In a brief post earlier today, I wrote that it was heartening that both McCain and, to a lesser extent, Obama, are talking about cutting federal spending. Various commenters suggested that I was being naive in thinking that either candidate will cut spending if elected.
The commenters miss my point, so let me clarify. I'm not heartened because I have any expectations of either McCain or Obama. Rather, I'm heartened because they are both opportunistic politicians, and they wouldn't be talking about cutting spending unless they thought that this is what the public wants.
At least since Bill Clinton rolled the Republicans in the great budget standoff of 1995, and especially since the Republicans almost lost Congress in 1998, both parties have tried to outbid each other for the public's votes, fiscal responsibility be damned. I'm hoping that the political winds are shifting.
And by the way, while I don't have much faith in McCain, he does get credit from me for being one of the few Senate Republicans to vote against the largest expansion of government in recent history, Bush's Medicare drug program.
The Psychology of Grading:
So here's a puzzle about the psychology of grading. Harvard and Stanford Law schools have recently announced moving from a letter grade system with pluses and minuses to a High/Pass/Low-Pass/Fail system. My sense is that most students like the change: Students perceive that it takes pressure off them.
But imagine a slight change. Imagine that instead of adopting the High/Pass/Low-Pass/Fail system, the schools kept the letter system and simply dropped pluses and minuses and the "D" grade. In other words, the possible grades became just A, B, C, and F.
My sense is that students would object strongly to such a system. They would object that it was too arbitrary and unfair, because a student who earned a very high B or a very high A would get no credit for it: They would just get the flat grade that didn't reflect their achievement. Indeed, I suspect some students would say that removing pluses and minuses would increase the pressure on students by giving students a single bar to hit rather than more of a sliding scale.
Why is this a puzzle? Well, the two systems are the same in a functional sense. High is just a new name for an A, Pass is the new name for a B, and Low Pass is the new name for a C. But my sense is that students don't see it that way. My best sense of why is that the experience of having received letter grades for almost 20 years of schooling before law school gives those letters tremendous meaning that new words like "high" and "pass" don't have. A switch to a new grading system makes the new grades feel different, even if the switch is mostly just a label.
I was happy and surprised to hear, for the first time since Reagan, a major party presidential candidate actually talking about cutting federal spending. And his opponent didn't really disagree (and, indeed, Obama has recently talked about taking a hard look at all current federal programs). I'm not a fan of either candidate, but this is heartening.
I was just about to write that this is the single most depressing political event I have ever witnessed—that these two men are as fools, aping their caricatures with absurd tested phrases and crude, insulting psychological links (like Obama’s “tax cuts for oil companies”).
Joe's depression lifted a bit later in the evening. But this seemed just right to me. Football coach Bill Walsh was famous for scripting his first 20 plays of the game--that's what the first 20 minutes of the debate seemed like to me. Just reading off a script to throw out all the pre-programmed buzzwords--check, check, check.
And just one other observation as it relates to foreign policy (the subject of this debate). For those of you who think that Barack Obama is qualified to be President more than Sarah Palin is to be Vice-President because of foreign policy issues, I'm sorry, but watching tonight's debate that is simply an absurd position. Maybe they are both qualified (my view, although it is much easier to argue that Obama is qualified to be Vice-President as Obama's lack of executive experience in making decisions and general aridity do worry me in seeing him as President in a world of Putins), or maybe they are both unqualified (although both seem obviously qualfied to be Vice-President). But the idea that Obama is qualified to be President and Palin unqualified to be Vice-President has never struck me as a particularly plausible position--and after last night, even less so.
David Freddeso: Is a bailout necessary to save the economy at this point from complete collapse — from a major failure of multiple institutions at the same time?
Shadegg: I think that’s the most difficult question that could be posed under these circumstances, and it’s the question that I have struggled all week to find the answer to. I have talked to a lot of smart people who know Wall Street, know banking, know the economy quite well, and you hear different opinions. Some will tell you that it is absolutely essential. Quite frankly, I’m skeptical about that.
But I think that in some ways the question doesn’t matter any more. Because Secretary Paulson chose to raise the matter in the way he did — that is, to go public in a very high-profile way, not just with his concern, but with a kind of Chicken-Little, the-sky-is-falling kind of demand — it became a self-fulfilling prophecy.
That is to say, once the secretary of the Treasury announces to the world that there is a pending financial collapse, perhaps as great as the Great Depression, and Congress must act — he has sent a signal that essentially tells world markets that Congress must act. I will tell you that has been one of the most frustrating things about this since the very beginning...
I can’t tell you how many members of Congress were stunned at that news, and were stunned that none of their local bankers were calling them. And then they called their local bankers, as I called my local bankers, and my local bankers said, “I think things are just fine.” I talked to one banker who said, “Gosh, we’ve got money, and we’re liquid, and we’re making a profit. And we’re in the market selling loans, and we’ve got competitors trying to sell loans against us.”
So, at that point, there’s a disconnect. Secretary Paulson is claiming that this is a catastrophe of generational proportions that could go worldwide. And none of what we were hearing back home matches that. And I’m not speaking just for myself, but also for many of my colleagues who were making similar calls. They weren’t being called by their bankers, or by any of the businesses back home saying, “I can’t borrow any money”.... If, in fact, Paulson had struck a chord with the American banking community, wouldn’t you think that after he announced on Friday that there was a crisis of liquidity that threatens the entire nation’s financial solvency and Americans’ jobs from coast to coast, that my community bankers in Arizona wouldn’t have been picking up the phone by Monday morning, if not over the weekend, to say that “I share the Secretary’s concerns”?
Dick Morris had predicted that McCain would come out against the Paulson bailout last night at the debate and endorse the principles of the House Republican plan, which Morris had deemed a "brilliant move." Looks like McCain isn't quite a "brilliant" as Morris thought.
From Crony Capitalism to Crony Community Organizing: "Profit” Loophole in Bailout Bill Doesn’t Require Net Profits.
Much of the blogosphere is up in arms because of the provision in Senator Dodd’s financial bailout bill that might funnel profits from the bailout plan to ACORN Housing (related to the disreputable activist group ACORN), and other more reputable service organizations.
I have read Dodd’s proposed statute and in some respects, it is far worse than has been reported. Senator Dodd has placed a loophole in the bill that is explicitly designed to siphon off tens or hundreds of billions of dollars to the Housing Trust Fund and the Capital Magnet Fund even if there are no net profits in the $700 billion venture.
Here is the provision that has already been widely noted:
d) TRANSFER OF A PERCENTAGE OF PROFITS.-
(1) DEPOSITS.-Not less than 20 percent of any profit realized on the sale of each troubled asset purchased under this Act shall be deposited as provided in paragraph (2).
(2) USE OF DEPOSITS.-Of the amount referred to in paragraph (1)-
(A) 65 percent shall be deposited into the Housing Trust Fund established under section 1338 of the Federal Housing Enterprises Regulatory Reform Act of 1992 (12 U.S.C. 4568); and
(B) 35 percent shall be deposited into the Capital Magnet Fund established under section 1339 of that Act (12 U.S.C. 4569).
