Saturday, April 28, 2007
WaPo on The DOJ Hiring "Scandal":
Orin linked the article, but he failed to highlight the truly scandalous nature of the hiring process, as reported by our diligent scribes:
According to a former deputy chief in the civil rights division, one honors hire was a University of Mississippi law school graduate who had been a clerk for U.S. District Judge Charles W. Pickering Sr. about the time the judge's nomination by President Bush to a federal appeals court provoked opposition by congressional Democrats, who contended that Pickering was hostile to civil rights.
A few months after he arrived, that lawyer was given a cash award by the department, after he was the only member of a four-person team in the civil rights division who sided with a Georgia voter-identification law that was later struck down by the courts as discriminatory to minorities, according to two former Justice lawyers.
Another honors hire, a graduate of the University of Kentucky College of Law who had been president of the campus chapter of the Federalist Society, displayed a bust of President James Madison in his Justice office, according to a former honors program lawyer who was hired during the Clinton administration. A profile of Madison's face is the logo of the society, which is based on conservative precepts.
Oh my goodness--a bust of James Madison in his very office! Gracious, a civil rights lawyer who clerked for Charles Pickering--who "congressional Democrats ... contended" was hostile to civil rights (apparently since some congressional Democrats "contended it," all of his clerks are disqualified from working in the office).
The other example cited in the article seems odd as well--why is it supposed to be a problem that a graduate of Regent Law School might be interested in working on "some religious liberties" cases. Would we be similarly shocked if a minority graduate of Southern Law School, for example, expressed a particular interest in working on Voting Rights cases, or a former intern at a pro-choice organization was interested in reproductive rights cases?
The unintentional irony of this is that these examples are provided as examples of the "nonideological" bona fides of the career lawyers who offered them as examples. The career lawyer who is cited (as well as the authors of the article) seems confident that any right-minded person would shocked and outraged that a lawyer was a member of the Federalist Society and had a bust of James Madison in his office or that one of Judge Pickering's clerks worked in the civil rights division.
This is not to say one way or the other whether the new policy is a good one. Or that there may be real examples that actually prove the reporters' point. Or that there were improper ideological pressures in this case that were fundamentally different from Democratic administrations, or that political favoritism is somehow different or more pernicious than all of the other sorts of preferences and favoritism that also play into hiring processes. I don't know the answer to these questions, but it seems obvious that merit alone has never the sole criterion for securing these positions, and that a variety of other personal, geographic, and demographic factors have always played into these decisions.
But if these are the "smoking gun" examples that are the best ones that career attorneys can offer as conservative ideology run amuck at the DOJ, then it seems to me that this says more about the real biases of the supposedly "nonpolitical" attitudes of DOJs career attorneys and the ideological parochialism of the Washington Post than about some sort of hiring "scandal" at DOJ. If these are the sorts of trivialities that career DOJ attorneys consider to be evidence of an extreme ideological shift to the right at the DOJ, then forgive me for being skeptical that the end result of giving career lawyers a monopoly on hiring for these positions is going to eliminate ideology from the hiring process.
Moreover, it is naive to think that putting these career lawyers in charge of hiring will remove ideology from the hiring process (not to mention the thinly-veiled elite snobbery in the otherwise-irrelevant references to University of Mississippi and University of Kentucky Law Schools in the article). It seems evident that a Federalist Society member or Pickering clerk would have those credentials held against him or her by at least this particular career lawyer. If so, is that different from the concern expressed by congressional investigators that senior political appointees appeared to reject applicants who "had interned for a Hill Democrat, clerked for a Democratic judge, worked for a 'liberal' cause, or otherwise appeared to have 'liberal' leanings?"
Blankenhorn (Round 3):
David Blankenhorn and I are continuing an exchange about his arguments opposing gay marriage, expressed in an article for the Weekly Standard and in his new book The Future of Marriage. In his latest posts, he has responded here, asking me to identify weaknesses in the case for gay marriage and strengths in the opposition to it, and here, asking whether I agree that society should take steps to increase the likelihood that children are raised by their married biological parents and refrain from taking steps that make that less likely.
These are fair questions and I’ll respond below. But first I want to emphasize something unique and valuable in Blankenhorn’s work. In The Future of Marriage, Blankenhorn says he believes homosexuality “is closer to being a given than a choice,” that he “disagrees” with the parts of the Bible that are commonly interpreted to condemn homosexuality, and that Jesus’ teachings are inconsistent with the condemnation of gay people. (P. 210) I’m told that in a recent debate with Jon Rauch, Blankenhorn actually affirmed “the equal dignity of homosexual love.” He also said that he “agonized” over the real harm done to gay couples by prohibiting them from marrying. The debate occurred at the Ethics and Public Policy Center, a think tank for religious and social conservatives, which shows he's unafraid to say these things in environments potentially hostile to them.
If there were more advocates on both sides in the mold of David Blankenhorn, we’d have a much more civil and fruitful debate over gay marriage. It would be terrific if gay-marriage supporters would occasionally acknowledge that it’s at least possible (though very unlikely) that some unintended harm might occur if marriage is expanded to include same-sex couples and that not all anxiety about gay marriage arises from base hatred of gay people. And it would be terrific if gay-marriage opponents could at least acknowledge that they are asking gay couples and families to bear the burden of not running that cultural risk.
Having said all that, I’m a bit disappointed by Blankenhorn’s lack of response to my specific criticisms of his argument. I challenged on several grounds his claim that gay marriage in Europe is contributing to a miasma of anti-marriage attitudes. Blankenhorn offers no defense against the criticism that his argument rests on correlation alone and that this is insufficient to show gay marriage has caused anything bad to happen. He makes no response to the observation that non-traditional attitudes about marriage and family life in pro-SSM countries preceded gay marriage and so could not have been caused by gay marriage. He says nothing about how several other long-term and deep systemic factors likely caused non-traditional attitudes about marriage in Europe long before SSM entered the picture. He ignores correlations in countries with gay marriage that cut in favor of the reform (like rising marriage rates). He passes by correlations in countries without gay marriage that cut against his opposition (less respect for women’s equality, less commitment to individual rights, etc., in countries like Saudi Arabia). He still demonstrates no real familiarity with the complexity of the debate on the left over the effects of gay marriage, and particularly the concerns expressed by many marriage radicals that gay marriage will reaffirm the normativity of marriage.
His only response is that there’s nothing new to respond to. He’s a busy man, so I don’t entirely fault him for this. But it seems to me he has left a lot on the table. That’s his right, and like him I’m content to let readers decide whether he has more to answer at the very heart of his empirical arguments.
Instead, Blankenhorn shifts the focus to other issues. He asks me: “Do you believe that both sides have a valid case? And if you do believe that both sides have a case, what do you think is the strongest point on the other (anti gay marriage) side, and the corresponding weakest point on your side?”
As it happens, I’ve already addressed these issues. As for the best argument against gay marriage, I think it’s a Burkean one that emphasizes the need for continuity and stability in longstanding and widely prevailing practices, that presumes against change in such practices, that rejects abstract arguments for reform rather than ones built on actual experience, and that prefers incremental rather than sudden and convulsive change. I think these Burkean concerns can be answered, but they form a powerful critique of gay marriage that pro-SSM advocates have not paid enough attention to.
There are also some ”Bad Arguments for Gay Marriage.” Among these bad arguments are the emphasis many gay-marriage advocates place on the specific legal rights and benefits marriage provides, rather than on the cultural and social importance of marriage; the heavy focus of the gay-marriage movement on legalistic and constitutional arguments, rather than on policy concerns; and the undoubted desire of some marriage radicals to promote gay marriage as a way to undermine marriage and change civilization.
I don’t share Blankenhorn’s view that gay marriage involves a “conflict of goods,” that is, a trade-off in which either accepting or rejecting the reform will cause harm to some widely accepted social good. Many contentious public policy questions genuinely present a case of goods in conflict. The most prominent example would be abortion, which pits the life of the unborn child against women’s autonomy and equality in society.
But gay marriage is not really a case of goods in conflict because it requires no sacrifice of any public good. Here we get to Blankenhorn’s last question to me:
To me, and to many others, the anthropological evidence is overwhelming that the primary purpose of marriage as a human institution is to give to each child born the gift of the mother and the father whose physical union made the child. Do you, Dale, accept that conclusion and therefore do you agree, along with many leading marriage and family scholars and authorities, that our society ought to do what it can to recognize and strengthen that birthright, and refrain from taking any steps that would be likely to (further) damage or weaken it?
Marriage does not have unchangeable a priori “purposes” that fall from the sky or that are derived from either some abstract principle or from religious authority. The purposes of marriage arise instead from human experience, history, tradition, and actual practice. They can and do evolve as civilization changes and as we learn new things. I think Blankenhorn would agree with me so far, though it would be interesting to know if he does not. (Robert George, for example, would not agree with those claims.)
Based on the actual practice and history of marriage in this country and elsewhere, I agree with Blankenhorn that a (perhaps the) central and important public purpose of marriage has been to encourage men and women who make babies to raise their children within marriage. I also agree that public policy should continue to encourage mothers and fathers to raise their children within marriage and should avoid steps that would discourage them from doing so.
Where we differ is that I see nothing in gay marriage inconsistent with this important purpose. Consider Blankenhorn’s argument about how recognizing gay marriages means losing the primary purpose of marriage:
Every child raised by a same-sex couple will by definition be missing either their mother or their father. It is therefore not possible, or at least extremely hard, to believe both in gay marriage and in the importance of this essential cross-cultural purpose of marriage. The two goods are in conflict; we as a society must choose which we think is more important.
The first sentence is a truism but the second sentence does not necessarily follow from it. It is not impossible, and not even difficult, to believe that gay marriage and man-woman procreation and child-rearing can coexist. Gay marriage will certainly not stop men and women from procreating. It will also not stop them from marrying (they’re marrying at higher rates in countries with SSM). And it will not take a single child away from a man and woman who want to raise that child together in marriage.
But if you doubt any of these things, consider Blankenhorn’s argument in the context of marital and procreational practices that are already widely approved. Let’s apply Blankenhorn’s argument to a different context:
Every child raised in a second-marriage family will by definition be missing either their mother or their father. It is therefore not possible, or at least extremely hard, to believe both in remarriage after divorce and in the importance of this essential cross-cultural purpose of marriage. The two goods are in conflict; we as a society must choose which we think is more important.
Or situate the argument in this context:
Every child raised by an adoptive single parent or two parents will by definition be missing either their mother or their father. It is therefore not possible, or at least extremely hard, to believe both in adoption and in the importance of this essential cross-cultural purpose of marriage. The two goods are in conflict; we as a society must choose which we think is more important.
Or how about this:
Every child created through a surrogate mother or sperm donation will by definition be missing either their mother or their father. It is therefore not possible, or at least extremely hard, to believe both in these assisted reproduction methods and in the importance of this essential cross-cultural purpose of marriage. The two goods are in conflict; we as a society must choose which we think is more important.
None of these statements would get much support in our society, and indeed most people would be puzzled by them. They would bristle at the notion that remarriage, adoption, or assisted reproduction means “[c]hanging the meaning of marriage and normative parenthood” or “changes marriage and parenthood overall — not just for the children in” these households “but for all children.” They would see these claims as unsupported, alarmist, and a bit hysterical.
I doubt Blankenhorn opposes all divorce, remarriage after divorce, adoption by couples or even single people, or these methods by which sterile opposite-sex couples make children. I doubt he thinks they undermine the primary purpose of marriage to bring biological parents together to raise their children. If that’s right, what makes the effect of same-sex marriage on marriage any different? The child raised under circumstances of second marriage, adoption, or assisted reproduction is denied its “birthright” to be raised in a marriage of its biological mother and father every bit as much as if it is raised by neither of its biological parents or by only one of them in a gay marriage.
There is an obvious answer to this: that there is something qualitatively different - - and inferior - - about a homosexual couple as compared to a heterosexual couple in these same circumstances. A great many people opposed to gay marriage would say, “Just so.” Does Blankenhorn? Based on what he’s said publicly about homosexuals, I doubt it.
There is another, and better, possible answer that isn’t homophobic. Remarriage makes the best of a tragedy, the divorce of biological parents (or the death of one of them). Adoption makes the best of another kind of tragedy, one in which biological parents can’t or won’t raise their child. Assisted reproduction helps parents who can’t otherwise have children. All of these public policies are a form of satisficing, choosing a second-best but acceptable alternative where the best choice is unavailable. But we would never say that the law should intentionally create any of these circumstances. Gay marriage, on this view, would be intentionally creating a circumstance in which children are raised outside of the married, biological-parents context; it would not merely be satisficing.
The problem for this argument, as I see it, is that large numbers of children are already being raised by gay parents. By the most conservative estimates, about 1-2 million children are being raised by single gays or gay couples in the United States. These children did not fall from the sky into gay homes. They got there by the same processes that cause them to end up in the homes of opposite-sex parents: a prior marriage that fell apart for any of a thousand reasons, an adoption of a child who’s unwanted by her biological parents, and assisted reproduction where the parents can't otherwise have children.
All of these children — whether raised in heterosexual or homosexual households — are “by definition missing either their mother or their father.” We'd prefer that parents never got divorced, that children (especially the sick, infirm, and older children) never went begging for adoptive homes, or that couples could reproduce on their own. But that is not the world we live in. We live in a world where we must make the best of what we're dealt. Gay people live in that world too.
We could go one of two directions with these hard realities. The first is that suggested by proponents of gay marriage. We say, in effect, “When it comes to the welfare of children, gay marriage is a form of satisficing on a par with heterosexual remarriage, adoption, and assisted reproduction. It binds up otherwise broken families, provides a loving and stable environment for kids whose biological parents can’t or won’t raise them, and gives couples who can't have a child the chance to raise one they can call their own.”
The second option is a stark, prohibitionist one. We could forbid gay people to raise children, even their own biological children; we could prohibit them from adopting children; and we could bar them from using methods of assisted reproduction. Then, at least when it comes to children, there would be no need for gay marriage as a form of satisficing. Yes, the prohibitionist approach would entail huge upheaval for these particular children and for their gay parents. It would be heartbreaking. But perhaps it would be worth it if you really believe “the future of marriage” is at stake.
Other than continuing to ignore the dilemma, which a lot people would prefer to do, I do not see a viable and stable third way between gay marriage and prohibition that serves the interests of children being raised by gay people (though of course we could call the gay couple’s relationship something other than marriage).
So at this point I have some questions for Blankenhorn. Does he support the prohibitionist route? Does he believe children should be taken away from their gay parents and placed in foster care until they can be adopted by a loving substitute married man and woman? Does he oppose allowing gay people, either singles or couples, to adopt children? To use the services of a sperm donor or surrogate mother?
If he does not oppose these things, then he necessarily believes these children and future children by the millions should be raised by gay singles and couples who will never marry. Does this not undermine the idea that marriage should be the situs for raising children?
And does he believe the children being raised by gay families would be better off, worse off, or unaffected by the ability of their parents to marry?
In a coming post, I’ll have more to say about purposes of marriage other than the generative one Blankenhorn has recently highlighted.
DOJ Ends Role of Political Appointees in Honors Program Hiring:
The Washington Post
has the story here
. From the introduction:
The Justice Department is removing political appointees from the hiring process for rookie lawyers and summer interns, amid allegations that the Bush administration had rigged the programs in favor of candidates with connections to conservative or Republican groups, according to documents and officials.
The decision, outlined in an internal memo distributed Thursday, returns control of the Attorney General's Honors Program and the Summer Law Intern Program to career lawyers in the department after four years during which political appointees directed the process.
Did British Government Push Worthless Carbon Credits?
Yesterday the Financial Times reported on accusations that the British Department for Environment, Food and Rural Affairs (DEFRA) has encouraged British companies to purchase carbon dioxide emission credits that do not actually produce carbon reductions.
The first charge against Defra is that under a proposed code of practice, it has been advising businesses and consumers wishing to offset their emissions to buy carbon credits through the European Union or UN carbon trading scheme. However, phase one of the scheme was discredited last May for flooding the market with too many permits to achieve any emissions cuts.
With so many carbon trading schemes on the market, many British companies were keen to follow official advice. However, the result is that many were persuaded to buy environmentally worthless carbon credits.
Assessing the Benefits of Higher Education:
At the always excellent Becker-Posner blog, Nobel Prize winning economist Gary Becker and Judge Richard Posner debate the value of higher education. I largely agree with Becker's assessment that the economic benefits of higher education to students are real and growing. Posner, however, claims that the large income gains accruing to college graduates are largely the result of credentialism, because colleges help employers screen job applicants for intelligence and dedication:
[C]olleges and graduate (including professional) schools provide a screening and certifying function. Someone who graduates with good grades from a good college demonstrates intelligence more convincingly than if he simply tells a potential employer that he's smart; and he also demonstrates a degree of discipline and docility, valuable to employers, that a good performance on an IQ test would not demonstrate. (This is an important point; if all colleges did was separate the smart from the less smart, college
would be an inefficient alternative to simple testing.)
