"J Street" founder Jeremy Ben-Ami: "The fallacy here [regarding the war in Gaza] is the argument that a military victory against an insurgent group actually is achievable."
Of course, there are a lot of much more recent (and often much less bloody) examples of military victories against "insurgent groups" than the Roman victory over Bar Kochba, including, tellingly, Operation Defensive Shield's crushing of the Second Intifada on the West Bank in 2002-03.
I continue to remain agnostic on the ultimate wisdom of the Gaza operation, given the information gap between me and those who planned it. It may turn out to be a brilliant, necessary, tactical and strategic endeavor, and it may turn out to be a fiasco motivated in its timing and scope primarily by domestic Israeli political considerations. But to claim, as Ben-Ami and others (e.g.) have, that military victory against insurgencies is inherently unachievable, reflects the equivalent of an a priori quasi-religious belief in the futility of military force.
UPDATE: BTW, and relatedly, one thing I've noticed about bloggers, including liberal Jewish bloggers, who are confident that Israel's military action in Gaza is a strategic blunder, is that they rarely if ever nevertheless express the hope Israel will win, and win convincingly. One might think that when the battle is between Israel on the one side, tacitly supported by the Palestinian Authority, Egypt, and Jordan, and Hamas on the other, supported by Iran and Hezbollah, one would at least hope for an Israeli victory, even if one is dubious about its prospects. But I get the feeling that for many, it's more important that Israel, and the world, learn a lesson about the "limits of military force" than that a violent, fanatical, backwards, illiberal, anti-Semitic terrorist organization be humbled defeated.
Lund on Scalia in Heller:
Nelson Lund has just uploaded to SSRN a new and important criticism of Justice Scalia's opinion in DC v. Heller: The Second Amendment, Heller, and Originalist Jurisprudence. While praising Justice Scalia for his originalist analysis that the Second Amendment protects an individual right to arms for purposes of personal and collective self-defense, the article mainly considers the exceptions to this right identified by Justice Scalia in dicta--which Lund quite reasonably fears will be followed by lower courts in future cases that the Supreme Court will then refuse to review. I will not summarize Lund's evaluation of each exception but simply recommend that you read it. The paper is clearly written and accessible to anyone interested in this topic.
Of most interest to me was Lund's assessment of where Justice Scalia went wrong and how he should have approached the problem. Justice Scalia contends that the exceptions he lists are historically grounded limits on the right, but as Lund demonstrates, Justice Scalia fails to establish this in the opinion, and these claims are unfounded.
In my view, and very briefly, I think that one reason why Justice Scalia approaches the subject this way is because (a) he views constitutional rights as trumping any cost-benefit calculations and (b) he objects to judicial second-guessing of legislative cost-benefit calculations. So if a constitutional right is "absolute" in this respect, it must be narrowly tailored so as to remove any "exceptions" from its scope. And to be "originalist," in Justice Scalia's view, this narrow tailoring must be a product of historical inquiry. Lund shows why Justice Scalia's efforts fail on their own terms to do this. And Lund also explains why such inquiries are typically problematic:
The fundamental problem with the Heller opinion is its failure to admit that some questions about the original meaning of the Constitution cannot be answered on the basis of a bare textual and historical inquiry. The logic of Justice Scalia’s theory that the Second Amendment codified a pre-existing right would render virtually all modern gun control regulations unconstitutional because such regulations did not exist in 1791 (and everyone therefore had a right to do anything that was not forbidden) and there is no historical record indicating which unenacted regulations would have been generally considered to be permissible at that time.
Instead, Lund proposes the following approach (which I am truncating for purposes of a blog post):
The core of originalism is the proposition that text and history impose meaningful binding constraints on interpretive discretion, but that does not mean that every question can be answered by identifying (or guessing at) the “original expectations” of the lawmakers. Unless one rejects originalism in favor of living constitutionalism or judicial deferentialism, some recourse to the purposes or principles of the Constitution’s provisions is unavoidable. [snip]
[T]he Second Amendment [does not] require the virtual absence of regulatory restrictions on firearms that existed in 1791. New regulations do not violate the Constitution just because they are new. In order to faithfully apply the Second Amendment to contemporary circumstances, the courts must instead evaluate restrictions on the right to arms in light of the purpose of the constitutional provision, which is to protect what its enactors considered the inherent or natural right of self defense. And contrary to the position Justice Scalia tried to take in Heller, that cannot be done without comparing the burdens of a challenged regulation on the individual’s right to self defense with the regulation’s benefits in promoting public safety. This balancing of burdens and benefits can be done overtly or covertly, but it cannot be avoided.
Justice Scalia showed one way to do it in Heller. Just announce the result. Or, what may be worse, announce that a handgun ban is unconstitutional because a large number of Americans have weighed the costs and benefits of keeping handguns in their homes, and decided to keep them. I think this approach is self-evidently wrong, at least in the sense that it is indistinguishable from living constitutionalism.
Justice Breyer’s approach in Heller also seems to me to be wrong, at least to the extent that it resembles what I described earlier as judicial deferentialism. He performs an explicit cost/benefit analysis, but one that is shaped by deference to the judgments of elected officials. The entire analysis is thus conducted in the shadow of a strong presumption of constitutionality, and one that could easily become an effectively irrebuttable presumption. This is how judges repeal constitutional rights that they dislike.
The approach most consistent with the original meaning of
the Constitution would reverse Justice Breyer’s presumption, and require the government to provide an extremely strong public-safety justification for any gun control law that significantly diminishes the ability of individuals to defend themselves against criminal violence.
In performing that analysis, doctrinal labels like “strict scrutiny” or “reasonable regulation” would be less important than judicial respect for the value of the inherent right of self defense and a correlative judicial skepticism about the wisdom of government officials who want to restrict the people’s ability to exercise that right.
"Using this approach," he writes, "it does not seem to me that the D.C. handgun ban presents an especially close question."
In my writings, I have defended a Presumption of Liberty as is a method of constitutional construction for the protection of individual liberty to be used when constitutional interpretation to discover the original meaning of the text is insufficient to resolve a particular constitutional controversy. In A Libertarian Constitution, Lund's review of my book, Restoring the Lost Constitution: The Presumption of Liberty, he criticized my applying a Presumption of Liberty to protect "any of an open-ended class of natural rights unless the government can demonstrate that the law meets stringent criteria of necessity and propriety." But in this paper he acknowledges the usefulness of a Presumption of Liberty at least to protect the enumerated right to keep and bear arms. I won't pursue this disagreement further here, except to note that he accepts the approach as practical with respect to evaluating the right to keep and bear arms by its purpose of facilitating the (unenumerated) natural right of self-defense.
One final note: Especially because I largely agree with Lund's analysis, I find it unfortunate that the paper repeatedly employs a harsh rhetoric towards Justice Scalia. In contrast, although Lund's 2005 review of my book is unremittingly critical, it remains respectful. I am myself a major critic of Justice Scalia's "faint-hearted" approach to originalism in which he leaves himself sufficient "outs" to enforcing original meaning as to undermine the conclusion that he is really an originalist. (See Scalia's Infidelity: A Critique of Faint-Hearted Originalism.) And I will always be saddened by his vote in Raich. Nevertheless, I think Justice Scalia is among the most thoughtful Justices in our history and he is certainly among the most forthright in articulating and defending his view of the proper judicial role. And even before he was a Justice, he pioneered the "new originalism" with his early rejection of original framers' intent in favor of original public meaning--the approach he skillfully employs in Heller to identify an individual right to bear arms in the Second Amendment. The tone of Lund's piece is neither necessary nor constructive. All of his insightful substantive criticisms could have been made without it, and might have stood a much better chance of moving Justice Scalia himself to reconsider the way portions of his Heller opinion were constructed. This is, however, a pre-publication draft and I sincerely hope that Nelson revises it in this regard before publication.
Update: The post above was corrected to reflect the fact that Professor Lund does NOT see the unconstitutionality of the DC gun ban as a "close question" under the approach to constitutional construction that he recommends.
CNN has restored the video discussed here yesterday to its website, and has published a response by the local stringers who took the video denying accusations that the video is fraudulent. There is no specific response to the main claim of fraud that has arisen, which is that the doctors who are allegedly trying to resuscitate the boy on camera are pantomiming it but not actually doing it. Nor is there any discussion of the critique raised here (and later also raised by Ed Morrisey), which is that the cameraman who shot the video claims that his brother was killed on the roof of his apartment building by an Israeli missile shot from a plane, yet the roof, shown in the video, shows no sign of the sort of damage that such a missile would cause. Indeed, not only is there no crater in the roof, but lawn furniture and clothes hanging out to dry on a line are right there in the background, undisturbed. Given that CNN's own staff can't vouch for the video first-hand, and that very serious questions have been raised about its credibility, I don't see why CNN would want to double-down on this one.
More on Ricci v. DeStefano: Ed Whelan chronicles the apparent machinations by the trial court and Second Circuit to keep Ricci v. DeStefano below the radar (hat tip Powerline):
As I’ve previously detailed (and will in large part repeat here), the Second Circuit’s narrow 7-6 denial of en banc rehearing in Ricci was accompanied by a remarkable dissent, written by Clinton appointee José Cabranes and joined by his five dissenting colleagues, that exposed some apparent shenanigans by the three panel members and the district judge. (Cabranes’s opinion begins on the ninth page of this Second Circuit order.) One of those panel members was Sonia Sotomayor, who has been thought by many to be a leading contender for a Supreme Court appointment in the Obama administration.
Judge Cabranes’s account indicates that Sotomayor and her colleagues engaged in an extraordinary effort to bury the firefighters’ claims.
My media column for today's Rocky Mountain News continues an investigation of ProPublica, a non-profit which supplies articles for free to mainstream media. The particular story I write about involves natural gas drilling in Colorado and Wyoming, and a technique known as hydraulic fracturing. My column finds very serious factual errors in the ProPublica article. For example, I write:
The Colorado experience of zero cases of water contamination from hydraulic fracturing is consistent with the 2002 study from the Interstate Oil and Gas Compact Commission (a consortium of state regulatory agencies). The Commission surveyed regulatory agencies in 28 states (including Colorado and the other four states where ProPublica claimed that there were more than 1,000 "documented" cases of contamination). The response covered the entire history of hydraulic fracturing in those states. Every single one of those 28 states reported that there had never been groundwater harm due to fracturing.
The ProPublica article did not report the evidence from that government study, but brusquely dismissed it as "an anecdotal survey done a decade ago." Actually, the 2002 study has no anecdotes, and with a dataset of almost a million wells, it cannot plausibly be considered "anecdotal."
The one article which I examined in depth is not necessarily representative of the overall quality of ProPublica's work. Nevertheless, the quality control failure on that article would make me very cautious about using ProPublica's work, if I were a MSM editor. Before using the article, I would probably assign one of my own staffers to fact-check the ProPublica article.
Supreme Court Decides to Hear Important Affirmative Action Case:
Yesterday, the Supreme Court agreed to hear an important affirmative action case, Ricci v. DeStefano. The case involves a challenge to an affirmative action policy in the New Haven Fire Department. Specifically, the Department decided to set aside the results of a promotion test for firefighters when it turned out that what it viewed an insufficient number of African-American firefighters would be promoted if the results were allowed to stand.
I previously blogged about the important constitutional issues at stake in this case here. Once crucial issue is the question of what constitutional standards apply to "race-neutral" employment decisions by government that are motivated by a desire to increase the representation of a particular racial minority group relative to other groups. The government's action was race-neutral on its face because the decision to set aside the test results did not in and of itself involve any racial distinctions; those who passed had their pending promotions set aside regardless of their race. If the action was unconstitutional, it was because of the race-conscious motive underlying the surface neutrality. Since the late 19th century, the Supreme Court has drawn a distinction between government decisions that discriminate openly and those that are neutral on their face but may have been adopted out of racial motives; the Court has traditionally made it far more difficult to win a legal challenge against the latter than the former. However, it has never decided a case of this type in the affirmative action context. Previous Supreme Court cases addressing challenges to facially neutral policies all involved claims that they were pretexts for traditional discrimination against blacks or other minority groups.
A second key question is whether the "diversity" rationale for racial preferences that the Court held to be permissible in state university admissions in Grutter v. Bollinger is also a "compelling state interest" that could justify preferences in public employment. As explained in my earlier post about Ricci, it's much harder to argue that racial diversity is important in a fire department than in a university setting, where the Court concluded that the presence of a "critical mass" of minority students would provide educational benefits for other students.
I'm not categorically opposed to the idea that a target level of minority representation in some types of public employment is essential and could justify racial preferences to achieve it. In my earlier post about Ricci linked above, I suggested several reasons why that might be the case with big city police departments. An overwhelmingly white police department in a city with a large minority population might find it difficult to secure needed cooperation from the citizenry. Affirmative action for firefighters, however, seems harder to defend on efficiency grounds.
See Clint Eastwood in Gran Torino:
Ann Althouse posts 10 "random thoughts" on Clint Eastwood's new film, Gran Torino, including number 5: "This is a good movie for people who like cars and guns and tools. There's also a lot of drinking and, as I said, smoking. And a military medal, a lawnmower, and a dog. All the manly things. With lots of manliness on top." The comments that follow her post are also worth reading (after you see the film) including this positive one (also flagged by Glenn): "It says something about America that the toughest guy in the movies is 78 years old." Then there are these two more negative comments:
I kind of despise Clint Eastwood ever since . . . [Unforgiven.] That movie took the glamour of violence to a new level of hypocrisy. It was all about how awful violence is — lots and lots of violence for you to deplore, and the hero who hated it but was really good at it, talk about Hollywood having their cake and eating it too. It started Eastwood on a streak of fashionably "dark" movies — Mystic River, which I also hated, because it was all about pampered Hollywood guys' fascination with tragedy and depravity — very gratuitous and voyeuristic. And then Million Dollar Baby, in which of course the heroine has to get paralyzed and commit assisted suicide.
And this one:
I won't quibble with Clint's performance but, really, just about every other actor's performance is barely after-school-special quality. . . . The performances are so wooden that they can't help but jar you from the movie's reality. It's an ok movie but way over-hyped.
A little overstated, perhaps, but I tend to agree. So here's my take on Gran Torino:
What Ann--and lots of others including me--really like about Gran Torino is watching Eastwood's character, Walt Kowalski. And Kowalski is none other than Harry Callahan--AKA Dirty Harry--in retirement. Then as now Callahan/Kowalski was surrounded by wooden stereotyped characters. If this is Eastwood's last film as an actor, as reputed, he decided to end his acting career by reprising his most famous character, and the one with whom he will forever be identified.
And, in Gran Torino he treats the character with complete respect--without a hint of self-parody--thereby respecting and satisfying those who always liked the character. Anyone who enjoyed this character then, like Ann ("a guilty pleasure for us peace-and-love hippies"), will enjoy him now all the more. The big difference is the critical hype that Eastwood gets today, that he never got back then, thus permitting those who despised Harry to buy Walt. OK, I admit that Eastwood has grown over the years as an actor though, like John Wayne, he was always far better than the critics would admit.
By the way, when I met Eastwood I asked him if he considered himself a libertarian. He said yes, though he did vote Republican, adding, "but Republicans are supposed to be libertarians, aren't they?" And he looked a lot younger and better in person than he looks on the screen (or even on TV at the Academy Awards).
Update: Ann graphically imagines my encounter with Eastwood here and she substantiates that Dirty Harry was despised as fascist by quoting a well-worth-reading Salon article on Eastwood's film career by Christopher Orr, Dirty Harry or p.c. wimp?.
Steve Mason at Big Hollywood describes Gran Torino's box office and Eastwood's Oscar chances here.
"Federal Sovereignty, State Sovereignty, And The Sovereignty Of 562 Native American Tribes:
A Match Made In Heaven Or Somewhere Less Pleasant?" That's the title of the Federalist Society's Third Annual Western Conference, at the Ronald Reagan Library in Simi Valley, on the outskirts of L.A. The conference will be Saturday, January 24, and has -- as usual for the Federalist Society -- an illustrious and ideologically mixed set of speakers. Check out the program here; it should be an excellent event.
I'm delighted to report that Profs. Dora Costa and Matthew Kahn from the UCLA Economics Department will be guest-blogging next week about their new book, Heroes and Cowards: The Social Face of War.
The book looks fascinating, and has gotten accolades from some top people both in military history (for instance, James McPherson, author of Battle Cry of Freedom) and in the social science of social relationships (for instance, Robert Putnam, author of Bowling Alone: The Collapse and Revival of American Community). "This remarkable book is destined to become a classic in social science," writes Putnam, who certainly knows things about classics in social science. "It addresses issues of supreme importance and timeliness -- loyalty, betrayal, heroism, cowardice, survival, the challenges of diversity, and the benefits of social bonds. It rests on rigorous statistical analysis of an extraordinary historical archive, and yet it is so readable as to be unputdownable. It deals with a single epochal event in one nation's history -- the U.S. Civil War -- and yet its lessons are highly relevant in many other eras and societies, including our own."
