The Volokh Conspiracy

So how should the outcome of the Durban conference, the UN’s latest climate change confab, be interpreted?  Looking at it strategically, adopting by assumption the standpoint of wanting to see maximum binding international legal enforcement, how did things fare? I see three general interpretations on the table: optimists, pessimists, and mitigators.  And add a fourth, skeptics – skeptical in this instance on both the negotiations and the underlying issue, so not fitting into the starting assumption.

Optimists: Daniel Bodansky (a preeminent international environmental law scholar who is a leading theorist of ways in which international climate change negotiations can overcome what might otherwise be seen as daunting collective action problems) offers the optimist position at the international law blog Opinio Juris.  He wrote a series of posts from Durban for OJ, which are well worth reading, and his latest post sums up the glass-half-full optimist view:

As compared to the expectations going in, the outcome was more than I think most people thought possible.  In a pre-Durban paper entitled “W[h]ither the Kyoto Protocol,” I identified three scenarios: (1) business-as-usual, with modest progress in developing the Copenhagen/Cancun framework and no political breakthroughs; (2) agreement to a “political” (not legally-binding) second commitment period under the Kyoto Protocol; and (3) agreement to a Kyoto Protocol amendment establishing a second commitment period, combined with a mandate for a new negotiating process to develop a legally-binding agreement addressing the emissions of the other major economies.  Many thought that (1) was the default option, (2) represented the best-case scenario, and (3) was politically unrealistic.  But the Durban outcome is in fact closest to (3):

• It wrapped up much of the remaining work to elaborate the Copenhagen/Cancun process, by adopting the governing instrument of the new Green Climate Fund and a transparency rules for both developed and developing countries pledges.
• It agreed to extend the Kyoto Protocol by another 5-8 years.  Although the emissions targets for Kyoto’s second commitment period still need to be worked out, and the formal amendment won’t be adopted until next year, the basic political decision to extend the Protocol was made in Durban.
• It agreed to launch a new negotiating process to develop a “protocol, another legal instrument, or agreed outcome with legal force,” addressing the post-2020 period  and “applicable to all Parties.”

The Durban outcome seemed unlikely because there was little indication that China and India would agree to negotiate a new agreement to limit their emissions.  Without agreement by China and India, the United States had said that it would not agree to a new round of negotiations.  And without agreement by the United States, China, and India, the European Union would not agree to a second commitment period under the Kyoto Protocol.  What allowed the Durban outcome was a careful compromise that gave BASIC countries, on one side, a 2020 start date for the new agreement and some ambiguity about its legal character (about which more below), and gave the EU, small island states and least-developed states, on the other side, early start and end dates for the negotiations (the negotiations will begin next year and conclude in 2015)  and language that the outcome of the new negotiations will have “legal force.”  Interestingly, the United States apparently played something of an intermediary role, since it had some flexibility about the issues of both dates and legal form.  In the end game of Durban, India was unwilling to accept a mandate to negotiate  a “protocol or another legal instrument,” and preferred the formulation “legal outcome.”  The United States suggested “outcome with legal force,” India added “agreed,” and the EU said ok.  Thus the deal was done.

Pessimists:  Michael Levi, a Council on Foreign Relations senior fellow, offers a different and far more pessimistic assessment.  He is particularly concerned to counter the fairly upbeat stories in the Western press on what had been accomplished, and goes to the nitty-gritty of the actual language of the Durban agreement – which is to say, what was actually agreed and not simply skepticism that whatever was agreed, down the road parties would nullify it through defection.

The Durban climate talks are over, and many are celebrating. After repeatedly reaching the brink of collapse, the summit produced agreements on several counts. The Associated Press reported that it approved a “landmark deal” that was “meant to set a new course for the global fight against climate change for the coming decades”. Christina Figueres, head of the system that oversees the talks, heralded the arrival of a “remarkable new phase in [the] climate regime”.

Nonsense.

Most of the agreed texts fleshed out matters left unfinished last year in Cancun: rules for a new climate fund, the structure of an international network of technology centers, a scheme for avoiding deforestation, and parameters for a system meant to increase the transparency of countries’ emissions-cutting actions. It is this part that will have the greatest substantive impact and is worthy of celebration. A climate fund with good rules, for example, is more likely to attract money and to use it well, while a sound system for auditing countries’ climate efforts will make it easier to create a virtuous cycle of action.

But it was not debate on these matters that took the talks to the edge, and it was not resolution of them that inspired the most applause. Instead, it was an agreement to initiate “a process to develop a protocol, another legal instrument or an outcome with legal force under the Convention applicable to all Parties” that has led commentators to conclude that there will be a new treaty that will legally bind all countries to reduce emissions. Alas, that conclusion is not warranted.

I myself have substantial doubts, given the state of public finances in the developed West, that the climate fund will work out as planned or as Levi hopes (Levi is no fool, so I don’t mean to suggest that he thinks it will actually work as advertised).  I myself view it as a sort of “stranded capital” or legacy of an earlier period in which, to use the melancholy phrase in Spain, “we used to be rich” - cuando eramos ricos.  This is not just a problem of broke countries who promise but don’t actually pay up when confronted with the problem of paying public pensions at home or facing riots. (Or, not to put too fine a point on it, Western countries borrowing money in Asian markets at substantial interest to contribute to global funds.)  It is, more broadly and over the long-term, the problem of conjoining three things: Continue reading ‘Interpreting the Durban Climate Change Conference Outcome’ »

Last week I commented on and linked to posts at Lawfare by University of Texas’ Robert Chesney analyzing the Senate version of the National Defense Authorization Act and its detention provisions, including US citizen detention.  This is very much a moving target, with the House and Senate versions of the bill having moved to conference for reconciliation.  Chesney, Wittes, and others at Lawfare are continuing a close read of the successive versions, and if you want to stay abreast of things, go to Lawfare.  At this point, Chesney observes with respect to US citizen detention (you need to read Chesney’s linked series of posts to really understand the background):

[T]he [conference] language is the same as in the final Senate bill:

Section 1021(e)  AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

That is, the NDAA should not be read to express views on such questions one way or the other, but rather the matter if litigated should be decided under the original AUMF just as it would have been absent the NDAA. But note that the language is not sufficiently clear whether this rule of construction is meant to encompass citizens and LPRs captured anywhere, or just when captured in the United States itself. That is, should the “captured or arrested in the United States” clause at the end be read as modifying only the language “or any other persons,” or instead as modifying all three categories listed in that sentence?

Chesney goes on in a separate Lawfare post to observe that the “mandatory military detention” is not actually very mandatory:

Section 1022 of the Conference version of the NDAA carries forward section 1032 of the Senate version, which has been widely described as a mandatory military detention provision for a subset of detainable persons who are non-citizens linked to specific terrorist attacks. Both critics and supporters of the bill have focused heavily on this notion, lauding or decyring it. All of that is greatly overstated, however. The final bill applies to persons who are part of al Qaeda or an al Qaeda-associated force who is not a citizen and who was part of a particular attack or planned attack. Think Abdulmutalab. At first blush, it seems as if it channels such persons ineluctably into military custody, even when captured in the US. But on closer inspection that’s not at all the necessary result, for three reasons.

Read the Lawfare post to find out his three reasons.  Or, as Glenn Reynolds might put it, read the whole thing.  But in this case, the target is moving such that you have to read backwards and forwards.

This link from the BBC has been making the rounds via Twitter and FB, but I thought I’d link it for readers.  The focus is on sovereign debt and the eurozone, and it is a fascinating collection of graphs from a mixture of economists looking at 2011 through graphs of various economic and market indicators.

Charles Lane being the New Republic editor at the time of Glass’s principal “fabulisms.”  Jack Shafer has done an excellent job going through documents in the matter of Stephen Glass seeking a license to practice law in California; once it was taken up by the California Supreme Court, the documents related to the bar matter became public, and Shafer has read them.  It’s a lengthy and, if you have a taste for therapeutic explanations, fascinating tale; Glass seems to be pleading mostly a bad childhood with Tiger Mom & Dad creating insecurity and deep phobias that made it seemingly irresistible to say whatever was needed to succeed.

The concern of the California bar committee that originally rejected his application seemed to have been rather more concerned with what it saw as sparse evidence that he was actually sorry for what he did or was instead merely strategic in the aftermath.  ”Fabulism,” after all, is a remarkably loaded, or if you like, unloaded way of describing what one might otherwise call bare-a***d lying.  Shafer is circumspect in his own views, but notes that a slew of law partners and law professors – including Opinio Juris’ very own Kevin Jon Heller – have all endorsed his fitness to practice.  He also, however, notes just how deeply unattractive a lot of Glass’s arguments are.  Let’s just say I’m not persuaded; however, the person whose opinion most interests me is the eminently decent and sensible Chuck Lane.

Glass actually won his appeal and had the bar’s panel rejection overturned by a California appellate judge; it takes four justices of the seven person California Supreme Court to take an appeal, so it suggests that there is some contrary concern there.  In any case, perhaps it’s in the original article and I missed it, and I do not know if this is true, but someone tweeted me to say that even without benefit of a law license, Glass is currently earning $154k as a paralegal.  Comments are open.