(3) REMAINDER DEPOSITED IN THE TREASURY.-All amounts remaining after payments under paragraph (1) shall be paid into the General Fund of the Treasury for reduction of the public debt.
The biggest problem here is that the 20% is not taken from net profits, but rather from any profit in the sale of each and every individual troubled asset.
For example, assume that the new Agency buys three troubled assets for $1 million each. One is sold for $2 million, while the other two are sold for $300,000. Thus, $3 million in investments are sold for $2.6 million, representing a $400,000 loss.
But Senator Dodd’s bill does not provide for losses to offset gains: “Not less than 20 percent of any profit realized on the sale of each troubled asset” must be given to the two housing funds, so $200,000 of the $1 million profit on the one asset that made a profit must be siphoned off to the housing funds, despite the $400,000 net loss on the three deals taken together.
As an analogy, imagine a regular trader of stocks who takes lots of hedged positions and had net losses of 25% this year, but couldn’t offset his gains with his losses, instead having to pay 15% income taxes only on his gains.
How much might be siphoned off under the Dodd bill? It all depends on how long the new credit Agency is in force, how often it turns over its portfolio, and how variable its returns are.
If the agency is in force for 4 years and turns over its portfolio every two months, then it would generate about $15 trillion in sales overall (650 billion x 6 x 4 = 15.6 trillion).
Let’s assume that $7 trillion of sales generate a profit of $2 trillion and $8 trillion of sales generate a loss of $2.1 trillion, leaving a net loss of about $100 billion.
With a net loss, one might think that nothing would be funneled to the housing funds for service organizations, but that is not what the statute says or means. One looks only at the sales generating gains to determine the size of the payments to the housing funds. With $2 trillion in profits and $2.1 trillion in losses, the housing funds nonetheless get $400 billion dollars in “profits.” (This is over 40% of a typical year’s US total federal income tax receipts.) And that is the result if only 20% of "profits" are skimmed; the statute puts no upper limit on the skimming, so long as they come from profits (not net profits). Theoretically, the new Agency could potentially siphon off $2 trillion to the two housing funds, more than its $700 billion portfolio limit.
400 billion dollars may be a high estimate for the housing fund payments, but if they turn out to be only a tenth as large ($40 billion), they would still be huge. To reduce this massive skimming required by the Dodd statute, the new government Agency would have the incentive to engage in fewer transactions and do less to create a public market for troubled assets, thus significantly undercutting the chance that the bailout will work.
I was mildly in favor of the bailout until I read Dodd's proposed statute. The way that the statute is drafted is so tricky and its definition of profit is so unsophisticated and nonsensical that the statute smells more of graft than of an honest attempt to solve the financial crisis. We are moving from failed "crony capitalism" to failed "crony community organizing."
Other posts will deal with other provisions in the Dodd bill and whether ACORN Housing will actually apply for any funding.
Senator Dodd's bailout plan has some serious drafting and incentive problems.
If the drafters of the Dodd scheme were to create a game based on the scheme (assuming a liquid market and rational behavior) and play a few dozen rounds one evening, they would know that the Dodd scheme won’t work unless people do things that are directly contrary to their interest in making a profit.
“The Secretary may not purchase, or make any commitment to purchase, any troubled asset unless the Secretary receives contingent shares in the financial institution from which such assets are to be purchased equal in value to the purchase price of the assets to be purchased.”
A LITERAL READING
If the contingent shares must be equal in value to the purchase price of the assets, then why would most companies sell troubled assets to the government at their current estimated value?
For example, if the government pays a million dollars for some troubled assets, then the company must give the government the troubled assets plus contingent shares worth a second million dollars. If the contingency had a 50% chance of occurring, then that would mean that the company would have to turn over a contingent right to $2 million in company stock ($2 million x 50% = contingent shares valued at $1 million).
But the most that would be payable if the government lost all $1 million on a $1 million purchase would be $1,250,000 in stock (1.25 x the loss). So a 50% chance of that would be worth $625,000, not the $1 million required by the literal language of the statute. In this view, the government could buy only troubled assets that where the chance of their becoming worthless was at least 80%. This makes no sense. And what company would want to receive just a million dollars in return for a million dollars in assets plus contingent shares worth a million dollars?
A FIRST GAME
The literal reading of the statute I went through above is probably not what was intended by the drafters. What the drafters probably intended is that, in return for paying a million dollars, the government would receive the troubled assets plus a contingent right to shares of stock that would be worth a million dollars IF they were NOT subject to a contingency. Since the shares ARE subject to a contingency, these contingent shares are worth something, but not a million dollars.
Nonetheless, this approach still doesn’t make much sense for reasons that are best shown by imagining a game.
The government is paying a company million dollars for 2 things: (a) a troubled asset and (b) a contingent right to $1 million in stock.
Assume a heuristic game.
In the first round of the game, let’s arbitrarily assign a value to the contingent right of $300,000 (eg, a substantial chance of up to $1 million in stock). Accordingly, in return for a nominal purchase price of $1 million, the company would trade the government an asset worth $700,000 and a contingent right (to up to $1 million in stock) worth $300,000.
Assume that an hour later, the government sells the $700,000 troubled asset for the market price of $680,000. According to the way I read the statute, the government has just sustained a loss of $320,000 ($1 million - $680,000). This triggers a penalty clause that gives the government 125% of its loss in company stock, measured by the stock price in the 2 weeks before the original deal. Thus, the government now obtains $400,000 of the company’s stock.
From what we’ve learned in the first round of the game, a contingent share right (to up to $1 million in stock) should probably be valued at significantly more than $400,000 in the second round of the game; let’s say it’s worth $600,000. In the second round, the government agrees with another company to pay $1 million for a contingent right worth $600,000 and troubled assets worth $400,000.
Assume that an hour later, the government sells the $400,000 troubled asset for the market price of $380,000. According to the way I read the statute, the government has just sustained a loss of $620,000 ($1 million nominal price - $380,000). Again, the government is entitled to 125% of its loss in company stock, measured by the stock price in the 2 weeks before the original deal. Thus, after the second round the government now obtains $775,000 of the company’s stock.
So our valuation of $600,000 for the contingent right in the second round was too low. In the third round, let’s assign a value of $800,000 to the contingent right and $200,000 to the troubled assets. Again the government pays $1 million. An hour later, the government sells the $200,000 in troubled assets for $190,000. It now is allowed to take all $1 million of company stock to make up for 125% of its $810,000 in nominal losses.
Anyone who understands how such a game progresses would never play even one round.
A SECOND HYPOTHETICAL (or GAME)
The prior example assumed that the government was selling the troubled assets in its portfolio for as high a price as it could and that it flipped the assets quickly.
In a second example, assume that the government holds the property for a few months and tries to maximize its own profits, not to maximize the resale price. Assume that the government bought a million dollars in troubled assets from each of two companies, ACME and ZED. In the two months since the purchase, ACME’s stock had dropped in half; ZED’s stock had doubled in price. A rational government would sell the ZED asset for LESS than it was worth on the open market, because for every $1 the government lost on the sale of the asset it had originally received from ZED, it would gain $2.50 in ZED stock (125% of the loss measured by the original price of the stock, which has now doubled).
