Saturday, September 20, 2003

 
[Eugene Volokh, 9/20/2003 04:46:06 PM]
"Disenfranchisement": Here's an excerpt from a New York Times piece:

[E]ven voting rights advocates acknowledge that the ballots destroyed by mechanical failures are but a fraction of the votes lost in other ways.

The real disenfranchisement, they say, takes place not in the voting booth, where a voter has a 96 percent or better chance of having his or her choice counted, regardless of the technology used. The truly disenfranchised are those who never make it to the polling place at all. . . .

[Various people] who have worked on voter-registration drives over the past 30 years say the argument over chads misses the point. Blacks and Latinos are underrepresented not because they vote on outmoded machines, but because millions of them are not registered or motivated to vote.

Latinos, for example, account for 22 percent of the 21.5 million Californians eligible to vote, but only about 16 percent of those who show up at the polls. Whites, by contrast, represent 51 percent of those eligible to vote, but 73 percent of the electorate.

Officials from the Southwest Voter Registration Education Project said that lack of participation by Latinos is driven by the same factors that explain low participation in other groups: lack of income and education, low homeownership rates, transportation problems.

"The question becomes for an organization like ours, how do you address this 'illness,'" said Lydia Camarillo, national vice president for the group.

"One way is through this lawsuit," she said. "But we haven't even begun to talk about the distrust that the foreign-born feel about the process. Others think, why bother if nothing is changing. They look around their neighborhoods -- the potholes are not filled, the streets are still dirty, the mattresses are still hanging out there, the violence and the slow police response time -- so why bother voting."

This is all very interesting, but it's not disenfranchisement. When people choose not to vote, whether it's because of distrust, disgust, or lack of education, they aren't being disenfranchised -- they're just choosing not to exercise their franchise, or to do what it takes to get the franchise. (I set aside the possibility that registration may be somehow too time-consuming or bureaucratically forbidding; that, to my knowledge, is not remotely the main problem here.)

     I realize that the word "disenfranchisement" is consciously being used figuratively here; but I think it shouldn't be so used. This sort of figurative usage tries to take advantage of the true meaning of "disenfranchisement" to arouse the same sort of indignation that true disenfranchisement -- the legal, bureaucratic, or forcible denial of the vote to voters who want to vote and who should be free to vote -- arouses, but in a situation that is morally and practically very different. It may be a crafty political turn, like such relabelings often are. But it should be resisted.

 
[Eugene Volokh, 9/20/2003 12:11:41 PM]
The Oxbloggers: I'm delighted to report that The OxBloggers (Josh Chafetz, David Adesnik, and Patrick Belton, or at least some subset of them), prominent and successful bloggers in their own right, will be guest-blogging here Monday and Tuesday.

 
[Eugene Volokh, 9/20/2003 11:31:25 AM]
Confusable word pair of the day: "Immanent," meaning "Existing or remaining within; inherent" or "Restricted entirely to the mind; subjective," is not the same as the much more common word "imminent," which means "About to occur; impending."

 
[Eugene Volokh, 9/20/2003 10:37:41 AM]
Seeming violation of the Code of Conduct for United States Judges: How Appealing and Beldar point out that Judge Harry Pregerson -- one of the judges on the original California recall decision panel -- seems to have violated the Code of Conduct for United States Judges by his comments about the case. The L.A. Times quotes him as saying, in an interview: "You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it. . . . Judge Paez, Judge Thomas and I — we did the right thing," Pregerson said. "We're there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine." But Canon 3(A)(6) of the Code of Conduct for United States Judges says:

A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control. This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.

Moreover, the official Commentary makes clear that this isn't limited to cases that are still before the judge, or for that matter to cases that involve the judge's own court: "The admonition against public comment about the merits of a pending or impending action continues until completion of the appellate process. If the public comment involves a case from the judge's own court, particular care should be taken that the comment does not denigrate public confidence in the integrity and impartiality of the judiciary in violation of Canon 2A." As Beldar points out, none of the exceptions in the Canon apply here; hard to see the Pregerson statement as anything other than a Code of Conduct violation.

     I'm not sure how important this provision (in its current breadth) is to the sound administration of justice. Moreover, Pregerson's particular statement does not seem to be particularly harmful on its own: It doesn't tell the public anything about Pregerson's likely future decisions about the case beyond what the original opinion itself said, and while it suggests that the makeup of the en banc court may affect the outcome of the case, that's hardly a secret. In fact, the statement's assertion of judicial independence might actually be helpful to the public discussion.

     But whatever I think, and whatever Judge Pregerson thinks, about whether the statement is harmful, it is pretty clearly prohibited. Judges should follow the rules, and the rule here seems pretty dispositive.

 
[Tyler Cowen, 9/20/2003 08:26:45 AM]
Do underground power lines cost more? My wife tells me that the Russians are laughing at the power blackout in Virginia, they commonly have underground power lines, as do many parts of Europe. Common opinion is that underground lines are more costly, one estimate says $1 million per mile. Some commentators charge that underground lines are better for our health. If I read this advisor to terrorists correctly, underground lines may be less vulnerable to sabotage as well. I am not willing to endorse this idea, but the prospect of two weeks without power in my home naturally leads me to look for alternatives.

 
[Tyler Cowen, 9/20/2003 08:04:13 AM]
Privatizing antiquities and fakes To what extent should we allow private ownership of antiquities? A recent court case has threatened to shut down much of the American trade in antiquities, as they are typically lifted illegally from archaeological sites. I have been pondering this question since my previous post to VC (you may need to scroll down a bit), and, Virginia Power permitting, I will give you my thoughts over the next few days.

David Nishimura, an expert in art history, points out that a significant percentage of "antiquities without legitimate provenance" are in fact fake. I once heard from a very reputable dealer that over half of all pre-Columbian pieces were fake, and he was including pieces in top museums. It is just not that hard to make passable copies of this stuff, and note I am not one of those people who thinks a six-year-old can match the white canvases of Robert Ryman.

This makes me more sympathetic to regulating the trade more closely. Regulation would shut down a thriving market, but how much does this market make people better off? Some utilitarians might argue that if buyers are happy with their fakes, and don't know the difference, we should treat these welfare gains as real. After all, if a man's wife is fooling around on him, and he doesn't know, shouldn't we count his welfare at a relatively happy level, rather than at the miserable level he would have if he knew?

The alternative perspective suggests that these phony-baloney trades should count for less. Welfare is not just a pleasant buzz in your head, it also involves "getting what you want." The buyers wanted real pieces, and they didn't get them. At many margins we prefer authenticity over pleasure, read here about Robert Nozick's experience machine. Or look at it more practically. Wouldn't you prefer that the government put out of business a seller who sold you fake art works half the time? Would it matter whether the seller intended to rip you off in any single instance?

I am reminded of Richard Epstein's point that the Victorians had reasons to be worried about the trade in prostitution, given the infectious diseases that it spread (he threw this out offhand at a conference, not sure how much we should hold him to the empirics, nor did he say that banning prostitution would improve the problem).

So far the argument is pointing toward regulation, but we have looked at only one angle. I will continue the topic. And my apologies if my blogging turns irregular, it is a temporary result of the storm, I have to run out to Kinko's to blog.

Friday, September 19, 2003

 
[Juan Non-Volokh, 9/19/2003 07:29:30 PM]
Assessing New Source Review Reform: Mark Kleiman responds to my post below charging "the assertion that gutting New Source Review won't lead to dirtier air, . . . doesn't pass the giggle test" and that Bush’s "implicit message to the plant's workers was that he would protect their jobs, even at the expense of the health of the people downwind." The problem with Kleiman’s response is that it is based on premises that are demonstrably false. The Bush Administration proposals cannot be reasonably characterized as “gutting” New Source Review (NSR), nor do the proposals compromise air quality for downwind communities.

NSR refers to a series of pollution control requirements which apply to newly constructed facilities with the potential to emit substantial amount of regulated pollutants. Plants built prior to the enactment of NSR in 1977 were “grandfathered,” and were not required to adopt such controls. The policy change finalized by the Bush Administration clarifies existing regulations so as to clearly allow most routine repair and replacement projects designed to maintain or enhance the efficiency, safety, or reliability of existing grandfathered facilities without triggering NSR requirements. Importantly, however, NSR requirements are triggered by any projects that increase a plant’s emitting capacity. In addition, any repair or replacement project that costs over 20 percent of the value of the plant also triggers NSR requirements. Thus, on its face, the NSR rule change does not allow for increased air pollution.

The worst that can be said about the NSR reforms is that some facilities might not install new pollution control requirements as quickly as they might have absent the reforms. Perhaps. But the push for NSR reform – which began under the Clinton Administration – was driven by the realization that companies were refraining from routine maintenance and replacements to maintain or improve facility efficiency for fear of triggering NSR. In other words, in some cases, the old NSR rules discouraged some investments that would have reduced emissions. This is one reason why numerous organizations, ranging from the National Council of State Legislatures and the National Governors’ Association to Environmental Council of the States and the Pew Initiative on Climate Change called for NSR reform. As summarized by Howard Gruenspecht of Resources for the Future and Harvard’s Robert Stavins:

Research has demonstrated that the New Source Review process . . . has resulted in worse environmental quality than would have occurred if firms had not faced this disincentive to invest in new, cleaner technologies.

[More from Stavins and Gruenspecht is available here.]

Equally important, the changes to NSR do nothing to impact the wealth of other regulatory requirements under the Clean Air Act which cover grandfathered facilities. These include the federal acid rain program, the regional haze program, and various National Ambient Air Quality Standard nonattainment requirements. Under the latter, state governments are still required to regulate facilities within their jurisdiction to the extent necessary to ensure attainment of federal air quality standards – standards which remain unchanged (indeed, standards that were recently tightened by the Clinton Administration).

In addition, downwind jurisdictions also continue to be specifically protected by the NOx SIP Call – under which upwind states must regulate facilities within their jurisdiction so as not to contribute to downwind air pollution problems – and Section 126 of the Clean Air Act – under which the EPA must directly regulate upwind facilities that may otherwise contribute to downwind air pollution. In other words, nothing in the NSR reforms allows upwind jurisdictions to emit more pollution to downwind jurisdictions.

I admit that one would not know much – or indeed any – of this from reading most of the news coverage on NSR. But all of this can be easily verified by reference to the rules themselves. It is obvious that Kleiman, and many of the Administration’s other NSR critics, either did not bother to check the facts, or do not care.

UPDATE: Joel Schwartz explains the relative irrelevance of NSR here, and Steven Hayward explains how the NSR reforms approved by the Bush Administration are not all that different from those proposed by the Clinton administration here.

SECOND UPDATE: Kleiman responds again (same place), concluding Bush has "chosen 'jobs' over clean air. It's enough, quite literally, to make you sick." Yet Kleiman acknowledges that nothing in the Bush proposal will increase air pollution (he argues the debatable point that it will slow the rate of pollution's decline).

Kleiman's worst case scenario under the Bush rules is that old, dirty plants stay around longer than they would have otherwise. In other words, in his view the administration is not cleaning the air as fast as it could. That's an arguable point, but one that I believe is inaccurate given the details of NSR and the administration's reforms. An illustrative example is the facility at which the President gave his speech, the Detroit Edison plant in Monroe, Michigan.

The Detroit Edison plant is, as Kleiman notes, the biggest emitter in the state. It is also, by far, the largest power plant in the state, generating more than twice as much power as the next largest facility, so it would be quite surprising if it Detroit Edison was not the largest emitter. Without the Bush changes in NSR, this plant was not going to be mothballed any time soon (plants are built to last well in excess of 50 years). Instead, it would continue operating, although its efficiency, reliability and safety would slowly decline over time, leading to increased emissions per unit of output). With the NSR rule, however, the Detroit Edison plant is replacing its turbine blades to increase the plant's efficiency, allowing it to generate more electricity without increasing its emissions. (Again, it is not allowed to increase its emitting capacity under the Bush rules.) Assuming a modest 2-4 percent increase in efficiency (which is typical for turbine upgrades utilizing Dense-Pack, although I do not know if this is the technology to be adopted at Detroit Edison), this would enable the Detroit Edison facility to produce 60-120 megawatts of additional power without increasing its emissions Without the upgrade, the power would be generated elsewhere, and aggregate emissions would increase. In my book, this change -- reducing the amount of emissions per unit of output -- is a good thing, both economically and environmentally. Apparently Kleiman disagrees.

It is also important to reiterate, as noted above, that the NSR reforms do not allow any plants to increase their polluting capacity nor do they alter any of the air quality based standards that jurisdictions (and, by extension, facilities in relevant areas) are required to meet. In other words, insofar as Michigan utilities are required to acquire acid rain permits to continue operating, nothing has changed; insofar as Michigan utilities most install pollution control equipment to ensure metropolitian areas in Michigan continue to meet federal air quality standards, nothing has change; insofar as utilities in Michigan must adopt pollution control devices under the NOx SIP Call and Section 126 rulemaking so they do not increase pollution levels in downwind jurisdictions, nothing has changed. And so on.

Finally, as Joel Schwartz points out, even if the Bush administration had adopted NSR reforms that allowed for increased pollution at existing facilities, air pollution in the U.S. would continue to decline. As Schwartz concludes:

Given the stringency and broad scope of actual air pollution requirements, and the virtual irrelevance of New Source Review to progress on air pollution, the doomsday alarmism of environmentalists, the [New York] Times, and other pundits seems bizarre and comical -- at least it would if these organizations weren't the public's most relied upon sources for information on the environment.

I could not have said it better myself.