This is a very common argument, but I think it is seriously flawed. If the benefits of a university education mostly come down to "screening and certifying," one would think that the market could provide a way of achieving this objective without spending four years and tens (sometimes hundreds) of thousands of dollars in tuition. "[D]iscipline and docility" could be easily demonstrated through good performance in an entry-level job of the type that many college students do anyway - such as working part time at McDonald's or serving an internship. For that matter, many college students have already proven their discipline and docility through good performance in high school and in jobs they held as teenagers.
And, as Posner points out, you don't need college to prove your intelligence. A standardized test (or perhaps a battery of such tests) would suffice. Even if college is needed to prove one's discipline, docility, or intelligence, it is hard to see why it should take four years of school to do it. One year of good grades should be enough.
At least to a large extent, Becker must be right and Posner wrong: the benefits of a college education go well beyond screening and credentialing. However, there are a couple of caveats to this happy conclusion. First, college education is heavily subsidized by government, whereas other methods of screening and certification are not. Therefore, some students who could otherwise prove their intelligence and discipline in cheaper ways might choose to go to college instead. Second, many students probably attend school in large part because of the social benefits rather than the economic ones. College provides a great social scene for young people! This fact makes it more attractive to many high school graduates than other certification methods. I'm all in favor of students going to college to socialize, but I don't believe they should get government subsidies to do so. Finally, it's worth noting that neither of these reservations apply with the same force to graduate school and law school. These programs are much less heavily subsidized than undergraduate education, and they usually have a much less happening social scene. So if you really want to make a good economic investment in your human capital, get a graduate degree:).
CONFLICT OF INTEREST WATCH: Obviously, I'm a professor, so I have a vested interest in persuading people that higher education is a good investment. Caveat lector! (Reader Beware!).
Gun Charges Dropped Against Sen. Webb's Aide:
Authorities dropped charges Friday against an aide to Virginia Sen. Jim Webb who carried a loaded gun into the U.S. Capitol complex.
"After reviewing and analyzing all of the evidence in the case, we do not believe the essential elements of the crime of carrying a pistol without a license can be proved beyond a reasonable doubt," U.S. Attorney Jeff Taylor, top prosecutor in the District of Columbia, said in a short statement.
Webb senior aide Phillip Thompson, 45, was arrested on March 26 after Capitol Police spotted the loaded pistol and two other loaded magazines in a briefcase being scanned by an X-ray machine at the entrance of the Russell Senate office building.... Webb told reporters Thompson had carried the gun into the building "completely inadvertently."
Thanks to Dan Gifford for the pointer.
Friday, April 27, 2007
Kansas Legislature over-rides licensed carry veto
The Wichita Eagle reports that the Kansas State Senate this afternoon successfully voted to over-ride Governor Kathleen Sebelius' veto of a preemption law for concealed handgun carrying. The House over-rode the veto yesterday.
Last year, Kansas enacted a "shall issue" law for the licensed carrying of handguns for lawful protection. The new bill specifies that local governments may not create pretend "gun free zones" which exclude licensed carry.
Under the bill, public or private entities may still ban guns in buildings or enclosed fenced areas (but not in parking lots, parks, or other open public spaces). If the place is open to the public, the business/government must post a notice. The bill also preempts local laws on transportation or storage of firearms, to the extent that they are inconsistent with state law. In addition, the bill requires that relevant mental health adjutications from Kansas courts be reported to the Kansas Bureau of Investigation.
Congratulations to Kansas State Senator Phil Journey, the leader of the pro-rights forces in the legislature.
Kopel vs. The Economist, Round 5
In the finale of my Los Angeles Times on-line debate with Christopher Lockwood, the U.S. editor of The Economist, we each get a magic wand with which to create whatever gun laws we would like. He offers some proposals which, he frankly admits, are politically impossible. Waving my Wand of Sensible Consensus I propose:
1. Don't disarm people whom the government will not/cannot protect.
2. Good policemen don't own bad guns. So if a gun ban has a police exemption, its premises are probably flawed, as I show with some examples.
3. Obey the Constitution. If it's too hard to do that all at once, start with Article I. So "interstate commerce" is not equivalent to "everything," and so Congress stops exercising the usurped power to regulate/prohibit things like simple intrastate possesion of guns.
4. Recognize that guns can be used for good and for bad. Make sure that gun policies enhance, rather than destroy, the widespread social benefits which flow from guns in the right hands.
It was a great honor to debate Mr. Lockwood, and I hope that our exchanges can help people on all sides of the gun issue approach it with greater understanding.
Obesity and Farm Subsidies:
I just came across this article that argues that one cause of rising obesity, especially among lower-income families, is farm subsidies. The key, it seems, is that the nature of farm subsidies has changed over time. They were once designed to keep prices artificially high, which of course, would have made food more expensive. The article says that today, by contrast, farm subsidies are tied to production, thus subsidizing increased output. The result is to drive down the price of the least healthful foods relative to others:
For the answer, you need look no farther than the farm bill. This resolutely unglamorous and head-hurtingly complicated piece of legislation, which comes around roughly every five years and is about to do so again, sets the rules for the American food system — indeed, to a considerable extent, for the world’s food system. Among other things, it determines which crops will be subsidized and which will not, and in the case of the carrot and the Twinkie, the farm bill as currently written offers a lot more support to the cake than to the root. Like most processed foods, the Twinkie is basically a clever arrangement of carbohydrates and fats teased out of corn, soybeans and wheat — three of the five commodity crops that the farm bill supports, to the tune of some $25 billion a year. (Rice and cotton are the others.) For the last several decades — indeed, for about as long as the American waistline has been ballooning — U.S. agricultural policy has been designed in such a way as to promote the overproduction of these five commodities, especially corn and soy.
That’s because the current farm bill helps commodity farmers by cutting them a check based on how many bushels they can grow, rather than, say, by supporting prices and limiting production, as farm bills once did. The result? A food system awash in added sugars (derived from corn) and added fats (derived mainly from soy), as well as dirt-cheap meat and milk (derived from both). By comparison, the farm bill does almost nothing to support farmers growing fresh produce. A result of these policy choices is on stark display in your supermarket, where the real price of fruits and vegetables between 1985 and 2000 increased by nearly 40 percent while the real price of soft drinks (a k a liquid corn) declined by 23 percent. The reason the least healthful calories in the supermarket are the cheapest is that those are the ones the farm bill encourages farmers to grow.
Rather than the many silly ideas for combatting obesity that we often hear today, one would think that getting rid of farm subsidies for less-healthy foods would make sense, not to mention the budget savings. But I'm not holding my breath.
(When I initially posted this I had a grammatical glitch in the final paragraph which I have tried to remedy).
Here's a Great Idea for Solving the Drug Problem:
Let's make it a crime to possess them, and enforce it this way:
Special squads of police would be formed and trained to carry out the work. Then, on a random basis to permit no advance warning, city blocks and stretches of suburban and rural areas would be cordoned off and searches carried out in every business, dwelling, and empty building. All drugs would be seized. The owners of drugs found in the searches would be prosecuted.
Fairly quickly there would begin to be drug-swept, drug-free areas where there should be no drugs. If there were, those carrying them would be subject to quick confiscation and prosecution. On the streets it would be a question of stop-and-search of anyone, even grandma with her walker, with the same penalties for possessing.
America's long land and sea borders present another kind of problem. It is easy to imagine mega-drug dealerships installing themselves in Mexico, to funnel drugs into the United States. That would constitute a problem for American immigration authorities and the U.S. Coast Guard, but not an insurmountable one over time.
Not persuaded? Think this might be a Fourth Amendment violation, maybe? Even if you approve of the criminalization of drugs, do you think this might be taking things too far?
Oh, wait, I got the noun wrong — this is actually a proposal, written by Dan Simpson, an editorial board member at the Toledo Blade and the Pittsburgh Post-Gazette:
[H]ow would one disarm the American population? First of all, federal or state laws would need to make it a crime punishable by a $1,000 fine and one year in prison per weapon to possess a firearm. The population would then be given three months to turn in their guns, without penalty.
Hunters would be able to deposit their hunting weapons in a centrally located arsenal, heavily guarded, from which they would be able to withdraw them each hunting season upon presentation of a valid hunting license. The weapons would be required to be redeposited at the end of the season on pain of arrest. [Details omitted. -EV]
The disarmament process would begin after the initial three-month amnesty. Special squads of police would be formed and trained to carry out the work. Then, on a random basis to permit no advance warning, city blocks and stretches of suburban and rural areas would be cordoned off and searches carried out in every business, dwelling, and empty building. All firearms would be seized. The owners of weapons found in the searches would be prosecuted: $1,000 and one year in prison for each firearm.
Clearly, since such sweeps could not take place all across the country at the same time. But fairly quickly there would begin to be gun-swept, gun-free areas where there should be no firearms. If there were, those carrying them would be subject to quick confiscation and prosecution. On the streets it would be a question of stop-and-search of anyone, even grandma with her walker, with the same penalties for "carrying." ...
America's long land and sea borders present another kind of problem. It is easy to imagine mega-gun dealerships installing themselves in Mexico, and perhaps in more remote parts of the Canadian border area, to funnel guns into the United States. That would constitute a problem for American immigration authorities and the U.S. Coast Guard, but not an insurmountable one over time....
Well, then, that's sure to work!
Of course, I realize the guns-drugs analogy isn't complete. Drug addicts aren't quite the same as criminals who want guns for their crimes; gun and drug detection problems are different; drugs aren't used for self-defense; neither the federal nor state Constitutions mention a right to have drugs; we can add to the list. But it does seem to me that a War on Guns, with unannounced random searches on streets and in homes, should be highly unappealing to anyone who has even some reservations about the War on Drugs, and questionable even to those who support the War on Drugs.
Oh, and don't forget: No-one is trying to take away your guns; people's concerns about that are just a "gun lobby ... bogeyman."
Here's a letter to the editor of the Denver Post from Dr. Paul Hsieh, a libertarian M.D. in Colorado (and also the author of the fantastic GeekPress blog):
Health care is not a right, and it is not the proper role of government to provide health care for all citizens. Instead, this should be left to the free market. It is precisely the attempts of the governments of countries like Canada (or states like Tennessee) to attempt to mandate universal coverage which have led to the rationing and waiting lists for vital medical services. Similar problems are already starting to develop in the Massachusetts plan as well. Any plan of government-mandated "universal coverage" is nothing more than socialized medicine, and would be a disaster for Colorado.
Paul S. Hsieh, M.D., Sedalia
You may agree with Dr. Hsieh's view, or you may disagree with it, but it seems quite sane and calm for a paragraph-long letter to the editor (a hard format to shine in).
But according to Denver Post staff columnist Jim Spencer, it's the "craziest letter to the editor that [he's] read in some time" and a "rant" to boot:
The craziest letter to the editor that I've read in some time came from a physician who claimed that Coloradans have no right to health care.
Seems the guy not only forgot his Hippocratic oath but also the law.
If you're sick enough or badly injured, they have to treat you at the emergency room regardless of your ability to pay.
The doctor aimed his editorial rant against socialized medicine. But he wrote it because a state blue-ribbon commission is now cobbling together a plan for medical treatment and prescription drugs for Coloradans....
Oddly enough, I didn't see anything the Hippocratic oath about governmental obligations to pay for medicine. Nor is there much evidence that Dr. Hsieh has "forgot[ten] ... the law" about emergency room treatment requirements; in context, "[h]ealth care is not a right" sounds like a statement about moral rights, not statutorily imposed legal obligations.
But on top of that, let's shift for a moment from the Hippocratic oath to sensible journalistic standards, even for columnists. Is it good for a newspaper when its staffers (again, even columnists) treat thoughtful disagreement from readers as "craz[y]" and as a "rant"? Is such an attitude likely to lead the columnists to be thoughtful analysts? Should it instill confidence in their readers?
That's a relief:
It turns out I'm a male. So are all of my co-conspirators, at least according to this test.
On the other hand, Maggie Gallagher is also male. (Paste this in the gender testing box.) And David Blankenhorn is a closet female (Paste this in the box; start with "At the Volokh Conspiracy..." and end with "23 good reasons to favor the change").
(Thanks to Andrew Sullivan, who's very male.)
Global Warming and "Beachfront Property" (Inspired by Steven Landsburg):
It has been great having Steven Landsburg here this week. In fact, as I sat in my hearing this morning, I couldn't help but think how the composition of the committee and the types of questions and concerns might be different if Landsburg's electoral reforms were adopted.
His post today on FDA and pharmaceutical stocks brought to mind a related (although not identical) observation. I don't have any special knowledge of the science of global warming, whether it is actually ocurring and if so, how great its impact will be.
But I do understand economics. And if believers in global warming are so certain that it is going to occur that they are willing to impose taxes and other coercion in order to combat it, why aren't they buying up all the land 300 yards or so from the current beach, or wherever they expect the sea level to rise to in the future? Shouldn't Al Gore be cornering the market on coastal land twenty feet above today's sea level? Surely that land must be a bargain today compared to what it will be worth if his predictions are accurate.
After all, it has long been understood that the orange juice futures market predicts the weather more accurately than the disinterested experts at the National Weather Service. See Richard Roll, "Orange Juice and Weather," 74 American Economic Review 861-880 (1984). I have not heard of any run on future beachfront property that is 20 feet above sea level today. Nor have I heard of any collapse in the value of current beachfront property.
If no one is willing to put their money behind the theory--unlike the orange juice market--how confident are they really in their predictions?
As I wind down my week of guest blogging, I want to thank Eugene for the invitation and the many readers who offered thoughtful commentary.
Each day brought forceful reminders that not everyone sees the world as economists do. When I observed that a policy of federal disaster assistance tends to raise property values in disaster-prone areas, several commenters dismissed the observation as idle speculation and called for evidence. I am frankly flabbergasted by this. There is no lack of evidence that when assets are made more desirable, their prices rise; that's why a Lexus sells for more than a Subaru. There is no lack of evidence that markets see reductions in risk as desirable; that's why the return on stocks beats the return on bonds. One doesn't need evidence specific to the housing market in New Orleans to be pretty sure that New Orleans housing conforms to the general rule.
There's also a wealth of evidence that goods with similar attributes sell for similar prices, so we really can be pretty confident that the value of federal disaster assistance---incorporated in housing prices---is roughly equal to what private disaster insurance would sell for. The evidence for general propositions of this form is so overwhelming, and so much a part of economists' everyday lives, that it's easy for us to forget that not everyone has digested it.
It does follow that if residents in those areas would not have chosen private disaster insurance, then a policy of federal disaster assistance does them no favor. We know that because we trust logic, just as we trust evidence.
This is not to say that the argument is airtight; like most arguments, it's not. Adam Scales, among others, had some interesting counter-thoughts. But it is to say that there's a genuine argument here, backed by decades of relevant research on the ways in which prices reflect risk. Evidence for a general principle is evidence for a special case.
I'll close with one last plug for my book, which is dedicated to the proposition that logic and evidence trump both idle speculation and common sense---including the idle and perhaps common-sensical (but nonetheless wrong) notion that you can improve the performance of an asset without affecting its price.
A Washington Monthly e-mail featured a column by Rachel Morris faulting Rudy Giuliani:
This Tuesday in New Hampshire, Rudy Giuliani gave a speech on terrorism that has already attracted attention for its retro (c. 2002) theme: that America is headed straight for another 9/11 if a Democrat wins the White House. "America will be safer with a Republican president," Giuliani announced. Democrats, by contrast, would simply "wave the white flag." ...
But the most disturbing thing about the speech wasn’t its style -- although milking one’s 9/11 reputation for crass political gain is, obviously, despicable. It was the rationale that lies behind it....
Now Giuliani's speech may well be unsound; I'm not a Giuliani partisan, and I have no desire to defend it on the merits. But I'm puzzled, as I often am about such arguments, by the claim that "milking one's 9/11 reputation for crass political gain is, obviously, despicable."
It seems to me that in a democracy, politicians are supposed to milk their reputations built on past successes for political gain, such as higher public office. ("Crass" here seems more a pejorative label than much of a limiting principle; Giuliani wants higher office, and that office would be no more and no less a crass political gain for him than for anyone else.) That's the incentive system: Do things that the public sees as successes. Build your reputation. Get more credibility when you discuss similar matters. Get elected or appointed to higher office when those matters are prominent in the public's mind.
Nor should there be something sacred about successes in dealing with deadly disasters or attacks that keeps them from being used this way. These are precisely the areas where we most want to give politicians an incentive to shine, and where we most want to reward politicians who have shone.
