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Saturday, October 18, 2008

Under-the-Pillow Alarm Clock:

Can any of you recommend an under-the-pillow alarm clock, for when I need to wake up early, but don't want to wake my wife?

I've seen various options online, but I don't know whether their bulk or their normal noise interferes with sleep (before the alarm is supposed to interfere with sleep, of course). Thanks!

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Whale Endangered, Palin Pouts:

The NYT reports that Cook Inlet Beluga Whales were listed as "endangered" under the Endangered Species Act yesterday.

The relatively small, whitish whales, sometimes visible from downtown Anchorage, declined by almost 50 percent in the late 1990s, and federal scientists say they have not rebounded despite a series of protections, including a halt to subsistence hunting by Alaska Natives. About 375 whales have been counted in Cook Inlet each of the last two years, according to scientists with the National Marine Fisheries Service.

This listing is likely to get some attention because, as the NYT notes, it was opposed by Alaska Governor Sarah Palin.

As with the polar bear, Ms. Palin’s administration opposed the beluga listing in part because of its potential to restrict coastal and offshore oil and gas development. The beluga listing could also affect other projects, including the expansion of the Port of Anchorage and a proposed bridge over Knik Arm that would connect Anchorage to the Matanuska-Susitna Valley and Ms. Palin’s hometown, Wasilla.

“I am especially concerned,” the governor said in a written statement in August 2007, when her administration submitted documents to fight the listing, “that an unnecessary federal listing and designation of critical habitat would do serious long-term damage to the vibrant economy of the Cook Inlet area.”

On Friday, Ms. Palin said the state had had “serious concerns about the low population of belugas in Cook Inlet for many years,” but she called the listing “premature.” Her administration challenged the federal government’s data, as it did with the polar bear decision.

The official NOAA Fisheries announcement of the listing is here.

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Republicans Commit Registration Fraud Too:

The LA Times reports on a GOP contractor with "a trail of fraud complaints" in California.

he 70,000 voters YPM has registered for the Republican Party this year will help combat the public perception that it is struggling amid Democratic gains nationally, give a boost to fundraising efforts and bolster member support for party leaders, political strategists from both parties say.

Those who were formerly Democrats may stop receiving phone calls and literature from that party, perhaps affecting its get-out-the-vote efforts. They also will be given only a Republican ballot in the next primary election if they do not switch their registration back before then.

Some also report having their registration status changed to absentee without their permission; if they show up at the polls without a ballot they may be unable to vote.

The Times randomly interviewed 46 of the hundreds of voters whose election records show they were recently re-registered as Republicans by YPM, and 37 of them -- more than 80% -- said that they were misled into making the change or that it was done without their knowledge.

While the lead focuses on the allegations that some people were duped into changing their party affiliation, the allegation that YPM duped people into registering for absentee ballots is far more worrisome. Such actions create a real risk that eligible voters could be disenfranchised, while also increasing the risk of actual vote fraud, because absentee vote fraud is much easier to pull off than in-person vote fraud.

Related Posts (on one page):

  1. Voter Registration Fraud Arrest:
  2. Republicans Commit Registration Fraud Too:
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Recusal Row in Ohio Republican Party v. Brunner:

In Ohio Republican Party v. Brunner, Judge Boyce Martin took aim at Judge Alice Batchelder for failing to recuse herself from the case.

What I find troubling is the fact that Judge Batchelder did not recuse herself from voting for rehearing this case en banc, while her husband stands for reelection this year as a state representative in Ohio, whose election will no doubt be substantially altered by the way the en banc majority ultimately decides this case. At stake here is the public’s confidence not only in the outcome of its elections, but also in the impartiality of its judges who must, from time to time, review the procedures which govern those elections.
Judge Martin cited 28 U.S.C. § 455, which requires recusal when a judge's "impartiality might reasonably be questioned," and further requires recusal where the judge's spouse has "an interest that could be substantially affected by the outcome of the proceeding." Further, Rule 2.11 of the ABA Model Code of Judicial Conduct calls for recusal where a judge's spouse "has more than a de minimis interest that could be substantially affected by the proceeding."

After the initial opinion was issued, judge Batchelder wrote a concurring opinion defending her decision not to recuse.

I write separately because Judge Martin scolds me for failing to act on my own initiative to recuse myself from the vote on whether to rehear this case en banc. His accusation cannot be taken seriously, and I cannot now — as I could not when the question first came before us — justify recusing myself. . . .

Bill Batchelder . . . is not a named party to this lawsuit, and is one of literally hundreds of candidates on the November ballot in Ohio. Unless Judge Martin is claiming that only Republican candidates will benefit from preventing vote fraud, Bill Batchelder’s candidacy is no more affected by this litigation than is the candidacy of every other individual on that ballot. But this case is not about candidates. It is about voters. It is about the right of every single legally registered voter in the state of Ohio — regardless of party affiliation — to cast his or her vote, and the corresponding right of each of those legally registered voters to be protected from having that vote diluted by illegally or fraudulently cast votes. The only thing at issue here is the ability of local elections officials to obtain the necessary information to ensure legal voting and to prevent illegal and fraudulent voting. . . .

In short, there is no basis for any claim that enforcement of the voter-registration laws affects my husband differently from any other candidates because he is a Republican, or that discovery of voter fraud is more beneficial to Republicans than to others. If, as Judge Martin suggests, my husband (and his party) stand to benefit from the outcome of this decision — that is, if my husband’s chances of winning election are improved by assuring a fair election — then my husband stands to benefit in the same way as every other Ohio voter, each of whom is entitled to participate in a fair election. None of this provides any basis upon which I could recuse.

Particularly because no party in the case sought Judge Batchelder's recusal -- and, as she notes in her opinion, no member of the court suggested her recusal before issuance of the public opinion -- Judge Martin's opinion looks like petty payback for Judge Batchelder's report as acting chief judge finding merit in misconduct complaints against Judge Martin for mishandling two high-profile cases when he was Chief Judge of the Circuit. Bill Batchleder's occupation is hardly a secret, and if the Ohio Secretary of State did not think his pending election contest as a GOP candidate justified recusal, I do not see why this should have been an issue. There is no reason for one judge to impugn the integrity of another for failing to recuse when no recusal motion was filed. If Judge Martin was really so concerned about the appearance of a conflict caused by Judge Batchelder's failure to recuse, he should have raised this matter privately before impugning one of his colleagues in public. Making public accusations of this sort may have precedent on the Sixth Circuit, as Martin notes in his opinion, but that hardly justifies his dissent (and it is regrettable that three other judges, Daughtrey, Cole, and Clay, joined the opinion).

Had a recusal motion been filed, however, I think the issue is much closer than Judge Batchelder suggests. While she is certainly correct that all voters have an interest in the fair and impartial administration of the election, it is also true that the Ohio GOP believed it could obtain partisan advantage from its lawsuit. Forcing the Secretary of State to provide mismatch information to county election boards would have made it easier for the Ohio GOP to challenge potentially ineligible voters, and the Ohio GOP clearly believed that this would inure to their net benefit this November, when Bill Batchelder is standing for re-election. Thus, I think one could reasonably argue that Bill Batchelder had "an interest that could be substantially affected by the outcome of the proceeding" that could have justified Judge Batchelder's recusal.

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Fake Votes in New Mexico Primary?

Jim Geraghty offers an interesting report that, if verified, could be quite significant:

Today, news out of New Mexico, the state GOP looked at information for 92 newly-registered voters in one district, and found 28 had "missing or inaccurate Social Security numbers or birth dates. In some cases, more than one voter was registered using the same Social Security number. In others, people who the Republicans said had no Social Security number on public record were registered." All of these are of individuals who have already cast ballots in the June New Mexico state legislative Democratic primary.

The key element of the story, if confirmed, is that these individuals actually voted, so that this would not be a case of simple registration fraud, but actual vote fraud. Another possibility is that the individuals in question were all eligible voters who simply submitted sloppy or inaccurate registration forms. We'll have to see. The Santa Fe New Mexican has more here.

UPDATE: According to ACORN, local election officials have confirmed that at least some of the 28 voters identified by the New Mexico GOP are actual eligible voters. Details here and here.

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Joe and Barack's Tax Problems.

I was stunned to see some document showing Joe the Plumbers' tax problems on my 10pm (CT)newscast on the local NBC affiliate in Chicago on Thursday night. They have very little time for any national news and they actually spent time on Joe the Plumbers' tax problems. Amazing!

But when an actual candidate — Barack Obama — released his tax returns, which on their face seemed to show an ethics violation of Illinois law, the press couldn't care less.

Just to remind you, Illinois prohibits state legislators from taking speaking fees, and Barack reported "speaking fees.":

Apparently, as an Illinois state legislator through 2004, Barack was prohibited from taking honoraria for speaking under the Illinois Governmental Ethics Act.

But what about Barack Obama’s 2000 and 2002 tax returns?

2000: On his 2000 Schedule C-EZ, Barack reported that he received $16,500 as a “Foundation director/Educational speaker.”

2001: On his 2001 Schedule C-EZ, Barack reported $98,158 from a Chicago law firm, Miner, Barnhill, for “Legal services/attorney” (and nothing for speaking).

2002: On his 2002 Schedule C, Barack reported $34,491 for “LEGAL SERVCES / SPEAKING FEES.”

These “speaking fees” are in addition to the amounts that Barack was paid as an employee, a lecturer at the University of Chicago, reported on the first page of his 1040s.

The Illinois Governmental Ethics Act (apparently last changed in 1995) provides:

(5 ILCS 420/2-110)

Sec. 2-110. Honoraria.

(a) No member of the General Assembly shall accept any honorarium.

(b) As used in this Section:

"Honorarium" means a payment of money to a member of the General Assembly for an appearance or speech . . . .

I really don't blame Obama for not addressing this; he released his tax returns after all. The problem is the press, which seems to be having more trouble than usual doing its job this season.

As I've said before, the best solution to the problem is integrating the newsrooms politically.

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Friday, October 17, 2008

Henry Manne on the Coming Dark Age For Freedom:

I had thought David would post this, but I don't think he did. Henry Manne isn't too optimistic about the prospects for liberty in the U.S.:

The political direction of the country is now determined for a long time to come, and it is inevitably leftward. Politicians would never resist a popular but massive demand for more government regulation (even the few with enough brainpower to recognize what is going on). The business community has never been a strong supporter of free market capitalism, and it certainly cannot be counted on to change its stance this time around. The media, the various leftist trend-setting elites and university faculties have been waiting a long time for an opportunity just like this, and we can be sure that they won't squander it. The shrillness of their attacks on free markets will reach new heights of righteous indignation and assumed moral and intellectual superiority.

No policy issue based on private property, low taxes, small government or free trade will escape the charge that any unregulated free market will lead to disastrous excesses just as happened with the great financial crisis of 2008. This will be true for such soon to be rebuffed ideas as tuition vouchers for private schools, private health care, lower estate taxes, deregulation in its many forms, reduced use of eminent domain, tort liability restraint and free trade.

We can anticipate a new reign of mercantilism, as the protectionists among us wield this strong new weapon against globalization and open markets. And all of this is true in large degree regardless of who wins the forthcoming election.

He's more optimistic about the long-run as the remnant in the modern age is stronger than the last go-around:

Still, there is a glimmer of hope left to those who detest this seemingly inexorable slide into socialism or its first cousin, the super-regulatory state. That glimmer comes from the ghosts of Adam Smith, Milton Friedman and Friedrich Hayek, who still haunt the halls of the left. And in spite of all the claims made that this debacle marks the demise of free market philosophy, it won't go away so easily.

This time around, unlike during the New Deal, there is a substantial intellectual establishment to ride herd on leftist proclivities. There are numerous free market blog sites, which, for instance, can be properly credited with forcing modification of the recent short-sale ban. There are countless free market think tanks in Washington and all around the country exerting considerable influence on government policies. Libertarians are a small but growing political factor, and there are even a few university economics departments and law schools where sanity prevails or is at least occasionally evident.

Like it or not, these few intellectual bastions of freedom philosophy will be about the only thing that keeps these ideals alive in the coming years. But we should never underestimate the power of good ideas. Like the bad ones we are about to witness in large numbers, they may just have to bide their time until a new crisis causes the fickle and uninformed public to demand a new direction.

If these ideas are maintained in the inventory of ultimate possibilities, then there is always the chance of their public rediscovery and rebirth. It has happened with liberty before. And one thing is absolutely certain: Sooner or later the new era will end in another crisis. Perhaps then the defenders of freedom will be able to claim the moral high ground.

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What Would Milton Friedman Say?

Peter Robinson posts a little to and fro that he and I had about the housing market bubble inspired by Peter's piece on today's Forbes.com.

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Time to Dust Off the Old Button:
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Thoughts on Brunner v. Ohio Republican Party:

I have a few initial thoughts about Brunner v. Ohio Republican Party and the Supreme Court's order granting the Ohio Secretary of State's request for a stay and vacating the TRO that would have required her to provide information about mismatches between voter registration data and the Ohio BMV database to county election boards. As Rick Hasen notes here, this means that the Ohio Republican Party will not be able to obtain mismatch data that it could use to challenge voters and absentee ballots.

First, I think the Supreme Court is correct that, under Gonzaga University v. Doe and Alexander v. Sandoval that it is doubtful whether there is a private cause of action to enforce Section 303 of the Help America Vote Act in federal district court. There are also reasons for federal courts to be particularly reluctant to enforce such actions on the virtual eve of an election. Yet on the U.S. Court of Appeals for the Sixth Circuit, it was largely the more liberal judges who argued that there was no private cause of action (save for Judge Gilman, a Clinton appointee, who joined the ten-judge majority).

While I am skeptical that a cause of action existed, I believe that the majority had the better of the argument on the merits, particularly given the highly deferential standard of review. In short, I believe it is difficult to argue that the district court abused its discretion in ordering the Secretary of State to implement the office's prior approach mismatches between the BMV and voter registration data. Further, I find the laches argument against the Ohio GOP somewhat strained because it is unclear on the record when Ohio Secretary of State Jennifer Brunner changed the manner in which her office handled data mismatches, so it is unclear when the Ohio GOP was on notice and should have been expected to file suit. [NOTE: It appears the change was made by Brunner's predecessor. If so, this would strengthen the laches argument considerably, particularly if it could be shown the Ohio GOP was on notice of the change.] Still, if there is no private cause of action, there is no basis for a federal court to address the case.

Another interesting aspect of the ruling is the spat between Judges Martin and Batchelder over whether the latter should have recused herself from the case. I will address this in a follow-up post.

UPDATE: Bill Dyer offers his thoughts:

(1) Today's ruling turned on important but esoteric legal principles that don't have much to do with voting rights in general or the situation on the ground in Ohio in particular, and it ought not be interpreted as the Supreme Court either rejecting or accepting the proposition that there's wide-spread and systematic voting fraud being undertaken there or anywhere else. (2) It does, however, emphasize that the Supreme Court thinks this is an important topic. And most importantly, (3) Congress desperately needs to further reform the voter fraud and voter registration laws to specify who may sue under them, when, how, and for what relief.Rick Hasen rounds up more news and reactions here.

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$10,000 Scholarship for College (or Grad School) Student Bloggers:

From CollegeScholarships.org:

We're giving away $10,000 this year to a college student who blogs. The Blogging Scholarship is awarded annually.