I’ve been asked the question as to whether the National Defense Authorization Act (NDAA) permits indefinite detention of US citizens, and whether, if it does, it adds anything to existing law on US citizen detention.  The quick one line answer is that, at least in the Senate version of the bill, it permits military detention (and, by implication and absent other considerations of law, detention to the end of hostilities), but only to the extent that existing law already does.  The Senate version of the bill says it merely affirms that status quo on this issue.

I am going to crib extensively from Robert Chesney, writing today at Lawfare.   (Lawfare, a project of the Brookings Institution and Harvard Law School, and founded by Benjamin Wittes, Robert Chesney, and Jack Goldsmith, is the go-to online daily journal on national security law; careful, measured, never crazy, and scrupulous about separating objective description from prescriptive comment.  I serve as the Reviews editor, full disclosure. Lawfare is currently doing a side by side comparison of the House and Senate versions of the bill, if you want the technical details.)  Says Chesney regarding military detention of US citizens:

On the day that the Senate passed its version of the NDAA, I wrote a post in the morning addressing whether the bill could be read to affirm that detention authority extends to US citizens. Reading the existing language of section 1031 in conjunction with section 1032, I concluded that the best reading of the bill was: yes, section 1031 encompassed citizens. Later that day, Senator Feinstein offered an amendment to the bill in an effort to preclude that outcome, by explicitly altering section 1031 so as to state clearly that citizens are not included. This amendment failed. Still later, she offered a fall-back amendment, altering section 1031 so as to say that it should not be construed as taking a position on the US citizen question one way or the other. That amendment was adopted, and is now part of the Senate bill as the conference on the NDAA gets underway.

Chesney then goes on to offer three scenarios in which the government could, in theory, attempt to hold a US citizen in military detention.  They are important to keep separate, and to attend to Chesney’s conclusion:

There are three scenarios in which the government in theory might try to use military detention with respect to a citizen, and the current state of the law is unclear as to two of them.

First, it might try to detain a citizen who is an arms-bearing member of the enemy’s forces in a foreign combat zone. Hamdi makes clear that detention authority does extend to that situation already, under the AUMF, and that this is constitutionally permissible (which is no surprise, in my view; In re Territo has long been a standard cite for that same proposition).

Second, the government might wish to detain a citizen found here in the United States, alleging involvement in al Qaeda or another AUMF-covered group. This issue arose with Jose Padilla, an al Qaeda member and U.S. citizen who was arrested on arrival at O’Hare Airport in Chicago and then eventually held for long period in military custody. He challenged that detention through a habeas petition, with mixed results. Suffice to say that the district judge felt that detention authority did not extend to this scenario, that the Fourth Circuit panel hearing his case somewhat avoided the issue by emphasizing the idea that Padilla previously had born arms on the combat zone in Afghanistan and thus was actually similarly-situated to Hamdi, that some observers were confident the Supreme Court would reverse, and that we never found out because Padilla was transferred to civilian custody in order to face prosecution (he was duly convicted and is now in jail). A similar case involving a non-citizen captured in the United States, Ali Salah Kahleh al-Marri, produced a similar result. In short, this is exactly what folks mean when they say that the status quo is unsettled on the question of authority to detain within the U.S.

A third scenario would involve an attempt by the government to hold in military custody a citizen linked to an AUMF-covered group who is captured outside the United States, but not in a hot battlefield context and lacking any prior connection to such combat operations. Say, for example, that Anwar al-Awlaki had been captured in a Special Forces raid in Yemen, rather than killed in a drone strike. We’ve not had a case like that yet, so it seems to me we’d have to say the law is at least somewhat unsettled as well.

So what does the NDAA have to say about any of this? Nothing at this point, thanks to the Feinstein amendment. For better or worse, the Senate version is explicitly agnostic as to these matters. If it is enacted with that qualification, then the government will be no more and no less able than before to assert detention authority over citizens, and the courts should be no more and no less likely to rule on the matter one way or the other.

So, strictly speaking, that describes military detention.  But the original question was about indefinite detention, so let’s be clear on the relationship.  Military detention points to at least the possibility of indefinite detention in this context because, broadly speaking, valid military detention is allowed until the conclusion of hostilities, which makes it potentially indefinite even without charges, trial, or judicial review, and absent any other consideration of law.  Here, from an earlier Chesney post at Lawfare, is how Feinstein described the conundrum and her own amendment to the Senate version of the bill (I’ve added some italics):

Despite my [Senator Feinstein's] support for a general detention authority, the provision in the original bill, in our view, went too far. The bill before us would allow the government to detain U.S. citizens without charge until the end of hostilities. We have had long discussions on this.  The disagreement arises from different interpretations of what the current law is. The sponsors of the bill believe that current law authorizes the detention of U.S. citizens arrested within the United States, without trial, until “the end of the hostilities” which, in my view, is indefinitely.

Others of us believe that current law, including the Non-Detention Act that was enacted in 1971, does not authorize such indefinite detention of U.S. citizens arrested domestically. The sponsors believe that the Supreme Court’s Hamdi case supports their position, while others of us believe that Hamdi, by the plurality opinion’s express terms, was limited to the circumstance of U.S. citizens arrested on the battlefield in Afghanistan, and does not extend to U.S. citizens arrested domestically. And our concern was that section 1031 of the bill as originally drafted could be interpreted as endorsing the broader interpretation of Hamdi and other authorities.

So our purpose in the second amendment, number 1456, is essentially to declare a truce, to provide that section 1031 of this bill does not change existing law, whichever side’s view is the correct one. So the sponsors can read Hamdi and other authorities broadly, and opponents can read it more narrowly, and this bill does not endorse either side’s interpretation, but leaves it to the courts to decide.

Because the distinguished chairman, the distinguished ranking member, and the Senator from South Carolina assert that it is not their intent in section 1031 to change current law, these discussions went on and on and they resulted in two amendments: our original amendment, which covers only U.S. citizens, which says they cannot be held without charge or trial, and a compromise amendment to preserve current law, which I shall read:

On page 360, between lines 21 and 22, insert the following:

“Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens or lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.”

This compromise amendment passed in the Senate version of the bill.  As Chesney notes in this earlier post, there are other considerations of law regarding detention in any case, so that any detention authority has to be qualified at a minimum by habeas rights.  (Chesney is responding here to an article by Conor Friedersdorf at the Atlantic; he quotes from Friedersdorf’s claim that the NDAA would allow the President to indefinitely detain even US citizens without judicial review):

Specifically, [Friedersdorf] suggests that the bill authorizes the president to detain anyone whom the president simply declares to be a terrorist, without judicial review:

“Congress is poised to affirm that President Obama and his successors can imprison whomever they want, for as long as they want, on no authority but their own, so long as they first assert that the person in question is a terrorist. They needn’t present evidence, or persuade a judge, or get a majority of votes from a jury. Just whispering “he’s a terrorist” is enough.  Yes, even if the suspect is an American citizen.”

This is simply not so, however, given the availability of habeas corpus review. Any citizen held in military custody anywhere, regardless of where captured, will have such review. Any non-citizen captured in the United States will have such review. And though there is still uncertainly surrounding the question, it is most likely the case that any non-citizen captured somewhere other than the Afghan combat zone would get habeas review as well. Only combat captures of noncitizens in Afghanistan are, on this view, subject to executive discretion alone, as has literally always been the case in all combat zones in which the U.S. has ever taken prisoners.

Some readers will say in response to this that habeas review is mere window dressing, citing the string of victories the government has enjoyed in the D.C. Circuit of late. I disagree with that view very much. There is a lot of room for debate about whether the Circuit’s jurisprudence draws the line correctly in terms of figuring out what counts as proof that a person has become part of al Qaeda or the Taliban or associated forces, but the idea that the status quo leaves the government with discretion, in practice, to pretextually detain “domestic enemies” is simply not tenable, in my view.

I agree with Chesney’s view on the substantive issues above; there is one clear circumstance in which military detention of US citizens is permitted, and two legally unclear scenarios; there is also habeas review by the courts.  The Senate version of the bill does not alter that status quo, but kicks it back to the courts to decide as to the unclear scenarios.

Lastly, I’d add that in virtue of being statutorily prescribed as the court for hearing detainee appeals, the DC Circuit has emerged as something of the US’s de facto national security court; it has been gradually working out the contours and standards of habeas review and all the procedural and evidentiary questions that are implied by that.  If you want to follow the jurisprudence of the DC Circuit in these habeas and related cases, Lawfare is required reading for journalists, policy people, academics, and government officials.  (I’ve left comments on for this post.)

Tempted though I am to crowd-source my Business Organizations exam and invite the Conspiracy commentariat to write it for me, I instead refer you briefly to this end-of-year list from Time Magazine, naming Occupy Wall Street as the most important news story of 2011.  (I suppose it is not completely clear whether being number one on the list of ten means most important, but that’s what it looks like to me, looking at how this and the rest of the top ten stories are written.)  Indeed, so important does Time see this story that they headline it, “Occupy Wall Street Protests Spread.”  OWS protests are spreading?  Regular readers know that I have particular views on the ideological and intellectual configuration of OWS, but leaving that aside, I invite comment on the question of whether, like OWS or hate it, you would agree with Time that this is the, or at least a very, top news story of 2011.  Alternative nominations also invited. Or you could draft my BA exam.