 
[Juan Non-Volokh, 9/19/2003 02:29:02 PM]
Bush, Jobs & the Environment I often disagree with Mark Kleiman, but I generally find his blog worthwhile, and I rarely find his posts as thoughtless as this one. Kleiman cites this article for the proposition that President Bush intends to use recent job losses "as an excuse for fouling the air and water." Yet the article in question suggests nothing of the sort. To the contrary, it quotes the President arguing that job growth and environmental protection go together.

In Kleiman's defense, Bush did talk about the need to encourage job creation in the speech. Yet the President stressed that "we can grow our economy and protect the quality of our air at the same time." Bush touted reform of "New Source Review" regulations under the Clean Air Act, which the EPA maintains will facilitate efficiency improvements (and therefore emission reductions) at many facilities, including the one at which Bush delivered his remarks. Kleiman may assume, in a knee-jerk fashion, that any effort to reduce the costs of regulatory compliance increases pollution, but this is an unwarranted assumption. Indeed, it is generally understood by environmental policy experts that many environmental goals could be achieved more effectively and at less cost.

Not only did the President specifically reject Kleiman’s formulation (relax environmental protections to create jobs), he also touted new environmental regulations controlling diesel engine emissions, diesel fuel sulfur content, and off-road vehicle emissions. This underscores the larger point that environmental regulation continues to increase under President Bush.

UPDATE: I respond to Kleiman's rejoinder in the post above.

 
[Eugene Volokh, 9/19/2003 02:02:28 PM]
Voting Rights Act and California recall decision: Here's something I haven't seen discussed (though I'm sure someone has discussed it). The plaintiffs challenged the use of punch-card ballots on two grounds -- that using such ballots in some counties would violate the Equal Protection Clause, and that it would violate the Voting Rights Act. To win a postponement, all they need is to win on one or the other ground.

     The district court rejected both theories, but the 3-judge court of appeals panel considered only one theory -- the Equal Protection Clause theory. Because it found that a delay was needed to avoid an equal protection violation, it didn't have to consider the Voting Rights Act questions. (Courts often do decline to consider an issue when the case is adequately disposed of by focusing on the other issues.)

     Now if the en banc court just considers the matters discussed by the panel -- the customary procedure in en banc review -- and reverses the panel on equal protection grounds, then the case will be back before the panel on the Voting Rights Act issue. If the panel then rules for the plaintiffs on the Voting Rights Act question (say, around September 30 or even later), then it would again postpone the election, this time with even less time for the en banc court to reconsider the matter. (Note, though, that I'm not enough of a Voting Rights Act expert to know how strong that claim is.)

     My guess is that the en banc court will therefore have to consider the Voting Rights Act matter as well -- which has, after all, been fully briefed in this litigation, just for purposes of the appeal that was heard by the original panel -- in the interests of getting this taken care of as soon as possible. But who knows?

 
[Eugene Volokh, 9/19/2003 01:34:28 PM]
How are judges chosen for an en banc hearing? Federal appellate courts hear cases using 3-judge panels; but the court can then decide to rehear the case sitting "en banc," which usually means that all the judges in that circuit hear and decide the case together.

     The Ninth Circuit, though, is too big for that -- there are 26 judges on it right now, and I believe the statutory maximum capacity is 28. Therefore, en banc rehearings are done using a panel of 11 judges. (The parties can petition to have the case reheard by the entire court, but I think that the court has never agreed to do that.)

     Who are the 11? My recollection is that:

1. The chief judge is always on the panel.



2. The remaining judges are chosen randomly from all the active nonrecused judges, except that



3. if a judge hasn't sat on the last three en banc courts, he's automatically placed on the next one, and



4. if a senior (i.e., semiretired) judge was on the original 3-judge panel, then he's eligible to be chosen for the en banc court.

     The judges from the original panel are neither automatically disqualified from the en banc hearing nor automatically included -- the process is as random for them as for anyone else.

 
[Jacob Levy, 9/19/2003 01:32:06 PM]
Progressive taxation: (This is the second in a series of follow-up posts to my TNR column. The first is here. The comments to which I'm responding include Kevin Drum's, Kieran Healy's, He Who Must Not Be Named's.)

The objection is: The problem with the Wall Street Journal "Lucky Duckies" editorial wasn't that it involved using taxes on the working class for partisan gain. It was that the editorial rested on a deliberate falsehood: that there are millions of Americans who don't pay taxes. In fact, taxes in America are barely progressive overall, and even the poorest Americans pay a significant share of their income in payroll, property, and consumption taxes. This means three things. First, The WSJ editorialists are a bunch of lying bastards, and I shouldn't have wasted my breath (sort of) defending them, as I was defending them against the wrong charge, a more "hifaluting" one than the one that was already made. Second, the WSJ's implicit substantive proposal-- avoid further tax cuts for the working class-- is immoral, since (in combination with the WSJ's favord tax cuts for those higher up) it would leave the American tax system overall actually regressive. Third, the WSJ's political story-- that the constituency in favor of lower taxes is shrinking to a dangerously low point, and too many Americans are becoming detached from the costs of government, thereby losing their incentive to vote to keep the size of government (and taxes) in check-- is wrong, because those people are paying taxes. (This is a shorthand summary, but I hope a fair one.)

My responses:

First and foremost: I agree that non-regressivity is a desirable characteristic of a tax system. (I've already alienated some of my libertarian readers here-- some, by conceding that there could be any such thing as a desirable characteristic of a tax system, others, because I've embraced a distributional-pattern norm about taxation.) I'm going to remain agnostic here as between proportionality and progressivity-- it doesn't affect the substance of the objection, which is that the WSJ's combination of proposals would tip us into regressivity and that's wrong.

Non-regressivity isn't the only desirable characteristic of a tax system, mind you. Besides obvious rule-of-law, non-arbitrariness standards (no differential tax rules based on race; tax rules that are knowable in advance, one is only punished for actually breaking an actual rule, etc (not that the obviousness of these standards means they're particularly well-satisfied under our current tax system)), let me suggest some others.

2) The tax system, taken as a whole, should be relatively transparent, such that increases or decreases in the expense of government are pretty directly and widely experienced as increases or decreases in the tax burden. (For many people much of the time, those increases or decreases will be offset by decreases or increases in state-provided benefits. That's compatible with one's tax bill bearing a rational and consistent relationship to the tax system overall.)
3) The tax system should have room for jurisdictional competition on the optimal balance of taxes and benefits. That means that it should be federal or confederal, and the component units should have independent taxing and spending authority. Ideally this extends to the municipal, not only the provincial, level.
4) The tax system should carry a light administrative burden-- both in the aggregate and across taxpayers widely. Note: this tends to favor consumption and, to a lesser degree, property taxes over income and payroll taxes-- not always, but in general. It's thus in direct tension with progressivity. I suspect it weighs particularly heavily against multiplying the number of income-taxing authorities at lower levels, i.e. cities and towns.
5) The tax system should be minimally distorting in the aggregate-- no sectoral favoritism. (Yes, this criterion weighs against the mortgage deduction.) In particular it should be minimally distorting of the labor market.
6) (Here I'm really going to antagonize some of my fellow libertarians:) The tax system should encourage a sense of shared connection to and ownership of the state. This is closely related to (2), but I've become convinced that it should be stated separately-- because of the "resource curse" problem. Taxation is undoubtedly a cost, not a good. But it turns out that states funded by magic pots of money dug out of the ground-- something that should be very appealing to non-anarchist libertarians, who want a state but to minimize or eliminate taxes-- have all sorts of dreadful characteristics. There seems to be a strong connection between a broad tax base on the one hand and public accountability, reduction of corruption, reduction of militarism, diffusion of power and authority throughout the society on the other.

I would also add (7) The tax system should be sufficiently transparent that the burdens it creates are widely noticed, and thus create political pressure for keeping them in check. (This was the argument against automatic witholding on the income tax.) But that's a matter of my political preferences in a more-obviously controversial way, and I don't think it's reasonable to demand that everyone agree with that as a desirable criterion of a tax code. I think that (1)-(6) are plausible candidates for widespread acceptance as desirable criteria, each taken ceteris paribus, though people will obviously disagree on the weight to be assigned to each one.

There are certainly others. But it seems to me that, already with these, we've got obvious difficulties of simultaneous satisfaction. With lots of taxing authorities but reason to not want them all to tax income, there's going to be a tendency toward regressivity because of the use of consumption and property taxes. This creates pressure to make the income tax, where used, more progressive-- which tends to make it both more complex and more distorting. Moreover, the existence of lots of separate taxing authorities that use at least three different tax bases yield a serious reduction in transparency. There may be no rational relationship between increases or decreases in the cost of government overall and any representative person's annual tax burden, because the cost increases or decreases may get concentrated in odd ways.

The WSJ, as I read it, was centrally concerned with (2) and (6)-- and I think those are reasonable concerns. They're not the only concerns. But they're real and legitimate ones. And sometimes one can't address one of the desirable characteristics without creating pressure in an undesirable direction on one of the others.

And I doubt that (2) and (6) are satisfied simply by pointing to how broad the base of overall taxation in America is. The payroll tax in particular (about which more below) is widely understood to be something other than a straightforward tax, and not to have a direct connection to the cost of government in a general way. Property taxes can fluctuate wildly for reasons that have little to do with the cost of government-- e.g. a major commercial landowner comes to town, or leaves it. Statewide sales and income taxes, and the federal income tax, are the ones that people associate with the cost of government in a general way, and that move up or down with that cost (except during the Bush years, when costs skyrocket and income taxes go down-- what a clever idea...) Insofar as millions of people cease paying any income taxes, it does seem that they become detached from the costs of the federal government (and of some state governments). The WSJ's political case was incompletely and incompetently stated; but rests on something plausible. (Of course, even in an editorial one ought to show some awareness of complexity. The WSJ's apparent willingness to just ignore the payroll and other taxes, rather than engaging in this kind of explanation, was deceptive and I do not defend it.)

The WSJ might still be wrong, of course, and I suspect that it is. The progressive income tax with witholding seems to be the most invisible of taxes, as far as criterion (1) [UPDATE-- sorry, criterion (2)-- I renumbered while writing the post] is concerned. Property taxes spark tax revolts. Complexity in the income tax sparks some general resistance and grumbling that can be capitalized on. But small, year-in and year-out increases in income taxes, deducted every two weeks or every month from the paycheck, don't seem to do that. States with income taxes have much higher overall government spending and tax burdens than those with only sales taxes or with neither. Causation almost certainly runs both ways here, but the evidence suggests to me that simply being on the income tax rolls does not turn people into vigilant monitors of the cost of government, and indeed that income taxes do that less than other taxes do.

That said, what about morality? Recall: "the WSJ's implicit substantive proposal-- avoid further tax cuts for the working class-- is immoral, since (in combination with the WSJ's favord tax cuts for those higher up) it would leave the American tax system overall actually regressive."

Here I think a great deal turns on how we understand the payroll tax. (Note to the two dozen people who e-mailed this point to me; thanks, but I was already working on this post to begin with and I understand this point perfectly well.) If the payroll tax is just a tax, not something special like an insurance premium or forced savings-- that is, if it ought to be counted in a way that is detached from Social Security payouts at the other end-- then the tax system is barely progressive, and could be tipped into being regressive overall. If the payroll tax is not just a tax but something special that should be counted alongside the ostensible benefits it ostensibly purchases, then this is not true. The payroll tax is the largest share of the tax burden for (I believe this is right) most Americans. It is proportional-- but only on earned income, and only up to a certain income cap. So it makes a big difference in the overall calculations-- and how we count it makes a big difference.

I think that the payroll tax is just a tax, and that Social Security is just a spending program. But that's not the official position; and it's not ordinarily the position of those who support a continued state system of Social Security. Hence the desire to take Social Security off-budget, to treat its surplus as different from other state funds, and so on. Hence the unwillingness to means-test Social Security-- in order to preserve the illusion of social insurance "bought" with one's "premiums." Hence the unwillingness to lift the income cap on the payroll tax-- because then we'd either have to allow benefits paid to the richest retirees to skyrocket, or we'd have to admit that one's taxes don't really purchase one's own benefits. In other words, I want to concede that the payroll tax is just a tax, making the tax system as a whole borderline-regressive-- and then to insist on the consequences that follow from that. But I dislike any attempt to have it both ways-- to treat the payroll tax as just a tax for purposes of calculating regressivity, but to treat it as something quite different when it comes to discussing Social Security as a program.

------

All of that said: several people have suggested that I didn't pay close enough attention to the real politics of, the real politics of the real responses to, the WSJ editorial, that I got distracted by the shiny pretty hifalutin' philosophical point over-that'a-way. I don't think that's true. I didn't mean for it to be true. But I have enough self-awarness to recognize that it might be true-- it's the sort of thing I'm capable of doing without realizing it.

And the truth is I am interested in the shiny pretty philosophical point-- which I'll return to on Monday, when I respond to Russell Arben Fox.

UPDATE: Kevin replies with an interesting proposal.

There is only one tax in the entire country, the federal income tax. However, all localities are allowed to specify their own percentage to be added to the tax returns of people who live there. Thus, Irvine might decide that the tax rate here will be 1.2%, and this would then be added to my taxes and disbursed directly to the city of Irvine with no federal oversight. Ditto for the County of Orange, the state of California, and any other miscellaneous localities I might belong to.

See also: Dr. Manhattan on Social Security.

 
[David Bernstein, 9/19/2003 12:40:56 PM]
Isabel: My house has been without power since 5:00 p.m. yesterday. I can't complain, as I suffered no major property damage (one small tree fell over, but I seem to have righted it), and was well-stocked with candles and flashlights. What is a bit annoying, however, is that all of the houses I can see from by back deck have power. I can also see from my window a big Ballston office building, all lit up like it's Christmas. To me, that's rubbing it in! Of course, the fact that the two power lines adjacent to my house are about 8 feet below where they are supposed to be might have something to do with my plight. I'm blogging, by the way, from my GMU office, which has power.

