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Saturday, April 28, 2007
WaPo on The DOJ Hiring "Scandal":
Orin linked the article, but he failed to highlight the truly scandalous nature of the hiring process, as reported by our diligent scribes:
According to a former deputy chief in the civil rights division, one honors hire was a University of Mississippi law school graduate who had been a clerk for U.S. District Judge Charles W. Pickering Sr. about the time the judge's nomination by President Bush to a federal appeals court provoked opposition by congressional Democrats, who contended that Pickering was hostile to civil rights.
A few months after he arrived, that lawyer was given a cash award by the department, after he was the only member of a four-person team in the civil rights division who sided with a Georgia voter-identification law that was later struck down by the courts as discriminatory to minorities, according to two former Justice lawyers.
Another honors hire, a graduate of the University of Kentucky College of Law who had been president of the campus chapter of the Federalist Society, displayed a bust of President James Madison in his Justice office, according to a former honors program lawyer who was hired during the Clinton administration. A profile of Madison's face is the logo of the society, which is based on conservative precepts.
Oh my goodness--a bust of James Madison in his very office! Gracious, a civil rights lawyer who clerked for Charles Pickering--who "congressional Democrats ... contended" was hostile to civil rights (apparently since some congressional Democrats "contended it," all of his clerks are disqualified from working in the office).
The other example cited in the article seems odd as well--why is it supposed to be a problem that a graduate of Regent Law School might be interested in working on "some religious liberties" cases. Would we be similarly shocked if a minority graduate of Southern Law School, for example, expressed a particular interest in working on Voting Rights cases, or a former intern at a pro-choice organization was interested in reproductive rights cases?
The unintentional irony of this is that these examples are provided as examples of the "nonideological" bona fides of the career lawyers who offered them as examples. The career lawyer who is cited (as well as the authors of the article) seems confident that any right-minded person would shocked and outraged that a lawyer was a member of the Federalist Society and had a bust of James Madison in his office or that one of Judge Pickering's clerks worked in the civil rights division.
This is not to say one way or the other whether the new policy is a good one. Or that there may be real examples that actually prove the reporters' point. Or that there were improper ideological pressures in this case that were fundamentally different from Democratic administrations, or that political favoritism is somehow different or more pernicious than all of the other sorts of preferences and favoritism that also play into hiring processes. I don't know the answer to these questions, but it seems obvious that merit alone has never the sole criterion for securing these positions, and that a variety of other personal, geographic, and demographic factors have always played into these decisions.
But if these are the "smoking gun" examples that are the best ones that career attorneys can offer as conservative ideology run amuck at the DOJ, then it seems to me that this says more about the real biases of the supposedly "nonpolitical" attitudes of DOJs career attorneys and the ideological parochialism of the Washington Post than about some sort of hiring "scandal" at DOJ. If these are the sorts of trivialities that career DOJ attorneys consider to be evidence of an extreme ideological shift to the right at the DOJ, then forgive me for being skeptical that the end result of giving career lawyers a monopoly on hiring for these positions is going to eliminate ideology from the hiring process.
Moreover, it is naive to think that putting these career lawyers in charge of hiring will remove ideology from the hiring process (not to mention the thinly-veiled elite snobbery in the otherwise-irrelevant references to University of Mississippi and University of Kentucky Law Schools in the article). It seems evident that a Federalist Society member or Pickering clerk would have those credentials held against him or her by at least this particular career lawyer. If so, is that different from the concern expressed by congressional investigators that senior political appointees appeared to reject applicants who "had interned for a Hill Democrat, clerked for a Democratic judge, worked for a 'liberal' cause, or otherwise appeared to have 'liberal' leanings?"
Blankenhorn (Round 3):
David Blankenhorn and I are continuing an exchange about his arguments opposing gay marriage, expressed in an article for the Weekly Standard and in his new book The Future of Marriage. In his latest posts, he has responded here, asking me to identify weaknesses in the case for gay marriage and strengths in the opposition to it, and here, asking whether I agree that society should take steps to increase the likelihood that children are raised by their married biological parents and refrain from taking steps that make that less likely.
These are fair questions and I’ll respond below. But first I want to emphasize something unique and valuable in Blankenhorn’s work. In The Future of Marriage, Blankenhorn says he believes homosexuality “is closer to being a given than a choice,” that he “disagrees” with the parts of the Bible that are commonly interpreted to condemn homosexuality, and that Jesus’ teachings are inconsistent with the condemnation of gay people. (P. 210) I’m told that in a recent debate with Jon Rauch, Blankenhorn actually affirmed “the equal dignity of homosexual love.” He also said that he “agonized” over the real harm done to gay couples by prohibiting them from marrying. The debate occurred at the Ethics and Public Policy Center, a think tank for religious and social conservatives, which shows he's unafraid to say these things in environments potentially hostile to them.
If there were more advocates on both sides in the mold of David Blankenhorn, we’d have a much more civil and fruitful debate over gay marriage. It would be terrific if gay-marriage supporters would occasionally acknowledge that it’s at least possible (though very unlikely) that some unintended harm might occur if marriage is expanded to include same-sex couples and that not all anxiety about gay marriage arises from base hatred of gay people. And it would be terrific if gay-marriage opponents could at least acknowledge that they are asking gay couples and families to bear the burden of not running that cultural risk.
Having said all that, I’m a bit disappointed by Blankenhorn’s lack of response to my specific criticisms of his argument. I challenged on several grounds his claim that gay marriage in Europe is contributing to a miasma of anti-marriage attitudes. Blankenhorn offers no defense against the criticism that his argument rests on correlation alone and that this is insufficient to show gay marriage has caused anything bad to happen. He makes no response to the observation that non-traditional attitudes about marriage and family life in pro-SSM countries preceded gay marriage and so could not have been caused by gay marriage. He says nothing about how several other long-term and deep systemic factors likely caused non-traditional attitudes about marriage in Europe long before SSM entered the picture. He ignores correlations in countries with gay marriage that cut in favor of the reform (like rising marriage rates). He passes by correlations in countries without gay marriage that cut against his opposition (less respect for women’s equality, less commitment to individual rights, etc., in countries like Saudi Arabia). He still demonstrates no real familiarity with the complexity of the debate on the left over the effects of gay marriage, and particularly the concerns expressed by many marriage radicals that gay marriage will reaffirm the normativity of marriage.
His only response is that there’s nothing new to respond to. He’s a busy man, so I don’t entirely fault him for this. But it seems to me he has left a lot on the table. That’s his right, and like him I’m content to let readers decide whether he has more to answer at the very heart of his empirical arguments.
Instead, Blankenhorn shifts the focus to other issues. He asks me: “Do you believe that both sides have a valid case? And if you do believe that both sides have a case, what do you think is the strongest point on the other (anti gay marriage) side, and the corresponding weakest point on your side?”
As it happens, I’ve already addressed these issues. As for the best argument against gay marriage, I think it’s a Burkean one that emphasizes the need for continuity and stability in longstanding and widely prevailing practices, that presumes against change in such practices, that rejects abstract arguments for reform rather than ones built on actual experience, and that prefers incremental rather than sudden and convulsive change. I think these Burkean concerns can be answered, but they form a powerful critique of gay marriage that pro-SSM advocates have not paid enough attention to.
There are also some ”Bad Arguments for Gay Marriage.” Among these bad arguments are the emphasis many gay-marriage advocates place on the specific legal rights and benefits marriage provides, rather than on the cultural and social importance of marriage; the heavy focus of the gay-marriage movement on legalistic and constitutional arguments, rather than on policy concerns; and the undoubted desire of some marriage radicals to promote gay marriage as a way to undermine marriage and change civilization.