Over at the New Yorker, Jeffrey Toobin offers a short, breezy look at litigation likely to get a lot of public attention and debate next year.  His “coming year’s top five legal stories” are

• Health care reform cases
• Same sex marriage in California
• Affirmative action
• Football
• Celebrity arrest

I don’t have an opinion; the legal issues I follow aren’t typically litigation oriented and are not much related to public attention; it doesn’t seem likely that the Alien Tort Statute in the Supreme Court would make anyone’s list but mine.  But this is a list not about true, deep  or lasting significance, whatever exactly that means, but about media and public attention.  It’s also not limited to SCOTUS.  Within that take on “big legal stories,” what is your list of five for 2012?  Comments are open.

Insta points us to this scatterplot at the Chronicle of Higher Education.  It plots (within the limits of reported numbers, and in any case limited to private universities) university president salaries against average professor salaries within that institution.

The thing I found most surprising was not so much the university president salary as the average professor salary, and not just in places like New York or at the Ivy League.  Average and skewed by outliers, I’m sure, but just randomly eyeballing numbers, I was surprised at how well compensated professors are.  Again, just randomly clicking dots, these seemed like numbers I would associate with salaries at the professional schools, not institutions overall.  I’ve left comments open.

(Cranky Professor’s comments here, and Anon Jim in comments is right to distinguish salary from compensation. I remain surprised.  Also, a commenter suggests that the university is best understood as having tenured faculty and senior administrators as shareholders – correct or not? What is the right public choice model to account for the university and its governance?)

I am saddened to learn of the death of Montserrat Figueras, the great Catalonian early music singer.  With her husband, gambist and conductor Jordi Savall, she was a central part of the great early music revival of the past few decades.  (A VC reader adds this recollection of Figueras’ appearances in the Bay Area; thanks.) Here, one of Figueras’ most widely admired (or, anyway, one of my favorite) recordings, Yo soy la locura.

Yo soy la locura
la que sola infundo
placer y dulzura
y contento al mundo.

This is a real question, so please point me in the direction of serious national security outlets and reporting.  Is it the US? Israel? Combined ops? Someone else? Is the US engaged in “real” covert ops, rather than simply obviously on-going but “unacknowledged” drone strikes? (I’d like to know the state of current respectable and serious reporting and commentary, not rants or conspiracy theories, thanks.)

Pepperdine law professor Gregory McNeal has a guest post at Lawfare on the US military’s processes of targeting and target review, drawing on his outstanding new paper, up at SSRN, “The US Practice of Collateral Damage Estimation and Mitigation.” The paper is descriptive, qualitative political science, drawing on extensive reviews of available US government documents and interviews about collateral damage mitigation processes used by the US military in Afghanistan.  I regard it as essential reading today in the law of armed conflict. As McNeal says in his guest post:

I was motivated to write about this topic because I sensed a major disconnect between the descriptions of the targeted killing process offered by commentators and what I knew to be the actual practice of the U.S. military in air to ground operations, in particular the rigorous steps followed to avoid civilian casualties through both the collateral damage methodology (CDM) and fairly protective Rules of Engagement (ROE). The paper is based on field interviews, documents released in litigation, training materials, official policy guidance released through FOIA requests, some WikiLeaked documents, press accounts and the standard fare of law review articles and other scholarly sources. The piece is empirical and descriptive; I take up the normative implications of my findings in a separate article entitled Collateral Damage and Accountability, which is not yet available in SSRN.

Much of the commentary about air launched targeted killing–especially the commentary that focuses on a “video game” style of warfare with unaccountable geographically remote pilots dropping bombs at their own discretion–simply does not describe the reality of current combat operations (I directly address the false claims about targeted killing in a forthcoming book chapter). To highlight one example of the reality I describe versus commentary we typically read, just consider the fact that in Afghanistan since at least June 2009, all air-to-ground operations are pre-planned operations unless troops are in an emergency situation requiring close air support (CAS), close combat attack (CCA) or the pilot is acting in self-defense. In both CAS and CCA in Afghanistan, the pilot may not deploy a weapon without ground commander direction, usually through a Joint Terminal Attack Controller (JTAC) (a JTAC is a person who accompanies ground forces and is specifically trained to direct accurate close air support to engage enemy targets while reducing collateral damage and civilian casualties). The pilot’s only discretion in current operations is to decide not to release a weapon, in other words the ground commander owns the battlespace not the drone pilot. Furthermore, Air Force leaders repeatedly emphasize to their pilots that they will not be disciplined for returning to base with all of their bombs on their plane. Air Force leadership will even support the decision of pilots not employ a weapon, even if that decision directly contravenes the orders of the ground commander. This reality is a far cry from the free fire zone of “video game” warriors described by many drone critics.

Because targeted killing operations by UAV are not CAS or CCA, they are pre-planned operations, and as such must be subjected to the military’s rigorous collateral damage methodology. That methodology is grounded in scientific evidence derived from research, experiments, history, and battlefield intelligence, and is designed to adapt to time-critical events. The CDM is a planning tool that assists commanders in mitigating unintended or incidental damage or injury to civilians, property and the environment and aids them in assessing proportionality and in weighing risks to collateral concerns. In the context of targeted killing, the CDM takes into account every conventional weapon a UAV could carry.

One of McNeal’s crucial observations is that although many of us who discuss targeting from a legal standpoint immediately turn to focus on the legal baselines of necessity, distinction, and proportionality.  However, if one looks at US military operations planning, there are many steps in seeking to estimate collateral damage and avoid it, long before reaching a legal analysis of proportionality under the laws of war:

[I]n the actual practice of modern operations there are a series of scientifically grounded mitigation steps that commanders undertake prior to engaging in any proportionality balancing.

The mitigation steps followed by the military are highly technical, however the best way to understand them is to recognize that the U.S. has an extensive database of weapons effects for nearly every conventional non-direct fire weapon in the U.S. military’s arsenal.  That database takes into account the blast, fragmentation and debris patterns of weapons when they explode.  This information, combined with knowledge about speed, direction of weapon employment, fusing techniques, and information about terrain and structures can be modeled in a way that allows for very precise estimates of weapons effects.  After positively identifying a target, the weapons effect data is converted into a collateral hazard area, and trained specialists will determine whether or not there are any collateral concerns within that area.  If so, mitigation techniques must be employed to reduce the likelihood of harm to collateral concerns.

For example, the military can predict that a 1,000 pound bomb dropped in a certain place within a structure will kill everyone within Room 1, and everyone in Room 2, and not harm anyone in Room 3.  A mitigation technique might be to use a 500 pound bomb, or bury the bomb in the ground prior to detonation, or detonate the bomb in the corner of Room 1, at a point farthest from Room 2.  Any of these mitigation techniques might ensure with a high level of certainty that the persons in Room 2 are unharmed.  Of course, in light of this precision, the biggest challenge is an intelligence challenge.

Note this quite extraordinary conclusion about how high a level of approval is required for any anticipated civilian deaths in Afghanistan in 2010:

[I]n Afghanistan circa 2010 … if even one civilian casualty was expected in a pre-planned strike, that strike would have to be authorized by the Secretary of Defense or higher (although some reports indicate that this authority has since been delegated to the CENTCOM commander).

This is remarkable.  But it is also a testament to just how much intelligence and information can be utilized in Afghanistan operations today – after, however, a full ten years of war.  I have some concerns that these standards be taken as the norm for future operations elsewhere, where the intelligence and information is not available in such a wealth of detail to allow these kinds of detailed estimates.  NATO operations in Libya had nothing like this wealth of information, or precision in the actual strikes.  (Indeed, it seems to me as a salutary exercise for the US military to carry out a thorough legal review of the actual targeting practices deemed lawful by NATO militaries, particularly France and Britain, as a baseline of what was regarded in actual tactical engagements as lawful state practice.)  Future US military operations elsewhere will not start out with the informational and intelligence inputs that the US has in Afghanistan today.

Over at Lawfare, I’ve posted a new review of three academic books on combatants, civilians, and POWs, if you’re interested in fairly technical academic writing on laws of war issues.  My conclusion about the principle of humanitarianism that two of the three books take as essentially overriding is below the fold: Continue reading ‘Lawfare Review of Three Books on Combatants and Civilians’ »

The CIA Officers Memorial Foundation is seeking donations to provide educational support for children of CIA officers killed in the line of duty:

CIA officers are asking people to mark the 10th anniversary of the death of the first American killed in the Afghan war by donating to help the children of their fellow fallen.  Since the death in 2001 of CIA officer Mike Spann, a total of 23 stars have been added to the wall at the CIA’s Langley, Va., headquarters that honors CIA operatives lost. Many were killed in the wars in Afghanistan and Iraq.

The clandestine world rarely breaks its silence, especially when it comes to family, but the CIA Officers Memorial Foundation notes about 56 children of those killed in the line of duty will need educational support over the next 17 years.

Over the last few months, as the eurozone crisis has gathered steam, I have wondered (here and at the international law blog Opinio Juris) what the crisis means for the governance structures of the EU.  One answer is, not much – the political leadership will somehow muddle through as it always does, on the basis of discretionary deals among the national leaders of European states.  Then the institutional arrangements will be adjusted after the fact to reflect whatever happened in the politics of the event.