 
[Eugene Volokh, 9/19/2003 12:07:01 PM]
Ninth Circuit agrees to rehear California recall case. The en banc panel will be Schroeder, Kozinski, O'Scannlain, Kleinfeld, Tashima, Silverman, Graber, McKeown, Gould, Tallman, Rawlinson.

 
[Eugene Volokh, 9/19/2003 11:33:25 AM]
John Lott's responses as to the 1997 study and the Ayres & Donohue materials: John Lott has responses about the 1997 study here (and see also the supporting documents linked to by that page), and about the Ayres & Donohue paper here. Anyone interested in the debate should definitely read these.

 
[Eugene Volokh, 9/19/2003 08:37:30 AM]
Very nice reviews of Academic Legal Writing: Steve Russell, a retired judge who's now a criminal justice professor at the Indiana University, posted a very nice (and entirely unsolicited by me) note about Academic Legal Writing to a lawprofs' discussion list that I'm on; I thought I'd take the liberty to pass it along, with a reminder that personalized copies are still available, as of course are normal ones:

Every now and then somebody apologizes on the list for announcing his or her own publications. For the record, that does not offend me and I use two texts authored by list members, one of which I got directly off CRIMPROF.

In this case, the horn I wish to toot is not my own.

This last week, I received my copy of Eugene Volokh's Academic Legal Writing (Foundation Press 2003).

I have already lent my personal copy to a graduate student with a suggestion that he look it over and buy his own, and I have already sent my son-in-law (2002 law grad currently serving a judicial clerkship) a copy.

It contains a lot of stuff I knew and some stuff I didn't know but the big deal is how clearly organized it is.

One thing I didn't know is that it is common practice to use an acceptance to shop your article farther up the food chain. I don't give a shit for the food chain since electronic databases, but it's something my students need to know. . . .

[A]dvice to your students will never get this clear and concise. We always have 3 or 4 PhD students here who already have JDs and therefore think in terms of law review publication, so I am going to be using this book regularly.

Toot!

Also, while I'm at it, two very nice responses (again, entirely unsolicited by me) that were sent to the list, from Prof. Norm Garland at Southwestern:

Let me second the note on Eugene Volokh's Academic Legal Writing. I have given it to a number of my students (proteges, if you will), including my wife who is working on her LLM and was struggling with paper writing after a few decades away from the academic endeavor. Everyone has been extremely grateful for the recommendation. I also just learned that our Law Review has adopted it as required reading for its training program for newbies.

and from Prof. Lesley Blank-Klaff at Sheffield Hallam University in the U.K.:

I should also like to add that I bought Eugene Volokh's 'Academic Legal Writing' while I was on holiday in Boston in August (while visiting the Harvard Law School book store, to be precise), and I think it's brilliant! I don't know about passing it on to my students, but I'll certainly be using it myself. There is no text of this sort in the U.K. as far as I know.

 
[Eugene Volokh, 9/19/2003 08:01:32 AM]
"Great Prince Michael" v. United States: Begging to Differ has the scoop on this amusing bit of insane litigation.

 
[Eugene Volokh, 9/19/2003 07:21:56 AM]
Jim Lindgren's criticisms of John Lott: InstaPundit quotes them (they were originally up on Tim Lambert's site, which is mostly devoted to criticisms of Lott), and I think they definitely need to be considered.

     I have not focused closely on the Lott controversies, either the one about the 1997 study or about Ayres & Donohue's response to More Guns, Less Crime (I'll definitely need to focus on the Ayres & Donohue work before I next teach my firearms regulation seminar, but since I've generally not relied on the core thesis of More Guns, Less Crime in my work, I have the luxury of being able to set that aside until then). Still, Lindgren is a very smart guy who knows a lot about quantative scholarship, and who to my knowledge has no axe to grind on this; remember that he was the most prominent critic of Michael Bellesiles. People who are interested in the More Guns, Less Crime debate should definitely take Lindgren's views seriously.

 
[Eugene Volokh, 9/19/2003 07:07:52 AM]
Vik Amar on the California recall: A thoughtful and careful op-ed, again by a liberal who disagrees with the Ninth Circuit decision.

 
[Eugene Volokh, 9/19/2003 06:50:08 AM]
"There's always some other business model": One argument I’ve often heard against intellectual property is that “there’s always some other business model.” If you can’t make money selling the work, because people can copy it for free, no problem: You just need to find some other way to make money -- tie-ins, product placement, and so on.
For instance, say that virtually all TV viewers start using a hypothetical new technology that lets them watch all programs (cable or broadcast) for free, and lets them seamlessly skip commercials. Pro-I/P argument: This will mean much less incentive to create new works, and thus much less new TV programming. Anti-I/P argument: No problem; there’s always some other business model. Shift from advertising and pay TV to, say, product placement (advertising Coke by having Coke cans appear as props in the show, or praise of Coke appear as part of the dialog) -- that will provide the revenue needed to make people invest in making more programming.
This argument does have some merit, in rebutting the extremist pro-I/P argument that “If it weren’t for intellectual property, we’d have zero new works being created.” Like most predictions that contain the words “zero,” “always,” or “never,” this is bunk: Some people will find some ways to make some money from the works even without intellectual property, and others will do it without a profit motive (consider blogs, for example). The extremist argument has always been hyperbole, not reality.
But this leaves the moderate pro-I/P argument that “If it weren’t for intellectual property, we’d have much less investment in new works” -- and the “there’s always some other business model” argument isn’t really much of a response to that.
1. How effective will the other business model be? To begin with, the other business model might be able to raise a lot less money than the intellectual property model can. I’m not an advertising expert, but my sense is that product placement isn’t effective for all products; and when it is effective, it isn’t as effective as traditional advertising. One piece of evidence for that: While some product placement is going on, most advertisers still prefer traditional advertising. If product placement were that cost-effective, then we’d probably (not certainly, but probably) be seeing a lot more of it.
Right now, there are several possible income streams for television: For instance, advertising, subscriptions, product placement, charitable funding, and on-air fundraising from viewers. If advertising and subscriptions are no longer options, the other streams may provide some revenue. But there’s no reason to think they’ll provide anywhere near as much. The result may be much less investment in production of original TV programs.
2. What will be the side effects of the business model? But even if product placement will provide enough revenue to produce some TV programs, how will those programs be different from the current ones? Upside: They won’t be interrupted by commercials (since those will be pointless). Downside: Their content will have to change considerably -- plots will start revolving around products; the decor will be changed to contain more products; production investment will shift to those sorts of shows that offer more product placement opportunities.
And consider a particular kind of show: TV news. Do you really want product placement in TV news? Perhaps there’s a bit of it going on in some situations, though my understanding is that such coverage-for-advertisers deals are still considered unethical in news shows. But if advertising and subscription revenue are no longer options, and product placement is pretty much the whole game, such product placement will become routine; news programs will cover those “news” stories that benefit some company (either a company that’s being positively covered, or a leading competitor of a company that’s being negatively covered) that’s willing to pay them. Hey, it’s a business model. It’s just not one that’s very good for viewers.
(Incidentally, I understand that many TV news programs already lose money for the network, but the network is willing to fund them to preserve its reputation, or because of social or government pressure. But that will become much harder if advertising and subscription revenues dry up, and the programs start losing much more money.)
3. Would we buy this argument for other products? Say that lots of people are shoplifting from a store, to the point that others are starting to think that it’s OK to steal from stores. We could tell the store owner: “Don’t whine to us about that, or demand government intervention to protect your supposed property rights; choose another business model that isn’t harmed by shoplifting! Start carrying only promotional goods with lots of logos, which some advertisers will pay you to carry. Or just rely on the voluntary contributions of paying customers. In any case, come up with something, don’t demand government help in the form of police or courts.”
I don’t think we would, because we’d realize that (1) the other business models may be much less effective, and if stores have to shift to those models, there’d be many fewer products sold, and (2) the other business models may have undesirable side effects, for instance that consumers could only get goods with product placement (promotional slogans), since those are the only goods that stores will be able to carry. Rather, we’d think that the store owner should be protected by the government -- by having the legal system enforce property law -- from consumer infringement of its property rights.
Now of course one can argue that tangible property is different from intellectual property, for instance because it’s nonrivalrous; I won’t get into that debate now. But the store example shows that the argument that “there’s always some other business model” doesn’t really carry independent weight. Once you conclude that the seller has no legitimate property right in some kind of property (whether television programs or clothing), you can then pooh-pooh its claims by saying “there’s always some other business model.” But what’s doing the work in that argument is your initial rejection of the seller’s property right claim -- not your argument about other business models.

     Now, back to work. I'd been meaning to write this for several days, but I had to get my Houston Law Review piece out the door (incidentally, it's on Freedom of Speech and Intellectual Property). Now I've got to get cracking on my crime-facilitating speech article. I might blog a few follow-ups to this post, but probably very few.

 
[Eugene Volokh, 9/19/2003 06:18:24 AM]
The headline: "Married Gay Canadian Couple Barred From U.S.".

     The reality (which, to the New York Times's credit, appears in the very first paragraph): "A married gay couple on their way from Canada to a human rights conference in Georgia were not allowed to enter the United States today because the two men insisted on filling out a single Customs clearance form declaring themselves a family." In the next paragraph, one of the partners is quoted as saying: "We could have gone in as single individuals, signed two forms, but to do that would be an affront to our dignity and human rights."

     So, no, the U.S. isn't excluding married gay couples. I doubt that it would even require them to mark the "Single" box rather than the "Married" box. It's just not accepting joint customs forms from same-sex couples, pursuant to U.S. marriage law. Maybe the result is bad (as I've mentioned before, I tentatively support recognition of gay marriages, both foreign and domestic, though I think that should happen through the political process, not judicial decision or low-level administrative fiat). But "Married Gay Canadian Couple Barred from U.S." doesn't quite capture the result.

     Writing headlines that are short, attention-grabbing, and at the same time honest is hard; a headline will necessarily omit some key elements, and perhaps the Times headline writers did the best they could. Still, this is a reminder that the first impression one gets from a headline -- which, unfortunately but inevitably, is all that many casual skimmers read and remember -- can be pretty unreliable.

 
[Eugene Volokh, 9/19/2003 04:26:12 AM]
A warning to prosecutors: In United States v. Cruz-Garcia (decided Wednesday), the Ninth Circuit set aside a conviction on the grounds that the court wrongly excluded possibly exculpatory evidence.

     The defendant was being prosecuted for drug dealing; his defense was that he wasn't involved, and the only one in on the crime was his brother-in-law, Meza-Castro (who had already pled guilty). The prosecution's argument was that Meza-Castro was too dumb to commit this crime himself; the defense wanted to rebut this by introducing evidence of Meza-Castro's past crimes, which tended to show that he was a savvier operator than the prosecution suggested, but the trial court excluded the evidence on complicated (and erroneous) grounds. The court, in an opinion by double-Volokh-employer Judge Alex Kozinski, reversed the conviction, and in the process said this in footnote 5 (paragraph breaks added):

We need not decide whether the prosecutor here committed misconduct, though we do find the circumstances troubling. Our doubt about the prosecutor’s behavior stems from the interaction of two circumstances, each of which might well have been appropriate, standing alone.

First, the prosecutor argued against admission of the 404(b) evidence, as he was perfectly entitled to do. While we find this argument unpersuasive, it was not frivolous and the prosecutor had every right to make it.

Second, however, the prosecutor argued to the jury that Meza-Castro was too dumb to carry out the crime by himself. This too would have been entirely appropriate, had the jury been told the details of Meza-Castro’s prior drug dealings; the prosecutor might then have argued that the prior transaction was far different and therefore did not refute the “box of rocks” hypothesis.

But, having argued to exclude this evidence, the prosecutor found himself in a position of having information the jury did not. In such circumstances, the prosecutor must be particularly careful not to argue to the jury inferences he knows to be untrue in light of the evidence excluded. See United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993).

To put the matter in its simplest form, the prosecutor here argued that Meza-Castro was too dumb to deal drugs on his own. Yet the prosecutor well knew (as the jury did not) that Meza-Castro had done precisely that. This is closer to the line than we like to see prosecutors get.

Kojayan, incidentally is another Judge Kozinski opinion that berates a prosecutor in very strong terms for what the court saw as pretty egregious misrepresentations.

Thursday, September 18, 2003

 
[Eugene Volokh, 9/18/2003 06:57:33 PM]
"People from every planet": Pretty amusing little stumble, reported by the San Francisco Chronicle (thanks to Clayton Cramer for the pointer):

"My vision is to make the most diverse state on earth, and we have people from every planet on the earth in this state. We have the sons and daughters of every, of people from every planet, of every country on earth," he said.

(No, I'm not trying to make a political statement here; everyone makes mistakes -- I just think this one really is pretty funny.)

 
[David Bernstein, 9/18/2003 10:18:12 AM]
Constitution Day: Yesterday was Constitution Day, and former SG Walter Dellinger gave a wonderful Kenneth Simon Lecture at the Cato Institute arguing that economic liberty is constitutionally inseparable from other forms of liberty protected by the Fourteenth Amendment's Due Process Clause. He noted that in Griswold v. Connecticut, Justice William O. Douglas, trapped by the New Dealers' unwillingness to recognize unenumerated fundamental rights for fear of being accused of resurrecting Lochner, instead came up with his ridiculous "penumbras and emanations" opinion. That opinion, combined with the Court's unwillngness to engage in even token protection of economic rights, has helped discredit modern substantive due process jurisprudence as illegitimate judicial activism via which the Justices read their personal predilections into the Constitution.