When stock prices have climbed since acquiring the troubled assets, the worse the government does in selling troubled assets – ie, the lower the prices it accepts from buyers — the more money it makes. This perverse incentive renders the scheme unworkable if you want actors in the Dodd scheme to maximize returns.
ANOTHER DRAFTING ERROR
The bill also contains this bizarre definition:
As used in this subsection, the term "contingent share" means any equity security traded on a national securities exchange.
Again, this makes no sense. Contingent shares of bank stocks are not generally traded on exchanges such as the NYSE or AMEX and will not be traded on exchanges under the bill.
Harvard and Stanford's Adoption of the Yale Law School Grading System:
Orin Kerr and I have plenty of disagreements. But as a Yale Law School grad, I agree with his criticisms of the YLS grading system, and am somewhat disappointed that other schools are copying it. For those who may not know, the YLS grading system replaces traditional letter grades with a constricted three grade scale (Honors, Pass, and Low Pass). In practice, most Yale grades are either H's or P's; Low Passes are rare. Technically, students can also fail a class. But this penalty is only imposed on an extremely unlucky and inept few.
The Yale system is very popular with students, in part because it enables those at the bottom of the class to post respectable transcripts that make it difficult to tell exactly where they stand relative to their classmates. It also enables students at all levels to slack off in some classes without damaging their records much. As Orin notes, the system greatly reduces the informational value of grades by ensuring that the vast majority of students get mostly P's, with perhaps occasional H's. In practice, the YLS "P" seems to encompass all the grades ranging from a B+ or low A- to a C or C- on the traditional grading scale. Thus, "C" students' transcripts look very similar to those of B students. Employers allow YLS to get away with this because even low-ranking Yale grads are usually considered good candidates for jobs at major firms. Harvard and Stanford grads probably also have enough prestige to get away with it for the same reason.
Still, it's unfortunate that Harvard and Stanford transcripts will now provide less useful information than before, thereby reducing the efficiency of employer hiring. And though I may not be as much of an old-fashioned meritocrat as Orin, I too don't especially like a grading system that reduces the cost of slacking off.
My wife and I tend to watch current TV shows on our computer, using the "full episodes" feature available on the networks' sites. No cable, no TiVo, all free, so long as we're watching the recent episodes (and older episodes are available cheaply for download, or via NetFlix if they're from a previous season). Some people don't like watching TV on their computers, but it works just fine for us.
Here's one puzzle, though: Though there aren't as many commercials as there are on live TV, the commercials tend to be all the same. We see a commercial at the start, then we see the same commercial ten minutes, then the same commercial ten minutes after that. It's not a huge annoyance, since they're just 15 to 30 seconds long. But I don't get it -- why would the advertisers want to bore us, even alienate us, by throwing the same commercial at us again and again? Even if we're paying attention the first time, we won't be the rest of the times. Why not give us a random mix of commercials, so that each one will be at least a little fresh?
I realize that people tend to ignore commercials, and that it may take several viewings for the viewer to absorb what's being said. But I'd think that it would be less annoying, and thus more effective, to have the several viewing be spread over several different episodes, rather than trying to get the viewer to like the product by giving him exactly the same pitch several times within an hour. I suppose I must be wrong, given that lots of smart people pay lots of money to play commercials this way. Still, if anyone has a more detailed explanation of the plan, I'd love to hear it.
Sure, they all can tell us that companies should not be routinely bailed out but in situations of financial contagion bailouts may be sensible, but do they really know whether such a situation exists today or not? Or how to respond? I was skeptical about whether they knew or not, but didn’t want to be impolite, because so many of them are smart and helpful, but my suspicions were confirmed by one of them, anyway:
On the one hand, I share many of the concerns of the letter signers [a reference to a letter opposing the bailout signed by a number of economists] and other critics of the Treasury plan.
On the other hand, I know Ben Bernanke well. Ben is at least as smart as any of the economists who signed that letter or are complaining on blogs or editorial pages about the proposed policy. Moreover, Ben is far better informed than the critics [my emphasis]. The Fed staff includes some of the best policy economists around. In his capacity as Fed chair, Ben understands the situation, as well as the pros, cons, and feasibility of the alternative policy options, better than any professor sitting alone in his office possibly could.
If I were a member of Congress, I would sit down with Ben, privately, to get his candid view. If he thinks this is the right thing to do, I would put my qualms aside and follow his advice.
Thus blogged Greg Mankiw, not any old ordinary economist, but one who actually has experience in government. So much for checks and balances! So much for the majesty of democratic deliberation! Does it remind you of the Bush administration’s explanation for its war-on-terror activities? We have to eavesdrop on people but we can’t tell you why because if we did, we would reveal our methods and lose the ability to eavesdrop.
By the way, I’m not opposed to a bailout. Like Mankiw, I favor a bailout because Ben does. And I favor eavesdropping because Mike does. Anyone have a better suggestion for deciding what to do?
(I will add that Mankiw posted a letter from a colleague who says that even if Ben is better informed than any other economics professor, he lacks the collective wisdom of all economics professors, and that is why it was correct for the colleague to sign the letter from economists that opposed the bailout plan. The colleague goes on to say that there are better ways of solving the current financial crisis and cites a recent WSJ op-ed written by some other economics professors. The problem not mentioned by the colleague is that while the collective wisdom of economics professors opposes the Paulson plan, it has not converged on an alternative: the collective wisdom fragments into dozens of ideas proposed by little clumps of professors. So the letter itself is a useless document and Mankiw was correct to withhold his signature. Should a member of Congress listen to Ben or listen to a (randomly selected?) clump of economics professors who favor one or another alternative?)
Principled Activism:
In an essay, In Defense of Judicial Activism, Damon Root argues that the Constitution should be interpreted as a libertarian document:
What we need is a principled form of judicial activism, one that consistently upholds individual liberty while strictly limiting state power. Too bad neither the right nor the left seem very interested in that.
Isn't it sort of misleading to say that this form of judicial activism would be "principled"? I suppose you could say "principled" just means "following a recognizable rule or methodology, whatever it is." In that sense, such activism would be principled. But if we take that view, everything is principled. Always ruling for the white guy would be principled, for example: The principle would be that the white guy always wins. Similarly, it would be principled for the Court to rule for petitioners on cases argued on Mondays and for respondents for cases argued on Tuesdays. If it's principled to always interpret the Constitution in a libertarian way even if the particular text, history, and meaning doesn't warrant it, then I would think that fidelity to the Constitution requires more than just being principled.
Anyway, Root's essay is largely a response to Judge Wilkinson's critique of Heller. If you haven't read Wilkinson's essay yet, it's worth a read. (Hat tip: Instapundit)
Philip Gourevitch's "The State of Sarah Palin" (New Yorker, 22 September, p. 66-7) quotes from an interview with the vice-presidential candidate:
"We're not just gonna concede to three big oil companies of this monopoly –- Exxon, B.P., ConocoPhillips –- and beg them to do this [build a natural gas pipeline] for Alaska," Palin told me last month in Juneau. "We're gonna say, 'O.K., this is so economic that we don't have to incentivize you to build this. In fact, this has got to be a mutually beneficial partnership here as we build it. We're gonna lay out Alaska's must-haves. Parameters are gonna be set, rules are gonna be laid out, a law will encompass what it is that Alaska needs to protect our sovereignty, to insure it's jobs first for Alaskans, and in-state use of gas'" –- her list went on.