In that case law, in the sense of legally binding governance arrangements, is epiphenomenal on political contingency which, in this case, is contingent upon relations with the financial markets, which is to say, upon the willingness of lenders to continue to lend and roll over debt.  Even something as apparently legally binding as the ECB’s charter turns out not to be legally binding on any ordinary reading of it.  On this account there’s not a lot to say from the standpoint of governance theory or institutional governance arrangements because the EU’s lawyers will not know how to (re-)arrange the legal furniture until afterwards.   The role for the governance lawyers is the lawyer-as-scribe; the legal rules are post-hoc and revisable according to the contingencies of politics.

This does not seem to me a plausible way of looking at the role of legal rules; if it were, it seems unlikely to me that European states would have been lent this amount of money by investors globally.  Why not?  Because investors don’t like to lend into discretionary legal regimes, for obvious reasons.  But leave that aside.  I have raised these points before, and have been nonplussed by how little commentary there is by European public lawyers on the question of institutional design, exit from the Eurozone, etc.  This, even as it appears from various leaked documents that various important national and EU agencies are indeed privately trying to plan for various contingencies – as legal experts who must devise new structures of rules, institutions, and law and, just as crucially, a way from here to there, if that is what happens, and a way that best preserves institutional legitimacy and minimizes what might be catastrophic economic disruption if institutions break down and fail.

If there is regular commentary by the academics and intellectuals in the EU, I would be grateful to hear about it and find out where to read it.  I read Peter Lindseth closely, and David Bosco at Multilateralist is always good, but I cannot find a lot of constitutional design voices in Europe weighing in on this.  I would have thought that the same community of academics that produce much scholarship on constitutionalism in the EU would tell us what the legal and institutional options are.  Martin Holtermann, commenting at Opinio Juris on my earlier posts, has done as good a job in a few paragraphs as I’ve read, giving an account of how the discretionary summitry is all okay within governance structures of the EU.  But I would like to read more and in much more depth; if you can tell me where it is, I would be grateful.  I am not an EU lawyer or theorist of the EU; I don’t pretend to know all of this stuff myself.

What worries me is that when I pose this question to the very smart EU scholars I know, there is a shrug as if to say, this isn’t about the stuff of political governance or “real” constitutionalism at all – this is just about money and the institutions that manage money.  Whether Greece is in or out of the euro is not all that important; the euro is not all that important, it’s just a currency.  The EU is larger than the eurozone; the EU preceded the euro and is not dependent upon it as its source of authority and legitimacy; it’s just a convenient material feature.  The real EU is not about money, it’s about values.

In that case (on this view), the law that matters to EU constitutional theory is not the statute of the ECB, but instead – not to put too fine a point on it – the European Court of Human Rights and all that it symbolizes for the EU and its values.  No matter what happens to credit ratings, the Eurozone banking system, Greece or even Italy in the sense of in or out of the eurozone, the ECJ and ECtHR will continue to issue rulings on rights issues, and those are what actually matter.  One can have a sanguine attitude toward the economic aspects – and indeed not have any understanding of them – and still regard governance of the EU as just the same as it ever was, because the things that make the EU the EU are its ideals and values, not mere money.

I caricature my friends, no doubt.  But caricature or not, this strikes me as dubious at best.  As we (residual, anyway) marxists like to say, money is never “mere.”  Of course money, banking, credit, etc., are at the heart of the governance project, because they structure the material – and, come to it, the moral and spiritual – conditions of the rest of it.  Are these conditions really unrelated to the legitimacy, weight, impact and force of such institutions as the ECtHR?  Now, I do understand a reluctance to opine, particularly in an academic, as distinguished from immediate policy, way on events that are unfolding now and are quite uncertain at this moment.  Fair enough.  But I don’t even see much policy discussion of what all this stuff is supposed to mean in terms of legal governance, at least in the places I would normally consult.

One is tempted to conclude, at this point, that the political theory of the EU today is being written by financiers and financial analysts in their credit reports.  They are anxious, after all, only secondarily about markets.  They are primarily anxious about governance and structures of governance – because the markets are trying to figure out whether the institutions of the EU and its members are serious about their legal and political commitments, and in what ways and to what extent. The state of the markets depends upon the state of these several institutions. And the state of the institutions – given that the legal rules and their application is apparently deeply in flux, unless one simply assumes that the rule of law is whatever discretionary action European leaders decide upon this week – is a matter of conjuring forward the political theory of these institutions.

So they, the financiers, are conjecturing the possible governance futures of the eurozone and the EU.  They are trying to assess political risk which, in this case, consists of making bets based in considerable part upon the theories of governance they ascribe to the EU, its institutions, and its member states.  They are market analysts reluctantly turned political theorists because it is political theory that suggests one path or another for the application of legal regimes that appear to be much less determinate than once thought.  For George Soros, the move from one to the other is natural and logical; for most credit analysts and hedge fund managers, this is a strange turn indeed.

And here from our house in DC, we give thanks for the blue and sunshine beauty of the day, the moist and tender deliciousness of the turkey breast I cooked at 500 degrees F and all the dishes prepared by Beloved Wife and Everyone Else, for the attendance of my sister and her family at dinner, for friends and family, and much else besides.  Congratulations to Megan McArdle on her ten years of blogging this week.  And, not least, I give thanks that the track at American University is only a block away from my house.  I hope your holiday was a peaceful and lovely as ours.

Just in case you’ve been wondering where I’ve been:

Tropical Storm Kenneth has formed in the eastern Pacific Ocean, with forecasters calling it a rare late-season tropical storm. The U.S. National Hurricane Center in Miami said Sunday that Kenneth had maximum sustained winds near 40 mph (65 kph). The storm was centered about 525 miles (845 kilometers) south of Manzanillo, Mexico.  Projections show Kenneth moving west out to sea, away from land, over the next several days.

Over at Lawfare, I have posted a new review of three books on international law, war, and counterterrorism, with a particular focus on the changing shape of counterterrorism through drone warfare and targeted killing.  The three books are all technical and academic, so not everyone’s cup of tea.  Sample below the fold. Continue reading ‘Three Academic Books on International Law and Counterterrorism’ »

Steven Brint is a sociologist at the University of California, Riverside, and the author of a book, In an Age of Experts, I once reviewed in the Columbia Law Review, along with books by Anthony Kronman and Christopher Lasch (mine was a long review essay on the New Class and lawyers and the legal profession).  He has a terrific review essay on four new books on higher education (h/t Insta):

The American education gospel is built around four core beliefs. First, it teaches that access to higher levels of education should be available to everyone, regardless of their background or previous academic performance. Every educational sinner should have a path to redemption (most of these paths now run through the community colleges). Second, the gospel teaches that opportunity for a better life is the goal of everyone and that education is the primary — and perhaps the only — road to opportunity. Third, it teaches that the country can solve its social problems — drugs, crime, poverty, and the rest — by providing more education to the poor. Education instills the knowledge, discipline, and the habits of life that lead to personal renewal and social mobility. And, finally, it teaches that higher levels of education for all will reduce social inequalities, as they will put everyone on a more equal footing. No wonder President Obama and Bill Gates want the country to double its college graduation rate over the next 10 years.

The advance of the education gospel has been shadowed from the beginning by critics who claim that education, despite our best efforts, remains a bastion of privilege. For these critics, it is not that the educational gospel is wrong (a truly democratic, meritocratic school system would, in principle, be a good thing); it is that the benefits of education have not yet spread evenly to every corner of American society, and that the trend toward educational equality may be heading in the wrong direction. They decry the fact that schools in poor communities have become dropout factories and that only the wealthy can afford the private preparatory schools that are the primary feeders to prestigious private colleges. The Higher Education Establishment recognizes critics like these as family. They accept the core beliefs of the education gospel and are impatient only with its slow and incomplete adoption.

Other heresies are more radical, and thus more disturbing to settled beliefs about the power of education. One currently growing in popularity we might call “the new restrictionism.” According to the new restrictionists, such as the economists Philip Babcock and Mindy Marks, co-authors of the 2008 paper “Leisure College USA: The Decline in Student Study Time,” access to higher education may have gone too far. Our colleges and universities are full to the brim with students who do not really belong there, who are unprepared for college and uninterested in breaking a mental sweat.

The essay is a lengthy one – and well worth reading.  Brint is a deeply attentive sociologist, and he is able to unite social theory and empirical studies to good effect.  (It also,  I should add, appears in a new online book review, the Los Angeles Review of Books – an effort, which I applaud, to reintroduce the traditional long form review essay and traditional standalone book review.)

Drones, that is, as in Predator drones and targeted killing.  Although my editor is likely to kill the idea, I am considering as a title for something on targeted killing, drone warfare, and covert action, “A [?] of Drones.”  Where the bracket should be a newly minted collective noun – i.e., such collective nouns as a murder of crows, a pride of lions, a gaggle of geese, etc.  Collective nouns, especially where one is making one up for the first time, are harder than they look.  They have to be a noun that is unusual enough that it will signal to a reasonably alert reader that it is a noun being used in its collective sense, and evocative – often ironic and ideally droll – enough to signal something about the nature of the thing.  Here is an excellent website with bunches of them.  But these are apparently reasonably widely accepted collective nouns – here’s a set of collective nouns that might be - proposed neologisms.  So, what should it be for drones?  I thought about a “murmuration,” and perhaps that is best, but it is taken by swallows or some such bird.  Perhaps a “consternation”?  Too obscure?  Suggestions, please.