Imagine a surgeon who, in the wake of some disaster, does what many see as a superb job of saving many patients. He then goes to hospital managers and says that the hospital's patients will do better if he (rather than his rivals who he thinks haven't shown such skills) were given a promotion to an even more responsible surgical position.
Would we fault him because "milking [his] reputation [formed during a deadly disaster] for crass [careerist] gain is, obviously, despicable"? I think we'd say that it's good to make sure that hospital employees are rewarded for great performance, since that provides an extra incentive for great performance. (Sure, you'd hope that humanitarianism would be incentive enough, but harnessing selfish interests as well as selfless concerns for the public benefit produces better results than relying merely on selflessness.) And we'd probably even say that he has a point: If he did a great job before, maybe that is some evidence he'd do a great job again.
Now we might fault the surgeon if he seems too self-confident. We might ask whether indeed he performed as well as it seems at first. If he also derides his competitors, we might ask whether his criticisms are sound. But we wouldn't see anything despicable about his "milking [his] reputation" for his own professional gain. That's what professionally acquired reputations are for.
So I say again: Maybe Giuliani's speech can be faulted on all sorts of substantive grounds. But we should encourage politicians to run on their reputations, and encourage them to do things that would build reputations that can get them ahead. And this is especially so when the reputations are for sound leadership in tragic circumstances, where we need sound leadership most.
Thursday, April 26, 2007
Steve Teles on The Hollow Hope:
Steve Teles, guest-blogging at Balkinization, has a long post on Gerald Rosenberg's "The Hollow Hope." Teles is responding in part to Mark Graber, whose comments are here.
Judge Kozinski and the Blogosphere:
Professor Eric Goldman
recently hosted a talk
with Judge Kozinski of the Ninth Circuit that touched on Kozinski's views about blogs:
ERIC GOLDMAN: So but what about blogs? . . .
JUDGE ALEX KOZINSKI: I hate them, hateful things.
ERIC GOLDMAN: Why do you hate blogs? . . . .
JUDGE ALEX KOZINSKI: I just think it's so self-indulgent, you know. "Oh, I'm so proud of what I'm saying, I think the world instantly wants to know what I'm thinking today." People wake up thinking, . . . . "I wonder what great thoughts have come into his mind this morning that I can feel myself edified by. I can't really have breakfast — really enjoy my day — until I hear the great thoughts of Howard Bashman!"
I don't think so. I go for months without ever knowing what Howard has to say. So I don't know. I find it sort of self-indulgent. And I find it grandiloquent. And I find it annoying, particularly if I'm in an audience and people are sitting there typing in their computers.
Listening to the tape
, it sounds like Judge Kozinski is exaggerating a bit for comic effect. Still, I guess his views have changed a lot since his campaign to be elected the #1 Male Superhottie of the Federal Judiciary
Hat tip: Howard
The Relationship between Guns and Burglary:
Do guns in the home deter burglary? Or cause burglary? Or both, in different ways, at different levels? If you'd like to study the topic, here's are some on-line starting points.
1. My article Lawyers, Guns, and Burglars, 43 Arizona Law Review 345 (2001), looks at previous national and international research, and argues that the high rate of defensive gun ownership in the U.S. deters home invasion burglary.
2. In the book Evaluating Gun Policy: Effects on Crime and Violence (Brookings Institution, 2003), Philip J. Cook & Jens Ludwig conduct a county-level study of the U.S., and find higher gun ownership rates associated with a small increase in burglary rates. The chapter (as a NBER working paper) is available here.
3. In the same book, I have a Comment which questions the Cook/Ludwig conclusion.
Although I do not agree with all the policy conclusions in the book, the book does present very interesting research, and among the most sophisticated arguments for gun control to be found anywhere.
Kopel vs. The Economist, Round 4
Today on the Los Angeles Times website, Christopher Lockwood (U.S. editor of The Economist) and I each attempt to debunk cherished myths in the gun control debate. His article is really a reply to my Wednesday article on the international aspect of the gun issue; I think it's his best contribution so far.
Thanks to a post from a VC commenter, I was inspired to successfully convince the LA Times folks not to say that we are debunking (or attempting to debunk) "shibboleths." A shibboleth is a linguistic style (such as pronouncing a word a certain way, using a certain phrase, or using a special grammar) which a group uses to distinguish its members from outsiders. So a shibboleth can't really be "debunked" as factually inaccurate — unless it's an inefficient shibboleth, which doesn't accurately separate insiders from outsiders.
Thanks to an excellent Wikipedia entry on shibboleths, I learned that rule against splitting infinitives isn't really a true rule of English grammar, but a shibboleth invented by the late 19th-century upper class English; Latin infinitives are only a single word, so the shibboleth-makers decided that English infinitives should act more like Latin infinitives. After so many years of unnecessary non-splitting, I am now eager to freely split infinitives.
I just noticed that the Seventh Circuit — following the ancient Romans, and, if I recall correctly, the revolutionary French — has the following date format in its bar admissions certificates (emphasis added):
November third in the year of our Lord two thousand six and the Independence of the United States of America the two hundredth and thirtieth year.
Cool. The Ninth Circuit, doubtless stemming from the radicalism so often ascribed to it by critics, simply says "12th day of December, 2006" — both less God and less country, if you want to complain (which I don't).
UPDATE: A reader reports that the "year of independence" is standard on commissions for U.S. government officials.
Two Justices' Concurring Opinion in the Radio-Talk-Show-Speech-as-Regulated-"Contribution" Case:
Here's the concurrence of Justice James M. Johnson, joined by Justice Richard B. Sanders, in the Washington Supreme Court decision I noted below. The Justices are arguing in favor of awarding attorney fees to the ballot measure campaign (something that the rest of the court left to the trial court to decide in the first instance); but they also more stridently condemn the prosecutors' action:
Today we are confronted with an example of abusive prosecution by several local governments. San Juan County and the cities of Seattle, Auburn, and Kent (hereinafter Municipalities) determined to file a legal action ostensibly for disclosure of radio time spent discussing a proposed initiative. This litigation was actually for the purpose of restricting or silencing political opponents and was quickly dismissed after the filing deadline for the initiative. The disregard for core freedoms of speech and association in this case, and resulting interference with these constitutional rights, is described in the majority. The Municipalities augmented their prosecuting attorneys and legal staff with an interested private law firm to engage in this prosecution of No New Gas Tax (NNGT), in a transparent attempt to block filing of an initiative, which is also a constitutional right in Washington.
I concur with the majority's holding construing the statute in a constitutional manner to not apply to the political speech of the defendants. I write separately to emphasize that the contrary positions of the Municipalities and court below resulted in infringing constitutional rights. Thus, the majority properly reverses and remands for further proceedings. At the least, this remand requires that NNGT receive reasonable attorney fees and trial costs....
The Municipalities involved expected millions of dollars from increased tax revenue if Initiative 912 (I-912) failed to qualify for the ballot. The private law firm would potentially derive financial benefit from its role as one state bond counsel and volunteered to help litigate against NNGT "on behalf of the State of Washington." (The term "pro bono publico" is not appropriate here.)
An early motion in the Municipalities' litigation resulted in this preliminary injunction, which had the effect of requiring Fisher Communications and radio station 570 KVI to limit discussion of I-912 on the radio. NNGT argues that the "record is clear that the Municipalities sued NNGT to interfere with its efforts to pass I-912." I agree.
The preliminary injunction required that KVI's on-air commentary be counted as an in-kind campaign contribution reported before any further campaign expenditures. Since the injunction mandated nearly immediate reporting, and it was not possible to completely segregate the relevant portions of the talk show, almost all the air time was reported. The full effect of this injunction's characterization of talk show commentary as in-kind contribution is evident when RCW 42.17.105(8) is also considered. That statute states in relevant part any in-kind campaign contribution in excess of $5,000, within 21 days of the general election, is a violation of the Fair Campaign Practices Act (FCPA). Id. Thus, the injunction was "chilling" of speech because of the substantial risk that KVI on-air commentary regarding NNGT, in the three weeks preceding the general election, would be a donation in excess of the $5,000 cap, thereby incurring financial sanctions. The majority noted that the Public Disclosure Commission (PDC) determined after the preliminary injunction that the $5,000 limit would apply. Additionally, the Municipalities' complaint requested penalties, treble damages, attorney fees, and costs....
Clearly, "the First Amendment prohibits the State from silencing speech it disapproves, particularly silencing criticism of government itself. Threats of coerced silence chill uninhibited political debate and undermine the very purpose of the First Amendment." Prosecutors must not use the threat of a punitive lawsuit, amounting to an unconstitutional prior restraint on free speech, to block political opponents from exercising their constitutional rights.
Granting NNGT complete reasonable attorney fees and trial costs is appropriate and required here. This may serve to deter future state actors from using their authority to act similarly to deprive individuals of constitutional rights of speech (or initiative)....
In the instant case, it appears that the Municipalities' prosecution of the case, and especially the preliminary injunction, was calculated to muzzle media support of the NNGT initiative. This behavior sought to keep the initiative from ballot qualification during the very limited window between passage of the disputed legislation and the initiative filing deadline. This lawsuit was not justified under the law (the majority so holds) and was offensive to the notion of free and open debate.
By the way, congratulations to our own Erik Jaffe, who I just noticed was on two of the amicus briefs in this case.
What About Bloggers Arguing for Ballot Measures in Washington State?
As I note below, the Washington Supreme Court just confirmed that radio talk show hosts' advocacy of a ballot measure is not regulated as a campaign "contribution" under Washington state law, because the advocacy is exempted by the "media exemption," which excludes
A news item, feature, commentary, or editorial in a regularly scheduled news medium that is of primary interest to the general public, that is in a news medium controlled by a person whose business is that news medium, and that is not controlled by a candidate or a political committee ....
But what if a part-time but very popular blogger (think of the PowerLine people, for instance) advocates for a ballot measure? Uh-oh -- the media exemption only covers media "controlled by a person whose business is that news medium." The site is likely a "news medium" (news is understood here to include opinion). But even if the site makes some money, if it's a part-time sideline for the blogger (assume it's a solo blog, just for the sake of simplicity), it doesn't sound quite accurate to say that the blogger's "business is that news medium." And that's even clearer if the site makes no money at all, or only a tiny amount (not implausible even for a site that's prominent enough that its backing may be quite valuable to a campaign).
The blog posts supporting the ballot measure may thus have to be reported as contributions. What's more, state law would limit them to $5,000 worth of help (whatever that means for a blog) "within 21 days prior to [the] election."
So too bad for you, concerned citizen: Unless your "business is [a] news medium," you're regulated. The established, professional media are of course exempt; but, no, not you.
This fortunately doesn't seem to be the case under federal law (though we can't be entirely certain); but though the Washington Supreme Court's decision suggests that Washington courts interpreting the Washington statute should generally follow federal courts' interpretation of the federal statute, here there is an express statutory difference between the two statutes -- the Washington statute has the "business is that news medium" clause, and the federal one doesn't.
Talk Show Hosts Allowed To Freely Advocate for Ballot Measure:
You might think there wouldn't need to be a court decision about this — but it turns out such a decision was necessary. Some excerpts from today's Washington Supreme Court opinion:
Kirby Wilbur and John Carlson are radio talk show hosts with regularly scheduled programs on 570 KVI AM, a radio station owned by Fisher Communications, Inc. During their broadcasts, Wilbur and Carlson typically discuss their views on political and social issues. Fisher charges for political advertising during the "commercial" segments of its radio programs, but it does not charge for the value of any content time associated with Wilbur's and Carlson's talk shows.
Wilbur and Carlson strongly criticized the legislature's enactment of the fuel tax and devoted a substantial portion of their radio broadcasts to supporting the I-912 [No New Gas Tax / NNGT] campaign. In particular, they encouraged listeners to contribute funds to NNGT, to visit NNGT's web site and offices to obtain petitions, and to circulate and gather signatures on the petitions in order to qualify the initiative for the ballot.
On June 22, 2005, the prosecuting authorities of San Juan County and the cities of Kent, Auburn, and Seattle filed a complaint against NNGT, alleging that it violated the disclosure provisions of the FCPA by, in part, failing to report "valuable radio announcer professional services and valuable commercial radio air-time" as a campaign "contribution" under RCW 42.17.020(15)(a)....
About two weeks before the deadline to qualify the initiative for the ballot, the prosecutors sought an injunction to prevent NNGT "from accepting in-kind contributions from Fisher Communications" until it complied with the disclosure requirements. The prosecutors also sought fines, investigation costs, and an award of attorney fees....
The trial court granted a preliminary injunction, finding that NNGT had received "contributions of air time for political advertising purposes in support of Initiative 912 from Fisher Communications, owner and operator of the radio station 570 KVI." The court also found that Fisher's "donation of free air time" is a reportable "contribution" and required NNGT to disclose its value to the PDC.
Counsel for NNGT requested clarification of the trial court's order, stating, "I'm not sure what you're asking us to do, and here is my problem, your Honor. How are we to decide what is political advertising and what's not?" The trial court declined to clarify its order, stating "you have the same problem that any other candidate or campaign has in trying to understand how to make full reporting, and I'm not inclined to treat you any differently." In compliance with the order, NNGT reported a $20,000 contribution from Fisher Communications. NNGT also reported the value of other media discussions in support of the ballot measure....
But this wasn't just about disclosure: In addition to the disclosure requirement, Washington law "ma[kes] it illegal to either give or receive a contribution of more than $5,000 to any campaign within 21 days of an election." NNGT therefore asked the court of appeals to issue an emergency stay of the court order:
Fisher's vice-president and general manager, Robert I. Dunlop [Fisher is the company that owns the radio station], signed a declaration stating:
We would have no way to assess when or whether a "$5,000" threshold would be crossed. Therefore, I will have to direct Mr. Carlson and Mr. Wilbur to not discuss I-912 during the content portions on their programs to avoid this risk [of violating the contribution limit] because Fisher Seattle Radio does not wish to face a possible prosecution for violation of the Fair Campaign Practices Act
The court of appeals denied the stay.
Now the good news: The Washington Supreme Court held that the trial court's decision is wrong, and that talk show hosts are covered by the "media exemption" from Washington campaign finance law — an exemption that excludes from regulated "contributions" any
news item, feature, commentary, or editorial in a regularly scheduled news medium that is of primary interest to the general public, that is in a news medium controlled by a person whose business is that news medium, and that is not controlled by a candidate or a political committe even when they spend a lot of time supporting a campaign.
This is true regardless of whether the talk show hosts get heavily involved in the political campaign, and whether they coordinate their speech with the campaign committee. It is also true regardless of whether the talk show hosts encourage listeners to contribute to the compaign; the Washington Supreme Court expressly overruled a Washington Public Disclosure Commission declaratory order stating that "if the talk show host uses the air time to solicit votes, funds, or volunteer services, or expressly advocates either in favor of his campaign or for the defeat of his opponent, the air time constitutes a reportable contribution."
As I said, one would have hoped that it wouldn't take years of litigation, even temporary suspension of talk show hosts' political advocacy, and who knows how much money (though apparently it was the Institute for Justice's money) to establish this. Still, at least it's established — at least in Washington. Congratulations and many thanks to the Institute for Justice's Washington State chapter for the victory.
Of course, keep in mind that, "We note that nothing in our decision today forecloses the legislature, or the people via the initiative process, from limiting the statutory media exemption. Whether, and to what extent, a media exemption is constitutionally required is beyond the scope of this opinion." So maybe the Washington legislature could, according to modern campaign finance law, heavily regulate talk show hosts, and even shut down their advocacy (if the $5000 contribution cap, and not just the disclosure requirement, were upheld — something I don't think could happen, given the Supreme Court's First National Bank of Boston v. Bellotti decision, but who knows?). A pretty sad state of affairs, it seems to me, despite the happy result in this particular decision. (For more on the sadness, see the next post in this chain, which discusses why part-time bloggers may be excluded from this protection.)
Choosing among Climate Policy Instruments:
The climate policy debate is rapidly moving away from the question of whether action should be taken and toward the question of what sort of policy should be implemented. In this context, many advocate market-based emission control strategies as a means of reducing the inevitable costs of controlling carbon emissions, but what sorts of market-based policies are truly desirable?
In theory, there is not much difference between a pollution tax and a tradeable emission credit regime. In theory this is correct because a supply limitation can operate as a tax, and vice-versa. In practice, of course, the two programs are not equivalent. Among other things, policy makers lack the necessary information to know what tax level would be equivalent to what supply restraint, but this is hardly the only difference.
As is so often the case, transactions costs are important in choosing between available environmental policy instruments. There are significant transaction costs to creating either a pollution tax or an emission trading scheme, but the costs are unlikely to be the same. As the economist Ronald Coase pointed out in his work on firms, hierarchical command structures are sometimes less costly than competitive market transactions due to transaction costs. This is why we see non-market firm structures in the marketplace. The prevalence of these firm structures will diminish (or shift) as entrepreneurs find ways of reducing transaction costs. In the meantime, however, we should expect to see many successful firms with hierarchical command structures.
