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Saturday, April 16, 2005
Correcting Rosen's History:
Jeff Rosen is a learned guy who has written some rather perceptive things about the so-called Lochner era in his law review scholarhip. See 66 Geo. Wash. L. Rev. 1241. Unfortunately, in his journalistic piece in the Times magazine, he simply regurgitates Progressive myths when recounting constitutional history. To wit:
Rosen: All restoration fantasies have a golden age, a lost world that is based, at least to a degree, in historical fact. For the Constitution in Exile movement, that world is the era of Republican dominance in the United States from 1896 through the Roaring Twenties.
O.K., besides the fact that there is no "Constitution in Exile movement", there is nothing blatantly inaccurate about the above; the Republicans did dominate the United States from 1896 to the Roaring Twenties. But Jeff is clearly implying that there was some correlation between libertarian interpretation of the Constitution and Republican politics, in a way that would both draw parallels to today, but also suggest that such views have always been tied up in partisanship. In fact, however, some of the most libertarian Justices of the period Jeff refers to–Melville Fuller (Cleveland), Rufus Peckham (Cleveland), and James McReynolds (Wilson) were appointed by Democrats. Some of the most statist Justices–Holmes (Roosevelt), Stone (Coolidge), Roberts (Hoover), and, at the tail end, Cardozo (Hoover) were appointed by Republicans. Constitutional interpretation simply wasn’t a partisan (though it was a political) issue, and with few exceptions the Justices of the period from both parties accepted constitutional limitations on both federal and state regulatory power that none of today's Justices would countenance.
Rosen: Even as the Progressive movement gathered steam, seeking to protect workers from what it saw as the ravages of an unregulated market, American courts during that period steadfastly preserved an ideal of free enterprise, routinely striking down laws that were said to restrict economic competition.
There is a wealth of scholarship, starting with historian Charles Warren in the 1910s and 20s, through recent work by myself and others (and Cushman, 83 Va. L. Rev. 559; Melvin I. Urofsky, State Courts and Protective Legislation During the Progressive Era: A Reevaluation, 72 J. Am. Hist. 63 (1985)), showing that the Supreme Court, especially through 1923, rarely invalidated economic regulations. The Court, and lower courts, allowed restrictions on free enterprise ranging from bans on options trading to Sabbath laws to child labor laws (at the state level) to a wide range of draconian professional licensing laws to many, many more types of regulations. Between 1923 to 1934, the Supreme Court grew somewhat more aggressive about invalidating regulatory laws, but, at the same time, (1) state courts virtually abdicated the field; and (2) even the Supreme Court upheld some rather unprecedented and draconian regulations, such as the Railway Labor Act (unanimous opinion at 281 U.S. 548).
Rosen: The most famous constitutional battle of the time was the 1905 Supreme Court case Lochner v. New York, which challenged a law that was passed by the New York State Legislature, establishing a maximum number of working hours for bakers. In a dissenting opinion, Justice Oliver Wendell Holmes Jr. objected that "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," referring to the celebrated Social Darwinist and advocate of laissez-faire economics.
Spencer has been unfairly tarred as a "Social Darwinist", and Holmes himself is far more accurately depicted as a Social Darwinist, but I won’t go into that here. I will say that first, Social Statics is a book by Spencer, something that for some reason most constitutional scholars don’t know. The book advocated the libertarian "law of equal freedom," which Holmes analogized to the sic utere tuo ut alienum non laedes principle in law (use your property in such a way so that it does not hurt that of others). Holmes pointed out that the sic utere principle had never been adopted by the Court as part of the U.S. Constitution (and indeed, the Court, Holmes noted, upheld many types of economic regulation), so he could not understand why maximum hours laws would be unconstitutional. Note that Holmes was neither accusing his brethren of being Social Darwinists, or of adopting a laissez-faire view of the Constitution; indeed, on the latter point, he was pointing out that Lochner was inconsistent the with the Court's general indifference or hostility to laissez-faire as a constitutional principle. By stating that the Fourteenth Amendment did not enact Social Statics, Holmes was simply stating that the Fourteenth Amendment did not require the states to adopt a radical libertarian system of government.* (Relatedly, Spencer was not simply an advocate of laissez-faire in the economic realm, but a radical libertarian more generally, who, among other things, was an early and passionate supporter of women's rights.)
Rosen: Even after the election of Roosevelt in 1932, the Supreme Court continued to invoke laissez-faire economics to strike down federal laws, including signature New Deal legislation like the National Industrial Recovery Act.
You can read the NIRA case here, and I challenge you to find any hint of laissez-faire economics in the opinion. Indeed, the unconstitutionality of the fascistic NIRA was not even controversial on the Court–all nine Justices, including Brandeis, Cardozo, Stone, and Roberts, thought the law clearly exceeded federal power. More generally, Jeff should know better than to mix and match the Lochner line of due process cases and the scope of federal power cases. The two lines of cases happened to both be overturned around the same time during the New Deal, but they were in fact, separate lines of cases, with separate rationales, and "inconsistent" results (e.g., the Supreme Court upheld state child labor laws challenged under the due process clause, but invalidated federal child labor laws as beyond the scope of federal power).
I recognize that the history Jeff recounts is not the main point of his article. However, if one is going to write about those who want to restore pre-New Deal doctrines, it's important to know, as libertarian academics who support full or partial "restoration" generally do, what those doctrines actually were and what effect they had. Relying on Progressive mythology in critiquing the views of libertarians who know better simply isn't helpful.
* Clarification: Enforcing liberty of contract in one case hardly means that the Court was adopting an overall laissez faire view of the Constitution. Holmes was arguing that Lochner was a logical opinion only if the Court was willing to apply sic utere broadly as a matter of constitutional law. This is actually quite silly if you read the majority opinion, which draws quite reasonable distinctions between constitutional workplace regulatory laws meant to protect worker or public health, and unconstitutional restrictions on liberty of contract that have no valid "police power" purpose. Holmes was a master of the flip aphorism, but one shouldn't confuse flip aphorisms with legal acumen.
Rosen on the "Constitution in Exile":
I’m sure the legal blogosphere will be abuzz with discussions of Jeff Rosen’s N.Y. Times magazine piece on the purported "Constitution in Exile" movement.
Jeff was a Yale Law classmate of mine, and I'm generally a great admirer of his work. But I do want to take issue with a couple of things in this particular piece.
First, I take issue with the whole idea that there is a "Constitution in Exile movement," as such. [UPDATE: co-blogger Orin makes similar points here.] "Constitution in Exile" is a phrase used by Judge Douglas Ginsburg in an obscure article in Regulation magazine in 1995. From then until 2001, I, as someone who knows probably just about every libertarian and most Federalist Society law professors in the United States (there aren't that many of us), and who teaches on the most libertarian law faculty in the nation, never heard the phrase. Instead, the phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to write about some dark conspiracy among right-wingers to restore something called "the Constitution in Exile."
Yet, outside of Ginsburg’s article, I still have not seen or heard any conservative or libertarian use the phrase, except to deny that they ever use it. And a quick Westlaw search shows that no conservative or libertarian constitutional scholar has ever used it in a law review article. I acknowledge that some Federalist types, including me, do believe that various pre-New Deal constitutional doctrines should be revived. But let's be clear on the fact that the idea that there is some organized "Constitution in Exile movement," that is in fact using that phrase is pure fiction. Why does this matter? Because the phrase "Constitution in Exile movement" implies that there is some organized group that has a specific platform. In fact, what you really have is a very loose-knit group of libertarian-oriented intellectuals with many disagreements among themselves. Would I, for example, be considered a member of the "Constitution in Exile movement" even though I don't buy Epstein's theory of the Takings Clause, and think Lochner was probably wrongly decided? [UPDATE: It also matters because there's a reason actual believers wouldn't use the "Constituion in Exile" moniker. Unlike conservative orginialists, the more libertarian elements on the legal right--the folks that Rosen interviews for his piece--generally don't have any nostalgia for the pre-New Deal or even pre-Warren Court jurisprudence on issues such as the Equal Protection Clause's protection of minorities, the Incorporation of the Bill of Rights against the states, the First Amendment, etc.; I know that both Barnett and Epstein, for example, think Griswold was correctly decided, and probably think Roe, or at least Casey, was too. The phrase "Constitution in Exile" suggests a desire to revive pre-New Deal constitutionalism whole hog, when the folks Rosen refers too mostly want to add additional limits on government power. In fact, the interest groups most critical to the Dems on judicial nominations--feminists, ACLU, minority activists--would almost certainly by happier with a Justice Janice Brown or Alex Kozinski than with a Justice Luttig or Bork].