(Bumped to this post of its own from the ending to my last post on returns to non-STEM college majors, because I think is worth thinking about separately.)

In general, I agree entirely with the many commentators who have argued that the United States needs to produce more STEM graduates.  But I also take note of the many people who have written to me to argue that the only truly employable STEM fields at the moment are engineering and computer science, and only certain disciplines within those.  (I.e., I take the point made by many commenters that STEM graduates are not doing all that well in this economy either – when we say STEM = employment, so commenters point out, we don’t mean scientists or mathematicians as such, we mean particular fields of engineering and computer science.  I can’t vouch for that but do accept it.)

It’s also worth keeping in mind that the United States could easily produce an excess of engineers — yes, even engineers.  The labor market of a complicated, division-of-labor society means many, many specializations, and most of them are not STEM.  We need lawyers, human resources staff, janitors, communications specialists, and many things that too-reductionist a view might lead one to believe are purely frivolous intermediary occupations.  Maybe they are parasitical, and maybe they will get squeezed out of existence over time.  But there is a sometimes incorrect tendency these days to believe that since innovation is the heart of all increases in productivity and hence in long run growth and wealth, STEM must be responsible for it and that because STEM is the root of innovation, only STEM jobs are truly value added.  I exaggerate for effect, but you see the point.

That’s a little bit like the error of the ancient Physiocrats, who believed that agricultural work was uniquely special because it was the root source of all wealth, since everyone had to eat.  (I simplify.)  But in a complex, specialized, highly intermediated economy, that’s not how it works.  Of course everyone needs to eat — but if we want to have things available to nearly everyone, consumption more than just eating, we have to accept a highly specialized economy with many diverse intermediaries — not all of whose functions will seem obvious to those assuming that only STEM innovators count.

Added: Several of the commenters in my last several posts on higher education have essentially argued that the liberal arts and traditional non-STEM humanities disciplines do not add value in today’s world and should be seen as (expensive) consumption choices or at best civic education for citizenship in the Republic; I paraphrase.  Another commenter from the last thread goes still further:

If I need a new knowledge base to keep myself employed, it’s only a deep Google and Wikipedia search away, plus online courses. But it’s asymmetric: a STEM can pick up a traditionally liberal arts skill quickly, but the non-STEM cannot nearly as fast (!) acquire an engineering or science knowledge base deep enough to be useful.

I don’t think I would agree with important parts of those assertions.  However, I will wait until I have more time to post on the value of the humanities – and as being far more than mere personal fulfillment or education-as-consumption, but a means of gaining genuine cognitive skills not easily available otherwise.  Meanwhile … open for reasoned debate:

This House Agrees That the Humanities Do Not Add Productive Value to Society and, Moreover, That STEM Graduates Are Better Able to Acquire Traditional Liberal Arts Skills Quickly Should They Ever Need Them.  Or Not.

I invite polite discussion on this issue (Civile Discourses, as Adam Smith might put it, being one of the Skills of the traditional Humanities, after all).  Please be polite, no rants and no craziness.  I will post my own views on the value of the humanities another day; I invite your views. (Also, while I’m thinking of it, if you refer to your own life experience in your comment, please give some idea what years you refer to, as economic conditions are not static.)

As Generation Jobless tries to figure out where its job possibilities went, we might consider possible relationships between higher education and return on investment.  I want to limit these possibilities to graduates of four year institutions in non-STEM subjects, rather than the important but separate issue of college non-completion rates.  Consider the following, noting that they are not incompatible with each other as explanations of the relationship between liberal arts college degrees and return on educational investment.

• Demand for liberal arts graduates has dried up, because of structural changes in the broader economy that have reduced the need for these job categories.  The structural reasons range from greater automation of production in lower-professional white collar positions; secular shifts downward in the economy overall and a lower long-term growth rate.  The overall point is shifting demand in the overall labor market.
• Labor markets seek liberal arts graduates with skills in the traditional subject matters of analytic skills in verbal and basic quantitative areas, but higher education fails to teach those skills.  The problem in this case is not demand as such – assuming away the short and medium term scarcity of jobs – but instead that the workers supplied lack the necessary skills.  The problem lies with what the university teaches or, more exactly, fails to teach.  Within non-STEM areas, colleges are not teaching generalist analytic skills.  The traditional promise of the quality humanities or liberal arts major – not a technical skill set, but generalist analytic skills in reading, writing, basic maths, and strong communications skills – has somehow eroded and colleges fail to convey those skills.
• Colleges continue to supply liberal arts graduates with the traditional skill set, and labor markets continue to seek them – but the cost of college has simply gone far above the wages that these skills and the associated jobs can bear.  It’s not the skills and it’s not the jobs, it’s the cost of education – priced as though everyone would become a Wall Street banker or lawyer.
• Specialization in the university has reached the point where colleges cannot produce the true generalists needed in the economy – traditional liberal arts skills in analytic reading, writing, and communication, but combined with generalist technical knowledge in areas of the modern economy – STEM plus economics.  STEM departments are not interested in educating generalists, and traditional liberal arts departments assumes that the purpose is to go on to graduate or professional school, hence the exclusive focus on GPA, and grade inflation to try and maintain enrollments.
• Society is trying to put people through the higher education, four year college system, who intellectually have no business being there.  Their future lies in blue collar work, not white collar work.  This is a popular meme at this moment, but it has two distinct flavors.  One is that there is significant population that, just because of its bell curve placement, will never successfully become “knowledge workers.”  This would be so in good times or in bad, but is masked during good times.  This is to say that it would always be inefficient and suboptimal to educate this group to white collar knowledge worker jobs for which they are ill-suited.
• A second version of the “too many people go to college” is that the economy is permanently downshifted.  This low growth economy, which has come about because of the consequences of an aging population without replacement workers combined with the profligacy of the last few years that have deprived future generations of investment capital toward new innovations to create growth.  Or whatever explanation for it one cares to give; the point is long term lower growth.  In that lower growth economy, the returns to higher education are long term lower as spread across some larger than otherwise population cohort.  It makes less sense to educate people for a knowledge economy that, while once within our reach, is not achievable any longer.  They could have found a place in it, but we’re now too poor to create it, even though it would produce greater social wealth.  Which is to say, in the world that might have been absent poor social investment decisions in earlier years, the failure to send these kids to college would be inefficient and a misallocation of resources – but in the actual low growth world of today, there’s no positive return to doing so, considered against the substantial costs (which are also a legacy of earlier poor social choices).

Note that there is a group of people with a vested interest in pushing the agenda that too many people go to college, especially borrowing money for it – rich people’s children who don’t need loans for university. Reducing the competition is a dandy idea from their view.  And even if they don’t think that way – the fact of reducing the number of kids in higher education is almost certainly a recipe for creating not just greater income inequality, but increasing the harsh qualitative fact of class division, particularly between sectors of white collar workers, the lower and upper elites of the New Class that I discussed several weeks ago in another post.  What else would one call the loss of upward mobility as a possibility?  ”The rich really are different from you and me – they went to college.”  In our world, that sounds so 19th century Britain, people of great intelligence, drive and possibility, stuck “below the stairs” because of class rigidity.  We thought we had been doing away with that starting with the rise of the post-war Baby Boom; its return upon its children and grand children is a dismaying thought.

In general, I agree entirely with the many commentators who have argued that the United States needs to produce more STEM graduates.  But I also take note of the many people who have written to me to argue that the only truly employable STEM fields at the moment are engineering and computer science, and only certain disciplines within those.

It’s also worth keeping in mind that the United States could easily produce an excess of engineers – yes, even engineers.  The labor market of a complicated, division-of-labor society means many, many specializations, and most of them are not STEM.  We need lawyers, human resources staff, janitors, communications specialists, and many things that too-reductionist a view might lead one to believe are purely frivolous intermediary occupations.  Maybe they are parasitical, and maybe they will get squeezed out of existence over time.  But there is a sometimes incorrect tendency these days to believe that since innovation is the heart of all increases in productivity and hence in long run growth and wealth, STEM must be responsible for it and that because STEM is the root of innovation, only STEM jobs are truly value added.  I exaggerate for effect, but you see the point.

That’s a little bit like the error of the ancient Physiocrats, who believed that agricultural work was uniquely special because it was the root source of all wealth, since everyone had to eat.  (I simplify.)  But in a complex, specialized, highly intermediated economy, that’s not how it works.  Of course everyone needs to eat – but if we want to have things available to nearly everyone, consumption more than just eating, we have to accept a highly specialized economy with many diverse intermediaries – not all of whose functions will seem obvious to those assuming that only STEM innovators count.

I invite you to suggest other possible explanations for the declining returns to higher education I might have missed.  Please be civil and on-topic and no rants. Ideally, I’d like to see the range of possible reasons, and then one can assess how much various ones contribute overall.  They do not seem mutually exclusive by any means.