Scholarship Requirements:

* Your blog must contain unique and interesting information about you and/or things you are passionate about. No spam bloggers please!!!
* U.S. citizen or permanent resident;
* Currently attending full-time in post-secondary education in the United States; and
* If you win, you must be willing to allow us to list your name and blog on this page. We want to be able to say we knew you before you became a well educated, rich, and famous blogging legend....

Submission Deadline: October 30th, 2008....

The submission form, and more details, are at the site.

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Bush v. Gore and Brunner v. Ohio Republican Party: In the thread on the Supreme Court's brief per curiam reversal in Brunner v. Ohio Republican Party, commenter Jacob Berlove comments:
I'm quite surprised. I understand that recent case law seems to weigh against these kind of suits, but I thought that the per curiam opinion in Bush V. Gore stood for the propostition that the usual rules about applying case law can be reversed if necessary in cases like these. . . . I guess the difference here is that the stay issued is so unlikely to affect the outcome of this action that Justice Kennedy (I single him out because he is the only remaining justice from the Bush court that signed onto the per curiam and not the concurrence) et al determined it wasn't worth applying the law specially in this case.
  I strongly disagree. The reason the Supreme Court intervened in Bush v. Gore was because the Florida state courts were trying to interfere with the election. In particular, the Florida Supreme Court was trying to run the recount: It came up with its own procedures and imposed them on the state executive branch. The Supreme Court intervened to stop the Florida court's shenanigans. (To be clear, I think the Supreme Court did so improperly, and in doing so it engaged in shenanigans of its own. But that's what the Court was trying to do.)

  That role is consistent with the Supreme Court's reversal of the Sixth Circuit today. The district court's order was a lot like the Florida Supreme Court's order on the road to Bush v. Gore: It essentially took over the state executive branch and ordered the election to proceed as the judge insisted. The Supreme Court's reversal is consistent with Bush v. Gore in the sense that it stops courts from interfering in the election. When elections are close, or a winner must be named in a recount, courts should stay out and let the state election boards function without judicial inteference. Of course, there was a lot more going on in both cases, but I do see a consistency between what the Court did in Bush v. Gore and what the Court did today.
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A pre-mortem for gay marriage in California:

Ann Rostow, one of the most gifted writers and trenchant analysts of gay politics anywhere, offers some thoughts on what now appears to be the losing campaign to save gay marriage in California:

Winning the Prop 8 fight will now take a last minute turnaround, and our message in the next two weeks cannot be a tame appeal to “fairness” or even an attack on the “lies” of the other campaign. But I have the rising fear that it may be too late to reverse direction, absent a sudden burst of opposition by the governor and the state’s top leaders.

Throughout this campaign, we have once again hid the face of same-sex couples and given a free pass to those in the middle of the electorate who are uncomfortable with gay relationships. Instead of challenging that atavistic premise, we have nodded our collective heads and said something on the order of “Hey, we understand that gay couples make you a little queasy, but for God’s sake don’t write us out of the constitution.”

You know what that message actually means? It means that it’s just fine to feel queasy. It implies that we ourselves feel queasy in a way. We can see your point! It’s a losing strategy and it has lost us every same-sex marriage election, save one (Arizona 2004) that we’ve ever fought.

I read that when newsman Rex Wockner challenged this approach, our campaign leaders told him that the ads weren’t directed at our community, they were directed at the swing voters. Focus groups showed that these fence sitters were indeed swayed by the namby pampy style.

Well, of course we want to direct our message to the middle. But you know what? There’s another way to sway those voters. There’s a positive message to be sent about what kind of state you want to live in, what kind of person you want to be, and what kind of assumptions you’re bringing to the ballot box. . . . Who are you, swing voter? Look in the mirror and make a decision. And while you’re at it, take a look at a few gay couples who have not brought civilization to its knees by getting married. Look at their kids, their lives, their happiness, their futures. Were these messages ever tested in the focus groups? How many approaches were considered before we fell back on the tried and failed defensive political postures of the past?

A positive message would have pre-empted attack ads. Instead we fell into their traps, forcing ourselves to insist that California can become a marriage equality state without a corresponding commitment to equal rights throughout its institutions. No, gay marriage won’t be taught in schools if Prop 8 fails. But neither will the idea that gay marriage is wrong. We can’t tell the voters that they can vote against Prop 8 on one hand, and preserve a homophobic public policy on the other. They can’t, and they know it and we should have asked, not just for the status quo of the last five months, but for a future of respect. We could have described that future in an attractive way and I think we’d be in better shape today if we had.

Andrew Sullivan expresses similar doubts about the campaign to defeat Prop 8 here.

Trying to win "gay marriage" through a campaign that never mentions "gays" and hardly ever mentions "marriage" does seem counter-intuitive. I doubt voters can be bamboozled into thinking that a consequence of a "no" vote on Prop 8 is anything other than the (probably) permanent establishment of gay marriage and an implicit public declaration that homosexuality is unobjectionable. A vote against Prop 8 is a vote for gay marriage; a vote for Prop 8 is a vote against gay marriage. For most voters, pro and con, I doubt it's any more complicated than that.

What's interesting to me is that both sides have avoided the merits of allowing gay couples to marry. Gay-marriage supporters have done so, with focus-group tested messages in hand, because they suspect a large group of people even in a progressive state are still deeply uncomfortable with homosexuality and certainly don't like gay marriage. Gay-marriage opponents have done so, I presume, because they know that Americans don't like to be seen as discriminating or opposing civil rights. So they paint gay marriage, instead, as itself a threat to the rights of religious people and parents. The theory seems to be that the side that's most seen as defending rights is the side that wins.

I doubt that any months-long campaign of television ads, no matter their content, could really change the basic impulses most people have on this issue. Those impulses, whether they lead you to support or oppose gay marriage, are developed over a lifetime of experience. Very few people come to this issue without some fairly strongly held views. Such views are hard to dislodge.

Still, there's something to Rostow's hope that one day gay-marriage supporters might actually argue that gay marriage is a good thing. If we're going to lose these ballot fights anyway, why not fight the good fight rather than the agnostic one?

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The National Education Association's Right To Discriminate in Choice of Exhibitors at Its Convention:

As I mentioned below, the National Education Association -- basically an advocacy group and a labor union -- refused to lease Parents and Friends of Ex-Gays (PFOX) exhibit space at its 2002 convention, because the NEA disapproved of PFOX's position that gays and lesbians can and ought to "make the choice to leave homosexuality." PFOX then sued, claiming that this constituted sexual orientation discrimination in a place of public accommodation, in violation of D.C. human rights law.

I argued below that the D.C. Office of Human Rights' reason for rejecting PFOX's claim -- that ex-gays aren't protected from sexual orientation discrimination by D.C. law -- was mistaken. But the NEA should still be entitled to act as it did, because of its Free Speech Clause rights.

The NEA excluded PFOX from a speech product that the NEA put together (the exhibitors at its conference), because it disapproved of PFOX's message. As Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston recognized, organizations that create such speech products have a constitutional right to control what speech they include and what they exclude. And that's true even if the speech product doesn't have a terribly coherent message. In Hurley, the Court protected the rights of the organizers of a St. Patrick's Day parade, though the parade consisted of a bunch of marching groups, floats, and banners, and the organizers had only very rarely excluded participants as unsuitable:

Rather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent's expression in the Council's eyes comports with what merits celebration on that day. Even if this view gives the Council credit for a more considered judgment than it actively made, the Council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another. The message it disfavored is not difficult to identify. Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics. The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control.

When an advocacy group such as the NEA puts together an exhibition -- even by soliciting people to participate, and to pay money for the privilege -- it is implicitly conveying the message that the exhibitions convey messages that are of value to the group's members, and that are broadly at least potentially sound (morally or politically). If the messages were primarily commercial advertising, especially of products that aren't themselves fully protected speech, the Hurley rule would not apply. But when someone is putting on an exhibition, whether of art or of education and advocacy, they have a First Amendment right to decide which speech to include and which to exclude.

Note that the NEA's being a specially federally chartered corporation doesn't strip it of this First Amendment right, just as the Boy Scouts' being a specially federally chartered corporation doesn't strip it of its First Amendment rights. Perhaps if the NEA got a subsidy from D.C., and D.C. could condition the subsidy on a decision not to discriminate in its events against certain classes of speakers (though that itself is not entirely clear). But D.C.'s antidiscrimination law isn't triggered by receipt of subsidies.

Finally, note that it's not clear whether D.C.'s public accommodation law should even be interpreted as applying to conference exhibitor choices, or for that matter to discrimination based on an exhibitor's sexual-orientation-related speech as opposed to the exhibitor's own sexual orientation. But even if it is interpreted this broadly (much like Massachusetts courts interpreted Massachusetts law this broadly in Hurley), the Free Speech Clause would protect the NEA's right to choose which speakers to allow into the exhibitions at its conferences.

Related Posts (on one page):

  1. The National Education Association's Right To Discriminate in Choice of Exhibitors at Its Convention:
  2. Is Discrimination Against Ex-Gays Sexual Orientation Discrimination Under D.C. Law?
41 Comments

Is Discrimination Against Ex-Gays Sexual Orientation Discrimination Under D.C. Law?

The National Education Association — basically an advocacy group and a labor union — refused to lease Parents and Friends of Ex-Gays (PFOX) exhibit space at its 2002 convention, because the NEA disapproved of PFOX's position that gays and lesbians can and ought to "make the choice to leave homosexuality." PFOX then sued, claiming that this constituted sexual orientation discrimination in a place of public accommodation, in violation of D.C. human rights law.

The D.C. Office of Human Rights rejected this claim, in Parents and Friends of Ex-Gays, Inc. v. National Education Association, among other things concluding that discrimination against "ex-gay[s]" doesn't qualify as prohibited sexual orientation discrimination:

Title VII and the United States Constitution define the characteristics of the categories that are protected from discrimination as immutable characteristics, i.e. those characteristics that are not subject to change as race, national origin, and gender. Therefore, the OHR's determination that Complainant, as an Ex-Gay, is not a member of a protected category is supported by Complainant's own definition of itself as "a man or woman who has left homosexuality and is now a heterosexual by preference or practice." Complainant's definition of an Ex-Gay clearly does not assume an immutable characteristic since an Ex-Gay is someone who was once a homosexual, but has reverted to a heterosexual. Immutable characteristics are those characteristics that a person is born with and/or has no control over and, therefore, the law prohibits discrimination based on those characteristics. Ex-Gays, as defined by Complainant, appear to have control over their sexual orientation and, therefore, the OHR correctly determined that they do not belong to a protected category.

This reasoning, of course, isn't limited to the unusual situation of discrimination against an advocacy group because of the group of people whom it represents, or because of the position that it espouses. It also applies to discrimination against particular individuals because they describe themselves as ex-gay. And the reasoning strikes me as clearly wrong.

First, the D.C. Human Rights Act bans discrimination not only based on immutable characteristics, but also based on always or sometimes mutable ones — "religion, ..., marital status, personal appearance, ... familial status, family responsibilities, ... matriculation, political affiliation, source of income, or place of residence or business." Antidiscrimination law aims to ban discrimination not just based on characteristics that people can't change, but also (among other things) on characteristics that the law judges they shouldn't have to change (religion being the most common example). So there's no reason to assume that "sexual orientation" discrimination is banned only to the extent that sexual orientation is immutable.

Moreover, sexual orientation is defined as "male or female homosexuality, heterosexuality and bisexuality, by preference or practice" (emphasis added). And this is quite consistent with how the term is casually used. Say, for instance, that an employer fires an employee because the employee is a bisexual woman who has shifted from engaging in heterosexual relationships into engaging in lesbian relationships. The employer might even be sincere in limiting its basis of discrimination this way; say the employer reasons, "if a woman has been lesbian all her life, I won't fault her for her acting on that — but if a woman can be with a man but chooses to be with a woman, that's a chosen sin, and I don't want anything to do with her."

Of course that's sexual orientation discrimination, even though it's discrimination based on a matter — sexual "practice" — that is both "mutable" in theory (anyone can avoid any sexual "practice," setting aside cases of rape, by just not engaging it, even to the point of entirely abstaining of sex) and in practice (this woman did change her practice, and might well be able to live a fulfilling life while entirely abstaining from lesbian sex).

We don't even have to decide whether the woman was genuinely bisexual, or was once straight and has changed her orientation to lesbianism. I know there's controversy about whether that's possible, but I suspect that it's virtually impossible to resolve whether it's possible, and in any case the law doesn't require that the controversy be resolved.

All that's important is that the employer discriminated based on a combination of "sexual ... preference" (bisexuality) and "sexual ... practice" (lesbianism). Someone with a different preference/practice mix (e.g., bisexual preference and heterosexual practice, or by hypothesis lesbian preference and lesbian practice) wouldn't have been fired, but someone with this preference/practice mix was.

The same is true for bisexuals-by-orientation whose practices were once homosexual, but whose practices are now heterosexual — or for homosexuals-by-orientation who say they've managed to change their practices to heterosexual. It doesn't matter whether they believe they've changed, or conclude that if they are now happy with their heterosexual practices, they must have really been bisexual by orientation all along (maybe even if they've deluded themselves into thinking that they were originally entirely homosexual). What matters is that treating ex-gays worse than straights-all-along is sexual orientation discrimination.

As I'll explain in the next post, the NEA should still be entitled to refuse to lease space to PFOX — but because of the NEA's Free Speech Clause rights, and not based on the Office of Human Rights' reasoning. And the basis makes a difference, because the Office of Human Rights' reasoning applies even to the typical discrimination case, where the employer's Free Speech Clause rights wouldn't be involved.

Related Posts (on one page):

  1. The National Education Association's Right To Discriminate in Choice of Exhibitors at Its Convention:
  2. Is Discrimination Against Ex-Gays Sexual Orientation Discrimination Under D.C. Law?
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Moral Hazard on your AM Dial:

I happened yesterday to have a long drive up the East Coast, during which I spent a fair bit of time listening to AM radio -- mostly sports talk, some of the news or other talk stations. It's an interesting take on things, the AM radio take. In about an hour and half of the Mike Francesa show on WFAN, the leading sports talk station in and around NYC, (during which, incidentally, I heard a wonderful half-hour Francesa monologue on the recent death of former Yankee Tom Tresh - anyone (like me) who grew up in the 50s and 60s in NYC and cared about baseball (and who didn't care about baseball in NYC in the 50s and 60s?) will surely have lots of memories of Tom Tresh) -- I must have heard advertisements for four or five different debt consolidation companies, all promising me that they could consolidate all of my credit card debt into a single payment, and that I would be able to make some of the debt disappear entirely. I suspect that boom days are ahead for these companies, and they're madly rushing to fill the anticipated demand. Sounds like a damned good deal! I'd love to pay 50 or 60 cents on the dollar on my credit card bill -- who wouldn't?

It's a strange business, debt consolidation. I happen to know a fair bit about it - not, thankfully, because I've had problems with credit card debt in the past, but because when I was practicing law 20 years or so ago, one of my biggest clients was one of the US's largest debt collection firms. The basic idea is pretty straightforward: if your bank or credit card company, to whom you owe $10K or $15K or whatever, believes that you are under water and unable to pay it all off, the rational thing for them to do is to sell your debt to a 3d party in exchange for some percentage of face value (and I can tell you that the negotiations over those percentages -- the bank wants them as high as possible, the consolidator as low as possible -- are ferocious).