[material deleted; it was unfair]
Finally, Jeff, while not explicitly critical of libertarian constitutional theory, does seem to be implicitly raising the alarm regarding potential future conservative or libertarian judicial activism. I hope it's not impolite to mention that this alarm-raising comes with a touch of irony from someone whose first published law review work defended the proposition that the Ninth Amendment protects judicially enforceable natural rights, and, moreover, that courts should refuse to enforce a constitutional amendment banning flag-burning, because such an amendment would itself be an unconstituitonal invasion of natural rights. 100 Yale Law Journal 1073 (1991).
UPDATE: Oh, and it should go without saying that none of the individuals Rosen identifies as pushing the purported "Constitution in Exile movement"--Greve, Epstein, Barnett, Bolick, etc.--have any political power. The odds that Bush will nominate a libertarian type to the Supreme Court (unless its Janice Brown for other reasons) are slim to none. He may nominate someone like Luttig who believes in some limitations on federal power, but you would be hard pressed to find any originalist who believes that the current scope of federal power complies with the original meaning of the Constitution. Even Bork, who certainly has little in common with Greve et al., has always acknowledged this point, though he's argued that it's too late to do anything about it, a rather odd (and politically convenient) perspective for an originalist, and one that's always been controversial even among his acolytes. And if the Bush people were really intent on pushing a constitutional revolution, wouldn't they have followed in Reagan's footsteps and appointed a prodigious fraction of conservative and libertarian legal academics to the federal bench?
"Constitution in Exile" in NYT:
Tomorrow's New York Times magazine will feature a Jeff Rosen article on alleged conservative movement to restore the "Constitution in Exile." Slate has a preview here. A prediction: The article will conflate efforts to restore textual limits on enumerated powers with "Lochnerism" and judicial enforcement of libertarian ideology. Rumor also has it at least one co-conspirator will be featured in the piece.
Friday, April 15, 2005
Finger in the Wendy's Chili Story:
Most readers have apparently heard about the woman who tried to sue Wendy's after allegedly finding a finger in her chili. (I was skeptical from the start: chili has ground beef in it; how would a finger make it through processing intact? Besides, I told my Torts class this semester that foreign-object-in-fast-food cases turn out to be bogus much more often than you'd think.)
The saving grace of the story is a great (though not entirely tasteful) one-liner from Bill Maher: "Luckily, it was only a finger. If it had been a whole hand, Congress would have tried to keep it alive."
Goyishe Bubbemisehs:
Very interesting article in Ha'aretz about the power of the Internet and small publishing companies to challenge idiotic dogma(e.g., the world is less than 6,000 years old) enforced by ignorant religious leaders. My father tells me that when he was in heder in Brooklyn, he showed the rabbi a book with pictures of dinosaurs, which the rabbi promptly declared a "goyishe bubbemiseh" (gentile old wive's tale). The sad thing is, unlike in Israel, where the ultra-Orthodox leaders are unworldy and unfamiliar with scientific literature, our own American Christian fundamentalists actually know better, but still peddle anti-evolution and anti-scientific nonsense.
UPDATE: Here's a jpeg of a New York Times article on the same controversy involving Rabbi Nosson Slifkin.
Rumor Update:
This is an awkward post to write. In an earlier post, I mentioned in passing a rumor that "then-Drug Czar" Bill Bennett pressured Judge Douglas Ginsburg to withdraw as a Supreme Court nominee after it was disclosed that he had smoked marijuana as a law professor in the presence of students. Presumably in an effort to cast doubt on the rumor, John Podhoretz emailed Glenn Reynolds (not me) to say that Bennett was Secretary of Education at the time, not Drug Czar. Although the unconfirmed story I heard had many more details than I reported, it did not include the fact of Bennett's position in the Reagan administration. I added that erroneous detail myself for context. So the inaccuracy of that fact does not go to the accuracy of the story I was told itself. But the awkwardness of posting this clarification now is that this was, after all, a story. I have no personal knowledge of its accuracy. But it was told to me close in time to the event by someone who I think would have been in a position to know its truth (not Judge Ginsburg with whom I have never discussed this), else I would not have related it, even in passing, in the first place. And if Podhoretz is correct that "At the time, in 1987, it was a lead-pipe cinch that any public figure who had to admit to doing illegal drugs was in BIG trouble," as well he may be, then why is it difficult to believe that Bennett would approach Judge Ginsburg to get him to withdraw? Especially given what we now know of Bennett's interest in drug prohibition. In light of Podhoretz's observation, it is interesting that the story I heard contained another detail: When informed of Judge Ginsburg's withdrawal, President Reagan expressed his disappointment as he was preparing to fight for confirmation. But as I said: it's only a story.
I have been enjoying the sunny warm weather here in Tucson following my talk at University of Arizona yesterday. Thanks to all the students and faculty who attended. In the meantime, Saul Cornell sent this message in response to my last post about the Joyce Foundation funding of the Second Amendment Research Center at OSU (which he gave me permission to post here):
Joyce did pay for the individual rights people who attended the Fordham conference! As I explained in my last e-mail the first e-mail exchange we had is no longer germane. After our exchange Joyce and I had come to an agreement that the Center would not adopt an official point of view about the Second Amendment. Joyce was fine with the idea of conferences that would have multiple points of view--The issue about funding that seemes to bother you was a question about how to use my limited resources for any new original research that my Center might undertake. When we had our first e-mail exchange I was thinking mostly about short term research fellowship support for people to come to my Center or giving incentives for people to do new research on the topic. Given the limited nature of my funding I abandoned that model. Instead, I have chosen to put my money into the web site and conferences. The web site does include the IR point of view as did Fordham. Are we clear now? Saul's message represents a positive development in this dialog. It is indeed clear now that Saul (and Joyce) accept the basic principle I argued for in my earlier posts: academic institutions like OSU have a different obligation to provide balance among legitimate viewpoints in an academic debate than do think tanks, advocacy groups, or blogs. Whether future programs sponsored by the Center at OSU are balanced beyond a token or two will be evident for all to see. I look forward to seeing seeing, and perhaps even participating in, its future conferences.
Research on False Rape Reports:
I've been doing some reading on the debate about the incidence of false rape reports. I've looked at a lot of studies on this, and hope to blog some more about it later (short summary: estimates range from under 2% to 40+%, though I have no opinion about which is right). But in the meantime, I thought I'd mention one observation that may be helpful for thinking about other debates as well.
Many people who believe that false rape reports are a tiny fraction of all rape reports argue that very few women would make such false reports. The common line is that women don't lie about rape, which must really mean that very few women lie about rape.
But even if this is true — and I strongly suspect that it is — this is entirely consistent with the possibility that a substantial fraction of rape reports are false. Let's say, for instance, that only 2% of all women age 16-19 would ever lie about rape; and that any particular year, only 2% of that tiny fraction actually do falsely report a rape to the police. So 98% of all women (including relatively young and not very mature women) would never lie about rape, and even of those who might under the right circumstances, most never will. (I use the 16-to-19 age group because the risk of rape is highest there; the same analysis could apply, though, to other age groups.)