The Wall Street Journal’s outstanding series on the job market, college, and young people (“Generation Jobless”) continues  today with an interview with a leading investor in the student loan bond market.  I asked a while back for reader help in finding examples of student loan bond documentation – and my thanks to the commenters who responded as well as a couple of experts who sent me links.  This WSJ article talks about this market and what the experts look for in evaluating these bonds – and what they infer from the student loans they evaluate:

Investors like Mr. [Daniel] Ades have a unique view on the future for America’s job-seekers. Their investments depend onaccurately predicting young people’s ability to repay their loans, which means they obsess about everything from employment rates by profession to the long-term earning potential of young graduates.

Historically, investors have assumed 25% to 30% of student loans bundled into their bonds will default. But today they are baking in between 30% and 40% default rates among the current crop of graduates, said Chris Haid, a director in asset backed trading at Barclays Capital. Even those assumptions are a best guess and defaults could ultimately go higher if unemployment rises, Mr. Haid said.

This analysis translates into some surprising insights for students and policy makers. For example, in the current economy, it may make more sense to enter a technical college than to go to law school.

The advice to go to a technical school – meaning a two year vocational school or community college – rather than law school is based on the following:

In terms of picking a school, technical colleges may be less prestigious, but their low cost relative to the higher wages they deliver makes them attractive, according to Mr. Ades.

Tuition at public two-year colleges in the U.S. will cost $2,963 a year on average in the 2011 academic year, compared to $28,500 a year for four-year private colleges, according to estimates by non-profit group The College Board.

“It’s not just about where you can get the best education,” he said during an interview in the Miami Beach office of his hedge fund, Kawa Capital Management. Students should pick schools where the payoff from higher salaries upon graduation exceeds the cost of the education by the widest margin, he contends, especially when the job market contracts.

By that arithmetic, technical colleges come out on top, Mr. Ades said. “We’re in a skills based economy and what we need is more computer programmers, more [nurses],” he said. “It’s less glamorous but it’s what we need.”  Law school, on the other hand, can end up a sucker’s bet in periods of high unemployment, experts in student loan-backed bonds say.

One understands the point, but it is worth pointing out that Mr. Ades is focused upon whether a student will repay the loan.  In that case, the decision where to go to school and how much to borrow will favor a more secure job even at a much lower salary over a higher but riskier job possibility, since the criterion is the ability to repay the loan and not to maximize the expected income value over time.

Which is to say, Mr. Ades favors low volatility and low risk, all things equal, whereas a student might well favor much higher volatility and higher risk if the criterion is income maximization. However, in a period of high unemployment and lower job possibilities, whether for all jobs or for the higher end jobs, then the strategy for loan repayment and income maximization tend to converge.

However, I invite comments to evaluate Mr. Ades’ strategy, and my suggestion that what he wants and what students want are not precisely the same thing.  Please be civil and on-topic.

The Wall Street Journal’s excellent series on jobless young people features an article today on why students study liberal arts in college over STEM subjects, and why so many would-be STEM majors shift to liberal arts, despite the apparent loss of career prospects.  Larry Ribstein follows up with commentary suggesting that law school becomes a logical option for students who were badly guided in their choices of majors – leading them to liberal arts with few skills and few prospects in today’s world.

I want to reiterate something I wrote about a few weeks ago about the incentive structures for students. I’m basing this on my current experience as a law professor who talks a lot with students at a mid-tier law school and what led them there, as well as my experience as a parent of a student who will be doing humanities as her major at Rice, a school with world class STEM and world class humanities.

There are a lot of smart students out there who will nonetheless not be able to compete in world class institutions in STEM.  Why?  They might have, say, near 800s in verbal and writing, and mid 600s in math on the SAT.  (This matches up, btw, to Gene Expression blog’s mapping of the GRE scores of various college majors for the highest testing of the humanities majors – the philosophy students, who have about exactly those scores.  I’ll put up the charts in a later post, but very roughly the verbal and math scores flip for the highest scoring of the sciences – physics, and are somewhere in the middle for the highest scoring of the social sciences, economics.)  At a school like Rice – and any university ranked above it – specialization has already taken place, sorting by subject area.  A tiny handful of students can be true polymaths, but that’s hardly the norm.  Instead, the STEM students are sought competitively on a world-wide basis, and it will be academic suicide and frankly impossible for a student who is not at the top of those competitive areas even to pass the classes.

In that case, if you are a smart but not brilliant student in STEM, you might tell yourself until you are blue in the face that you must study STEM to be employable and have real skills.  But the reality is that you will flunk out or come close to it, or be lucky to get by with Cs.  Moreover, at that level of performance, it is not clear that you are actually acquiring STEM skills, just at a C level compared to an A level.  Pedagogically, it doesn’t work that way.  The bottom end students wind up not really learning anything, because the class moves at a pace and in a way that they can’t keep up with, even to get a lesser grounding in it.

Why do the STEM departments grade so strictly, compared with other departments?  There are reasons why the liberal arts departments tend to grade inflation; treat that separately.  The STEM departments have their own incentives for holding grades down, especially in the introductory courses.  Basically, the reputation of the department rests disproportionately on the very top performers.  Less on the average, and not at all on what general ed classes are offered to the rest of the university.  If that’s the case, then better to relentlessly winnow down in the first classes, and concentrate resources on the top performers.  Reputation is measured mostly at the top margin.

From the standpoint of a student who says, I don’t want to be an engineer or research chemist or computer scientist – I want to get a strong grounding in those fields, in a genuinely technical way – but I want to be a manager or someone with a non-technical job that requires interaction with the technical fields – how do I do that?  At the top range of universities, the STEM departments simply don’t have a place for you.  The university might require that the departments offer general ed courses – and so you will be offered, “rocks for jocks.”  It won’t be technical; it will be gee-whiz, without the math.  What you are looking for is a technical track designed for a student who is Yale quality in history or philosophy, but who needs something more like State College for technical skills.   That would be the ideal mix – but there is little incentive for the STEM departments to create such a thing.

I’ve suggested that what these liberal arts students need, then, is for the university somehow to provide technical minors for liberal arts students that are genuinely technical, but at a level for students who do have some quantitative skills, but who cannot compete against the world class technical specialist students.  But now there is a problem for those liberal arts majors.  Why, going back to the WSJ article, do they gravitate to the easiest majors that provide the fewest skills?  Because they understand that in many cases, in today’s world no liberal arts major – apart from economics – will be taken very seriously to gain entry level to management, corporate consulting, etc.  You will eventually be looking at professional school – business school or law school.  And those schools care only about the GPA/LSAT-GMAT.  That’s because those two figure so heavily in the USNWR rankings.  So the GPA matters fantastically much – and, perhaps surprisingly to outsiders, the difficulty of the major is not taken into account.

These professional schools have traditionally accepted any major, and do not differentiate.  So, a friend here in DC asked me about two recent interns of his who had gone on to law school – he was astonished and troubled to find that the MIT grad with the B average in STEM had fared far less well than the NYU English major.  As in: the NYU lit grad went to Harvard and the MIT grad was wait-listed at American.  That might seem surprising, but in addition, USNWR takes a generally hands off attitude toward the ranking of the undergraduate institutions.  Meaning (and if someone in admissions processes wants to correct me on this regarding how USNWR treats the undergraduate institutions in law or b-school rankings, I would be very interested to know about it): a law school taking a bunch of B+ students from Harvard undergrad will be worse off than taking A students from University of Arizona.  The law or b-school admissions offices might want to have some number of Ivy graduates, but so far as I know, that does not count in USNWR rankings of the professional schools.

The top universities have many reasons for grade inflation in liberal arts, but this fact counts among them.  Undergraduates who realize that they cannot compete with global specialists in STEM, particularly at the top universities, opt for liberal arts subjects.  They and the universities realize that GPA is all that matters, and unsurprisingly, GPAs rise.  How much?  Well, just this week the University of Illinois College of Law was forced to restate downwards its false GPA and LSAT data for the last couple of years.  Illinois is a darn fine school, with one of the great faculties in law – a leading top 25 school – but it is still not Harvard, Yale, or Stanford.  Its average GPAs were restated downwards from 3.8 to … 3.7.  I regard that as an astronomical GPA, and that’s average.

Overlooked in all this is the immensely damaging effect of grade inflation on risk-taking among our supposedly brightest elites.  Grade inflation is really grade compression against a top line.  And grade compression means that mostly you have nowhere to go but down.  How do you avoid that?  When falling below, in effect, an A- at worst average easily drives you out of the top ten law schools?  Or out of the top 20?  And when you know, and your parents know, that in addition to the 50k a year you’ve paid to study some liberal arts subject that only has a return on investment if you double down the bet on law school or b-school – at another 50k a year?  And further, when you know that outside of the top 25 or so law schools at this very moment, the job opportunities are sufficiently iffy that you are not so much making an investment as placing a bet on employment … well, you are going to not just rationally, but desperately, seek every way of ensuring that your GPA is as close to 4.0 as humanly possible.

It is not, in other words, that you made irrational, foolish, or bad choices as a sophomore to study liberal arts, and the easiest majors among them, rather than STEM.  Nor is law school then a way of merely making a more rational best of a bad and irrational situation.  It is, rather, that you figured out that precisely because you had managed to get into a highly regarded university, you could not compete with the worldwide competition that the engineering school sees as its reputational guarantor – and in any case, your desire was not to be purely a technical STEM person, in research or pure engineering.  Getting a C in courses in engineering at Rice or Stanford is not the equivalent of getting As at Cal Poly; getting Cs in these subjects probably means you didn’t learn anything substantial at a level you could understand and apply.  So you switch to liberal arts, and immediately notice that your GPA goes up.  Then you notice that top 25 law schools are basically demanding a near 4.0 GPA.