In the environmental context, the persistence of transaction costs means that market-mechanisms are not always more efficient or cost-effective than their command-and-control alternatives. This is particularly true when one is dealing with pollution problems that are highly dispersed and involve a wide range of different types of pollution sources. It may be relatively easy to design and implement a trading regime for sulfur emissions from utilities or the lead content of gasoline. It is much more difficult to have a reliable and enforceable trading regime for carbon dioxide emissions from non-industrial activities. The upshot is that a trading regime will not always be more cost-effective than a more traditional regulatory regime if it is more costly to monitor and enforce (see, e.g., carbon offsets). Pollution taxes have their own problems, to be sure, but in my experience the drawbacks of a new tax are more readily apparent, and more quickly seized upon, than the potential drawbacks of trading schemes.
Another consideration in choosing between various emission control strategies is that there is reason to believe that cap-and-trade programs are more vulnerable to rent seeking than are emission taxes designed to achieve equivalent reduction levels. Implementation of a cap-and-trade regime requires many more decisions about regulatory design than a tax regime, and that each decision presents the opportunity for rent-seeking behavior. While a tax can be designed to be relatively uniform, implementing a trading scheme necessarily requires many decisions about how to allocate and value allowances – e.g. are the allowances to be allocated by auction, lottery, or past behavior? If by lottery, how is participation determined? If by past behavior, what behavior counts? What is the relevant time period? Is it purely retrospective, or partially prospective? What metric is to be used to evaluate comparable, but not identical, activities? Must some allowances be discounted in certain sectors to account for monitoring or enforcement problems? And so on. Users of allowances are not the only with something to gain through rent-seeking, those who seek to trade or broker allowances can also capture rents by influencing program design. (This was one of the reasons Enron fought so hard to get the Bush Administration to endorse carbon trading.) Insofar as rent-seeking involves a socially wasteful (and at times, even destructive) use of resources, the vulnerability of a system to rent-seeking should be a relevant consideration when choosing between various policy instruments.
The bottom line for me is that there is no one-size-fits-all answer to how to control harmful emissions. I like markets more than most, and readily advocate property rights solutions to environmental problems where they are viable (see here and here). Among other things, property rights approaches appear to create more powerful incentives to reduce transaction costs over time than do regulatory interventions. Lacking enforceable property rights in the relevant resources, or a ready means to move in that direction, we are inevitably forced to choose between a variety of imperfect policies. What sort of policy makes the most sense in a given context will depend upon a wide range of context-specific factors. In some cases cap-and-trade will work best. In others, traditional command-and-control or a pollution tax is the least bad option. In still others, we are best off adopting some sort of liability scheme or even doing little or nothing until other alternatives become more cost-effective.
In the climate context, at present, I would be inclined to support a carbon tax over a cap-and-trade scheme. If I had my way, a carbon tax would replace some other tax(es), such as the corporate income tax, and would be designed to be revenue neutral. But before implementing such a tax, I would do other things, such as replacing all energy subsidies, including those for renewable energy, with "http://volokh.com/posts/1170343187.shtml">prizes" for meaningful technological breakthroughs. For more of my recent thoughts on climate policy, see here and here.
Related Posts (on one page):
- "Capitalism Against Climate Change":
- Choosing among Climate Policy Instruments:
Virtual Analogies, Physical Searches, and the Fourth Amendment:
The Tenth Circuit has handed down an opinion on how the Fourth Amendment applies to computers that raises a fascinating clash between virtual analogies and physical facts. The case involves the effect of user profiles and password protection on third-party consent rights, which turns out to be an issue that has a lot of practical importance for computer forensic searches; it's certainly come up in discussions within the government, and now for the first time a court has suggested the framework for an answer. The case is United States v. Andrus
Here's the quick version of the facts. The cops think that Ray Andrus may have downloaded child pornography onto his home computer, so they go to his house to do a "knock and talk." Andrus lives with his elderly parents, and Andrus's elderly father is the only one home. The father consents to the cops searching his home and any computers there. The cops take away a computer, and then search it off-site using computer forensic software. They quickly find child pornography.
Okay, now here's the interesting twist. After the agents discover the child pornography, they learned that the child pornography files were accessible to users only using the son's user profile, which was protected by a password that the father did not know. That is, a user wanting to find the file would need to know the son's password to see it; to another user, the file would be hidden. How could that happen? As I have explained in this article
, there are two basic ways to search a computer:
[D]igital evidence searches generally occur at both a "logical" or "virtual" level and a "physical" level. The distinction between physical searches and logical searches is fundamental in computer forensics: while a logical search is based on the file systems found on the hard drive as presented by the operating system, a physical search identifies and recovers data across the entire physical drive without regard to the file system.
Most users think of computer searches as occuring at the virtual level, because that's the user experience. But computer forensic software works at the physical level: it treats the hard drive as a physical device that contains millions of zeros and one, not as a virtual "box" of information accessed through an operating system. User profiles and most password protection operate only at a virtual level, so a goverment forensic analyst operating at a physical level wouldn't even notice the difference unless he was specifically looking for it.
Why does it matter? Well, it matters because the answer to the legal question seems to hinge on whether you apply the Fourth Amendment from a virtual perspective or a physical perspective. From a virtual user's perspective, the child pornography was hidden to the father; it was behind a password-protected gate. Under these facts, the father couldn't consent to a search because he would lack common authority over it. From a physical perspective, however, the file was present on the hard drive just like all the other information. Under these facts, the father could consent to the search because he had access rights to the machine generally. It's the classic problem of perspective that I wrote about in the Georgetown Law Journal
in 2003: the facts hinge on whether you take a physical (external) or virtual (internal) perspective.
The Court divided on which perspective to take. The majority (Judge Murphy, joined by the recently-arrived Judge Gorsuch) did not directly address the question of "common authority," relying instead on the "apparent authority" doctrine. Under the apparent authority doctrine, officers can rely on third-party consent if they reasonably conclude that a person has the right to provide consent even if later turns out that he doesn't. This was a sensible move by the majority, because the apparent authority doctrine focuses more on the physical perspective that the officers have rather than a virtual perspective that a user has. Viewed from the physical perspective, the investigators reasonably did not know about the user profile and reasonably believed that the father had rights to consent to that part of the hard drive.
Judge McKay dissented, and instead adopted a virtual perspective. To Judge McKay, the virtual perspective was the only one that mattered: a computer file was a container, and a password-protected computer file was a locked container. Using forensic software to look at a computer from a physical perspective was therefore avoiding the virtual locks. Judge McKay argued that officers should not be allowed to rely on the apparent authority from the physical perspective without first making an inquiry into whether there might be password protection of some kind from a virtual perspective.
I think the majority is probably right, but it's a tremendously interesting case either way. How do you measure the reasonableness of a belief when understandings of what computers are and how they work are so different among typical users and forensic analysts? Should the law follow the understandings of the experts who understand the techology or the general users who don't?
Thanks to Howard
for the link.
Can Carbon Offsets Be Confirmed?
Many celebrities have sought to burnish their environmental credentials by purchasing "carbon offsets" to compensate for their lavish lifestyles. Former vice president Al Gore, among others, claims the purchase of such offsets enables him to live a "carbon neutral" lifestyle, despite his conspicuous energy consumption. Think of these carbon offsets as environmental indulgences. Some corporations have also begun to purchase carbon offsets so as to reduce their net carbon dioxide emissions.
An investigation by the Financial Times suggests that many carbon offsets are illusory, and that there is little assurance that purchasing carbon offsets does much of anything to reduce carbon dioxide emissions. Specifically, the report found:
- Widespread instances of people and organisations buying worthless credits that do not yield any reductions in carbon emissions.
- Industrial companies profiting from doing very little – or from gaining carbon credits on the basis of efficiency gains from which they have already benefited substantially.
- Brokers providing services of questionable or no value.
- A shortage of verification, making it difficult for buyers to assess the true value of carbon credits.
- Companies and individuals being charged over the odds for the private purchase of European Union carbon permits that have plummeted in value because they do not result in emissions cuts.
The idea of markets for carbon emissions is a good one. If carbon dioxide emissions need to be reduced, it makes sense to achieve those reductions in the most cost-effective manner possible. Carbon credits can also enable those with stronger environmental preferences to take additional voluntary action, such as celebrity carbon offset purchasers have purported to do. The problem is that offset plans can often be more difficult and costly to verify than more traditional means of controlling emissions. When these costs are factored in, it is not always the case that such market-based approaches are more cost-effective than more clumsy alternatives.
The bottom line is that if Al Gore and Leo DiCaprio truly want to be sure they are reducing their carbon footprint, they are going to have to reduce their own energy consumption, rather than paying others to do it for them.
House Hearing Testimony, "Credit Card Practices"
Today I will be testifying before the United States House of Representatives,
Financial Services Committee, Subcommittee on Financial Institutions and Consumer Credit, hearing on “Credit Card Practices: Current Consumer and Regulatory Issues.”
For journalists and others who may be interested, an electronic copy of my testimony, which contains all of the relevant Figures (which are usually not displayed when the testimony is posted on Congress's web site), is available here.
FCC Targets TV Violence:
A new report from the Federal Communications Commission (FCC) endorses claims that TV violence can increase violent behavior in children, and that existing parental controls are ineffective at limiting child exposure to violent programming. As a consequence, the FCC is encouraging Congressional action to curb "excessively violent programming" on TV.
Among the measures the FCC suggests could be effective, and survive First Amendment scrutiny, are limits on violent programming during certain hours and a requirement that cable companies offer "a la carte" channel selection for consumers. FCC Chairman Kevin Martin commented that the prospect of a legal challenge to some restrcitions should not dissuade Congress from acting. The FCC report was adopted unanimously by the Commission, although two of the five commissioners expressed some concerns. Senatory Jay Rockefeller (D-WV) said he expects to file legislation based upon the FCC's recommendations.
Here is coverage on the report from the Washington Post, LA Times, and AP.
Economists have long observed that regulators at, say, the Food and Drug Adminstration face unbalanced incentives. When people die because an unsafe drug got FDA approval, everybody blames the commissioners. When people die because a potentially lifesaving drug never made it to the marketplace (or was never developed in the first place because of costly regulations), the FDA's role is largely invisible. Therefore the commissioners are biased toward excessive caution.
I know of no perfect solution to this problem, but in my new book I've offered an imperfect one: Require the FDA commissioners to hold large portfolios of pharmaceutical stock. Then they'd share in both the costs and the benefits of bringing drugs quickly to the marketplace.
This solution is imperfect because, for example, the commissioners might create roadblocks for Cialis just to keep the price of Viagra high. But with a little fine tuning it could be better than what we have now.
At the same time, we can require airline regulators hold airline stocks, make auto safety regulators hold auto company stocks, and make the Justice Department's obscenity watchdogs hold Internet stocks.
And as for the President of the United States, whose job is to make the entire country a better place to live, a diversified portfolio of American land---a shopping center in New Jersey, a ranch in Montana, some beachfront property in Monterey---might be just the ticket. To a first approximation, the President is doiing a good job when land values in the United States are high. Why shouldn't his pay package reflect that?
Wednesday, April 25, 2007
The Chief's Last Line in Abdul-Kabir:
Chief Justice Roberts' dissent today in Abdul-Kabir v. Quarterman
ends with a serious zinger aimed at Justice Stevens.
By way of background, this case considered whether the Texas courts had misapplied "clearly established" U.S. Supreme Court law in a death penalty case. In the dissenters' view — which I tend to think is right, although I'm not an expert in this area — the majority opinion is pretty much a fudge. The majority wanted to grant relief, so they tried to make the law seem "clearly established" when it really wasn't. To do this, the majority had to get a little creative in what kind of U.S. Supreme Court law it thought could "clearly establish" the law. Of particular note, today's majority opinion by Justice Stevens twice cites a dissent
Justice Stevens wrote in a 1988 case for authority that a particular view of the law was "clearly established."
At the end of his dissent today, Chief Justice Roberts mocks the idea of getting clearly established law from a dissent. Here's the last paragraph:
Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented clearly established federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc. Encouraged by the majority's determination that the future can change the past, I respectfully dissent.
(I believe "tunc pro nunc" means "then for now," suggesting that the dissent will always have this effect.)
Ouch. Of course, whether it's wise to use zingers like that can be hard to tell.
Thanks to Amy Howe
for flagging the passage.
Are Congressional Grants of Immunity, as Currently Implemented, Constitutional?
The House Judiciary Committee wants Monica Goodling to testify at a hearing about the firing of the U.S. Attorneys. Goodling pleads the Fifth. The House Judiciary Committee did what prosecutors often do when they want someone to testify despite the privilege against self-incrimination -- they granted immunity against prosecution based on the testimony. This means Goodling need no longer worry that her testimony will incriminate herself about past crimes, and thus can't claim the Fifth Amendment. (She still has to testify truthfully, or face a perjury prosecution, but the Fifth Amendment doesn't speak to that.)
But is this constitutional? My sister-in-law Hanah Metchis Volokh has a new article arguing that it's not, because such unilateral action by a House Committee violates the separation of powers. (Of course, the article is about immunity grants generally, not the Goodling grant in particular.) Here's an excerpt from the Introduction:
The privilege against self-incrimination requires the government to make a decision: it can either prosecute someone on criminal charges and allow him to remain silent, or it can grant immunity, compel him to testify, and give up the prosecution. In some circumstances, compelled testimony is a good choice -- it can lead to the conviction of a "bigger fish" or allow Congress to gather information that will lead to beneficial legislation or better government oversight. In other cases, the compelled testimony would bring disappointing results and a criminal would nonetheless go free.
The essential separation of powers question is whether Congress has the constitutional authority to make the choice between these competing goals, or whether that choice is committed to the prosecutorial discretion of the executive branch. A federal statute, 18 U.S.C. § 6005, allows a single house or committee of Congress to vote to grant a congressional witness immunity from prosecution, thereby requiring the witness to give full and complete testimony at the hearing.
I argue in this Note that the congressional immunity statute is unconstitutional because it violates separation of powers doctrine. The statute unconstitutionally allows a committee of Congress to dictate prosecutorial decisions to the executive branch and to make changes to legal rights and duties without using the legislative process laid out in the Constitution. Whether the power to grant immunity is characterized as executive or legislative, it may not be exercised by a congressional committee. The decision whether or not to prosecute and the decision of which evidence should be used in pursuing a conviction are matters within executive branch control. Congress can make binding decisions in these areas only by statute.
Kopel vs. The Economist: Round 3
Today's topic is "Should we be concerned that so much of the rest of the developed world believes U.S. gun laws are crazy?" Surprisingly, Economist U.S. editor Christopher Lockwood says "no", while I say "yes."
Unregulating at OSHA:
Today’s New York Times features an extensive report on the actions (or lack thereof) at the Occupational Safety and Health Administration (OSHA) under the Bush Administration. The story reports the unsurprising fact that the current administration is less aggressive at promulgating new workplace safety regulations than the Clinton Administration.
Since George W. Bush became president, OSHA has issued the fewest significant standards in its history, public health experts say. It has imposed only one major safety rule. The only significant health standard it issued was ordered by a federal court.
The agency has killed dozens of existing and proposed regulations and delayed adopting others. For example, OSHA has repeatedly identified silica dust, which can cause lung cancer, and construction site noise as health hazards that warrant new safeguards for nearly three million workers, but it has yet to require them.
The story contains several anecdotal accounts of Bush Administration inaction and a brief description of the administration’s preferred approach of “voluntary compliance,” whereby OSHA facilitates industry self-policing efforts.
Administration officials say such programs are less costly, allowing companies to hire more workers and keep consumer prices down. The number of voluntary agreements has grown in recent years, but they cover a fraction of the seven million work sites that OSHA oversees, or less than 1 percent of the work force. Sixty-one food plants out of the tens of thousands across the country participate; industry representatives say other businesses are taking steps to protect workers on their own.
The story quotes various critics of the administration’s policies, recounts various anecdotes about specific safety issues, and suggests that the change in policy is placing workers at risk. Data on the rate of workplace fatalities and injuries do not appear to bear out that claim, however. According to the administration, “workplace deaths and injuries have declined during their tenure.” Notes the Times
, “OSHA officials say that since 2001, the fatality rate has declined by 7 percent and the injury rate by 19 percent.” Critics discount these numbers, but the story offers no contrary data. BLS data seem to support the agency’s claims. (See here
The promulgation of new regulations and level of enforcement activity are poor proxies for workplace protection. Whether or not Bush administration bureaucrats are busy regulating and monitoring industrial workplaces is less important than whether or not workers are exposed to unreasonable or uncompensated risks. If workplace injuries and fatalities are on the decline, as they appear to be (and as they were prior to the creation of OSHA), the relevant question is whether OSHA has the ability to accelerate this trend in a cost-effective manner. If not, there is no reason to be upset if this or any other administration has taken the OSHA cop off the beat.