What stands out here — for a linguist, anyway — is the five occurrences of the spelling gonna for written standard going to. I'll take Gourevitch's word that this is the way Palin pronounced the expression, but why did he transcribe it that way? ....
First point: gonna is an entirely standard, though informal variant of going to, at least in American English.... Instances of gonna from standard-English American speakers in relaxed contexts are all over the place, and it's not hard to find the occasional instance from such speakers (even prestigious ones) in formal contexts. Normally we'd expect such occurrences of gonna to to be represented as going to in print.
Fourth point: ... using non-standard spellings like gonna for standard (but informal) phonological variants paints the speaker as folksy, rustic, etc.... The writer thus covertly injects a social judgment about the speaker into what is framed as a report of an interview about experiences and opinions. In the pages of the New Yorker, N variants convey a negative judgment (because the magazine's readers are likely to hold to the belief that the N variants are, if not simply non-standard, that is, "incorrect", then at least rough, "hick", variants). In other publications, N variants might be understood differently....
The rest of the post is much worth reading as well (as is characteristic of Language Log, which does a great job of applying its authors' scholarly and professional knowledge to lay topics).
My quick thought on the situation: People have both personal and regional variants in their pronunciations, such as the Southern "Ah" for "I," some people's preference for "cyoopon," particular people's lingering foreign accents (like, er, maybe mine), and the like. The speakers are still using the same words as everyone else — they're just pronouncing them slightly differently.
It seems to me that written quotes ought to capture the words used, and not the pronunciation. We wouldn't normally quote a lisper as saying, "We're going to thay, 'OK, thith ..." (at least unless the lisp is the focus of the story). We wouldn't quote a Southerner as saying "Ah buhlieve ...." We shouldn't quote someone as saying "Febyooary" when he means February.
Likewise, it seems to me that "going to" should be quoted as "going to" even when it acoustically resembles "gonna," at least setting aside unusual circumstances (for instance, if the argument is generally about the speaker's deliberately folksy pronunciations, something Zwicky reports this article is not). Such phonetic spelling strikes me as sometimes distracting to readers. And it strikes me as generally unfair to the speaker, whose regional background, speech impediment, or foreignness the phonetic spelling unduly emphasizes.
The latest poll shows Jews supporting Obama over McCain by 57% to 30%, with 13% undecided. Back in February, I suggested that McCain started with a base of the 25% that Bush received in 2004, would almost certainly do better because he is a more attractive candidate to Jews, and Obama less so, than were Bush and Kerry, and could go as high as 40%. I think the Palin choice has dampened his chances of doing quite that well (Jews overwhelmingly approve of Biden, but a majority disapprove of Palin), but he's still on track to have the best Republican perfomance among Jewish voters since at least Ronald Reagan in 1980.
UPDATE: As far as methodology goes, the survey relied on self-identified Jews from "the Synovate consumer mail panel." This suggests to me that the poll would underrepresent Russian and especially ultra-Orthodox Jews.
I often suggest that people not assume that "erroneous" usages are some sort of innovation. Here's one example that came up in an exchange with an academic friend of mine: the singular "they." Feel free to dislike it, and to urge people not to use it. But suggesting that it's some sort of innovation runs up against, among other people, Shakespeare:
There's not a man I meet but doth salute me
As if I were their well-acquiainted friend.
Or how about Thackeray, in Vanity Fair, "A person can't help their birth"? The Merriam-Webster Webster's Dictionary of English Usage has many more examples.
I'd go further and suggest that if a certain usage was good enough for some of the leading writers in the English language, it's hard to see just what can be so wrong with it (unless it's archaic, which this usage is not). But at the very least we should acknowledge the historical fact that the usage is not new; and even if it is somewhat more common now, a matter on which I'll remain skeptical until I see hard data, it was common enough back then.
Special bonus to our very few Russophone readers: Note how the Shakespeare quote above is channeled by Cheburashka:
Теперь я - Чебурашка, и каждая дворняжка
При встрече сразу лапу подает.
I assume the purpose of Harvard and Stanford making these decisions is to try to get some of the Yale halo effect. Yale is the #1 school among top law school applicants, top judges, and law school hiring committees. Yale's lack of traditional grading information works to its advantage. Applicants like it, of course: No gunner law student wants to be told he is pretty much average, which is what grades tend to tell people in most cases. And the lack of information about where Yale students fit in the class often works to their advantage in the job market, as it's harder to compare Yalies to students at other schools. Employers figure, "Well, I have no idea how smart this guy is, but then, he is at Yale...." Perhaps adopting Yale's unusual grading system will attract more top students to Harvard and Stanford, and it may have a psychological impact on judges hiring clerks and committees hiring assistant professors. Or maybe it will backfire. Time will tell.
I can certainly see an advantage for the faculties at Harvard and Stanford. Fewer grading distinctions means much less time grading. Ranking a set of 100 exams into 7 or 8 different categories takes an incredible amount of time, as you need to make sure that every exam in each category isn't better than an exam in a higher category or worse than one below. But ranking is very easy if there are only three categories: Unless an exam jumps out as outstanding or terrible, it's a "pass" and you don't need to spend time on it.
As a Harvard Law alumnus, on the other hand, I admit I'm a bit saddened by the switch. One of the things I respected most about Harvard Law as a student is that it was unapologetic about its reliance on grades. When you got your grades back, you knew pretty much exactly where you stood in a very competitive class. I suppose I think something is lost in giving students and their future employers less feedback. But then I'm pretty much a traditionalist about such things: I confess to believing in the mostly unfashionable notion of meritocracy, so I tend to think the more grades, the better.
Finally, I can't help but think that Felix Frankfurter must be turning over in his grave. His beloved Harvard Law School abolishing letter grades? FF would have lost it over that one; I think he would have decided to only hire clerks from the University of Chicago.
Yesterday's Detroit Free Press and today's Raleigh News & Observer ran an op-ed by Mitu Gulati and me on the desirability of Obama and McCain telling us who they would choose to be their Secretary of the Treasury. This is closely related to our article on presidential candidates naming their key people in advance of the election, which Eugene and I blogged about in July. Anyway, here is the op-ed:
In TV’s “The West Wing,” President Jed Bartlet was a Nobel Prize-winning economist.
In real life, our presidential candidates are not experts in economic principles. So when they keep getting asked what exactly they would do to manage the biggest financial meltdown since the Great Depression, their responses are fairly vague.
The result is that voters cannot determine how well each candidate would chart a desirable course through this crisis. (Different groups will define “desirable” differently, putting all the more emphasis on knowing exactly how each new administration will make regulatory policy.)
The identity of key appointees — in particular, the Secretary of the Treasury — is enormously important. Congress appears to be on the verge of granting stunningly broad powers to the Treasury Secretary, authority that his predecessors never dreamed of. News outlets are already speculating about who the next Treasury secretary will be, but why should we have to rely on speculation?