There are, however, about 8 million women in the 16-to-19 age group in the U.S., and 2% x 2% x 8 million = 3200 false rape reports per year. The National Crime Victimization Survey (2002 data, see table 3) reports that 2.7 out of 1000 people age 16 to 19, which means 5.4 out of 1000 women age 16 to 19, are raped each year. This is an estimate based on a survey, not on police reports, and it may well be low (the actual rate may be higher); but in any event, we know that the rate of rapes reported to the police is roughly half that estimated to the NCVS (compare the Uniform Crime Reports data, and remember that the UCR data aggregates rapes and attempted rapes, while the NCVS breaks them out). This means that roughly 2.7 out of 1000 women age 16 to 19 report an actual rape each year, for a total of 2.7/1000 x 8 million = 21,600 true rape reports per year.
Under this model, then, 13% of all rape reports to the police would be false (in the 16-to-19 age group), even though only 2% of all women in that age group would ever make a false rape report, and only 2% of those actually make a false rape report each year. Ninety-eight percent of all women may be completely truthful on this subject, and yet we may still have a substantial false rape report rate.
This, of course, is just a model, based on numbers picked out of thin air. Maybe, for instance, the fraction of women who'd ever make a false rape report is much lower than 2%, or maybe it's higher. We can't know for sure.
But the model does illustrate that it's perfectly possible to believe that (1) only a tiny fraction of women would ever lie about being raped, (2) a huge fraction of rapes are unreported (quite possibly even more than 50%, so that rape may be a highly underreported crime by many women, as well as overreported by a few), and yet (3) a substantial fraction of rape reports to the police are false.
Some people who worry about false rape reports may in fact believe that women are psychologically wired to lie about such things; I'm certainly not one, but historically that has been the view of some, to which others have understandably reacted with hostility. That may be why some people take the opposite view: Instead of "women often lie, so the false rape report is very high," they say "women very rarely lie, so the false rape report is very low." But that doesn't follow. False rape reports, however rare they may be as a fraction of all women might still be substantial as a fraction of all rape reports.
UPDATE: Just to make it clear, I am not talking here about reports of ambiguous situations, where the complainant sincerely believes the action was rape, but it turns out that it wasn't. I'm discussing in this post outright fabrications — claims of rape that the complainant fabricated because of a desire for revenge, sympathy, money, an explanation for consensual but adulterous or otherwise socially unacceptable sex, or something else. (In some such claims the complainant may have had consensual sex with the accused, and in others there may have been no sex, but the important point is that the complainant knows there was no nonconsensual sex.) The Kanin study, which I hope to blog about in a few weeks, reports on police accounts that assert such behavior has taken place. Likewise, unless I'm mistaken it's generally believed that the infamous Socttsboro boys case involved a fabricated rape account, though the motive there may have been different from the ones identify.
I stress again that I'm not making any assertions about how common such false accounts actually are. They may be an extremely low fraction of all rape reports, or they may be a substantial minority. My point in the original post was simply to say that one can believe that very few women would ever lie this way, and yet have such false reports be a substantial fraction of all rape reports. My point in this update is to make clear that the problem I discuss here is one of fabrication — not something that can be solved, for instance, by clarifying the definition of rape to remove possible ambiguities.
Fake Paper for a Computer Conference:
Arvin Tseng (Rebuttable Presumption) has a pointer to this story. "Jeremy Stribling said Thursday that he and two fellow MIT graduate students questioned the standards of some academic conferences, so they wrote a computer program to generate research papers complete with 'context-free grammar,' charts and diagrams. . . . To their surprise, one of the papers -- 'Rooter: A Methodology for the Typical Unification of Access Points and Redundancy' -- was accepted for presentation [at a conference."
Prawfsblawg on Women in the Legal Academy:
About half of all law students, including at top schools, are women. But most applicants for academic jobs, and most hires, are men. Why? Prawfsblawg is having a discussion.
UPDATE: Christine Hurt of the Conglomerate suggests that married women are on the average the "second earners in households" and therefore are less geographically mobile than are men, a real problem in a national market like law teaching. On the other hand, legal writing faculty, generally hired locally, are predominately women.
Welcome to NYU, Justice Scalia:
Justice Antonin Scalia recently visited NYU Law School, and if press reports are any guide the welcome was rather mixed. According to this story, Scalia visited NYU to receive an honor from the student members of the NYU Annual Survey of American Law, a law journal. While at the law school, the Justice gave a question-and-answer session that was met with insults inside the room and a protest outside the room. The insult during the Q-and-A session has been widely reported online. Law student Eric Berndt, upset with Justice Scalia's oral argument questions and dissenting opinion in Lawrence v. Texas, asked the Justice: "Do you sodomize your wife?" Underneath Their Robes has an eyewitness report: There was this loud collective gasp from the audience, and for about 5 seconds Scalia stared at the questioner - I wasn't sure whether he was in shock like the rest of us, or whether he was going to come down from the podium and throttle the guy. He finally got a hold of himself and said he wasn't going to answer that and tried to move on to the next question, but for about 30 seconds the guy kept on badgering him and Scalia kept on trying to move to the next question, which he finally did. Wonkette reproduces an e-mail from Mr. Berndt explaining that his goal was to punish, embarrass, and dehumanize Justice Scalia for his allegedly bigoted views — what Mr. Berndt describes as an "act of resistance" against Justice Scalia's refusal to recognize his dignity. A protest against Justice Scalia followed the Q-and-A: A planned protest in Washington Square Park followed the Q-and-A, which drew activists from OUTLaw, an organization of LGBT law students, the National Gay and Lesbian Task Force, the NYU Black Allied Law Students Association and the NYC Chapter of the National Organization of Women. The group held signs that read "Scalia Go Home To the Dark Ages" and "Repeal Scalia," and wore homemade t-shirts reading "Scalia Not My Chief Justice."
"Gifted people can either use their talents to help other people or hurt other people," said Bert Leatherman, a law student and the protest's organizer. "We all agree that Scalia has used his gifts to hurt people."
After listening to brief speeches around the fountain, the group organized and marched to Vanderbilt Hall, the law school building. The group stood inside the school's courtyard and chanted "Sexist, Racist, Anti-Gay, Nino, Nino, Go Away!"
"Scalia has got such a backwards world view and he wields so much power," said Dave Hancock, a Gallatin sophomore who joined the protest mid-march. "To be honored at a so-called progressive school is sickening."
Unsatisfied with the effect of their protest, the group quickly moved outside the law school and onto the corner of West 4th and MacDougal streets. They surrounded the first-floor room in which Scalia was receiving his honor and continued to chant and wave signs at bystanders. Some protesters wrote "Honk 4 Justice" on the back of their signs instigating cabs and cars to increase the noise volume. While I have some thoughts about this, I would be much more interested to find out what VC readers think. To that end, I have enabled comments — please comment away. As always, though, please keep it civil and on-point. I repeat: civil and on-point. Any rude or irrelevant comments will be deleted.
Thursday, April 14, 2005
AEI Lochner Event Next Friday--Mark Your Calendars:
Next Friday, I, along with (fellow Yale Law '91 alum) Jeff Rosen of G.W. and Ted White of U. Va., will be participating in an AEI panel discussion (register here) on Lochner v. New York: Still Crazy After All These Years? Here are the details:
In Lochner v. New York (1905), the Supreme Court—discovering a right to contract in the Fourteenth Amendment—invalidated a New York statute setting maximum working hours for bakery employees. A century later, Lochner still stands as one of the most widely despised decisions in the Court's entire history. Conservatives denounce it as a prime example of "substantive due process" run wild—judicial invention paving the way for Roe v. Wade and its offspring. With equal fervor, liberals criticize the Lochner Court's perceived attempt to write laissez faire economics into the Constitution. But does Lochner deserve its lousy reputation? Or are these modern perceptions a product of dubious historical scholarship? What exactly is Lochner's legacy?
10:00 a.m. Registration
10:15 Panelists:
David E. Bernstein, George Mason University School of Law
Jeffrey Rosen, George Washington University School of Law
G. Edward White, University of Virginia School of Law
Moderator: Michael S. Greve, AEI
Noon Adjournment
Hope to see some VC readers there.
Lots of Good Posts
and comments up right now over at PrawfsBlawg.