I don’t share Blankenhorn’s view that gay marriage involves a “conflict of goods,” that is, a trade-off in which either accepting or rejecting the reform will cause harm to some widely accepted social good. Many contentious public policy questions genuinely present a case of goods in conflict. The most prominent example would be abortion, which pits the life of the unborn child against women’s autonomy and equality in society.
But gay marriage is not really a case of goods in conflict because it requires no sacrifice of any public good. Here we get to Blankenhorn’s last question to me:
To me, and to many others, the anthropological evidence is overwhelming that the primary purpose of marriage as a human institution is to give to each child born the gift of the mother and the father whose physical union made the child. Do you, Dale, accept that conclusion and therefore do you agree, along with many leading marriage and family scholars and authorities, that our society ought to do what it can to recognize and strengthen that birthright, and refrain from taking any steps that would be likely to (further) damage or weaken it?
Marriage does not have unchangeable a priori “purposes” that fall from the sky or that are derived from either some abstract principle or from religious authority. The purposes of marriage arise instead from human experience, history, tradition, and actual practice. They can and do evolve as civilization changes and as we learn new things. I think Blankenhorn would agree with me so far, though it would be interesting to know if he does not. (Robert George, for example, would not agree with those claims.)
Based on the actual practice and history of marriage in this country and elsewhere, I agree with Blankenhorn that a (perhaps the) central and important public purpose of marriage has been to encourage men and women who make babies to raise their children within marriage. I also agree that public policy should continue to encourage mothers and fathers to raise their children within marriage and should avoid steps that would discourage them from doing so.
Where we differ is that I see nothing in gay marriage inconsistent with this important purpose. Consider Blankenhorn’s argument about how recognizing gay marriages means losing the primary purpose of marriage:
Every child raised by a same-sex couple will by definition be missing either their mother or their father. It is therefore not possible, or at least extremely hard, to believe both in gay marriage and in the importance of this essential cross-cultural purpose of marriage. The two goods are in conflict; we as a society must choose which we think is more important.
The first sentence is a truism but the second sentence does not necessarily follow from it. It is not impossible, and not even difficult, to believe that gay marriage and man-woman procreation and child-rearing can coexist. Gay marriage will certainly not stop men and women from procreating. It will also not stop them from marrying (they’re marrying at higher rates in countries with SSM). And it will not take a single child away from a man and woman who want to raise that child together in marriage.
But if you doubt any of these things, consider Blankenhorn’s argument in the context of marital and procreational practices that are already widely approved. Let’s apply Blankenhorn’s argument to a different context:
Every child raised in a second-marriage family will by definition be missing either their mother or their father. It is therefore not possible, or at least extremely hard, to believe both in remarriage after divorce and in the importance of this essential cross-cultural purpose of marriage. The two goods are in conflict; we as a society must choose which we think is more important.
Or situate the argument in this context:
Every child raised by an adoptive single parent or two parents will by definition be missing either their mother or their father. It is therefore not possible, or at least extremely hard, to believe both in adoption and in the importance of this essential cross-cultural purpose of marriage. The two goods are in conflict; we as a society must choose which we think is more important.
Or how about this:
Every child created through a surrogate mother or sperm donation will by definition be missing either their mother or their father. It is therefore not possible, or at least extremely hard, to believe both in these assisted reproduction methods and in the importance of this essential cross-cultural purpose of marriage. The two goods are in conflict; we as a society must choose which we think is more important.
None of these statements would get much support in our society, and indeed most people would be puzzled by them. They would bristle at the notion that remarriage, adoption, or assisted reproduction means “[c]hanging the meaning of marriage and normative parenthood” or “changes marriage and parenthood overall — not just for the children in” these households “but for all children.” They would see these claims as unsupported, alarmist, and a bit hysterical.
I doubt Blankenhorn opposes all divorce, remarriage after divorce, adoption by couples or even single people, or these methods by which sterile opposite-sex couples make children. I doubt he thinks they undermine the primary purpose of marriage to bring biological parents together to raise their children. If that’s right, what makes the effect of same-sex marriage on marriage any different? The child raised under circumstances of second marriage, adoption, or assisted reproduction is denied its “birthright” to be raised in a marriage of its biological mother and father every bit as much as if it is raised by neither of its biological parents or by only one of them in a gay marriage.
There is an obvious answer to this: that there is something qualitatively different - - and inferior - - about a homosexual couple as compared to a heterosexual couple in these same circumstances. A great many people opposed to gay marriage would say, “Just so.” Does Blankenhorn? Based on what he’s said publicly about homosexuals, I doubt it.
There is another, and better, possible answer that isn’t homophobic. Remarriage makes the best of a tragedy, the divorce of biological parents (or the death of one of them). Adoption makes the best of another kind of tragedy, one in which biological parents can’t or won’t raise their child. Assisted reproduction helps parents who can’t otherwise have children. All of these public policies are a form of satisficing, choosing a second-best but acceptable alternative where the best choice is unavailable. But we would never say that the law should intentionally create any of these circumstances. Gay marriage, on this view, would be intentionally creating a circumstance in which children are raised outside of the married, biological-parents context; it would not merely be satisficing.
The problem for this argument, as I see it, is that large numbers of children are already being raised by gay parents. By the most conservative estimates, about 1-2 million children are being raised by single gays or gay couples in the United States. These children did not fall from the sky into gay homes. They got there by the same processes that cause them to end up in the homes of opposite-sex parents: a prior marriage that fell apart for any of a thousand reasons, an adoption of a child who’s unwanted by her biological parents, and assisted reproduction where the parents can't otherwise have children.
All of these children — whether raised in heterosexual or homosexual households — are “by definition missing either their mother or their father.” We'd prefer that parents never got divorced, that children (especially the sick, infirm, and older children) never went begging for adoptive homes, or that couples could reproduce on their own. But that is not the world we live in. We live in a world where we must make the best of what we're dealt. Gay people live in that world too.
We could go one of two directions with these hard realities. The first is that suggested by proponents of gay marriage. We say, in effect, “When it comes to the welfare of children, gay marriage is a form of satisficing on a par with heterosexual remarriage, adoption, and assisted reproduction. It binds up otherwise broken families, provides a loving and stable environment for kids whose biological parents can’t or won’t raise them, and gives couples who can't have a child the chance to raise one they can call their own.”
The second option is a stark, prohibitionist one. We could forbid gay people to raise children, even their own biological children; we could prohibit them from adopting children; and we could bar them from using methods of assisted reproduction. Then, at least when it comes to children, there would be no need for gay marriage as a form of satisficing. Yes, the prohibitionist approach would entail huge upheaval for these particular children and for their gay parents. It would be heartbreaking. But perhaps it would be worth it if you really believe “the future of marriage” is at stake.
Other than continuing to ignore the dilemma, which a lot people would prefer to do, I do not see a viable and stable third way between gay marriage and prohibition that serves the interests of children being raised by gay people (though of course we could call the gay couple’s relationship something other than marriage).
So at this point I have some questions for Blankenhorn. Does he support the prohibitionist route? Does he believe children should be taken away from their gay parents and placed in foster care until they can be adopted by a loving substitute married man and woman? Does he oppose allowing gay people, either singles or couples, to adopt children? To use the services of a sperm donor or surrogate mother?
If he does not oppose these things, then he necessarily believes these children and future children by the millions should be raised by gay singles and couples who will never marry. Does this not undermine the idea that marriage should be the situs for raising children?
And does he believe the children being raised by gay families would be better off, worse off, or unaffected by the ability of their parents to marry?
In a coming post, I’ll have more to say about purposes of marriage other than the generative one Blankenhorn has recently highlighted.