The problem, of course, is that if consumers know that will happen, ex ante, they will be more profligate in their spending. If they know they'll be able to write off 50% of their credit card debt, all of a sudden the world is a big "EVERYTHING HALF PRICE!!" sale. Everything - that nice flat screen TV, those boots, that iPhone, a new refrigerator, etc. -- is a lot cheaper and more attractive, you don't have to pay my credit card bill in full.

Debt consolidators will only take you as a client if you're really a mess, financially, because their job is to convince the banks that you're never going to pay them back, and that your debts are damn near worthless to the banks. [That's why the debt collection firms aren't really interested in talking to you unless you have, say, $15,000 or $20,000 of debt].

It's just one of the small oddities of our financial system -- a nice little reward you can get for being monumentally imprudent in your spending. It's not, of course, why we're in the mess we're in -- but it's not completely unrelated to it, either.

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Supreme Court Reverses En Banc Sixth Circuit in Voter Verification Case: SCOTUSblog has the scoop. Very interesting, although to my mind not surprising. I plan to blog more on it later, but I wanted just to flag it for now.
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RoboCalls: I received this one from the McCain campaign last night. Ugh, painful to listen to. But hey, on the bright side, at least I didn't have to go to the post office this time.
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Lawsuit Against God Dismissed For Lack of Service of Process:

Former Nebraska state senator Ernie Chambers' lawsuit against the Almighty has been thrown out of court because the defendant couldn't be served papers informing him of Chambers' suit:

You can't sue God if you can't serve the papers on him, a Douglas County District Court judge has ruled in Omaha.

Judge Marlon Polk threw out Nebraska Sen. Ernie Chambers' lawsuit against the Almighty, saying there was no evidence that the defendant had been served. What's more, Polk found "there can never be service effectuated on the named defendant."

Chambers had sued God in September 2007, seeking a permanent injunction to prevent God from committing acts of violence such as earthquakes and tornadoes....

Polk dismissed the lawsuit with prejudice, which means it can't be refiled. But his ruling can be appealed.

Although the case may seem superfluous and even scandalous to others, Chambers has said his point is to focus on the question of whether certain lawsuits should be prohibited.

"Nobody should stand at the courthouse door to predetermine who has access to the courts," he said. "My point is that anyone can sue anyone else, even God."

I'm not entirely convinced that the ruling is correct. After all, if God exists, he must be omnipresent and omnipotent. Therefore, it logically follows that he can be served with court papers anywhere; after all he is present everywhere in the universe at all times. Indeed, service of process is a pointless formality when it comes to God. Since the Lord is omniscient as well as omnipotent, he surely knew about Senator Chambers' lawsuit even before any process servers were sent out. Indeed, he must have foreseen that Chambers would file the suit long before Chambers himself knew that he would do it. As Chambers himself has pointed out, "Since God knows everything, God has notice of this lawsuit."

A better technical legal ground for dismissing lawsuits against God might be lack of redressability, which is a requirement of standing under federal law and (I presume) Nebraska law as well. If the plaintiff's injury can't be redressed by a judicial ruling, he doesn't have standing to file a suit. Since God is omnipotent, the judicial injunction Chambers seeks can't possibly force him to do anything he doesn't want to do anyway. Thus, no redessability and no standing.

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An Amazing Red Sox Comeback:

Over the last few years, we have become used to impressive Red Sox postseason comebacks. But tonight's comeback from 7-0 down in the 7th inning against Tampa Bay was their best single-game comeback yet. Indeed, it was the second-biggest postseason comeback of all time (the Philadelphia Athletics came back from 8-0 down against the Cubs in the 1929 World Series).

Even if the Red Sox end up winning the series, it will not be as incredible a series comeback as their unprecedented overcoming of a 3-0 series deficit in the 2004 ALCS against the hated Yankees. A comeback from 3-1 down is not as impressive as one from 3-0, and the Rays are not the Yankees. But no single game comeback in that series or any other in the last 80 years was as amazing as this one.

Will the Red Sox be able to use their momentum to win two games and the AL pennant in Tampa Bay this weekend? Difficult to say. The two teams are fairly evenly matched right now, and there is a large amount of random chance variation influencing game outcomes in baseball. Much will depend on whether Game 6 starter Josh Beckett has recovered somewhat from the injury that has dogged him the last few weeks. Still, it was an amazing game, and will probably be an exciting weekend!

Related Posts (on one page):

  1. An Amazing Red Sox Comeback:
  2. In Praise of the Rays:
20 Comments

Write First, Research Second?: Over at The Glom, Gordon Smith has a post on how he writes law review articles:
I usually start writing before have done the research. (True confessions.) This is the method Richard Epstein taught me while I was at Chicago. I sketch out my thoughts on a subject, then use the research to refine or develop those thoughts. It sounds terribly inefficient, but it prevents me from being overly influenced by what others have written. Anyway, using this method means that most of my notes are put right into the draft of the paper, which I edit mercilessly as I get closer to publication.
  I do the same thing. I usually come up with an idea and sketch out the introduction of the article, which ends up being a 3-4 page summary of what the article will say. I usually don't do very much specific research into the literature until that sample introduction is done. Then, once the intro is sketched out, I make sure I know all the literature and know what others have said.

  Assuming no one has written on the topic in a way that either preempts my idea or that dramatically changes what I want to say, I then put the literature away and write the article I wanted to write, usually without any footnotes. When I'm done, I go back and add the footnotes so it looks presentable and that I have cited or discussed the most important literature.

  There are pros and cons to this method, I think. It doesn't work if you don't already know the field pretty well. It also doesn't work if you're responding to a body of scholarship or writing in areas that have been covered to death by a lot of other people. There's also a risk that you'll end up having to give up and throw the intro away if it turns out you're not saying anything new. But I write that way largely for the reason Gordon suggests he does: It seems to me that the best way to make sure you're saying something original is to come up with the basic idea on your own (or as much "on your own" as you can). That's the idea, anyway.

  I'm curious, for other law profs and law prof wannabes -- how do you write your articles? In the same way, or in a very different way?
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Thursday, October 16, 2008

Obama's Real Records on Guns & Sporting Issues in Illinois:

In a recent interview with Field & Stream, Barack Obama stated, "if you talk to sportsmen in my home state of Illinois, they will tell you that I've always been a forceful advocate on behalf of the rights of sportsmen, on behalf of access for sportsmen and hunters. I've been somebody who, well before the recent Supreme Court case, stated my belief that the Second Amendment was an individual right." In a podcast for iVoices.org, I interviewed Richard Pearson, the Executive Director of the Illinois State Rifle Association. Pearson has been lobbying on sporting and right to arms issues at the Illinois legislature since 1989. He has more first-hand knowledge of Obama's record on these issues than anyone except Obama himself. In the 20-minutes podcast interview, Pearson suggests that Obama's claim about his record is extremely inaccurate.

As for Obama's credibility on Second Amendment issues, an article by David Hardy, on the Pajamas Media website, points out that during Obama's tenure on the Board of Directors of the Joyce Foundation, the Foundation spent a great deal of grant money for a long-running effort to prevent the Second Amendment from being recognized as an individual right applicable to Americans who are not in the National Guard.

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Posting McCain Signs in Obama Country: Sunday's Washington Post had a pretty interesting story on a business that posted a pro-McCain/Palin message in a very pro-Obama neighborhood.
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Presidential Race Tightening in Two Tracking Polls.

The two tracking polls that I follow most closely are showing a slight tightening of the Presidential race (though some other equally recent polls are showing a huge lead for Obama).

The Rasmussen Poll of likely voters shows Obama up by 4% (50 to 46%). And the Gallup Poll of likely voters (using their traditional likely voter model) shows Obama up by only 2% (49 to 47%).

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Podcasts on Intellectual Property:

My colleague and leading intellectual property scholar Doug Lichtman has put together I/P Colloquium, a site for distributing podcasts on the subject. The first item is a very interesting conversation with Fred von Lohmann at the Electronic Frontier Foundation, mostly about copyright and technology. Plus, if you're a lawyer, you can get Continuing Legal Education credit in many states just for listening (details are on the site).

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Is the Tomato a Fruit or a Vegetable?

I've yet again run across the claim that it's an error to call a tomato a "vegetable," because it's really a fruit. I'd blogged about this three and a half years ago, but I thought I'd rerun the post to get reader comments (which weren't enabled when I originally posted this).

The tomato, it seems to me, is both a fruit and a vegetable. It is indeed, botanically speaking, a fruit, a term that's technically defined as "The ripened ovary or ovaries of a seed-bearing plant, together with accessory parts, containing the seeds and occurring in a wide variety of forms." But it's also a vegetable, defined as "[t]he edible part of" "[a] plant cultivated for an edible part, such as the root of the beet, the leaf of spinach, or the flower buds of broccoli or cauliflower." These are from the American Heritage Dictionary, not a scientific work, but my sense is that these are indeed the official definitions.

Now naturally in lay English, the matter is different: Apples aren't usually labeled vegetables, and the categories of vegetable and fruit are usually mutually exclusive. But in lay English, the distinction isn't ripened ovary vs. not a ripened ovary, but rather dessert vs. non-dessert, as the Supreme Court astutely captured in an 1893 import duties case:

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

The attempt to class tomatoes as fruit is not unlike a recent attempt to class beans as seeds, of which Mr. Justice Bradley, speaking for this court, said: "We do not see why they should be classified as seeds, any more than walnuts should be so classified. Both are seeds, in the language of botany or natural history, but not in commerce nor in common parlance. On the other hand in speaking generally of provisions, beans may well be included under the term 'vegetables.' As an article of food on our tables, whether baked or boiled, or forming the basis of soup, they are used as a vegetable, as well when ripe as when green. This is the principal use to which they are put. Beyond the common knowledge which we have on this subject, very little evidence is necessary, or can be produced."

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Judges Standing Up to Unfairness: I was very interested in Barack Obama's statement last night about what kind of judge he would appoint to the bench:
If a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want.
  The notion that a court should craft a legal remedy if doing so "stands up" to "unfairness" brings to mind the poll about the proper role of the Supreme Court that I linked to a few weeks ago. Recall that Rasmussen Reports conducted a survey of 1,000 likely voters and asked survey respondents the following question:
Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?
  Recall that the responses revealed a sharp difference between the views of McCain supporters and the views of Obama supporters:
While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.
  On this issue, it looks like the candidate and his supporters are very much on the same page.
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Judges Make the Debate:

Last night, Bob Schieffer asked both candidates whether they would nominate judges who disagreed with their respective views on Roe v. Wade. Here is the transcript:

SCHIEFFER: Senator McCain, you believe Roe v. Wade should be overturned. Senator Obama, you believe it shouldn't.Could either of you ever nominate someone to the Supreme Court who disagrees with you on this issue? Senator McCain?

MCCAIN: I would never and have never in all the years I've been there imposed a litmus test on any nominee to the court. That's not appropriate to do.

SCHIEFFER: But you don't want Roe v. Wade to be overturned?

MCCAIN: I thought it was a bad decision. I think there were a lot of decisions that were bad. I think that decisions should rest in the hands of the states. I'm a federalist. And I believe strongly that we should have nominees to the United States Supreme Court based on their qualifications rather than any litmus test.

Now, let me say that there was a time a few years ago when the United States Senate was about to blow up. Republicans wanted to have just a majority vote to confirm a judge and the Democrats were blocking in an unprecedented fashion. We got together seven Republicans, seven Democrats. You were offered a chance to join. You chose not to because you were afraid of the appointment of, quote, "conservative judges."

I voted for Justice Breyer and Justice Ginsburg. Not because I agreed with their ideology, but because I thought they were qualified and that elections have consequences when presidents are nominated. This is a very important issue we're talking about. Senator Obama voted against Justice Breyer [sic] and Justice Roberts on the grounds that they didn't meet his ideological standards. That's not the way we should judge these nominees. Elections have consequences. They should be judged on their qualifications. And so that's what I will do.

I will find the best people in the world -- in the United States of America who have a history of strict adherence to the Constitution. And not legislating from the bench.

SCHIEFFER: But even if it was someone -- even someone who had a history of being for abortion rights, you would consider them?

MCCAIN: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test.

SCHIEFFER: All right.

OBAMA: Well, I think it's true that we shouldn't apply a strict litmus test and the most important thing in any judge is their capacity to provide fairness and justice to the American people. And it is true that this is going to be, I think, one of the most consequential decisions of the next president. It is very likely that one of us will be making at least one and probably more than one appointments and Roe versus Wade probably hangs in the balance.

Now I would not provide a litmus test. But I am somebody who believes that Roe versus Wade was rightly decided. I think that abortion is a very difficult issue and it is a moral issue and one that I think good people on both sides can disagree on. But what ultimately I believe is that women in consultation with their families, their doctors, their religious advisers, are in the best position to make this decision. And I think that the Constitution has a right to privacy in it that shouldn't be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.

So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through. I'll just give you one quick example. Senator McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination. For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it's taken you too long to bring this lawsuit, even though she didn't know about it until fairly recently. We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts; John McCain opposed it.

I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want.

SCHIEFFER: Time's up.

MCCAIN: Obviously, that law waved the statute of limitations, which you could have gone back 20 or 30 years. It was a trial lawyer's dream.

Related Posts (on one page):

  1. Judges Make the Debate:
  2. The Candidates and the Court:
119 Comments

Ohio SoS Seeks Emergency Stay from Justice Stevens:

From the New York Times report on the Sixth Circuit's 10-6 en banc decision in Republican Party v. Brunner.

The court decision requires Jennifer Brunner, the Ohio secretary of state, to provide the names to local election officials by Friday. Once the local officials have the names, they may require these voters to cast provisional ballots rather than regular ones, and they may ask partisan poll workers to challenge these voters on Election Day. Both possibilities could cause widespread problems when the voters show up at the polls.

Concerns about those problems led the Ohio Attorney General’s Office to file an appeal of the decision to the United States Supreme Court on behalf of Ms. Brunner on Wednesday night.

The state’s appeal went directly to Justice John Paul Stevens because he oversees the Sixth Circuit. It argued that the Republican Party had nearly two years to raise complaints about the process of screening voter registrations and failed to do so. Any changes now to the process would disrupt preparations for the election, it contended.

More on reactions to the ruling from the Columbus Dispatch and Cleveland Plain Dealer.

UPDATE: The Ohio State election law guys are on top of things (as usual) and have posted Brunner's stay application here, and SCOTUSBlog covers the stay application here.

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Scarlet Pumpkins

There will be no trick-or-treating for registered sex offenders in Maryland. The AP reports:

Sex offenders in Maryland have begun receiving paper signs in the mail that read "No candy at this residence," which they must post on their front doors or possibly face a parole violation.

The signs began arriving last week in the mailboxes of the about 1,200 violent and child-sex offenders across Maryland. The signs were accompanied by a letter explaining they must stay at home, turn off outside lights and not answer the door on Halloween.

Maryland is also distributing pamphlets statewide to warn families to stay away from homes with the pumpkin signs.

According to the story, Maryland's law is modeled on similar programs in other states, and the ACLU is challenging Missouri's equivalent law in federal court.