The candidates should tell us now whom they plan to pick. And while they’re at it, identifying their prospective chairman of the Council of Economic Advisers would also help.
If we had those names, then we might be able to obtain some valuable information. Maybe Barack Obama would announce, for example, that he would choose to bring Robert Rubin and Larry Summers (President Clinton’s team) back to Washington. If he told us that, we could look to see how Rubin-Summers dealt with the Asian crisis of the late 1990s, which involved decisions about bailouts and systemic risk too.
In John McCain’s case, what if he told us that he planned to tap John Taylor, the former undersecretary of Treasury who dealt with the effects of the Argentine crisis some eight years ago? Again, bailouts were contemplated then and so were policies to deal with the risk of financial contagion. Or maybe McCain would pick Carly Fiorina, who dealt with difficulties of a different sort at Hewlett-Packard?
The point is if we have concrete names, we can make informed decisions about which of these candidates would do a better job with the economy.
None of this is going to be as much fun as talking about Bristol Palin’s pregnancy or her high school boyfriend’s Facebook page. But while gossip is fun, many of us are concerned about what is happening in the economy. And at least some of us would give our vote to the candidate who picked the best secretary of Treasury.
We realize that the candidates themselves might not want to tip their hands. Candidates may prefer to be vague in their pronouncements. And being able to promise the prospect of a high-level cabinet position to a variety of people is a good way to keep them all working hard during the pre-election process. So what can we do to induce such revelation?
We should simply ask, and when given vague answers, we should push. In the current era where candidates engage in online discussions with voters and answer questions sent via YouTube videos, maybe we can ask them this question enough times so that failing to answer becomes a problem. Plus, if one answers, that might give him an advantage — the first mover will be perceived as more innovative.
Philadelphia Gun Ordinances Held Preempted by State Law:
Clarke v. House of Representatives, decided today by the Pennsylvania Commonwealth Court, so holds, reaffirming similar decisions in the past. The Pennsylvania Constitution grants cities home rule powers in matters of local, as opposed to statewide, concern. Darrell Clarke and Donna Miller, members of the Philadelphia City Council, argued that gun laws were such local matters, and the state law preempting local gun laws was thus unconstitutional. But the court reaffirmed the contrary view, citing the Pennsylvania Supreme Court's earlier conclusion that
Because the ownership of firearms is constitutionally protected, its regulation is a matter of statewide concern. The constitution does not provide that the right to bear arms shall not be questioned in any part of the commonwealth except Philadelphia and Pittsburgh, where it may be abridged at will, but that it shall not be questioned in any part of the commonwealth. Thus, regulation of firearms is a matter of concern in all of Pennsylvania, not merely in Philadelphia and Pittsburgh, and the General Assembly, not city councils, is the proper forum for the imposition of such regulation.
An interesting example of how constitutional provisions do more than just directly override contrary legislation: I expect that Pennsylvania courts would interpret the constitutional provision as not itself trumping certain state regulations of guns -- but the constitutional status of the right is seen as supporting the state's decision to trump similar local regulations of guns.
Harvard Law Moving to Yale-Like Honors / Pass Grading System:
According to the e-mail that I had forwarded to me (and whose authenticity I have no reason to question), Harvard would technically have four grades -- Honors, Pass, Low Pass, and Fail. My guess, though, is that Low Pass and Fail would be extremely rare, and 98%+ of all grades would be Honors or Pass, as they are at Yale. The shift then is basically from at least five commonly used grades (A, A-, B+, B, and B-, unless I'm mistaken) to two.
Stanford apparently adopted a similar proposal a few months ago.
In considering this view, it's worth recognizing that many of the massive, decisive government interventions that FDR and the New Deal Congress enacted actually made the situation worse. As I discuss in in this article, the administration and various interest groups used the crisis of the Great Depression to enact sweeping legislation that benefited themselves at the expense of the general public, sometimes in ways that made the crisis worse than before. In these efforts, they were abetted by voters' sense of desperation and widespread ignorance of economics and public policy. This made it easy to portray measures that benefited narrow interest groups at the expense of the general public as "emergency measures" needed to address the crisis.
Perhaps the most egregious example was the National Industrial Recovery Act, the centerpiece of FDR's 1933 "First New Deal" (discussed at pp. 649-55 of my article). The NRA (not to be confused with the National Rifle Association) established a system of cartels to raise prices and wages throughout nearly the entire nonagricultural economy. This benefited certain big business interests and unions, which were able to suppress their competitors. But it also had the predictable result of greatly reducing economic output and increasing unemployment, especially among the poor and unskilled who were already suffering greatly. Economists estimate that it reduced GDP by as much as 6 to 1l percent (pg. 650). Co-blogger David Bernstein points out in his bookOnly One Place of Redress that the NRA particularly harmed low-wage black workers and that it was supported by some white labor unions in part because they hoped it would stifle black competition. The NRA - the biggest and most ballyhooed of FDR's early New Deal policies - made the Depression significantly worse than it would have been otherwise.
The NRA was the biggest and most damaging of the New Deal's harmful interest group power grabs. But it was far from the only one. For example, all law students study the Supreme Court's decision in Wickard v. Filburn, which upheld the Agricultural Adjustment Act requirement that farmers limit their production in order to raise prices. Like the NRA, the AAA was a cartel scheme intended to raise prices in order to benefit big producers (AAA production quotas and subsidies were based on the amount of farmland each farmer owned, thus benefiting bigger producers who owned more land) at the expense of consumers and smaller competitors. The predictable and intended effect of the AAA was to raise food prices - this in the midst of a Depression when many people were already suffering from malnutrition and could not easily tighten their belts further.
The NRA, AAA and other similar measures were made possible by the crisis atmosphere of the time, combined with widespread political ignorance (discussed in my article) which made it difficult for voters to tell the difference between genuinely needed emergency measures and interest group rent-seeking masquerading as such. As a result, many policies were enacted that made the Depression longer,deeper, and more painful than it would have been otherwise. Today, even many historians sympathetic to FDR and his policies concede that they failed to end the Depression (unemployment remained in double digits until World War II) and that some of them worsened the lot of the poor and unemployed more than they helped. Econometric studies show that much of the increased government spending generated by the New Deal was transferred to politically powerful interest groups who could help FDR and his allies win reelection rather than to the poor and needy.
I don't claim that every aspect of the New Deal was harmful. Some parts of it were either beneficial or at least defensible given the information available at the time. Still, a great deal of extremely damaging legislation was enacted because powerful interest groups were able to exploit the combination of a crisis atmosphere and public ignorance.
Today's situation isn't exactly equivalent to that of the 1930s. The bank crisis is much less severe than that of the Depression and the bailout proposed by the Bush Administration is probably not as damaging as the NRA was. But we still could end up repeating some of the policy fiascoes of the Depression era, even if on a lesser scale. The history of the 1930s suggests that we should be skeptical when political leaders claim that we must act immediately to address an economic emergency - especially if they want to do so in ways that transfer enormous amounts of wealth from the general public to influential interest groups. Widespread political ignorance is still with us; indeed Americans' average level of political knowledge has risen very little, if at all, over the last fifty years. And political pressure to "do something" to alleviate the perceived emergency can easily be exploited by interest groups at the expense of the rest of us. Already, a variety of interest groups are trying to take advantage of the crisis atmosphere by obtaining bailouts of their own - just as happened during the Depression. We should do all we can to avoid going down that road again.