DOJ Ends Role of Political Appointees in Honors Program Hiring:
The Washington Post has the story here. From the introduction: The Justice Department is removing political appointees from the hiring process for rookie lawyers and summer interns, amid allegations that the Bush administration had rigged the programs in favor of candidates with connections to conservative or Republican groups, according to documents and officials.
The decision, outlined in an internal memo distributed Thursday, returns control of the Attorney General's Honors Program and the Summer Law Intern Program to career lawyers in the department after four years during which political appointees directed the process.
Did British Government Push Worthless Carbon Credits?
Yesterday the Financial Times reported on accusations that the British Department for Environment, Food and Rural Affairs (DEFRA) has encouraged British companies to purchase carbon dioxide emission credits that do not actually produce carbon reductions.
The first charge against Defra is that under a proposed code of practice, it has been advising businesses and consumers wishing to offset their emissions to buy carbon credits through the European Union or UN carbon trading scheme. However, phase one of the scheme was discredited last May for flooding the market with too many permits to achieve any emissions cuts.
With so many carbon trading schemes on the market, many British companies were keen to follow official advice. However, the result is that many were persuaded to buy environmentally worthless carbon credits.
Assessing the Benefits of Higher Education:
At the always excellent Becker-Posner blog, Nobel Prize winning economist Gary Becker and Judge Richard Posner debate the value of higher education. I largely agree with Becker's assessment that the economic benefits of higher education to students are real and growing. Posner, however, claims that the large income gains accruing to college graduates are largely the result of credentialism, because colleges help employers screen job applicants for intelligence and dedication:
[C]olleges and graduate (including professional) schools provide a screening and certifying function. Someone who graduates with good grades from a good college demonstrates intelligence more convincingly than if he simply tells a potential employer that he's smart; and he also demonstrates a degree of discipline and docility, valuable to employers, that a good performance on an IQ test would not demonstrate. (This is an important point; if all colleges did was separate the smart from the less smart, college
would be an inefficient alternative to simple testing.)
This is a very common argument, but I think it is seriously flawed. If the benefits of a university education mostly come down to "screening and certifying," one would think that the market could provide a way of achieving this objective without spending four years and tens (sometimes hundreds) of thousands of dollars in tuition. "[D]iscipline and docility" could be easily demonstrated through good performance in an entry-level job of the type that many college students do anyway - such as working part time at McDonald's or serving an internship. For that matter, many college students have already proven their discipline and docility through good performance in high school and in jobs they held as teenagers.
And, as Posner points out, you don't need college to prove your intelligence. A standardized test (or perhaps a battery of such tests) would suffice. Even if college is needed to prove one's discipline, docility, or intelligence, it is hard to see why it should take four years of school to do it. One year of good grades should be enough.
At least to a large extent, Becker must be right and Posner wrong: the benefits of a college education go well beyond screening and credentialing. However, there are a couple of caveats to this happy conclusion. First, college education is heavily subsidized by government, whereas other methods of screening and certification are not. Therefore, some students who could otherwise prove their intelligence and discipline in cheaper ways might choose to go to college instead. Second, many students probably attend school in large part because of the social benefits rather than the economic ones. College provides a great social scene for young people! This fact makes it more attractive to many high school graduates than other certification methods. I'm all in favor of students going to college to socialize, but I don't believe they should get government subsidies to do so. Finally, it's worth noting that neither of these reservations apply with the same force to graduate school and law school. These programs are much less heavily subsidized than undergraduate education, and they usually have a much less happening social scene. So if you really want to make a good economic investment in your human capital, get a graduate degree:).
CONFLICT OF INTEREST WATCH: Obviously, I'm a professor, so I have a vested interest in persuading people that higher education is a good investment. Caveat lector! (Reader Beware!).
Gun Charges Dropped Against Sen. Webb's Aide:
AP reports:
Authorities dropped charges Friday against an aide to Virginia Sen. Jim Webb who carried a loaded gun into the U.S. Capitol complex.
"After reviewing and analyzing all of the evidence in the case, we do not believe the essential elements of the crime of carrying a pistol without a license can be proved beyond a reasonable doubt," U.S. Attorney Jeff Taylor, top prosecutor in the District of Columbia, said in a short statement.
Webb senior aide Phillip Thompson, 45, was arrested on March 26 after Capitol Police spotted the loaded pistol and two other loaded magazines in a briefcase being scanned by an X-ray machine at the entrance of the Russell Senate office building.... Webb told reporters Thompson had carried the gun into the building "completely inadvertently."
Thanks to Dan Gifford for the pointer.
Friday, April 27, 2007
Kansas Legislature over-rides licensed carry veto
The Wichita Eagle reports that the Kansas State Senate this afternoon successfully voted to over-ride Governor Kathleen Sebelius' veto of a preemption law for concealed handgun carrying. The House over-rode the veto yesterday.
Last year, Kansas enacted a "shall issue" law for the licensed carrying of handguns for lawful protection. The new bill specifies that local governments may not create pretend "gun free zones" which exclude licensed carry.
Under the bill, public or private entities may still ban guns in buildings or enclosed fenced areas (but not in parking lots, parks, or other open public spaces). If the place is open to the public, the business/government must post a notice. The bill also preempts local laws on transportation or storage of firearms, to the extent that they are inconsistent with state law. In addition, the bill requires that relevant mental health adjutications from Kansas courts be reported to the Kansas Bureau of Investigation.
Congratulations to Kansas State Senator Phil Journey, the leader of the pro-rights forces in the legislature.
Kopel vs. The Economist, Round 5
In the finale of my Los Angeles Times on-line debate with Christopher Lockwood, the U.S. editor of The Economist, we each get a magic wand with which to create whatever gun laws we would like. He offers some proposals which, he frankly admits, are politically impossible. Waving my Wand of Sensible Consensus I propose:
1. Don't disarm people whom the government will not/cannot protect.
2. Good policemen don't own bad guns. So if a gun ban has a police exemption, its premises are probably flawed, as I show with some examples.
3. Obey the Constitution. If it's too hard to do that all at once, start with Article I. So "interstate commerce" is not equivalent to "everything," and so Congress stops exercising the usurped power to regulate/prohibit things like simple intrastate possesion of guns.
4. Recognize that guns can be used for good and for bad. Make sure that gun policies enhance, rather than destroy, the widespread social benefits which flow from guns in the right hands.
It was a great honor to debate Mr. Lockwood, and I hope that our exchanges can help people on all sides of the gun issue approach it with greater understanding.
Obesity and Farm Subsidies:
I just came across this article that argues that one cause of rising obesity, especially among lower-income families, is farm subsidies. The key, it seems, is that the nature of farm subsidies has changed over time. They were once designed to keep prices artificially high, which of course, would have made food more expensive. The article says that today, by contrast, farm subsidies are tied to production, thus subsidizing increased output. The result is to drive down the price of the least healthful foods relative to others:
For the answer, you need look no farther than the farm bill. This resolutely unglamorous and head-hurtingly complicated piece of legislation, which comes around roughly every five years and is about to do so again, sets the rules for the American food system — indeed, to a considerable extent, for the world’s food system. Among other things, it determines which crops will be subsidized and which will not, and in the case of the carrot and the Twinkie, the farm bill as currently written offers a lot more support to the cake than to the root. Like most processed foods, the Twinkie is basically a clever arrangement of carbohydrates and fats teased out of corn, soybeans and wheat — three of the five commodity crops that the farm bill supports, to the tune of some $25 billion a year. (Rice and cotton are the others.) For the last several decades — indeed, for about as long as the American waistline has been ballooning — U.S. agricultural policy has been designed in such a way as to promote the overproduction of these five commodities, especially corn and soy.