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Wednesday, October 15, 2008

Manipulating College Rankings by Paying Students to Retake Standardized Tests:

Paul Caron of Taxprof blog has an interesting post about Baylor University's sneaky plan to raise its US News ranking by paying admitted students to retake the SAT. The students get $300 just for retaking the text, and $1000 if they beat their previous score by at least 50 points. Caron worries that law schools might imitate Baylor's plan, and try to manipulate their US News rankings by paying admitted students to retake the LSAT. Perhaps even the payments could be on a sliding scale depending on how much the student improved over their previous score.

There is a simple solution to this problem at both the undergrad and law school level: US News and other ranking systems should only take into account scores that were compiled before the the student was offered admission. That way, the danger of manipulation would be eliminated, and universities and students won't squander time and money on test retakes.

There are many problems with the US News rankings that would be difficult to solve. This potential danger is one that can probably be forestalled fairly easily.

In the meantime, I'd like to see if my alma mater, Amherst College, would be willing to pay me to retake the SAT and retroactively improve its US News ranking from when I was a freshman. If they make it worth my while, I'd be happy to do it!

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McCain Blows It:

For whatever it's limited worth, I thought McCain had a few opportunities to do some real damage tonight, and basically blew it. For example, on the Ayers issue, if McCain was going to use it at all, once Obama acknowledged that he and Ayers served on a foundation board together, McCain could have come back with Obama's quote from his debate with Hilary, in which he suggested that Ayers was just some guy who lived in the neighborhood, and only then added that Obama had either his first, or one of his first, fundraising get-togethers in Ayers' home. That would have reinforced McCain's point about the issue being Obama's forthrightness with the American people.

When McCain challenged Obama on whether he has ever gone against the party leadership, he could have followed up by pointing out Obama's 100% liberal voting record in the Senate. (Surprising that the "L" word hasn't come up in this campaign, given that the percentage of American's calling themselves liberals is still rather low.)

When Obama discussed his very limited relationship with ACORN, McCain could have noted that it's been well-documented from ACORN's own contemporaneous web publications that Obama worked closely with ACORN over the years--again, hammering on "forthrightness."

When Obama defended increasing taxes by referring to Warren Buffet, McCain could have pointed out that Buffet's income is almost all from capital gains, and that Buffet started out with inherited wealth. By contrast, many entrepreneurs who work their way up from nothing will face marginal state and federal tax rates of almost 60%. McCain could have then challenged Obama to defend the proposition that someone who works 80 hours a week, creating jobs for the community should "spread the wealth" to that extent--my recollection from polls I've seen is that only a tiny fraction of Americans think taxes should be that high for anyone. I can think of a few more examples, but you get the idea.

On the other hand, I thought McCain was effective when he pointed out that he isn't President Bush, and when he called Obama "Senator Government," even if that was inadvertent. But, in general, McCain just isn't able to rattle off the kind of detailed critique that could throw Obama off his game, while Obama plays an excellent defense.

UPDATE: Jennifer Rubin has a similar, but more detailed, analysis.

FURTHER UPDATE: Here are Obama's exact words about ACORN, from the debate transcript: "The only involvement I've had with ACORN was I represented them alongside the U.S. Justice Department in making Illinois implement a motor voter law that helped people get register (sic) at DMVs." It's all over the blogs, with links to sources, that Obama was a trainer for ACORN. The Obama campaign itself changed its "Fight the Smears" website from stating "Fact: Barack was never an ACORN trainer and never worked for ACORN in any other capacity," to "Fact: ACORN never hired Obama as a trainer, organizer, or any type of employee." That's an implicit acknowledgment that Obama worked for/with, but was never officially "hired" by, ACORN. It was a pretty brazen, and seemingly unnecessary, lie by Obama, but McCain didn't call him on it.

And how about this for the relevance to McCain's campaign: "We are going through a terrible economic crisis that few Americans understand. American will have to trust their leaders when we propose solutions to this crisis. We are still engaged in a 'War on Terror' that necessarily involves secret intelligence work and covert action, and that requires the American people to trust their president. If Barack Obama can't be forthright about [Ayers, ACORN, his position on gun control pre-2008, and so on], how can Americans trust him on the economic crisis and issues of life and death."

Note that I don't think that Obama is necessarily less trustworthy than McCain, and I, in fact, don't trust either of them, or any "political leader." McCain, however, does have the advantage of having a (perhaps undeserved) reputation for straight talk, while Obama has a Clintonian lawyerly way of evading difficult questions, and, for that matter, he also tends to pass the buck to subordinates when people point out that he took some rather non-mainstream positions in his legislative campaigns. If McCain were a more effective campaigner, he could be taking better advantage of this dynamic.

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In Praise of the Rays:

Not to take attention away from pressing matters like the collapse of the world economy and the end of life as we know it here on earth, but . . . even those of you who are, like me, casual Red Sox fans gotta love those Tampa Bay Rays, who may be on the verge of pulling off one of the remarkable worst-to-best turnarounds in sports history. For those of you not following the developments, the story, in brief, is this: Tampa Bay has had the sorriest franchise in baseball for a couple of decades — hardly any fans, an awful stadium, and a terrible team, year after year after year. With a roster of no-names (and a payroll of around $40 million — one of the lowest in Major League Baseball), they started out strong this year, but everyone — and I mean everyone — was just waiting for them to collapse into their usual mediocrity.

But this year, they didn't. They actually won the American League East division race, beating out the big boys from NY and Boston, and then they went on to clobber the White Sox in the division series, earning the right to meet Boston in the AL Championship series. In the first game, things seemed to have caught up with them; they (finally) had that deer-in-the-headlights look, and they were shut out, 2-0, at home. So once again, everyone figured this had to be it for them, the World Champs would mow them down, restore the Old Order, and we'd get back to baseball as usual.

But the Rays won Game 2 in a thriller (12 innings), and then went up to Boston where, in the last two games, they have murdered - humiliated, really - the Red Sox, winning by lopsided scores (9-1 and 13-4) before Boston fans who are getting quieter and quieter with each passing inning.

It's an amazing performance by a bunch of 24 year old kids taking on a very talented veteran team and, so far, kicking their butt. It's pretty hard to root against them. They seem to have come up with a new team-building strategy; in the spring, they announced that they had signed Evan Longoria, their young third baseman who had just a few months of major league experience, to a 6-year, $36 million dollar contract. It seemed insane, at the time -- you're giving $36 million to who??? Evan Longoria - who the hell is he??

But it turns out to have been a sublimely brilliant move. Longoria looks like a superstar in the making -- already, given his performance in the postseason (five home runs in 7 games!), he could probably command more than $6 million on the open market, and it is quite possible that in a couple of years he'll be a $15 million per year (or more) player. But they've locked him in. It was a good deal for Longoria, too -- he's got a whole bunch of money in the bank and lots, lots more coming, guaranteed. So everyone's happy, and the Rays could be a very good ballclub for a very long time.

Related Posts (on one page):

  1. An Amazing Red Sox Comeback:
  2. In Praise of the Rays:
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Court Finding That Mormonism Isn't Protestantism:

In Rownak v. Rownak, 2008 WL 4491823 (Ark. App. Oct. 8), a divorcing couple agreed "that the minor children be raised in the Protestant faith," which apparently meant to them that they weren't supposed to "promot[e] another religious belief system/faith to the minor children unless both parties should consent." The court accepted this agreement, and made it part of its divorce decree.

A couple of years later, the husband started promoting Mormonism to the children. The wife asked the court to find the husband in contempt, which the court did. A week ago, the Arkansas Court of Appeals refused to disturb the contempt finding.

The specific reasoning is clouded by the father's failure to appeal the order; he instead filed a motion for clarification or modification of the order, and appealed the denial of that motion. But my sense is that the heart of the court's reasoning is that if parties made a deal, they can be held to the terms of that deal, even if the deal involves a promise not to speak or not to engage in religious conduct. "[T]he injunction about which appellant complains has for its basis a valid contract between the parties and does not violate appellant's constitutional rights. The circuit court's order merely effectuated the parties' agreement ...." (Note that the contempt citation was for violating the decree, which embodied the parties' agreement; as I read it, the courts didn't find that the religious teaching was against the children's best interests, and thus didn't rest their reasoning on the children's best interests.)

This, it seems to me, raises three separate questions:

(1) Should such contracts not to speak (whether religiously or otherwise) be enforceable in some way, whether by damages or otherwise? The court said yes in Cohen v. Cowles Media (1991), and I think that's right.

(2) Should such contracts be enforceable by court order, via contempt penalties and not just damages awards? I'm inclined to say yes as well.

(3) When should such contracts nonetheless be unenforceable on the grounds that they require courts to make theological decisions, such as whether Mormonism is included within Christianity, whether Jews for Jesus is included within Judaism, whether Reconstructionist Judaism is included within Judaism, or whether Mormonism is included within Protestantism?

I think there are substantial limits on the enforceability of such contracts. The church property cases held that courts generally can't make theological decisions, such as which claimant's views are closer to orthodox (with a small "o") Presbyterianism; and I think the logic extends also to the interpretation of contracts, wills, and trusts that call for such decisions. Nor can courts avoid this constitutional barrier by trying to figure out what the majority of members of a religion thinks (hard to do reliably, plus it assumes the conclusion of who constitutes "members of a religion," and it privileges majority denominations within a religious group over minority denominations). And courts usually can't avoid the constitutional barrier, I think, by asking what the parties intended the term to mean — the best test of a word's intent is usually the word itself, and that is the very thing that calls for theological decisionmaking.

The question then is whether such contracts are categorically unenforceable, or whether there's some exception, for instance when there's seemingly overwhelming agreement about the question. For instance, the official Church of Jesus Christ of Latter-Day Saints site expressly says that "we are not Protestants"; let's say this is largely uncontroversial among those Mormons who have an opinion on the subject. Can the court therefore conclude that it can say Mormonism is "another religious belief" than "the Protestant faith," even though it is forbidden from resolving more controversial questions? Or does the objection of even one person who expresses a different religious view — perhaps a party in this very case — create enough controversy that a secular court should refuse to enforce the parties' agreement?

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More Unintended Consequences of the Bailout:

Diana Olick of CNBC reports that lenders have slowed the efforts to workout discounts on nonperforming mortgages in anticipation of the government bailout:

As the government's Hope for Homeowners program, designed to fend off foreclosures, kicks in this month, it could face hurdles from the government itself.

Hope for Homeowners gives the FHA the authority to back 300 billion dollars worth of restructured loans, if, among other things, the lenders voluntarily agree to drop the value of the principal to 90 percent of the home's current value.

But with the 700 billion dollar bailout also in gear, which includes the government buying whole loans and bundles of loans owned by banks, I’m hearing that many banks and lenders are choosing to hold off on modifying or restructuring loans--thinking they might get a better deal from the bailout.

Banks are also holding off on selling foreclosed properties and doing short sales, again hoping to get a better deal on those as well (short sales are when the bank agrees to let the owner sell the home for less than the value of the mortgage, which can cost less than foreclosure).

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Nothing New Under the Sun, Part CCXLVII:

Many of you know about Miami Herald v. Tornillo (1974), in which the Supreme Court unanimously struck down on First Amendment grounds a requirement that newspapers publish replies to criticisms of candidates, and Red Lion Broadcasting Co. v. FCC (1969), in which the Court unanimously upheld a requirement that broadcasters broadcast replies to criticisms of identified people. (Red Lion also upheld the Fairness Doctrine, which applied to coverage of unpersonalized issues as well, but here I'm talking about the Court's upholding the so-called Personal Attack Rule.) Some have suggested extending this to the Internet. And of course there have been many attempts to bar anonymous speech, online and elsewhere.

Well, a few months ago I came across the following proposal (some paragraph breaks added):

[L]ibelling (gross and malignant libeling) has become the crying sin of the nation and the times! ... [T]he general prostitution of the liberty of the press; the overwhelming torrent of political dissention, the indiscriminate demolition of public characters; and the barbarous inroads upon the peace and happiness of private individuals ... constitute in my mind a subject of the highest concern ....

The fatal consequences of this public malady begin already to appear. The press has lost its use as an instructor and a censor. Citizens of the same community are pledged to mutual hatred and persecution. All respect for the magistracy and the law is falling into derision. Good and wise men will soon abandon the field of public service. And with a fatality not uncommon in the history of nations, the avowed friends of a free representative government, are arming its real enemies with weapons for destruction....

[Discussion of the inadequacy of then-existing libel law omitted. -EV] I ... suggest, that every printer who assails the character of a citizen should be compelled, if required, to publish the defence; that every printer and editor of a newspaper, or other periodical work, should register his name in some public office of the proper county, to be evidence of the fact of publication, upon trials at law; and that whenever a grand jury shall present a press, as a public nuisance, the printer and the editor should be bound in a recognizance with sureties for their future good behaviour, and the court authorized to suppress it for a limited time.

That's from Pennsylvania Governor Thomas M'Kean, speaking on Dec. 4, 1806. (See N.Y. Spectator, Dec. 10, 1806, p. 2.) And here's an interesting response as to the right of reply from a contemporaneous critic (Danville North Star, Feb. 17, 1807) — an argument that I don't recall having seen before in debates about cases such as Tornillo and Red Lion, but that I imagine might well be relevant today, especially online:

But suppose, what is very likely, that the defence be a more gross libel than the original publication, where is then the "reparation to the feelings and fame of the injured individual?" An act containing such a compulsory clause ought to be denominated an act to encourage and promote, not an act to restrain and suppress, the crime of libelling.

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Who is Justice X?: [Oops -- I misread an oral argument transcript and based a post on it. Um, never mind; thanks to commenter Chris 24601 for pointing out the misreading.]
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The Apprendi Revolution to Expand?: The most remarkable and surprising change in constitutional criminal procedure in the last few years was the decision of a set of Supreme Court Justices to try giving juries a greater role in determining the sentence of criminal defendants. The experiment has had its ups and downs, but based on the oral argument in Oregon v. Ice yesterday, it looks like it is set to expand again.
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Secession and the Clash Between Intrinsic and Instrumental Views of the the Value of Government:

Part of the reason why I'm willing to consider and in some cases support the idea of secession (e.g. - here and here) is that I take a very instrumental view of government. I believe that existing governments, if they have any merit at all, are valuable only as means to other ends. To greatly oversimplify, I think that government is valuable only in so far as it promotes the the values of "life, liberty, and the pursuit of happiness" that were the main justifications for the establishment of the United States. If I am persuaded that some major alteration of current political arrangements would achieve these objectives more fully or at less cost, then I'm perfectly willing to embrace it. I don't see the U.S. government - or any government - as having any intrinsic value. If a particular secession seems likely to increase freedom and happiness without causing harm that outweighs these benefits, I'm willing to support it. In this respect, I am similar to most other libertarians, and also to some (but by no means all) political liberals, who also often view government in purely instrumental terms.

Many people - nationalists, many conservatives, and others - see things differently. They believe, at least to some degree, that states have value in and of themselves, apart from the instrumental purposes they serve. People who think this way often view secession proposals not only as wrongheaded, but as morally anathema. To them, advocacy of secession is not just misguided, but also immoral.