Here's a brief summary to get you an idea of the coming week:
When are people willing to sacrifice for the common good? What are the benefits of friendship? How do communities deal with betrayal? And what are the costs and benefits of being in a diverse community? Using the life histories of more than forty thousand Civil War soldiers, Dora Costa and Matthew Kahn answer these questions and uncover the vivid stories, social influences, and crucial networks that influenced soldiers' lives both during and after the war.
Drawing information from government documents, soldiers' journals, and one of the most extensive research projects about Union Army soldiers ever undertaken, Heroes and Cowards demonstrates the role that social capital plays in people's decisions. The makeup of various companies -- whether soldiers were of the same ethnicity, age, and occupation -- influenced whether soldiers remained loyal or whether they deserted. Costa and Kahn discuss how the soldiers benefited from friendships, what social factors allowed some to survive the POW camps while others died, and how punishments meted out for breaking codes of conduct affected men after the war. The book also examines the experience of African-American soldiers and makes important observations about how their comrades shaped their lives.
Heroes and Cowards highlights the inherent tensions between the costs and benefits of community diversity, shedding light on how groups and societies behave and providing valuable lessons for the present day.
The LA Timesreports that Eric Holder actively sought to blunt opposition to President Clinton's pardon of members of two pro-Puerto Rican independence terrorist groups.
New interviews and an examination of previously undisclosed documents indicate that Holder played an active role in changing the position of the Justice Department on the commutations.
Holder instructed his staff at Justice's Office of the Pardon Attorney to effectively replace the department's original report recommending against any commutations, which had been sent to the White House in 1996, with one that favored clemency for at least half the prisoners, according to these interviews and documents. . . .
The 16 members of the FALN (the Spanish acronym for Armed Forces of National Liberation) and Los Macheteros had been convicted in Chicago and Hartford variously of bank robbery, possession of explosives and participating in a seditious conspiracy. Overall, the two groups had been linked by the FBI to more than 130 bombings, several armed robberies, six slayings and hundreds of injuries.
None of the 16 whose sentences were commuted had been convicted of murder, and most had already served lengthy prison terms.
A spokesman for the Obama transition, Nick Shapiro, confirmed that Holder asked for the "options memo" that preceded the clemency. . . .
George Terwilliger, who served as deputy attorney general under President George H. W. Bush and was asked by the Obama transition team to comment, said that although he disagreed with the FALN clemency, Holder's conduct in the case was appropriate. . . .
When Clinton issued the commutations on Aug. 11, 1999, the House and the Senate passed resolutions condemning his decision. . . .
Holder was called to testify on the case by the Senate Judiciary Committee but, invoking Clinton's claim of executive privilege, declined to say whether the Justice Department had changed its position on the commutations. Asked what happened after the 1996 report opposing any commutations, he told the senators: "There were subsequent communications with the White House in the months after that recommendation."
Last March, noted trade economist Jagdish Bhagwati suggested there were good reasons to believe that Barack Obama would be a fairly free trade president. Now, however, Bhagwati is concerned. He writes in yesterday's FT that any such optimism was an "illusion" and it is time to sound the alarm due to the poor free-trade credentials of his nominees and his relative silence on the importance of multilateral trade. If Bhagwati is correct, this is indeed cause for concern.
In a speech in Washington, D.C., Exxon CEO Rex Tillerson argued that a carbon tax is preferable to a cap-and-trade system for controlling greenhouse gas emissions. As reported in the WSJ, Tillerson noted that a carbon tax would be a "more direct, a more transparent and a more effective approach" than cap-and-trade. "Mr. Tillerson said a cap-and-trade system would be costly, bureaucratic and create a 'Wall Street of emissions brokers.'"
The Center for American Progress' Daniel Weiss responded that Tillerson's apparent endorsement of a carbon tax "could be a ploy because few observers believe such a tax is politically feasible in our Congress." Yet none other than NASA's James Hansen, who believes dramatic emission reductions that will actually reduce atmospheric concentrations of greenhouse gases, are necessary "to preserve nature and humanity," argues that cap-and-trade will stimulate special-interest rent-seeking and create bureaucratic morass without having an appreciable impact on emissions and "will practically guarantee disastrous climate change."
A carbon tax is difficult politically because no politician wants to be seen as calling for higher taxes. Yet a cap-and-trade system will only be effective to the extent that it replicates the effect of a tax on carbon-based energy sources, and a cap-and-trade system is (in the real world, as opposed to theoretical models) is likely to be far more costly and difficult to implement and far more prone to special-interest manipulation (as I argued here). Now that the likes of Tillerson and Hansen (and others) can agree that a tax is preferable -- particularly if revenue neutral -- perhaps it can become politically possible.
This week's National Journal poll of leading political bloggers asked about economic stimulation and Israel. The results showed perhaps the widest divergence of opinion between Left and Right since the poll began last fall.
On economic stimulus, voters rated different means, on a scale of 1-5, with 5 being best. Aid to the States was highly rated (54% giving it a 4 or 5) by the Left, but not by the Right. Infrastructure spending garnered 67% from the Left, and far less from the Right. Conversely, the Right gave 86% support to tax cuts for businesses and tax cuts for individuals, both of which garnered little support from the Left. The one issue of some agreement was on safety net spending, where 62% of the Left and 93% of the Right did not give safety net spending a high rating as a form of economic stimulus.
I gave Infrastructure a 3, which was higher than most of the Right voters, and would have rated it higher if I were confident that the money would be well spent. My comment: "Spending on useful infrastructure could help the economy in the long run, but it will be difficult to keep the stimulus money from being used for inefficient pork projects, which state and local taxpayers have rightly refused to fund."
Regarding Israel's use of force in Gaza, the Left/Right split was enormous. The Left was unanimous that Israel was using too much force. The Right divided between those who thought the amount of force was "about right" (58%) versus "not enough" (33%).
I was in the latter category, and wrote "No nation should have to endure years of terrorist rocket attacks aimed at civilians. Israel has every right to destroy Hamas. The civilians who elected Hamas are the ones who are to blame for the suffering of the people in Gaza, just as the voters who elected the Nazis bore the responsibility for the necessary Allied military invasion of Germany."
As has been previously noted in the VC, the Nazi/Hamas comparison is a little unfair to the Nazis (and, by extension, to the Germans who voted for them), since the Nazis didn't put genocide of all the Jews in their official platform, whereas Hamas does.
by Prof. Glenn Reynolds (InstaPundit) in Forbes. "[W]hile Sunstein is politically liberal, he's also open-minded -- someone who isn't dogmatic or intolerant and who gets along well with people of different ideological stripes."
The blogosphere has been abuzz about a CNN video (see below) allegedly showing Gaza physicians vainly trying to revive a dying boy, filmed by his brother, Ashraf Mashharawi (who, as it turns out, owns a company that hosts Hamas websites). Sharp-eyed viewers noticed that the doctors were clearly play-acting, and CNN pulled the video with no explanation, though the network left a text story up.
What hasn't gotten attention is that the broader story told by the photographer to the CNN reporter is seemingly rather obviously
false propaganda. From the video:
Reporter: "Mahmoud and his 14 year old cousin Ahmed were allowed to play on the roof.... Now they are both dead." Mashharawi: "The Israeli plane targeted them with a small rocket just for them, just for them, and killed both of them."
So the allegation is that not only did an Israeli plane purposely target two children playing on a roof, but did so with a special, small rocket that it apparently reserves for killing children on roofs without creating any of the obvious signs of serious damage to the building that a missile would cause. Putting aside the issue of Israel targeting civilians, the idea that a plane came to the building with a special small missile just to kill these two boys seems rather implausible, to say the least. [UPDATE: Is it possible that the "plane," in theory, could have been a drone of the sort used in targeted assassinations? How much damage would a rocket launched from such a drone cause to a roof? OK, I'll reserve judgment on that, in case it's as implausible as I initially thought. FURTHER UPDATE: A reader writes: "As an introduction, I am an attack helicopter pilot with somewhere north of 400 combat missions in geographic areas very similar to Gaza. Your thoughts are correct. Events as described didn’t happen as alleged. The link http://www.fas.org/man/dod-101/sys/missile/agm-114.htm has significant info regarding one of the smaller drone armed weapons, the AGM-114 Hellfire. I am very familiar with this weapon as this is the same missile with a different type of warhead that US Attack helicopters are armed with. Bottom line, 100lb missile moving at about 400 M/s is going to cause structural damage to the building even if it was one of the inert warhead types." See also this contribution to the comments. That seems to settle that.]
There are plenty of real human tragedies involving civilians in Gaza. It would do wonders for CNN's credibility if it acknowledged its mistake, took the text story down, and, unless all the indications of the falsity of the story turn out to have an innocent explanation, fire the reporter (Michael Holmes) who either fell for, or actively participated in, a fake one.
I just got word that Amazon.com has started shipping copies of my book about Jefferson's moose, the Internet, and how they're connected. So now I join the ranks of published authordom, and I can start doing what every other published author of whom I'm aware does once his/her book hits the streets, namely obsessively tracking the sales ranking on Amazon . . . It's quite astonishing that a small cottage industry has emerged to let authors keep a watchful eye on the ever-changing Amazon numbers -- sites like Title Z, Rankforest, Sales Rank Express, TicTap, and dozens of others, at which you can plot, graph, compare, track, etc. etc. the hourly-updated sales figures. The process has, I'm told by others who've been through this, an oddly hypnotic power . . .
I'll spare you more book promotional hoopla -- I've already used up some VC space doing that (see chained posts), and there's a book website with more info. You can order the book here (if for some inexplicable reason you hadn't already ordered a copy). It's a good read -- I can promise you that you'll learn something interesting about Jefferson you didn't know before, and something interesting about the Internet you didn't know before, and a connection between the two you hadn't made before. As they say: "Guaranteed, or your money back." [Which always makes me ask: Are those alternative options?]
And Washington, DC VC-ers, please note -- I'm going to be talking about the book at a Cato Institute "book forum" event at noon on February 4th; Clive Crook of the Atlantic (and the Financial Times) is going to be a commentator, and it should be a fun event. If you're in the neighborhood, do come.
With little fanfare, the Justice Department's Office of Legal Counsel has just released several legal opinions written over the past eight years, most of which concern legal aspects of the war in Iraq or counter-terrorism measures. I suspect the move came because the current Administration decided it was better to release these documents themselves than to let the next Administration make a show of releasing them. (Hat tip: Steve Vladeck.)
I’ve decided that my final guest blog will be a response to some of the posted comments, rather than a new essay.
Thanks to those of you who took the time to read some of my posts, and to keep a cordial tone in your comments. I learned something from reading them, especially about home brewing!
A few of you were interested in knowing more, or having a cite to back up a factual claim. Of course I hope you will consult my book, Paying the Tab. It is quite thorough in presenting the arguments and evidence.
Several comments suggested that I didn’t know the difference between correlation and causation. Actually I believe that I do know the difference. My technical contributions to the alcohol literature have focused on taking advantage of natural experiments to learn the effects of changes in policy. The book explains this matter is detail. It also discusses the evidence on minimum drinking age, discussing two of the issues raised by bloggers -- the state border effects and the effect on the older age group.
I was baffled by comments to the effect that I believe all drinking is bad. My friends would be amused, and it’s surely not what I said in my blogs. Like every other commodity, alcohol has benefits and also costs. The difference for alcoholic beverages is that the costs are not fully reflected in the price. A higher excise tax would help with that problem.
(One great virtue of the price system in a private enterprise economy is that the prices signal relative scarcity and provide an incentive to economize appropriately. But when there are externalities – when property rights are incomplete – the price system does not do those jobs very well without some intervention.)
There were many comments to the effect that taxes designed to change behavior in particular ways are fascist or at least represent an unacceptable imposition on freedom and are certainly no business of government. For what it’s worth, I see alcohol excise taxes as less of an imposition on personal freedom than many other types of alcohol regulations that are intended to limit abuse, including the high minimum age.
A number of comments appeared to take me seriously when I listed some of the options for regulating adverse consequences of drinking – including penalizing DUI more severely etc. The purpose of that paragraph in my third post was not to advocate any of those changes (far from it) but rather to point out that a much-touted alternative strategy to tax increases – penalizing the consequences of abuse – can be costly and oppressive.
Several comments noted that there is evidence that moderate drinking promotes health. So there is. But the main epidemiological evidence is correlational, and very flimsy. Similar evidence has been profoundly misleading in other medical areas, such as hormone replacement therapy.
We’ll probably never do a randomized controlled trial with drinking, and without that it will be very difficult to sort out the causal effects of drinking. Incidentally, just as it is true that moderate drinkers live longer than abstainers, it is also true that moderate drinkers are paid more than abstainers. One speculation (by one of my former students) is that that association is causal, the result of social capital. That’s an interesting idea, but I don’t believe it.
The statistical-inference problem is that people who abstain are different in all kinds of ways (some not readily observable) from those who drink. Differences in longevity and earnings may be the result of those other characteristics, rather than the drinking per se. My advice: Don’t start drinking just because you want a raise in salary or cleaner arteries.
(I’ve read that pipe smokers live longer than nonsmokers on average…)
If you can keep your job while all about you
Are fielding bribes and blaming it on you,
If you can duck the Feds while all men doubt you,
And bleep-ing show the charges are untrue,
If you can fight and not be tired by fighting,
Or, being wiretapped, profess surprise,
Or argue that there will be no indicting
Because it’s all a bleep-ing pack of lies....
The USSR's Role in the Middle East Goes Down the Memory Hole:
One thing I find interesting in reading various authors who discuss the history of the Arab-Israeli or Israeli-Palestinian conflict is how the role of the USSR in exacerbating the conflict, and the role of its demise in providing an opportunity for a potential settlement of the conflict, is generally completely, or almost completely, ignored. [A few sentences only tangentially on point deleted, perhaps a subject for a separate post.]
Consider, first, that Israel could have bought itself quite a bit of security if the U.S. had allowed it, France, and the UK to triumph in the Sinai War in 1956. But Eisenhower and Dulles were afraid this would drive Arab public opinion into the pro-Soviet camp.
Then consider that the East bloc secret services recruited, trained, and financed Yasser Arafat to create the violent Palestinian nationalist movement that became the PLO, starting around 1964.
After Israel emerged victorious beyond its wildest dreams in 1967, the influence of the USSR was apparent in several ways. First, the Soviet bloc led an international campaign of boycott and defamation, larded with anti-Semitism, against Israel, creating a siege mentality that has stayed with Israel ever since, and made it that much more difficult to persuade Israel, already traumatized by the Holocaust and the expulsion of Jews from Arab lands, that the "international community" is to be trusted.
Second, Israel's performance against Soviet-supplied enemies Syria and Egypt persuaded the U.S. that Israel was a regional superpower that needed to be engaged, both to further U.S. interests, and to try to keep the (nuclear-armed) country stable and secure so that it didn't inadvertantly start WWIII.
And finally, while religious fanatics were among the most zealous settlers of the West Bank, a certain level of settlment was supported virtually across Zionist party lines, due to the perceived threat of a renewed Soviet-backed war of destruction against Israel. (In part, this was due to Lyndon Johnson reneging in 1967 on American security guarantees provided by Eisenhower in 1956--Israel saw that the U.S. could not be trusted to guarantee its security.) Israeli military and political leaders believed that holding at least some parts of the West Bank gave Israel the strategic depth to ward off, or even entirely discourage, an attack from the West, which proved prescient when Jordan declined to involve itself in the Yom Kippur War.
In 1973, by the end of the Yom Kippur War, Israel had crossed the Suez canal, had a huge segment of the Egyptian military surrounded, and was prepared, if necessary, to march on Cairo (Juan Cole, displaying his usual penchant for accuracy, calls this a "draw-to-slight victory" for Egypt). Damascus was also within range. The U.S. insisted on a cease-fire, because the Soviets threatened to intervene on behalf of Egypt and Syria.
In 1977, Anwar Sadat had tired of the Soviets and had thrown them out of Egypt. When Jimmy Carter naively sought to invite the Soviets to a regional "peace conference," Sadat hastily decided to make his famous visit to Jerusalem. While Sadat and Menachem Begin had little in common, they did by this point share a loathing of the USSR--Begin had been deported from Poland and imprisoned in the Gulag by the Soviets during WWII.
Throughout the 70s and 80s, the Soviets funded every rejectionist and terrorist movement willing to take money from it. Dovish arguments in Israel were met with skepticism because of the continued role of one of the two superpowers in financing those who called for, and acted for, Israel's destruction. Meanwhile, U.S.-Israeli ties grew closer as the old socialist ethos in Israel gave way to strong anti-Soviet sentiment under Likud rule, and a generation of Israelis came of age--including a few hundred thousand Soviet Jewish refugees--with a Soviet Union sworn to their country's annihilation.