At that point (if not before, way back in high school), serious risk aversion kicks in.  You do not take any class, if possible, where you aren’t pretty assured of getting an A or at worst an A-.  That will lead you to fields in which the major offers no job prospects, by the way, and so the tradeable currency of the department (all the ethnic and gender studies programs, anthropology, globalization studies, and many more) turns out to be As as a mechanism for continuing to get majors to come to the department.  If anyone does not believe that university administrations monitor closely the numbers of majors, think again; many of these majors will come under serious pressure as students realize there is nothing on the other side.  They will offer students As.  And so long as the professional schools and USNWR treat all grades as fungible, there will be an market in arbitrageable As as surely as Greece depended on it being treated as well as Germany.

In response to having said this in blunt, fatherly-advice terms in in earlier posts on this blog, I’ve received many well-meaning, sometimes pious comments from people saying, well, you should just suck it up in order to get genuinely educated.  Here is what Dad says:  sorry, but forget it.  Higher education is both too expensive and the risks of failure – serious downward mobility of a kind I’ve also written about on this blog, not to universal acclaim – too great for it to be rational to put the education ahead of the credential.  I wish, as an educator, a human being, and a parent, it were otherwise, but it’s not.

My advice to my own daughter is to ask:

• (a) is there a serious possibility that you might decide to stop with an undergraduate education?  If the answer is yes, better make sure you study things like accounting, because you can’t compete against the best students China has to offer in STEM.  If you major in something like Human Rights and Global Justice, you might as well go sleep in a tent somewhere, because you will have no employable skills, and while there might be a Santa Claus, there is not a line of NGOs waiting to hire you.  You’d do somewhat better with a liberal arts major that sent a signal that you had analytic writing skills, but philosophy and intellectual history are the only two that come to mind, given the general analytic implosion of English departments.

And then to ask:

• (b) is there a serious possibility that you plan to go on to law school or b-school?  If so, then the strategy is completely different – go with classes and majors that maximize GPA, period.  No other priority in any class that has a grade.  If that means Sustainable Development in Latin America, go for it; if it means anthropology as human rights activism, go for it; if it means Global Justice, go for it.  The professional schools won’t care; all that matters is the GPA.

Note that (a) and (b) lead to radically different and mostly incompatible strategies.  And how does one know that as a sophomore?  As to an actual education, well, that’s nice.  But not at 50k a year, when those four years are themselves simply a downpayment on the law school bet that you can get employed.  At those prices it’s the credential that matters.  The education does matter, yes.  So Daddy’s advice is:  Use pass-fail classes to take things that you need as education but can’t afford to screw up.  Take summer school at other schools in ways that allow the credits to transfer but not the grade (note to students: take these pass fail as well, because usually you will have to give transcripts for all college courses taken, and GPA will reflect that as calculated at the application level).  Use summer courses to get technical background as much as possible.  But remember that at $350k principal for undergrad and law school, it’s a credential first.

There are ways in which universities could partly address this at the undergrad level.  The most practical, given the education-versus-credential problem, and the problem of grade inflation across all universities that no single school can fix – technical minors on a pass-not pass basis.  Two requirements to make this work practically.  First, they have to be offered at a level that is genuinely technical, but pitched to a level that meets the math skills of students who got 600s on their math SATs, not 800s.  It is a hard practical judgment – how technical is technical but not beyond reach?  Second, these courses, or better, technical minors need to be pass-not pass, otherwise no student in liberal arts can afford to take them.  The risk is too high.  It’s not a perfect solution, but this is something that universities could do without having to solve the impossible coordination problems of grade inflation/compression – or the problem of USNWR rankings.

(I’m in a hurry and on the road; I’ll clean up parts of this post later.)

Was my kid serious when she put that into her college application essay?  I’m not sure; she’s been around Dad studying UAVs and military robotics for years, expressing distinct uninterest and rolled eyes at the dinner table, but probably absorbing something. But without ever having seen a robot, weirdly, because the kinds of robot things I do are not about the robots or remote-directed systems you can build in kits (though DIYDrones is rapidly changing this).  But it’s entirely possible she thought, here’s what will cause an engineering school like Rice to fall for a humanities major.

Still, it’s a good line, and not a crazy idea.  ’The social life of things’.  As robotics gradually becomes integrated into ordinary social life – outside of special settings like factories – then the social aspects of robotics takes on greater importance.  Design to facilitate human comfort levels with robots; the ways in which social interactions change in the presence of robotic systems or how they change when robots substitute for humans; legal questions about product and design liability, and many other legal questions besides; the economics of the robotics design-and-production sector; and lots more. Among the “lots more” is ‘ethics and robotics’, and so I’m delighted to note that Illah Nourbakhsh of Carnegie Mellon’s famed Robotics Institute has posted a Teacher’s Guide for teaching robotics and ethics.  (H/T the estimable Stanford scholar Ryan Calo.)  The course abstract reads:

As robotic products begin to integrate more comprehensively with society, the relationship between robotic interaction and the ethical ramifications of this technologies’ impact becomes very relevant from viewpoints of design, critical analysis, legislation and widespread adoption. In this class we study the peculiar aspects of robotics that reveals ethical issues with new urgency, and study explicit and unintended consequences of new technology on personal, organizational and cultural levels. This course uses readings from psychology, sociology, human factors and classical texts to provide ethical analytical frameworks, then turns to recent robotic experiments and new advances in robotic technologies. Students will participate in discussions based on assigned readings, and will work in teams on in-depth analyses of concurrent robotics projects.

This teaching guide provides resources appropriate for planning anything from a semester-long study of Ethics and Robotics to a single-day introduction to the subject, appropriate for a more general course such as Introduction to Robotics.

The guide itself is excellent – really terrific – wide-ranging across many disciplines.  A teacher would have to make a fundamental decision as to whether the course was aimed to introduce engineers to the social, philosophical, and legal issues of robotics (and so assuming the technical engineering background), or instead aimed to introduce non-engineers to these problems (and so assuming no technical engineering background).  But the materials are there for an outstanding course – or several.

I would love to offer a course like this, reconfigured as an interdisciplinary law course.  This raises a certain difficulty.  I’d love to offer it at my law school, but frankly have hesitations as to whether it would be a good use of student time.  On the one hand, it is a classic third year seminar, an interdisciplinary course across law-and-x but also across different fields of law.  We are starting to move beyond robotic law being just tort law like any other – accident law, product liability, etc.; it is starting to take on characteristics of its own.  Moreover, I do believe that over the course of my current students’ professional lives, robotics will become sufficiently mainstreamed that there will be some version of robotic law, whether attached to the technology as a discipline or scattered yet identified as “robotics” across other subfields of law.

On the other hand, as a teacher at a mid-tier law school and looking to my students’ needs, I’ve moved gradually away from “cool” topics in favor of fundamentals. I’m not sure I could recommend this course rather than an advanced course in commercial law, for example.  This would be a great course at Harvard or Stanford, but I’m less convinced it makes sense for my institution and my students.

(Shameless pitch: Actually, what would be great would be for Rice University’s Baker Institute to invite me to be a visiting professor for a semester, and teach an interdisciplinary (the kinds of fields Nourbakhsh identifies, plus law and law-and-economics) version of this for non-STEM students, a version for STEM students, and then a separate course on military robotics – strategy and policy, law, and ethics (UAVs, other battlefield robotics, targeted killing and the future of covert action using robotic and remote-directed systems, and the future of autonomous systems and autonomous weapons systems).  Rice, because I like it and have a connection, but frankly any school with a strong engineering school and robotics program, but also a serious humanities and social science program.  Law school great but not necessary; maybe Stanford Law School and the Hoover Institution, UCLA’s Law and Philosophy Program; but also places like Harvey Mudd or Rensselaer.  This is what happens when parents become empty nesters – suddenly it’s possible to consider going different places!)

Daniel Kahneman has spent his career studying how people behave both rationally and irrationally, for which he has won a Nobel in economics and largely founded the field of behavioral economics.  As development economist William Easterly notes in his Financial Times review, there “have been many good books on human rationality and irrationality, but only one masterpiece. That masterpiece is Daniel Kahneman’s ‘Thinking, Fast and Slow’.”  (The FT review appears to be public.)

Kahneman presents our thinking process as consisting of two systems. System 1 (Thinking Fast) is unconscious, intuitive and effort-free. System 2 (Thinking Slow) is conscious, uses deductive reasoning and is an awful lot of work. System 2 likes to think it is in charge but it’s really the irrepressible System 1 that runs the show. There is simply too much going on in our lives for System 2 to analyse everything. System 2 has to pick its moments with care; it is “lazy” out of necessity …  Of course, Kahneman is one of the fathers of the field of cognitive biases, and most of the book is indeed spent on the mistakes made by System 1. We get probability and uncertainty terribly wrong, usually leading to overconfidence and mistaken decisions. We react to identical situations differently depending on what is already on our minds. Even worse, we don’t know what we don’t know.