That’s because the current farm bill helps commodity farmers by cutting them a check based on how many bushels they can grow, rather than, say, by supporting prices and limiting production, as farm bills once did. The result? A food system awash in added sugars (derived from corn) and added fats (derived mainly from soy), as well as dirt-cheap meat and milk (derived from both). By comparison, the farm bill does almost nothing to support farmers growing fresh produce. A result of these policy choices is on stark display in your supermarket, where the real price of fruits and vegetables between 1985 and 2000 increased by nearly 40 percent while the real price of soft drinks (a k a liquid corn) declined by 23 percent. The reason the least healthful calories in the supermarket are the cheapest is that those are the ones the farm bill encourages farmers to grow.
Rather than the many silly ideas for combatting obesity that we often hear today, one would think that getting rid of farm subsidies for less-healthy foods would make sense, not to mention the budget savings. But I'm not holding my breath.
(When I initially posted this I had a grammatical glitch in the final paragraph which I have tried to remedy).
Here's a Great Idea for Solving the Drug Problem:
Let's make it a crime to possess them, and enforce it this way:
Special squads of police would be formed and trained to carry out the work. Then, on a random basis to permit no advance warning, city blocks and stretches of suburban and rural areas would be cordoned off and searches carried out in every business, dwelling, and empty building. All drugs would be seized. The owners of drugs found in the searches would be prosecuted.
Fairly quickly there would begin to be drug-swept, drug-free areas where there should be no drugs. If there were, those carrying them would be subject to quick confiscation and prosecution. On the streets it would be a question of stop-and-search of anyone, even grandma with her walker, with the same penalties for possessing.
America's long land and sea borders present another kind of problem. It is easy to imagine mega-drug dealerships installing themselves in Mexico, to funnel drugs into the United States. That would constitute a problem for American immigration authorities and the U.S. Coast Guard, but not an insurmountable one over time.
Not persuaded? Think this might be a Fourth Amendment violation, maybe? Even if you approve of the criminalization of drugs, do you think this might be taking things too far?
Oh, wait, I got the noun wrong — this is actually a proposal, written by Dan Simpson, an editorial board member at the Toledo Blade and the Pittsburgh Post-Gazette:
[H]ow would one disarm the American population? First of all, federal or state laws would need to make it a crime punishable by a $1,000 fine and one year in prison per weapon to possess a firearm. The population would then be given three months to turn in their guns, without penalty.
Hunters would be able to deposit their hunting weapons in a centrally located arsenal, heavily guarded, from which they would be able to withdraw them each hunting season upon presentation of a valid hunting license. The weapons would be required to be redeposited at the end of the season on pain of arrest. [Details omitted. -EV]
The disarmament process would begin after the initial three-month amnesty. Special squads of police would be formed and trained to carry out the work. Then, on a random basis to permit no advance warning, city blocks and stretches of suburban and rural areas would be cordoned off and searches carried out in every business, dwelling, and empty building. All firearms would be seized. The owners of weapons found in the searches would be prosecuted: $1,000 and one year in prison for each firearm.
Clearly, since such sweeps could not take place all across the country at the same time. But fairly quickly there would begin to be gun-swept, gun-free areas where there should be no firearms. If there were, those carrying them would be subject to quick confiscation and prosecution. On the streets it would be a question of stop-and-search of anyone, even grandma with her walker, with the same penalties for "carrying." ...
America's long land and sea borders present another kind of problem. It is easy to imagine mega-gun dealerships installing themselves in Mexico, and perhaps in more remote parts of the Canadian border area, to funnel guns into the United States. That would constitute a problem for American immigration authorities and the U.S. Coast Guard, but not an insurmountable one over time....
Well, then, that's sure to work!
Of course, I realize the guns-drugs analogy isn't complete. Drug addicts aren't quite the same as criminals who want guns for their crimes; gun and drug detection problems are different; drugs aren't used for self-defense; neither the federal nor state Constitutions mention a right to have drugs; we can add to the list. But it does seem to me that a War on Guns, with unannounced random searches on streets and in homes, should be highly unappealing to anyone who has even some reservations about the War on Drugs, and questionable even to those who support the War on Drugs.
Oh, and don't forget: No-one is trying to take away your guns; people's concerns about that are just a "gun lobby ... bogeyman."
Craziest:
Here's a letter to the editor of the Denver Post from Dr. Paul Hsieh, a libertarian M.D. in Colorado (and also the author of the fantastic GeekPress blog):
Health care is not a right, and it is not the proper role of government to provide health care for all citizens. Instead, this should be left to the free market. It is precisely the attempts of the governments of countries like Canada (or states like Tennessee) to attempt to mandate universal coverage which have led to the rationing and waiting lists for vital medical services. Similar problems are already starting to develop in the Massachusetts plan as well. Any plan of government-mandated "universal coverage" is nothing more than socialized medicine, and would be a disaster for Colorado.
Paul S. Hsieh, M.D., Sedalia
You may agree with Dr. Hsieh's view, or you may disagree with it, but it seems quite sane and calm for a paragraph-long letter to the editor (a hard format to shine in).
But according to Denver Post staff columnist Jim Spencer, it's the "craziest letter to the editor that [he's] read in some time" and a "rant" to boot:
The craziest letter to the editor that I've read in some time came from a physician who claimed that Coloradans have no right to health care.
Seems the guy not only forgot his Hippocratic oath but also the law.
If you're sick enough or badly injured, they have to treat you at the emergency room regardless of your ability to pay.
The doctor aimed his editorial rant against socialized medicine. But he wrote it because a state blue-ribbon commission is now cobbling together a plan for medical treatment and prescription drugs for Coloradans....
Oddly enough, I didn't see anything the Hippocratic oath about governmental obligations to pay for medicine. Nor is there much evidence that Dr. Hsieh has "forgot[ten] ... the law" about emergency room treatment requirements; in context, "[h]ealth care is not a right" sounds like a statement about moral rights, not statutorily imposed legal obligations.
But on top of that, let's shift for a moment from the Hippocratic oath to sensible journalistic standards, even for columnists. Is it good for a newspaper when its staffers (again, even columnists) treat thoughtful disagreement from readers as "craz[y]" and as a "rant"? Is such an attitude likely to lead the columnists to be thoughtful analysts? Should it instill confidence in their readers?
That's a relief:
It turns out I'm a male. So are all of my co-conspirators, at least according to this test.
On the other hand, Maggie Gallagher is also male. (Paste this in the gender testing box.) And David Blankenhorn is a closet female (Paste this in the box; start with "At the Volokh Conspiracy..." and end with "23 good reasons to favor the change").
(Thanks to Andrew Sullivan, who's very male.)
Global Warming and "Beachfront Property" (Inspired by Steven Landsburg):
It has been great having Steven Landsburg here this week. In fact, as I sat in my hearing this morning, I couldn't help but think how the composition of the committee and the types of questions and concerns might be different if Landsburg's electoral reforms were adopted.
His post today on FDA and pharmaceutical stocks brought to mind a related (although not identical) observation. I don't have any special knowledge of the science of global warming, whether it is actually ocurring and if so, how great its impact will be.
But I do understand economics. And if believers in global warming are so certain that it is going to occur that they are willing to impose taxes and other coercion in order to combat it, why aren't they buying up all the land 300 yards or so from the current beach, or wherever they expect the sea level to rise to in the future? Shouldn't Al Gore be cornering the market on coastal land twenty feet above today's sea level? Surely that land must be a bargain today compared to what it will be worth if his predictions are accurate.
After all, it has long been understood that the orange juice futures market predicts the weather more accurately than the disinterested experts at the National Weather Service. See Richard Roll, "Orange Juice and Weather," 74 American Economic Review 861-880 (1984). I have not heard of any run on future beachfront property that is 20 feet above sea level today. Nor have I heard of any collapse in the value of current beachfront property.