By contrast, the fall of the USSR was one of the major factors that allowed the Oslo negotiations and agreements to move forward. Without the backing of a superpower, Yasser Arafat seemed less like a potential destroyer of Israel and a lot more like a has-been terorist who would be willing to settle for what he could plausibly get. Strategic depth became less important when the Soviet's last major ally bordering on Israel, Syria, virtually collapsed militarily in the absence of Soviet aid.
This story, indeed, would likely have a happy ending, but for the rise of new ideological movement, replacing Communism, even more implacably hostile to Israel--Islamic fundamentalism. But that's another story.
In any event, ignoring the role of the USSR in the Arab-Israeli conflict vastly impoverishes our understanding of Israel's motivations over the decades. To emphasize one point above, while commenters today often assert that Israel's settlement activity on the West Bank, beyond perhaps a few locations right near Jerusalem, was either obviously foolish or a reflection of an inherently colonialist ideology, a major rationale for it at the time was to provide strategic depth against a threat ultimately emanating from the Soviets. Similarly, while many question why Israel was unwilling to try to negotiate earlier with the PLO, this becomes more understandable when one considers that the PLO was a creation of, and financed by, the Soviet Bloc, which was overtly hostile to the very existence of Israel. Similarly, Israel was reluctant to give back all or much of the West Bank to Jordan when it had the chance for fear that a Soviet-backed Palestinian coup could topple King Hussein--as almost occured in September 1970. One could surely not imagine the ideological evolution of many right-wing Israelis into the implicit acceptance of a Palestinian state if the USSR was still around to be the primary sponsor of the Palestinian cause.
Who would have thought that President-elect Obama's plan to nominate Dr. Sanjay Gupta as the next Surgeon General would be so controversial? Paul Krugman thinks Gupta wrongly criticized Michael Moore's film Sicko and Chris Mooney didn't like Gupta's sensationalist coverage of the Raelians' cloning claims. More signficantly, Rep. John Conyers is seeking to line up opposition to a Gupta nomination among House Democrats because the medical journalist "lacks the requisite experience needed to oversee the federal agency that provides crucial health care assistance."
The Comstock Case, Gonzales v. Raich, and the Limits of Federal Power:
I agree with Eugene thatUnited States v. Comstock, today's Fourth Circuit decision invalidating a federal statute allowing indefinite civil commitment of "sexually dangerous" persons who have finished serving their sentences for federal crimes, might end up in the Supreme Court. In my view, the court of appeals was right to conclude that this statute exceeds Congress' power under the Commerce Clause of Article I of the Constitution.
But Comstock probably isn't consistent with the Supreme Court's 2005 decision in Gonzales v. Raich, which held that the commerce power was broad enough to justify a federal ban on the use of medical marijuana, even in a case where the marijuana had no connection whatsoever to any commercial transaction. In my view, Raich's reasoning is easily broad enough to encompass the statute challenged in Comstock.
I discussed Raich's licensing of virtually unlimited federal power under the Commerce Clause in this article. Raich amounts to a virtually unlimited reading of the Commerce Clause in three ways (each examined more fully in the article):
First, Raich reiterates earlier decisions holding that the Commerce Clause gives Congress the power to regulate any "economic" activity, and then goes beyond them by defining "economic activity" to including anything that involves the "production, consumption, or distribution" of commodities. A person's decision on where to live surely involves at least the consumption and distribution of commodities such as housing, fuel, electricity, and food. For example, I could not continue to live in my current apartment without "consuming" electricity and gas there, which are surely commodities. By civilly confining certain "sexually dangerous" offenders who have served their sentences, 18 U.S.C. 4248, regulates their decision on where to reside and thereby also controls their consumption and distribution of various commodities.
Second, Raich expands Congress' ability regulate even "noneconomic" activity by claiming that such regulation is part of a "broader regulatory scheme" targeting something that is economic. In a brief footnote, the Fourth Circuit claims that Section 4248 isn't part of any such scheme. However, as Eugene points out in his post, Section 4248 can easily be considered an extension of the various regulatory schemes enforced by the statutes which these offenders had violated in the first place. To the extent that continued civil incarceration helps prevent future violations of these laws through either deterrence or incapacitation, it is surely part of a common regulatory scheme with them.
The Comstock opinion implicitly tries to address this point this by noting that the possible future crimes of "sexually dangerous" prisoners may only violate state rather than federal law. But it is important to remember that Raich does not require that Congress specifically intended a connection between the various parts of a regulatory scheme; nor does it require any proof that the regulation of "noneconomic" activity is actually needed to make the scheme work. To the contrary, the Court specifically emphasized that such proof is unnecessary so long as Congress had even a minimal basis for concluding that there is a connection between the two. Congress also is not required to ensure that there is anything approaching a close fit between the regulation of "noneconomic" activity and the federal interest it is supposed to promote. Thus, the fact that Section 4248 is broader than necessary is immaterial so far as Raich is concerned.
Finally, Raich restored the so-called "rational basis" test for judicial review of Commerce Clause cases. In plain English, that means that the government doesn't have to actually prove that Section 4248 regulates "economic activity" or that it is part of a broader regulatory scheme. Rather, the government can win simply by showing that Congress might have had some "rational" reason for believing that one of these two conclusions is correct. And by "rational," the Court means merely that there is some possibility, even if a very remote one, that Congress' putative reasoning might be sound.
Unfortunately, the Comstock decision dismisses Raich in a brief footnote that ignores most of the considerations discussed here. The Fourth Circuit does rely heavily on the Court's two earlier Commerce Clause decisions in United States v. Lopez and United States v. Morrison, but essentially ignores the way in which Raich greatly undercuts those precedents by virtually confining them to their facts. I discuss the impact of Raich on Lopez and Morrison in my article linked above; see also this excellent piece by co-conspirator Jonathan Adler.
If Comstock goes to the Supreme Court, the justices will of course be free to overrule Raich or (more likely) cut back on some of its expansive reasoning in order create wiggle room for a decision upholding the Fourth Circuit ruling. I very much hope that that happens. But I am not optimistic. Raich was a 6-3 decision, and two of the three justices in the minority (O'Connor and Rehnquist) have since been replaced. Thus, the Raich majority remains intact. The four most liberal justices have consistently voted against every effort to restrict federal Commerce Clause authority and will likely do so in this case as well. And it's difficult to believe that they won't pick up at least one conservative vote, perhaps from one the two conservatives who voted with the majority in Raich (Scalia and Kennedy). I think it's also possible that they could get Chief Justice John Roberts' vote, as he may be less committed to federalism than his predecessor. Distaste for sex offenders could also influence the votes of any conservative justices who may be on the fence. There is a chance that the five conservative justices will see this as an opportunity to reassert the principle that there are still some limits to federal power and stick together. But I don't think that is the most likely outcome.
UPDATE: Lawprof Corey Yung defends the Fourth Circuit decision and criticizes Eugene's post and (briefly) mine. In response to me, Yung points out that the government didn't make the specific arguments I describe here in its brief, and therefore suggests that the court was justified in relegating Raich to a footnote. It may well be that the government failed to emphasize Raich as much as it should have. However, as the Comstock opinion notes, the government certainly did argue that Section 4248 was justified by the Commerce Clause. Given that fact, the court should have thoroughly examined the Supreme Court's most recent and most sweeping Commerce Clause decision - even if the government's brief didn't use Raich as effectively as it could.
Why the Sunstein Pick is Good For Legal Academics:
Like my co-bloggers, I'm delighted that Cass Sunstein has been selected to serve in the Obama Administration. I also wanted to point out that this is terrific news for other legal academics. Cass currently writes about 120 law review articles a year, all of which place in top journals, amounting to about 30% of the total placed articles in those journals. With Cass working full-time in Washington, I'm betting that his scholarly productivity will plummet. He might write as few as 20 articles a year! That means that there will be 100 more non-Cass placements free every year for the next few years for the rest of us, which gives other scholars a great opportunity to place their articles while Cass is working in government.
Lori Drew Hearing Update:
This morning Judge Wu of the U.S. District Court in Los Angeles held a hearing on our motion to dismiss in the Lori Drew case. I argued for the defense, and AUSA Mark Krause argued for the government. The hearing lasted about 45 minutes. I don't yet have a transcript, but there's some coverage of the hearing from the Associated Press and Wired News.
All in all, I thought it was a useful and productive hearing. Judge Wu was very interested and engaged, and he asked very good questions of both sides. He didn't leave an impression as to which way he would rule, at least as best I could tell, but he indicated that he would be writing up a decision on the case when he reached a decision. The sentencing date was pushed to April 30th, on the thinking that Judge Wu would first need to rule on our motion to dismiss and that the sentencing hearing would be dropped if the motion to dismiss is granted.
New Federal Power Case, Likely Heading to the Supreme Court:
In United States v. Comstock, a unanimous panel of the Fourth Circuit (consisting of a Clinton appointee, a George W. Bush appointee, and a senior district court judge appointed by Reagan) held unconstitutional 18 U.S.C. § 4248, which "authorizes the federal government to civilly commit, in a federal facility, any 'sexually dangerous' person 'in the custody' of the Bureau of Prisons -- even after that person has completed his entire prison sentence." The panel held that Congress's enumerated powers do not reach this far, because Congress lacks a general police power aimed at protecting the public at large from crime.
Here's an excerpt, though it focuses on only part of the government's argument:
Federal commitment of "sexually dangerous persons" may well be -- like the suppression of guns in schools or the redress of gender-motivated violence -- a sound proposal as a matter of social policy. But policy justifications do not create congressional authority....
The Government ... contends that § 4248 constitutes a necessary and proper exercise of its power to prevent "sex-related crimes." But the federal government simply has no power to broadly regulate all sex-related crimes, as § 4248 purports to do.
Consistent with Congress’s limited powers, federal statutes regulating sex crimes are limited in number and breadth, specifically requiring a connection to interstate commerce or limiting their scope to the territorial jurisdiction of the United States. In contrast, § 4248 targets "sexual dangerousness" generally, without any requirement that this undefined danger relate to conduct that the federal government may constitutionally
regulate. Because most crimes of sexual violence violate state and not federal law, many commitments under § 4248 would prevent conduct prohibited only by state law. Section 4248 thus sweeps far too broadly to be a valid effort to prevent federal criminal activity....
At its core, the Government’s argument attempts to "pile inference upon inference" so as to "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Were we to accept the Government’s logic, Congress could authorize the civil commitment of a person on a showing that he posed a general risk of any sexually violent conduct, even though not all, or even most, of this potential
conduct violated federal law. This argument would convert the federal government’s limited power to criminalize narrow forms of sexual violence into the general power to regulate all sexual violence, including acts which violate no criminal statute. Congressional power does not reach so far.
Here are some tentative thoughts, which might well change as I think about the matter more.
1. On the merits: I sympathize with the panel's concerns. The Constitution clearly provides that Congress shall have only the limited powers that it grants -- not including a general power to prevent crime -- and it seems to me that courts should enforce those constitutional constraints as much as they enforce others. To be sure, there are enough precedents authorizing very broad assertions of Congressional power that I doubt that courts ever will return to the original understanding. But some policing of the outer boundaries of Congressional power is proper, as Lopez, Morrison, and City of Boerne v. Flores make clear.
At the same time, presumably civil commitment of sexual offenders is aimed at preventing repeat sexual offenses. (Let's set aside whether such civil commitment after the end of a sentence may sometimes deny people liberty in violation of the Due Process Clause; that's an issue unrelated to the federal power question, since it would apply equally to states.) And presumably someone who committed a federal sex crime (e.g., possession or trafficking of child pornography) is pretty likely to commit another crime of much the same variety -- which will likely be a federal crime -- and not just some other random state sex crime. If the Commerce Clause power to regulate commerce authorizes Congress to ban commerce in child pornography, and the Necessary and Proper Clause therefore authorizes Congress to ban even private possession of child pornography, then it's hard to see why the Necessary and Proper Clause wouldn't authorize continued detention of people who have shown a willingness to commit such federal crimes.
One way of thinking about it might be to think about the historically established practice of civil commitment of people found not guilty by reason of insanity. If someone is tried for a federal crime and found insane, he won't be imprisoned for the crime -- since he's not criminally guilty -- but he will be locked up in a mental hospital so long as he is thought to be dangerous. I think that's right, but how does it fit the panel's decision?
After all, the person is not guilty, so Congress can't appeal to its power to punish federal criminals (just as the people in this case can't be further criminally punished, since there terms are up). True, we worry that this insane person will commit another crime, but under the panel's reasoning, that might well be a state crime. So must Congress release such people unless it gets a state to agree to take custody of them? Perhaps that's the right answer, since Congress lacks the enumerated power to detain them -- but I'm skeptical that this is so.
Alternatively, perhaps Congress can detain these not-guilty-for-reason-of-insanity people, as part of whatever federal power justified their criminal trial in the first place. If someone insanely commits a federal crime, Congress should be able to lock him up to prevent him from committing more such federal crimes in the future. But why wouldn't this equally be so for the people adjudged sexually violent predators? (I should stress again that this is a separate question from the broader Due Process Clause question of whether any government, state or federal, may civilly lock people up because of their future dangerousness, after their criminal term has expired.) In any case, that's why I'm tentatively skeptical about the panel's reasoning.
2. On the future of this case: The panel reports that this is the first federal court of appeals decision passing on the constitutionality of the statute. There's thus no circuit split of the sort that would normally signal a likely decision by the Supreme Court to hear the case. But there is a federal statute being struck down, and that sort of interbranch split -- the legislature thought the statute was constitutional, the executive is defending the statute as constitutional, but the judiciary is saying it's unconstitutional -- will often lead to a Supreme Court hearing even without an inter-circuit split.
So if the Fourth Circuit doesn't rehear the case en banc -- and en banc seems unlikely, given the general presumption against en banc and the mixed political makeup of the unanimous panel -- and if the Obama Administration asks the Supreme Court to hear the case, I predict the Supreme Court will indeed agree to hear the case.
One of the few Obama appointments that has me particularly concerned is his selection of John Holdren to be his top science advisor. It's all well and good that Obama has opted to name several well-respected scientists to his administration (such as Chu at Energy and Lubchenko at NOAA, among others), but in placing Holdren at the top, in what is effectively a cabinet-level position, I think that the Obama Administration does not understand, or is not concerned about the, the problem of science politicization. However bad the Bush Administration was in this regard, I have no confidence that Holdren will help the Obama Administration any better, for reasons I explain in this piece for NRO. Here's an excerpt:
Many who decried the alleged politicization of science celebrated Obama’s election. The new president would both elevate and insulate the role of science in the policy-making process. Whereas the Bush administration allegedly silenced scientific perspectives they did not want to hear, a President Obama would ensure scientific analysis informs relevant policy decisions.
No doubt Obama had the “Bush is anti-science” meme in mind when he explained that his commitment to science means “ensuring that facts and evidence are never twisted or obscured by politics or ideology” and “listening to what our scientists have to say, even when it's inconvenient — especially when it’s inconvenient.” Yet the underlying causes of science politicization are far deeper than who sits in the Oval Office. Even so, President-Elect Obama’s choice of John Holdren for his primary science adviser suggests political misuse and abuse of science will continue in the Obama administration, pledges to respect science notwithstanding.
Unlike some who have criticized the pick, my objection to Holdren is not that he is a climate alarmist -- I believe human contributions to climate change are real and worth addressing (though I also believe Holdren is prone to exaggeration). Nor do I think it a problem that Holdren has endorsed the imposition of significant reductions in greenhouse gas emissions, as this is the position President-elect Obama endorsed during the campaign. I would fully expect a President to name members of his administration who agree with the Administration's key policy positions on relevant issues. Rather my concern is that Holdren is one who will blur the boundaries between policy and science and squelch legitimate scientific and policy debate on important matters. I hope to be proven wrong, but we shall see.
For some of my prior posts on science politicization, see here and here.
I agree with Todd and Eugene that President-elect Obama has made a good choice to pick Harvard law professor Cass Sunstein to head the Office of Information and Regulatory Affairs (and not just because Cass has beena guest blogger). Cass's work on some issues (such as the Supreme Court and judicial nominations) can be frustrating, but his work on regulatory policy and risk is first rate. Agree or not, Cass has been an important thinker and synthesizer of research in this area, and I expect he will help maintain (if not increase) a solid level of analytical rigor at OIRA.
Volokh Conspiracy Guest-Blogger Nominated to High Government Office:
Well, OK, his guest-blogging isn't what he's famous for, but allow me to be parochial here, and point to Cass Sunstein's posts from last year. I agree with Todd Zywicki that Sunstein is an excellent choice. Sunstein is brilliant, thoughtful, and ideologically probably as good as libertarianish/conservativish people like me can hope for from the new administration.