AP Story Seemingly Seriously Mirepresents Ariel Sharon on Iran:
Brendan Loy reports:
The Associated Press reports, in an article that's currently being given top billing by Drudge, that Israeli Prime Minister Ariel Sharon told CNN he has ruled out a preemptive strike against Iran's possible nuclear facilities.
Sharon Rules Out Attacking Iran Over Nukes
JERUSALEM (AP) - Israel will not mount a unilateral attack aimed at destroying Iran's nuclear capability, Israeli Prime Minister Ariel Sharon said Wednesday in a CNN-TV interview.
Sharon said he did not see "unilateral action" as an option. He said Israel did not need to lead the way on the Iran nuclear weapons issue, calling for an international coalition to deal with it.
The only problem is, reading the actual transcript of the interview in question, I don't see where he says any of that . . . .
Thanks to Kausfiles for the pointer.
Looking for Good, Inexpensive Flowchart-Creation Software:
I'd like to design a flowchart for the second edition of my First Amendment textbook, to explain how a particular set of First Amendment rules (the one governing the government's actions as subsidizer or speaker) operate.
Can anyone recommend good, inexpensive flowchart creation software that has a free trial period? Please post the recommendations in the comments. Many thanks!
Max Boot on Darfur and on Internationalism:
Darfur here, internationalism (reviewing Beyond the Age of Innocence: Rebuilding Trust Between America and the World) here. I'm not an expert on these subjects, but I've generally found Max Boot's work interesting and persuasive, so I thought I'd pass these two along. A quote from the Darfur piece:
So who will stop the killing? That question should trouble any tender soul who has ever mindlessly muttered, "Never again." That incantation is repeated after every genocide -- after the Holocaust, after the Cambodian killing fields, after Rwanda -- and yet the next time mass slaughter breaks out, the world conveniently averts its gaze. The major exceptions in recent years have been Kosovo and Bosnia, which had the good fortune to be on Western Europe's doorstep. The rest of the world is treated to high-minded cluck-clucking and, maybe, ex post facto prosecutions.
The only way to save Darfur is to dispatch a large and capable military expedition. But Security Council members France, China and Russia have blocked a U.N. decision on armed intervention because they covet trade ties with Sudan. . . . [And] the only nation with a serious military capacity [for independent action], the United States, is overstretched in Afghanistan and Iraq.
The European Union should step into the breach. Its economy is as big as the United States' and its population is even bigger. But it has chosen to spend its euros on extravagant handouts for its own citizens rather than on the kind of armed forces that might bring a ray of hope to the "heart of darkness." Although the European members of NATO actually have more ground troops than the U.S. -- about 1.5 million soldiers -- only about 6% are readily deployable abroad. . . .
And from the other one:
[Kishore Mahbubani, who recently stepped down as Singapore's ambassador to the United Nations] closes with an obligatory plea for a kinder, gentler superpower to promote "greater respect for international law." But isn't that what Bill Clinton did? He never saw a treaty he didn't want to sign or a foreign leader he didn't want to consult. And yet that didn't prevent the growth of murderous anti-Americanism. Mahbubani, like other critics of the Bush administration, ignores Machiavelli's dictum that "it is much safer to be feared than loved." George W. Bush may not have increased the love for the United States, but if he has increased respect for American power, that's an underappreciated achievement.
Now Here's a Really Tough Puzzle:
Consider yesterday's puzzle: What are the highest-grossing movies set in (1) North America, (2) Latin America, (3) Europe, (4) Asia, (5) Africa, and (6) Australia?
Now solve it for U.S. grosses, adjusted for inflation. I used the table here; I hope it has the right data and the right adjustments. Also, for purposes of this problem, consider a movie to be set in some place if a substantial chunk of the movie takes place there. [UPDATE: I originally said worldwide grosses, but I misread the table I referred to — it's U.S.]
(1) Gone With the Wind, (2) Jurassic Park, (3) The Sound of Music, (4) The Ten Commandments, (5) The Ten Commandments, (6) Finding Nemo.
Wal-Mart Bids Au Revoir:
Another interesting article in the Washington Post on Wal-Mart's decision to close its store in Quebec after employees voted to unionize. Its a pretty long article, but its well worth it. It discusses in much detail (and in a surprisingly even-handed way), the question of whether Wal-Mart's decision was economically-justified or just sending a signal to other potential union organizers. It also has a fascinating discussion of the dubious tactics used by both parties, both Wal-Mart and the unions. Wal-Mart's questionable tactics and bullying have been well-reported, but the techniques used by the union organizers to intimidate employees into joining the union were interesting to me.
In the end, the interesting question is whether the employees and city as a whole were better off as a result of the train of events that followed. The story also reports:
At its headquarters on the outskirts on Jonquiere, the union is organizing a drive to find jobs for the Wal-Mart union supporters and to provide them with financial assistance.
This is interesting to me, from the standpoint that as a result of the union activities the store was closed, killing the jobs of union and non-union members alone. But if we assume that Wal-Mart and the union share some sort of moral culpability of the union in the store closure, it seems somewhat troubling that the union tells the now-unemployed non-union members to take a hike, while helping out those who voted to join the union. I certainly haven't thought through who owes moral duties to whom in this context (maybe there is a philosopher out there who can explain how to think about this), but at least as a first approximation, to to my mind it does raise an interesting and potentially troubling ethical dilemma as to what duties we owe to those who we injure indirectly at least in part, through our actions.
Update:
To clarify my observation in light of some reader comments. Wal-Mart may or may not owe a moral obligation here, but if they do, presumably they owe it to union and non-union former employees alike. By contrast, the union here is helping former union members to find new jobs, but not the non-union members. So it seems like there is a real double-whammy here for the non-union members; first they lose their jobs in part because of the union, then the union won't help them find a new job.
Sugar Daddies:
The Washington Post reports on a shameful performance by Republicans attacking CAFTA at the behest of sugar industry rent-seekers. Democrats, of course, are largely hopeless on free trade, but Republicans should know better.
The sugar issue consumed much of the hearing. The industry has been protected for decades by quotas that limit sugar imports and keep U.S. sugar prices at more than twice world levels. It enjoys significant clout partly because large cane-growing companies in the South shower campaign contributions on politicians of both parties, but also because beet farmers are widely dispersed and well organized.
In fact, Central America currently faces competitive disadvantages against other developing countries:
They also repeatedly raised the specter of China's export juggernaut, warning that Chinese manufacturers are threatening to overwhelm their Central American and Dominican competitors. Unless CAFTA gives America's neighbors permanent, zero-tariff access to the U.S. market for their clothing exports, apparel companies with operations in Central America "may well move production to China," Allgeier warned, adding that since Central American clothing makers tend to buy yarn and fabric from the United States, that would cost U.S. jobs as well.
When I was in Guatemala last month, economists were concerned that Guatemala would fail to see the light on this issue. For the United States to punt because of sugar industry rent-seeking would be utterly shameful.
A.P. Story on Bankruptcy Reform:
From the A.P., "Bankruptcy Reform Close to OK in Congress":
"Bankruptcy legislation that could make it impossible for thousands of people to wipe away their debts is nearing passage by Congress."
Harder, yes; "impossible" no. Where do they get this stuff? Are they even trying for accuracy any more?
It goes on:
Between 30,000 and 210,000 people - from 3.5 percent to 20 percent of those who dissolve their debts in bankruptcy each year in exchange for forfeiting some assets - would be disqualified from doing so under the legislation, according to the American Bankruptcy Institute.
This reporter (Marcy Gordon) quite plainly has no clue what the bill actually does. I can't even figure out what she thinks it does.
Went to see Tom Stoppard's Travesties tonight.--
Tonight I took my daughter to Tom Stoppard's Travesties (1975) at Court Theater, the professional theater on the University of Chicago campus. My wife stayed home, as she usually prefers to do on weeknights. It is an extraordinarily witty play set in Zurich (mostly in 1917) involving a supposed British consul, James Joyce, V. Lenin, and Dadaist poet Tristan Tzara.