Ironically, my instrumental approach to secession and the value of states also puts me at odds with some secessionists. Specifically, I differ with those who justify secession on the grounds that their subnational political regime has intrinsic value of its own that justifies giving it the trappings of full sovereignty and endowing its government with a moral "right" to secede, regardless of its reasons for doing so. Sometimes, such claims of intrinsic value are based on ethnic nationalism (as in the case of Quebec secessionists); other times on legalistic grounds (as in the case of the American Confederates).

Obviously, I can't even begin to fully resolve the conflict between the instrumental and intrinsicist views in this post, which is intended merely to highlight the key difference between them. I would note, however, that the American political tradition was initially founded on a strong version of the instrumentalist view . By 18th century standards, British rule over the American colonies was relatively benign, and the American rebels could not claim that their colonies deserved independence because they were ethnically distinctive or had intrinsic rights of sovereignty (after all, their power was initially granted by the very British government that they sought to secede from). Instead, the Declaration of Independence articulated a strongly instrumentalist view of government, and justified secession on the grounds that British rule was beginning to undermine the instrumental purposes that it was supposed to advance:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.... . [emphasis added]

To say that an intrinsicist view of the value of government is inconsistent with the Declaration of Independence is not to say that it's wrong. Perhaps it was the Founding Fathers who were in error. Personally, however, I think they got this particular point right.

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Gramm-Leach-Bliley Didn't Cause the Banking Crisis:

So says Peter Wallison in today's WSJ:

The GLBA's [Gramm-Leach-Bliley] "repeal" of a portion of the Glass-Steagall Act of 1933 is said to have somehow contributed to the current financial meltdown. Nonsense.

Adopted early in the New Deal, the Glass-Steagall Act separated investment and commercial banking. It prohibited commercial banks from underwriting or dealing in securities, and from affiliating with firms that engaged principally in that business. The GLBA repealed only the second of these provisions, allowing banks and securities firms to be affiliated under the same holding company. Thus J.P. Morgan Chase was able to acquire Bear Stearns, and Bank of America could acquire Merrill Lynch. Nevertheless, banks themselves were and still are prohibited from underwriting or dealing in securities.

Allowing banks and securities firms to affiliate under the same holding company has had no effect on the current financial crisis. None of the investment banks that have gotten into trouble -- Bear, Lehman, Merrill, Goldman or Morgan Stanley -- were affiliated with commercial banks. And none of the banks that have major securities affiliates -- Citibank, Bank of America, and J.P. Morgan Chase, to name a few -- are among the banks that have thus far encountered serious financial problems. Indeed, the ability of these banks to diversify into nonbanking activities has been a source of their strength.

Most important, the banks that have succumbed to financial problems -- Wachovia, Washington Mutual and IndyMac, among others -- got into trouble by investing in bad mortgages or mortgage-backed securities, not because of the securities activities of an affiliated securities firm. Federal Reserve regulations significantly restrict transactions between banks and their affiliates.

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Should (Some) Children Have the Right to Vote?

The Canadian Green Party didn't win a single seat in yesterday's election, but Green Party leader Elizabeth May made a very interesting comment:

"It's obviously a disappointment," she told reporters before heading off to console her own supporters with an upbeat speech. "We ran an exuberant and joyful campaign. If kids five years and up could have voted, I would have won by a landslide," declared Ms. May, who lost by several thousand votes.

May probably didn't mean to seriously suggest that children should have the right to vote. But I'm not convinced that it would be such a terrible idea. The main objection to giving children the vote is that they lack the knowledge to make informed choices. Of course the same is true of most of the adult electorate, who are rationally ignorant about politics and public policy, and often don't know even very basic facts. Nonetheless, it's probably true that the average child knows a lot less about politics than the average adult, and that may be a good reason to deny most children the franchise. But why deny it to all of them? If a minor can pass a test of basic political knowledge (say, the political knowledge equivalent of the citizenship test administered to immigrants seeking naturalization), why shouldn't he or she have the right to vote? Such a precocious child-voter would probably be more knowledgeable than the majority of the adult population. Giving her the right to vote would actually increase the average knowledge level of the electorate and thereby slightly improve the quality of political decision-making. I've met twelve-year-olds with far higher levels of political knowledge than that of the average adult. You probably have too.

Once the knowledge objection is off the table, all the arguments for giving adults the right to vote also apply to sufficiently knowledgeable children. Like the adults, children have a claim to the franchise because government policies affect them too, because otherwise their interests might be undervalued in the political process, because it affirms their status as citizens with equal rights, and so on.

Obviously, there might be some difficult administrative issues. For example, we might not trust the government to put together an adequate knowledge test. But I don't see any principled reason to deny the franchise to children whose political knowledge is greater than that of most adult voters.

Some people might worry that even knowledgeable child-voters will be "unduly" influenced by their parents' preferences. Given the existence of the secret ballot, I doubt that this would be a major problem. Moreover, children who are knowledgeable enough to pass the test and interested enough to take it will probably have at least some political ideas of their own that aren't easily susceptible to parental suasion. In any event, I'm not sure that the possibility of parental persuasion would necessarily be a bad thing. The objection is in fact similar to one of the arguments once raised against giving women the right to vote - that they would be unduly influenced by their husbands or fathers. Husbands will often influence the views of their wives (and vice versa); similarly, parents will influence those of their children. That doesn't by itself justify denying either married people or children the right to vote.

UPDATE: Some commenters note that children might lack maturity or life experience, as well as knowledge. Obviously they do lack it. I'm just not convinced that either is tremendously useful for voting. Most voting decisions have to do with complex, large-scale policy issues that can't easily be weighed based on personal experience. Realistically, even most adults have little life experience that is directly useful in assessing difficult policy issues. I discuss the limited utility of personal life experience to voting decisions in this paper (pp. 9-10). At the very least, it seems to me that superior knowledge might well outweigh inferior maturity and life experience. And I'm only advocating giving the franchise to children who can demonstrate knowledge levels superior to those of the average adult voter.

UPDATE #2: Various commenters cite the value for voting of such "adult" experiences as holding a job, paying taxes, owning property, and so on. For reasons noted in the first update, I'm skeptical that these experiences greatly improve the quality of voting decisions. Even more to the point, however, we don't exclude from the franchise the many adults who lack some or all of these experiences - even if they are also ignorant of even the most basic political knowledge. If lack of life experience is not enough to justify exclusion of even the most ignorant adults from the franchise, I don't see why it should be considered sufficient to exclude vastly more knowledgeable minors.

UPDATE #3: For a more thoroughgoing argument for giving children the vote (in this case all children), see here. I disagree with some of the points, but the author does do a good job of knocking down some of the standard arguments against letting minors vote.

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Why Don't Canadian Conservatives Support Quebec Secession?

Yesterday's Canadian election gives me an opportunity to explore what to me seems an interesting mystery about Canadian politics: Why don't Canadian Conservatives support Quebec secession?

Canadian Conservatives prefer relatively pro-market policies. Quebec is the most statist province in the country and its political influence drives Canada's economic policies well to the left of where they would be in a separate anglophone Canada. Canadian Conservatives hate paying for federal government subsidies to Quebec (Quebec is a major net recipient of transfer payments from the federal government). Obviously, there would be no such subsidies if Quebec were an independent nation. In the long run, secession might even lead to relatively more market-oriented policies within Quebec itself, since an independent Quebec government could no longer rely on Ottawa transfer payments to finance its statism. Finally, Quebec secession would be a major political boon for the Conservative Party. In the recent election, the Conservatives won 133 of 233 parliament seats in the anglophone provinces, but only 10 of 75 in Quebec. The Tories won't necessarily do this well in the "rest of Canada" every time; but their odds of getting a majority would be greatly improved if Quebec were to secede.

Given the above realities, if I were a Canadian Conservative I would do all I could to help the Parti Quebecois (the secessionist party which wins most of the Quebec vote) to achieve their goal of establishing an independent nation. "Vive le Quebec libre" would be my slogan too.

Actually, I think I know why most Canadian Conservatives in the real world are opposed to Quebec secession. Francophone Quebec nationalists and the Anglophone western Canadians who form the base of the Conservative Party are bitter political enemies. No doubt, many Conservatives can't stand the thought of giving their traditional rivals what they most want. That's an understandable attitude, even if an irrational one. There's plenty of similar (and worse) irrationality in American politics too. But as a somewhat detached outsider, I would respectfully suggest to Canada's Conservatives that giving your adversaries what they want is sometimes the best way to achieve your own goals.

Of course, I'm not an expert on Canadian politics, so it's possible that there's something I'm missing here. The above analysis is based on my general expertise on federal systems combined with a necessarily limited knowledge of Canada. Hopefully, Canadian readers and others more expert than I am will enlighten me as to what I'm missing.

UPDATE: Based on the comments, it's worth pointing out that the Conservatives (like the other major Canadian parties) already accept the idea that Quebec and other provinces have a right to secede. Had any of several previous Quebec referenda on independence passed, the other provinces and the federal government would have let Quebec go and would certainly not have used force to compel it to stay. The debate in Canada is not over the right to secede (as it was in the US in 1861), but merely over whether it would be desirable for Quebec to exercise that right.

Thus, arguments to the effect that the principle of secession is inherently dangerous because any province could use the threat of secession as leverage probably don't explain Conservative opposition to Quebec independence. Canadians (at least most of them) have already accepted that principle.

UPDATE #2: Canadian-based political scientist Jacob Levy makes a good point in the comments:

Being a "federalist" party in the Canadian sense (that is, anti-secessionist) is the sine qua non for support in English Canada. There might be some number of western voters who would cheer Quebec's departure and be happy that the ideological median in their new country had moved a long way right. But the Conservatives would sacrifice something close to all their votes in Ontario (the largest province)-- many of whom have no identity-commitment to being Conservative but have a massive investment in the idea of Canada....

Ontario is far from solidly conservative or culturally conservative, and it would electorally cut off at the knees any party that abandoned federalism. Whatever Conservative leaders might wish in their hearts, it's a political non-starter.

I think Jacob is right that openly supporting Quebec secession would be politically dangerous for the Conservatives (or any majority-anglophone party). That may indeed sufficiently explain why they don't do it. At the same time, it remains the case that secession would greatly facilitate the achievement of conservative policy objectives in the long run. So maybe the right strategy for Conservatives would be to increase the likelihood of Quebec secession indirectly by opposing Quebec demands for increased subsidies and other concessions from the central government, thereby strengthening the PQ by reinforcing their argument that Francophones can never get what they want within Canada. To some extent, of course, that is what the Tories are already doing. Whether they could get away with doing it to a greater extent is difficult for me to judge. Which just goes to show that professional politicians are usually better judges of political strategy than armchair commentators.

Related Posts (on one page):

  1. Why Don't Canadian Conservatives Support Quebec Secession?
  2. Canadian Conservatives Win North America's Other Election:
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Canadian Conservatives Win North America's Other Election:

Most Americans haven't noticed. But there has been another election going on in North America the last few weeks, and yesterday Canada's Conservative Party government won it. Here's a summary from the liberal Toronto Star, and one from the conservative National Post.

Despite the ongoing economic crisis, which is usually the sort of event that damages incumbents, Canadian Prime Minister Stephen Harper managed to win reelection and even increase his party's seats in parliament from 127 to 143. On the other hand, he still has only a minority government and must get support from other parties to pass legislation. The Conservatives also managed to prevail in large part because three left-wing parties split 51% of the vote amongst themselves, enabling the Conservatives to win many ridings (Canadian electoral districts) by plurality votes.

From an American point of view, the Conservative victory is probably good news because the Conservatives are more willing to support a close alliance with the US than the left-wing opposition parties, and in particular more willing to continue the combat role of Canadian troops in Afghanistan (Canada, along with Britain, is one of the few NATO allies whose troops in that country actually engage in active combat operations). Barack Obama, who wants to greatly increase troop levels in Afghanistan, may be secretly happy about Harper's victory for this reason. The Conservatives are also relatively more pro-market and pro-free trade than their opponents.

Canadian libertarians tell me that Harper and his Tories have serious flaws, and I don't doubt it. But the Conservatives north of the border sure look a lot better to me than either American party does right now. Their policies are probably more pro-market than those of Bush's "big government conservative" GOP. Harper's plan to address the current economic crisis (he promises to "cut taxes, fight inflation and balance [the] budget") seems to be less interventionist than the massive Paulson bailout. Even before the crisis, Harper's Canada may have surpassed the US in economic freedom, especially in the field of protecting property rights[though it's important to recognize that Harper and the Ottawa government are not solely responsible for this, since Canada, like the US, is a federal nation with a lot of policy diversity between regional governments].

In addition, the Canadian Conservatives don't have nearly as much of a social conservative/religious right streak as the Republicans do. And libertarians have to give at least a little love to a prime minister who took a lot of flak for cutting government subsidies to the arts - a goal the Republicans weren't able to achieve with their campaign against the NEA.

As a longtime supporter of North American Free Trade, I wonder if it's too late to trade the Bush-McCain GOP for Harper and the Canadian Tories? The latter surely have lots of shortcomings, including some that are probably more visible up close to Canadians than they are to me. Nonetheless, I suspect that in this case the grass really is greener on the other side of the border.

UPDATE: Just to clarify, I should mention that I wasn't counting the secessionist Parti Quebecois [correction: known as the "Bloc Quebecois" at the federal level] as one of the three "left-wing parties" that split the opposition vote; I know that it's primarily an ethno-nationalist party rather than one based on economic concerns. I was counting only the Liberals, the NDP, and the Greens (who did indeed win 51% of the vote between them); these three do focus primarily on social and economic issues and might have been able to defeat the Conservatives had they united.

Related Posts (on one page):

  1. Why Don't Canadian Conservatives Support Quebec Secession?
  2. Canadian Conservatives Win North America's Other Election:
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Record Budget Deficits: From CNN.com:
  The federal budget deficit soared to $454.8 billion in 2008 as a housing collapse and efforts to combat the economic slowdown pushed the tide of government red ink to the highest level in history. . . .
  Some analysts believe that next year's deficit could easily top $700 billion, giving the next president a formidable challenge.
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Funding of Women-Only Domestic Violence Victim Programs Struck Down,

funding for programs for inmate mothers (but not fathers) upheld: That's the California Court of Appeal's decision in Woods v. Shewry, decided yesterday. The court was applying California's constitutional test for sex classifications, which is that these classifications must be subjected to strict scrutiny if men and women are similarly situated for purposes of the program -- the court concluded they were as to the domestic violence victim programs, but not as to the inmate parent programs.