The appropriate response, Dellinger argued, is to return to to the reasoning of Lochner era cases like Meyer v. Nebraska and Pierce v. Society of Sisters, where the Supreme Court protectd fundamental unenumerated rights without distinguishing between economic and civil liberties. Not surprisingly, Dellinger disclaimed interest in wanting to revive Lochner itself, which he argued gave too little deference to the states' police power. Dellinger could have, but did not, note that Justice Harlan's concurring opinion in Griswold was much along the lines he advocated, going so far as to favorably quote Allgeyer v. Louisiana, a case typically considered an important precursor to Lochner. Justices Kennedy and Souter, moreover, have been moving the Court toward the Harlan approach and away from the "privacy" approach that dominated Griswold and Roe. Dellinger pointed out that there are hints of a revival of constitutional protection for economic liberty in Kennedy's Eastern Enterprises opinion and in the Court's recent punitive damages opinions.

I found myself in agreement with almost everything Dellinger said, and found that his arguments well complement my historical findings in my forthcoming Georgetown Law Journal article, Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism. In that piece, I argue that the Lochner Court was motivated by a desire to protect fundamental rights from unreasonable government regulation, not, as some have argued, by hostility to so-called "class legislation." Exhibit A is Meyer Pierce, and other "personal liberties" opinions of the 1920s and early 30s, all of which are easily explainable via fundamental rights analysis, but neither for which easily fit the claims of those who attribute Lochnerism to a desire to quash class legislation.

 
[Jacob Levy, 9/18/2003 10:13:26 AM]
TNR follow-up: My TNR column has elicited responses via e-mail and in the blogosphere that I'm going to divide into three. I promise to respond to each of the three (though not to every individual e-mail that makes one of these kinds of arguments).

1) The situations I'm describing aren't really exploitative at all, because the policy they support is to everyone's benefit. To use a language that my correspondents haven't been using: the policies I'm describing are paternalistic, not exploitative, because they coerce individuals in those individuals' own interests.

2) In the particular case of the Wall Street Journal editorial, what people were complaining about wasn't what I said they were complaining about. They weren't complaining about the proposal to exploit working-class people by keeping them in the pool of income-taxpayers unnecessarily. Rather, they were complaining about the dishonesty involved in an exclusive (and unstatedly exclusive) attention to income taxes, when in fact the poor pay a lot of taxes in general, and hefty payroll taxes in particular. As Kevin Drum puts it:

Between sales taxes, excise taxes, property taxes, and payroll taxes, the poorest 20% of Americans pay about 18% of their income in taxes. You can quibble with the exact numbers, but it's plain to everyone that the poor, in fact, are already pretty heavily taxed.

That's the reason for liberal outrage against the Journal's egregiously dishonest argument, and it's a very down to earth one. The WSJ editorial page is written by very smart, very well informed people, and since they know the real tax burden on the poor perfectly well, it is only their distinctively radical brand of intellectual dishonesty that allows them to pretend otherwise.

Low (or nonexistent) federal income taxes on the poor are the only thing that keeps the American tax system from being downright regressive, let alone flat.

See also: Kieran Healy. (I'm not responding to their critiques in this post, but I will-- and I want to emphasize that I always take Kieran and Kevin both very seriously, and won't be brushing this criticism aside, though I do think there's something to be said. See also: He Who Must Not Be Named, and my old Brown buddy Aaron Schatz.)

3) Russell Arben Fox's communitarian critique, which prompted a comment from Nate Oman and a follow-up from Russell.

Over the course of the day-- or maybe the next two days-- I promise to respond to all three. Let me start with the first.

The clearest example of why this critique won't stand is conscription. One may be able to make Fox's move of characterizing the community as a morally final end in itself, making the reliance on the sacrifices of some of the community's members non-exploitative. But one can't smuggle that in to an ostensibly individualistic story about paternalism and enlightened self-interest. The fact that it is in society's interest as a whole to win a particular war does not make it in the interest of some particular 18-year-old able-bodied male to be involuntarily killed-- even though he is a member of that society, and would rather see the war won than lost.

Similarly, "we" may all have an interest in a well-educated populace; and I'll grant arguendo (but only arguendo) that this requires a well-funded state schooling sector with a broad base of political support. But that interest of "ours" doesn't affect the balance of interests for either of the kinds of exploited children I mentioned: the academically capable child or the child of highly-motivated parents who could otherwise have gotten a voucher and a better education but is kept in a failing school because she creates educational beenfits for the less-fortunate child sitting next to her, by her very presence; or the child kept in the state sector in order to increase his parents' attachment to the state sector, and so preserve that sector's political base. "Our" interests don't translate into each person's interests, taken one at a time. (I'd say something about utilitarianism and the separateness of persons here, or about the fallacy of division, but there may unavoidably be so much jargon in my response to Russell that I'll try to keep it out of this post.) Something can have benefits that outweigh its costs, in other words, but still unfairly concentrate its costs, so that the person who bears them does not receive commensurate benefits. This makes the policy [at least potentially] exploitative, not paternalistic.

Finally (on this point): taxation. Everyone receives benefits from the state that income taxes make possible. Therefore, a person cannot be exploited by paying taxes to support that state. (I've received several e-mails of this character.) Here there are two considerations to keep in mind. One is that it's not somehow automatically the case that every person is a net beneficiary of the political system as a whole, even compared to its complete absence. (The innocent person wrongfully executed, to take an extreme case.) The second (and this is going to be part of my response to Kevin as well) is that it's sometimes reasonable to consider each component of a system, taken one at a time, and not to treat as the only available alternatives "the status quo" and "the complete absence of the present system." So the question is not whether the working-class income-taxpayer is worse off than he or she would be in the complete absence of any taxes and any state. The question is whether he or she is worse off than there is any need for him or her to be, in terms of his or her own interests, because he or she has been kept in the pool of income-taxpayers for political rather than for revenue purposes. Assume that the 2003 round of tax cuts took the shape they did in part because Karl Rove believed something like what the Wall Street Journal wrote-- that it was, in the long term, politically self-destructive to drop still more working-class people from the income-taxpying rolls, no matter how marginal the loss of revenue would be or how much more politically palatable it would have made the tax cuts in the immediate term. Comparing two possible states of affairs-- the 2003 tax cut as it was and a different 2003 tax cut that relieved another few million people at the bottom of the scale from paying any net federal income taxes at all-- neither includes the collapse of the state and all that it provides. One involves taxing poorer people more than the other does. That might be so because the policymakers believe in good faith that incentive effects are more important at the top of the income scale, that working-class tax cuts are merely Keynesian-stimulative whereas supply-side tax cuts increase the economy's permanent growth potential. But if instead it's so because of reasons like those the WSJ offered-- and I think it's usually safer to assume Rovian electoral calculations than to assume any coherent principled belief at all when it comes to the administration's domestic and fiscal policymaking-- then the people kept on the tax rolls are there for partisan gain, not for their own benefit.

Remember: still bracketing Russell's argument, which doesn't proceed in terms of benefits to individuals taken one at a time. If our concern is with persons taken one at a time, then we can't slip from benefits to the community as a whole to the conclusion that the provision of the policy isn't exploitative of those who bear its costs. The policies may be justifiable; indeed, I think that one can't have a politics wholly free of utilitarian calculations that override the separateness of persons (sorry 'bout that), sometimes unfairly concentrating net costs on some people. But we shouldn't pretend that those persons have actually benefitted, individually, and that the approach that's been taken toward their interest has been paternalistic rather than exploitative.

Parts 2 and 3 to come.

 
[Eugene Volokh, 9/18/2003 07:43:18 AM]
Patriot Act library subpoena power never used:

The Justice Department, which has repeatedly been accused of encroaching on civil liberties in its war on terrorism, has never actually used a controversial provision of the USA Patriot Act that allows it to seek records from libraries, bookstores or other businesses, according to a confidential memo from Attorney General John D. Ashcroft.

Ashcroft said in the memo to FBI Director Robert S. Mueller III that he had decided to declassify that previously secret information because of his "concern that the public not be misled about the manner in which the U.S. Department of Justice, and the FBI in particular, have been utilizing the authorities provided in the USA Patriot Act.

"The number of times [the provision] has been used to date is zero," Ashcroft said in the memo, which was obtained by The Washington Post. . . .

Section 215 of the Patriot Act, a law approved six weeks after the Sept. 11, 2001, attacks, expands the government's power to obtain records from a wide range of businesses as part of a counterterrorism investigation, without notifying the subjects of the probe. The potential use of the provision in libraries has generated some of the strongest objections to the law.

In reversing his position, Ashcroft told Mueller that the value of disclosing the information outweighs the potential harm to national security. Justice officials have long resisted releasing the information, saying the threat of the provision's use poses a deterrent to potential terrorists. . . .

Ashcroft's disclosure does not address how investigators have used other parts of the sprawling Patriot legislation. Justice officials have indicated in previous responses to Congress that top-secret National Security Letters used by the FBI are a "more appropriate tool" for obtaining business records in many cases. Scores of such letters have been used since the Sept. 11 attacks, sources have said. . . .

     This doesn't, of course, completely respond to the arguments of the Patriot Act critics; the provision is on the books, and the Justice Department remains free to use it -- and perhaps if the political objections to it were less, the Department would indeed use it more. If you think the provision is improper, then there's still reason to object to it. Still, the information that, despite of all the fuss (or perhaps because of all the fuss) the provision actually hasn't been used at all seems relevant to claims about whether or not the Patriot Act has really much changed things.

 
[Eugene Volokh, 9/18/2003 07:17:13 AM]
Constitutional rights and postponing elections: I've blogged quite a bit about the practical problems that might be posed by the postponement of the election. Some people, on the other hand, have argued that where constitutional rights are at stake, we have to ignore these practical concerns (at least unless they're truly immense). After all, if the election officials set up a system that excluded black voters, wouldn't we agree that the election should be postponed until that problem is remedied?

     Well, yes, in some situations an election does need to be postponed to vindicate voters' constitutional rights. But note the nature of the asserted constitutional violation here: The supposed violation is that practical problems with punchcard machines -- the supposedly higher rate of errors, both caused by the technology and by voter confusion -- will lead voters in some counties to have a higher (by a sliver) chance of having their votes ignored than voters in other counties run.

     When the supposed constitutional wrong is that the existing plans will lead to machine error and voter confusion, then we should consider whether the remedy will in fact be materially better. So far, there seem to be good reasons to predict that the lost vote problems in the currently punch-card counties may actually increase with a shift to one of the supposedly technically better systems, given the likely glitches whenever a new system is used for the first time in a jurisdiction, and the possible problems flowing from the coupling of the unusually massive candidate list on the recall ballot (where all voters can vote for any candidate) with the primary ballot (where voters can only vote for their own party's candidates). If that's so -- if the constitutional cure is worse than the constitutional disease, based on the very same criteria (risk of lost votes) that are the supposed cause of the current constitutional violation -- then the Ninth Circuit's injunction looks pretty odd indeed.

 
[Eugene Volokh, 9/18/2003 06:24:36 AM]
Letter from the County of Sacramento Registrar of Voters to the Ninth Circuit; the full version is here, but here are some long excerpts:

. . . The Court ruling yesterday created a flood of telephone calls from voters confused about what would happen next. Many of these voters had voted an absentee ballot and wanted to know what would happen to their ballot. Voters that had not yet voted wanted to know if they should even bother to vote. Some potential absentee voters who had not yet requested, but needed to vote by absentee, wanted to know if they could or should still request a ballot. Others were calling saying they were tearing up their ballot since the election had been cancelled. Some were so disgusted with the entire election they were vowing never to vote again. The Court ruling canceling the October 7, 2003 Statewide Special Election has already resulted in more voter confusion and antipathy than would ever potentially occur as a result of the continued use of the punch card voting system at issue.

If this election is delayed until March, 2004, it is possible that Sacramento County will have insufficient ballot capacity on our optical scan card to include all 135 candidates for the recall, plus all of the Federal, State and local contests that are scheduled for the March 2, 2004, election. The optical scan system that we plan to use does not allow for multiple cards, so we could potentially need to use a second voting system to accommodate the entire ballot. This would definitely cause voter confusion. We would be asking the voter not only to use a new system, but two new systems. Voter confusion would also occur because the recall candidates are non-partisan running in a primary election. How would we explain to a Republican voter that he could vote for a Democrat in the recall contest but not for president? . . .

In conclusion, I believe that use of the PollStar system in Sacramento County for this Statewide Special Election will result in an accurate tabulation of the votes. Furthermore, any minor problems associated with the use of the PollStar system in Sacramento County for the October 7, 2003 Statewide Special Election would pale
in comparison with the potential voter confusion and antipathy that would result should the October 7, 2003 Statewide Special Election be postponed and then combined with the March, 2004 Primary Election.

Read the whole thing, as they say. Thanks to reader Kevin Murphy and to the Sacramento Bee's Daniel Weintraub.

 
[Eugene Volokh, 9/18/2003 06:08:38 AM]
Progressivity and restrictions on direct taxes: Some correspondents have suggested that Gen. Clark's claim that "this country was founded on a principle of progressive taxation" is not just mistaken, but the exact opposite of what happened: The original Constitution, they point out, prohibited federal direct taxes except when apportioned among the states by population, and this was eventually interpreted as prohibiting all federal income taxes (progressive or not). It took the Sixteenth Amendment in 1913 to undo that.

     This, though, was the rule for the federal government; states were still free to have progressive income taxes, if they wanted to. Moreover, both the states and the federal government could lay excise taxes -- taxes on the sales and, in the federal government's case, imports of goods. The state or federal government could, if it wished to, try to calibrate its excise taxes in a way that made the net effect of the tax system progressive (i.e., taxed the rich proportionately more than the poor). This actually isn't easy, because excise taxes on many goods (whiskey, tobacco, and the like) tend to hit lower middle class and middle class people proportionately more than the rich. But it was possible, for instance if the excise taxes were imposed on true luxuries, and not constitutionally prohibited.