The play was evocative in odd ways:
1. I remembered the first time I saw a Stoppard play in 1971 — Rosencrantz and Guildenstern are Dead — which was one of my first dates with my future wife, in a hall two blocks away on the same campus. I remember it as a thrilling evening of theater.
2. In Travesties, when the characters described a street in Old Town in Zurich, with cafes and a red-light district, I thought about how much more sophisticated my daughter is than I was in high school. We had been on that street 2 or 3 times and my 18-year old daughter remembered it well. At Stoppard's description of the Limmat River in Zurich, she commented that he captured it exactly. She had also seen Stoppard performed when she spent 3 weeks at Cambridge University last summer.
3. The lines that resonated most strongly with me were those when Henry Carr, a British consul, was asking the Dadaist poet why artists were so privileged:
[Carr to Tristan Tzara:] When I was at school, on certain afternoons we all had to do what was called Labour - weeding, sweeping, sawing logs for the boiler-room, that kind of thing; but if you had a chit from Matron you were let off to spend the afternoon messing about in the Art Room. Labour or Art. And you've got a chit for life? (passionately) Where did you get it? What is an artist? For every thousand people there's nine hundred doing the work, ninety doing well, nine doing good, and one lucky bastard who's the artist.
-- Tom Stoppard, Travesties (1975)
I thought that was a nice image for my privileged class of lucky bastards--tenured academics. The Matron has given us a chit for life, which is part of what allows me to raise a daughter far more sophisticated than I was. On the other hand, while my daughter speaks fairly fluent French, she doesn't know what it was like to grow up on a street full of kids in a safe town in the 1950s. Stoppard takes on academic chit-holders in Jumpers, which I have a sudden desire to see.
4. In the Court Theater production, the performances and direction were wonderful, with one exception. The James Joyce character had a terrible Irish accent, which caused me to wonder about what the director and the actor were up to. I Googled "accent joyce travesties stoppard" and found that in other productions, Joyce's bad accent was often cited as either a high point or a low point of the production. I assume that it was intended to be broadly funny, but it somehow didn't quite work.
But the evening did!
Wednesday, April 13, 2005
Foreign Law and the Culture Wars:
In an essay at American Prospect Online, Deb Pearlstein argues that it is perfectly normal for the U.S. Supreme Court to discuss and cite to foreign law in the course of interpreting the U.S. Constitution — and that conservative opposition to the practice is groundless: Like the bogeyman critique of "judicial activism," "foreign law" seems to have become the latest stand-in straw man for those who aim to cast fundamentally political opposition as a principled objection. It is hard not to conclude that vocal opponents of "foreign law" are driven less by any real threat to U.S. legal sovereignty than by the fear that even a conservative judge might embrace a legal rule with which they disagree. But that danger is also long known to the United States; it is the necessary price of the rule of law. I think Pearlstein misses the point. The real issue isn't sovereignty, but the culture wars. The Supreme Court's citations to foreign law have appeared in highly controversial cases at the heart of a national sociopolitical divide between (for lack of better labels) social conservativism and modern liberalism. The kinds of foreign countries that a Supreme Court Justice might know best mostly don't share this sociopolitical divide: in those countries, and especially their court systems, the views of modern liberalism for the most part have won out. In this environment, stressing similarities with foreign court decisions can seem a lot like taking sides in the culture wars. Of course, the Supreme Court has to rule one way or another in its cases, so in one sense it has to take a side. But citing and discussing foreign law for "confirmation" of a Constitutional holding does more than rule one way or another: it is a reflection of cultural association, an indication that at least some Justices envision themselves as part of a community that happens to be strongly identified with one side of these highly contested debates. Those that object to foreign law are not really concerned that foreign law is somehow binding on the United States, or that it represents a loss of U.S. sovereignty. To the contrary: it is the very fact that such law is obviously not binding under traditional methods of constitutional interpretation that makes the discussions of foreign law most objectionable to its critics. The fact that foreign law isn't binding, but that the Justices have gone out of their way to mention it anyway, fosters the impression that the Justices identify themselves with a side in the culture wars. If you're unpersuaded, try this experiment. Imagine that instead of citing foreign law in its decisions, the conservative majority on the Court started citing to and discussing the Bible. In particular, let's imagine that Roper v. Simmons had come out the other way, and that Justice Kennedy's opinion for the Court upholding the death penalty for 16 and 17 year olds had contained the following passage: Our determination that the death penalty is proper punishment for offenders under 18 finds confirmation in the fact that such punishment is recognized in the Judeo-Christian Bible. The Bible repeatedly requires capital punishment for many offenses, and nowhere limits this punishment to those 18 years of age. See, e.g., Levitucus 24:17 ("He that killeth any man shall surely be put to death."); Exodus 21:16 ("And he that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death."). Indeed, the death penalty is mandatory for a number of affronts against parents, which presumably would encompass many offenses by minors. See, e.g., Exodus 21:17 ("And he that curseth his father, or his mother, shall surely be put to death."); Exodus 21:15 ("And he that smiteth his father, or his mother, shall be surely put to death.").
This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet our ancient traditions and cultural heritage are instructive for the Court's interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments." It is proper that we acknowledge the overwhelming weight of authority in the Bible in favor of the juvenile death penalty. Cf. Zorach v. Clauson, 343 U.S. 306, 313 (1952) ("We are a religious people whose institutions presuppose a Supreme Being."). The opinion of our Judeo-Christian traditions, while not controlling our outcome, does provide respected and significant confirmation for our own conclusion. It does not lessen our fidelity to the Constitution to acknowledge that the express affirmation of certain fundamental rights recognized from the time of Abraham simply underscores the centrality of those same rights within our own heritage of freedom. My sense is that most people who have no problem with the Court citing foreign law would blow a gasket if this passage appeared in the United States Reports. You can imagine the reaction: What on Earth gave the Supreme Court the idea that they can rely on the Bible? This is the Constitution, not church! If some people want to believe in the Bible, that's up to them, but this is America and they can't foist that Bible stuff on me! Why the strong reaction? Not because "liberals" really only object to "conservative" results (although you can imagine the NRO column making this argument, can't you?). The reason, I think, is that Biblical text tends to be associated with one side of the sociopolitical divide and is not a traditional source of constitutional guidance. As a result, seeking "confirmation" of a constitutional holding in the Bible would send a message that the Justices are not just interpreting the Constitution — they would be doing more, expressing personal views as to which side of the sociopolitical divide they see as their own. To be sure, the analogy between foreign law as authority and the Bible as authority isn't perfect. I realize that. But I think it does capture why some conservatives feel so strongly about citations to foreign law in Supreme Court opinions.
Movie Locations:
My former student Kevan Choset poses the following puzzle: What are the highest-grossing movies set in (1) North America, (2) Latin America, (3) Europe, (4) Asia, (5) Africa, and (6) Australia [UPDATE: and (7) Antarctica]?
For the picky: I'm using U.S. [UPDATE: I originally erroneously said worldwide] grosses, in nominal dollars (not adjusted for inflation), as given on this site. Also, since a movie may have scenes on multiple continents — or for that matter in the oceans or elsewhere — I define the movie as being set somewhere if the majority of its are there or quite near there.
(1) E.T. (a world-wide is Independence Day), (2) Jurassic Park (note that I said Latin America, not South America), (3) Harry Potter I, (4) The Passion of the Christ, (5) The Lion King, (6) Finding Nemo.
I haven't confirmed this, but reader Michael Mantel says that for Antarctica, the winner is Alien vs. Predator.
I assume that the ocean scenes in Finding Nemo are quite near Australia, while the ocean scenes in Titanic are mostly considerably further from either Europe or America.
Cool Supreme Court Quote:
From a concurring opinion by Justice Robert H. Jackson: This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added. Douglas v. Jeannette, 319 U.S. 157, 181 (1943). Of course, one person's new story is another person's much-needed renovation. But still, a cool quote.