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Tuesday, October 14, 2008

Interesting Comment On Pennsylvania v. Dunlap: It's tricky ground to credit anonymous blog comments, but the earlier thread on Chief Justice Roberts's dissent from denial of certiorari in Pennsylvania v. Dunlap brought out an interesting comment by "Anon Philly ADA" that I wanted to highlight. An excerpt:
  I argue Dunlap motions every couple of days, so . . . I thought I'd share a few thoughts for some of the commenters above.
  First, Dunlap probably doesn't let a lot of drug dealers go free. It lets a lot of drug users go free. Our office refers to Dunlap motions as "first buyer motions" because it's pretty difficult to get the first buyer convicted. The second and third and fourth buyers are no problem, and neither is the dealer if there are several observed sales. Usually the cops will wait around for a couple of observed sales anyway (or will use a confidential informant, not an undercover officer, over a period of time), or will get some other evidence of dealing (scales, large amounts of cash) through a search warrant.
  . . . . The makeup of the PA Supreme Court has changed since Dunlap and it's possible that they'll reverse the decision themselves when the right case is brought up on appeal. Or at least that's what we're all hoping for. Until then, don't worry, we'll keep trying to put away the bad guys.
  A few readers in the thread were also puzzled as to why Roberts wrote the dissent in such an exaggerated style. I can't be sure; perhaps it was just to be entertaining. But I would think that a dissent from denial of certiorari that gets a lot of media attention would be highly likely to be read closely by the Pennsylvania Supreme Court Justices. In contrast, I'm not sure sure that the same would be true with a dissent from denial of certiorari that the media ignored. While I personally think that first paragraph was a bit much — did we really need "tough as a three dollar steak" to enter the legal lexicon? — it was entertaining enough to have been picked up by the MSM and read pretty widely around the legal blogosphere.
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En Banc Sixth Circuit Reinstates TRO in Ohio Election Case:

The U.S. Court of Appeals for the Sixth Circuit issued an order this evening reinstating the district court's TRO requiring Ohio Secretary of State Jennifer Brunner to provide county election boards with state voter registration information so as to facilitate confirmation of registration information. Rick Hasen has details and initial thoughts here and here.

A majority of the en banc court has reinstated a TRO, which will require the Ohio Secretary of State to send along to county elections boards those names that are a "mismatch" between voter registration and Ohio Bureau of Motor Vehicle records. The TRO does not require, and the en banc court majority emphasizes, that a county board is not required upon hearing of the mismatch to remove eligible voters from the rolls. But the court does suggest (on page 9 of the pdf) that it would be the basis for not counting absentee ballots of voters flagged as a mismatch barring further investigation by the board. There may also be some boards that could try to require mismatched voters voting in person to cast provisional ballots. And it also appears that to the extent the mismatch lists are public, it will provide the potential basis for challenges by the ORP on election day (though I believe it is now harder to mount such challenges in Ohio than it was in 2004, when the ORP threatened to make 35,000 challenges at the polls.

The AP reports here.

The opinion is now available here. [Note: Link updated to reflect revised opinion Wed., Oct. 15 at 10AM]

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Corporate Governance and the Bailout::

Did I miss it, or is nobody even paying lip service to the idea that only the Board of Directors can make decisions for (banking) corporations of the kind the banks have apparently made by "accepting" the Treasury's latest plan? As I understand things, Bernanke, Paulson, Geitner and the other gov't officials met with the CEOs of the 9 big banks and laid out their plan and sought the banks' "voluntary" acceptance — yes or no, all or nothing. The conversation presumably went something like this:

Paulson: "Here's the plan: We inject capital and we take equity back. You agree to certain conditions (on e.g. executive compensation), we'll extend the FDIC guarantees to all your deposits. Etc. We could force you to accept the deal (or at least we'd argue that we could, based on authorization contained in the bailout bill to re-capitalize the banks), but for various reasons we don't want to — we want you to accept the deal voluntarily. We have to get all of you on board at once — otherwise, if we went one bank at a time, it would look like the bank we're helping out is in particularly bad shape, and that would send the wrong message to investors."

And the CEOs agreed (and the market went up 900 points).

The CEOs, though, can't possibly have the power to agree, on behalf of their corporations, to a deal of this magnitude, can they? Surely the Boards of Directors, and only the Board of Directors, can commit the banks to a plan involving the issuance of billions of dollars of new equity. It's possible, I suppose, that each of the CEOs spoke to a specially-convened Board meeting and the Boards all voted to go along (and nobody mentioned anything about it because it's just too boring). Or maybe everybody is assuming that the respective Boards will just retroactively rubber-stamp the deal some time this week (though from what I hear from a source inside JP Morgan/Chase, there are a whole lot of people there who are very unhappy with this deal (and the dilutive effects on the value of current shareholders' shares).

Update. As some commenters pointed out, it looks like the possibility that I mentioned in the original posting — that the Boards of the banks did convene by phone at some point, and they all voted to go along, and nobody said much about that part of the process because it was just too boring and insignificant — was indeed how things played out.

To some commenters, that makes it all a "non-story" — they all hooked up by cellphone, had brief discussion (the entire meeting took 3 hours, from the initial statements by Paulson to the signature of the CEOs on the document), and that was that.

It seems to me, though, that the non-story is the story. Board action is treated by pretty much everyone as an afterthought to the real action, which was in the room. The NY Times story today about the whole drama — 37 paragraphs + sidebar — mentions the Boards of Directors at the very end, the penultimate paragraph, in passing. It is treated as an unimportant afterthought because it is an unimportant afterthought. That, it strikes me, is interesting, on two levels: first, illustrating the obvious but interesting point that deliberative bodies (like Boards of Directors, or legislatures) are ineffective during "crises," and, second, that it illustrates how we still haven't solved the problem that AA Berle and Gardiner Means (two members of FDR's "brain trust," incidentally) wrote about in their 1932 classic "The Modern Corporation", viz. the separation of "ownership" and "control" in corporate governance. Shareholders (owners) are supposed to control corporations through Boards of Directors — but they don't, in reality; management controls corporations. It's a big problem, and I'm not sure we've made a great deal of headway on it since 1932.

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15 Year-Old Girl Arrested for Sending Nude Cell Phone Pictures of Herself: From the Newark (OH) Advocate:
  A 15-year-old girl is accused of distributing nude photos of herself to other minors, and one state legislator is questioning whether she should be labeled a sex offender.
  The Licking Valley High School student was arrested Friday after school officials discovered the materials and brought in the school's resource officer for a police investigation.  After spending the weekend incarcerated, she pleaded deny Monday to both charges: illegal use of a minor in nudity-oriented material, a second-degree felony; and possession of criminal tools, a fifth-degree felony.
Via Don't Tase Me, Bro.
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Some Reasons Why Polls May Be Inaccurate

Back in the early 1990s, Gary Mauser (Simon Fraser University, British Columbia) and I wrote an article, originally published in Political Communication & Persuasion, explaining why polls are sometimes inaccurate as measures of public opinion. The article is titled 'Sorry, Wrong Number': Why Media Polls on Gun Control are So Often Unreliable, and although the focus is on polls about gun control, the article observes some general problems with polling. If Senator Obama on election day significantly underperforms, or overperforms, what the polls predict, there will be many possible causes, other than the "Bradley Effect" or the "Reverse Bradley Effect." There are many factors, other than race-consciousness of the interviewees, which may cause a gap between opinion polls and actual votes.

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Second Amendment, Illegal Aliens, and Noncitizens More Generally:

U.S. v. Guerrero-Leco, 2008 WL 4534226 (W.D.N.C. Oct. 6, 2008), holds that the Second Amendment doesn't apply to illegal aliens. The court correctly declines to follow pre-Heller Fourth Circuit precedent that upheld the ban on illegal aliens' possession of guns, and instead reasons itself from Heller. The reasoning, unfortunately, isn't very detailed:

The Supreme Court did not find that all individuals present in America are protected by the Second Amendment. Rather, the Court described that protection as belonging to American citizens [footnote] who "inherited [it] from our English ancestors." Nothing in the opinion purports to extend the Second Amendment's protection to those outside the American political community like the defendant who allegedly entered and remained unlawfully in the country. This inferior court will not read into Heller a more expansive right than recognized therein.

[Footnote:] Examples include: "we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation," Id. at 2799 (emphasis in original); "this right was intended ... and was guaranteed to, and to be exercised and enjoyed by the citizen," Id. at 2806 (quoting Andrews v. State, 50 Tenn. 165, 183 (1871)(ellipsis in original; internal quotation marks omitted)); "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes," Id. at 2815-16; "[The District's requirement] makes it impossible for citizens to use [firearms in the home] for the core lawful purpose of self-defense and is hence unconstitutional," Id. at 2818.

But I doubt that the Court's casual references to citizens were a deliberate judgment that the right only applies to citizens (and thus not to, for instance, legally resident aliens), or should be treated as holding or even strong dictum on the matter. "Citizen" is sometimes loosely used, including in court opinions, to generally mean individuals; and more broadly courts may talk about the rights of citizens (who are the bulk of rightsholders) without foreclosing the possibility that noncitizens might have such rights as well. Consider, for instance, the full context for the first passage quoted in the footnote: "Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose." The Court wasn't suggesting that the First Amendment protects only citizens (a view that the Court has generally expressly rejected); it was using citizens to mean something broader (or at least saying that citizens have the right without denying that noncitizens might as well).

There are good and careful arguments that can be made in favor of the conclusion that the Second Amendment doesn't apply to illegal aliens -- such as those put forth by a magistrate judge in the Southern District of Florida in August -- but I don't think that the court's argument here is by itself persuasive.

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An Odd Place to Find "Rights of First Refusal":

It turns out there are at least a couple of dozen cases, from many jurisdictions, that talk about a noncustodial parent's "right of first refusal to babysit the children."

This makes perfect sense -- I assume it means that when the custodial parent wants to leave the children with a babysitter, the noncustodial parent should get to be that babysitter if he or she so wants, much like a right of first refusal operates in commercial contracts. But it just sounds a bit odd, given how commercial "rights of first refusal" usually are. I take it that when two parents can't stand to be near each other, and drop the children off at a third party, we'll be hearing about how the children are "in escrow."

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Oh What a Horribly Speech-Restrictive Jurisprudence We Now Have:

A commentator on the criminal harassment thread writes something that I've often heard from others as well:

Blah blah blah. In a word in which campus speech codes and 'hate speech' are widely accepted jurisprudence, who cares? Freedom of Speech as you want to define it hasn't existed for decades.

Before we say that free speech talk is pointless because free speech law is so badly busted, let's make sure that we accurately describe current "jurisprudence":

1. There is no "hate speech" exception to the First Amendment. Some people have argued for such an exception, but it has not been accepted by the courts.

2. Campus speech codes (which generally means codes restricting university student speech) have been struck down by every court that has considered them, and there have been several. I agree that where they exist they can still have an improper deterrent effect, even if they're almost never enforced, and routinely struck down. But "widely accepted jurisprudence" treats them as unconstitutional. That's pretty much the best the courts can do now, given our current sensible standing rules that don't allow courts to strike down a speech code until a proper lawsuit is brought to throw it out.

3. I do think that hostile environment harassment law poses serious First Amendment problems. I think I've written more about this subject than anyone else. But for all its flaws, the jurisprudence in this area neither endorses campus speech codes nor a broad "hate speech" exception.

4. The phrase "Freedom of Speech as you want to define it" -- which I take it means broad free speech protection -- "hasn't existed for decades" suggests that there once were the Good Old Days of free speech, and now they're gone. But that's just not so. Speech today is probably on balance as broadly protected in the U.S. as ever, and more so than at nearly other time in the past. I've discussed this before as to speech on campus, but it's also true as to other kinds of speech. (For instance, I agree that limits on corporate speech around elections should be unconstitutional, and that cases upholding them are mistaken. But such limits have been around in one form or another since the early 1900s.)

So it's certainly perfectly proper to condemn speech restrictions that one sees as unconstitutional, or constitutional doctrines that one sees as unsound. But let's not despair of free speech protection based on an unsound description of what speech is actually protected by current legal rules.

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Library Internet Filtering and Free Speech Protections in Washington State:

I just learned that two weeks ago a federal district court certified a question to the Washington Supreme Court:

The Court finds it is necessary to ascertain Washington law with respect to a library's public computer Internet filtering because Article 1, § 5 [of the Washington Constitution] provides broader coverage from an overly broad governmental policy than the First Amendment. Washington law does not clearly define what role a state library’s mission and functions play in analyzing whether a library’s Internet-filtering policy violates Article 1, § 5. Therefore, the Court exercises its discretion to certify the state constitutional issue(s) to the Washington Supreme Court.

The district court opinion (Bradburn v. North Central Regional Library Dist. also has more about the factual submissions so far in this case, one of the few to have actually reached the courts. ("[T]here are only three reported cases addressing Internet filter use in public libraries: United States v. American Library Association, 539 U.S. 94 (2003); Miller v. NW Region Library Bd., 348 F. Supp. 2d 563, 569-70 (M.D.N.C. 2004); and Mainstream Loudoun v. Board of Trustees of the Loudoun County Public Library, 24 F. Supp. 2d 552 (E.D. Va. 1998).)

As you may recall, the American Library Association decision didn't resolve even the First Amendment question of whether a library could continue to block adult users' access to nonobscene Internet materials. Justice Kennedy's and Justice Breyer's concurrences stressed that the Court was deciding only whether the federal law mandating filters was constitutional so long as "on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay" (that's from the Kennedy opinion). In this case, the allegation is that librarians did not promptly unblock certain constitutionally protected material that was sought by adults, so even the First Amendment issue is still open -- as is the Washington Constitution issue that the district court is asking the Washington Supreme Court to explore.

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Cutout Dissection.com:

CNN reports:

You can call her Cutout Dissection.com, or Cutout for short, but just don't call her Jennifer.

The former Jennifer Thornburg -- whose driver's license now reads Dissection.com, Cutout -- wanted to do something to protest animal dissections in schools.

The 19-year-old's new name is also the Web address for an anti-dissection page of the site for People for the Ethical Treatment of Animals, where she is interning.

"Despite her legally changing the name, she said most of her family members still call her Jennifer." Ya think?

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Henderson on Krugman's Nobel:

David Henderson discusses the importance of Paul Krugman's trade work in today's WSJ.

In the late 1970s, Mr. Krugman noticed that the accepted model economists used to explain patterns of international trade did not fit the data. The Hecksher-Ohlin model predicted that trade would be based on such factors as the ratio of capital to labor, with "capital-rich" countries exporting capital-intensive goods and importing labor-intensive goods from "labor-rich" countries. Mr. Krugman noticed that most international trade takes place between countries with roughly the same ratio of capital to labor. The auto industry in capital-intensive Sweden, for example, exports cars to capital-intensive America, while Swedish consumers also import cars from America.

Mr. Krugman's explanation is based on economies of scale. Both Volvo and General Motors reduce average costs by producing a large output in particular niches of the market. In presenting his trade model, Mr. Krugman planted the seeds for his later work in economic geography, in which he tried to explain the location of economic activity.

He summarized his basic finding (in "Geography and Trade," 1992) as follows: "Because of economies of scale, producers have an incentive to concentrate production of each good or service in a limited number of locations. Because of the cost of transacting across distance, the preferred locations for each individual producer are those where demand is large or supply of inputs is particularly convenient -- which in general are the locations chosen by other producers. Thus [geographical] concentrations of industry, once established, tend to be self-sustaining."

Related Posts (on one page):

  1. Henderson on Krugman's Nobel:
  2. Krugman Wins Nobel Prize:
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Oral Argument in Pearson v. Callahan: I have blogged before about Pearson v. Callahan, the Fourth Amendment case I have been closely involved in before the U.S. Supreme Court. Argument was today, and the oral argument transcript is here.

Literary Style of the Opening Paragraph in Pennsylvania v. Dunlap:

This dissent from denial of certiorari that Orin noted is obviously noteworthy less for its legal analysis and more for the opening paragraph's amusing departure from normal Supreme Court style. This was implicit, I'm pretty sure, in Orin's posts, but I thought I'd make it explicit, and explicitly solicit comments about it.