     I certainly stand by my assertion that the country was not founded on a principle of progressive taxation. It also may well be that progressive taxation was actually uncommon at the time of the Framing (though I'm not certain about that -- it's part of my debate with Victor Fleischer, see below). But progressive taxation was not constitutionally prohibited, though the restriction on federal direct taxes (and the traditional commitment to a small and fairly week government bureaucracy, which made income taxes much harder to impose and collect) did make it harder.

 
[Tyler Cowen, 9/18/2003 05:02:44 AM]
Torturing the telemarketers: Humorist Dave Barry organized a calling campaign to strike back at the telemarketers. His August 31 column listed the phone number of the American Teleservices Association and asked his readers to call in and say what they think. Barry is syndicated in at least 500 newspapers.

Yahoo notes: "Callers now hear a recording, which says that because of "overwhelming positive response to recent media events, we are unable to take your call at this time.""

To make you feel even better, it seems that the Association had a toll-free number. Here is the column, entitled "Ask Not What Telemarketers Can Do For You."

Addendum: A reader tells me that the number no longer works at all, don't bother trying.

 
[Eugene Volokh, 9/18/2003 04:15:55 AM]
Last words attributed to French grammarian Dominique Bouhours: "I am about to -- or I am going to -- die; either expression is used."

Wednesday, September 17, 2003

 
[Sasha Volokh, 9/17/2003 11:37:54 PM]
Blogging from Vienna this week: But this post has nothing to do with Vienna. Via my friend Bert Huang, the Volochkova Conspiracy.

 
[David Bernstein, 9/17/2003 09:20:36 PM]
Medicare: Isn't the obvious way to control spiraling Medicare costs to raise the age of Medicare eligibility? Because Medicare is firmly and popularly established, it was inevitable that as drug costs became an ever-larger medical expense for the elderly, inexorable pressure would build for Medicare to cover drugs. Meanwhile, Americans are living longer and healthier lives, and work at less physically-demanding jobs. So boost the eligibility age by a year or two, which will both reduce the demands on Medicare and potentially add to the Medicare tax base as retirements are postponed, and you can add a drug benefit without busting the budget, while actually reducing the distortions Medicare causes in the American health care system.
(For that matter, I prefer raising the Social Security retirement age to schemes to privatize it. The former cuts the government much more neatly out of things. Better yet, do both.)

 
[Eugene Volokh, 9/17/2003 04:16:02 PM]
Sen. John Cornyn defends the Defense Of Marriage Act hearings: I thought I'd post a link to this letter of Sen. Cornyn's defending the Defense Of Marriage Act hearings, and criticizing some of the opponents of the Federal Marriage Amendment. A few excerpts:

Unfortunately, the hearing demonstrated that courts may be poised to strike down traditional marriage laws, and to take the issue away from the states and the American people.

Americans instinctively, and laudably, support two fundamental truths: that every individual is worthy of respect, and that the traditional institution of marriage is worthy of protection. Throughout society, individuals form personal relationships of all kinds: relationships based on common professional goals and objectives, shared interests and hobbies; relationships based on friendship, intimacy, and love. But only one kind of relationship has received such historic and multicultural elevated status in law, culture, and morality: the traditional marital union of one man and one woman. That is not because other kinds of relationships are unimportant, but rather because stable unions of one man and one woman are the strongest foundation mankind has ever known for ensuring the healthy upbringing of children. A wealth of social science research and data attest to this fact.

It does not disparage other kinds of relationships for society to recognize that children are raised best when they are raised by their mother and father. Indeed, it is difficult to imagine an institution that has enjoyed such overwhelming consensus as traditional marriage. The traditional institution of marriage has existed as such throughout human history, across numerous and diverse cultures, countries, and civilizations as well as party lines, and in the laws, judicial precedents, traditions, and historical practices of all 50 states. It was thus for good reason that the Defense of Marriage Act, or DOMA, was enacted with the support of overwhelming bipartisan majorities in both the House (342-67) and the Senate (85-14), and signed into law by President Bill Clinton. . . .

In his majority opinion for the Court in Lawrence v. Texas, Justice Anthony Kennedy asserted that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . . Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do” . . . Because of this quote and other passages in the Lawrence decision, Patricia Logue, a senior attorney at the Lambda Legal Defense and Education Fund who litigated the Lawrence case, has said that it is “inevitable now” that courts will strike down traditional marriage laws like DOMA. Similarly, Will Harrell, executive director of the American Civil Liberties Union in my home state of Texas, has reportedly expressed his belief that “the [Lawrence] decision opens to challenges the Defense of Marriage Act.” And of course, numerous groups on the left have already filed lawsuit after lawsuit, amicus brief after amicus brief, trying to take the issue of marriage away from the American people and the democratic process –- including groups like Lambda Legal Defense, the ACLU, and the People for the American Way. These groups show no signs of stopping until they succeed in convincing courts to strike down traditional marriage laws. . . .

Check out the rest of the letter as well; it's quite substantive, and worth serious attention. I actually agree with some of the points there -- for instance, I agree that it would be improper for courts to mandate gay marriage, though I doubt that the Supreme Court would indeed do that at the federal level, and that a Federal Marriage Amendment would not threaten the religious freedom of churches that want to celebrate gay marriages -- though I disagree with others (naturally including the criticism of the federalism argument).

 
[Eugene Volokh, 9/17/2003 04:09:12 PM]
"Defending Wesley Clark on Progressive Taxation": My friend and colleague Victor Fleischer, at the Tax Policy Blog, writes (some links and formatting omitted):

The blogosphere has been getting worked up about Wesley Clark's comment from 3 months ago (transcript here): "I thought this country was founded on a principle of progressive taxation."

It's true that the slogan was "No Taxation Without Representation," not "Soak the Rich." But Clark is more right than he is wrong.

The confusion has to do, in part, with the fact that a progressive income tax did not appear in the US until the Civil War (I think -- I believe one was proposed but not enacted in the War of 1812).

In the revolutionary era, the government raised money mainly through excise taxes, which are a form of consumption tax. And consumption taxes are --- at least compared to poll taxes or head taxes, where every adult pays the same amount --- quite progressive. After all, the rich consume more than the poor.

The Federalists and Anti-Federalists argued about whether the national government should have the power to tax --- under the Articles of Confederation, it did not. The Federalists won this fight, in part by reassuring doubters that the new tax system would burden the rich more than the poor. I quote from the Federalist Papers (No. 21):

Imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. The rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions.

Granted, the Federalist era fight was mostly about rich states vs. poor states. But Hamilton is right that the consumption taxes are by their very nature somewhat progressive (assuming, as was often the case, than the goods taxed are luxuries rather than necessities).

What General Clark should have said -- and indeed the idea he probably intended to convey -- was that this country was founded on the principle that the rich should pay their fair share and that the burden of taxation should not fall disproportionately on the backs of the working poor.

I appreciate Victor's point, but I'm not sure it goes that far to support Clark's statement. I'm sure that the Framers, alongside everyone else, thought that everyone "should pay their fair share" of taxes. But I don't think that the Federalist quote shows that the Framers' view of taxation was that the rich should pay a higher fraction of their income or wealth than the poor. My sense is that some excise taxes ended up burdening the average rich person materially more per dollar of wealth or income than the average poor person, and others didn't; I'm unaware of any commitment to burdening the rich more per dollar.

     But beyond this, I'm still quite skeptical that the country was founded on a principle of progressive taxation -- something that suggests that progressive taxation was a core premise of the Framers' shared agenda, or at least an important part of it. Opposition to monarchy and aristocracy, defense of private property, the free press, no taxation without representation, and the like were principles on which our country was founded. Progressive taxation, it seems to me, wasn't it, even if some people tended to support it.

 
[Eugene Volokh, 9/17/2003 03:48:20 PM]
Blog entry cited in brief: Check out Ted Costa's Brief in Support of En Banc Review, just filed before the Ninth Circuit, pp. 14-15 & n.5:

As a result, the Panel’s decision will actually force millions of
California voters to decide the recall and Propositions 53 and 54 questions next March using voting systems that most likely are substantially less reliable than the ones that will be used in other counties and that are currently available. See 1 SER 11-15; Henry Weinstein, Appeals Court Orders Delay of Recall, L.A. TIMES, Sep. 16, 2003, at A1 (“‘It’s more than a wrinkle,’ said Los Angeles County Registrar-Recorder Conny McCormack. ‘No one even asked the largest county in the state if we had the capacity to run it in March. The answer is no.’”). [5]

[5] See also Howard Bashman, Meet hanging chad’s relatives, scribbled oval and hacked touchscreen, (Sep. 15, 2003), Eugene Volokh, California Recall and Technology (Sep. 15, 2003); Jim Drinkard, “Punch cards are as good as any system”, USA TODAY, Sep. 16, 2003, at A2; Cliff Swett, Voting devices’ security at issue, SACRAMENTO BEE, Sep. 7, 2003 at D1.

Woohoo! Made the big time (OK, medium time). Hope the judges don't figure out just how little authority blog posts ought to have.

 
[Jacob Levy, 9/17/2003 02:33:09 PM]
But cf: I won't be able to write a suitable reply until tomorrow at the earliest, but I didn't want to wait before drawing your attention to Russell Arben Fox's long, thoughtful comment-on-and-in-part-critique-of my TNR column. It's very good and much appreciated-- and Russell and I remain very, very far apart in some of our core animating assumptions. But we knew that already...

 
[Jacob Levy, 9/17/2003 08:33:51 AM]
Political theory news: I'll just pass this along without comment, as I know too many of the people involved. Peter Berkowitz's lawsuit against Harvard for his tenure denial six years ago has been rejected by the Massachusetts Supreme Judicial Court, and is now over. (Berkowitz, as many reades know, was denied tenure in the Government department along with another political theorist, Bonnie Honig. Her tenure denial prompted public protest by many of Harvard's most prominent tenured women faculty members, and coverage in the Times. He's now at George Mason Law, and so a colleague of some of my co-bloggers. She's now at Northwestern.)

 
[David Bernstein, 9/17/2003 08:26:30 AM]
Dow-burt: Did you know that the proper pronunciation of the Daubert case is Dow-burt? I did, but I often hear attorneys refer to it as Dough-bear. Here is an amusing satire (at least for those familiar with the case) on the pronunciation issue.

 
[Jacob Levy, 9/17/2003 08:23:28 AM]
New: My new New Republic column is online. It's my most contrarian to date.

 
[Eugene Volokh, 9/17/2003 08:12:35 AM]
Brie, caramelized onions, and smoked salmon quesadilla: I, like Josh Chafetz, am a big fan of smoked salmon, but I want to suggest a slightly different recipe, of my own devising (though building on others' recipes, of course), for a brie, caramelized onions, and smoked salmon quesadilla:

1. Fry some onions in butter until they're dark brown.



2. Layer the onions on a large tortilla.



3. Add smoked salmon; even the lox trimmings that one can get pretty cheaply work well for this.



4. Add thinly sliced brie, enough to more or less cover the onions and the salmon.



5. Cover with another tortilla.



6. Fry or bake until the brie melts.

The ratios of the ingredients are entirely up to you. Keep in mind, though, that onions reduce considerably in volume (as well as improving vastly in taste) as they caramelize.

     And, yes, I know it's foofy -- untraditional -- perhaps even metrosexual. But it's tasty.

 
[Eugene Volokh, 9/17/2003 07:58:15 AM]
"The art of losing": Will Baude quoted this poem by Elizabeth Bishop, which I much enjoyed (though the closing stanza didn't work as well for me as the rest):

The art of losing isn't hard to master;
so many things seem filled with the intent
to be lost that their loss is no disaster.

Lose something every day. Accept the fluster
of lost door keys, the hour badly spent.
The art of losing isn't hard to master.

Then practice losing farther, losing faster:
places, and names, and where it was you meant
to travel. None of these will bring disaster.

I lost my mother's watch. And look! my last, or
next-to-last, of three loved houses went.
The art of losing isn't hard to master.

I lost two cities, lovely ones. And, vaster,
some realms I owned, two rivers, a continent.
I miss them, but it wasn't a disaster.

--Even losing you (the joking voice, a gesture
I love) I shan't have lied. It's evident
the art of losing's not too hard to master
though it may look like (Write it!) like disaster.

 
[Eugene Volokh, 9/17/2003 06:49:49 AM]
Bruce Ackerman criticizes Ninth Circuit's suspension of recall: A generally well-reasoned piece (though more so when criticizing the Bush v. Gore analogy and stressing the disruptiveness of the decision than when arguing that the decision itself violates people's First Amendment rights), and one that's especially persuasive because Ackerman is a fierce critic of Bush v. Gore, and generally on the Left (conventional wisdom is that the suspension of the recall helps the Democrats, and hoists the conservatives on their own Bush v. Gore petard). Thanks to InstaPundit for the pointer.

 
[Jacob Levy, 9/17/2003 05:38:23 AM]
For those who "do not know the way:" Heh.

UPDATE: Victor M. Muniz-Fraticelli writes:

I enjoyed the link to the Tolkien/Mapquest parody. But did you notice the horrible Tengwar usage? I can only assume that the author of the page intended to write "Mapquest" at the top left corner of each map, but wrote "Napqest" instead.

Although the Tengwa letter "númen" ("n") looks most like the Roman "m", it is not used for "m" in any language I know. The correct letter would be "malta", which has the loops closed by a horizontal line. Also, since the "u" in "Mapquest" is phonetic, it should be expressed by a left-curling tehta (diacritic). Depending on the mode that is followed, the following "e" could be noted with a dot under "qesse" ("q"), or placed on a carrier following the "q". The most common English mode is described here:
http://www.omniglot.com/writing/tengwar_eng.htm.