Saul Cornell Responds:
—Ohio State History Professor Saul Cornell, who founded and heads the Second Amendment Research Center at Ohio State sent me the following response to my blog post on the Chicago-Kent symposium on the Second Amendment being funded by the Joyce Foundation:
I think you misinterpreted my earlier e-mail about my center. The Center includes all points of view on its web site. You will find that you and Eugene are both listed in the database on gun scholars.(I haven not listed Lott or Bellesiles for obvious reasons.) You will also note from my post on your blog via Eugene that the Fordham symposium included scholars from a number of approaches and viewpoints and that several individual rights people were invited. My comment to you in e-mail (don't you think you ought to ask permission before you blog?) had to do with funding new research. I think there is a difference between an obligation to present a full range of views and actually allocating limited research funds to encourage new research. Given that the gun lobby has plenty of money and places like CATO are strongly gun rights it seems a bit unfair to ask Joyce to fund your point of view. I would be happy to help the NRA fund decent research on the Second Amendment but they don't seem that interested in forking over any money. I don't see any evidence that CATO has been nearly as fair as I have and I don't see anyone on your blog who represents the collective rights view or the new civic rights paradigm. Perhaps you can explain why the fairness doctrine only applies to some folks, but not others? Do you have a coherent theory about how you approach this stuff? You may recall that Glenn's Standard Model issue did not have anyone from the collective rights point of view. Because I think Saul largely missed the point of my original post, let me summarize:
(1) The main issue I addressed was denying that there was anything untoward about the Chicago-Kent symposium (a) bringing in an outside editor, or (b) paying an honoraria to the editor and contributors. It is standard practice there to do both.
(2) The secondary issue I addressed was the propriety of scholars accepting honoraria in general, and Joyce Foundation money in particular, to write about subjects they might other wise not have. My position was that, so long as they did not change their views to conform to the wishes of the donors—and I do not believe that any of these authors did so—then I said I saw nothing wrong with this—but the funding should probably be disclosed (as it was).
(3) I did fault Chicago-Kent for holding a deliberately one-sided event funded by a foundation that will only pay for one side to be heard--and then publishing the resulting papers in an entirely one-sided issue of its law review. I maintain that this runs counter to its mission as an academic institution.
(4) To substantiate the fact that Joyce does attach strings to its grants I related what was told to me by Saul Cornell in an email exchange. In my blog post I summarized this as follows:
When I asked its director, Saul Cornell, in an email exchange if any participants in its academic programs could advocate the individual rights position, he responded that he would obtain separate funding to permit that to happen. I took that as an indication that Joyce does put strings on its funding. I did not quote the original email as I did not have permission from Saul to do so, but he has given permission now. As he thinks I have misunderstood him, here is the pertinent part of what he wrote:
Conferences organized for the Center will follow my Constitutional Commentary model, not Chicago-Kent. As you may recall I included Bob Shalhope in that because he was the historian most closely associated with the IR point of view. Obviously Joyce does not want to put money into the hands of gun rights people (that does not seem unreasonable) so the funds for participation of those folks will have to come from somewhere else. So here is my response to Saul:
(1) I never mentioned the Fordham Law Review symposium. I have no background information to impart about its organization or funding. As I am not familiar with its composition--apart from what Saul wrote in his email to Eugene--I made no criticism of it earlier and make none now.
(2) My principal purpose for referring to the substance of Saul's email conversation with me was to substantiate that Joyce does indeed restrict its funding to persons who agree with its position on gun control, which is what I contend made it improper for Chicago-Kent to run a conference with this funding. I could imagine a conference half funded by Joyce and half by, say, the NRA, which would result in a balanced and academically respectable program. (Query: would Joyce have ever agreed to this? I seriously doubt it.)
(3) I also suggested, though in passing, that it is questionable for Ohio State to set up a "Second Amendment Research Center," largely if not exclusively, using funds that come from a foundation that will only fund one side of a legitimate academic debate. Saul's reply notwithstanding, I still believe this to be the case, but his situation is more complicated than that of Chicago-Kent, so let me address it further.
(4) Chicago-Kent took money from a foundation that will only fund one side of a legitimate academic debate and then held a conference to which its students were invited and published a law review issue that was entirely one sided. To me, this is clearly inconsistent with its mission as an academic institution. (I would have to know more than I do about the 1995 Tennessee symposium organized by Glenn Reynolds to know whether it was similar in this regard to what Chicago-Kent did. I do know that I wrote the Foreword for that Symposium (available here) and received no honorarium. Nor did I attend any live conference that may have been paid for by an outside source. The issue discloses no outside funding. But even if Tennessee somehow acted improperly, two wrongs do not make a right.)
In contrast, Ohio State set up an ongoing center largely, perhaps exclusively, funded by money that can only be used to pay for one side of an academic debate. If Joyce is the exclusive or main source of funding, I think this compromises the academic integrity of Ohio State. If the center also had a comparable amount of money that could be used to fund other approaches, this would complicate the issue. On the one hand, it would enable it to have somewhat balanced programs—as Saul says he strives to do. On the other hand, it would still make Ohio State financially dependent on satisfying the view-point position of Joyce in a way that the one-time conference I hypothesized above would not. If Joyce objects to the content of what the Center does, for example, by including divergent voices, it could withdraw its substantial funding. Because Ohio State would knows this, this would compromise its academic mission.
Now it is possible that Joyce made a substantial one-time grant—as opposed to providing ongoing funding—with no strings. This would be quite different. But I take it from Saul's original email that Joyce's funding is ongoing AND that Joyce will only fund scholarship with which it agrees. It is this arrangement and constraint that compromises the academic integrity of Ohio State.
(5) Saul asked in his reply: "Given that the gun lobby has plenty of money and places like CATO are strongly gun rights it seems a bit unfair to ask Joyce to fund your point of view." I do not expect Joyce to fund any point of view with which they disagree. It is not Joyce we are talking about, it is Chicago-Kent and Ohio State. Nor, to reiterate, do I have any problem with an individual scholar like Saul who agrees with Joyce accepting funding to support his or her academic research, provided the funding is disclosed. But Ohio State, like Chicago-Kent, is an academic institution, unlike Cato, or the Federalist Society. (I raised the Federalist Society because, even though it is not an academic institution, its programs have more balance than did Chicago-Kent's. (I did not compare the Fordham Law Review symposium to the Federalist Society—indeed, I did not mention that symposium at all in my post.)
Let me clarify this by posing the following question: Why did Joyce not organize its own conference, law review issue, or Second Amendment Research Center? The answer is plain: it wants its views to enjoy the academic respectability imparted upon it by the imprimatur of Chicago-Kent and Ohio State. It is that institutional imprimatur that enabled the Ninth Circuit to rely so heavily on articles published in the Chicago-Kent Law Review in his opinion in Silveira v. Lockyer. (BTW, the published opinion had to be modified later to remove its reliance on the discredited work of Michael Bellesiles.) This is what Joyce is buying from Chicago-Kent and Ohio State. This is what it is improper of these institutions to sell.
Unlike the Joyce Foundation, Cato has its own Center for Constitutional (not Second Amendment) Studies, its own law review (The Cato Supreme Court Review) and organizes many conferences and publishes many books. Cato's work product will inevitably be discounted in a way that a center at Ohio State would not be (unless it became widely known that Ohio State was indistinguishable from the Joyce Foundation which would defeat the purposes of both Joyce and OSU). This is the distinction that is of utmost importance.
Consider this analogy: Suppose Boston University established a "Second Amendment Research Center" funded wholly or principally by the NRA, which would only pay for individual rights scholarship. How would or should observers react to the work product of this center? Should it receive any greater imprimatur of academic respectability than a center within the NRA itself? Of course, we know why the NRA would want to establish such a center (who could blame it?), but why should BU want to establish so one-sided a center except deliberately to take sides in an academic dispute— that also has or will be before the courts?
If Saul truly cannot distinguish between a "research center" at a university (and a public one, no less) and a think tank like Cato, an advocacy group like the NRA or Joyce Foundation, or a blog like the Volokh Conspiracy, then there is more trouble with the Second Amendment Research Center than the principal source of its funding. But the fact that he says he would include diverse opinions in his programs (paid for somehow by other funds) and tried—albeit unsuccessfully—to include divergent views in the Fordham Law Review symposium suggests that he can tell the difference.