In particular, are there other examples of such self-conscious stylistic departures in Supreme Court opinions? I can't think of any off the top of my head, though of course there are a few instances (including whole opinions in rhyme, invariably very bad rhyme) in lower courts.

Related Posts (on one page):

  1. Literary Style of the Opening Paragraph in Pennsylvania v. Dunlap:
  2. Interesting Dissent from Denial of Certiorari,
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Interesting Dissent from Denial of Certiorari, handed down today in Pennsylvania v. Dunlap, by Chief Justice Roberts and joined by Justice Kennedy. It begins:
North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Under­ cover surveillance. The neighborhood? Tough as a three­ dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood. Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.
* * *
That was not good enough for the Pennsylvania Supreme Court, which held in a divided decision that the police lacked probable cause to arrest the defendant. The Court concluded that a “single, isolated transaction” in a high-crime area was insufficient to justify the arrest, given that the officer did not actually see the drugs, there was no tip from an informant, and the defendant did not at­ tempt to flee. 941 A. 2d 671, 679 (2007). I disagree with that conclusion, and dissent from the denial of certiorari.
Roberts. Kennedy. Correct on the law? You betcha. Just error correction though. Two votes less than four. No dice.

Related Posts (on one page):

  1. Literary Style of the Opening Paragraph in Pennsylvania v. Dunlap:
  2. Interesting Dissent from Denial of Certiorari,
35 Comments

The Economy under the GOP vs Dems:

On today's NY Times op-ed page, Tommy McCall has a very interesting graphic on the performance of the stock market under Democratic and Republican presidents. Each of the two parties has been in control of the White House for 40 of the last 80 years; on average, during Democratic administrations, the S&P index has increased 8.9% annually. During Republican administrations, the corresponding figure is 4.7% — and that's if you exclude the Hoover years (during which time the market declined an astonishing 77%). If you include Hoover, the Republican "annualized return on investment" is an even more dismal 0.4%. Put another way, if you put $10,000 in the market and left it in only during Democratic administrations, you'd have $300,000, compared to around $12,000 (or $51,000, again excluding Hoover from the calculations) if you adopted the same strategy for Republican administrations.

This follows a number of articles this summer addressing the similarly-pointing argument advanced by Larry Bartels' in his book "Unequal Democracy," in which Bartels' data show average economic growth of 2.78% under Democrats, 1.64% under Republicans (roughly a 67% difference). (I don't recall discussion of Bartels' book here on the VC, but I might have just missed it)

Most people, I think it fair to say, would have predicted just the opposite. Republicans would then say "You see?? Our policies really are better for the economy," and the Democrats would say "Well, that's just Wall Street — what about the poor and the marginalized, and the social safety net . . ." etc. etc.

But with the actual results, it's not so clear what to say — in particular, what Republicans say. On its face, it's a very damning indictment of Republican economic policies — not an indictment in theory, but an indictment in fact. The economy grows more slowly, and the stock market increases in value more slowly, when a Republican is in the White House than when a Democrat is in the White House.

Has there been, or is there, a consensus response on the Republican side? I'm curious to know how those of you who are staunch Republicans respond. I can think of some responses: one can concede the point, but argue that Republicans are preferable on other grounds; one can point to flaws in the data (the sample is small (only 80 years); the effects from one administration "spillover" into later administrations, blurring the significance of any one year's data; the comparison ignores differences that may be due to control of Congress by the other party, etc.). But it does seem worthy of thought and discussion, even if we weren't simultaneously in the midst of an economic crisis and a presidential election.

UPDATE: A number of readers pointed to responses published here, and here, both of which give some good arguments for looking at the results of these studies at least with some skepticism. I don't find it too persuasive to argue, as Luskin does, that if you treat Nixon and GHW Bush as 'Democrats,' and JFK and Clinton as 'Republicans,' the results turn around -- if you call elephants 'mice,' and mice 'elephants,' then 'elephants' weigh less than 'mice.' But the more cogent criticisms seem to fall into two categories: first, that the Nixon presidency, like the Hoover years, had a disproportionate effect on the Republicans' poor performance and (b) that at least as far as the GDP numbers are concerned, one needs to take into account a President's actions and the effects of his policies, and that with a 2-year lag the data show almost equal GDP growth under Republicans and Democrats.

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What Blogs Are In-House Counsel at Big Companies Reading?

I was talking to some friends of mine, and the question turned to which kinds of lawyers tended to read which kinds of blogs. My sense is that accurate survey data is hard to come by on this, and naturally much turns on whom you ask (so that my question here will surely yield a skewed set of answers, and skewed in several different ways). But I thought that even an impressionistic sense would be helpful, or at least better than our own guesswork.

So if you're in the in-house counsel's office at a big company, or know people who are, please let me know what blogs you read. Please feel free to post anonymously, if you prefer, but if you could include some sense of what industry or company type you're in, that would be good. Or if you'd like to e-mail me at volokh at law.ucla.edu, that would be good, too. Many thanks!

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How Bad Are Ohio's Electoral Problems?

The Cincinnati Enquirer reports on alleged voting problems in Ohio, and suggests there's more smoke than fire.

With three weeks until Election Day, partisans on both sides are once again drumming up fears that the voting process in Ohio is tilted against their side. Republicans rail about an army of fake voters; Democrats say Republicans want to disqualify newly registered voters, who are expected to favor Barack Obama.

The evidence suggests both sides have little to fear.

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More on "Want Your Opinions Questioned or Reversed? Hire a Yale Clerk":

We blogged about this paper (with some skepticism) this Spring, and also linked to a critique by Yale lawprof and leading empirical scholar John Donahue. A couple of weeks ago Donohue withdrew some parts of his critique, but retained other parts; the revised post is here. I thought I'd therefore note this for the sake of completeness and accuracy, and in case some of our readers continue to be interested in this topic.

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The Return of Criminal Libel, With Truth Not Being a Defense?

That's how I read the prosecution and conviction in State v. Ellison (Ohio Ct. App. Oct. 10). The facts:

[Ripley C.] Ellison and Savannah Gerhard were childhood friends but had a falling out during seventh grade. According to Ellison, the fallout occurred when her younger brother accused Gerhard of molesting him. The Hamilton County Department of Job and Family Services (“JFS”) investigated the claim and determined that it did not have enough evidence to substantiate that the abuse had occurred.

As teenagers, Ellison and Gerhard attended the same high school. During the summer of 2007, Ellison posted on her Internet “MySpace” page a picture of Gerhard that was captioned “Molested a little boy,” and she stated in her personal profile that she hated Gerhard. Ellison allowed for public, rather than private, viewing of her MySpace page.

After hearing about the posting from others, Gerhard used the Internet to view Ellison’s MySpace page. Gerhard had previously observed a short remark by Ellison on a contemporary’s MySpace page that also referred to the molestation accusation. But Ellison never directly communicated these postings to Gerhard, who also had a MySpace account.

Gerhard complained to authorities at her school about the postings. Ellison removed them from her MySpace page at the request of the school’s resource officer investigating Gerhard’s complaint. Ellison was then charged criminally for telecommunications harassment under R.C. 2917.21(B).

At a bench trial, Gerhard confirmed that Ellison had never directly communicated with her over the Internet and that she had sought out the postings. She added, however, that she had felt “harassed” by the postings and that she had overheard Ellison make a similar remark about her at school.

Ellison testified that she believed her brother’s accusations against Gerhard were true. And she gave the following explanation for posting the offensive material: “I think that other people need to know how she is. And she denies everything, but a lot of people believe that she did it. And I was told that she did it. And so I think that other people have a right to know.”

Subsequently, Ellison was convicted on one count of telecommunications harassment ... under R.C. 2917.21(B), which provides that “[n]o person shall make or cause to be made a telecommunication, or permit a telecommunication to be made from a telecommunications device under the person’s control, with purpose to abuse, threaten, or harass another person.” The state proceeded in this case under a theory that Ellison had posted a “rumor” on the Internet to harass Gerhard.

So we have a criminal prosecution for speech that supposedly "harass[es]" (or perhaps "abuse[s]") by making allegations of criminal conduct — but the state has no obligation to prove falsity, and the defendant isn't even entitled to a defense of truth. Sounds like a pretty clear violation of the First Amendment.

Fortunately, the Ohio Court of Appeals reversed the conviction, but unfortunately it didn't reach the First Amendment question. The court concluded that there was no evidence of the purpose to harass (defined by the court as "inten[t] to alarm or to cause substantial emotional distress to the recipient, not just to annoy," with the likely extra requirement that the speech "serve[] no legitimate purpose"):

The burden is not met by establishing only that the defendant knew or should have known that her conduct would probably cause harassment. The legislature has created this substantial burden to limit the statute’s scope to criminal conduct, not the expression of offensive speech. Whether Ellison was liable for defamation was not established in the proceedings below and can be addressed in civil proceedings....

The state argued that Ellison’s posting of the “rumor” after JFS had found the allegation unsubstantiated showed a purpose to harass. But JFS’s conclusion did not mean that dissemination of the allegation could not serve the legitimate purpose of warning others of what Ellison believed to be criminal behavior. Moreover, it was undisputed that Ellison never directed a telecommunication to Gerhard despite the opportunity to do so. These facts rendered the state’s position untenable.

But while I'm glad about the reversal, it still appears that someone can be prosecuted for speech — even speech to the public — so long as it "serves no legitimate purpose" in the eyes of a judge or a jury, and so long as the judge or jury concludes that it was intended to cause substantial emotional distress.

Say (for instance) that a university student has a political dispute with students from the Muslim Students Association, and then posts the Mohammed cartoons on his site (with or without an explicit connection to the particular students with whom he has had the dispute). He could then potentially be criminally prosecuted on the theory that the speech "serves no legitimate purpose" and "was intended to cause substantial emotional distress."

Of course, he could respond that he had the legitimate purpose of criticizing extremist strains of Islam (or Islam generally), but then the judge or jury would have to decide whether such a purpose is "legitimate," and whether that really was his purpose or whether he was just motivated by a personal grudge. And the human tendency to assume the worst motives of those with whom one sharply disagrees may well lead a factfinder to find the defendant guilty. (The same would naturally apply to a vast range of other speech that a factfinder could say is really motivated by a desire to distress someone, whether it's speech that's supposedly purposefully distressing to the target because of the target's religion, ethnic identity, sexual orientation, political beliefs, or personal history.)

Nor would this be limited to speech that is communicated directly to the unwilling recipient rather than to the public — as in traditional telephone harassment, which I think can be restricted, much as the mailing of unwanted letters to a person can be restricted, or persistent unwanted personal contacts can be restricted. This also includes speech said to the public at large, speech that might well reach willing and interested recipients who might be persuaded, enlightened, or cautioned by it.

Plus recall that, if punishment of such speech is allowed in criminal cases, it would also be allowed in civil cases and administrative cases, where the safeguards of proof beyond a reasonable doubt and criminal jury unanimity (the latter required in all but two states) won't be present. The factfinder could be a university administrator, who punishes political or religious commentary on the grounds that he, the factfinder, can divine the speaker's true purpose, and that the true purpose is to substantially distress some classmates (or faculty members or administrators).

I understand why the court resolved the matter on purely statutory grounds: The general rule is that courts ought to reverse a conviction on statutory grounds if the conviction is unsupported by a proper construction of the statute, and thus make it unnecessary to reach the constitutional question. But the decision does highlight the potential threat to free speech from statutes such as this one.

Finally, let me close with the separate concurrence from Judge Painter, which I agree with (except to the extent it suggests that an annoying posting "might well be a civil wrong" simply because it serves no legitimate purpose and is intended to alarm or cause substantial emotional distress, even when it's true or is pure opinion):

It is a scary thought that someone could go to jail for posting a comment on the Internet. If so, we could not build jails fast enough.

The statute on telecommunications harassment is the successor to the former telephone-harassment law. It is designed to prohibit harassing or threatening calls. Of course the calls may now be made over a traditional phone line, a cellular phone, or the Internet. But posting an annoying — but nonthreatening — comment on a website is not a crime under this statute. It might well be a civil wrong, but it is not jailable. The First Amendment would not allow punishment for making a nonthreatening comment on the Internet, just as it would not for writing a newspaper article, posting a sign, or speaking on the radio.

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Federal Judge Halts Michigan Voter Purge:

Fake voter registration is hardly the only election problem. Efforts to purge voter rolls of ineligible voters can (and often do) result in the removal of eligible voters as well, particularly if purge efforts are based upon returned mailers. From the Detroit Free Press:

U.S. District Judge Stephen Murphy III told state officials to immediately stop canceling the registrations of newly registered voters whose voter identification cards are returned as undeliverable by the post office. Murphy said state officials must restore the names of 1,438 people who have been removed from the rolls under this method since Jan. 1.

Murphy said a second practice -- removing the names of people who apply for driver’s licenses in other states -- also is illegal, but the prospects of restoring the names of about 200,000 people, only a few of whom were wrongly removed, “would risk grave harm to the public interest by permitting a large number of ineligible voters to vote.”

The judge said the plaintiffs and defendants in a lawsuit must figure out how to deal with that problem as the lawsuit proceeds.

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Roasting the Pig to Burn the House: A Modest Proposal:

I generally don't post my scholarship on this blog, but this essay is a bit different — short (12 pages) and (I hope) modestly amusing while trying to make a serious point. So, with apologies for the shameless self-promotion, here is an essay entitled Roasting the Pig to Burn the House: A Modest Proposal, and here is the abstract:

This essay addresses the question whether one should support regulatory proposals that one believes are, standing alone, bad public policy in the hope that they will do such harm that they will ultimately produce (likely unintended) good results. For instance, one may regard a set of proposed regulations as foolish and likely to hobble the industry regulated, but perhaps desirable if one believes that we would be better off without that industry. I argue that television broadcasting is such an industry, and thus that we should support new regulations that will make broadcasting unprofitable, to hasten its demise. But it cannot be just any costly regulation: if a regulation would tend to entrench broadcasting’s place on the airwaves, then the regulation will not help to free up the spectrum and should be avoided. Ideal regulations for this purpose are probably those that are pure deadweight loss – regulations that cost broadcasters significant amounts of money but have no impact on their behavior.

Am I serious in writing all this? Not entirely, but mostly. I do think that society would benefit if the wireless frequencies currently devoted to broadcast could be used for other services, and the first-best ways of achieving that goal may not be realistic. I am proposing a second-best –- a fairly cynical second-best, but a second-best all the same. I would prefer not to go down this path, but if that is the only way to hasten the shriveling of television broadcasting’s spectrum usage, then it is probably a path worth taking.

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ACORN's Registration Quotas & Their Consequences:

The Cleveland Plain Dealer reports on a man who was registered to vote 73 times.

Johnson and another prolific registrant were subpoenaed to testify at a meeting Monday as the Elections Board continued its look at possible fraud by ACORN, a national organization that tries to get low- and moderate-income people to register. ACORN's methods have drawn interest in a number of states this presidential election year.

Johnson, 19, said he mostly was trying to help ACORN workers who begged him to sign up because they needed to keep their jobs.

"They'd come up with a sob story why they needed the signature," said Johnson, of Garfield Heights.

ACORN leaders have acknowledged that workers paid by the hour were given quotas to fill.

Of course registration fraud and actual voter fraud are not the same thing, but registration fraud creates the potential for voter fraud, particularly by absentee ballot, and it may be happening in Cuyahoga County.