This Sen. Reid Statement, on the Other Hand, Is Likely Just a Joke:
The New York Times quotes Sen. Reid as saying, "I’m not going to get into a name-calling match with somebody who has a 9 percent approval rating." The Mystery Pollster points out that "Perhaps that was a bit of rhetorical excess, because while Cheney's ratings are low [29-34%], they are a long way from 9%."
Well, yes, but it's a form of "rhetorical excess" that probably fits in the category of "joke." My sense is that 9% for a sitting President or Vice-President is so ridiculously and obviously low (at least setting aside extraordinary scandals not present here) that Reid is using it as a jocular way of saying "very low" -- rather like someone might say "Jane Schmane is a thousand years old" to mean "Jane Schmane is very old." True, "thousand years old" is physically impossible while "9 percent approval rating" is just extremely improbable, but the improbability is so extreme that they seem to be in the same ballpark.
I realize that some laypeople might miss the jocular hyperbole, but I suspect it will be very few. And Reid was apparently speaking to reporters, and in that context even someone who realizes he may be quoted might be pitching his off-the-cuff comments at the sophistication level of the audience that is present.
Related Posts (on one page):
- This Sen. Reid Statement, on the Other Hand, Is Likely Just a Joke:
- Did Gen. Petraeus Say "The War Can't Be Won Militarily"?
Did Gen. Petraeus Say "The War Can't Be Won Militarily"?
Here's a transcript of a CNN interview; Dana Bash is the interviewer:
BASH: Arlen Specter, a Republican, but somebody who, in many ways, is like you, a critic of the president's Iraq policy. He said this. He said: "For men and women who are over in Iraq to have somebody of Senator Reid's stature say that the war is lost, it is just very, very demoralizing and not necessary."
Is there something to that, an 18- and 19-year-old person in the service in Iraq who is serving, risking their lives, in some cases losing their life, hearing somebody like you back in Washington saying that they're fighting for a lost cause?
REID: General Petraeus has told them that.
BASH: How has he said that?
REID: He said the war can't be won militarily. He said that. I mean he said it. He's the commander on the ground there.
BASH: But, sir, there's a difference...
REID: Are they critical of him?
BASH: ... between that and saying the war is lost, don't you think?
REID: Well, I — as I said, maybe it's a choice of words. I mean General Petraeus has said the war cannot be won militarily.
Doesn't every soldier going there know that he's said that?
I think so.
Jules Crittenden looked for what Gen. Petraeus actually said on the topic, and he believes the closest Petraeus has come to is in this (I pulled it out of a longer version of the transcript):
Q (Through interpreter.) ... You said that the host country can determine who are the reconcilable groups. But everybody should be under the supremacy of law, and all military activities should be cancelled. So how are these people going to be part of the solution?
GEN. PETRAEUS: ... With respect, again, to the — you know, the idea of the reconcilables and the irreconcilables, this is something in which the Iraqi government obviously has the lead. It is something that they have sought to — in some cases, to reach out. And I think, again, that any student of history recognizes that there is no military solution to a problem like that in Iraq, to the insurgency of Iraq. Military action is necessary to help improve security, for all the reasons that I stated in my remarks, but it is not sufficient.
A political resolution of various differences, of this legislation, of various senses that people do not have a stake in the success of the new Iraq, and so forth, that is crucial. That is what will determine in the long run the success of this effort. And again, that clearly has to include talking with and eventually reconciling differences with some of those who have felt that the new Iraq did not have a place for them, whereas I think, again, Prime Minister Maliki clearly believes that it does, and I think that his actions will demonstrate that, along with the other ministers....
Two questions: (1) Was Crittenden mistaken, and did Gen. Petraeus say something else that fits Sen. Reid's statement?
(2) If Crittenden is right, and this is the statement that Sen. Reid is alluding to, then isn't there a very big difference between Gen. Petraeus's
[T]here is no military solution to a problem like that in Iraq, to the insurgency of Iraq. Military action is necessary to help improve security, for all the reasons that I stated in my remarks, but it is not sufficient.
— which is to say that the war cannot be won solely militarily, but requires a combination of military and political action — and Sen. Reid's characterization of that statement, which is "He said the war can't be won militarily" as support for the proposition that "they're fighting for a lost cause"?
This Blog Contains Offensive Content -- Businesses, Be Aggressive About Preventing Users from Accessing It:
Ars Technica reports:
[A]ccording to a new report by ScanSafe, a vast majority of blogs host content that is considered "offensive" and potentially "unwanted." ScanSafe's Monthly "Global Threat Report" for March 2007 says that up to 80 percent of blogs host offensive content, ranging from "adult language" to pornographic images. The company suggests that businesses should be aggressive about preventing users from accessing some or all of this material. And of course, they'd hope that you'd use their products to do so.
But what's offensive? "A blog merely has to contain a single instance of profanity to be considered offensive, according to ScanSafe." Given that we have no hesitation about quoting material containing profanity, or using it as examples — for instance, I would never replace "fuck" in a quote with "f-word" or "f---" — we doubtless use many such words (though I'm pretty sure that you'll almost never see us use such terms in our own voice in anger).
Treating a site as "offensive" on these grounds strikes me as a pretty silly exercise — perhaps suitable if you're trying to shield your 6-year-old (though I doubt that trying to block Internet profanity is an effective way of trying to keep your 6-year-old from using profanity), but surely not if you're trying to protect your business.
Thanks to InstaPundit for the pointer.
Federalist Society Online Debate on the Partial Birth Abortion case:
As part of its new on-line debate series, the Federalist Society is posting a debate on Gonzales v. Carhart upholding the constitutionality of the federal Partial Birth Abortion Act. The debate is principally between Professors Doug Kmiec and Erwin Chemerinsky, but I added my 2 cents. Others such as John Chapman will be commenting later. You can read the entire debate and post your comments here
. Here is my response to the initial postings of Kmiec and Chemerinsky:
Both of my friends, Doug Kmiec and Erwin Chemerinsky are partially correct. Doug is right that Gonzales v. Carhart does not directly threaten a women’s right to choose to have an abortion. Irwin is right that Carhart does change current law — in particular, the important holding of Stenberg v. Carhart — and, in my view, for the worse.
First, as to the right to have an abortion, because other procedures remain protected, abortions will still be legally available. This procedure was banned because, as popularly described, it seems a lot like infanticide. While pro-life proponents claim all abortions are indistinguishable from infanticide, pro-choice advocates must draw a line between one and the other. Viability — the stage at which a fetus can live outside the womb independently of the mother — provides a useful line because it gives women considerable time to decide whether or not to bear a child. After viability, the only compelling reason for an abortion of any kind is to protect the life or health of the mother, rather than because of family planning.
If “partial birth abortion” consists of the partial delivery of a viable fetus before killing, it certainly looks a lot like infanticide, which is why the federal ban was popular enough to pass. A law banning only this would not be problematic, but merely draw a line between abortion and infanticide in a somewhat different place than is now drawn.
But this statute goes further in two ways: first, it bans the use of this procedure throughout pregnancy, even before viability. Second, it makes no exception to protect the health of the mother. The fact that the procedure is banned before viability means the procedure is not akin to infanticide, unless one believes that all abortion is infanticide, which the Court currently denies. By the same token, the fact that no exception to the ban is made to preserve the health of the mother is evidence that this is about more than preventing infanticide. After all, the very same act is allowed under the statute if necessary in the opinion of a physician to protect the life of the mother, in which case the act itself does not constitute infanticide. So, even though the case does not strike at the heart of the judicial protection of abortion, pro-choice advocates are right to be concerned.
Regrettably, by defining the “health” of the mother so broadly, pro-choice advocates brought this problem on themselves. If a health exception applies, for example, to the emotional health of the mother, then it is the exception that will always swallow the rule, as opponents of partial birth abortion rightly complain. Had the Partial Birth Abortion Act contained a narrowly defined exception for the physical health of the mother, even many pro-choice advocates might have supported it.
What is most unfortunate is how Carhart weakened the constitutional rights of all patients. To reach its result, the Court had to eviscerate the approach it had adopted in 2000, over Justice Kennedy’s strident dissent, in the case of Stenberg v. Carhart. (So much for stare decisis!) Put simply, in Stenberg, the Court held that, if there was substantial disagreement among medical authorities over whether a medical procedure such as this one was necessary to preserve the health of the mother, then a woman and her physician could make the choice. In Carhart, however, Justice Kennedy adopted a rational basis standard to uphold the judgment of Congress that such a procedure was never necessary to protect the health of the mother. This means that, contrary to Stenberg, whenever there is a substantial disagreement among medical authorities, Congress gets to make the decision. After all, however it decides it will be supported by some substantial body of medical opinion.
But why should this be? Putting abortion to one side, why should not a patient and her doctor have the liberty to decide on a course of medical treatment so long as their judgment is supported by a substantial body of medical opinion? In other words, when it comes to preserving one’s life and health, why should not individual choice, as opposed to Congressional choice, be protected when supported by a rational basis?
The overlooked tragedy of Carhart is that the rights of all patients to preserve their lives and health were seriously weakened by the overreaching of both sides of the abortion debate: by abortion supporters who interpreted a health exception as completely open-ended and by abortion opponents who pushed for a ban that applied before viability and that did not include a narrowly drafted exception for the physical health of the mother. In Carhart, the sick and dying are another collateral damage of the abortion wars. And so too, for that matter, was the enumerated powers scheme of Article I, but since the Court did not address that issue, neither will I.
Condorcet and the Constitution:
My colleague Nick Rosenkranz has a very interesting article in the latest issue of the Stanford Law Review (Vol. 59, No. 5, p. 1281, 2007) on the relevance of foreign law for interpreting and construing the U.S. Constitution. I read his paper in draft and found the connections he discovered between the founders and Condorcet to be remarkable. It's a beautiful piece of work. You can download it here
. This is the abstract:
In a recent issue of the Stanford Law Review, Eric Posner and Cass Sunstein offered a new argument for reliance on foreign law in interpreting the U.S. Constitution. They contended that the Condorcet Jury Theorem supports the practice, because it demonstrates that, under certain circumstances, the majority view of foreign governments is very likely to be "correct." This invited Response concludes that, neat as it is, the Posner-Sunstein argument puts the cart before the horse. Their article begins with the Condorcet Jury Theorem, which it presents in an entirely ahistorical way. Only afterwards does it turn, briefly, to the U.S. Constitution. This Response demonstrates how one might approach the same question from a more traditional starting point — constitutional text, history, and structure. As it turns out, Condorcet and his Jury Theorem do have a proper role to play in this discussion, but it is quite different from the one that Posner and Sunstein suggest. While there are, in fact, intriguing historical connections between Condorcet and the Framers, the Constitution that the Framers ultimately wrote demonstrates a conception of governmental structure sharply different from that of Condorcet. In short, Condorcet's ideas can usefully inform constitutional interpretation — but primarily by way of contrast. It turns out that Condorcet's vision of law and politics was distinctly "universalist," imagining all people everywhere seeking the correct answer to questions of law and policy. This universalist vision is central to the Jury Theorem, the most basic condition of which is that each "juror" answer the same question. And it is also essential to the Posner-Sunstein application of the Theorem, which posits that questions of law will often be relevantly similar from country to country. But the Framers' vision, as reflected in many of the Constitution's textual and structural features, was distinctly more localist. As careful analysis of features like bicameralism, federalism, juries, and the amendment mechanism demonstrate, the Constitution favors decision-making mechanisms that harness multiple collective bodies with distinctly varied geographic and institutional perspectives, each answering subtly different questions. In short, despite Condorcet, the Constitution itself ultimately refutes the notion that it should be interpreted by reference to the law of other states.
The New Roberts Court on the Death Penalty:
The Supreme Court handed down three opinions on the death penalty this morning. All three cases involved jury instructions in cases from Texas. In all three cases, the lower court denied relief. This morning, the Supreme Court reversed each case 5-4, ruling in favor of the defendant in all three cases. In each case, Stevens, Kennedy, Souter, Ginsburg, and Breyer were in the majority; Roberts, Scalia, Thomas, and Alito dissented.
In two cases, Abdul-Kabir v. Quarterman
and Brewer v. Quarterman
,the Court found that the Texas state courts had "unreasonably applied" U.S. Supreme Court law on jury instructions, entitling the defendants to relief even under AEDPA. Chief Justice Roberts wrote a vigorous consolidated dissent in the two cases that accused the majority of being "revisionist" in light of AEDPA's deferential standard. According to Roberts, the majority was fudging the AEPDA standard to provide relief:
We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to "clearly established" federal law. If the law were indeed "clearly established" by our decisions "as of the time of the relevant state-court decision," Williams v. Taylor, 529 U. S. 362, 412 (2000), it should not take the Court more than a dozen pages of close analysis of plurality, concurring, and even dissenting opinions to explain what that clearly established law was. Ante, at 1024. When the state courts considered these cases, our precedents did not provide them with clearly established law, but instead a dog's breakfast of divided, conflicting, and ever-changing analyses. That is how the Justices on this Court viewed the matter, as they shifted from being in the majority, plurality, concurrence, or dissent from case to case, repeatedly lamenting the failure of their colleagues to follow a consistent path. Whatever the law may be today, the Courts ruling that 'twas always so -- and that state courts were "objectively unreasonable" not to know it, Williams, supra, at 409 -- is utterly revisionist.
Of particular interest, neither Chief Justice Roberts nor Justice Alito joined the part of Justice Scalia's dissent that repeated the Scalia/Thomas view that the Courts have no business here at all. Justice Alito joined part of Scalia's opinion, but not that section; Chief Justice Roberts did not join Scalia's dissent at all (perhaps in part because he had written his own in the case).
Finally, the Court ruled in Smith v. Texas
that the Texas Court of Criminal Appeals had improperly read the Supreme Court's decision in Smith v. Texas, 543 U. S. 37 (2004), as permitting the state court to perform a harmless error analysis on remand. Justice Kennedy's majority opinion has a long procedural history and then says, in effect, "nope, we did that already." Justice Alito wrote the dissent.
Thanks to SCOTUSBlog
for the early news and hosting of the Court's opinions.
Lynne Stewart Disbarred:
The Associated Press reports that Lynne Stewart has been disbarred for helping one of her clients, Omar Abdel-Rahman, communicate with his fellow terrorists from prison. For these acts, Stewart was convicted of providing material support to terrorists.
A particularly interesting aspect of the story is that a New York court ruled that Stewart had to be disbarred, and could not voluntarily resign from the bar. As I understand the ruling, the Court determined that her disbarment was automatic one Stewart had been convicted of a felony, so any effort to withdraw voluntarily after her conviction would be unsuccessful. I do not know if there is much precedent for this, but it struck me as unusual.
Evolution without Atheism, and Other Ways to Sell Science:
A few weeks back, Mathew C. Nisbet and Chris Mooney wrote an article for the Washington Post arguing that defenders of evolution undermine their cause when they seek to promote atheism as well. I wholly agree with this argument. There is no inherent conflict between a belief in evolution and a theistic worldview. The theory of evolution explains how human beings and other species evolved, and is a very effective way of understanding biological systems. Evolution does not purport to answer the question of how things began, or whether there was a Prime Mover who initiated the evolutionary process or perhaps even guided it. It is a scientific explanation about the natural world that we experience. When evolution advocates embrace atheistic evangelism, they not only misrepresent evolutionary theory, they also undermine their ability to communicate with a largely God-fearing public.
Nisbet and Mooney make this point in the context of a broader discussion of how scientists need to "sell" scientific understanding. While Mooney and I clearly have our differences, I generally think they are correct here as well. If scientists want to have a greater influence on the public, they need to learn to talk to laypeople differently than they talk to other scientists. This does not require misrepresenting scientific research, nor does it require pretending that science can answer what are essentially normative policy questions. But it definitely requires recognizing the challenge of communicating scientific information to a relatively scientifically ignorant public.
The comments on yesterday's post included a digression into the issue of Katrina relief, which one poster opposed for multiple good reasons. I want to add another.
You might think that disaster relief transfers wealth to disaster victims. That's not at all clear. Here's why:
There has long been an expectation that in Katrina-like circumstances, the government will step in to help. That makes disaster-prone cities like New Orleans (and, among others, San Francisco) more desirable and pushes up land prices in those cities.
So if you own a house on a flood plain, chances are the purchase price included a premium for the disaster insurance that the government insists on providing. That's a boon not to you, but to the former owner, who might live in Montana by now. The wealth transfer goes not to those who are currently in danger, but to those who owned endangered property when the policy went into effect.