If no one is willing to put their money behind the theory--unlike the orange juice market--how confident are they really in their predictions?
As I wind down my week of guest blogging, I want to thank Eugene for the invitation and the many readers who offered thoughtful commentary.
Each day brought forceful reminders that not everyone sees the world as economists do. When I observed that a policy of federal disaster assistance tends to raise property values in disaster-prone areas, several commenters dismissed the observation as idle speculation and called for evidence. I am frankly flabbergasted by this. There is no lack of evidence that when assets are made more desirable, their prices rise; that's why a Lexus sells for more than a Subaru. There is no lack of evidence that markets see reductions in risk as desirable; that's why the return on stocks beats the return on bonds. One doesn't need evidence specific to the housing market in New Orleans to be pretty sure that New Orleans housing conforms to the general rule.
There's also a wealth of evidence that goods with similar attributes sell for similar prices, so we really can be pretty confident that the value of federal disaster assistance---incorporated in housing prices---is roughly equal to what private disaster insurance would sell for. The evidence for general propositions of this form is so overwhelming, and so much a part of economists' everyday lives, that it's easy for us to forget that not everyone has digested it.
It does follow that if residents in those areas would not have chosen private disaster insurance, then a policy of federal disaster assistance does them no favor. We know that because we trust logic, just as we trust evidence.
This is not to say that the argument is airtight; like most arguments, it's not. Adam Scales, among others, had some interesting counter-thoughts. But it is to say that there's a genuine argument here, backed by decades of relevant research on the ways in which prices reflect risk. Evidence for a general principle is evidence for a special case.
I'll close with one last plug for my book, which is dedicated to the proposition that logic and evidence trump both idle speculation and common sense---including the idle and perhaps common-sensical (but nonetheless wrong) notion that you can improve the performance of an asset without affecting its price.
Deth-th-thpicable:
A Washington Monthly e-mail featured a column by Rachel Morris faulting Rudy Giuliani:
This Tuesday in New Hampshire, Rudy Giuliani gave a speech on terrorism that has already attracted attention for its retro (c. 2002) theme: that America is headed straight for another 9/11 if a Democrat wins the White House. "America will be safer with a Republican president," Giuliani announced. Democrats, by contrast, would simply "wave the white flag." ...
But the most disturbing thing about the speech wasn’t its style -- although milking one’s 9/11 reputation for crass political gain is, obviously, despicable. It was the rationale that lies behind it....
Now Giuliani's speech may well be unsound; I'm not a Giuliani partisan, and I have no desire to defend it on the merits. But I'm puzzled, as I often am about such arguments, by the claim that "milking one's 9/11 reputation for crass political gain is, obviously, despicable."
It seems to me that in a democracy, politicians are supposed to milk their reputations built on past successes for political gain, such as higher public office. ("Crass" here seems more a pejorative label than much of a limiting principle; Giuliani wants higher office, and that office would be no more and no less a crass political gain for him than for anyone else.) That's the incentive system: Do things that the public sees as successes. Build your reputation. Get more credibility when you discuss similar matters. Get elected or appointed to higher office when those matters are prominent in the public's mind.
Nor should there be something sacred about successes in dealing with deadly disasters or attacks that keeps them from being used this way. These are precisely the areas where we most want to give politicians an incentive to shine, and where we most want to reward politicians who have shone.
Imagine a surgeon who, in the wake of some disaster, does what many see as a superb job of saving many patients. He then goes to hospital managers and says that the hospital's patients will do better if he (rather than his rivals who he thinks haven't shown such skills) were given a promotion to an even more responsible surgical position.
Would we fault him because "milking [his] reputation [formed during a deadly disaster] for crass [careerist] gain is, obviously, despicable"? I think we'd say that it's good to make sure that hospital employees are rewarded for great performance, since that provides an extra incentive for great performance. (Sure, you'd hope that humanitarianism would be incentive enough, but harnessing selfish interests as well as selfless concerns for the public benefit produces better results than relying merely on selflessness.) And we'd probably even say that he has a point: If he did a great job before, maybe that is some evidence he'd do a great job again.
Now we might fault the surgeon if he seems too self-confident. We might ask whether indeed he performed as well as it seems at first. If he also derides his competitors, we might ask whether his criticisms are sound. But we wouldn't see anything despicable about his "milking [his] reputation" for his own professional gain. That's what professionally acquired reputations are for.
So I say again: Maybe Giuliani's speech can be faulted on all sorts of substantive grounds. But we should encourage politicians to run on their reputations, and encourage them to do things that would build reputations that can get them ahead. And this is especially so when the reputations are for sound leadership in tragic circumstances, where we need sound leadership most.
Thursday, April 26, 2007
Steve Teles on The Hollow Hope:
Steve Teles, guest-blogging at Balkinization, has a long post on Gerald Rosenberg's "The Hollow Hope." Teles is responding in part to Mark Graber, whose comments are here.
Judge Kozinski and the Blogosphere:
Professor Eric Goldman recently hosted a talk with Judge Kozinski of the Ninth Circuit that touched on Kozinski's views about blogs: ERIC GOLDMAN: So but what about blogs? . . .
JUDGE ALEX KOZINSKI: I hate them, hateful things.
ERIC GOLDMAN: Why do you hate blogs? . . . .
JUDGE ALEX KOZINSKI: I just think it's so self-indulgent, you know. "Oh, I'm so proud of what I'm saying, I think the world instantly wants to know what I'm thinking today." People wake up thinking, . . . . "I wonder what great thoughts have come into his mind this morning that I can feel myself edified by. I can't really have breakfast — really enjoy my day — until I hear the great thoughts of Howard Bashman!"
I don't think so. I go for months without ever knowing what Howard has to say. So I don't know. I find it sort of self-indulgent. And I find it grandiloquent. And I find it annoying, particularly if I'm in an audience and people are sitting there typing in their computers. Listening to the tape, it sounds like Judge Kozinski is exaggerating a bit for comic effect. Still, I guess his views have changed a lot since his campaign to be elected the #1 Male Superhottie of the Federal Judiciary. Hat tip: Howard, naturally.
The Relationship between Guns and Burglary:
Do guns in the home deter burglary? Or cause burglary? Or both, in different ways, at different levels? If you'd like to study the topic, here's are some on-line starting points.
1. My article Lawyers, Guns, and Burglars, 43 Arizona Law Review 345 (2001), looks at previous national and international research, and argues that the high rate of defensive gun ownership in the U.S. deters home invasion burglary.
2. In the book Evaluating Gun Policy: Effects on Crime and Violence (Brookings Institution, 2003), Philip J. Cook & Jens Ludwig conduct a county-level study of the U.S., and find higher gun ownership rates associated with a small increase in burglary rates. The chapter (as a NBER working paper) is available here.
3. In the same book, I have a Comment which questions the Cook/Ludwig conclusion.
Although I do not agree with all the policy conclusions in the book, the book does present very interesting research, and among the most sophisticated arguments for gun control to be found anywhere.
Kopel vs. The Economist, Round 4
Today on the Los Angeles Times website, Christopher Lockwood (U.S. editor of The Economist) and I each attempt to debunk cherished myths in the gun control debate. His article is really a reply to my Wednesday article on the international aspect of the gun issue; I think it's his best contribution so far.
Thanks to a post from a VC commenter, I was inspired to successfully convince the LA Times folks not to say that we are debunking (or attempting to debunk) "shibboleths." A shibboleth is a linguistic style (such as pronouncing a word a certain way, using a certain phrase, or using a special grammar) which a group uses to distinguish its members from outsiders. So a shibboleth can't really be "debunked" as factually inaccurate — unless it's an inefficient shibboleth, which doesn't accurately separate insiders from outsiders.
