties or others involved in the case.” In addition, the trial can be closed to the public if this is necessary to guarantee a fair trial.

I assume, by the way, that the court’s rationale is that the witnesses would themselves criticize Islam, which might be seen by some as itself constituting “inciting hatred” of Islam and by extension of devout Muslims. Is that really a legally viable justification under Dutch law? Or am I misunderstanding the court’s rationale?

That is not the case. I’m not sure if there is an explicit legal provision to this effect, but I highly doubt that anyone can be prosecuted for what they said on the stand, and I don’t think anything they might say would rise to the point where “public morality” or “public order” is in play....

The transcripts are available at the court clerk’s office, but I’m not sure whether they are accesible to all. They certainly aren’t released to the general public.

Many thanks for the explanation!

Maryland highway officials said they have spent about $50 million so far clearing and treating roads this winter. That’s almost twice the $26 million that had been budgeted.

The Virginia Department of Transportation said it already spent the $79 million budgeted for statewide snow removal and was tapping into emergency maintenance funds. Once that $25 million reserve is exhausted, the department said it will have to dip into other programs to cover its costs.

For those of us watching the flakes come down here in the mid-Atlantic region, just to note that snow removal is not cheap.  Also, Ilya has had to cancel a housewarming party for a second time due to snow ... I think we need to consider going beyond correlation to cause.  Russians attract snow.  There’s nothing else it could be.

It looks as if the Senate will finally confirm Duke Law School professor Christopher Schroeder to head the Office of Legal Policy in the Department of Justice.  The Senate Judiciary Committee approved his nomination for the second time yesterday with substantial Republican support.  The Committee vote was 16–3, and both Senators Sessions and Hatch voiced their support for his confirmation.

Schroeder’s confirmation will be good news for the Obama Administration.  He is a tremendously intelligent and accomplished scholar who also has significant executive branch experience.  His confirmation should also help with the vetting of potential judicial nominees, a task traditionally delegated to OLP within the Justice Department, and may help the Administration pick up the pace of judicial nominations.

The news does not appear as good for two other Justice Department nominees.  The committee approved Mary Smith’s nomination to head the tax division by a party line vote and consideration of Dawn Johnsen for the Office of Legal Counsel was postponed.  Johnsen’s confirmation could continue to face particular difficulty, in part because she does not have universal support within the Democratic caucus.  At least one Democratic Senator, Ben Nelson, has said he opposes her for the job. I previously blogged on the Johnsen nomination here.

Several news reports (summarized here) indicate that Senator Richard Shelby (R-AL) has placed a blanket hold on all executive nominations — some 70 or so in all — over two federal projects that he wants to see in Alabama.  This is shameful.  It is an abuse of the hold privilege and is precisely the sort of thing that leads voters to doubt GOP sincerity about controlling government spending.

From In re Marriage of V.I. Balashov:

With one exception, the parenting plan provides that major decisions regarding each child — including such matters as education, nonemergency health care, and travel outside the United States — are to be made jointly. The one exception stated in the plan is for religious upbringing. The plan assigns this area of decision-making solely to Vicki: “As to the mother’s ability to make sole decisions regarding religious upbringing, the court finds that the father does not have a religion, and the mother has brought the children up in the Orthodox Christian religion without objection from the father.” Dimitrichallenges this limitation on his decision-making authority and asks that it be stricken from the parenting plan. 

To protect parents’ respective constitutional rights to the free exercise of religion, Washington courts hold that a parent’s decision-making authority with respect to religious upbringing may not be restricted unless there is “a substantial showing of actual or potential harm to the children from exposure to the parents’ conflicting religious beliefs.” The court emphasized that “religious beliefs” should be interpreted in the broad sense of “world view” and that a parent’s lack of religious belief receives the same amount of protection as any particular religious belief.

Here, the trial court made no finding of actual or potential harm that would result from exposing the children to conflicting religious beliefs. Accordingly, we conclude the trial court erred in granting Vicki sole decision-making authority with respect to the religious upbringing of the children. The parenting plan must be amended to give both parties joint authority on the same basis as was done with other major decisions.

Sounds right to me.

Here’s a thought experiment. Imagine widespread public opinion in the United States demanded a new Constitution to reflect current public opinion. Specifically, let’s imagine that this happened at a time when the inevitable pendulum swing of public opinion happened to be in a liberal direction. The state conventions met and ratified a new constitution — call it “Constitution 2.0″ — that had some vague terms but was designed to enshrine what we now think of as liberal/progressive political views. Now imagine twenty more years have passed and the pendulum swings back, and we enter into a time when American politics shifts to a more conservative direction. Here’s the thought experiment: What would liberal and conservative constitutional scholars say at the time about how to interpret Constitution 2.0? Which side would be originalists? And what would the non-originalist theories look like? 

From Houston v. Federal Medical Center Carswell, 2010 WL 363479 (N.D. Tex. Feb. 2): “She [plaintiff] seeks compensatory monetary damages and seeks a ‘passion release.’” 

Fortunately, the court goes on to explain, in a footnote: “The reference to a ‘passion release’ is likely to the Bureau of Prisons’s ‘compassionate release’ program.” Glad that got cleared up.

A funny line from a review of a book about ancient Rome:

If you’re unfamiliar with Roman history, this is a worthwhile read. If you are more like me, however, and know which bank of the Rubicon is which, this is a textbook to avoid.

Compare Big Time and this story (thanks to InstaPundit for the pointer).

A friend forwarded me the link to this announcement by “the liberal public relations firm,” Murray Hill, Inc., that it will follow up the Supreme Court’s decision in the Citizens United case by running for Congress. It’s absurd and tongue-in-cheek, of course, and pretty funny to boot. But the more I thought about it, being constitutionally enamored of crazy ideas, the harder I found it to articulate precisely why it’s such a crazy idea. What’s wrong, exactly, with having a representative in Congress consisting of not one person but a collection of people authorized to act on your behalf? If a significant number of people thought that, say, the Sierra Club (Inc.), or the Institute for Justice (Inc.), or the Center for Democracy and Technology (Inc.), or some other aggregation of individuals — even, I suppose, Walmart, Inc. — could better represent their interests in regard to the proper scope of Congressional activity, why would we deny them that choice? What is so sacred in the idea that only individual human beings are capable of exercising the representative function? I’m sure I’m missing something, and vigilant readers will be able to tell me what it is, but I must say that whatever it is, it’s not jumping out at me.