By pushing up land prices, federal disaster relief denies people the opportunity to live cheaply in exchange for living dangerously. That opportunity is particularly valuable to the poor.
To put this another way, federal disaster relief essentially forces people — most of them poor people --- to buy insurance they'd rather not have. The premiums are hidden in their housing prices, but they are none the less real.
If the government forced us all to buy lottery tickets against our will, and if the news media carried big feature stories on the lottery winners, a naive viewer might think the government had done us all a favor. Currently, the government forces us all to buy (implicit) disaster insurance against our will, and the news media carry big feature stories on the people who collect that insurance. A naive viewer might think the government had done us all a favor. But surely no reader of the Volokh Conspiracy could be so naive.
Poor people, more than most, value cheap housing. A policy of disaster relief makes cheap housing hard to find. Therefore a policy of disaster relief is likely to impose a particular burden on the poor. If you want to help poor people, eliminating federal disaster relief is a good place to start.
For more in this vein (on exactly this topic) see pages 195ff. in my new book More Sex is Safer Sex: The Unconventional Wisdom of Economics.
Tuesday, April 24, 2007
Another Sixth Circuit Habeas Split:
Today the U.S. Court of Appeals for the Sixth Circuit partially affirmed a district court judgment granting a criminal defendant's habeas petition in Ege v. Yukins. Specifically the court rejected the state's argument that the petitioner's claims were time-barred, and agreed with the trial court that the petitioner's due process rights were violated by the admission of bite-mark evidence, "both because the evidence itself was scientifically and probabalistically unsound and because [the proffering expert witness]had a demonstrated record of unreliability."
It should be no surprise that the Sixth Circuit's decision in Ege was divided. Judge Martin wrote the majority opinion for himself and district court judge Oliver (sitting by designation). Chief Judge Boggs dissented, arguing that the petitioner's claims were time-barred, and that the state court judgment did not merit a habeas petition under federal law.
Federal regulations are forcing truck manufacturers to manufacture cleaner vehicles, but there's a hitch. In reducing particulate emissions from diesel truck engines, they've also reduced fuel economy -- and trucking firms are not too happy about it, according to this story in the Wall Street Journal (for subscribers)
Previous-generation trucks average about nine or 10 miles to each gallon of diesel fuel. New engines designed to meet the more-stringent federal mandate on truck exhaust get about one mile less to the gallon. That may not seem like much, but it all adds up for large fleet owners that operate trucks crisscrossing the country.
"For every additional mile-per-gallon lost, it costs us about $10 million in [total annual] fuel costs" said YRC Worldwide Chief Executive Bill Zollars. YRC is one of the largest transportation providers in the country, operating a fleet of 20,000 trucks.
The story also notes that new truck sales spiked before the new requirements took effect.
Emission-fuel economy trade-offs are not unique to trucks -- or even to vehicles. Pollution controls often result in energy efficiency losses (though not in the case of carbon dioxide emissions). This does not mean we should not try and reduce diesel particulate emissions, or other emissions for that matter, but it is a useful reminder that there trade-offs are ubiquitous in environmental policy, as they are everywhere else.
Stulman v. Penn State University:
Here's the complaint in Stulman v. Penn State University, the case David Bernstein mentioned below. The complaint begins:
1. Charles Garoian, Director of the Pennsylvania State University School of Visual Arts, and Robert Yarber, a professor at the Penn State School of Visual Arts, violated the free speech and associational rights of Joshua Stulman while he was an art student at the School of Visual Arts by prohibiting the exhibition of his series of paintings entitled “Portraits of Terror” in the Patterson Gallery at the University because of Joshua’s artistic viewpoint expressed in those paintings.
Penn State Art Exhibit Censorship Update:
Josh Stulman, the student whose "Portrait of Terror" art exhibit was censored last Spring (as blogged in detail here), is suing Penn State for violating his First Amendment rights. The lawsuit asks that the university host the exhibit at its cost. Stulman is also suing Prof. Charles Garoian, the professor who, after proclaiming his opposition to censorship of art in a series of articles, censored Stulman's exhibit, for defamation. Details here.
UPDATE: For those interested in this controversy, I strongly recommend reading the complaint, a link to which Eugene has provided. The complaint provides allegations of misconduct by Robert Yarber, a professor at the Penn State School of Visual Arts. Yarber, for example, allegedly admitted removing flyers advertising Stulman's exhibit, and in a private meeting berated Stulman as a "racist" who supported the "racist" Israeli government that has no right to exist. Yarber was apparently Stulman's professor at the time, which would explain why these allegations were not aired last year.
Related Posts (on one page):
- Stulman v. Penn State University:
- Penn State Art Exhibit Censorship Update:
Kopel vs. The Economist, Round 2
Today is the second day of my week-long Los Angeles Time on-line debate with Christopher Lockwood, the U.S. editor of The Economist. Today's topic is the politics of the gun control issue. Tomorrow we'll look at international opinion about U.S. gun policy. On Thursday, we each debunk a favorite shibboleth of the other side. Finally, on Friday, we outline our ideal firearms polices.
Comments below are welcome on today's exchange, or yesterday's. Suggestions for my Thursday topic are also welcome, keeping in my that each article can only be about 500 words long.
Yale, realistic-looking stage weapons, and the prospects of zero tolerance policies:
Like Eugene, I'm happy that Yale has reversed its foolish decision to ban the use of realistic-looking weapons in theater productions. I hope that this reversal - which probably came as a result of widespread opposition to the ban among both Yale students and outsiders - will deter other universities from enacting ill-advised zero tolerance policies in the wake of the Virginia Tech tragedy. As the Yale Daily News noted, the new policy was met with widespread condemnation and derision :
The ban affected at least two shows that went up over the weekend: the play "Red Noses" and the opera "Orpheus in the Underworld," and attracted national media attention as well as causing a stir among students involved in theater on campus. Several students complained that the requirement infringed on their free speech, while others pointed out that the policy was unlikely to assuage anxiety about Virginia Tech.
Hopefully, this episode will dampen enthusiasm for similar policies elsewhere in the academic world. University administrators tend to be very risk-averse and will avoid instituting draconian zero tolerance policies if doing so would cause a backlash that will make their lives difficult.
As for the suggestion by Yale Dean of Student Affairs Betty Trachtenberg (the official who instituted the ban) that critics of the policy are "not using their own intelligence," I will only say that people who live in glass houses should avoid throwing stones - especially realistic-looking ones. However, I don't want to put down Dean Trachtenberg too much. By instituting this policy and generating a backlash against it, she has unintentionally performed the valuable public service of demonstrating that college students and the general public have little appetite for harsh zero tolerance policies. If her error helps to prevent similar ones at other schools, it is a price well worth paying.
Yale Rescinds Ban on Realistic-Looking Stage Weapons:
The Yale Daily News reports:
Stage weapons will again be allowed in University theatrical productions, in a reversal of last week's ban, Yale spokeswoman Helaine Klasky said Tuesday morning.
Administrators decided Monday afternoon to require that audiences instead be informed of the use of stage weapons before the start of every performance, she said. In the wake of the Virginia Tech massacre, which left 33 students dead last Monday, Dean of Student Affairs Betty Trachtenberg had told students that they would be required to substitute obviously fake props for realistic stage weapons in theatrical productions.
I'm glad to hear that the ban has been rescinded. And of course I'm delighted to hear that those Yale theater patrons who would be deeply disturbed by seeing things that look like real swords (but that are sure to be fake swords) will now be warned ahead of time.
By the way, Dean Trachtenberg's view, criticizing the ban's critics:
I think people should start thinking about other people rather than trying to feel sorry for themselves and thinking that the administration is trying to thwart their creativity. They're not using their own intelligence. We have to think of the people who might be affected by seeing real-life weapons.
OK, as someone who tries to use his own intelligence, I'll bite: What exactly should we think of people who might be affected by seeing a real-looking (not real-life, but real-looking) sword in a play?
Thanks to reader Adam Sofen for the pointer.
People v. Montour:
The Colorado Supreme Court struck down parts of the Colorado death penalty statute today in People v. Montour
. The case involves a defendant who was serving a life sentence without parole when he killed a prison guard. At least based on a quick read, I find the opinion quite puzzling.
First, some background. Under Colorado law, a defendant charged with capital murder faces a choice as to how to proceed. A charged defendant can exercise his full Sixth Amendment right to a jury trial, both at the merits stage and at the separate sentencing stage. Alternatively, the defendant can waive his Sixth Amendment rights, plead guilty to first-degree murder and face a bench trial for the sentencing hearing. The statute forecloses one option that may be appealing to defendants if available: A defendant can't plead guilty at the guilt phase and then get a full jury trial for the sentencing phase.
In today's decision, the Court struck down the provision of the statute that forced defendants to make this choice. The Court's analysis of the alleged constitutional defect is actually pretty brief; it goes from pages 26-34. First, on page 28, the Court argues that the statutory scheme is inconsistent with the intrinsic nature of guilty pleas. According to the court, there is a natural limit on what a plea agreement can waive: a "guilty plea only waives those rights that are incompatible with a guilty plea." The court writes:
A defendant's guilty plea does not, however, waive all of his rights. Instead, as argued by Amicus Colorado Criminal Defense Bar, this guilty plea only waives those rights that are incompatible with a guilty plea. . . .
The defendant's right to a jury trial on sentencing facts is not incompatible with pleading guilty. While it would be impossible for a defendant to testify in a case where he has entered a guilty plea, a defendant can plead guilty and still have jury trial on sentencing facts. Because the entry of a guilty plea does not necessarily require a waiver of the right to a jury trial on sentencing facts, it is improper for the statute to require that the defendant's guilty plea automatically waive this right.
The Court did not add any citations to any legal authorities here, so it's kind of hard to know where they are getting this. But isn't the nature of a guilty plea up to the legislature, at least barring a constitutional defect? As much as it's interesting to theorize about the nature of guilty pleas, presumably that's a question for legislatures rather than the courts.
Apparently aware that its reasoning is rather thin here, the Court then tries to hang its hat on an actual provision of the Constutition — in this case, the Sixth Amendment. The Court notes that a defendant has a 6th Amendment right to have jury fact-finding at the sentencing phase of death penalty cases. Given the tactical benefits to a defendant of waiving a jury trial at the merits stage, the Court reasons, requiring a defendant to waive his right to a jury trial at the sentencing stage as well might create too high a risk that the defendant will choose to waive his rights:
By linking the waiver of a jury trial on sentencing facts to the guilty plea, this statute unnecessarily increases the likelihood that a defendant will waive his Sixth Amendment right to a jury trial on facts essential to the death penalty eligibility determination in order to plead guilty on the merits, thereby compromising one of his Sixth Amendment rights.
As a consequence, the defendant's waiver was not knowing, voluntarily, and intelligent "as a matter of law." The waiver was "inextricably linked to his guilty plea," and was therefore invalid.
I wonder, though, since when does the Sixth Amendment regulate the likelihood that a defendant will choose to waive his rights? The Sixth Amendment provides the right, but I'm not aware of any ground for holding that it regulates what kind of plea deals the state can legally offer to waive that right. I don't know if I like the Colorado legislature's approach as a matter of policy. And perhaps there is a body of law on this that the court just doesn't cite. But I'm not seeing it in the majority's opinion.
Hat tip: Doug Berman
Who Owns the Copyright in the Virginia Tech Killer's Video?
I've heard people discussing this, so I thought I'd chime in with a few thoughts.
1. Right To Exclude vs. Right To Use: First, remember that owning a copyright means having the exclusive rights (minus whatever rights you've licensed to others, and whatever rights they may have under fair use and other doctrines). The copyright is thus the right to exclude (and therefore the right to sue). Even those who don't own the copyright may have the right to use the work, because they have license, because they are entitled to under the fair use doctrine, and such.
2. Ownership of the Right To Exclude: This having been said, who owns the copyright? The initial owner was the killer himself. If he expressly conveyed it in a signed writing during his life (e.g., wrote to NBC that "I am conveying my copyright to you," and signed the writing), then the copyright is owned by the recipient. But if he didn't convey it, and didn't mention it in any will, then the copyright is owned by his parents (since he doesn't have a wife or children, and his parents are thus his heirs). I haven't heard of any express conveyance, so that means the parents own the copyright. They might be able to sue people who distribute them, copy them, or run them, but they'll lose if the defendants have a license from the killer or are engaged in fair use.
NBC thus can't sue anyone who copies the materials from its broadcast or its site, unless they themselves have added some creative expression (which may include sufficiently detailed editing decisions) that is being copied. They simply have no rights to sue over copying the killer's work (again, unless he conveyed the exclusive rights to them in a signed writing, which seems unlikely).
3. Implied or Express License as Limitation on the Right To Exclude: The killer's sending the materials to NBC likely conveys to NBC a nonexclusive license to use the materials, probably including on its Web site. The killer's family thus can't sue NBC to stop it from continuing to distribute the materials.
4. Fair Use as Limitation on the Right To Exclude: But in any event, these are materials that are of pretty substantial public importance (whether or not you think it was ethical or proper for NBC to distribute them). I expect that the parents would disclaim any desire to profit from them, and if they sued they'd sue only to suppress them, so there's no effect on the market for the materials. And even if NBC has some copyright in the material it added (for instance, a logo in the corner of the screen), its additions are likely very modest indeed.
So people who want to copy the materials would have a very strong fair use defense against both the killer's parents (should they wish to sue) and against NBC (should NBC sue over use of its very modest additions to the materials). I'd say this is so even if they copied the entire materials, which usually cuts against fair use, but here would likely be outweighed by the other factors.
5. Exotic Arguments: Might the killer have deliberately abandoned his copyright by releasing the manifesto with the intention that it be distributed as widely as possible (presumably the goal of manifestos)? He's dead, so we can't be sure of his intention, but it seems likely that he did have this intention. This, though, is likely not to matter much, since the fair use defense is so strong.
6. Thus: NBC vs. Copiers/Redistributors/Broadcasters, as to the killer's manifesto itself: NBC loses because it has no right to exclude (assuming the killer didn't convey such a right in a signed writing to NBC).
Family vs. NBC: Family loses because NBC has a license from the killer.
Family vs. Copiers/Redistributors/Broadcasters: Family loses because the users are entitled to engage in fair use of the materials.
NBC vs. Copiers/Redistributors/Broadcasters, as to NBC's modest creative additions to the work (editing choices, logo, and the like): NBC loses either because the creative additions are too modest to be protected by copyright, or, even if they are sufficiently creative to be protected by copyright (e.g., the logo), because they are so lacking in detail and such a small part of the copied materials.
Concealed Carry News Story:
From the Cleveland Plain Dealer:
Damon Wells ... had a permit to carry his gun, and he had the gun on him when a pair of teenage thieves approached him Saturday night on his front porch.
When one of the youths pulled a gun, Wells whipped out his and shot one of the boys multiple times in the chest, police said.
Arthur Buford, 15, died after stumbling away and collapsing on a sidewalk near East 134th Street and Kinsman Road.
City prosecutors decided Monday that Wells, 25, was justified and would not be charged for what appears to be the first time a concealed-carry permit holder has shot and killed an attacker....
It's unfortunate that the teenager involved in the gun robbery died, but it strikes me that Wells was entirely entitled to do what he did, and that it's good that the law lets people protect themselves, including using deadly force, against gun-wielding assailants. "His cousin, Tameka Foster, 21, questioned why police refused to punish Buford's shooter. 'They let that man run out freely,' Foster said. 'My cousin is dead.'" He wouldn't have been dead if he hadn't been involved in robbing people at gunpoint.
By the way, did Wells need a permit to have the gun while on his porch? Having such a permit increased his chances that he'd have his gun on him there, since it would have made it easier for him to routinely carry the gun, without having to safely store it whenever he wanted to leave the house; but is such a permit legally required to carry on one's own porch?
The answer is not clear. Ohio Rev. Code § 2923.12(D)(3) allowed concealed carry without a license "in the actor's own home"; the question would be whether being on the front porch is being "in the actor's own home." State v. Higgins, 2006 WL 134815 (Ohio. App.), suggests that being on the front porch wouldn't qualify as being in the home, and that a concealed carry license would thus be required there; State v. Hayes, 1992 WL 357257 (Ohio. App.), holds that a concealed carry license is required to carry concealed in one's own back yard. But these are nonprecedential, unpublished decisions; I know of no published Ohio decisions on the subject.
Thanks to Trevor Stiles with the pointer.