UPDATE: I have corrected a couple of typos, including one where I accidentally typed "NRA" when I meant "AAA."
UPDATE #2: I suppose it's only fair to point out that Joe Biden's remarks, linked in the first sentence of the post, only urged Bush to go on TV and explain the crisis (as Biden said FDR had done in 1929). However, this remark has to be considered in the broader context in which Biden and many others have been calling for swift government intervention similar to what was done in the 1930s. Biden has even expressed anger at John McCain for supposedly preventing the administration's massive bailout from going through fast enough. This last comment should not be read as an endorsement of McCain's own conduct, since he also strikes me as overly eager for a massive bailout.
In a new article for America's 1st Freedom (a NRA member magazine), I examine some of President Obama's potential Supreme Court picks. (Based on a list of potential nominees in an article by Stuart Taylor in the National Journal.) Justices Cass Sunstein, Merrick Garland, Sonia Sotomayor, and Eric Holder would be terrible for Second Amendment rights, I suggest. Attorney General Deval Patrick and Secretary of the Interior Tom Daschle would be pretty bad in that regard, too, I argue. The article also summarizes Obama's record on Second Amendment issues.
BarackRolled:
David Bernstein does his patriotic service below by linking to an anti-Obama advertisement. If we're posting political videos out of service to country, I think someone has to link to the following work of genius (even if the guy who made it is Australian):
Looks like the boom/bubble years on Wall Street served Hank Paulson pretty nicely:
Executive compensation: As Goldman's chief, Paulson received an $18.7 million cash bonus for the first half of 2006, and in 2005 he was the highest paid chief executive officer on Wall Street, reaping $38.3 million in salary, stock and options. He also accumulated 3.23 million shares of Goldman's common stock worth $492 million, plus restricted shares worth $75.2 million and options to purchase 680,474 shares, according to a Goldman regulatory filing on July 2, 2006.
Paulson sold his 3.23 million shares in Goldman, worth about $500 million at the time, when he took the Treasury job, according to regulatory filings. He was exempted from paying capital gains tax on the sale of those stakes under a rule meant to avoid penalizing wealthy people who take government jobs and are forced to sell assets.
Paulson also sold about $25 million of holdings in a Goldman fund whose sole asset was a stake in Industrial & Commercial Bank of China, the world's largest publicly traded financial institution. The bank raised $22 billion in its initial public offering in October 2006, the world's biggest IPO.
No wonder he initially opposed pay caps on the executives of firms that participate in the bailout.
Update:
Perhaps more relevantly to Paulson specifically, some of the legislative proposals contain "claw-back" or "reachback" periods that would permit recovery of excessive executive compensation (analogous to the fraudulent conveyance power in bankruptcy). If Goldman were to participate in any such plan, would this make Paulson vulnerable to having to disgorge some of his compensation during this period?
Allan Meltzer, who I heard invoked about half-a-dozen times last night on tv, expresses his view here:
ALLAN MELTZER, Carnegie Mellon University: It's a terrible idea. It's undemocratic. It's bad economic policy, and it's bad social policy. And it has a very little chance of solving the problem in a meaningful way.
JEFFREY BROWN: Well, flesh that out a bit. Is it that we are not in a crisis? Or is it that government intervention of this kind is not the right answer?
ALLAN MELTZER: Well, I've listened to governments tell me for 40 years that there was a crisis and the world was going to fall apart if we didn't do this or that. But there have been a few cases where they weren't able to do that.
One was the commercial paper crisis in 1970. There have been several others. The world did not fall apart. Last week, we had Lehman Brothers went into bankruptcy. Within three days, most of the assets were sold.
We had AIG turn down three offers to buy the company because they thought they would get a better deal from the government. It turned out they didn't get the better deal from the government. Now the stockholders suddenly woke up and said — the major stockholders said, "We'd like to buy the company."
Well, that's what I think we need to do. We need to get the government's hand out of this, and let's see whether we can't get a market solution.
The market people caused this problem. They ought to be the ones that pay the cost of having it cleaned up.
One major justification/rationalization for the bailout is that Wall Street's crisis will trickle down to "Main Street" and lead to bank and business failures on the local level. Maybe this eventually will turn out to be the case. Yet today's Washington Post reports that community banks that were responsible lenders over the past decade are now thriving. They are flush with liquidity as depositors pour money into them and borrowers turn to them for credit. Community banks obviously cannot pick up the slack for financing for massive business transactions, so there may still be a problem there. But at this point it is not obvious that the rumbles on Wall Street will have the dire trickle-down consequences that President Bush warned of the other night when he told us that student loans, small-business loans, and car loans were in peril. In fact, it looks like there is at least some offset here:
At the same time, many smaller banks said they were actually benefiting from the problems on Wall Street. Deposits are flowing in as customers flee riskier investments, and well-qualified borrowers are lining up for loans.
"We collect money from local savers, and we lend it in the local community," said William Dunkelberg, chairman of Liberty Bell Bank in Cherry Hill, N.J. "We're doing fine. There are 9,000 financial institutions out there, and most of them are small and most of them are doing fine."
Dunkelberg, a professor of economics at Temple University and chief economist for the National Federation of Independent Business, added that a recent survey of that group's members found that only 2 percent said getting a bank loan was the great challenge facing their businesses.
"If you can't get a loan, my advice is to go see your local community bank," Dunkelberg said.
***
We're drowning in liquidity because people are pulling money out from other places and depositing it with us," said Peter Fitzgerald, chairman of Chain Bridge Bancorp in McLean. "Our bank has benefited tremendously."
Fitzgerald, a former senator from Illinois whose family has been in the banking business for generations, said the current situation struck him as similar to past downturns.
"The banking system did need to slow down," Fitzgerald said. As it does, riskier customers are being turned away. At the same time, banks that overextended are now forced to turn away even good customers. The challenge for Chain Bridge, he said, is identifying the worthwhile customers. The bank has plenty of money to make good loans, he said.
There is no panic on Main Street and in sound financial institutions. The problems are in high-risk financial institutions and on Wall Street.
While all financial intemediaries are being impacted by liquidity issues, this is primarily a bailout of poorly run financial institutions. It is extremely important that the bailout not damage well run companies.
Corrections are not all bad. The market correction process elminates irrational competitiors. There were a nubmer of pooerly managed institutions and poorly made financial decisions during the real estate boom. It is important that any rules post "rescue" punish the poorly run institutions and not punish the well run companies."
Finally, he adds an observation that expresses a conern that I have shared from the beginning, which has led them into missteps and unintended consequences already:
The primary beneficiaries of the proposed rescue are Goldman Sachs and Morgan Stanley. The Treasury has a number of smart individuals, including Hank Paulson. However, Treasury is totally dominated by Wall Street investment bankers. They do not have knowledge of the commercial banking industry. Therefore, they can not be relied on to objectively assess all the implications of government policy on all financial intermediaries. The deicison to protect the money funds is a clear example of amaterial lack of insight into the risk to the total financial system.