Frankie Valli and the Four Seasons
Last year I finally saw Jersey Boys in New York. It is a musical about the life of the 60s-70s group, The Four Seasons. The play tracks the origins, rise, and eventual demise of the group, which is a good plot device to present a whole lot of their songs. Upon seeing the play, I had 2 reactions.
First, the Four Seasons had an amazing number of hit songs that one still remembers and likes. Maybe more than any other American pop band, and certainly in the same league as the Beach Boys. Like Mama Mia: The Musical, these songs made a great musical too.
Second, while growing up in the 60s (I graduated high school in 1970), we knew a whole lot about the Beatles and their back story (think: Pete Best), and maybe something about the Beach Boys (though the mini-series bios were not to come until much later), but we knew next to nothing about the Four Seasons, except that at one point, the lead singer Frankie Valli got lead billing, which was not unusual before a group broke up. Little did I know that their story was interesting enough to make a musical out of--and it is. Even Joe Pesci is a character. Yes, THAT Joe Pesci. So Jersey Boys worked as a personal drama in addition to an excuse to listen to the songs.
Having seen many versions of 60s and 70s band revivals, I had no idea what to expect of this one. The most important question: Did Franki Vallie still have his voice, now that he must be in his 60s? The answer? You bet. He sounded just like he used to. Not only the falsetto but the other high non falsetto voice too. Complete range and strength. As for how he looked, I knew what to expect from his role on the Sopranos. He looked like a little Jersey mob guy. He gave a nice little "support our troops" talk in the middle too, which went over big the audience.
As for the Four Seasons, that was a surprise. They are now a four guy vocal and dance group (a la the Temptations and 4 Tops) who stand behind Valli (although everyone moves all around during the show), and who sing the harmonies expertly. Behind them is an excellent band including a horn section.
It was an awesome concert that everyone can enjoy, including but not limited to those of us from the era. So if you ever get a chance to see him--or Jersey Boys for that matter--do not hesitate to take the opportunity.
It's hard to believe that the Washington Post could run a "news" (not opinion) article virtually accusing Israel of war crimes in not better facilitating the mobility of Red Crescent ambulances around Gaza without at least mentioning the well-established, and well-known, fact that Palestinian terrorists have often used such ambulances to ferry weapons, explosives (including belts for suicide bombers) and personnel, and that Red Crescent personnel have been implicated in terror attacks.
The WaPo reports this morning that Cass Sunstein is going to be the OIRA Administrator. This is really terrific news and continues the remarkable tradition of the extraordinarily high talent level that has occupied that position over the past many years (Dudley, Graham, Katzen, etc.).
Given Sunstein's apparently close connections to Obama, this also suggests that President Obama anticipates a muscular role for OIRA in his administration. And the appointment of Susntein presumably also reflects commitment to cost-benefit analysis in regulation, which is exceedingly good news and may provide a brake on some more extravagant regulatory initiatives. Given Sunstein's long record of scholarship on many of these issues, it will be interesting to see how he translates his ideas into practice, especially CBA, behavioral law & economics, and discounting. For now though, the obvious point is congratulations to Cass and Obama both.
Prohibition was never completely repealed – only those that were deemed of mature years by state legislators were extended the right to purchase alcoholic beverages. The states adopted minimum age laws ranging between 18 and 21. Congress got into the act in 1984, establishing a de facto national minimum age of 21 by threatening the states with loss of highway funds if they didn’t get in line. They all did.
Recently the Amethyst Initiative has gained prominence in its call for a reopening of debate on the national minimum. Amethyst is funded by the Robertson Foundation and headed by retired Middlebury College President John McCardell Jr. The 100-plus college presidents who have signed on are no doubt tired of dealing with widespread alcohol abuse on campus in a legal environment in which they must give at least lip service to the absolute ban on drinking.
Here are my thoughts:
1. I doubt that Congress will pay much attention to this initiative, at least in the near future.
2. If I'm wrong and some states lowered the minimum age to 18 or 19, there would be an net increase in alcohol-related problems among teens.
3. Nonetheless, denying college-aged youths the right to drink is so out of line with our collective judgment about adult status, and in particular the age at which we confer the rights and responsibilities of adulthood, that I am inclined to support a rollback in the age minimum.
We tried this before. In the early 1970s, when Congress was still respecting the 21st Amendment, most states lowered their minimum drinking age. That was the time when the Baby Boom cohorts were coming of age and 18-year-old men were subject to the Vietnam draft. The 26th Amendment was adopted in 1970, giving 18 year olds the right to vote. Denying young men who were getting shot up in the war the right to drink when they came home seemed perverse to legislators – especially when those men could vote.
Twenty-nine states lowered their minimum age by 1975. I and a colleague analyzed the effects on highway fatalities, finding that the relevant age group experienced about a 10% increase in states that lowered their age for all beverage types from 21 to 18, compared with states that didn’t change their law. Other research documented this and other indications of increased abuse. President Reagan appointed a commission that documented the problems (with some exaggeration) and ultimately sold Congress on establishing a national minimum.
(Note that we analysts could recite all the theoretical reasons why an age-based prohibition could have perverse effects on health and safety. Those arguments have some truth, but were ultimately trumped by the data. The net effect of lowering the minimum age was to increase alcohol abuse.)
Things have changed since the 1970s, and in some ways it seems likely that the costs of lowering the minimum age would be less now than then. In particular, youthful drunk driving has been curbed by zero tolerance laws, tougher DUI enforcement, and a change in culture that supports having a designated driver. While highway safety remains an important consideration, the greatest acute cost of youthful drinking these days is in its effect on the crime rate. In any event, freedom is still not free in this area.
Yet giving 18-20 year olds the right to drink has a lot going for it. After all, 18 year olds currently can vote, serve on juries, and hold most public offices, enlist in the military or work at any job without parental consent, undertake contractual obligations including marriage, and legally purchase lottery tickets, cigarettes, and shotguns. They are held fully accountable for criminal acts and are too old to receive the protection of the statutory rape laws.
It is also true that while the minimum age law does some good, it’s widely violated – in fact, it’s hard to think of another law that is so widely scoffed at. The great majority of older teens choose to drink, with whatever effect that may have on their respect for the law generally.
By the way, even though I support the Amethyst Initiative, I do not think we should do away with a minimum drinking age entirely. High-school students tend to be dangerous to themselves and others, and before age 18 are more children than adults. Parents often welcome some help in providing checks on self-destructive adolescent behavior. But at age 18 or 19, despite the fact that youths are not fully mature (physically or mentally) and still prone to all sorts of hazardous behavior, it is time to swallow hard and make the booze legal.
As I said, I don’t believe that Congress will repeal the national minimum. There are various partial measures that might have a better chance. For starters, a handful of states allow underage youths to drink with their parents, at least at home, and other states could adopt that more permissive stance. Enclaves like residential colleges and military bases are relatively safe places, and there might be a carve-out for such insulated environments.
(Actually military base commanders, while generally obligated to observe the local minimum age law, can declare a holiday on the minimum drinking age under special circumstances, such as a return of a combat unit.)
If there was room to compromise, I’d introduce Mark Kleiman’s idea of a “learners permit” approach to youthful drinking, whereby a “drinking license” would be given to 18 year olds and subject to suspension if they abused it. The zero tolerance laws on the highway could be maintained to age 21 even if the minimum purchase age were reduced.
It will not surprise anyone who has been scanning these posts that I believe that higher alcohol taxes would help curtail youthful abuse, regardless of the minimum age law, and could serve as a freedom-enhancing, low-cost substitute for age-based prohibition. (Years ago Gary Becker endorsed this idea in his Newsweek column.) Ideally I would want youths to face a higher tax than adults because the external costs of their drinking are so much higher on average. But I haven’t figured out how to accomplish that!
[Several who have posted comments on my previous blogs have asked me to respond to their queries. I'll provide a general response tomorrow in my final post.]
Judge Alton Parker Responds to Theodore Roosevelt:
In 1910, Theodore Roosevelt, preparing for his Progressive Party candidacy for the presidency, attacked the Supreme Court in a speech before the Colorado legislature. He singled out Lochner v. New York for criticism. Judge Alton Parker, the Democratic nominee for president in 1904, and author of the New York Court of Appeals majority opinion in Lochner reversed by the U.S. Supreme Court, responded:
It is safe to assert that the attack upon the Supreme Court of the United States by Mr. Roosevelt in his address to the legislature of Colorado will not be approved by the bench and bar and the thoughtful people of this country, who appreciate the importance of the Judiciary in our governmental system and the necessity for a continuance of the existing public confidence in and affection for our courts. It happens that in the case of the People v. Lochner, referred to in his address as the 'bakeshop case.' the prevailing opinion of the Court of Appeals of this state was written by myself, with concurring opinions by Judges Gray and Vann. Judges O'Brien and Bartlett wrote dissenting opinions, so that in all five opinions were written in the Court of Appeals, showing the full appreciation by that court of the fact that the question was a very close one about which minds must differ. Indeed, this fact was made very prominent in the interesting debates around the consultation table as well as in the opinions written.
The history of this case indicates how narrow was the dividing line between upholding and rejecting the statute. The trial judge held the statute constitutional. The Appellate Division affirmed his decision bya vote of three to two. And the Court of Appeals affirmed the Appellate Division by a vote of four to three. The Supreme Court of the United States reversed the Court of Appeals by a vote of five to four.
Every Judge in every court gave to this important question his best effort, willed is strongly evidenced by the differences of view of the members in the several courts. That fact should be quite sufficient to protect the greatest court in the world from offensive criticism from any source, and especially from one who heretofore manifested his dissatisfaction with a department of government which was performing the independent function conferred upon it by the Constitution so as to neither encroach upon its coordinate departments of government nor to allow them to encroach upon it.
[Larry] Flynt (the "Hustler" guy) and [Joe] Francis (the "Girls Gone Wild" dude) are asking the government for a $5 billion bailout, claiming the adult entertainment industry has taken a huge shot to the face because of the downturn — citing the fact that XXX DVD sales are down 22% from a year ago.
"With all this economic misery and people losing all that money, sex is the farthest thing from their mind," Flynt says. "It's time for Congress to rejuvenate the sexual appetite of America."
Economically, this request is no more ridiculous than the one last month from the home building industry. After all, to stabilize prices, we probably need a lower inventory of houses on the market, not a higher one.
Today it's the porn industry wanting a bailout. Who's next in line?
I was reminded recently of this remarkable story, from Woodward & Armstrong's excellent The Brethren. During the late 1960s and early 1970s, the Court's obscenity doctrine essentially called for case-by-case Supreme Court decisionmaking about whether various films were obscene. Those Justices who took this view therefore watched the movies, together with the clerks. Here's one item that stuck in my head:
During his later years, Harlan [who was by then nearly blind -EV] watched the films from the first row, a few feet from the screen, able only to make out the general outlines. His clerk or another Justice would describe the action. "By Jove," Harlan would exclaim. "Extraordinary."
The Case for Renominating Peter Keisler:
Quin Hillyer makes it here. I'd love to see that, but then I think the chances of it happening are about the same as the stars realigning and spelling out "KEISLER" on the night of Obama's inauguration.
Something for 1Ls to Keep in Mind:
Via Tony Mauro, we learn something that might interest the law students in the VC readership: The first-year law school grades of Harvard Law School Dean (and SG nominee) Elena Kagan. First-year students who are assuming that their 1L grades will determine everything might be interested to know that in her first semester at Harvard, Kagan earned a B in criminal law and a B- in torts. She then recovered in the spring, earning mostly straight A's with one A-, and she went on to clerk for the D.C. Circuit and the Supreme Court; to become a tenured professor at Chicago and Harvard; and then to become Harvard's very popular Dean and now likely will be the Justice Department's top Supreme Court lawyer. So much for first-semester grades as destiny.
Of course, Kagan has already had the ultimate revenge for a law student who received a B- in torts: She became the Dean of the law school and pushed through grading reform that abolished letter grades.
(Decided to repost this, because I originally posted it over a holiday weekend.)
This seems to be an opportune time to link to this comprehensive, scholarly analysis of international law and the conflict between Israel and Hamas, written before the current fighting, but still quite relevant. The authors are attorney Justin Reid Weiner and Professor Avraham Bell. (UPDATE: While I'm not an expert in the area, one thing that struck me in the paper's was the author's emphasis on Israel's duties to combat Hamas under international conventions related to the suppression of terrorism and against genocide, to which Israel is a signator, and regarding which those who like to cite "international law" in criticizing Israel somehow always ignore.)
(I'm not opening comments, because it's likely that only a tiny fraction of them would actually address Reid and Bell's paper. Feel free to email me directly if you know of any substantive critiques of this paper, or have one of your own.)
UPDATE: As a counterpoint, a reader sends a link to this report by an Israeli pro-Palestinian advocacy group, Gisha, which apparently received a fair amount of attention when it was published in 2007 ("Disenagaged Occupiers: The Legal Status of Gaza"). The report was apparently prepared to support an ultimately unsuccessful legal campaign by Gisha to have the Israeli Supreme Court dictate Gaza policy to the Israeli government. I don't have time (or really, the expertise) for a full critique, but just glancing at the report for ten minutes, I noticed the following:
(1) It makes conclusory statements, such as that Israel still occupies Gaza in part because it still occupies the West Bank, "which together with Gaza, constitute a single territorial unit." When Israel captured these territories in 1967, Gaza was held by Egypt, the West Bank by Jordan. The West Bank and Gaza have never part of the same sovereign country. They share no border. They are governed currently by two separate political movements, only one of which is in a state of war with Israel at this time. Gisha does not explain, or even footnote its contention, that Israel (or anyone else) is obligated, under international law, to treat the West Bank and Gaza as "a single territorial unit."
(2) It confuses Gisha's aspirations for international law with "law." For example, because, as Weiner and Bell note, the law of occupation requires that a power actually occupy and govern a territory before it can be considered an "occupier," the report says, "the humanitarian law of occupation should be interpreted in light of changes in technology and in the use of force". Well, maybe it should and maybe it shouldn't, and maybe this would affect the obligations Israel has to Gaza and maybe it wouldn't, but citing what Gisha and (and, in the footnotes, a couple of law professors) think international law should say doesn't make it "law" under any stretch of the definition.
(3) Egypt's role in Gaza is obfuscated. Despite what Gisha says, Israel does not control Egypt's border with Gaza. Egypt could choose to open its border with Gaza at any time, as Egyptian officials have acknowledged. Egypt chooses not to. That is Israel's responsibility only to those who have an agenda in which it must be.
I should note that I remain skeptical about the utility of "international law" in this and other contexts, but Weiner and Bell's paper strikes me as a good antidote to those like Gisha who selectively cite (or, in the case of Amnesty International, simply make up) international law as a political weapon.
Minnesota Senate Race:
The Minnesota lawyers at Powerline have been consistently precise in their coverage of the Minnesota election recount process. If I did not read their posts, I would have little idea of what has been happening. It allows me to translate what passes for factual reporting in the news media (including FoxNews). For example, I might not have known that the Minnesota Supreme Court has unanimously rejected some of Coleman's legal claims--e.g. concerning the alleged double counting of certain ballots--as inappropriately raised during the "recount phase" of the process and only properly raised during the "contest phase," which we have just entered. (One of the problems in Bush v. Gore was the Supreme Court of Florida's willingness to to inject election contest issues into the election recount phase--which was the strategy of the Gore legal team. Because the recount phase was lengthened by litigation, there was not much time left for the contest phase before the electoral college clock ran out.)
While highly critical of Secretary of State Mark Ritchie, they have also been a voice of calm adhering to what my former colleague Professor Dale Nance has called the "presumption of civility." We ought not presume without evidence that a fellow citizen has violated his or her moral duties to the community. For example, today Scott Johnson posts Overtime in the Minnesota Senate election in which he offers an evaluation of the Coleman team's approach to the recount process. He also reiterates the following from previous posts:
The media coverage of the events related to Minnesota's Senate election and subsequent recount has been so poor that it is difficult to determine what happened. The erosion of Senator Coleman's approximately 700 vote lead over Al Franken on November 5 to the emergence of Al Franken with a 225 vote lead over Senator Coleman on January 5 has given rise to implications that Democrats have stolen the election for Franken.
The Wall Street Journal editorial "Funny business in Minnesota" is representative of this strain of commentary on the canvas and recount. This commentary comes with the underlying theme that Senator Coleman is a victim of Democratic scheming.
From the day following the election, the Franken campaign understood it needed to come up with additonal votes to prevail. Thus the initial "count every vote" mantra that accompanied its litigation regarding rejected absentee ballots. The mantra ceased at the moment Franken took the lead, even though other apparently improperly rejected absentee ballots identified by the Coleman campaign have yet to be counted, and other Franken-leaning absentee ballots appear to have been counted twice.