It was still a very funny page, though.

So noted...

 
[Tyler Cowen, 9/17/2003 05:16:05 AM]
The logic of suicide terrorism Here is a new and interesting paper on the logic of suicide terrorism, by Robert Pape of the University of Chicago, thanks to Daniel Drezner for the link. The bottom line: suicide terrorism has increased, over the last twenty years, because it has proven effective in winning territorial concessions. Pape looks at a wide variety of cases, including the Middle East and Sri Lanka. Improve domestic security Pape says, offensive military action rarely works in the long term. Like Drezner, I am not sure that Pape's conclusion follows from the evidence, but this is the best work on the topic I have seen.

 
[Eugene Volokh, 9/17/2003 03:11:18 AM]
Fish: I had some tasty fish for dinner tonight, here in Boston, and this reminded me of the old joke: A man is on his first visit to Boston, and he wants to try some of that delicious New England seafood that he'd long heard about. So he gets into a cab, and asks the driver, "Can you take me to where I can get scrod?" The driver replies, "I've heard that question a thousand time, but never in the pluperfect subjunctive."

Tuesday, September 16, 2003

 
[David Bernstein, 9/16/2003 10:51:34 PM]
Class Actions: Alex Tabbarok is unhappy about being involuntarily dragooned into a class action lawsuit against Firestone. He says he wasn't injured because Firestone replaced his tires for free (though wasn't that a big inconvenience?), but he doesn't link to the complaint, so it's not clear exactly what "his" attorney alleged. Alex's most interesting point is that elected state judges tend to discriminate against out of state class defendants. I'm in favor of federalizing class actions partly for that reason, though only if there is at least partial diversity (an out of state plaintiff or defendant)--my understanding, and correct me if I'm wrong please, is that class action reform legislation pending before Congress would move to federal court even class actions where all parties reside in-state. Such lawsuits are none of the federal government's business.

 
[David Bernstein, 9/16/2003 09:28:22 PM]
Property Rights Lesson: Quote from a typical abuser of New York's anti-landlord legal system: "If I lose this apartment, I leave New York. Why should they lose me just because the rabbi wants this apartment for his own use?"

Umm, how about because the Rabbi owns the apartment? And I, for one, think New York would be much better off without you.

Thanks to my friend Rob Lax for the pointer.

 
[Randy Barnett, 9/16/2003 08:59:34 PM]
Fcuknig amzanig: Perhaps others have seen this floating around the internet, but it is a first for me:

Aoccdrnig to a rscheearch at Cmabrigde Uinervtisy, it deosn't mttaer in waht oredr the ltteers in a wrod are, the olny iprmoetnt tihng is taht the frist and lsat ltteer be at the rghit pclae. The rset can be a total mses and you can sitll raed it wouthit porbelm. Tihs is bcuseae the huamn mnid deos not raed ervey lteter by istlef, but the wrod as a wlohe. Fcuknig amzanig huh?

 
[Randy Barnett, 9/16/2003 05:53:07 PM]
Reader Reaction Pours In: A reader reacts to my earlier post concerning the Volokh-Solum debate over water wells:

Your discussion of the Volokh-Solum intellectual property debate is all wet. What is the liquidity of this market? Will prices be manipulated via wash sales? Won't static incentive effects be drowned out by waves of creative destruction nothwithstanding efforts to dampen fluctuations by pumping money into the system? How strong will trickle down effects be?

The last question is my favorite.

 
[Eugene Volokh, 9/16/2003 02:27:58 PM]
Interesting historical assertion: Words from Wesley Clark, General and now Democratic Presidential candidate, on Meet the Press, June 15, 2003 (emphasis added):

The Bush tax cuts weren't fair. The people that need the money and deserve the money are the people who are paying less, not the people who are paying more. I thought this country was founded on a principle of progressive taxation. In other words, it's not only that the more you make, the more you give, but proportionately more because when you don't have very much money, you need to spend it on the necessities of life.

     Somehow I slept through the class session in American History where they explained just how the country was founded "on a principle of progressive taxation." "No Taxation Without Progressivity," was that the big slogan? (Thanks to Dan Gifford to the pointer; I should also note that columnist Walter Williams also made the same observation shortly after the Clark speech, and I'm sure many others did, too.)

UPDATE: Reader Paul Stinchfield found the full remarks, and passed along the link to me, so I'm passing it along to you.

 
[Jacob Levy, 9/16/2003 01:43:52 PM]
"But are you using protectionism?" I may yet have to vote for Lieberman, or at least write him a check.

As the Associated Press reports, on Monday Lieberman told AFL-CIO leaders that he would not back down from "talk [ing] straight" to them--Lieberman has, in recent weeks, been affirming his support for trade agrements, which contributed to much of the prosperity of the 1990s. "Of all the candidates, I'd say, I've had the guts to stand up before audiences and not tell them all they want to hear," Lieberman said Monday, according to the AP. "You're not going to help the American economy by putting a wall around America."

While we're on the topic of trade, see this Geitner Simmons post.

Some of the developing countries that led the fight against the United States and the EU on the farm subsidy issue are themselves guilty of heavy protectionism against fellow developing countries -- in some instances, against their very neighbors.

UPDATE: Lieberman link fixed to go to the story it was always supposed to go to. Thanks to Will Baude for the catch.

 
[Eugene Volokh, 9/16/2003 11:43:37 AM]
Six suspected Americans are apparently being held in attacks against American soldiers in Iraq:

U.S. forces are holding six people who claim to be Americans and two who say they are British for alleged attacks against coalition troops in Iraq, an American general said Tuesday. . . . .

Thanks to Eric Muller (IsThatLegal?) for the pointer.

 
[Eugene Volokh, 9/16/2003 11:01:52 AM]
Q minus 7 days. And I have an airplane flight next Tuesday, on which I can start this. Woohoo!

 
[Eugene Volokh, 9/16/2003 10:57:59 AM]
More on the California recall: This is from an anonymous reader, for whom I cannot vouch; but it seemed plausible, and I thought I'd pass it along for whatever it's worth:

The day after the [Florida] voting snafu in 2002 our state's elections office was conducting a review of the same equipment that was used in [Florida]. The vendor gave us a lot of inside scoop that I can't repeat here.

However, it is important to note that many other counties in [Florida] had exactly the same (new) equipment for the same amount of time prior to the election. Only Broward and Dade had problems. The snafus were a direct result of mismanagement in the county elections office, specifically lack of training for poll workers.

And, it might be noted, these are the counties that were supposed to benefit the most (!) from the electronic equipment because punch card devices were so "unreliable."

So I think your conclusion is exactly spot-on. If they can't handle punch cards (please!) they won't be able to work with electronic devices, either. Most of the problem with ANY election is in the elections office, and how they prepare the voters for the election.

 
[Randy Barnett, 9/16/2003 10:02:31 AM]
Hear me speak at Boalt Hall I will be talking about the medical cannabis case on Wednesday, September 17th at 4:30pm at Boalt Hall School of Law at Berkeley if any readers of Conspiracy want to drop by to listen. The talk is being sponsored by the Boalt Hall chapter of the Federalist Society.

 
[Jacob Levy, 9/16/2003 09:29:13 AM]
Surprise, surprise: CNN is reporting that Wesley Clark is in.

 
[Eugene Volokh, 9/16/2003 08:09:32 AM]
"Canadians Pan Government-Backed Marijuana": According to this AP story,

Some of the first patients to smoke Canada's government-approved marijuana say it is "disgusting" and they want their money back.

Health Canada, the federal health department, started selling marijuana in July to bring relief to patients suffering from AIDS, cancer and other diseases. The move followed a court order that patients should not be forced to get their marijuana from drug dealers on the streets.

But some of the first to buy the government's marijuana say it is no good.

"It's totally unsuitable for human consumption," said Jim Wakeford, 58, an AIDS patient in Gibsons, British Columbia.

Wakeford and Barrie Dalley, a 52-year-old Toronto man who uses marijuana to combat the nausea associated with AIDS, are returning their 1-ounce bags, and Dalley is demanding his money back -- about $195 plus taxes. Wakeford is returning his unpaid bill for two bags with a written complaint. . . .

No patients have complained directly to Health Canada so far, spokeswoman Krista Apse said, and the department will not accept returns or provide refunds. . . .

 
[Eugene Volokh, 9/16/2003 07:37:13 AM]
Neal Stephenson's Cryptonomicon: I just ran across a student of mine who was carrying this book -- he's much enjoying it. Upside: Yet another person who recognizes what an amazingly kick-ass book Cryptonomicon is. Downside: If second-year law students are faced with the choice between reading their First Amendment textbook and reading Cryptonomicon, I'm afraid I can guess which they would choose . . . .

 
[Eugene Volokh, 9/16/2003 07:04:37 AM]
Don't believe everything you read: An otherwise good Roll Call article on the Abourezk "traitor" lawsuit (see here for an excerpt) quotes me as saying

Law professor and First Amendment specialist Eugene Volokh, who has joined an amicus brief filed on Marino’s behalf, calls it "one of the 99 percent of all cases that will never be assigned a precedent," arguing that the case covers "settled law" on free speech.

What exactly does "assigned a precedent" mean, you might well ask? I have no idea. I've never heard such a phrase used, and though I know I misspeak as often as the next person, it would amaze me if I misspoke in this particular way: I just don't see how I would have used the verb "assigned" here.

     My strong suspicion is that I said "will never be cited as precedent," because it will settle or will be decided without a published opinion -- this was in a context of a discussion about what precedent the case would set, and my guess that it won't set much of a precedent because it's merely the application of settled law. The journalist, whom I've generally found to be quite good, must have misheard, and as a result misquoted. Not a big deal; I hope that most readers who realize that the phrase is wrong will realize that something might have been lost in the transcription. But it is a good reminder that even purportedly direct quotes may often be not entirely accurate.

UPDATE: I called the reporter this morning about this, and they've just fixed it on their Web site (see here, though it's subscription-only). Quick work, and much to Roll Call's credit.

 
[Randy Barnett, 9/16/2003 06:37:58 AM]
Water Wells and MP3 Files: The Economics of Intellectual Property: Check out Larry Solum's fascinating, Water Wells and MP3 Files: The Economics of Intellectual Property, his latest reply to Eugene's "water well" defense of so-called Intellectual Property. Can we call the energy expended in this debate "sunk costs"? Well, at least the argument is not yet well worn.

 
[Randy Barnett, 9/16/2003 06:31:03 AM]
Going to the Ninth Circuit: As if there was not enough excitement in the Ninth Circuit, today I am flying to San Francisco to argue the case of U.S. v. Oakland Cannabis Buyers Cooperative before Judges Schroeder, Reinhardt and Silverman on Wednesday morning. I am now to the point in my preparation where I am looking forward to it. I wish it were today. While awaiting an update on the hearing, you might want to check out my latest upload to SSRN: A draft of my article, The Proper Scope of the Police Power, which is forthcoming in the Notre Dame Law Review. Here is the abstract:

When it comes to identifying the powers of the federal government, we know where to look. Article I of the Constitution provides a list. When it comes to the power of states over their people, the issue has always been shrouded in doubt. For, though the Constitution provides a list of specific limitations on state powers along with an enumeration of certain rights, it appears to be silent on the question of the proper scope of what is called the "police power" of states.

In this article, I will contend that the Constitution is not really silent on the proper scope of state powers; that the original meaning of what the Constitution says requires that state powers over their citizens have fairly easy to identify limits--though as with most constitutional provisions, applying these limits to particular cases requires judgment and is not a matter of strict deductive logic.

This account will require me to briefly review the method of interpretation I advocate--original meaning originalism--and its limits. These limits require that interpretation of original meaning be implemented by means of constitutional constructions that enhance the legitimacy of the Constitution without violating the original meaning established by interpretation. I then examine the original meaning of the provision that provides the limit on state power: the Fourteenth Amendment. Finally I offer the construction of the scope of the police power of states that is consistent with that limitation: the police power of states includes the power to prohibit wrongful and to regulate rightful conduct of individuals.

This new paper provides additional support for my analysis of Lawrence v. Texas in my article, Justice Kennedy's Libertarian Revolution, due out tomorrow in the Cato Supreme Court Review. I was scheduled to be on a panel Wednesday at the Cato Institute's annual Constitution Day Symposium which I greatly regret having to miss due to the oral argument in the Ninth Circuit. Follow the link to watch the program in Real Video or listen in Real Audio.

 
[Tyler Cowen, 9/16/2003 06:26:39 AM]
New Sunstein book I've now finished Cass Sunstein's Why Societies Need Dissent. It is no disappointment, it offers the best discussion of the mechanics of conformity that I have seen. Recommended.

 
[Eugene Volokh, 9/16/2003 06:22:09 AM]
Recall: More on whether the "new, better machine" election in March would really be better than the "old, inaccurate machine" election in October, from the L.A. Times (via reader Kevin Murphy):

And voting officials, already struggling to produce an election on a short deadline, were handed a new problem to consider: whether combining the lengthy recall ballot with the primary in March would produce a behemoth too large for the newer voting machines to handle.

"It's more than a wrinkle," said Los Angeles County Registrar-Recorder Conny McCormack. "No one even asked the largest county in the state if we had the capacity to run it in March. The answer is no."

I don't know if this is a real problem or not, but it does sound like the sort of glitch that might well happen, especially the first time a jurisdiction uses new machines.