In fact, the community bankers mentioned above tend to vacation at the Jersey Shore rather than the Hamptons, and fly commercial rather than charter, so Mr. Paulson may not actually have had the opportunity to speak with them about the bailout. (Sorry, I couldn't resist at least one dig.)
Finally, the Austrian economics community is having a field day with the bailout. Steve Horwitz observes "Competition sucks if you're one of the competitors" and that what is good for Wall Street is not necessarily good for the economy as a whole. Crony capitalists, Horwitz argues, crave stability (especially when that allows them to keep gains and socialize losses) rather than dyanamism.
Peter Klein comments on the underlying monetary causes and the inevitability of market correction in "What would Hayek say?"
And Larry White adds : "Capitalism in which AIG never closes down is like American Idol in which Sanjaya never goes home."
Finally, the best line of the night last night (that I saw) went to Congressman Ron Kind who said that phone calls to his office were "running 50-50--50% 'No' and 50% 'Hell No.'"
Today's New York Timesreports that Justice Alito has withdrawn from the cert pool. This means that there are seven justices left in the pool -- all but Justices Alito and Stevens.
Students of the court say there are costs and benefits to relying on pool memos, which are prepared by smart but relatively inexperienced law clerks.
“The benefit is efficiency,” said David R. Stras, a law professor at the University of Minnesota who has studied the subject and reviewed many of the pool memorandums released with Justice Harry A. Blackmun’s papers. The pool, he said, avoids the time-consuming duplication of efforts that would result from having a clerk in each justice’s chambers consider every petition.
But the pool system “does put enormous influence and power in a single clerk,” Professor Stras said, adding, “I’m quite sure there are cases that fall through the cracks.”
Some argue that having several sets of eyes review each petition — the pool clerk, along with clerks from the chambers of Justice Stevens and now Justice Alito — may serve as a valuable check. The pool system, though, has the virtue of ensuring that at least one clerk will give each petition a careful look, which might not be possible were each justice’s clerks to review every petition. (Justices typically have four clerks each.)
Critics of the cert. pool say it has led to homogenization and a lack of candor, a consequence of writing for an audience broader than only the clerk’s own justice. But the pool memorandums are often only a starting point, with each justice’s own clerks sometimes reviewing, highlighting and annotating the more important ones.
It seems to me that one way to get the efficiency benefits of the cert pool without some of the drawbacks would be to have two separate cert pools that review every petition. This would have the benefit of ensuring that every petition is reviewed by more than one person, but not impose the burden of reviewing every petition in a single justice's chambers.
As co-blogger Jonathan reports below, the Obama campaign has sicced its lawyers on t.v. stations that might air a well-sourced NRA advertisement that correctly points out Obama's longstanding anti-gun record. The proper response to such attempts to infringe on the First Amendment is to make sure that the video in question receives the widest circulation possible, to deter the Obama campaign, and other campaigns for that matter, from engaging in such tactics in the future. So here it is. Share it with a friend, with a note that Obama is threatening legal action against stations that run it, in violation of the First Amendment.
Man Charged With Battery For Farting in Police Officer's General Direction:
The news story is here:
During fingerprinting [after being arrested for drunk driving], [the defendant] then allegedly moved closer to one of the officers and passed gas, the station reported. In the complaint, the investigating officer wrote that police noticed a "very strong" odor. The alleged stunt led [the defendant] to be charged with another offense — battery on an officer . . . .
If you think this story reeks of police overreaching, I agree. The West Virginia battery-on-an-officer statute is § 61-2-10b(c), and it states:
Any person who unlawfully, knowingly and intentionally makes physical contact of an insulting or provoking nature with a police officer . . . acting in his or her official capacity, or unlawfully and intentionally causes physical harm to that person acting in such capacity, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one month nor more than twelve months, fined the sum of five hundred dollars, or both.
So this raises a critical question of statutory interpretation that I'm sure many of you wonder about from time to time: does farting "make physical contact" or "cause physical harm"?
There are no West Virginia cases that I could find that are really relevant to the question. More broadly, I couldn't find a single case in which passing gas led to battery charges. However, if we assume that West Virginia's statutory terms of "physical contact" and "physical harm" are meant to incorporate the usual elements of criminal battery, then farting in a police officer's general direction shouldn't constitute battery. According to 6 C.J.S. Assault and Battery s 70, relied on in a number of cases:
It is essential to the offense of battery or assault and battery that there be a touching of the person of the prosecutor, or of something so intimately associated with, or attached to, his person as to be regarded as a part thereof.
This touching, however, need not be in the form of a blow but may consist of any sort of contact; it may include every touching or laying hold, however slight, of another or his clothes in an angry, revengeful, rude, insolent, or hostile manner; or the direct or indirect application of force either by the aggressor himself, or by some substance or agency placed in motion by him. Hence it may consist in the beating, striking, or whipping of a person, striking him with a thrown missile, or pouring or throwing vitriol or other corrosive chemical upon him. It may also take the form of merely pushing or shoving him, or detaining him, or snatching or wrestling something from his possession.
On the other hand, if there is no actual physical touching, then no battery occurs. See Reese v. State, 457 S.W.2d 877 (Tenn. Cr. App. 1970) (firing a bullet into officer's car but missing is not a battery because no physical touching occurs). It seems pretty tough to argue that adding a smelly gas into the area near an officer constitutes actual physical touching. As a result, it shouldn't be criminal battery.
UDPATE: The rule of law has prevailed! The government has dropped the charge. The freedom to pass gas lives on.
Speaking in New York City, former Vice President Al Gore called for civil disobedience and state attorneys general investigations against coal companies.
"If you're a young person looking at the future of this planet and looking at what is being done right now, and not done, I believe we have reached the stage where it is time for civil disobedience to prevent the construction of new coal plants that do not have carbon capture and sequestration," Gore told the Clinton Global Initiative gathering to loud applause.
"I believe for a carbon company to spend money convincing the stock-buying public that the risk from the global climate crisis is not that great represents a form of stock fraud because they are misrepresenting a material fact," he said. "I hope these state attorney generals around the country will take some action on that."
The Obama campaign has sent letters to radio stations in Ohio and Pennsylvania discouraging them from running ads by the National Rifle Association critical of Barack Obama. Ben Smith reports:
"This advertisement knowingly misleads your viewing audience about Senator Obama's position on the Second Amendment," says the letter from Obama general counsel Bob Bauer. "For the sake of both FCC licensing requirements and the public interest, your station should refuse to continue to air this advertisement."
Smith's Politico story also includes the NRA's response to critiques of its ads which, it claims, are only running in Pennsylvania at the moment.
UPDATE: Here is a PDF of the Obama campaign's letter.
This roundup at Instapundit suggests this letter could be part of a broader effort to squelch critical voices.