It is particularly difficult to determine what happened in the recount as it proceeded at locations around the state. There has not to my knowledge been any public airing of grievances. The Board of Canvassers that was convened to preside over the recount and rule on challenged ballots conducted itself honorably under difficult circumstances.
In addition to board chairman Mark Ritchie, the Man from ACORN who is Minnesota's Secretary of State, four judges served on the board. Minnesota Supreme Court Chief Justice Eric Magnuson, Associate Justice Barry Anderson, and Ramsey County District Court Judges Ed Cleary and Kathleen Gearin filled it out. I have known Chief Justice Magnuson professionally more than 20 years. Justice Anderson was my law school classmate and is a friend. In my view, they are two of the best judges serving in the Minnesota courts. Period.
There was no noticeable partisan division among the board. I reject any imputation of misconduct to the board such as is implicit in the Journal editorial. Whatever inconsistencies the board committed in ruling on challenged ballots and other issues do not result from partisan mischief. [snip]
The fact that very few "improperly rejected" ballots came from Republican counties appears to me to derive in part from the lack of a proper response to the Franken campaign recount strategy. The Coleman campaign has nevertheless identified 654 "improperly rejected" absentee ballots from Republican counties that were excluded from the recount (and that may be included in the election contest).
In a fluid process like a recount, the proper approach is to assume that anything can happen and operate accordingly. Contingency planning is critical. Betting everything on an outcome you don't control is simply foolish, not just in a recount, but in any endeavor. The Franken campaign outhustled and outsmarted the Coleman campaign. If I were advising Senator Coleman, I would tell him to shake up his team and send in a new quarterback to run the offense now that he has the ball in overtime, i.e., the election contest. I would tell him to send in Dorsey attorney Roger Magnuson from the bench onto the field to lead the team.
Look, I am a former criminal prosecutor from Chicago, not Minneapolis. It was my job to anticipate and avoid the consequences of corruption going on around me. And corruption there was. I also patrolled polling places (with a Cook County Sheriff's police officer) on election day looking for fraud and, in one instance, voting fraud was committed right in front of me resulting in an arrest and prosecution. So I am as susceptible to cynicism with regard to the Minnesota recount as the next person, which is why I read Powerline both for factual updates and for much-needed perspective.
In the pre-Prohibition era, the saloons would advertise a “free lunch” for the working man. The catch was the expectation that the working man would have a beer with that lunch. The beer was definitely not free. Thus the most famous saying associated with economic science – “there’s no such thing as a free lunch” -- originates with alcohol retailing.
Given that historical reference, I enjoy the irony that alcohol taxation is a “free lunch,” or at least close to it. An increase in the federal alcohol tax could benefit most people directly (in the sense that they would come out ahead financially), while increasing economic efficiency for all.
Let me fill in the background on this not uncontroversial claim. While taxes usually impair economic efficiency by distorting incentives, that is not necessarily the case. If there are negative externalities associated with a particular activity, then it is “underpriced” and will lead to over-indulgence. Compelling examples include carbon emission and driving during rush hour.
Needless to say, drinking, while a pleasurable activity to many (including me), generates negative externalities. If you add up the deleterious effects on crime and highway safety and STD transmission and the quality of parenting, it is easy to surpass a dollar per drink on average. The public is inadvertently forced to share that cost, only a small part of which is covered by alcohol tax revenues. (The current federal excise tax amounts to 5 cents per beer, and even the highest state tax rates are lower.)
It would be more efficient if drinkers were confronted with the full price of their decision of how much to consume. Raising the tax rate can help accomplish that purpose. And it would be fairer to have the drinkers pay the social costs (in proportion to their drinking), rather than have those costs borne willy-nilly in everyone’s insurance premiums, income tax rates, uncompensated risks, and so forth.
However, while it the “drinker pays” approach seems fairer than the current system and certainly more efficient, it is far from perfect. The problem is that that average social cost conceals a great deal of variation.
A drinker who enjoys one glass of wine or beer with dinner every night is unlikely to impose any cost on others as a result. If that same person drank all her weekly ration on Saturday night before driving home, the total tax bill would be the same, but the social-cost calculus would be far different. The public consequences of private drinking choices depend on who, when, and where, not just how much.
Thus the alcohol tax appears to be a crude remedy at best.
Instead of taxing alcohol, it seems that it would be preferable to “tax” the socially costly consequences of abuse directly: Impose still heftier penalties on drivers convicted of driving while intoxicated. Have social workers finger negligent and abusive parents for sanctions. Step up enforcement against alcohol-related violent crime (and maybe those drunks who put themselves at foolish risk of being victimized). Subsidize condom distribution. And so forth.
Per capita consumption in the United States runs about 500 drinks per year, where a “drink” is a 12-ounce beer, a 5-ounce glass of wine, or a 1.5 ounce shot of 80-proof spirits (all of which have about the same amount of ethanol) But that average also conceals a great deal of variation: about 35 % of adults abstain, and drinking is very concentrated within the larger group who do drink.
The famous 20-80 rule of marketing applies – 20% of the consumers of most any commodity account for 80% of the total purchased. Removing the abstainers, that means that 13% of adults consume 80% of the ethanol, and thus pay 80% of the tax. (I’ve checked this estimate against actual self-reported drinking, and it works pretty well.)
What’s more, only about 7% of adults drink more than that 500-drink per capita average. That means that 93% of the American public contribute less than average to the alcohol tax.
As a thought experiment, consider increasing the alcohol tax by 10 cents per drink and then distributing the proceeds annually to every adult, $50 each. All but 7% would come out ahead on this deal. Given the preventive effect of higher alcohol prices, even that group would benefit from lower auto insurance rates and in other ways.
This thought experiment reminds us of the nice feature of alcohol taxes – unlike other prevention measures, this one generates revenue. And taxes no longer seem quite so crude or unfair, being nicely concentrated on the heaviest drinkers where we also find most of the abuse and social costs.
Of course in practice the distributional consequences of an alcohol-tax increase depend on how the money will be used. This year the extra revenues from any tax increase will be put to closing state budget deficits, which is to say that they will take the place of an increase in some other tax rate or a cut in expenditure. The ultimate question when it comes to distributional and efficiency consequences is how the alcohol tax stacks up against the alternatives.
The discussion of distributional consequences also must include mention of jobs. The alcohol industry has fought against nominal tax increases with great success on this basis. Not content to see tax rates erode with inflation, they are campaigning to have Congress roll back the 1991 increases, arguing that alcohol taxes reduce national employment. Of course this claim is not to be taken seriously.
The excise tax rate affects the size of the alcohol industry (and ancillary industries, such as funeral homes and trauma surgery). But aggregate employment is not affected by the beer tax, only the portion of the economy devoted to beer.
I’m sure at this point you are eager to hear just how high I would go when it comes to alcohol taxes in an ideal scenario. One standard would be to return the tax to the level that prevailed in some previous period, such as 1951 or 1975 – whenever the “good old days” occurred in your life or mine. I think that historical standard is an interesting reminder of trends, but provides little real guidance.
Another possibility is the public health standard, namely to save as many lives as possible. The problem is this -- The higher the tax, the more lives are saved, up to some level so high that we are back to Prohibition. The public health standard takes no account of the pleasures of drinking, and thus provides no basis for balancing pleasure against cost.
The most defensible approach in my mind is to set the tax equal to the average marginal social cost of a drink, perhaps with some distinctions between beer and spirits, or between on-premise and off-premise service. Estimating the precise levels would require careful up-to-date analysis. But we don’t have to do that precise analysis to know for sure that the social costs are much higher than the current tax rates. In particular, the increases that are being proposed by various governors this year are just a small step in the right direction, far less than the full social costs.
Any complete account of the public interest in alcohol taxation must deal with a few other issues – with the alleged health benefits of drinking (which I’ll turn to in a subsequent blog), and with possible substitutions. Would higher taxes lead consumers to substitute illicit drugs or dangerous moonshine?
The concern about an upsurge of moonshining or home manufacture in the face of higher prices is misplaced. Even if the 1950s, when federal taxes were a multiple of what they are today, illicit production filled only a miniscule piece of the market.
Some folks may try their hand at home beer- or wine-making, but unless it’s an enjoyable hobby it would not be a productive use of your time even if commercial prices increased by 50%.
The possibility of substitution to other intoxicants is a real one, but the evidence again points the other way. As it turns out, drinking and illicit drug use are not alternatives -- rather they tend to go together. Almost every illicit drug user also drinks, and a high percentage of those who seek treatment for drug abuse also have problems with alcohol. One analysis of alcohol tax changes found that marijuana smoking declined with higher alcohol taxes – the two intoxicants are complementary.
In any event, the evidence on the virtuous effects of tax increases that I cited in my previous blog is based on data analysis of what happens in states that raise their tax in comparison with states that don’t. The effects on mortality and all the other outcomes incorporate and reflect all the substitutions that consumers make in response to those higher alcohol prices.
Current Views that May be Seen as Unconscionable in the Future:
Co-blogger Orin Kerr asks: "What are the ideas or practices that are uncontroversial and widely accepted today — and that you personally find unobjectionable — that you think might be seen as barbaric or immoral one hundred years from now?"
As Orin correctly notes, we can all easily identify issues where we dissent from current majority opinion but hope to be vindicated in the future. Much more interesting is the attempt to consider whether posterity is likely to condemn widely held views that we agree with. I actually devoted a post to this very issue back in 2007, identifying three issues on which I think there is a significant chance that current majority views that I agree with will be repudiated by posterity: my support for the death penalty, my opposition to animal rights, and (somewhat less likely) my opposition to government-imposed forced labor relabeled as "national service." For interested readers, here are some of the implications I drew from my analysis, which I still think are largely correct:
I am unmoved in my opposition to forced labor. If this practice is legitimated in the future through the process I predict [clever demagoguery by activists and self-interested politicians], its increasing acceptance will say little about its rightness. I am less certain about the death penalty. On balance, I am still for it, but the fact that so many others are turning against it despite the lack of a clear self-interested or other biased reason for doing so does give me some pause. Finally, if I had to pick one of these issues where I am least confident in the validity of my present view, I would have to say animal rights. Even more so than with the death penalty, it is hard to provide an explanation for the increase in support for this moral view that is unrelated to its potential validity. Moreover, unlike in the other two cases, I have to acknowledge that my position is at least in part the result of a strong self-interested bias of my own: I like to eat meat, and I can't think of a logically consistent defense of animal rights that doesn't entail the conclusion that meat-eating is immoral . . . I'm not ready to endorse animal rights (at least not yet), but I have to acknowledge the possibility that my love of cheeseburgers is undermining my love of truth on this issue.
Ezra Merkin, Graham & Dodd, Warren Buffett, Nathan Detroit, and the World’s largest Ponzi scheme.
Ezra Merkin, the (presumably outgoing) Chair of GMAC, funneled large amounts of other people’s investment money into Bernie Madoff’s funds.
Ironically, Merkin wrote the Introduction to Chapter 3 of the 6th edition of Graham and Dodd’s Security Analysis (with a Foreword by Warren Buffett).
Merkin decries the “temptation to speculate.” He argues (p. 266):
[P]ropositions that would ordinarily sound ridiculous become strangely plausible. It's just like when Big Julie, in the classic Broadway musical Guys and Dolls, challenged Nathan Detroit to a game of craps played with dice that had no dots, other than those Big Julie claimed he could see.
Yet this is just what Merkin did. Ezra Merkin invested in “a game of craps played with dice that had no dots, other than those [Bernie Madoff] claimed he could see." The strategy that Madoff said he used (a “split-strike conversion strategy”) worked for no one except Madoff, booking profits that only Madoff could see.
I hope that none of GMAC’s assets were invested with Madoff or we would be bailing out the victims of a Ponzi scheme. The US government can’t afford to do that when it is already running the world’s largest Ponzi scheme.
David Kris To Be Nominated to Head National Security Division of DOJ:
According to the Legal Times Blog, President-Elect Obama is planning to nominate David Kris as the head of the Justice Department's National Security Division. If that's true, it's terrific news. Kris is a lawyer's lawyer and one of the world's foremost subject-matter experts in national security law. He literally wrote the book, or at least co-wrote it: His treatise, National Security Investigations and Prosecutions, is an extremely impressive work. Plus, Kris has a great deal of practical experience in the area: He was the Associate Deputy Attorney General from 2000 to 2003, where he supervised the government's implementation of FISA and represented DOJ at the National Security Council. If someone asked me who I thought should head the DOJ's National Security Division, I would probably have named David Kris. Bravo to President-Elect Obama for such an inspired pick.
for not pulling rank to get tickets to a sold out movie. His gentlemanly behavior is in stark contrast to that of former veep Al Gore. He once sent his secret service detail to "ask" a friend of mine to leave his seat at a movie in D.C. "because you are sitting where the vice-president would like to sit." For all you residents of the D.C. area, the proper response to a request like that is "well, then, the vice-president can just come over and ask me himself."
Another mensch: Ruth Bader Ginsburg. I once stood behind her waiting to be seated at a local theater production. She didn't try to cut the line, didn't have especially good seats, and otherwise didn't act like she was entitled to special treatment because of her position.
What Uncontroversial and Widely Accepted Ideas Today Will Seem Outrageous or Immoral 100 Years From Now?:
It's common to look back at the past and identify ideas that were widely held 100 or 200 years ago that seem shocking or barbaric today. When this happens, we pat ourselves on the back for being so much more enlightened than our ancestors. But it seems unlikely that we've somehow reached the end of this process: I would guess that in 100 years, folks will look back at us just like we look back at people 100 years ago.
So here's the question: What are the ideas or practices that are uncontroversial and widely accepted today — and that you personally find unobjectionable — that you think might be seen as barbaric or immoral one hundred years from now? To clarify, ideas or practices that you personally find barbaric or immoral today aren't eligible. You can't just predict that some day the world will realize you were right, and that your minority opinion will become majority opinion. Rather, the idea is to try to identify things that you actually don't find all that objectionable that you can imagine being seen as immoral or otherwise outrageous a century from now.
I have a particular fondness for instances illustrating the incommensurability of different reactions to political events, examples of how different people, aligned at different points of the political spectrum, see things so differently that debate or discussion is not likely to effect any changes of mind.
The biggest problem facing the Obama plan is likely to be the demand of many politicians for proof that the benefits of the proposed public spending justify its costs — a burden of proof never imposed on proposals for tax cuts.
This is a problem with which Keynes was familiar: giving money away, he pointed out, tends to be met with fewer objections than plans for public investment 'which, because they are not wholly wasteful, tend to be judged on strict 'business principles.'"
Now, what's interesting about this is not just that it's absurd; it's that Krugman (who is, after all, a really smart guy) doesn't see that it's absurd. The difference between public spending and tax cuts is that the former takes peoples' money away from them for an ostensibly public purpose, while the latter returns money to people that they already earned. It's really not that hard to see that the one calls for a higher "burden of justification" than the other, and that that's not a "problem" that needs to be overcome.
President-elect Obama wants Dr. Sanjay Gupta of CNN and CBS News to be the next Surgeon General. [What? You thought this post was about the other SG?] According to Obama, Gupta "could be the highest-profile surgeon general in history and would have an expanded role in providing health policy advice," according to the Washington Post's sources. I'm sure Gupta is suitably qualified for the post. As Yuval Levin notes, it has been some time since the Surgeon General was anything more than a glorified, uniformed spokesperson for government medical authorities, our own Nanny-in-Chief.
Douglas Kmiec has sharply criticized the majority opinion in District of Columbia v. Heller. E.g., Slate, July 8, 2008 (majority opinion amounts to unjust rule by judicial fiat); Tidings, July 11, 2008 (Heller majority misconstrued the Second Amendment, had no basis in "Constitutional text, history, and precedent", and also violated the "long-standing teaching of the American Catholic bishops".) See also Slate, March 17, 2008 (Second Amendment's anti-tyranny purpose is obsolete, and the Court should not create a new purpose for the Amendment).
Contrast the viewpoint in these articles with that of an amicus brief filed in support of Heller, and in opposition to the District of Columbia:
Amici believe that the Amendment secures to individuals a personal right to keep and bear arms and that the decision below correctly interpreted and applied the Amendment in this case....If the Second Amendment does secure an individual right, then this case lies within its very core. For if that right means anything, it surely protects the right of a law-abiding citizen to keep an ordinary handgun in his own home for self defense. The District of Columbia's laws prohibit this, and so are to that extent unconstitutional.
That amicus brief was the filed by "Former Senior Officials of the Department of Justice in Support of Respondent." The Appendix provides a list of "Amici Curiae in Support of Respondent." The amici list states: "Douglas W. Kmiec served as Assistant Attorney General for the Office of Legal Counsel from 1988 to 1989."
It seems odd for a legal scholar to reverse his view of a major constitutional issue so completely and so vehemently in a such a short period of time, especially without an expalanation of how he came to the conclusion that his former view was so utterly mistaken--or without even an acknowledgement that he recently held his former view so firmly that he urged the Supreme Court to adopt it.