 
[Tyler Cowen, 9/16/2003 06:10:32 AM]
California recall postponement and game theory: Let me start by admitting, indeed emphasizing, that I have not followed the subsequent development of the California race. Nonetheless every now and then it is useful to hear a "what does theory tell us?" perspective. Here is one way of looking at what postponement could mean:

1. To some extent the recall movement may be a wave of herd sentiment. Postponement gives the sentiment more time to dissipate. This favors Davis and hurts all contenders.

2. The longer the time until the election, the stronger the pressure for non-leading Republicans to drop out of the race. It becomes clearer who the top dog is, and more of an embarrassment to run around campaigning against your fellow Republicans. This hurts Bustamante, and favors the leading Republican, if Davis is recalled.

3. Arnie is currently the leading Republican, and he survived the revelation of that naughty group sex interview. He may not stay the leading Republican if the election is in March, he now has plenty more time to slip up, or simply lose patience with a grueling ordeal. McClintock's chances had been zero, now they are greater. Yes there is more time for him to have to drop out, but also a chance to emerge as the leading Republican. The more seasoned politician will have some comparative advantage in staying the course.

Overall I pick Davis as gaining the most, Bustamante as losing ground, and McClintock as holding a new lottery ticket. It is not clear whether Arnie gains or loses.

 
[Eugene Volokh, 9/16/2003 04:36:17 AM]
More encouraging words for law students writing articles:

Just giving you more ammunition for your response to the self proclaimed "Schlep." My girlfriend at [a law school near the bottom of the top 20] did not manage to write onto law review and did not have the best grades (around a 3.0 as I recall). She went ahead and wrote an article on copyright law with a professor's guidance (I forget who). She sent it around to several schools for publication and also entering it into at least one competition. She was eventually published and won honorable mention in a competition. . . .

Monday, September 15, 2003

 
[Tyler Cowen, 9/15/2003 05:31:20 PM]
How many Iraqi lives has the invasion saved? Glenn Reynolds offers one estimate, namely 5,000 per month. Large numbers of Iraqis were dying under Saddam and the sanctions. I don't vouch for the numbers, but this is the sort of calculation that should be getting more press. And I know, you can blame either Saddam, the sanctions, or both. The bottom line is still that fewer Iraqis are dying. You can argue that no war and sanctions removal might have been better for the world (not my position), but you still should admit that the war improved on the status quo ex ante, for the Iraqis, even if it was not first best.

 
[Eugene Volokh, 9/15/2003 03:34:36 PM]
European prosecutions of U.S. soldiers: Stewart Baker, a very sharp and knowledgeable D.C. lawyer, passes along the following thoughts about the American Bar Association meeting:

For those who haven't given up on the ABA entirely, there was a moment of drama at the August meeting that will return in midwinter. If nothing else, it tells those of us who haven't given up just how much work remains to be done.

I'm active in the ABA Standing Committee on law and national security (started by Lewis Powell in the 50s). We often oppose the more extreme antigovernment resolutions circulated in the ABA, so this year we decided instead to get the ABA on record in a an area where we thought there wouldn't be much room for disagreement. We drafted a resolution saying in essence that American soldiers shouldn't be tried for war crimes in European courts. Two war crimes prosecutions were launched in Europe against US soldiers for activities in Iraq within a few weeks of the victory there. One case against Gen. Tommy Franks was filed by a leftist politician in Belgium, and there is another case in Spain against the crew of the tank that sent a round into the journalists' hotel after taking fire from the hotel's direction.

You might wonder why Belgium would think it could try Americans for things done in Iraq. The answer -- universal jurisdiction -- is a concept that has long been applied to piracy and slavery where the criminals are often captured on the high seas. Lately, the concept has been expanded to justify a remarkable degree of butting in by foreign jurisdictions. More than 120 other nations have some form of universal jurisdiction (including the US). The resolution suggested that, whatever the charms of universal jurisdiction, the doctrine also has real potential for mischief and at the least shouldn't apply when the country more directly concerned is competent to address the crime and the crime itself is open to debate in international circles.

Remarkably, the international section of the ABA didn't see any reason to rush to condemn the idea of European courts trying American servicemen and women based on legal theories that would make every errant tank round a war crime. They asked that the resolution be delayed for more consideration.

You might have thought the individual rights and criminal defense sections would have worried about political justice in hostile jurisdictions (if you thought the Washington snipers faced bad pretrial publicity, well, you should have seen what European papers said about our armed forces). You'd have thought they'd be concerned about the idea that our soldiers would be tried as criminals for act that aren't even crimes under US law -- use of depleted uranium shells, say, or dropping cluster bombs on troops. You might have thought they'd be concerned about things like a lack of crossexamination or the "inquisitorial" system of justice our GIs would face.

And, predictably, you'd be wrong. Those sections fell into line, urging that the resolution be delayed. They had some important resolutions of their own, mainly designed to make sure that al-Qaeda members get a full measure of due process. Due process for American soldiers just wasn't on the agenda. Maybe later, they said, but first things first.

Their argument for deferral was that the cases -- and the most extreme version of Belgium's law -- are going to go away without the ABA, so there was no need for the ABA to take a stand any time soon. But that argument doesn't prevent the ABA from attacking even abandoned Bush Administration proposals. And it fails to consider that the press is playing Belgium's abandonment of the case as knuckling under to illegitimate US bullying. If the ABA said that in fact the US is right and it's Belgium that was the unilateralist, the resolution would have undercut the "US overrides international law" story line. And of course, that was the problem for a lot of these lawyers. They just couldn't bring themselves to say that the US was right and Belgium wrong, to make a choice between Gen. Tommy Franks and a lefty America-hating Belgian lawyer.

These are the sections that have run the human rights resolution factory in the ABA for a generation, and perhaps what bothered them most was that someone else would have the gall to express a view on the subject. But a lot of other sections felt competent to express a view on this one. Several military sections, the administrative law section, and the Young Lawyers section signed up to be cosponsors. It's that last sponsorship I most treasure. The baby boomers that run the ABA -- as direct cultural heirs of the Vietnam antiwar movement -- have to wonder why the rising generation isn't with them (maybe they should update the old yippie slogan to "Don't trust anyone under fifty.").

It came down to a floor fight, the only real one of the session. The chair called for a voice vote. Too close to call. Then a hand vote. Still too close to call. Delegates were instructed to stand at their desks to be counted on each side. Even then, we couldn't tell. At the end of the day, the motion to delay prevailed, 114-105. Five switched votes would have won it.

But the fight's not over. The ABA establishment only won a reprieve -- a postponement of the issue. We'll be back in at the midwinter meeting. Anyone who wants to join in is encouraged to do some lobbying of their state and section delegates.

 
[Eugene Volokh, 9/15/2003 03:23:40 PM]
Just a bit more on the California recall and technology: A friend of mine writes the following; I haven't had a chance to check the facts myself (and probably won't have a chance to do so), but I'm passing this along because I've found my correspondent to be quite trustworthy on such matters:

I think that your intuition regarding problems that could occur when new voting technology is used in certain counties in California to replace the punch-card system is quite sound. In particular, I would point out the rather significant problems that occurred in the 2002 Florida gubernatorial primary in Broward County and Dade County, which was the first election after those counties stopped using punch-card ballots. For example, many polling places did not open on time because workers could not figure out how to turn on the touch-screen voting machines. Also, tens of thousands of votes were not counted at first because workers did not know how to "retrieve" votes from the machines properly. It was not until days later, after Janet Reno's campaign noticed that there were an absurdly low number of votes tallied in certain precincts, that the uncounted votes were "found" and actually tabulated. In any event, the press coverage at the time made it appear that the election was a debacle and may have very well cost Reno the gubernatorial primary.

One possible response is that these screw-ups should have been prevented -- but it doesn't mean that they will be prevented, even if people try hard to prevent them. Glitches happen, even when the best people are involved, but especially when ordinary, average people are involved.

 
[Eugene Volokh, 9/15/2003 02:06:03 PM]
California recall and technology: I'll mostly sit out the debates about the California recall decision -- I'm too swamped with other stuff -- but I have one narrow question: Assuming that punch card ballots are generally less reliable than the alternatives, why should we think that using punch card ballots in several counties in Oct. 2003 would be less reliable than using the alternatives for the fist time in those counties in Mar. 2004?

     Several county governments, containing millions of voters, are scheduled to change their way of doing things, all at once, in the Mar. 2004 election. Sounds to me like a recipe for lots of snafus, in which quite a few votes may get lost, ignored, and otherwise uncounted or improperly counted (and, just as the problems with punch card ballots disproportionately hit voters in the counties that still use punch card ballots, so the problems with the changeover will disproportionately hit voters in the counties that will change over).

     Now I don't think that this modest level of error would be unconstitutional. I think that as a policy matter, it might well make sense to risk some amount of such glitches in order to get things worked out for the future (if one thinks that over the long haul there'll be fewer problems with the new technologies than with the old, which I'll assume for now).

     But the Ninth Circuit's assertion is that there is no "rational basis" for continuing with the old system -- and thus that there's a constitutional obligation to wait until the new system is in place -- because running the recall election under the current system will produce a substantial error rate and running the recall election under the new system would produce a lower error rate. I'm just not confident that this is so. Maybe I'm wrong, because the shifts to the new system are likely to be less troublesome than I'm afraid they might be. But given what we know about complex systems (especially government-run ones), I suspect that my gut feeling is correct here.

     I don't expect to blog any more on this issue, but I just thought I'd mention my quick thoughts on the subject.

 
[Eugene Volokh, 9/15/2003 11:29:57 AM]
More on law students publishing articles: A reader asks whether my advice below (see two posts down from this one) applies to students outside "the upper 10% who manage to get into Law Review/Journal."

I cannot think of any opportunities given to law students at my school to write that type of scholarly paper if not on review or journal. I suppose one could do it on their own... But lets face it, law reivew is not about the ability to write, it is about your GPA. What about us mooks below the 10% margin? You talk about there being a bias against recent grads, why don't you try the bias against anyone who was not in the top 25%. (Which is interesting, 'cause those who were in the 10% writing in journals, sit around and do all the theoretical big thinking, while it is the bottom percentage schleps like me who have to make a go of it and make those big thinking points work on a day to day basis.) And I wonder what the chances are for someone who did not do review or journal would get a paper published, new grad or not. . . .

     I think the recommendation in my post below -- submit your student article to other journals -- goes double for people who aren't staffers or editors on a law journal (whether because they didn't grade on or, in schools where [as at UCLA] the competition is entirely write-on, didn't write on or chose not to try):

1. Publication outside one's own journal is then the student's main chance.
2. Editors at other journals have no idea what the submitter's GPA is; it's not like you have to submit a transcript. If you've written a good article, it's very likely that one of the hundreds of journals out there (over 400, by my last count, including the specialty journals) will indeed take it, regardless of what your grades were at law school.
3. The credential value of a publication is, I think, especially valuable to people whose other credentials are a bit weaker than they'd like.

     Of course, all this is possible only if you actually have a chance to write an article, preferably with a professor's guidance and feedback. But that shouldn't be that hard, even if you aren't on a law journal.

     First, many seminars require you to write an original research paper; the professor may not require that you write a publishable article, but he certainly won't object, and might be glad to give you extra help, especially after the semester is done. Second, I know that, at UCLA, students are allowed to and encouraged to write papers as independent study projects under a professor's supervision; that's how law review members write their Notes, and get class credit, but non-law-review students are allowed to do that, too. And, third, one can of course just write the article on one's own, not for class credit, and with limited faculty supervision -- not optimal, but doable, and perhaps much worth doing when it's the one possible credential that's most under your control.

 
[Jacob Levy, 9/15/2003 09:45:59 AM]
Trade: I'm going to hold off on commenting about the Cancun collapse; I'm not convinced that I understand what went on. but I'll point you to a couple of (quite different) takes on it: Peter Gallagher and D-squared. UPDATE: See also Richard Tren, Ron Bailey.

Who was in the wrong; whether the Singapore issues were the real problem or epiphenomenal; whether the Singapore issues are genuinely important or not, and who stood to gain most from them; whether this represents a huge setback or a potentially huge opportunity; all of this is much under dispute today. I'm confused. Compare Bailey:

Specifically, the talks collapsed over disputes about how to liberalize agricultural trade. The developing countries were essentially demanding that the European Union, the United States and other rich countries totally eliminate their domestic agriculture subsidies and export subsidies. Conversely, the poor countries—organized as a bloc called the G20 (also known as G33) that Brazil, China, India, Kenya, and South, Africa—insisted that they be allowed to "protect" their farmers by maintaining tariffs against agricultural imports from the developed countries. In other words, the G20 countries were demanding that the rich countries open their markets while they kept theirs closed.

By the end of the talks, the poor countries had in fact extracted significant concessions from the European Union and the United States to lower their domestic agricultural subsidies and to reduce their export subsidies. In return, rich countries were asking that the poor countries lower their tariff barriers on agricultural imports in return. The European Union is also especially to blame for the collapse because of its insistence throughout the Ministerial that investment rules and trade facilitation be included in the negotiations, despite the fact that 100 members of the WTO had rejected the idea of negotiations on these items. These so-called Singapore Issues diverted the focus and attention from the all-important negotiations over liberalizing world agricultural trade, so that when the EU finally agreed to drop them, it was too late.

to Tren:

Almost every commentator and trade expert expected that, if the trade talks were going to fail, they would fail over agriculture. Agriculture is certainly the most contentious issue. Poor countries have the most to gain from reform, and the political will to reform agriculture in Europe and the US is low if not entirely absent. Yet the talks failed over two relatively minor issues -- trade facilitation and transparency in government procurement.

The failure of the negotiations certainly has taken everyone by surprise and there are a number of factors at play. Most NGOs present here such as Oxfam have blamed the US and EU for the failure in the talks. But this is disingenuous. A major stumbling block in the negotiations was that leading countries in the so called Group of 21 developing countries -- Brazil, India and China -- made demands for EU agricultural liberalisation yet would not match that with their own domestic liberalisation.