Thanks to an excellent Wikipedia entry on shibboleths, I learned that rule against splitting infinitives isn't really a true rule of English grammar, but a shibboleth invented by the late 19th-century upper class English; Latin infinitives are only a single word, so the shibboleth-makers decided that English infinitives should act more like Latin infinitives. After so many years of unnecessary non-splitting, I am now eager to freely split infinitives.
A.U.C.:
I just noticed that the Seventh Circuit — following the ancient Romans, and, if I recall correctly, the revolutionary French — has the following date format in its bar admissions certificates (emphasis added):
November third in the year of our Lord two thousand six and the Independence of the United States of America the two hundredth and thirtieth year.
Cool. The Ninth Circuit, doubtless stemming from the radicalism so often ascribed to it by critics, simply says "12th day of December, 2006" — both less God and less country, if you want to complain (which I don't).
UPDATE: A reader reports that the "year of independence" is standard on commissions for U.S. government officials.
Two Justices' Concurring Opinion in the Radio-Talk-Show-Speech-as-Regulated-"Contribution" Case:
Here's the concurrence of Justice James M. Johnson, joined by Justice Richard B. Sanders, in the Washington Supreme Court decision I noted below. The Justices are arguing in favor of awarding attorney fees to the ballot measure campaign (something that the rest of the court left to the trial court to decide in the first instance); but they also more stridently condemn the prosecutors' action:
Today we are confronted with an example of abusive prosecution by several local governments. San Juan County and the cities of Seattle, Auburn, and Kent (hereinafter Municipalities) determined to file a legal action ostensibly for disclosure of radio time spent discussing a proposed initiative. This litigation was actually for the purpose of restricting or silencing political opponents and was quickly dismissed after the filing deadline for the initiative. The disregard for core freedoms of speech and association in this case, and resulting interference with these constitutional rights, is described in the majority. The Municipalities augmented their prosecuting attorneys and legal staff with an interested private law firm to engage in this prosecution of No New Gas Tax (NNGT), in a transparent attempt to block filing of an initiative, which is also a constitutional right in Washington.
I concur with the majority's holding construing the statute in a constitutional manner to not apply to the political speech of the defendants. I write separately to emphasize that the contrary positions of the Municipalities and court below resulted in infringing constitutional rights. Thus, the majority properly reverses and remands for further proceedings. At the least, this remand requires that NNGT receive reasonable attorney fees and trial costs....
The Municipalities involved expected millions of dollars from increased tax revenue if Initiative 912 (I-912) failed to qualify for the ballot. The private law firm would potentially derive financial benefit from its role as one state bond counsel and volunteered to help litigate against NNGT "on behalf of the State of Washington." (The term "pro bono publico" is not appropriate here.)
An early motion in the Municipalities' litigation resulted in this preliminary injunction, which had the effect of requiring Fisher Communications and radio station 570 KVI to limit discussion of I-912 on the radio. NNGT argues that the "record is clear that the Municipalities sued NNGT to interfere with its efforts to pass I-912." I agree.
The preliminary injunction required that KVI's on-air commentary be counted as an in-kind campaign contribution reported before any further campaign expenditures. Since the injunction mandated nearly immediate reporting, and it was not possible to completely segregate the relevant portions of the talk show, almost all the air time was reported. The full effect of this injunction's characterization of talk show commentary as in-kind contribution is evident when RCW 42.17.105(8) is also considered. That statute states in relevant part any in-kind campaign contribution in excess of $5,000, within 21 days of the general election, is a violation of the Fair Campaign Practices Act (FCPA). Id. Thus, the injunction was "chilling" of speech because of the substantial risk that KVI on-air commentary regarding NNGT, in the three weeks preceding the general election, would be a donation in excess of the $5,000 cap, thereby incurring financial sanctions. The majority noted that the Public Disclosure Commission (PDC) determined after the preliminary injunction that the $5,000 limit would apply. Additionally, the Municipalities' complaint requested penalties, treble damages, attorney fees, and costs....
Clearly, "the First Amendment prohibits the State from silencing speech it disapproves, particularly silencing criticism of government itself. Threats of coerced silence chill uninhibited political debate and undermine the very purpose of the First Amendment." Prosecutors must not use the threat of a punitive lawsuit, amounting to an unconstitutional prior restraint on free speech, to block political opponents from exercising their constitutional rights.
Granting NNGT complete reasonable attorney fees and trial costs is appropriate and required here. This may serve to deter future state actors from using their authority to act similarly to deprive individuals of constitutional rights of speech (or initiative)....
In the instant case, it appears that the Municipalities' prosecution of the case, and especially the preliminary injunction, was calculated to muzzle media support of the NNGT initiative. This behavior sought to keep the initiative from ballot qualification during the very limited window between passage of the disputed legislation and the initiative filing deadline. This lawsuit was not justified under the law (the majority so holds) and was offensive to the notion of free and open debate.
By the way, congratulations to our own Erik Jaffe, who I just noticed was on two of the amicus briefs in this case.
What About Bloggers Arguing for Ballot Measures in Washington State?
As I note below, the Washington Supreme Court just confirmed that radio talk show hosts' advocacy of a ballot measure is not regulated as a campaign "contribution" under Washington state law, because the advocacy is exempted by the "media exemption," which excludes
A news item, feature, commentary, or editorial in a regularly scheduled news medium that is of primary interest to the general public, that is in a news medium controlled by a person whose business is that news medium, and that is not controlled by a candidate or a political committee ....
But what if a part-time but very popular blogger (think of the PowerLine people, for instance) advocates for a ballot measure? Uh-oh -- the media exemption only covers media "controlled by a person whose business is that news medium." The site is likely a "news medium" (news is understood here to include opinion). But even if the site makes some money, if it's a part-time sideline for the blogger (assume it's a solo blog, just for the sake of simplicity), it doesn't sound quite accurate to say that the blogger's "business is that news medium." And that's even clearer if the site makes no money at all, or only a tiny amount (not implausible even for a site that's prominent enough that its backing may be quite valuable to a campaign).
The blog posts supporting the ballot measure may thus have to be reported as contributions. What's more, state law would limit them to $5,000 worth of help (whatever that means for a blog) "within 21 days prior to [the] election."
So too bad for you, concerned citizen: Unless your "business is [a] news medium," you're regulated. The established, professional media are of course exempt; but, no, not you.
This fortunately doesn't seem to be the case under federal law (though we can't be entirely certain); but though the Washington Supreme Court's decision suggests that Washington courts interpreting the Washington statute should generally follow federal courts' interpretation of the federal statute, here there is an express statutory difference between the two statutes -- the Washington statute has the "business is that news medium" clause, and the federal one doesn't.
Talk Show Hosts Allowed To Freely Advocate for Ballot Measure:
You might think there wouldn't need to be a court decision about this — but it turns out such a decision was necessary. Some excerpts from today's Washington Supreme Court opinion:
Kirby Wilbur and John Carlson are radio talk show hosts with regularly scheduled programs on 570 KVI AM, a radio station owned by Fisher Communications, Inc. During their broadcasts, Wilbur and Carlson typically discuss their views on political and social issues. Fisher charges for political advertising during the "commercial" segments of its radio programs, but it does not charge for the value of any content time associated with Wilbur's and Carlson's talk shows.
Wilbur and Carlson strongly criticized the legislature's enactment of the fuel tax and devoted a substantial portion of their radio broadcasts to supporting the I-912 [No New Gas Tax / NNGT] campaign. In particular, they encouraged listeners to contribute funds to NNGT, to visit NNGT's web site and offices to obtain petitions, and to circulate and gather signatures on the petitions in order to qualify the initiative for the ballot.