UPDATE: Professor Kmiec's response (via a cordial e-mail to Eugene Volokh):
I joined the brief of former DOJ officers because at the time I thought the Court would benefit from a more complete statement of how the Department of Justice had construed the Second Amendment in past litigation and testimony; the former officer DOJ brief was primarily intended to supplement an incomplete presentation filed on behalf of former Attorney General Reno and others. My former OLC colleague, Charles Cooper, was the brief’s primary drafter, and while I supported his able presentation of the prior DOJ history, again clearly identified as the reason for the brief, I ultimately did not share – after the additional study I am certain many of us did of all the materials filed in the case — the bit of advocacy quoted by Professor Kopel. That ultimate difference of view I do not think disserved the core purpose for assisting the Court for the limited purpose described.
My response: As Professor Kmiec points out, the bulk of the brief is devoted to correcting the Janet Reno/Eric Holder/et al. amicus brief's mischaracterization of the historical position of the United States Department of Justice. However, the Conclusion of the brief is "For the foregoing reasons, the decision of the Court of Appeals should be affirmed." The first sentence which I quoted above was from the "Interest of Amici Curiae" and the latter two sentences were from the "Summary of Argument." So these sentences were not ornamental advocacy, but the very heart of the brief. I still do not understand why the Court's adoption in June of exactly what Professor Kmiec urged in February is not only incorrect, but utterly indefensible and lawless, as he claimed in July.
Settlement in Arabic T-Shirt Case Involving Raed Jarrar:
FoxNews reports — citing Agence France-Presse — that "A man who was forced to cover a shirt displaying Arabic writing during a JetBlue domestic flight three years ago was awarded $240,000 in damages." This is Raed Jarrar, who was allegedly "approached by [TSA] security officials who told him to remove his T-shirt with the words 'We will not be silent' as he waited near the front of a JetBlue flight at JFK Airport because it apparently made other passengers feel uncomfortable." Two thoughts:
1. If the facts are as the complaint alleges (and they may well be), then this strikes me as pretty clearly unconstitutional action by the government: Jarrar was ordered by government agents to refrain from engaging in certain speech simply because some people were made "uncomfortable." That strikes me as a pretty clear violation of either the First Amendment or the equal protection component of the Due Process Clause.
To be sure, the restriction was based on the language in which the message was written, and not based on the meaning of the sentence. But either the restriction was based on the inference that the wearer was an Arab, or based on the symbolic statement that he identified as an Arab or sympathized with Arab speakers. In either case, it would be unconstitutional, again if the facts were as Jarrar alleged.
2. I think it's a mistake to say that Jarrar "was awarded $240,000 in damages." "Awarded," I think, implies a court order based on a judgment that the plaintiff was legally in the right. (Likewise, as reader Victor Steinbok suggests, as to the FoxNews.com references to "the decision" and, to a lesser extent, to "reparations." I suppose "decision" could refer to a decision to settle, but that's not what it usually means in discussion of an "award," and in the absence of a specific reference to settlement.)
What happened here is simply a settlement of a lawsuit "expressly on the basis of no admission of liability or fault or wrongdoing or responsibility ..., any such liability or fault or wrongdoing or responsibility being expressly denied by Defendants." So it may well be that Jarrar was wronged, and the defendants settled because they were afraid that this would indeed be so found in court. Or it may be that they thought they were in the right but didn't want to spend more money, time, or effort at this, or to the run risk of losing at trial (even if they thought they should win). One way or another, there was no decision by the court on the merits. And I don't think that "was awarded $240,000 in damages" is likely to reliably convey to readers what actually happened here.
"Big Hollywood" Blog:
Dedicated readers of the Volokh Conspiracy know that, over the years, I have enjoyed blogging about movies and music every so often. Some examples of threads include posts about tribute bands, the Oscars and the sci-fi movie I was in called InAlienable. So I am interested in a new blog on the ideological politics of the movie business called Big Hollywood. Andrew Breitbart, its creator, described its mission in Monday's Washington Times. Here is a portion:
On Tuesday, I launch Big Hollywood (bighollywood.breitbart.com), a big group blog that will feature hundreds of the big minds from the fields of politics, journalism, entertainment and culture. [snip]
Big Hollywood's modest objective: to change the entertainment industry. To make Hollywood something we can believe in - again. In order to give millions of Americans hope.
Until conservatives, libertarians and Republicans - who will be the lion's share of Big Hollywood's contributors - recognize that (pop) culture is the big prize and that politics is secondary, there will be no victory in this important battle. [snip]
If conservatives don't figure out popular culture soon, the movement will die a deserving death. If Hollywood liberals can't learn how to play well with those with whom they disagree, Big Hollywood will have a field day at their close-minded and intolerant expense. The days of open bullying in the marketplace of ideas are nearing their end.
Consider this a warning. [snip]
I don't know if I will enjoy reading this blog regularly, but I thought readers who like movies may wish to know of its existence, so they can get in on the ground floor.
I cited Territory v. Nugent, a pre-statehood Louisiana case, and the assiduous cite-checkers reported that 1 Mart. (o.s.) 108 (La. Terr. 1810), was wrong; the correct citation is:
1 Mart. (o.s.) 108 (Orleans 1810).
The territory was apparently known at the time as the Territory of Orleans. Cool factoid, though the citation form ends up being confusing as a result; I added a parenthetical noting that this is "a pre-statehood case from what is now Louisiana." See also "Dakota" and "Indian Terr.," as well as "Territory South of the River Ohio (Southwest Territory)," which yielded reported cases but for which the Bluebook doesn't give a separate abbreviation.
UPDATE: As two commenters pointed out, only part of what is now Louisiana — but the part in which this case was decided — was known as the Territory of Orleans.
John Jay -- coauthor of The Federalist and the first Chief Justice of the U.S. Supreme Court -- was widely reviled by many in the U.S. for the treaty he negotiated with England. Here's one response, reported by George Pellew, John Jay 282 (1898), quoting John Jay, Second Letter on Dawson's Federalist 19 (1864):
James Savage, once president of the Massachusetts Historical Society, told his grandson that he remembered seeing these words chalked in large white letters around the inclosure of Mr. Robert Treat Paine [a signer of the Declaration of Independence, Massachusetts state supreme court justice, and apparently a "staunch Federalist]"]:
Damn John Jay! Damn every one that won't damn John Jay!! Damn every one that won't put lights in his windows and sit up all night damning John Jay!!!
Like it or not, Illinois Gov. Rod R. Blagojevich has the legal authority to appoint Roland Burris to the U.S. Senate, and Burris, the state's former attorney general, should be allowed to take the seat vacated by President-elect Barack Obama. Senate Democrats are on weak constitutional ground in trying to deny a seat to a properly selected individual. Their claim to the power to exclude a lawfully chosen senator could create a dangerous precedent.
Obama says No Earmarks Allowed in Stimulus Package.
In his brief press conference today, Barack Obama announced that there would be no earmarks allowed in his stimulus package. He stated that there would be no unreviewed projects. It was unclear whether he meant that the Administration would be picking the projects under a broad grant from Congress, or whether any projects inserted by individual members of Congress would have to be reviewed by the relevant Congressional committees, or whether he meant something else.
Whatever was intended, any restrictions on earmarking would be a good thing. While I oppose a big government spending program, favoring tax reductions instead, if we must have a big infrastructure program, we should also hope for structural restrictions to reduce waste and pork. Obama also promised transparency, with (as I understood him) individual projects identified online.
While Obama didn't go as far as McCain pledged to do in his campaign (eliminate earmarks altogether), he did pledge today to eliminate earmarks in the bill that might be the biggest pork-spending opportunity that Congress has ever considered — which is a major step. Just how much waste this move prevents will depend a lot on how the Obama administration chooses particular projects.
CNBC Reports That Adolf Merckle Committed Suicide.
The German press is reporting that Adolf Merckle, who has been described as Germany's Warren Buffett, died when hit by a train. CNBC reported that Merckle committed suicide. He had lost a lot of money in a short squeeze on Volkswagen stock, but had reportedly obtained a bridge loan to shore up his investment company.
Somehow, Edwin Arlington Robinson's poem comes to mind:
Whenever Richard Cory went downtown
We people on the pavement looked at him:
He was a gentleman from sole to crown,
Clean favored, and imperially slim,
And he was always quietly arrayed.
And he was always human when he talked,
But still he fluttered pulses when he said,
“Good morning,” and he glittered when he walked
And he was rich-- yes, richer than a king,
And admirably schooled in every grade:
In fine, we thought that he was everything
To make us wish that we were in his place.
So on we worked, and waited for the light,
And went without the meat, and cursed the bread;
And Richard Cory, one calm summer night,
Went home and put a bullet through his head.
Edwin Arlington Robinson (1897)
In the comments below, some are debating why Richard Cory killed himself.
I think of George Orwell's line from "Benefit of Clergy" (his essay on Dali, included in this collection): "any life when viewed from the inside is simply a series of defeats."
"Richard Cory" is perhaps the best-known example of his respect for the inaccessible recesses of man’s inner being . . ." W.R. Robinson, Edwin Arlington Robinson: A Poetry of the Act (1967).
"The dramatist sets in operation a chain of circumstances in which his characters are unconsciously brought to book by their own past. The method of the naturalistic novelist is quite different; absolved of the necessity of a demonstration, he tends to be less and less concerned with incident and to become preoccupied with the effect of experience on character; the drama is purely internal and is revealed by minute and acute psychological analysis. When this method is applied to dramatic material the very absence of the terms in the demonstration essential to the dramatist produces the effect of irony. Consider, for example, Richard Cory: . . .
Here we have a man's life-story distilled into sixteen lines. A dramatist would have been under the necessity of justifying the suicide by some train of events in which Richard Cory's character would have inevitably betrayed him. A novelist would have dissected the psychological effects of these events upon Richard Cory. The poet, with a more profound grasp of life than either, shows us only what life itself would show us; we know Richard Cory only through the effect of his personality upon those who were familiar with him, and we take both the character and the motive for granted as equally inevitable. Therein lies the ironic touch, which is intensified by the simplicity of the poetic form in which this tragedy is given expression." Lloyd Morris, The Poetry of Edwin Arlington Robinson: An Essay in Appreciation (1923).
There is a “national effort to reduce alcohol related problems,” so says the mission statement of the federal agency charged with researching these problems and disseminating the findings. I’m willing to believe it, but would like to pose a question: in pursuing this national effort, are lower prices of liquor and beer likely to help or hurt? Because for better or worse, price reductions are the de facto policy of the federal government.
Here’s the story. Federal alcohol excise taxes have been an important component of alcohol prices, and particularly prices of distilled spirits, since Repeal (or really since the Civil War, with time out for Prohibition). The federal tax is set as a flat amount per unit of ethanol, regardless of value.
For example, in 1951 Congress set the tax at $1.68 per fifth of 80 proof liquor. In today’s dollars, that’s the equivalent of $13.50 per fifth. But Congress has only succeeded in raising the tax twice since 1951, and by meager amounts, so that instead of $13.50, the current tax is just $2.16 per fifth.
Even if there were no markup on taxes (and there in fact is), the result is that the current price of a bottle of spirits is over $10 lower than it would have been if Congress had simply indexed the liquor tax to the Consumer Price Index in 1951 and then left it alone.
The states have also been slow to raise their nominal tax rates on liquor and beer. The result — inflation has deeply eroded the value of alcohol excise tax rates. It’s not surprising, then, that the price of spirits (adjusted for overall inflation) has been falling over time. Just in the last 25 years, the price for package sales has declined 12%. The price of a 6-pack has also declined, by about 8%.
Meanwhile, the price of cigarettes has been following a quite different trajectory, thanks in large part to state and federal tax increases since the Master Settlement Agreement of 1998. Over 40 states have raised their tax by more than 25 cents, and 11 have raised their excise tax by more than one dollar per pack. What’s going on here? Why is one “sin tax” so popular politically, while another has been largely neglected?
These days, increases in the cigarette tax are being touted as a public health measure, sure to reduce initiation by teens and help adults to quit or cut back. While economists have long supported this conclusion with direct empirical evidence, the idea has been difficult to sell to the public and the legislators. Smoking is addictive, and addicts will get their “fix” regardless of the cost, right? But now it seems that everyone is a convert to the power of taxation and price in the campaign to reduce smoking.
As it turns out, the evidence that higher prices discourage alcohol consumption and abuse is strong, and of just the same sort as the evidence that supports the conclusion that higher prices reduce smoking.
The most persuasive evidence comes from the laboratory of the states. Since 1981, I, my collaborators, and other economists and epidemiologists have analyzed the effect of state tax increases on alcohol sales but also on other outcomes, such as mortality due to alcohol-related causes. The results consistently favor the view that taxes (through their effect on prices) matter.
The legislators and the public are not buying it. For some reason, there is profound resistance to the idea that beverage alcohol is a commodity with the usual downward sloping demand curve. The alcohol industry knows better – they must believe that higher taxes can’t be passed on to consumers without a reduction in sales and consumption, or else why would they fight tax increases so fiercely? But when I make the argument to non-economists, I get a skeptical hearing.
The more refined skeptics accept the premise that higher prices lead to a reduction in sales, but speculate that that reduction is entirely due to the behavior of moderate drinkers — those who do not drive drunk or abuse their children or lose productivity to hangovers or do long term damage to their organs.
In this scenario, the abusers have zero elasticity, while moderate drinkers are price elastic. To which I could point out (and do) that in fact it is these heavy drinkers who should be most likely to respond to price, since they’re the ones for whom drinking places a real dent in the household budget.
But ultimately my belief in the efficacy of tax as a basis for controlling abuse does not rest on such qualitative arguments – it is based on the empirical evidence. In the 1960s there were actually some experiments on the effects of price, including several conducted in alcoholism-treatment clinics. Token economies were set up that offered the patients drinks at a price – either a certain amount of “work” or loss of privileges.
These experiments demonstrated that alcoholics were price sensitive. But they have not been replicated, since offering drinks to alcoholics is a tough to sell to the Institutional Review Boards these days.
Much more directly relevant are the studies based on “quasi-experiments,” including the dozens of instances in which states have changed their tax rates. We can observe what happens to an outcome variable (for example, a mortality rate) in states that raise their tax compared with states that don’t raise their tax in a particular year.
Thirty years of peer-reviewed research has documented that even small increases in alcohol excise tax rates have desirable effects. Among the specific findings are that tax increases:
• Reduce alcohol sales and binge drinking
• Reduce highway fatalities (stronger effect for youths)
• Reduce the rate of STD transmission (stronger effect for adolescents)
• Reduce youth suicide rates (under age 24)
• Reduce the cirrhosis mortality rate
• Reduce rates of robbery and rape
Economists are sometimes defined as people who, when told that something works in practice, want to know whether it works in theory. In my own experience that does not just apply to economists – evidence that contradicts ones own theoretical perspective tends to be ignored or discounted.
Unfortunately the preconception that leads to skepticism in this area is false. It is not true that alcohol abusers as a group are so highly motivated to get their “fix” that price is no object.
Professor Dawn Johnsen, tapped by President-elect Obama to head the Justice Department's Office of Legal Counsel, has quite a few thoughts on the OLC's institutional role as an enforcer of the rule of law and an intra-executive branch check on executive branch excesses. See, for instance, her article "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power" from the UCLA Law Review. Among other things, the article addresses how internal interpretive process and standards at OLC can foster or undermine adherence to the rule of law within the executive and includes, as an appendix, a set of principles to guide OLC's work. With Johnsen poised to take the helm at OLC, it's definitely worth a look. [Hat tip: Hilzoy]
Suing Cold Medication Manufacturers Because Drug Dealers Make Drugs out of the Medication:
No, it's not some hypothetical offered by critics of lawsuits against gun manufacturers; it's a real case. From Ashley County v. Pfizer, Inc., decided today by the U.S. Court of Appeals for the Eight Circuit (some paragraph breaks added):
The Defendants are manufacturers and distributors of over-the-counter cold and allergy medications containing either ephedrine or pseudoephedrine. None of the Defendants are retailers, nor do they sell the medications directly to the public. The Counties allege that the Defendants marketed and sold their products in Arkansas knowing that the products were being used illegally to manufacture methamphetamine. [Footnote: In their briefs to this court, the Counties allege that the Defendants intentionally targeted methamphetamine cooks by printing "pseudoephedrine" on the outside packaging of their cold medicines. These allegations were not included in the complaint, by which we are constrained in reviewing this dismissal on the pleadings. In any event, the Counties do not dispute that the packaging complied with the federal Food and Drug Administration regulations.]