It is perhaps of benefit to some of the poor countries that they have made themselves more visible and strengthened their negotiating position with strong alliances. Yet the stronger countries in the alliances will always act in their own self interest and Brazil's refusal to change its position on some of the non-agricultural negotiations, even after the EU made some major concessions, has not done African countries any favours.

Negotiations always involve some give and take and the failure of the negations over two relatively minor issues either shows that the developing countries were not up to par in their negotiating skills or they simply did not care enough about achieving an agreement in Cancun. The failure also points to a lack of good management of the negotiating process and some blame should be shouldered by the Mexican chair.

The failure of the talks is doubly frustrating because an agreement on agriculture was in sight.

 
[Eugene Volokh, 9/15/2003 09:35:57 AM]
Encouraging example for law students who want to publish: Wendy Szymanski, a 2003 law graduate, sent me an e-mail with some kind words about my Academic Legal Writing book, followed by this report from the publication front:

Following your publication tips helped net me no fewer than 15 journal acceptances. My first article will be published by the main law review at a "top 40" law school!

     Ms. Szymanski sent the article out right after graduating, and thus avoided the bias that some journals have against student-written work. But I know of other students who sent their articles out even while they were second-year students, and got several offers of publication. One, for instance, got three offers from primary journals and three from specialty ones, and ended up publishing at a specialty journal at Harvard; and her second article, which I believe was sent out in March of her third year, got the same results that Ms. Szymanski did: it was accepted by 15 journals, and was ultimately published by the primary journal at a top 40 school.

     So if you're a law student, you should definitely circulate your article for publication, even if you can't get it into your home school journals -- or if you can get it published there, but prefer to have it be selected competitively by journals at other schools, so that people who look at your resume see that the article was indeed selected competitively, rather than based on a preference for the school's own students.

 
[Eugene Volokh, 9/15/2003 09:06:32 AM]
Rasmusen on the IU cyber-speech controversy: Eric Rasmusen has put up an account of just what happened, and it appears from the account that Rasmusen did indeed genuinely offer to temporarily pull the blog from the site -- to let the IU business school look into the matter -- rather than being forced or pressured into doing so:

We [the Dean and I] talked, and I offered to move my web-log off the IU computers, and to keep fairly tight-lipped, until the Dean had time to reflect and to check with the University about whether my web-log was in violation of IU policy. He checked, learned that my web-log did not violate IU policy, and called me back the next day to say that I could move my web-log back, which I did.

     This, coupled with the school's prompt decision (which I reported on earlier) that the blog was indeed protected, suggests that the school generally behaved pretty well here. In particular, it rebuts the claim, which I quoted in my original post on the subjectthat "Professor Eric Rasmusen, who teaches multiple courses in the Kelley School of Business, was asked to take his opinions off a University Web page by Kelley School of Business Dean Dan Dalton, Thursday."

     So despite my original blog post title, "Indiana University apparently violates academic freedom" -- the appearances were deceiving: IU seems to have behaved properly, or at least acceptably. Nonetheless, I think my legal analysis is still quite right, just applied to what appeared to be the case at the time, and what would have been the case had IU acted this way. Rasmusen does report that some staff and students, though apparently not faculty or administrators, have "call[ed] for [Rasmusen] to be shut down"; as my analysis suggests, such calls are unsound. Thanks to The Curmudgeonly Clerk for passing along this information.

 
[David Bernstein, 9/15/2003 05:38:08 AM]
Sunstein: Ironically, fellow Conspirator Tyler is praising Cass Sunstein just as I am editing my forthcoming Texas Law Review article, Lochner's Legacy's Legacy, that debunks Sunstein's extremely influential thesis that the liberty of contract jurisprudence associated with the Lochner era was motivated by the Court's desire to constitutionalize common law rules and preserve existing distributions of wealth, because the Court thought that both the common law and existing distributions of wealth were "prepolitical" and "natural" and thus immutable. To put things succinctly, the relevant historical evidence completely contradicts this thesis. Nevertheless, I agree with Tyler that Sunstein "is one of the most important and most readable legal scholars writing today." I especially like his empirical work on juries.

 
[Tyler Cowen, 9/15/2003 04:11:30 AM]
The new Cass Sunstein book is in my hands I snapped up my copy at Borders last night, it is called Why Societies Need Dissent. The pressure to conform is amazingly strong in many social settings. Societies and institutions prosper by encouraging the proper kinds of dissent and critical discussion. I've just started it, so far it appears to be the expected mix of engaging, lucid argument and impressive multidisciplinary erudition. If you don't already know Sunstein, he is one of the most important and most readable legal scholars writing today.

 
[Eugene Volokh, 9/15/2003 03:28:59 AM]
Larry Solum on I/P: Larry Solum has a characteristically thoughtful and interesting response to my intellectual property post. It's definitely much worth reading, but I'm afraid I don't agree with his conclusion: The water well example, he says, isn't analogous to intellectual property, because the well is an "example of club goods" -- "With a club good, is possible to exclude, but consumption is only partially rivalrous, e.g., rivalrousness only kicks in when a threshold is exceeded" -- and "Intellectual property is not a club good."

     My original hypothetical explicitly assumed that "the water table is huge, and the farmers aren't going to exhaust it," because there were only a few hundred farmers living nearby. Naturally, that's not always so; in many places, water tables are exhaustible. But it's not implausible that in some lightly populated places, the water table would indeed be practically inexhaustible -- not theoretically, since if transportation costs were nil, farmers from all over the world would come by, but practically. That was the hypothetical, and in this hypothetical the water well is like intellectual property: It's practically nonrivalrous. And the implication remains that it makes logical sense to have property rules even for nonrivalrous goods, because property rules assure an incentive to invest, and not just protect the right to use (as opposed to exclude).

     Again, this doesn't show that protecting intellectual property is wise -- only that it is indeed importantly analogous to tangible property, and (the focus of this post) that the well example is indeed a pretty close analogy to I/P.

Sunday, September 14, 2003

 
[Sasha Volokh, 9/14/2003 09:03:15 PM]
Theater to see in Boston: This weekend was a great theater weekend for me. (Last weekend I saw MIT's production of Sondheim's Into the Woods, a not-so-great performance of a very good show, and Methuen Young People's Theater's production of Gilbert & Sullivan's Yeomen of the Guard, a pretty good performance of an O.K. show.)

First, I saw Sondheim's Pacific Overtures yesterday at the North Shore Music Theatre at Dunham Woods in Beverly, Mass. It's about Commodore Perry's expedition to open up Japan in 1853, and it's in the style of Kabuki theater, with some Noh thrown in. Minimalist sets, great costumes, played in the round, great acoustics. Someone in a Tree is Sondheim's favorite song of his, and it should be one of yours too. Alas, its run ended today, so you can't see it, but see it elsewhere if you have the chance.

Today, I saw Marvin Hamlisch and Edward Kleban's A Chorus Line at the Orpheum Regional Performance Center in Foxborough, Mass. (about 40 minutes south of Cambridge, on I-95 about 10 miles south of the Beltway). It's playing for another two weeks.

I've been listening to the soundtrack of this show since I was three or four years old (my mother bought lots of records of musicals at garage sales when we were newly arrived in the U.S.), though I didn't understand what it was about until many, many years later. I ended up calling my mother and saying, "You had me listening to a musical at age 4 that had boobs?" (One of the most popular songs from this musical has considerably more than that.) I saw the movie version with Michael Douglas in it when it came out in 1986, but I didn't realize how bad it was until I saw it again about three years ago.

But this is a show which, when played with the right energy, as this show was, has got to be one of the most perfect musicals ever written. The first number -- the dance number and I Hope I Get It -- is really hard to pull off, and I was expecting an amateurish attempt that I would still sit through because it's such a good show; but they pulled it off perfectly. That opening piece has just the right mix of very fast-paced dance rehearsal numbers ("Step kick kick leap kick touch! Again! Step kick kick leap kick touch! . . . Five six seven eight!") and introspective bits ("I really need this job"; "Who am I anyway? Am I my resume?"). I was bawling by the end of At the Ballet. Some of the music is kind of '70s-dated, but not in any bad way.

So go see it -- it closes on the 27th; tickets are $23 and $25; the phone number is 508-543-2787 -- and tell the music director that the Volokh Conspiracy sent you.

 
[Tyler Cowen, 9/14/2003 05:31:01 PM]
Richard Dawkins favors judges over juries Yes, Richard Dawkins the famous sociobiologist. Today I was perusing his new book A Devil's Chaplain. One of the essays, available on-line, is called "Trial by Jury".

Dawkins argues that juries are notoriously unreliable, and that the group is swayed by a few opinions. He wonders how much independent juries would agree with each other, if they were allowed to observe the same trial, but not allowed to talk. A good test, Gordon Tullock tells me it once was done (he claims the two juries disagreed one-third of the time, I cannot document this).

Dawkins argues we should compare jury trials to judges by using an agreement test. Give two judges (juries) the same trial, don't let them talk, and see how much they agree. The system that yields the greater agreement then ought to be the better system, according to Dawkins. If you don't believe me, he writes: "Whichever system, Trial by Jury or Trial by Judge, yields the higher score of agreements over a number of trials is the better system and might even be accredited for future use with some confidence."

This seems wrong to me. Parties that agree more often are not necessarily the better truthseekers. To provide a simple counterexample, let us say that the general citizenry was intolerant and thought that accused defendants were always guilty. The two juries would then agree more than the two judges would, but of course this doesn't mean that juries are the better system. A disagreement means that one of the two parties are wrong, but you don't maximize chance of rightness by looking for the mere fact of agreement.

Overall agreement is a good signal about a system when that system is usually right in the first place. Which would mean that the initial problem was not enormous. Agreement is not such a good signal when decisionmakers wear universal and common blinders.

I'm all for a critical scrutiny of the jury system, but let's judge it by fair standards.

 
[David Bernstein, 9/14/2003 05:06:17 PM]
This Hurts:

Many Israelis assure me that by now "everyone" recognizes the error of Oslo. Yet those who express their disappointment in Yasser Arafat usually frame this admission in a glow of innocence, as though they expected to be praised for having paved their road to hell with good intentions. They proudly recount how much they were prepared to risk for peace, as if a gambler should be congratulated rather than treated for his desperation.

They boast that at Camp David, in the summer of 2000, Ehud Barak promised Arafat everything that he had wanted even though none of the obligations of Oslo had been fulfilled! These Israelis want to show off their readiness for compromise and accommodation, as if stupidity should be rewarded for being imprudent.

After being something of a "right-winger" when it came to Israel in the 1980s, I was won over to the "peace camp" by the early nineties. I had come to the conclusion (which I still believe) that strategic depth on the ground was less important to Israel than getting a peace agreement that would be broadly accepted around the world. I couldn't believe that Arafat would be so vicious and stupid as to not sieze the opportunity to accept a reasonable peace agreement, given that his Soviet ally had collapsed and that it was abundantly clear that Israel could not be defeated militarily. I assumed that Arafat's doubletalk and his refusal to truly crack down on terrorism were simply ways to keep pressure on Israel to ensure Israel ultimately offered the Palestianians a viable state. I continued to believe this through the Summer of 2000. Then, Arafat responded to pressure from America, Israel, and his own advisers to use Barak's offer of 90+% of the West Bank and Gaza as a reasonble starting point to end the conflict by instead launching a terrorist war.

If we are generous regarding Arafat's motivations, we can conclude he was trying to create sufficient violence to force an internationalization of the conflict, with the hope that the UN and/or the EU would impose terms on Israel that would perhaps more closely resemble the 1948 UN partition lines (e.g., internationaliation of Jerusalem, including Jewish West Jerusalem) than the 1967 borders that everyone else assumed were the basis for negotiation. More likely, Arafat decided that he preferred being the leader of a united Palestinian terrorist front clinging to its long-term goal of destroying Israel than the leader of a Palestinian state who would go down in history as having relinquished the "right of return." Either way, Arafat's strategy might have been far more successful if 9/11 had not intervened to stiffen GWB's resolve against terrorism, allowing Israel the freedom to reassert military control over the West Bank in April 2002.

So, on the tenth anniversary of the Oslo agreement, I acknowledge that with regard to Arafat, at least, I was wrong. He was, and is, much more vicious and stupid (mostly vicious) than I imagined. Yet I really had no reason to believe otherwise to begin with, given his previous record of ordering the murder of innocents. Mea culpa.

And here is clear-headed analysis of what went wrong.

 
[David Bernstein, 9/14/2003 03:10:03 PM]
Charitable Interpretation: The Times quotes Arafat as stating: "We are the brave people and we will continue until we reach Jerusalem," and adds that Arafat was "referring to the Palestinian goal of a state with a capital in the eastern part of the city." Arafat is often deliberately ambiguous in his rhetoric, but it's more logical to assume that by "reaching Jerusalem" he meant destroying Israel, which has its capital in Jerusalem. After all--and this can't be emphasized often enough--Ehud Barak's government offered Arafat a Palestinian state with East Jerusalem as its capital, and he turned down the offer in favor of violence.

 
[Sasha Volokh, 9/14/2003 09:10:09 AM]
Current news stories about the Soviet Union: The Washington Post today is carrying stories about the Soviet Union in 1960 (under the name "North Korea"), the Soviet Union in 1987 (under the name "China"), and the Soviet Union in 2003 (looking back to 1923, 1937, 1946, 1949, 1965, and 1981). These are important; read them all (they're pretty short).

 
[Jacob Levy, 9/14/2003 05:19:16 AM]
Meanwhile, at the WTO talks: Peter Gallagher is blogging from the thick of things in Cancun.