I conclude by offering the same thought experiment I did before: Would Ohio State want it to be known that all or most of the funding for its Center came from a foundation that would only fund a particular viewpoint? I think not. Or would OSU (or Joyce) want the center to be called "The Collective Rights Research Center"? It is to Saul's credit that he tries to include other voices by tapping other sources of funding. But that does not absolve Ohio State of the problem that it has sold its name to one side of an academic and legal debate, if that is indeed what it did.
Stephen Bainbridge Photoblogs on "Pro-Laborer" Postings at UCLA
here. You really need to see the pictures to get the picture, but here's the summary of his argument:
A group of UCLA students plan a student strike tomorrow in support of a one-day strike by UCLA service workers, whose union includes custodians and groundskeepers . . . .
In their zeal, the students have plastered these posters on sidewalks all over campus; e.g., in the sculpture garden . . . .
You will have spotted the irony, of course: the groundskeepers the kids purport to be supporting are the very people who will have to get these glued-down posters off the sidewalks. . . .
But This One Goes To Eleven:
An interesting story on results of the new SAT tests, which now have three sections and a perfect score of 2400 instead of 1600.
Stefan Beck on Intellectual Diversity:
On NRO.
A Constrained Vision:
Just came across a cool blog that I hadn't seen before--"A Constrained Vision." (Hat Tip: Tyler Cowen at Marginal Revolution)
Definitely some good stuff there, but mainly this is just an excuse to mention one of my favorite books, Thomas Sowell's, A Conflict of Visions. Not only do I find it profound and insightful, but I have found it essential reading as a professor, especially one who teaches from a law & economics perspective.
Sowell distinguishes between what he calls the "constrained vision," which sees the world in terms of trade-offs and inherently tragic choices (i.e., you can't "have it all"). The "unconstrained vision" sees the world in end-state terms, and says we should fix problems when we find them. For fans of Robert Pirsig's "Zen and the Art of Motorcyle Maintenance" you will see a similarity between Sowell's categories and Pirsig's "classical" and "romantic" versions.
So, for example, consider something like famine relief in Africa: the unconstrained vision says, "people are starving, give them food." The constrained vision says, "people are starving, but if we give them food, that just means that we will have to give them food again next year, because we will destroy domestic farmers who can't compete with free food." Note, neither of these approaches are necessarily correct, they are simply different and raise different questions. Sowell says, I think correctly, that most people resolve these difficult normative questions at a subconscious level that just automatically focuses us to either focus on the starving people today on one hand, versus the tradeoff of starving people tomorrow on the other. Often we are not even aware of how we draw these tradeoffs.
So why do I think that Sowell is essential reading for law professors (and lawyers, for that matter)? Because during our lives about half the people we interact with will have the opposite "vision" from us. So, if you are a law & economics guy (like me), you are naturally attuned to the constrained vision. And one reason why law & econ seems so foreign to so many is because many lawyers hold the unconstrained vision--they are concerned about pursuing justice and rectifying injustice, not hearing about tradeoffs and limitations. So unless the holder of the constrained vision can respond to the concerns of the unconstrained vision as well, then this is just two ships passing in the night.
One could easily tick down the Supreme Court, for instance, and for those with a coherent and consistent jurisprudence quickly place most of the Justices in a constrained versus unconstrained box (Scalia, Thomas, Rehnquist constrained; Souter, Brennan, Warren unconstrained).
Many professors and policy-makers can get trapped in their own vision, without realizing that their vision is not shared by all. I think this is one reason why economists often are unable to do more influence policy.
When I was in grad school, one of my professor remarked about the economic inefficiency of mandatory environmental recycling, "Arguing that recycling is economic inefficient is like arguing that communion wafers are not nutritious." The point is that the argument is simply unresponsive to the underlying concern of the person with whom you are conversing.
So, to make the long story short, read Sowell. To make it even shorter, I think we can all gain from recognizing our own particular visions and the need to relate them to the similar or dissimilar visions of those around us. And in the meantime, visit the "A Constrained Vision" blog.
Why Summers Apologized:
Why did Larry Summers issue such an abject and, frankly, embarrassing apology for the controversial remarks he made regarding women in the sciences? I don't think he really had to. My theory is that he thinks of himself as a man of the left, and was very uncomfortable with the praise and defense he was getting from the right, and the obloquy from those he considers his natural friends on the left.
A bit of evidence in support of my theory: you can watch a video of President Summers welcoming the national Federalist Society student meeting to Harvard Law School. The students gave Summers a standing ovation. Summers looked extremely embarrassed, almost flummoxed, and stated: "Thank you very much, I think. Let me remind you, I am a Democrat. I am proud to be Democrat."
If Summers puts his self-image as a "progressive" above his pursuit of truth in the face of political correctness, there's not much the rest of us can (or should) do to defend him.
Tony Soprano's Solution to the Bankruptcy Crisis:
Syndicated columnist Debra Saunders has a confused column today in The Real Times about the bankruptcy reform legislation. Not only does she seem confused about the impact of the bill, but she seems utterly confused about economics of consumer lending. Like a vampire arising from the dead, Saunders invokes new usury restrictions on credit cards as the solution to the consumer bankruptcy crisis:
Consider this: The Senate rejected a measure to cap credit-card interest rates at 30 percent. Now, I ask, why should Washington want to protect lenders, who charge desperate people as much as 36 percent in per annum interest?
The lending lobby — Big Borrow-mongers — claims it needs protections against deadbeats, who file for bankruptcy without even trying to pay off their debts. I would sympathize ... if the money lenders weren't so rapacious — shameless, really — about fleecing the poor.
Why doesn't Washington cap credit-card interest rates at 30%? Because Washington apparently realizes what Saunders does not--that usury restrictions usually hurt those who they purportedly are intended to help, and injure "desperate people" the most. Since Ms. Saunders apparently missed Introductory Economics in college, herewith a very brief primer on the effects of price controls in consumer credit markets.
The analysis presented here draws heavily on a major article that I published a few years ago, "The Economics of Credit Cards," which contains a more in-depth analysis of the issue.
Imposing price controls on credit card interest rates will have three predictable consequences:
1. Term repricing: First, regulating some terms of a consumer credit contract will lead to repricing of other, unregulated terms. So, for instance, prior to the Supreme Court's decision in Marquette National Bank in the late-1970s, many states had strict usury regulations on the interest rates that could be charged on credit cards. The result was a variety of repricing of other terms, to offset the inability to charge market rates of interest. So, for instance, credit card issuers charged high annual fees for ordinary credit cards--usually $30, $40 or higher, in order to make up for the losses on the rate of interest they could charge. In fact, when usury restrictions were effectively repealed by Marquette, the first thing that disappeared were these annual fees (today, only "reward" cards, such as frequent flyer cards, have annual fees, which are used to cover the administrative costs of the reward program). Credit card issuers also changed the way they measured the grace period for consumers to pay their bills, adopting a new measurement of the grace period that effectively shortened the time in which a consumer must pay his or her bill in order to not be late. And, of course, credit cards offered very little in the way of the sorts of benefits we see today--car rental insurance, 24 hour customer service, etc. Limiting interest rates can be expected to result in term repricing of other, less transparent terms of the contract.
Finally, usury restrictions provided a competitive benefit for department stores and other companies that directly extended credit to their customers. A store like Sears, for instance, could simply jack up the price of the goods they sold to make up for the losses that they suffered on their in-house lending activities. If you regulate the cost of credit, but not the cost of goods (like a refrigerator or washing machine), then all you have done is shift around the credit costs to a less-obvious source. And, of course, it is again the "most desperate" who are likely to have to use store credit to buy an appliance or the like.
Note also, that to the extent that interest rates are limited and annual fees are adopted, this will have the exact opposite effect of what Sauders wants to happen--this will encourage greater borrowing for consumers and a subsidization by transactional users who pay their bills every month to revolvers.