Scientific Studies and Media Coverage of the Death Penalty:
Today's Washington Post
has a story about a new study published in a medical journal about lethal injection protocols used in death penalty cases. When you compare the actual study
to the media coverage of it, however, there seems to be a pretty major gap between the two. Here's the beginning of the Post
Drugs Used in Executions May Cause Paralysis, Pain for Conscious Inmates
By Rob Stein
Washington Post Staff Writer
Tuesday, April 24, 2007; Page A11
The cocktail of drugs used for lethal injections is unreliable and could render inmates paralyzed but not unconscious, unable to cry out as they experience excruciating pain and eventually suffocate, according to a new scientific analysis.
The analysis, released yesterday and based on published data about the three drugs used and public records of executions in North Carolina and California, concluded that the protocol does not dependably induce a quick, painless death.
"This raises the possibility people are being tortured and you can't see it because they are paralyzed," said University of Miami surgery professor Leonidas G. Koniaris, who led the analysis. "I'm not sure a civilized society should be doing this."
The analysis comes at a time of turmoil over the use of lethal injection. At least 11 states have suspended executions after botched injections raised questions about the procedure and its administration.
The analysis, which was conducted to determine whether the process works when done correctly, concludes that the process is fundamentally flawed.
"I find it very disturbing," said Teresa A. Zimmers, a University of Miami research assistant professor who helped write the report.
"There is very little science behind this protocol, and the picture of lethal injection being a humane way to execute someone is completely wrong," she said.
The findings were seized upon by opponents of the death penalty.
"It's horrifying to read this," said Deborah W. Denno of Fordham University's law school. "What states are supposed to do is execute inmates in a humane way. There is clearly pain and suffering occurring."
I found the full study online, and I was interested -- although hardly suprised -- to see that the actual scope and nature of the study was quite different from what the Post
was reporting. At least that's how it seems to me; I would be interested to know if you have the same reaction. The journal article
is by several physicians, a business school professor, and a capital defense lawyer, and it is about the time it takes to induce death using different types of lethal injection protocols in death penalty cases. The authors reviewed the time-to-death in 33 North Carolina executions and 11 Calfornia executions for which records were available (due to litigation and other record keeping).
The key findings, at least as I read the journal article, were as follows. First, the time after the first drug is administered to when the condemned is pronounced dead is usually about 10 minutes. There are slight differences in the average time to death for different protocols; some protocols averaged about 8 minutes, others as much as about 12 minutes. And there is some variation for individual protocols, as well: for example, a protocol with an average time to death of 10 minutes might actually have a range of about 5 minutes to 20 minutes.
Perhaps I am misreading the journal article, but as best I can tell, that's it: it's only about the time-to-death using different protocols. Indeed, if you read the fine print of the journal article, the authors note that they have no basis for linking the time of death to particular physical experiences by the condemned: it seems that the "medical literature addressing the effects of these drugs at high doses and in combination is nonexistent," such that "the adequacy of anesthesia and mechanism of death in the current lethal injection protocol remains conjecture." The article does add some speculation about what might have happened in particular executions, but as far as I know is the same speculation that has appeared in litigation and law review articles on the topic. (If I'm wrong about that, please let me know.)
Why, then, do the authors feel comfortable condemning the current lethal injection protocols -- the bottom line that seems to be the key issue picked up by the press? According to the paper, the reason is that the authors already believe
that the lethal injection protocol is terribly flawed, regardless of the medical evidence here: "Despite such limitations, our analysis of data from more forthcoming states along with reports of problematic executions and judicial findings together indicate that the protocol of lethal injection for execution is deeply flawed." It's not entirely clear what they have in mind for that. But they cite only one source of authority here (see fn41): Judge Fogel's remarkable decision
from last December holding that the Eighth Amendment closely regulates how the death penalty is administered, including the design of the room, the lighting, and the number of people in the room when the execution occurs (prior VC coverage here
Readers obviously will disagree about the death penalty, both as a matter of policy and constitutional law. And I'm certainly open to the argument that the existing lethal injection protocols are flawed, either in designed or execution. Still, it seems that there is much less to this study than the media coverage would have you believe.
Rapture of the Bees:
Today's NYT has a fascinating article about the mystery of collapsing bee colonies. In over two dozen states, as well as in several foreign countries, bee colonies have simply collapsed. There have been dramatic declines in bee populations before, but some scientists fear this is more than a simple population drop induced by a natural pathogen. This is an important issue as a significant portion of American agriculture has become increasingly dependent upon honeybee pollination.
Uncle Leo's Kennkarte:
Eric Muller has another powerful post his great-uncle Leopold, and the significance of finding his kennkarte ("identity card") in the gestapo file. Apparently Leopold was deported without his identification papers, but the kennkarte was found and kept in Nazi files — where it remained until Eric's discovery.
UPDATE: Eric Muller has posted an index of all his Uncle Leopold posts here.
The problem with democracy is not that politicians kowtow to financiers and lobbyists; it's that politicians kowtow to their own consituents, spending other people's money along
the way. In other words, their incentives are all wrong. Effective reform should supply better incentives.
So if I could make just one change in the American political system, it would be to give each voter two votes in every congressional election. You'd get one vote to cast in your
own district and another to cast in the district of your choice. When a congressman from West Virginia funnels taxpayers' money from fifty states to his home district, I want him to face the prospect that taxpayers from fifty states will share their feelings with him on election day.
I'd also redraw the boundaries of Congressional districts according to the alphabet instead of geography. Instead of congressmen from central Delaware and northern Colorado, we'd have a congressman for everyone whose name begins with AA through AE, another for everyone whose name begins with AF through AL, and so on. The point being that it's easy to devise a pork barrel project that benefits everyone in northern Colorado, but a lot harder to devise a pork barrel project that benefits everyone whose name happens to begin
Finally, I want federal income tax rates determined separately in each congressional district, as a function of how much spending your congressman has voted for. The more
he votes to spend, the more you pay in taxes. That should solve the problem of voters who pay little attention to what their representatives are up to.
If you're worried about this deterring congressmen from voting for bills that are truly in the national interest, I'm willing to make an exemption for any spending bill that
passes by a supermajority of, say, 70%.
Am I serious? Of course I'm serious. Of course I'm also aware that our legal system would probably render any of these reforms quite impossible, and that this of all blogs is
the one where readers will jump in to tell me why. But the disconnect between congressional incentives and the welfare of the general public is real, and needs highlighting. So when I say "Let's redraw the congressional districts according to the alphabet", what I'm really saying is "Let's think hard---and creatively---about ways to sever the link between parochial interests and congressional incentives." That's an entirely serious point.
All of which is another major theme in my new book, from which this post is adapted.
Monday, April 23, 2007
Patent Reform Redux:
This morning's post on patent reform inspired dozens of responses. Among those responses, a few points were raised
often enough that I think I should clarify them.
First, contrary to the assertions of several posters, we really do get a better social bargain when we fork over a million dollars in tax money instead of a million dollars in
monopoly profit. Here's why: When drugs are cheaper, more people use them, and that's a boon. Here is a numerical example, in case you like that kind of thing.
For what it's worth, this point is standard fare in any Principles of Economics course. One of my most-used exam questions is True or False (and explain why): If the
customers of a monopolist could bribe him to sell at a competitive price, both they and he would be better off. The answer is true, and students who want to pass the course
had better be able to draw the diagram that proves it.
Next, some people worried that the Kremer proposal does nothing to alleviate some of the fundamental problems of the patent system---like the granting of patents for obvious
innovations like double clicking. On the contrary---putting these patents in the public domain undoes a big part of the damage. Now everyone can double click no matter who
initially got the patent.
Of course we haven't undone all the damage; we'll still have smart people wasting their time coming up with stupid inventions to patent. But the current system has
exactly the same problem. In fact, quite a few of the objections raised to Kremer's proposal apply equal well to the current system, and are therefore no reason to prefer one over the other. For example, one poster complained that in the Kremer plan, the government would be the sole arbiter of patent grants. As opposed to what we have now?
A more cogent objection came from those who complained that we should not all be forced to share the costs of an invention that only some of us use. As a hardcore libertarian, I am sympathetic to the sentiment. But I also believe---though I cannot currently prove---that the system Kremer proposes would generate so much extra social value that almost everyone would eventually win. I'll subsidize your Lipitor; you subsidize my Rogaine, and we can both come out ahead.
Another cogent objection came from those who worry about inventors who have specifically devised a product they can use more effectively than anyone else. We don't want to yank
that product away from them. The poster Byomtov made some excellent replies to this and other issues, but I'm willing here and now to modify the proposal as follows: First, the
government offers to pay not the winning bid, but 1.25 times the winning bid; Kremer endorses this on the ground that an invention in the public domain has more social value than an invention in private hands. And second, if the inventor wants to turn down that offer and keep his invention, we'll let him.
That also solves the problem of inventors who feel shortchanged because the benefits of their inventions lie in the far future. If they'd rather hold onto their inventions
and take the risk of distant success, that's fine. The downside of allowing this is more monopoly power, but the goal here was a drastic improvement, not perfection.
Finally: Several posters thought that in an auction with only a 50% chance of being consummated, investors will tend to either double or halve their bids. To clarify the issue, suppose you go down to the car dealer to buy a Lexus, for which you are willing to pay $30,000. But you've heard that there's a 50% chance the Lexus is out of stock. Which of the following is correct?
A) You are now willing to pay $60,000 for a Lexus.
B) You are now willing to pay $15,000 for a Lexus.
If your answer was "none of the above", you get an A. The application to patent reform is left as an exercise for the reader.
Fred Thompson on Federalism:
Former Senator and Quite-Possibly-Soon-Presidential-Candidate Fred Thompson is making some sounds that will please a lot of readers here at the VC in this essay
on the importance of federalism. The topic: Thompson's Senate votes against federal tort reform. From the conclusion:
Adhering to the principles of federalism is not easy. As one who was on the short end of a couple of 99-1 votes, I can personally attest to it. Federalism sometimes restrains you from doing things you want to do. You have to leave the job to someone else — who may even choose not to do it at all. However, if conservatives abandon this valued principle that limits the federal government, or if we selectively use it as a tool with which to reward our friends and strike our enemies, then we will be doing a disservice to our country as well as the cause of conservatism.
For some VC posts on these same questions, see this post
by me and this response
from Eugene back in 2004.
Unfortunately, I've been so busy during the last week that I haven't been able to write anything for the VC. However, the other writers have done a great job of analyzing many of the law and policy issues related to the Virginia Tech murders. This week, the LA Times website is hosting a daily gun control debate between me and Christopher Lockwood, the U.S. editor of The Economist. Today's debate is here.
Some items from the past couple weeks: Rocky Mountain News column criticizing the NBC decision to broadcast the killer's publicity photos and videos. Independence Institute podcast on Virginia Tech. Radio Netherlands discussion on the role of guns in society, with gun control advocates from South Africa and Switzerland. The News Hour with Jim Lehrer, discussion of gun control laws applying the mentally ill (which plainly barred the Virginia Tech killer from legally buying or possessing arms). American Spectator web article by John Tabin, in which I discuss how unfounded fears of legal liability play a role in the creation of pretend "gun-free zones."April 12 issue of my Second Amendment newsletter, including a link about the harsh new Belgian gun control laws, which impose a cap on how many people in the nation may possess firearms. And a Spanish language version (with the foonotes omitted) of my article on Japanese Gun Control, originally published in the Asia-Pacific Law Review.
Civility and the Term "Anti-Abortion":
On a discussion list I'm on, one of the members -- a law professor -- complained about others' use of the term "anti-abortion" (e.g., "anti-abortion legislators" or "taking an anti-abortion position") to describe abortion opponents; such a term, he reasoned, violated canons of "civility and respect," at least those applicable to academic discourse.
I'm a big believer in civility, but it seems to me that there's nothing uncivil about "anti-abortion" here. True, it's not the term that abortion opponents prefer; as I understand it, they generally prefer "pro-life." But that I want to be called something doesn't impose on others a manners obligation to conform their speech to my desires.
That's especially so when the term I choose is a term that others might find to be unduly flattering to my position, and inconsistent with their own view of the matter. If someone thinks that fetuses at an early enough stage of gestation aren't really "living," it's understandable that they wouldn't want to call anti-abortion forces "pro-life." Likewise, they might balk at the imprecision of "pro-life" -- in fact, pro-life forces may well favor capital punishment, lethal defensive force, just wars, and for that matter killing of animals.
"Pro-life" may well be a well-understood shorthand for supporting fetuses' right not to be aborted, so I don't fault abortion opponents for using it despite its imprecision. (I use it myself, just as I use "pro-choice.") But others may disapprove of the imprecision, conclude that the imprecision gives anti-abortion forces an unfair rhetorical benefit, and may therefore not want to use the term. (Of course, anti-abortion forces can quite reasonably refuse to use the term "pro-choice," for the same reason.)
People do have an obligation, both one of candor and of good manners, not to label others using imprecise and unfairly derogatory terms. Calling anti-abortion forces, for instance, "anti-choice" would qualify; in fact, all of us are against some kinds of choices, especially those kinds of choices that we think violate others' rights. Opponents of abortion are thus no more "anti-choice" than anti-slavery forces or anti-infanticide forces. One could of course argue that abortion is morally proper and slavery and infanticide are not; but "anti-choice" doesn't capture that argument, but only stresses opposition to "choice," which we all disapprove of in many instances.
On the other hand, "anti-abortion" is not imprecise, and (for similar reasons) not unfairly derogatory. I would think that most people who call themselves "pro-life" will happily agree that they oppose abortions -- not just abortion rights, but abortions (at least except in highly unusual circumstances). They are thus "anti-abortion" just like people who think drunk driving is bad and should be illegal are "anti-drunk-driving."
It's true that rhetorically many groups might prefer to focus on what they support, rather than on what they oppose; that may well politically benefit them. In that case, "anti-abortion" might not be politically optimal for opponents of abortion. But there is no manners obligation to refer to a group using the term that the group finds to be politically optimal -- especially, as I pointed out, when some people disagree that fetuses are "life" or think "pro-life" is otherwise inaccurate, and thus have plausible reasons of their own not to use a term whose pretty clearly visible derivation they do not endorse.
So I say it again: It's important to be polite, and politeness requires you to avoid certain words -- but it doesn't require you to avoid all words that people want you to avoid. It doesn't even require you to call all political groups by the labels they prefer. "Anti-abortion," in particular, is an accurate description of opponents of abortion, and strikes me as perfectly suitable for polite company, especially if you strongly disapprove of "pro-life."
Former Russian President Boris Yeltsin died today. Yeltsin was president from 1991 to 1999 and became the first democratically elected ruler of Russia. His mistakes are many and well-known. They include the bloody first Chechen War (1994-96), which set the stage for the even worse second Chechen conflict that rages to this day; Yeltsin himself may have come to regret his role in initiating the conflict. Other errors include his failure to fully root out the old communist nomenklatura (which is now making a comeback under his successor), the massive corruption that flourished under his rule, and the establishment of a constitution that concentrates excessive, almost authoritarian, power in the hands of the president. And of course there was his terrible mistake in appointing former KGB colonel Vladimir Putin ashis successor.
I do not mean to belittle the significance of these failures. But on this day it is important to emphasize Yeltsin's successes, achievements that in my view are mostly underappreciated. First and foremost, Yeltsin played a key role in the collapse of communism in the Soviet Union, particularly during the attempted August 1991 coup by communist hardliners when Yeltsin risked his life to lead the resistance to the coup. The coup's failure was the death knell of communist rule in the Soviet Union. We all owe a Yeltsin a great debt for this service alone, even if he had done nothing else positive.
Yeltsin (left) stands on a tank during the 1991 coup.
But in fact he had several other important achievements to his credit. Of all of Russia's many rulers since the country was unified some 500 years ago (excluding the shortlived Provisional Government of 1917), Yeltsin was the only one who permitted almost complete freedom of speech and religion. The 1990s was the only time in Russian history when adherents of almost every ideology were free to express their views and criticize the government. Adherents of virtually every religion were for the first time free to practice their faith. Yeltsin also deserves credit for dismantling most of the Soviet Union's huge military-industrial complex, which once accounted for anywhere from a third to a half of GDP. Finally, the Yeltsin era saw a vast expansion of both political and economic freedom, even if tainted by corruption. Here too, there was greater progress than under any other Russian ruler, with the possible exception of the 19th century reformist Czar Alexander II, who abolished serfdom and thereby freed the majority of the population from a state of near-slavery.
There has been considerable regression under Yeltsin's successor Vladimir Putin, who has cracked down on free speech and reconcentrated power in the hands of the central government. Yeltsin, of course, deserves considerable blame for this, both for appointing Putin as his successor and for helping to foster a political climate in which a more authoritarian leader could succeed. Yet even under Putin, Russia has not come close to reverting to the dark days of communism. And there is reason to hope that the government will be forced to liberalize once more as the westernized middle class becomes larger and more powerful.
Boris Yeltsin was a man of many faults who made some grave errors. But history may well conclude that the great good he did outweighs the not inconsiderable evil.