On June 22, 2005, the prosecuting authorities of San Juan County and the cities of Kent, Auburn, and Seattle filed a complaint against NNGT, alleging that it violated the disclosure provisions of the FCPA by, in part, failing to report "valuable radio announcer professional services and valuable commercial radio air-time" as a campaign "contribution" under RCW 42.17.020(15)(a)....
About two weeks before the deadline to qualify the initiative for the ballot, the prosecutors sought an injunction to prevent NNGT "from accepting in-kind contributions from Fisher Communications" until it complied with the disclosure requirements. The prosecutors also sought fines, investigation costs, and an award of attorney fees....
The trial court granted a preliminary injunction, finding that NNGT had received "contributions of air time for political advertising purposes in support of Initiative 912 from Fisher Communications, owner and operator of the radio station 570 KVI." The court also found that Fisher's "donation of free air time" is a reportable "contribution" and required NNGT to disclose its value to the PDC.
Counsel for NNGT requested clarification of the trial court's order, stating, "I'm not sure what you're asking us to do, and here is my problem, your Honor. How are we to decide what is political advertising and what's not?" The trial court declined to clarify its order, stating "you have the same problem that any other candidate or campaign has in trying to understand how to make full reporting, and I'm not inclined to treat you any differently." In compliance with the order, NNGT reported a $20,000 contribution from Fisher Communications. NNGT also reported the value of other media discussions in support of the ballot measure....
But this wasn't just about disclosure: In addition to the disclosure requirement, Washington law "ma[kes] it illegal to either give or receive a contribution of more than $5,000 to any campaign within 21 days of an election." NNGT therefore asked the court of appeals to issue an emergency stay of the court order:
Fisher's vice-president and general manager, Robert I. Dunlop [Fisher is the company that owns the radio station], signed a declaration stating:
We would have no way to assess when or whether a "$5,000" threshold would be crossed. Therefore, I will have to direct Mr. Carlson and Mr. Wilbur to not discuss I-912 during the content portions on their programs to avoid this risk [of violating the contribution limit] because Fisher Seattle Radio does not wish to face a possible prosecution for violation of the Fair Campaign Practices Act
The court of appeals denied the stay.
Now the good news: The Washington Supreme Court held that the trial court's decision is wrong, and that talk show hosts are covered by the "media exemption" from Washington campaign finance law — an exemption that excludes from regulated "contributions" any
news item, feature, commentary, or editorial in a regularly scheduled news medium that is of primary interest to the general public, that is in a news medium controlled by a person whose business is that news medium, and that is not controlled by a candidate or a political committe even when they spend a lot of time supporting a campaign.
This is true regardless of whether the talk show hosts get heavily involved in the political campaign, and whether they coordinate their speech with the campaign committee. It is also true regardless of whether the talk show hosts encourage listeners to contribute to the compaign; the Washington Supreme Court expressly overruled a Washington Public Disclosure Commission declaratory order stating that "if the talk show host uses the air time to solicit votes, funds, or volunteer services, or expressly advocates either in favor of his campaign or for the defeat of his opponent, the air time constitutes a reportable contribution."
As I said, one would have hoped that it wouldn't take years of litigation, even temporary suspension of talk show hosts' political advocacy, and who knows how much money (though apparently it was the Institute for Justice's money) to establish this. Still, at least it's established — at least in Washington. Congratulations and many thanks to the Institute for Justice's Washington State chapter for the victory.
Of course, keep in mind that, "We note that nothing in our decision today forecloses the legislature, or the people via the initiative process, from limiting the statutory media exemption. Whether, and to what extent, a media exemption is constitutionally required is beyond the scope of this opinion." So maybe the Washington legislature could, according to modern campaign finance law, heavily regulate talk show hosts, and even shut down their advocacy (if the $5000 contribution cap, and not just the disclosure requirement, were upheld — something I don't think could happen, given the Supreme Court's First National Bank of Boston v. Bellotti decision, but who knows?). A pretty sad state of affairs, it seems to me, despite the happy result in this particular decision. (For more on the sadness, see the next post in this chain, which discusses why part-time bloggers may be excluded from this protection.)
Choosing among Climate Policy Instruments:
The climate policy debate is rapidly moving away from the question of whether action should be taken and toward the question of what sort of policy should be implemented. In this context, many advocate market-based emission control strategies as a means of reducing the inevitable costs of controlling carbon emissions, but what sorts of market-based policies are truly desirable?
In theory, there is not much difference between a pollution tax and a tradeable emission credit regime. In theory this is correct because a supply limitation can operate as a tax, and vice-versa. In practice, of course, the two programs are not equivalent. Among other things, policy makers lack the necessary information to know what tax level would be equivalent to what supply restraint, but this is hardly the only difference.
As is so often the case, transactions costs are important in choosing between available environmental policy instruments. There are significant transaction costs to creating either a pollution tax or an emission trading scheme, but the costs are unlikely to be the same. As the economist Ronald Coase pointed out in his work on firms, hierarchical command structures are sometimes less costly than competitive market transactions due to transaction costs. This is why we see non-market firm structures in the marketplace. The prevalence of these firm structures will diminish (or shift) as entrepreneurs find ways of reducing transaction costs. In the meantime, however, we should expect to see many successful firms with hierarchical command structures.
In the environmental context, the persistence of transaction costs means that market-mechanisms are not always more efficient or cost-effective than their command-and-control alternatives. This is particularly true when one is dealing with pollution problems that are highly dispersed and involve a wide range of different types of pollution sources. It may be relatively easy to design and implement a trading regime for sulfur emissions from utilities or the lead content of gasoline. It is much more difficult to have a reliable and enforceable trading regime for carbon dioxide emissions from non-industrial activities. The upshot is that a trading regime will not always be more cost-effective than a more traditional regulatory regime if it is more costly to monitor and enforce (see, e.g., carbon offsets). Pollution taxes have their own problems, to be sure, but in my experience the drawbacks of a new tax are more readily apparent, and more quickly seized upon, than the potential drawbacks of trading schemes.
Another consideration in choosing between various emission control strategies is that there is reason to believe that cap-and-trade programs are more vulnerable to rent seeking than are emission taxes designed to achieve equivalent reduction levels. Implementation of a cap-and-trade regime requires many more decisions about regulatory design than a tax regime, and that each decision presents the opportunity for rent-seeking behavior. While a tax can be designed to be relatively uniform, implementing a trading scheme necessarily requires many decisions about how to allocate and value allowances – e.g. are the allowances to be allocated by auction, lottery, or past behavior? If by lottery, how is participation determined? If by past behavior, what behavior counts? What is the relevant time period? Is it purely retrospective, or partially prospective? What metric is to be used to evaluate comparable, but not identical, activities? Must some allowances be discounted in certain sectors to account for monitoring or enforcement problems? And so on. Users of allowances are not the only with something to gain through rent-seeking, those who seek to trade or broker allowances can also capture rents by influencing program design. (This was one of the reasons Enron fought so hard to get the Bush Administration to endorse carbon trading.) Insofar as rent-seeking involves a socially wasteful (and at times, even destructive) use of resources, the vulnerability of a system to rent-seeking should be a relevant consideration when choosing between various policy instruments.
The bottom line for me is that there is no one-size-fits-all answer to how to control harmful emissions. I like markets more than most, and readily advocate property rights solutions to environmental problems where they are viable (see here and here). Among other things, property rights approaches appear to create more powerful incentives to reduce transaction costs over time than do regulatory interventions. Lacking enforceable property rights in the relevant resources, or a ready means to move in that direction, we are inevitably forced to choose between a variety of imperfect policies. What sort of policy makes the most sense in a given context will depend upon a wide range of context-specific factors. In some cases cap-and-trade will work best. In others, traditional command-and-control or a pollution tax is the least bad option. In still others, we are best off adopting some sort of liability scheme or even doing little or nothing until other alternatives become more cost-effective.