The Counties allege that the Defendants knew that their products were being used illegally at least as early as 1986 when the federal Drug Enforcement Administration (DEA) began pushing for controls over the sale of products containing ephedrine or pseudoephedrine. During two different time periods, in 1995-1996 and in 1998-1999, the DEA placed restrictions on the importation of bulk ephedrine and tracked the sales of ephedrine and pseudoephedrine outside of "blister packs." According to the Counties, methamphetamine use and abuse declined dramatically during these time periods, but the Defendants allegedly fought to create loopholes in the regulations to continue reaping large profits in the sale of their products. In time, the Counties say, methamphetamine cooks learned how to exploit the loopholes, and methamphetamine use rose again.
The Counties claim that the Defendants knew of measures they could have voluntarily taken to reduce the availability of their products to methamphetamine cooks but consciously chose not to, fighting regulatory efforts in order to continue reaping large profits. The actions that the Defendants (who are manufacturers and wholesalers) allegedly should have voluntarily taken included directing the retailers to place the products behind the counter of retail stores; requiring the retailers to make retail purchasers sign for products when purchased from the retailer; educating the retailers and their employees about suspicious behavior by persons seeking to purchase the products for illegal use; requiring the retailers to lock the products in display cases; and requiring the retailers to limit the amount of product that could be purchased at retail by an individual during a specified period of time. These measures were eventually included in DEA regulations issued in 2005. The Counties also alleged that two of the Defendants, Warner Lambert and Pfizer, developed effective alternative cold medications that did not contain ephedrine or pseudoephedrine and that could not be used to produce methamphetamine, but that neither of them brought the alternative products to market.
The Counties assert that the Defendants knew they were selling far more than the legitimate market for their products consumed as evidenced by the fact that the revenues of one of the Defendants, Perrigo, declined rapidly from $182 million to $30 million once regulations were passed in 2005 limiting access to the Defendants' products. The Counties also allege that the DEA sent letters to some of the Defendants warning them that their products were being used to make methamphetamine and that an executive from Pfizer admitted that the pharmaceutical industry was responsible for a portion of the methamphetamine problem in the United States. The Counties do not allege, however, that any of the Defendants violated any federal or state regulation governing the manufacture, distribution, packaging, or sale of their products. Nor do the Counties dispute that the sale of products containing ephedrine and pseudoephedrine is heavily regulated by both state and federal agencies.
Fortunately, the court rejected the claim, finding that manufacturers of lawful products couldn't be held responsible because criminals misused those products -- and extensively relying on the gun cases that rejected similar liability arguments. (The court noted that a few cases did accept similar arguments in the gun cases, before Congress preempted most such lawsuits. But the court concluded that Arkansas law, the law applicable in this lawsuit, would likely follow the majority view.)
The fact is that many products -- cars, guns, medical supplies, knives, alcohol, and more -- have many lawful uses, but are also misused by criminals. Manufacturers may well be aware of this; surely any alcohol manufacturer must know that many of its sales (and especially many of its sales in college towns) end up coming from minors. And manufacturers might indeed be able to pressure retailers into imposing various restrictions that might or might not help avoid these crimes.
But these restrictions often involve considerable costs for consumers: privacy costs ("requiring the retailers to make retail purchasers sign for products"), convenience costs ("requiring the retailers to limit the amount of product that could be purchased at retail by an individual during a specified period of time"), risks of discrimination based on supposedly "suspicious behavior" ("educating the retailers and their employees about suspicious behavior by persons seeking to purchase the products for illegal use"), information costs (discouraging manufacturers from accurately labeling the contents of the products, for fear that this will be seen as "intentional target[ing]" for criminal use), and the like. More broadly, these restrictions change the consumer-seller relationship from one where the seller generally focuses on satisfying the consumer to one where the consumer is scrutinized by the seller, and must satisfy the seller about the consumer's bona fides.
Perhaps under certain unusual circumstances it is proper to impose such costs, and to change the consumer-seller relationship this way. But that should be done through legislatures setting up clear and narrow rules before the fact, and not by judges and juries making after-the-fact decisions based on vague standards of what sorts of consumer sacrifices a reasonable manufacturer should have indirectly imposed. This is especially so given that judges and juries in a few cases in a few states can affect behavior throughout the country, even when the great majority of all decisions on the subject come out against liability.
Here are two examples I offered five years ago, in the context of gun manufacturer liability.
1. Imagine that there was no drinking age for alcohol. A 20-year-old buys alcohol in a bar; he drives home; he hits another driver and kills him. The dead driver's relatives sue the bar, on the theory that it's "negligent distribution" for the bar owner to sell to 20-year-olds. The court says, "Yes, that's right; we're going to conclude that it's unreasonable -- at least presumptively so -- for bar owners to sell to 20-year-olds." The court has just essentially decided that the drinking age in the jurisdiction will be 21 (since bar owners know that by selling to 20-year-olds they risk ruinous liability, including punitive damages), applying its view of "negligent distribution."
Is this good? I don't think so. I think here we have a situation where judges (and juries) aren't just weighing financial costs and benefits, or even financial benefits against financial evaluations of lives or injuries saved. They also have to make basic decisions about equality, liberty, and privacy. Should under-21-year-olds be in some measure second-class citizens (or, if you prefer, not fully adults)? Should their social lives be restrained this way? Should you need to show your identification in order to buy alcohol? The answers to these questions may well be "yes"; our legislatures have generally answered them "yes." But I don't think judges should make these decisions under tort law (unless the Constitution somehow requires them to make such decisions, as in, for instance, First or Fourth Amendment cases, but that doesn't apply here). I don't think that four out of seven state Supreme Court judges should draw this sort of line.
2. Car manufacturers could make cars much harder for people to drive recklessly (if not today, then within a few years). They could put a transmitter in each car that alerts a police station whenever the car owner is speeding or even driving erratically (so if you have to speed to get your pregnant wife to the hospital, you can do it, but you'd have to explain yourself to the police). They might put in special devices into which the driver must breathe every so often in order to confirm that he's not driving drunk (I'm sure they have their weaknesses, but imagine that they're perfected). They could constantly transmit the car's position to some central database, so if the car is used by a criminal to commit a crime, the police can more easily catch the criminal and prevent him from victimizing more people. The list could go on. Assume that these features become very cheap soon.
Someone is killed by a drunk driver who's been driving erratically at 80 miles per hour for 15 minutes (enough time that the police might have stopped him had they known). Moreover, the driver had been in a hit-and-run several days before, and if his location had only been tracked, he wouldn't have been on the loose to kill again. The victim's family sues the car company, for negligent design: The car company could have decreased the chance that the car could be used by criminals to kill people, but it didn't do so. The court says, "Yes, that's right; making cars without these features is negligent, because adding these features could save many lives at little cost." Car manufacturers now know that if they want to avoid billions of dollars in aggregate liability, they have to add the features.
Is that good? Again, I don't think so. Perhaps one day we'll decide that we have to sacrifice our privacy this way. But that privacy/safety tradeoff should be made through the democratic process, and not by judges.
My claim, then, is that there's a substantial set of decisions that judges shouldn't be making, even applying negligence standards under the tort law. I think that category includes deciding that manufacturers should (on pain of vast liability) cut off distributors -- potentially destroying the distributors' businesses -- for conduct that might have been entirely outside the distributors' control, for conduct that the distributors were never convicted, tried, criminally accused, or even held civilly liable, and in ways that deprive a neighborhood's residents of convenient access to devices that in most states they are constitutionally entitled to own. If legislatures want to impose such a rule, I can understand. But judges ought not.
I realize that common-law judges have often does this sort of thing, at least in some situations -- though, as my examples show, I think even advocates of a vibrant common law would say that some tradeoffs should be left to the people or their representatives. But I don't think they should be doing it now. And while the line between permissible application of negligence standards and impermissible ones (such as the judge-imposed driving age, or the judge-imposed requirements that cars have various self-reporting features) may not be clear, the theory that the Arkansas counties were making in the Ashley County case is on the improper side of the line. That has been my argument about guns, alcohol, and cars, and I think it applies equally to pharmaceuticals.
My father pointed out that this year is the 60th anniversary of the release of Adam's Rib, a movie about a married lawyer couple (played by Spencer Tracy and Katherine Hepburn). I didn't much like the movie, but since I'm a lawyer married to a lawyer, my brother is a lawyer married to a lawyer, both of the other founding conspirators (Jonathan Adler, then Juan Non-Volokh, and Michelle Boardman, who left the blog when she took a Justice Department job) are lawyers married to lawyers, and the two judges for whom I've clerked (Judge Kozinski and Justice O'Connor) are married to lawyers, I thought I'd note the anniversary here.
These days I joke that lawyers are legally obligated to marry other lawyers, reflecting a pattern that I see throughout my circle. (It may well be different in other legal subcommunities in other places.) But once, for obvious reasons, it was unusual enough to be seen as meriting a movie.
Of course, women lawyers were also not so unheard of at the time that the plot device would be seen as too fantastic: Women judges had been around since the 1920s, a woman had been appointed Assisant Attorney General in 1921, and women lawyers had been practicing law for some decades before then. A woman's life as a lawyer was of course not easy then, and I suspect that in many places there were no women lawyers at all. But there had been some women in American law, and in high places in American law, for quite a while, rather longer than I had thought before I looked into the matter.
In the National Journal's latest blogger poll, 56% of left-wing bloggers and 78% of right-wing bloggers believe the U.S. Senate should seat Roland Burris. I voted in the majority on this one. Based on Burris's record in Illinois, which ranges from mediocre to pernicious, I think he will be a terrible Senator, but I think that the Senate is constitutionally required to seat him. The fact that Gov. Blagojevich may have unsuccessfully attempted to sell the Senate seat to other people does not mean that the appointment of Burris was corrupt. Of course it would be better in this case, and in the case of other Senate vacancies, to have a prompt special election to fill the seat. An Illinois Senate delegation consisting of Dick Durbin and Roland Burris is a pathetic contrast with the kind of Senators that Illinois used to send the nation, such as the distinguished duo of Everett McKinley Dirksen (Rep.) and Paul Douglas (Dem.) in the early 1960s.
Apparently, there were many red flags that might have tipped people off to Bernie Madoff’s fraud. Yet despite eight SEC investigations in the last sixteen years, he was not caught.
I wonder how many other large hedge funds or investment advisers have some of these:
A huge business audited by a tiny accounting firm.
The same firm acting as adviser, manager, custodian, and clearing agent.
No fees charged for managing money (only for trading).
Consistent 10%-20% returns every year.
Over 90% profitable quarters.
Large political donations. Note that while most big donors are not crooks, almost all big frauds are big donors: Enron, Worldcom, Fannie Mae, Madoff.
I haven’t seen hedge fund historical information online, but I wonder how many existing hedge funds have been profitable every year and almost every quarter.
Are any of these returns remarkably consistent as well? Inquiring minds want to know.
UPDATE: BTW, I do some of my trading through a Fidelity brokerage account, and I remember seeing that they did some of their trading of my orders through Madoff Investments, particularly, if I recall correctly, on after-market orders. A few months ago I got a couple of ridiculously bad fills on market-on-close orders (during normal trading hours) on some very heavily traded securities -- off by perhaps $1.75, when the bid-ask spread at close and immediately before close was 1 cent. I wonder whether these bad fills were Madoff ones (Fidelity's online records don't show this information for more than a day or so after the original trade report).
Are Palestinian Lives Worth as Much as Israeli Lives?
That's the question that some opponents of Israeli military action are asking defenders of this action. In fact, I've been asked this question directly more than once. The idea, obviously, is that given that the number of Palestinian noncombatants killed by Israel exceeds the number of Israeli noncombatants at immediate risk from Hamas rockets, to defend Israeli military action one must logically believe that Israeli lives are worth more than Palestinian lives.
The easy response to this is to argue that there will never be peace between the Palestinians and Israel so long as Hamas, with its fanatical anti-Israel views and violent agenda, is allowed to act unmolested in Gaza. In the long-run, by creating the conditions for peace or at least quiet, the number of noncombatants saved in both Israel and Gaza by current Israeli military action will dwarf the short-term costs.
But that's the easy way out. Let's tackle the harder question, of whether Israel is required to, or even should, treat Palestinian noncombatants as equally valuable to its own noncombatant citizens. Let's say, for example, that the Israeli government's best guess is that military action will cost the lives of 1,000 Gazan civilians, but save the lives of 400 Israelis. (And let's assume arguendo that Hamas and not Israel is the "aggressor," so we can take off the table the argument that Israel doesn't have ANY right to engage in a military response.)
We have to start, I think, with a broader question. Are governments, in general, expected to act as if individuals who are outside their jurisdiction are "equally valuable" to their own citizens? The answer is clearly no. In practice, no government acts this way. Governments provide military protection, police protection, a justice system, food, shelter, medical care, etc., to their own citizens, especially poor citizens, and give little to the citizens of other countries, even when those citizens are far worse off on average. The most "Progressive" countries in the world, the Scandinavians, devote something like 2% of their budgets to their total foreign aid budgets to help billions of poor around the world, a figure obviously dwarfed by the money spent on helping their own small, well-to-do populations. Children are starving in Sudan and Bangladesh so an elderly Norwegian can enjoy a rejuvenating week at the spa paid for by his government! Aren't Sudanese and Bangladeshi lives worth more than the temporary comfort of a retired Norwegian?
Relatedly, no country in the world has open borders. The blessings of American citizenship, for example, are available only to a select few hundred million, and the rest of the world is treated as if they are "less valuable" by our government.
This goes to the basic heart of the implicit social contract between government and its citizens in a democratic society. The citizens pay taxes and obey government dictates, and in return the government fulfills its obligations to them. Protection from foreign enemies is among the most basic functions of government. Any government that fails to engage in such protection because it believes that noncombatants on the other side are equally valuable to its own noncombatants would be violating that social contract, as well as acting contrary to the actions of every government in human history.
In protecting its own citizens, a government still should take moral considerations into account. That's the point of conventions and treaties on war, treatment of prisoners, etc. But even under the most generous interpretations of international law, there is no such established principle as the critics of Israel are asserting. Indeed, the establishment of such a principle would not only prevent states from engaging in the expected defense of their citizens, it would undermine the entire concept of the nation-state, which is premised on the idea that nations have fundamental duties to their own citizens that do not extend to citizens of other states. One can argue that the whole idea of nation-states is misbegotten and immoral, and in my libertarian heart and mind I tend to agree. But that's not the world we live in, and, even if that's one's preferred world, there is no particular reason to expect Israel to be the first and only nation-state to abdicate its sovereign responsibilities. Put another way, the Scandinavians could justly criticize Israel for not having "proportionate" civilian casualties as soon as they establish an open immigration policy for residents of impoverished Third World nations.
In the absence of relevant treaties, exactly where the moral line should be drawn in causing noncombatant civilans casualties in protecting a country's own citizens is a very interesting question, one that was debated on this blog back in 2006 (I can't find the link right now). I don't remember coming to any firm conclusion then, but I'm quite sure the answer isn't that the ratio has to be one to one.
So yes, as a matter of abstract morality, Israeli lives are worth the same as Palestinian lives which are worth the same as Iranian lives which are worth the same as Mexican lives and so forth and so on. But that question obfuscates more than it illuminates. The real question is, is it either realistic or even desireable to expect nation-states to act as if their own citizens' lives are no more valuable than the lives of citizens of other countries. If the answer to both questions is yes, the argument of Israel's critics is really an argument to abolish the nation-state as it currently exists, which makes the argument rather superfluous to the specifics of the fighting in Gaza.
Thanks to Eugene Volokh for his invitation to guest blog on alcohol control policy.
There’s been little public debate or legislative action in this area for many years, despite the fact that alcohol abuse remains our most important drug problem. But that’s about to change. The governors of New York and California, among others, have called for an increase in alcohol excise taxes as part of their budget-balancing plans. The Amethyst Initiative to generate debate on the national minimum drinking age has been gathering steam. And the three-tier regulatory system for alcohol distribution is under attack in the courts.
I have selfish reasons to welcome this renewal of interest, since I’ve been doing research on alcohol control off and on for 30 years and just published a book on the subject (Paying the Tab, Princeton University Press). But surely any sensible account of the public interest when it comes to drug policy would put alcohol control high on the list of issues worthy of our attention.
Over the next few days I’ll attempt to make the case for raising alcohol excise tax rates. And just to prove that I’m not really a “neo-prohibitionist” (as the industry spokesmen like to label me) I’ll point out the reasons why I think the case for lowering the minimum drinking age is pretty strong.
Needless to say alcohol control and taxation have played a prominent role in US history. A distilled spirits tax was the first domestic revenue measure — enacted by Congress in 1791, it led to the Whiskey Insurrection and the subsequent assertion of federal authority by President Washington and Secretary of the Treasury Alexander Hamilton.