NBC posts the murderer's manifesto -- and blacks out the profanities "per NBC standards." I understand how that happens; all bureaucratic institutions have rules that end up being followed even when they make no sense. Still, it does tell us a little about how out-of-kilter the "standards" are.
Thanks to reader Eric Stieglitz for the pointer.
Georgia High School Holds First Racially Integrated Prom:
No, it's not something out of The Onion. It's real
"For Sale: One Useless Cat":
Cute. Thanks to GeekPress for the pointer.
Veterans Administration Recognizes Wiccan Graveyard Marker:
I blogged about the controversy here and here. The controversy now seems to have been resolved:
Wiccans will be allowed to have the symbol of their religion placed on grave markers in national cemeteries under a lawsuit settlement with the U.S. Department of Veterans Affairs announced Monday.
The settlement calls for the Wiccans' pentacle, a five-pointed star representing earth, air, fire, water and spirit to be placed on grave markers within 14 days for those who have pending requests with the VA.
There are 11 families nationwide that are waiting for grave markers with the pentacle, said Selena Fox, a Wiccan high priestess with Circle Sanctuary in Barneveld, Wis., and a party to the lawsuit....
The agreement settles a lawsuit filed in November by veterans' widows and others alleging that the VA has stalled for more than nine years in recognizing the pentacle....
I'm glad the VA decided to accommodate the Wiccans' desires, much as it accommodates dozens of other religions. The VA's site has already been updated to include the symbol (#37 on this list).
Related Posts (on one page):
- Veterans Administration Recognizes Wiccan Graveyard Marker:
- Wiccan Symbol in Veterans' Cemetery:
- What Are These?
Reaction to the Oral Argument in Brendlin v. California:
I just returned from attending the oral argument at the Supreme Court this morning in Brendlin v. California.
I thought it was a very engaging argument. The lawyers were very good, and the Justices asked a terrific set of questions. Here are a few reactions to the hour-long argument.
A great deal of time was spent considering how the fruit of the poisionous tree doctrine should apply given the specific facts of Brendlin's case. Assuming that Brendlin was wrongly seized by the stop, was the arrest nonetheless legal because the warrant out for Brendlin's arrest was an intervening cause? A number of Justices seemed to think so, including Justice Kennedy. This is a very interesting question, but I don't think the Court will (or should) address it because it is not actually before them. As I've noted in an earlier post, the California intermediate appellate court ruled that the arrest was a fruit of the unlawful stop. The California Supreme Court denied discretionary review on this question. The U.S. Supreme Court granted cert on the narrow question that is the same question the California Supreme Court reviewed: When a traffic stop occurs, is the passenger seized? How the fruit of the poisonous tree doctrine applies is an interesting question, but I think it's beyond the scope of the question presented in this case.
On the merits of whether a passenger was seized in a traffic stop, most of the Justices seemed to agree that he was. Kennedy, Souter, and Stevens indicated that they thought so; Breyer also said that it was his instinct, but he didn't know if he should be following his instinct or something else like an empirical study. (The test is whether a reasonable person would feel free to leave, and Breyer acknowledged that he has no idea how people feel in such settings. "What do people think?," he asked. "How do we find out?")
The only serious pushback on this idea that I could identify came from Justice Scalia. Justice Scalia seemed to think that a reasonable passenger would never actually leave a car during a traffic stop — Scalia acknowledged that he
certainly wouldn't — but that this is only because it's not prudent to leave rather than because a person would feel like he's not legally free to leave. By this reasoning, passengers of stopped cars think they are legally free to leave, but they chose not to excercise their rights out of respect for the officer and the officer's need to control the scene. However, I don't remember other Justices picking up Scalia's point. Alito and Roberts asked a number of questions, but didn't indicate their own views as directly as did some of the other Justices.
See ya at ALEA:
I've just finished revising, for the moment, my paper on Privatization and the Effectiveness of Monitoring Agencies, and I've uploaded it to SSRN. I'll be presenting the paper at the annual meeting of the American Law & Economics Association, at Harvard Law School on Saturday, May 5, in the 9 a.m. panel (Panel IA) on public and administrative law.
Note that people who do aliyah are called olim, whereas people who go to ALEA used to get funding from Olin. Coincidence?
Here's the abstract of my paper (please excuse the very abbreviated, word-limited, econny style):
The privatization literature depicts the choice whether to contract out as a tradeoff between excessive private investment in quality-reducing cost saving and inadequate public investment in cost-increasing quality improvement, under circumstances where neither the amount of investment nor the cost or quality outcomes are contractible. This paper shows that a monitoring regime, which can verify the benefit of the service at a cost, can bring the investment levels of the private contractor closer to the optimum, while it may not be able to improve the performance of the public sector. Monitors can be captured, and the possibility of capture may decrease social welfare. Social welfare losses due to the possibility of capture may be greater in the case of public provision: The agencies that decide whether to privatize and the agencies that monitor service providers are often identical to, or closely related with, the agencies that actually provide the service if it is kept in-house. Therefore, privatization decisionmakers and monitoring agencies may be more prone to capture when the service is public. Therefore, efficiency may counsel in favor of a purchaser-provider split and a monitor-provider split.
This is still very much a work in progress. People who know their way around contract theory (the econ kind, not the law kind) or the theory of privatization are welcome to send comments.
The major theme of my new book is that we need better incentive schemes for every segment of society: congressmen and presidents, firefighters and police officers, judges and juries, prosecutors and defense attorneys, philanderers and promisekeepers. The book offers dozens of proposals for radical reform; this week I'll blog about a few of my favorites.
One of the very best ideas comes from Harvard's Michael Kremer, who proposes to overhaul the patent system. The problem with patents is that they reward good behavior (that is, inventiveness) with a license for bad behavior (that is, monopoly pricing). It's rather like rewarding good samaritans with licenses to drive drunk. Surely there's a better way.
Kremer's proposal is essentially this: When you design a better mousetrap, we grant you a patent. The next day, the government purchases the patent for a fair market price and puts it in the public domain. The inventor gets his reward, and the rest of us get to buy goods at competitive prices. We pay through the tax system only what the inventor would have extracted from us anyway, and we get the additional benefits of competition: more mousetraps are built, and more inventors can start piggybacking on the idea.
The sticking point is determining that "fair market price". But Kremer has solved that problem: First we grant the patent. Then we auction the patent to the highest bidder. As soon as the auction ends, the man from the government arrives and flips a coin. If the coin comes up heads, the auction winner completes his purchase; if it comes up tails, the government buys the patent for the amount of the winning bid. Bidders have every incentive to bid judiciously because the coin sometimes comes up heads. But this way, half of all patents end up in the public domain, which is halfway toward solving the problem.
That's the naive version of the plan. In the sophisticated version, the man from the government flips a weighted coin, so that he wins 90% of the time. (You can't go all the way to 100% or bidders will have no incentive to perform their due diligence.)
What about collusion in the auctions? Kremer's solved that too. Read his paper or my book for the details.
The benefits from Kremer's plan would be so phenomenally huge (think about having 90% of all prescription drugs sold at competitive prices) that I cannot imagine why it wasn't adopted the day he proposed it. I just don't see the downside.
So much for the patent system. Tomorrow I'll tell you how to reform politics.
Steven Landsburg Guest-Blogging:
I'm delighted to say that Steven Landsburg -- professor of economics at the University of Rochester, Slate's Everyday Economics columnist, and author of the just-released More Sex is Safer Sex: The Unconventional Wisdom of Economics -- will be guest-blogging here this week.
His posts will chiefly focus on More Sex is Safer Sex, a book "dedicated to the proposition that logic and evidence trump common sense." (As you might gather, the more sex item is just one of the essays in the book; he'll be blogging about a good deal more than that.) I've long enjoyed Landsburg's Slate columns, and much look forward to his posts.
When A Police Officer Makes a Traffic Stop, Are Passengers "Seized"?:
On Monday morning I plan to be at the Supreme Court to check out the oral argument in Brendlin v. California
, which considers whether a traffic stop seizes passengers of the stopped vehicle in addition to its driver. I've blogged before that I think the answer is clearly "yes," and I wanted to add a few more thoughts on why. I plan to blog a few thoughts about the argument as well; I'll probably have them up on Monday afternoon or Monday night.
In my view, the key principle that should decide Brendlin
is that Fourth Amendment seizures are all about intentional control. A Fourth Amendment seizure occurs when a government actor takes steps to control the movement of "persons, houses, papers, and effects." The Court has usually framed the test somewhat differently depending on whether the item seized is a "person" versus "houses, papers, and effect." When the government seeks to control "houses, papers, and effects," the Court ordinarily applies the test that a seizure occurs "when there is some meaningful interference with an individual’s possessory interest." United States v. Jacobsen
. When the government seeks to control persons, the Court ordinarily applies the test that a seizure occurs when government action causes "a reasonable person . . . to believe that he or she is not free to leave." Florida v. Bostick
These two tests reflect the different ways that police ordinarily control persons as compared how police ordinarily control houses, papers, and effects. When officers enter a suspect's home and take away his papers, those papers are taken by direct force. Officers pick up the papers and remove them, and the government’s control interferes directly with the individual’s possessory interest. In contrast, government control over a person is often less direct. In some cases, the police may exert direct physical control over the person, such as by placing him in handcuffs. In many cases, however, the police exert control by threat. If an officer points a gun at a suspect and orders him to "freeze!," the person is seized when he complies with the officer’s order. The moment that a reasonable person would not feel free to leave and does not leave is the moment that the officer controls the person. In sum, both tests for when a seizure occurs pinpoint the same moment in two different contexts. In both contexts, a seizure occurs when the government takes control of the person, house, paper, or effect.
case is interesting because it involves control over a person in a context more typical of control of paper and effects. When an officer pulls over a car, he directs his authority at the driver because the driver has initial control of the vehicle. The passenger is simply along for the ride. This creates confusion under the usual test for seizing a person – whether a reasonable person would feel free to leave — because the officer is causing a seizure by threat not actually directed at the passenger. However, the uncertainty is readily resolved by recognizing the ultimate goal of both tests for seizures: identifying the moment of government control. A passenger in a seized car is controlled just like the contents of a seized package; when government action takes control of "effects," it seizes those effects as well as any person who happens to be located inside. When an officer pulls over a vehicle, he does not simply control the driver: he controls the entire vehicle and all of its contents. All are seized under the Fourth Amendment.
In its brief, California tries to argue that a passenger is not seized because the Fourth Amendment requires intentional government conduct, and a passenger is seized only incidentally. See Brower v. Inyo County
. This argument doesn't work because when an officer stops a car, he intends to stop the car and all of its contents. As the Supreme Court acknowledged in Brower
, "[a] seizure occurs even when an unintended person or thing is the object of the detention or taking." The officer may not intend to stop the passenger specifically, but the passenger is still seized because he was in the car that the officer intentionally brought to rest. That distinguishes the passenger of a stopped car from people in other cars that may be inconvenienced by the officer's stop (such as the car behind the stopped car, which may need to come to rest as well). Pulling over a car intentionally seizes the car, its passengers, and its contents, but it does not intentionally seize other cars.
Of course, the duration
of the seizure can depend on the circumstances. In some cirumstances, a reasonable passenger will feel able to leave soon after the car comes to a stop. For example, if you're a passenger in a taxicab and the driver is pulled over for speeding, you may feel free to leave once it's clear that the officer doesn't need you. On the other hand, if the officers stopping the car are looking for a robbery suspect, they might approach the car in a way that makes clear that you're not free to leave. In that case, the duration of the passenger's seizure will be considerably longer. But in every case, the passenger is seized, at least temporarily, when the officer exerts his controls the car and brings it to rest.
Some folks may argue that the passenger isn't seized by the government because it's the driver's decision to stop that creates the seizure. If the driver decides to ignore the police, then no seizure occurs; perhaps the driver's decision to stop is the decision of a private actor not regulated by the Fourth Amendment. This argument is misguided, however, as it misunderstands the line between state actors and private actors under the Fourth Amendment. "If a private party acts as an instrument or agent of the Government," that private party becomes a state actor for Fourth Amendment purposes. Skinner v. Railway Labor Executives' Assn
. The Fourth Amendment clearly applies when the government commandeers a private actor and orders that actor to commit a search or seizure. When an officer orders a driver to pull over and the driver complies, the officer has effectively commandeered the driver. The driver becomes a government actor for the limited purposes of the Fourth Amendment, so the passenger in the vehicle is seized by government action rather than by private action.
One final thought for now. Back when cert was granted
, I wondered what the SG's office might do in this case:
In terms of the briefing, I'll be very interested to see what the SG's Office will do. Will they file an amicus brief on behalf of the state? They do that in most Fourth Amendment cases coming out of state courts, but this one is very odd; California's position is pretty hard to support, and DOJ probably has no problem with the contrary rule. Every federal circuit to have addressed the issue (6 or 7 circuits, I think) has ruled that stopping the car seizes the passenger. And this rule is fine for the government because under Whren, any traffic violation fully justifies the stop and resulting seizure. This means that the Brendlin issue only helps the government in the very rare case when an officer can't even come up with a traffic violation or other reasonable suspicion to justify the stop. I wonder, will the SG's office decide to stay out of this one? Stay tuned.
That's exactly what happened, as it turns out. The SG did not file a brief. This means that California will have the full half hour tomorrow to try to defend its position that Brendlin was not "seized."
Sunday, April 22, 2007
Sunday Leiter Lyric & Index:
I did not get around to posting a Sunday Song Lyric today, but at Concurring Opinions Kaimipono Wenger posted these lyrics for Brian Leiter.
For those who prefer the usual Sunday Song Lyrics, here's an index of recent postings.
- Buddy De Sylva/Lew Brown, Life Is Just a Bowl of Cherries
- Arcade Fire, Keep the Car Running
- Bloc Party, Uniform
- Dropkick Murphys, The Dirty Glass
- Joss Whedon, Once More With Feeling
- Melissa Etheridge, I Need to Wake Up
- Randy Newman, Our Town
- Elton John/Bernie Taupin, Philadelphia Freedom
- The Clash (Paul Simonon), The Guns of Brixton
- Leonard Cohen, Hallelujah
For the prior index and an SSL explanation, see here.
Zero Tolerance Comes to Campus:
On the day after the tragic Virginia Tech shootings, I wrote that "we should guard against costly overreactions [to the event] such as the draconian 'zero tolerance' policies implemented in many schools after the Columbine attacks in 1999."
Sadly, as Eugene pointed out yesterday, at least one school has already succumbed to the zero tolerance temptation: Yale University reacted to the Virginia Tech tragedy by banning the use of "realistic-looking" swords in theater productions on campus. As the Yale Daily News points out in the article linked above, the new rule has already harmed several theater productions which will have to make do with unrealistic props that might reduce the versimilitude of the plays in question. Obviously, many classic plays have battle or duel scenes that could potentially be enhanced through the use of realistic-looking swords. Just think of Hamlet and Henry V. And, as reasons that Eugene cogently explained in his post, there is absolutely no reason to believe that the Yale rule will prevent mass murder or any other kind of violence on campus.
In and of itself, the new Yale rule probably isn't that important (except to the school's theater students). But I fear that it may be the beginning of a broader trend towards enacting "zero tolerance" rules that do little or nothing to reduce violence, but - especially in their cumulative effect - may well reduce the quality of life on campus.
To reiterate an argument from my earlier post, it is essential to recognize that on-campus murders of any kind are extraordinarily rare. We should not, therefore, adopt draconian rules to prevent them unless there is strong evidence that they really will significantly reduce their incidence. Obviously, reducing the incidence of an already highly uncommon event is quite difficult to do. The new Yale rule doesn't even come close to meeting this standard. Hopefully, university administrators at other schools will have better sense than to imitate it.
CONFLICT OF INTEREST WATCH: I suppose I should mention that I am a Yale Law School graduate and therefore have a tie to the school. I doubt that this biases me in favor of Yale's rule. If anything, it probably makes me even more annoyed by it than I would have been otherwise!
The Emboldenment of the Right in Israel:
During the war in Lebanon last year, Ilya wrote a post to the effect that those on the Left who support a two-state solution and territorial compromise on Israel's part should support Israel in its war, and not demand an immediate ceasefire. After all, Israel withdrew to the internationally recognized boundary with Lebanon, and still faced attacks from Hezbollah, and also withdrew from Gaza, and continued to face attacks emanating from Gaza from various Palestinian groups. If Israel could not successfully defend its borders, with international support, after such withdrawals, the political tide in Israel would turn against further withdrawals.
Israel, of course, did not, to say the least, receive support from the international left, or from the world more generally, in its war in Lebanon. The war, while not a military defeat, was a diplomatic and strategic fiasco. Surprise, surprise, this has emboldened the far right in Israel, and left the Israeli left rather emfeebled in opposing them.