Are consumers as a whole--including poor consumers--by having an interest rate cap, but a $40 annual fee? Or no annual fee and higher interest rates? Its not obvious, but the evolution of the market suggests that most consumers would rather have no annual fee and a higher interest rates. And, of course, transactional users unambiguously prefer that.
2. Product substitution: Making it harder for "desperate people" to get a credit card doesn't make their need for credit disappear. If they can't get a credit card, then they have to turn somewhere else for credit, such as payday lenders, check-cashers, pawn shops, or loan sharks. And the cost may be much higher than 36%. If your transmission blows, you still have to pay for it, regardless of whether you are rich or poor. Are "desperate people" made better off by having to rely on payday lenders, pawn shops, or Tony Soprano to make ends meet? Doesn't seem like it to me.
In fact, the empirical evidence of the effect of usury restrictions indicates that exactly this sort of substitution takes place under usury restrictions. So, for instance, in the 1970s, Arkansas had the strictest usury restrictions in the country--and was also the pawn shop capital of America.
Similarly, as I noted in an earlier post, the rise of credit card borrowing over the past two decades has been primarily a substitution for other, less-attractive forms of credit, such as high-cost personal finance companies (which have even higher interest rates than credit cards), and retail store credit (such as described above), rather than an increase in overall indebtedness. This pattern of credit card substitution for other debt has been equally applicable to lower-income households. See Wendy M. Edelberg & Jonas D. M. Fisher, Household Debt, 123 CHICAGO FEDERAL LETTER at 3 (1997)(“[I]ncreases in credit card debt service of lower-income households have been offset to a large extent by reductions in the servicing of installment debt.”).
3. Credit rationing: To the extent that borrowers and lenders cannot reprice the terms of their credit contracts, and to the extent that poor and high-risk consumers can't shift to other forms of credit, such as pawn shops, rent-to-owns, and layway plans, they will suffer a reduction in credit overall. It is not clear how this helps poor people.
On the other hand, usury restrictions do appear to be good for the middle class and upper-middle class, so perhaps that is why they are popular with those like Saunders. To the extent that usury restrictions make lending to poor people less profitable, empirical evidence indicates that the supply of money for consumer lending tends to shift into prime lending markets, thereby reducing the borrowing costs of low-risk, high-income borrowers. So while a lot of us higher-inocme folk might be pretty keen on making poor people subsidize our mortgages and credit cards, it is not clear to me how that improves the lot of the "desperate" poor out there. See William J. Boyes, "In Defense of the Downtrodden: Usury Laws?, 39 PUBLIC CHOICE 269 (1982).
The Normative Tradeoff: So there is a clear tradeoff here. Yes, capping interest rates on credit cards will certainly cause credit card interest rates to go down. But it will also cause other fees (such as annual fees) to go up, will force the most desperate borrowers into into the arms of pawn shops and payday lenders to make ends meet, and will tend to decrease the amount of credit available to poor borrowers (although subsidizing middle-class borrowers).
And sure, you could add regulation of additional terms--such as late fees, or whatever. But that doesn't change the fundamental underlying tradeoffs, because every consumer credit contract has dozens of terms that can be repriced and there are a panoply of competing consumer credit products out there in the market.
So, in the end, there is a normative tradeoff--do we think that consumers as a whole, or poor consumers, are made better off by price controls of some of the terms of a consumer credit contract, knowing that it will be impossible to regulate all of the terms and that in the end, poor people need credit just as much as anyone else? As with all such normative tradeoffs, our moral intuitions will differ--Saunders quite obviously thinks she would sleep better at night knowing that poor people won't have to pay high credit-card interest rates (its not clear what she thinks about pawn shops). Quite plainly, I think such a tradeoff is outrageous and will hurt poor people more than it helps them. Moreover, the overwhelming conensus among economists, going back until at least Jeremy Bentham, is that usury restrictions are bad economic policy.
"Toadying to Big Business"? More fundamentally, given these tradeoffs, it is plainly the case that the Senate acted reasonably in rejecting the price-cap amendment that Saunders is so lathered up about. It would have been reasonable for the Senate to accept the price-cap as well. But obviously the Senate decided that the costs of a price cap exceeded the benefits and acted accordingly. Certainly, Saunders's assessment seems absurdly overblown:
As a Republican, it disappoints me to say this, but I understand why people call the GOP the party of big business. When Washington pushes for more responsibility among debtors, but not loan-shark-like lenders, when its "ownership society" principles don't make big corporations own up to their role in the bankruptcy problem, the GOP is toadying to big business. (Ditto the 18 Democrats and one independent senator who voted for the bill.)
Her criticism of "loan-shark-like lenders" seems especially misplaced given that one possible result of her proposed solution would be to increase business for real loan sharks.
What the Bill Does: Instead, Sections 1301-1309 adopt a disclosure-based compromise to the problem. These sections require new and enhanced disclosures related to various aspects of credit cards, such as introductory rates, late payment deadlines and penalities, and Internet-based credit card solicitations, as well as enhanced disclosures on "credit extensions secured by a dwelling." While some might want to do more, notwithstanding the harm it would cause to the poor, under the circumstances, enhanced disclosures certainly seems like a reasonable compromise, and certainly is not mere "toadying to big business."
What Are College Students To Do,
when they're offended by pictures of aborted fetuses being distributed on campus? Why, call the police, of course:
Protesters handing out anti-abortion pamphlets on campus caused a series of complaints to local police Wednesday.
Director of Public Safety Jerry Stewart said ISU Police received 12 phone calls within one hour on Wednesday afternoon from people objecting to graphic images displayed on posters and handouts from a group of people objecting to abortion.
Abby LaCombe, senior in political science, was approached by the group and said she was upset by its protest.
"[I told them] every time you come to our campus it just creates a deeper schism," she said. "There's better ways to go about speaking your message."
Sarah Foster, senior in mechanical engineering, said abortion was not the only subject the group was protesting.
"This [was] anti-choice, anti-women, anti-everything," she said.
The pamphlets, from the Milwaukee-based group Missionaries to the Preborn, included information on abortion, birth control, breast cancer, opposition to Planned Parenthood and contained photos of aborted fetuses.
It's not clear whether Ms. LaCombe and Ms. Foster were among the 12 people complaining to the police; but I would have hoped that the 12 college students must have realized that there's nothing illegal about displaying disturbing pictures as part of one's political argument. I guess I would have hoped in vain.
Fortunately, the police knew better. "While the images that appeared may be objectionable to a number of people, they appear to be legal," Stewart said. Funny that -- some objectionable speech is actually legal, even though it offends some college students! What is the world coming to?
Supreme Opportunity Cost:
Sometimes we overly diminish the role of individuals when assessing historical developments. That Ronald Reagan was in a position to be President when he was probably changed the direction of the Republican party (and the US) for decades. Because of his distinctive personal characteristics, Bill Clinton was able to get elected when other Democrats of similar views are not. As President, he also signed on to a welfare reform bill—and brought along enough Democrats in Congress—that contains far more radical reform than anything President Bush has managed to achieve. In short, individuals matter.
I have long bemoaned the opportunity cost of the aborted Supreme Court nomination of Judge Douglas Ginsburg of the D.C Circuit Court of Appeals. Nominated in the wake of Robert Bork's defeat, Ginsburg was pressured (rumor has it by then-Drug "Czar" Bill Bennett) to withdraw his name when it was disclosed by Nina Totenberg (whose speaker's agent brags about it here) that he had smoked marijuana in the presence of law students when he was a professor at Harvard Law School. Anthony Kennedy was nominated in his place.
What happened to Judge Ginsburg was a tragedy for liberty, and a terrible injustice to a very decent man. Without casting any aspersions on Justice Kennedy, I really wish that now-Chief Judge Ginsburg, the most libertarian Supreme Court nominee in the modern era, had been on the Court these past 15 years. At any rate Ex Post yesterday posted a nice talk by Judge Ginsburg. Related Posts (on one page): - Rumor Update:
- Supreme Opportunity Cost:
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