Between the Civil War and World War I, federal alcohol excise tax collections accounted for the bulk of internal revenues (as much as 80% in some years). This source became less important with the adoption of the 16th Amendment in 1913, which legalized the federal income tax. From a public-finance perspective, the 16th Amendment cleared the way for the 18th Amendment’s prohibition on the “manufacture, sale, or transportation of intoxicating liquors.”
After disillusion with that Noble Experiment arose (it didn’t take long), one of the leading proponents for repeal, Pierre S. DuPont (retired chairman of General Motors), recruited his fellow millionaires to the cause by reminding them that a legal alcohol industry would generate tax revenues, thereby displacing the need for the despised income taxes.
Last year was the 75th anniversary of Repeal. In 1933 there was a huge nationwide beer blast to celebrate the end of Prohibition, but the anniversary passed largely unnoticed. It should have gotten more attention. After all, the legacy of Prohibition is very much with us. Historian David Musto observed that “This ‘dreadful example’ is now so firmly established that it has become a maxim of popular culture, a paradigm of bad social policy, and a ritual invocation of opponents of a variety of sumptuary laws.”
Sure enough, Prohibition was a failure in the sense that it did not magically end drinking, and it engendered vast amounts of crime and corruption. But the modern interpretation of the Prohibition experience has gone well beyond those facts to a conclusion that “you can’t legislate morality” and that drinking in particular is somehow unaffected by the terms on which alcoholic beverages are sold in the marketplace.
A careful look at the actual Prohibition experience tends to refute that conclusion. During the 1920s alcohol of uncertain quality was available from shady sources at prices substantially higher than before the War. While there are of course no official statistics on alcohol consumption during that period, all the indicators suggest a substantial reduction in consumption and abuse – especially among working class folks.
Contemporaneous studies by economists Clark Warburton, Irving Fisher, and others made that case in convincing fashion. And when Martha Bensley Bruere conducted a survey of other social workers across the country for the National Federation of Settlements in the mid-1920s, she received reports indicating that most of the South and West had become quite dry, and that family problems associated with alcohol had fallen off considerably.
Newspaper reporters, providing the “first draft of history,” tended to miss this big-picture story. Then as now, they focused on the wealthy and glamorous, the Yale grads with their hip flasks, and often missed the bigger story that Prohibition was, in a sense, “working.”
Under the 21st Amendment, alcohol control was largely relegated to the states, although of course Congress reinstated excise taxes (but did not end the income tax!). The states had little experience with regulating commerce in alcohol. To provide them with guidance, John D. Rockefeller, Jr. commissioned a study by Raymond B. Fosdick and Albert L. Scott that produced an impressive piece of policy analysis called Toward Liquor Control.
It reviewed alternative control schemes from Europe and Canada, seeking a set of “rational” regulations that would supply “unstimulated demand” for alcohol without bringing back the corruption and abuse of the pre-War saloon era. Fosdick and Scott envisioned an era of experimentation by the “laboratory of the states” from which we would learn what worked.
To an extent, that promise has been realized. The states have gone their separate ways in regulating the supply chain, licensing retailers, setting excise taxes, and (until Congress intervened in 1984), setting the minimum drinking age. In the last 25 years, economists and epidemiologists have analyzed the results and learned a good deal about how alcohol control policy affects drinking and abuse.
So here’s the irony. The true lessons of the Great Experiment with Prohibition have been lost, the evidence hopelessly distorted in the retelling. (It was never much of an experiment anyway, since there was no natural control group.) But since Repeal the laboratory of the states has generated considerable data on the effects of supply control. The analysis of those data provide pretty good guidance to the questions that will be debated in 2009.
Some people might try to leverage a high government position into an elite deanship. Kagan is moving the opposite way.
Even though Kagan has been a terrific Harvard dean -- and has shaken up the law school world more generally -- she is likely to have more influence as SG than if she served an additional five years as a dean or university president.
My colleague Amos Guiora always has insightful things to say about the Middle East, as proven by this recent op-ed from the Baltimore Sun. In it he argues that a wedge that has been driven between moderates and extremists in Arab world resulting from Hamas’s constant firing of missiles into Israel and President-elect Obama should take full advantage of this extraordinary development. Seems like a plausible idea to me, although I am skeptical that anything positive will result given the current leadership in Gaza.
Guiora does recount a great quote that seems to explain a lot: Abba Eban famously referring to "the Palestinians never missing an opportunity to miss an opportunity." What was Hamas expecting to happen from firing thousands of rockets into Israel?
Philip Cook Guest-Blogging on Alcohol Control Policy:
I'm delighted to report that Prof. Philip Cook, ITT/Sanford Professor of Public Policy, and Professor of Economics and Sociology, at Duke University, will be guest-blogging this week. I first got to know Prof. Cook through his scholarship on gun control, where he is one of the leading scholars on the pro-control side. As readers of this blog know, I am generally more skeptical of gun control, but I nonetheless much respect his work on the subject.
Alcohol causes a tremendous amount of harm, including externalities imposed on nonparticipating third parties -- as well as a great deal of pleasure, and apparently a considerable amount of health benefit. The legal system extensively regulates alcohol, and it's certainly possible that it should regulate it more, or more effectively. My preconceptions are to be skeptical of such increased control (or increased tax) proposals; but it's far from clear that these preconceptions are right, given alcohol's harmful externalities. And even those who share those preconceptions should, I think, confront the arguments for greater control. Prof. Cook is one of the leading scholars in the field, and one of the most credible sources of such arguments.
Here is the quick summary, from the book's flyer; we will of course hear the arguments in much more detail in the coming week:
What drug provides Americans with the greatest pleasure and the greatest pain? The answer, hands down, is alcohol. The pain comes not only from drunk driving and lost lives but also addiction, family strife, crime, violence, poor health, and squandered human potential. Young and old, drinkers and abstainers alike, all are affected. Every American is paying for alcohol abuse.
Paying the Tab, the first comprehensive analysis of this complex policy issue, calls for broadening our approach to curbing destructive drinking. Over the last few decades, efforts to reduce the societal costs -- curbing youth drinking and cracking down on drunk driving -- have been somewhat effective, but woefully incomplete. In fact, American policymakers have ignored the influence of the supply side of the equation. Beer and liquor are far cheaper and more readily available today than in the 1950s and 1960s.
Philip Cook’s well-researched and engaging account chronicles the history of our attempts to “legislate morality,” the overlooked lessons from Prohibition, and the rise of Alcoholics Anonymous.
He provides a thorough account of the scientific evidence that has accumulated over the last twenty-five years of economic and public health research, which demonstrates that higher alcohol excise taxes and other supply restrictions are effective and underutilized policy tools that can cut abuse while preserving the pleasures of moderate consumption. Paying the Tab makes a powerful case for a policy course correction. Alcohol is too cheap, and it’s costing all of us.
Obama Justice Department Leadership Named:
The Boston Globe reports that Obama is announcing today that he will nominate the following individuals to take the key leadership positions in the Justice Department: David Ogden as Deputy AG; Tom Perrelli as Associate AG; Elena Kagan as Solicitor General; and Dawn Johnsen as Assistant AG for the Office of Legal Counsel.
Kagan Reportedly Picked as SG:
Reader Adam White passes along an e-mail just sent out on a Harvard Law School listserv apparently coming from Elena Kagan, announcing that President-Elect Obama will announce today that Kagan will be nominated as Obama's Solicitor General. I haven't been able to confirm this independently, but it seems legit enough to pass on (and if it's not legit, I'll correct it ASAP). The e-mail is below the jump.
From: email@example.com [mailto:firstname.lastname@example.org] On Behalf Of Elena Kagan
Sent: Monday, January 05, 2009 10:44 AM
Subject: [HLS] Announcement
Dear colleagues and friends:
I am writing to all of you – the community of students, faculty, staff, and alumni of Harvard Law School – to let you know that today President-elect Barack Obama will announce his intention to nominate me to serve as Solicitor General of the United States. If confirmed by the Senate, I will resign the deanship of the Law School and take a leave of absence from the faculty.
I have accepted this nomination because it offers me the opportunity, working under the leadership of the President-elect and his nominee for Attorney General, Eric Holder, to help advance this nation’s commitment to the rule of law at what I think is a critical time in our history. I am honored and grateful, awestruck and excited, to be asked to contribute to this most important endeavor. And perhaps, for me, it adds a special touch of sweetness to the occasion that the person making the nomination, in whose capacity for greatness I deeply believe, is himself a member of the group to which I am writing.
At the same time, I feel today real sadness – a sense of loss of what, if confirmed, I will be leaving that is every bit as strong as my sense of anticipation of what will be to come. Now isn’t the time for me to attempt a grand wrapping-up or final farewell; I don’t in any way want to presume the outcome of the Senate’s consideration. For the present, I’ll say only this: it has been both the joy and the privilege of my life to serve as dean of this most wondrous law school. I love it, and I love the extraordinary community of people – you – who make it up. I look forward to staying in close touch.
My warmest wishes for a happy and healthy new year.
It didn’t take long for conservatives to rediscover limits on executive power. You’d think something—if not philosophical consistency, then at least manners—would cause them to hold off until, say, inauguration day.
In this case, it’s the wisdom of the framers—the bane of reasonable political and legal debate—that has locked the United States into a supermajority rule for treatymaking. Presidents can enter treaties only with the consent of 2/3 of the Senate. The rule is far too strict to be practical. No other major country has such a strict rule—most European countries, for example, just require a parliamentary majority. Recognizing this problem, over the years the political class of the United States and the judiciary have acquiesced in two subterfuges—the congressional-executive agreement, where consent to a treaty requires a majority of both houses, and the “pure” executive agreement, which requires merely the consent of the president, pursuant to “inherent” constitutional powers or powers delegated by Congress. A complicated set of largely political precedents govern the use of these approaches. In the past, trade treaties have usually resulted from congressional-executive agreements; military alliances and arms control agreements have involved Senate consent; and presidents have often negotiated settlements of international claims on their own. Today, the United States belongs to thousands of treaties—far more than any other country. It is far too late to complain of American being caught in a “dense web of treaties and international bureaucracies.”
This evolution made good sense. The framers, acting with little useful precedent, and acting under circumstances entirely different from those that prevail today, took a stab in the dark and missed. The problem is not just that 2/3 is a very high standard for a legislative institution; it is also that senators, unlike members of the House, do not represent equal numbers of people. As a result, senators representing a very small portion of the population—around 15 percent, I think—can block a treaty that reflects the interests of the other 85 percent. And, indeed, typically senators from rural states with small populations do the blocking.
Bolton and Yoo appear to concede that the 2/3 rule is too strong for financial and economic agreements. They just want to preserve it for agreements that touch on national security or that involve delegation to international institutions (however, that is what happens with the WTO dispute settlement mechanism). Certainly, the framers did not make such a distinction, and Bolton and Yoo do not explain why there should be different rules for different types of treaties. If the Obama administration can further erode the Senate’s role in treatymaking, this will strengthen the president’s hand. John Yoo thinks that the president has the power, and ought to have the power, to make war, control American troops, and dominate American foreign policy; if he can do all that, why shouldn’t he also have the power to make the agreements that America’s foreign policy requires?
Bolton and Yoo write as though nothing would delight the Obama administration more than “t[ying] one hand behind America’s back.” Of course, this is the John Yoo who famously (and correctly, in my view) argued that the president can unilaterally, that is, without Senate consent, withdraw the United States from treaties. It may turn out that the Obama administration will enter unwise treaties, but, at least so far, Bolton and Yoo exaggerate the difference between the Bush and Obama administrations—both of which support the Law of the Sea treaty and have agreed that the United States should submit to binding greenhouse gas limits. I expect that the Obama administration will find the old Yoo’s views about executive power more compatible with its interests than the new Yoo’s views.
President-elect Barack Obama is reportedly about to announce a much bigger tax cut than was expected, as part of his stimulus package.
Obama Eyes $300 Billion Tax Cut:
Huge Breaks for Firms, Individuals Are Aimed at Winning GOP Support for Stimulus
President-elect Barack Obama and congressional Democrats are crafting a plan to offer about $300 billion of tax cuts to individuals and businesses, a move aimed at attracting Republican support for an economic-stimulus package and prodding companies to create jobs.
The size of the proposed tax cuts — which would account for about 40% of a stimulus package that could reach $775 billion over two years — is greater than many on both sides of the aisle in Congress had anticipated. It may make it easier to win over Republicans who have stressed that any initiative should rely more heavily on tax cuts rather than spending.
Though the Wall Street Journal presents this as a political move to gain Republican support, it seems like smart policy to me. And it would be consistent with the likely influence of one of Obama's economic advisers, Christina Romer.
Here is Harvard's Greg Mankiw writing (in a superb post) last month:
By contrast, recent research by Christina Romer and David Romer looks at tax changes and concludes that the tax multiplier is about three: A dollar of tax cuts raises GDP by about three dollars. The puzzle is that, taken together, these findings are inconsistent with the conventional Keynesian model. According to that model, taught even in my favorite textbook, spending multipliers necessarily exceed tax multipliers.
This research by Romer makes sense to me. I question how government spending promotes substantial economic growth; it's private investment that needs to be encouraged, and lower taxes would seem to achieve that much better that big pork-barrel spending or big bailouts of financial institutions. (After all, we already have one of the most progressive federal income tax burdens in the developed world.)
One must always be careful to note that the devil is in the details. As with most proposals that include income tax cuts for those who don't pay income taxes, it might be better to call this class of cuts welfare payments, rather than tax cuts, but the theory of the earned income credit is that it's sort of a refund of federal payroll taxes.
To promote employment that lasts and adds to real economic growth, I would instead favor a direct long-term cut in federal social security payroll taxes.
Even though Obama's tax cuts will probably be phased out for those making over some amount (perhaps $200,000), one bone that could be thrown to the so-called rich would be allowing them to deduct their actual net investment losses from their overall earned income, instead of allowing just $3,000 in net losses a year. With a market downturn, these investment losses tend to be real losses, not artificial losses generated from some questionable tax shelter. As such, they ought to be deductible in the year realized.
At the end of a long rant on Gaza, Glenn Greenwald writes:
Especially in the American media, there is a constant focus on the effects on civilians from the rocket attacks on Southern Israelis — as well there should be, since that is an important part of the debate. But everyone should also be permitted to view the devastating effects on actual human beings from these Israeli bombing and artillery raids in Gaza. This truly horrific video — purportedly of a recent Israeli bombing of a civilian Gazan market — has been widely cited. I can't and don't vouch for its authenticity (UPDATE: there's good reason to believe it's not from an Israeli attack), but it's certainly reflective of the carnage in Gaza. It's much easier to undervalue the suffering imposed on The Other when you don't have to see it.
I guess Greenwald was too embarrassed to acknowledge present the full truth in his update, that it seems rather clear by now that the video was actually footage of the result of an accident at a Hamas weapons parade in 2005.* [UPDATE: Greenwald responds in the comments that "I made clear from the beginning that while that video was being widely cited, I had obvious doubts about its authenticity." I'm not at all persuaded that simply refusing to vouch for a video's authenticity, but posting it anyway as if it represents some important truth, constitutes "clear" evidence of "obvious doubts about its authenticity." But if there were such doubts, why post it to begin with until its authenticity was established? We all make mistakes, but usually not ones that are quite so ironic, not only in that it turns out that Hamas was behind the carnage in the video, but because Greenwald previously accused yours truly of engaging in "emotionally manipulative means of argumentation".]
It's a lot easier to pretend that Hamas's weapons (which are vastly more lethal now than in 2005) are somehow the equivalent of large firecrackers (an analogy that's been made by quite a few others, not Greenwald) when you haven't just seen footage of them blowing people in half.
UPDATE: Just to be clear, I don't want to make light of the suffering endured by those caught in Gaza. As readers of this blog are no doubt aware, I put the primary blame for this suffering on Hamas, which could have cut off the violence (and, for that matter, the economic boycott of Gaza) at any time before the current war started by announcing its intent to refrain from attacking Israel and sticking to it. But the fact that Hamas has brought this disaster on its own population, and in fact cares not a whit about the suffering of the civilian population in Gaza (as witnessed by its constant violent attacks (e.g.) on the crossings that allowed people and goods to cross between Gaza and Israel) does not make the human tragedy any less. Unfortunately, however, I'm not aware of any war, no matter how just, that hasn't resulted in the suffering of innocents, and the risk of the suffering of innocents can't be the only criterion for judging a war. This is especially true when one considers that sometimes the short-term suffering of a war prevents more suffering on both sides in the long-term. I hope Israel action in Gaza is the latter kind of war, but Israeli politicians' actions in the past don't give me much confidence that they know how to turn military victories into diplomatic achievements.
* I deleted a sentence that on further consideration I thought was a bit unfair.
This is our decision to live fast and die young.
We've got the vision, now let's have some fun.
Yeah it's overwhelming, but what else can we do?
Get jobs in offices and wake up for the morning commute?
Forget about our mothers and our friends.
We were fated to pretend.