The observation of systematic cognitive bias leads to calls for policies of paternalism, expert guidance to correct for mass cognitive biases.  But as Easterly emphasizes, the experts also have systematic cognitive biases:

Kahneman’s endorsement of “libertarian paternalism” contains many good ideas for nudging people in the right direction, such as default savings plans or organ donations. But his case here is much too sweeping, because it overlooks everything the rest of the book says about how the experts are as prone to cognitive biases as the rest of us. Those at the top will be overly confident in their ability to predict the system-wide effects of paternalistic policy-making – and the combination of democratic politics and market economics is precisely the kind of complex and spontaneous order that does not lend itself to expert intuition.

I just purchased this book, on Easterly’s recommendation.  But on the basis of the best-seller Nudge, which argued explicitly for libertarian paternalism, I agree with the criticism of “libertarian paternalism.”  The problem with Nudge, as many critics pointed out, was that it had one or two terrific examples of where re-setting the default behavior would have a huge and positive effect on outcomes without compromising liberty very much.  Everyone properly focuses on the default opt-out of the company 401(k) plan, rather than opt-in, for example.  Fair enough.  But many of the other applications seemed to critics, and to me, as “shove” rather than “nudge.”  So I will be curious to read this book and see if it seems to me any different.

Comments are open.  I am curious whether commenters who have read this literature (whether this book, or Nudge, or others in this category) agree that there is a problem with “shove” over “nudge.”  I am also interested in how commenters address the question of experts having their own cognitive biases – ones that are just as powerful, and which often have large consequences for everyone else, as those of the masses whom they manage.  Bill Easterly, as those who know his work would note, has reasons for wanting to emphasize that expert biases can easily be far more important than those of ordinary people.  But in that case, how does one get out of the cognitive bias-skepticism regress, in which there is always another layer of skepticism that undermines the ability to act?  Easterly does point to a particular feature of Kahneman’s views – the formation of judgment, the ability to use the lessons of “system 2″ to train “system 1.”

Finally, we might ask whether and in what ways that differs from what Aristotle and deliberate inculcation of character to the “proper” formation of judgment.  Skepticism, Aristotle and the virtue-ethicists today might say, is essential – but ultimately too easy.  There’s always another layer of skepticism; eventually it becomes a paralyzing cost, rather than a benefit, to action.  Skepticism is easy, judgment is hard.

(Update:) Thanks for the thoughtful comments.  I am reminded of an excellent essay (it is short, 14 pages, and clear, elegant, and accessible) by NYU’s Richard Pildes a couple of years ago on Cass Sunstein’s body of work which, of course, is central to this discussion.  Here at SSRN, and here is the abstract:

In both constitutional law and public policy, Cass Sunstein’s work has entailed a search for the largest common denominator that justifies government action. In constitutional theory, Sunstein developed the concept of “incompletely theorized agreements” as a model for how judges ought to decide cases. In public policy analysis, Sunstein’s work has reflected a similar commitment to maximizing consensus and reducing conflict. While Sunstein’s conception of minimalist adjudication has been thoroughly explored, less attention has been paid to the underlying political vision that structures his view of the proper role of the state and the desirable forms of public policymaking.

In this tribute, I explore and challenge the structure of Sunstein’s political vision. Two ways of seeing this vision exist. The first is the way in which Sunstein presents it: as a profound new alternative capable of transforming current politics and transcending political polarization and conflict. Sunstein himself calls his vision “a real Third Way,” a post-partisan conception that provides a synthesis of Franklin Delano Roosevelt’s New Deal liberalism and Ronald Reagan’s new conservatism. The second way is almost diametrically the opposite. Perhaps this conception actually reveals how chastened and minimalist political aspirations are limited to being in our era.

Based in behavioral law and economics, the centerpieces of Sunstein’s political vision are default rules and information disclosure. This is a vision focused on changing the means by which government acts. This focus, however, then raises the question: how much can or should politics focus primarily on the means of government action, rather than what ends government ought to pursue? Or, to the put the question in terms of Sunstein’s own stated ambitions, can it really be the case that the major political critique of the New Deal that was effectively launched in the Reagan years was simply a critique about the means of public policy, as opposed to the proper role of the state and the ends for which government ought to act? Should we see Democrats and Republicans, liberals and conservatives, as so divisively polarized today merely because they disagree about what means government ought to use in pursuing policy objectives – objectives that, we are presumably to believe, all sides actually share? If this vision actually is the “real Third Way” in contemporary politics, it is worth asking what that tells us about the possibilities for democracy today.

One of the important questions about Sunstein’s judicial theory as distinguished from the larger political theory is whether “minimalism” should govern in both contexts.  My own view is that this is the correct view of how a judiciary should act and decide – but for the important reason (drawn less from political theory of liberalism than Weberian social theory of legitimacy) that courts and judges are “embedded” within structures of politics and society, cabining their necessary counter-majoritarianism within larger majoritarian structures and within a larger society in which these institutions have social legitimacy.

But those concerns are not the same as those that majoritarian political institutions.  The executive in particular has to address in many matters in which a larger strategic vision for how to go forward is required.  National security is one of them; success in national security requires commitment to a longer term and more “enveloping” strategy than minimalism entails.  Minimalism counsels small, tactical, incremental, cautious moves – which is wise for judging but can be disastrous in matters in which a strategic vision is the only way to success.  The problem with the strategic vision is that it requires making commitments and guesses about long run things that will not necessarily command agreement; it involves bets on the future, in which some bets rule out others.

That’s the nature of strategy.  As Philip Bobbitt once remarked to me about fighting terrorism as an example of national security as strategy, the problem of applying cost benefit analysis in any serious way to these problems, as a consensus way forward, is that the serial minimalism of CBA leads to narrow incrementalism.  It emphasizes exceedingly linear thinking in a strategic realm in which offensive victory is usually defined by envelopment in time and space.  This kind of serial minimalist thinking precludes grand strategy of the kind that political institutions in a democracy must take on, in a way that judges do not.  While it might be true in special contexts that the best “grand strategy” is, in fact, serial incrementalism, much of the time it reflects not a strategic decision but instead adherence to a method that is, in Bobbitt’s phrase, “relentlessly tactical.”  I’ve sometimes called it “serial catastrophe prevention” as a “strategic” policy that really is merely tactical.  E.g., everyone can agree that we need to protect the airport from the next terrorist attack and so we can agree on concrete barriers to prevent the suicide bomber driving a vehicle.  But we can’t agree on a longer run strategy beyond that minimal tactical level agreement aimed at serial prevention of the “next attack” to come up with any larger, on-offense strategy for ending the threat, or even that we ought to seek such.

I’ve framed it here as a problem for strategy in national security, and I’ve also framed it here as a question of strategic bets where the desired strategic outcome is not itself at issue; the problem is means to those ends.  There are lots of areas outside of national security in which long run policy strategies are crucial, and require big and not always minimal assumptions.  And, as a separate issue, there are also many areas in which there will not be consensus around the strategic ends themselves – different conceptions of values.  I don’t think the answer can always be to go for the minimalist approach; it too easily produces the worst of all worlds.  In these matters, that’s why we have democratic and majoritarian process – not purely majoritarian by any means, but not consensus either.  I talk about some of this stuff in a frankly not well organized article – my initial foray into some of this stuff in the national security area, but then I got pulled into other things, like drones – at SSRN here.

My article is long and alas confused in places, so I’d suggest Rick Pildes. But here is the abstract to my piece:

This 2007 article (based around an invited conference talk at Wayne State in early 2007) addresses risk assessment and cost benefit analysis as mechanisms in counterterrorism policy. It argues that although policy is often best pursued by agreeing to set aside deep foundational differences, in order to obtain a strategic plan for an activity such as counterterrorism, foundational differences must be addressed in order that policy not merely devolve into a policy minimalism that is always and damagingly tactical, never strategic, in order to avoid domestic democratic political conflict. The article takes risk assessment in counterterrorism, using cost benefit analysis, as an example of a foundational disagreement that cannot easily be elided. Examining an extreme, indeed crude, recent example of cost benefit analysis applied to the risks of terror and the costs of counterterrorism – John Mueller’s widely noticed Overblown – the article suggests that cost benefit analysis, at least applied in this way, runs roughshod over other important values in counterterrorism policy, such as justice, but in addition, makes radical yet unstated assumptions about what cost benefit analysis seeks to compare in establishing counterterrorism policy or estimating the risks and costs of terrorism – unstated assumptions that, in fact, assume the conclusion. The article notes that cost benefit analysis tends to promote a policy-minimalizing “event specific catastrophism” – seeking above all to prevent simply the next, serial terrorist attack, with however no greater strategic vision. Indeed, the article says in conclusion (as Philip Bobbitt has noted) cost benefit analysis is “relentlessly tactical,” not strategic; it also tends toward serial ‘event specific catastrophism’ as its analytic frame; and it is a method of evaluating proposed courses of action, not generating them, and hence promotes a strategically questionable tendency to reaction as a response to terrorism. This article presents these ideas in brief fashion, however, as the first draft in a larger project on cost benefit analysis and counterterrorism, and it does so by reference to a book that is unabashedly crude in its approach to both cost benefit analysis and terrorism/counterterrorism. The critical project will extend beyond this particular article, which is in effective a a first pass at developing a critique. It is also an article that does not extend beyond events of early 2007 (when the original address was given) and should be read in that light.