Law Review Lara on Editing by Student-Run Law Reviews:
A law review editor writes:
I am curious to know your thoughts on the amount of editing you think a law review should do because my primary concern when editing is infringing on the author's style (as noted in the comments to your post). My general approach is to always strive for clarity then brevity when editing, but in cutting needless words, I always worry that I am somehow infringing on style. I could say a lot about this topic, but I'm sure you are familiar with these general concerns.
This is a topic near and dear to Law Review Lara's heart, because many of Lara's closest friends write law review articles. Those friends love to hear valuable editing suggestions — even when the suggestions are in the form of implemented edits that the author can undo or mark "stet" — especially because they recognize that an author may have a hard time seeing flaws in his work.
But the friends don't at all love to hear editors insisting on changes unless the change is genuinely necessary. Those friends think their writing is theirs, and is tied to their identities and reputations much more than to the journal's identity and reputation. Moreover, many of the friends have been professional writers for many years, and fancy themselves to be better than law students as final arbiters, though they are happy to hear the law students' advice.
Of course, the friends would also prefer that even the nonobligatory suggestions be mostly good ones, so they won't have to spend too much time going through and rejecting the unhelpful ones. Still, they recognize that editors and authors often have different approaches and that authors will inevitably have to spend some time rejecting suggestions they dislike in order to get the benefit of the suggestions they like.
So what should law review editors do, both to maximize the quality of the journal and to make both the authors and the editors as satisfied as possible? There's of course no precise answer, but here are a few guidelines:
1. Stress to the authors that all the edits are only suggestions, except for the very few that are required for the sake of accuracy or to comport with universally accepted rules of writing or formatting.
2. If an author rejects a proposed change, and your only reason for insisting on the change is "law review policy" or "law review style" or "consistency among articles" stop insisting. Almost no-one reads law reviews cover to cover (except for symposium issues, and rarely even then). No-one will notice, much less remark on, the fact that some articles in an issue use contractions and others don't, or that some authors split infinitives and others don't. If you're applying a universally accepted rule, then you can indeed politely say to the author that his usage appears wrong according to the proper authorities; but then you're relying on the authorities, not "law review policy."
3. Make as many suggestions as you can that are aimed at making the prose clearer, more precise, shorter, or otherwise more readable. Most authors will appreciate your effort, and will agree to most of your suggestions --- especially if they're good — since they too want their prose to be clearer, more precise, shorter, or otherwise more readable (even if it didn't seem so from reading their article).
4. Try to make your suggestions as good as possible. That's a hard one, I know, but it's of course the most important one — both for the sake of the authors, and for the sake of editors' education. (Law review editing, after all, is supposed to be an educational experience.)
Try to train your staffers and editors in good editing. Give them editing exercises to show them how to edit well. Stress to them the importance of editing for clarity, precision, and conciseness, rather than just for consistency with the technical rules of grammar and spelling. Select people who are good at editing to supervise the process, and tell them to give editors feedback about their editing (especially when the editors who get the feedback are in their 1L/2L year rather than their 2L/3L year).
5. Figure out which of the author's usages are deliberate reflections of the author's style. If the author uses contractions throughout the article, don't just change each one to the spelled-out version, even just as a suggestion. The author obviously likes contractions, and will find all your work in spelling them out to be useless.
Rather, if you genuinely think contractions don't work well for your journal, discuss this up front with the author, before wasting your time and his. If the author insists that he likes contractions, then go through and mark those particular contractions that you think are especially inapt. The author will probably accept most of those suggestions, because they reflect individualized judgment about what works best in each particular context. But if you tried to "correct" all the contractions, the author would probably have rejected all these suggestions, because he'd see that they simply reflected disagreement with his style.
6. Finally, never make unmarked changes, not even a comma or a font change. Many authors rightly demand that every letter and symbol in their article be something they personally wrote or personally approved, having been told that someone else inserted it. You can mark these edits on paper, or using a word processor Track Changes feature, or even by using a word processor Compare Documents feature, if the document comparison tool does a good enough job of noting precisely where the changes are. But mark them, or you could have one angry author on your hands.
Lara is sure there's more that can be said, and perhaps she will say more in future posts. But for now, she hopes that this offers a helpful guideline.
U.S. Casualties in Iraq:
Most people realize that U.S. casualties in Iraq have dropped in the past year. This chart shows how far, showing a drop from about 70 or 80 deaths a month to about 20 deaths a month. If you take out non-hostile/non-combat deaths, current casualties are in the range of 10-15 deaths per month.
Obviously, attitudes will vary about the significance of these figures. But I think the numbers were worth flagging either way.
With Congress preoccupied with the massive, $700 billion bailout plan for the financial industry, General Motors, Ford, and Chrysler have finally secured Part One of their own federal rescue plan. A bill set to be passed by Congress and signed by President Bush as early as this weekend—separate from the controversial Wall Street bailout plan—includes $25 billion in loans for the beleaguered Detroit automakers and several of their suppliers. "It seemed like a lot when we first started pushing this," says Democratic Sen. Debbie Stabenow of Michigan, one of the bill's sponsors. "Suddenly, it seems so small...."
It might seem like a stealth rescue, but the plan has been in the works for at least 18 months. Approval for the loans was first included in last year's Energy Independence Act. Earlier this year, the automakers sought a first installment of loans totaling about $6 billion. But the nationwide credit crunch severely crimped their ability to borrow, and besides, next to bailouts like $200 billion for Fannie Mae and Freddie Mac, a mere $6 billion started to seem unduly modest. So Detroit raised the ante to $25 billion, the most allowed under current law.
Notice that the auto makers decided to up the ante from $6 billion to $25 billion in part because the Fannie/Freddie bailout made the former amount seem "unduly modest" by comparison. Similarly, Michigan's Senator Stabenow notes that the auto bailout "suddenly . . . seems so small" next to the Bush Administration's gargantuan bank bailout proposal. This illustrates two facets of the slippery slope problem I mentioned in my earlier post: First, the enactment (or even possible enactment) of one big bailout would lead other industries to step up their efforts to lobby for their own handouts. Second, the Bush proposal creates an "attitude-altering" slippery slope under which bailouts (especially those that are smaller in magnitude than the administration plan) come to seem "normal" to public opinion and are therefore less likely to encounter strong resistance.
Finally, it's worth emphasizing that, as the above-linked article points out, the current auto industry bailout is much larger and has fewer strings attached than the federal government's notorious 1980 bailout of Chrysler. At the time, the Chrysler bailout was highly controversial and took months of debate in Congress before passing. Today's much bigger auto industry bailout has drawn far less opposition - in part because we have slid so far down the slippery slope since them. Even worse, the current bailout is just the beginning for the Big Three. Next year, the article says, "[t]he automakers plan to ask the government for another $25 billion in loans . . . It's just spare change, after all." Compared to the proposed bank bailout, of course, it really is "just spare change." That's precisely the problem.
If we want to get out of this hole, a good first step is to stop digging. Sadly, the Bush administration and many in Congress want to do the exact opposite.
I don't usually read the letters in the Washington Post, but this one today cracked me up:
While witnessing, but not participating in, the home real estate frenzy in 2005 and 2006, I kept asking: Who is the idiot buying up all these mortgages issued on inflated home prices to all these people who have neither the capacity nor the intention to repay the loans?