In the climate context, at present, I would be inclined to support a carbon tax over a cap-and-trade scheme. If I had my way, a carbon tax would replace some other tax(es), such as the corporate income tax, and would be designed to be revenue neutral. But before implementing such a tax, I would do other things, such as replacing all energy subsidies, including those for renewable energy, with "http://volokh.com/posts/1170343187.shtml">prizes" for meaningful technological breakthroughs. For more of my recent thoughts on climate policy, see here and here.
Related Posts (on one page): - "Capitalism Against Climate Change":
- Choosing among Climate Policy Instruments:
Virtual Analogies, Physical Searches, and the Fourth Amendment:
The Tenth Circuit has handed down an opinion on how the Fourth Amendment applies to computers that raises a fascinating clash between virtual analogies and physical facts. The case involves the effect of user profiles and password protection on third-party consent rights, which turns out to be an issue that has a lot of practical importance for computer forensic searches; it's certainly come up in discussions within the government, and now for the first time a court has suggested the framework for an answer. The case is United States v. Andrus. Here's the quick version of the facts. The cops think that Ray Andrus may have downloaded child pornography onto his home computer, so they go to his house to do a "knock and talk." Andrus lives with his elderly parents, and Andrus's elderly father is the only one home. The father consents to the cops searching his home and any computers there. The cops take away a computer, and then search it off-site using computer forensic software. They quickly find child pornography. Okay, now here's the interesting twist. After the agents discover the child pornography, they learned that the child pornography files were accessible to users only using the son's user profile, which was protected by a password that the father did not know. That is, a user wanting to find the file would need to know the son's password to see it; to another user, the file would be hidden. How could that happen? As I have explained in this article, there are two basic ways to search a computer: [D]igital evidence searches generally occur at both a "logical" or "virtual" level and a "physical" level. The distinction between physical searches and logical searches is fundamental in computer forensics: while a logical search is based on the file systems found on the hard drive as presented by the operating system, a physical search identifies and recovers data across the entire physical drive without regard to the file system. Most users think of computer searches as occuring at the virtual level, because that's the user experience. But computer forensic software works at the physical level: it treats the hard drive as a physical device that contains millions of zeros and one, not as a virtual "box" of information accessed through an operating system. User profiles and most password protection operate only at a virtual level, so a goverment forensic analyst operating at a physical level wouldn't even notice the difference unless he was specifically looking for it. Why does it matter? Well, it matters because the answer to the legal question seems to hinge on whether you apply the Fourth Amendment from a virtual perspective or a physical perspective. From a virtual user's perspective, the child pornography was hidden to the father; it was behind a password-protected gate. Under these facts, the father couldn't consent to a search because he would lack common authority over it. From a physical perspective, however, the file was present on the hard drive just like all the other information. Under these facts, the father could consent to the search because he had access rights to the machine generally. It's the classic problem of perspective that I wrote about in the Georgetown Law Journal in 2003: the facts hinge on whether you take a physical (external) or virtual (internal) perspective. The Court divided on which perspective to take. The majority (Judge Murphy, joined by the recently-arrived Judge Gorsuch) did not directly address the question of "common authority," relying instead on the "apparent authority" doctrine. Under the apparent authority doctrine, officers can rely on third-party consent if they reasonably conclude that a person has the right to provide consent even if later turns out that he doesn't. This was a sensible move by the majority, because the apparent authority doctrine focuses more on the physical perspective that the officers have rather than a virtual perspective that a user has. Viewed from the physical perspective, the investigators reasonably did not know about the user profile and reasonably believed that the father had rights to consent to that part of the hard drive. Judge McKay dissented, and instead adopted a virtual perspective. To Judge McKay, the virtual perspective was the only one that mattered: a computer file was a container, and a password-protected computer file was a locked container. Using forensic software to look at a computer from a physical perspective was therefore avoiding the virtual locks. Judge McKay argued that officers should not be allowed to rely on the apparent authority from the physical perspective without first making an inquiry into whether there might be password protection of some kind from a virtual perspective. I think the majority is probably right, but it's a tremendously interesting case either way. How do you measure the reasonableness of a belief when understandings of what computers are and how they work are so different among typical users and forensic analysts? Should the law follow the understandings of the experts who understand the techology or the general users who don't? Thanks to Howard for the link.
Can Carbon Offsets Be Confirmed?
Many celebrities have sought to burnish their environmental credentials by purchasing "carbon offsets" to compensate for their lavish lifestyles. Former vice president Al Gore, among others, claims the purchase of such offsets enables him to live a "carbon neutral" lifestyle, despite his conspicuous energy consumption. Think of these carbon offsets as environmental indulgences. Some corporations have also begun to purchase carbon offsets so as to reduce their net carbon dioxide emissions.
An investigation by the Financial Times suggests that many carbon offsets are illusory, and that there is little assurance that purchasing carbon offsets does much of anything to reduce carbon dioxide emissions. Specifically, the report found: - Widespread instances of people and organisations buying worthless credits that do not yield any reductions in carbon emissions.
- Industrial companies profiting from doing very little – or from gaining carbon credits on the basis of efficiency gains from which they have already benefited substantially.
- Brokers providing services of questionable or no value.
- A shortage of verification, making it difficult for buyers to assess the true value of carbon credits.
- Companies and individuals being charged over the odds for the private purchase of European Union carbon permits that have plummeted in value because they do not result in emissions cuts. The idea of markets for carbon emissions is a good one. If carbon dioxide emissions need to be reduced, it makes sense to achieve those reductions in the most cost-effective manner possible. Carbon credits can also enable those with stronger environmental preferences to take additional voluntary action, such as celebrity carbon offset purchasers have purported to do. The problem is that offset plans can often be more difficult and costly to verify than more traditional means of controlling emissions. When these costs are factored in, it is not always the case that such market-based approaches are more cost-effective than more clumsy alternatives.
The bottom line is that if Al Gore and Leo DiCaprio truly want to be sure they are reducing their carbon footprint, they are going to have to reduce their own energy consumption, rather than paying others to do it for them.
House Hearing Testimony, "Credit Card Practices"
Today I will be testifying before the United States House of Representatives,
Financial Services Committee, Subcommittee on Financial Institutions and Consumer Credit, hearing on “Credit Card Practices: Current Consumer and Regulatory Issues.”
For journalists and others who may be interested, an electronic copy of my testimony, which contains all of the relevant Figures (which are usually not displayed when the testimony is posted on Congress's web site), is available here.
FCC Targets TV Violence:
A new report from the Federal Communications Commission (FCC) endorses claims that TV violence can increase violent behavior in children, and that existing parental controls are ineffective at limiting child exposure to violent programming. As a consequence, the FCC is encouraging Congressional action to curb "excessively violent programming" on TV.
Among the measures the FCC suggests could be effective, and survive First Amendment scrutiny, are limits on violent programming during certain hours and a requirement that cable companies offer "a la carte" channel selection for consumers. FCC Chairman Kevin Martin commented that the prospect of a legal challenge to some restrcitions should not dissuade Congress from acting. The FCC report was adopted unanimously by the Commission, although two of the five commissioners expressed some concerns. Senatory Jay Rockefeller (D-WV) said he expects to file legislation based upon the FCC's recommendations.
Here is coverage on the report from the Washington Post, LA Times, and AP.
Regulatory Reform:
Economists have long observed that regulators at, say, the Food and Drug Adminstration face unbalanced incentives. When people die because an unsafe drug got FDA approval, everybody blames the commissioners. When people die because a potentially lifesaving drug never made it to the marketplace (or was never developed in the first place because of costly regulations), the FDA's role is largely invisible. Therefore the commissioners are biased toward excessive caution.
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