Investigators probing ACORN have learned that an Ohio man registered to vote several times and cast a bogus ballot with a fake address, officials said yesterday, as they revealed that nearly 4,000 registration applications supplied by the left-leaning activist group were suspect.

The vote of Darnell Nash, one of four people subpoenaed in a Cuyahoga County probe of ACORN's voter-registration activities, was canceled and his case was turned over to local prosecutors and law enforcement, Board of Elections officials said yesterday.

Nash had registered to vote repeatedly from an address that belonged to a legitimately registered voter, officials said during a hearing at which the subpoenaed voters were to testify.

Board officials had contacted Nash this summer, questioned his address and told him to stop repeat registering.

But still, he breezed into Ohio election offices - the state allows early voting for president - reregistered with a fake address and cast a paper ballot, officials said.

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The Fate of Radagast the Brown:

Here at the Volokh Conspiracy, we make a point of informing our readers about all the really important issues of our time. Thus, I was distressed to learn from the comments about my post criticizing the analogy between John McCain and Gandalf that many of our learned readers don't know what happened to Radagast the Brown, the third wizard mentioned by name in The Lord of The Rings. As LOTR fans know, Gandalf, Saruman, and Radagast were three of the five Wizards (known as the Istari) sent by the Valar to help the Elves and Men of Middle Earth battle Sauron. Unlike that of Gandalf and Saruman, Radagast's ultimate fate is not discussed in LOTR.

Fortunately, J.R.R. Tolkien informed us of what happened to him in his later essay, "The Istari,"(excerpted here):

Indeed, of all the Istari, one only remained faithful, and he was the last-comer. For Radagast, the fourth, became enamoured of the many beasts and birds that dwelt in Middle-earth, and forsook Elves and Men, and spent his days among the wild creatures.

It's not entirely clear whether Radagast stayed among the "beasts and birds" of Middle Earth forever, or whether the Valar eventually forgave him for his (partial) failure and allowed him to return home to Valinor.

Commenters on the previous post proposed various modern politicians as analogues to Radagast. One possible one is Fred Thompson, the preferred presidential candidate of many of my fellow Conspirators. Thompson's heart, like Radagast's, may have been in the right place; but he too had no real enthusiasm for his mission, and soon dropped out of the race without ever having made much of an effort. Whether Thompson deserves the abuse hurled at Radagast by Saruman ("Radagast the Bird-tamer! Radagast the Simple! Radagast the Fool! Yet he had just the wit to play the part that I set him..."), is left as an exercise for the reader.

As for the other two Istari, Alatar and Pallando, Tolkien gave contradictory indications as to their ultimate fate, but probably they failed even more completely than Radagast.

Related Posts (on one page):

  1. The Fate of Radagast the Brown:
  2. John McCain as Gandalf?
44 Comments

Monday, October 13, 2008

Mandatory Acceptance of Federal "Investment" in Leading Banks:

N.Y. Times:

Treasury Secretary Henry M. Paulson Jr. outlined the plan on Monday to nine of the nation's leading bankers at an afternoon meeting, officials said, in which he essentially told the participants that they would have to accept government investment for the good of the American financial system. This capital injection plan will use a huge chunk of the money authorized for Troubled Assets Relief Program.

Citigroup and JPMorgan Chase were told they would each get $25 billion; Bank of America and Wells Fargo, $20 billion each (plus an additional $5 billion for their recent acquisitions); Goldman Sachs and Morgan Stanley, $10 billion each, with Bank of New York Mellon and State Street each receiving $2 to 3 billion. Wells Fargo will get $5 billion for its acquisition of Wachovia, and Bank of America the same for amount for its purchase of Merrill Lynch.

The goal is to inject massive liquidity into the banking system. The government will purchase perpetual preferred shares in all the largest U.S. banking companies. The shares will not be dilutive to current shareholders, a concern to banking executives, because perpetual preferred stock holders are paid a dividend, not a portion of earnings. The capital injections are not voluntary, with Mr. Paulson making it clear this was a one-time offer that everyone at the meeting should accept.

If any of the relevant banks is already well-capitalized, I hope its CEO tells Paulson to take his capital injection and shove it up his you-know-what.

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Going Easy on "Deranged" Charges that Seem like Mere Exaggerations of a Deeper Truth:

One reason why "deranged" rhetorical excesses proliferate in our political discourse is that most partisans are far less willing to condemn their own side's excesses than those of the opposition. Some of this is caused by simple bias and ignorance.

But some of it is also partly caused by a belief that your own side's rhetorical excesses are merely exaggerations of an underlying truth rather than completely wrong. Consider for example conservative charges that Barack Obama is a "socialist." I think that such claims are absurd. At the same time, I do fear that Obama is likely to vastly expand the scope of government and that some of the policies advocated by him and other liberals have flaws that are similar to those of full-blown socialism. From my perspective, there is a very important difference of degree between the two. But there isn't always a difference in kind. I think that "Obama is a socialist" accusations are seriously misguided and would never say such a thing myself. At the same time, it's hard for me to be as tough on those who make them as I would be on people whose rhetoric is in my view completely divorced from reality.

Consider, on the other hand, liberal charges that McCain and Palin are engaging in "racist" campaign tactics. Thoughtful liberals probably reject claims that McCain is a racist or even deliberately pandering to the racism of others. But many of them also believe that such charges are merely an exaggeration of the underlying reality that the Republicans have long sought to exploit racism for political advantage with their attacks on affirmative action, welfare, and so on. I actually think there is a measure of truth to this broader charge against the GOP, though not as much as many liberals believe there to be. Part of the reason why many liberals are reluctant to denounce the "McCain-Palin are racist" meme is that they think it reflects a deeper truth to a much greater extent than I do.

In sum, it is extremely difficult for people with strong political commitments to be as hard on their own side's "deranged" rhetoric as they are on the opposition's. Some of this is simple bias and hypocrisy that they have little incentive to correct because of rational political ignorance. Some stems from a genuine belief (albeit also influenced by bias) that their side's excesses are less blameworthy than the opposition's because they are merely exaggerations of an underlying truth, whereas the other side's are flat out wrong.

I don't have a good solution for this problem. But the beginning of wisdom is to at least be aware of it, and to try to remember that it applies to you as well as your opponents.

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Political "Derangement" and Political Ignorance:

Co-blogger Orin Kerr is right to point out that many partisans are engaging in overheated rhetoric and unfair charges against their opponents. This problem is not unique to recent American politics. If you look at our very first contested presidential elections (Jefferson vs. Adams, 1796 and 1800), you will find ridiculous "deranged" charges every bit as ludicrous as those we hear today (e.g. - claims that Jefferson was a close atheist who would destroy all religion; accusations that he would betray the country to France; claims that Adams and the Federalist Party were secretly plotting to establish a monarchy, and so on).

I. The Role of Rational Political Ignorance.

Why this longstanding pattern of overheated and ridiculous political rhetoric? Regular readers of this blog won't be surprised to learn that I think it has a lot to do with widespread political ignorance. Overwhelming evidence shows that much of the public knows very little about politics and public policy. For individual voters, such ignorance is perfectly rational because there is very little chance that your vote will actually influence the outcome of an election. But the less you know, the more you are susceptible to inaccurate and extreme charges. People who are familiar with the details of Barack Obama's biography are unlikely to believe that he is a secret Muslim who sympathizes with terrorists; not so those who know little or nothing about him. The same goes for similarly ridiculous charges against the Republicans. As a result, candidates and activists have incentives to make ridiculous charges because they know that many ignorant voters will believe them.

II. The Role of Biased Evaluation of Political Information.

Even some of those voters who do know more than the average citizen are still susceptible to overheated charges. Rational ignorance implies not only that people have little incentive to acquire political information, it also means that they have little incentive to make rational judgments about the information they do acquire. As a result, most of use evaluate political information in a highly biased way, overvaluing anything that confirms our preconceived views and resisting new information that seems to undercut them. This helps explain why many otherwise intelligent people come to endorse ridiculous political conspiracy theories. For similar reasons, it helps explain why otherwise intelligent political partisans embrace "deranged" accusations against their political adversaries.

Can any of this be changed? Maybe. But two centuries of political history suggests that it will be extremely difficult to do so. "Derangement syndrome" may be an inevitable aspect of democratic politics, especially when elections are closely contested and involve divisive issues.

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Now There's a Thematically Linked Name for You:

The man administering the $700 billion financial bailout is Neel Kashkari.

Thanks to my colleague Gary Blasi for the tip.

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How Many People Would Want To Immigrate to the U.S.?

I asked this question earlier this year (stressing that it's just a question and not an answer):

Say that we consider largely removing limits on immigration, as I've heard some people suggest, and as was indeed the law throughout much of the nation's history. (Let's set aside narrow limits, such as on people with criminal records, terrorist connections, or easily communicable diseases.) Say also that we will offer these now largely legal immigrants those social welfare benefits that are in fact politically likely — not the bare minimum that some libertarians might like, nor the vast amount that some welfare-state proponents might suggest, but those benefits that are likely: Public education for their children, emergency health care, whatever nonemergency health care is likely to be broadly offered under either current health subsidy plans or under whatever plans are likely in the future, and the like.

Say also that we maintain the traditional liberties that we have long offered legal immigrants, such as the right to settle wherever they want (which likely means where they can find relatives, people from their home country, and jobs), rather than requiring them to stick to (say) South Dakota and avoid already crowded places like New York City or Southern California. And say that we likewise maintain the various traditional restraints that are in fact unlikely to be politically changed, such as imperfectly enforced minimum wage laws, imperfectly enforced tax laws, imperfectly enforced housing laws, and the like.

Of the world population of 6 billion, how many people are likely to want to come to the U.S., and stay for the indefinite future, under this model? Ten million? One hundred million? More? Less? Is it even possible to estimate this? Relatedly, if one goal of allowing broader immigration would be to avoid the problems caused by illegal immigration, would capping the limit at some number (2 million per year? 5 million per year?) dramatically decrease illegal immigration by offering the prospect of legal immigration to those who stand in line? Or would it increase illegal immigration, as people see more of their acquaintances and family members living in the U.S., and thus conclude that moving here illegally would be easier and less painful than it once was?

I understandably didn't see much of an answer in the comments, though some were quite helpful. Now the Reader's Digest reports on the results of a poll, which asked people in other countries, among other things, whether they "would be interested in moving to America if economic and political barriers were non-existent." (That's just the Digest's paraphrase, I should stress; please let me know if you know the exact text of the question, and more broadly whatever else you may know about the survey, since I recognize it might well be flawed.) The Digest gives answers for 17 countries, but let me just give the biggest one, India: 73%.

Now I strongly suspect that Indian immigrants to the U.S. have given the country a great detail, and that the country is on balance better for letting them in (as I hope is the case about Russian Empire immigrants like me). But, let me say again: 73%. Of over a billion people.

Naturally, economic barriers would never be nonexistent. But say that political barriers were removed, and only 10% of those people would actually come. That would be 80 million new Americans, quite likely in the span of only a few years. And that's just from India. Where would they all go? What freeways would they drive on?

So let me ask a slightly different question than I asked before. Say that you support dramatically easing restrictions on immigration, whether it's on libertarian grounds, liberal humanitarian grounds, or whatever other grounds. Say that we take for granted the assumption that legal immigrants will be entitled to at least some public benefits, such as public education, emergency health care, whatever nonemergency health care is likely to be broadly offered under either current health subsidy plans or under whatever plans are likely in the future, and the like. And say that we maintain the traditional liberties that we have long offered legal immigrants, such as the right to settle wherever they want (which likely means where they can find relatives, people from their home country, and jobs), rather than requiring them to stick to (say) South Dakota and avoid already crowded places like New York City or Southern California.

Would you have no immigration caps at all? If you would, how would you make the caps work?

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Which Side Has the Worse Case of [Insert Name] Derangement Syndrome?: My post below on [Insert Name] Derangement Syndrome raised the question of which side had a worse case of the disease: The right or the left?

  My sense is that on the blogosphere as a whole, as well as in the overall political discourse, it's actually pretty evenly matched. Think of it as Newton's law of political derangement: For every overreaction, there is an equal and opposite overreaction (somewhere). On this blog's comment threads, however, I think the right clearly has a worse case: There are a handful of conservative VC commenters who reliably make the most absurd, over-the-top, derangement-syndrome comments possible.

  Being right-of-center myself, I cringe when reading these comments: No doubt many who are not committed conservatives see them as confirmation that many conservatives are truly deranged. At the same time, I tend to think the reason the right wins the [IN]DS award here at the VC is that we're a right-leaning leaning blog. While good posts will attract readers from across the spectrum, my sense is that the Deranged tend to hang out at blogs that are sympathetic to their views. I think that explains why although we occasionally have liberal members of the Deranged pay a visit and post a few comments, they usually don't hang out in the comment forest for very long.
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It is All George Bailey's Fault:

So says Ross Douthat in a clever piece in this weekend's WaPo. Who knew that Mr. Potter was the real hero?

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Short Titles Are Apparently in Fashion, at least if the titles of forthcoming articles in the October issue of the Stanford Law Review are any guide:
Mandatory Rules by Scott Dodson
Holmes on Emergencies by Adrian Vermeule
Super Medians by Lee Epstein & Tonja Jacobi
The End of Privacy by Jed Rubenfeld
If those articles had only been titled Rules, Emergencies, Medians, and End, respectively, they probably would have been in Harvard. (Full disclosure: my new draft article Untitled will be submitted to law reviews in March.)
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[Insert Name] Derangement Syndrome: You've probably noticed that with the election around the corner, a lot of people are saying some very extreme things about politicians. Politicians they don't support are not just weak, or poor choices for office. Instead, those politicians are dangerous, illegitimate, and maybe even criminal. Anyone who supports them must be disingenuous or in denial. We've seen a lot of that kind of talk all around the blogosphere, in more modest forms even at this blog.

  Why? It's a complicated question, I think, but I wanted to offer some preliminary thoughts.

  I think the psychological need for moral clarity is the primary reason we see this kind of language. In a democracy, the citizenry chooses which leaders we will have. Because we have diverse opinions, we will always have disagreement about which candidates and which ideas they embrace are the best ones.

  The unfortunate reality is that we really don't know much about political candidates and how they will govern. No matter which way we vote, we're gambling. This is true not only of candidates as individuals but also of their policy proposals: While we may each have instincts as to which ideas will work and which won't, our instincts are normally just that, instincts.

  That sort of uncertainty is really uncomfortable for a lot of people. We want to see our side as right and the other side as wrong: We want certainty that we are correct. And the higher the stakes, the more anxious we are that we may be wrong, and the more we want to be — we must be — right.

  I think this leads to a human tendency to demonize political candidates we oppose and deify candidates we endorse whenever the stakes are high. If the politicians you don't like can be portrayed as corrupt or dangerous, then you never need to get to the difficult questions of what they are actually doing or the merits of their policy proposals. You can satisfy yourself that you are 100% correct at the outset very easily, because at least you're not supporting the candidate that is illegitimate. As a result, politicians we don't support aren't just good people who have bad ideas that we think on balance won't work out for the best. Rather, they are treated like they are illegitimate and maybe even criminal.

  I realize I'm painting with a very broad brush here, and as a result I'm lacking a lot of nuance. But a number of people have remarked to me about the tone of the election both in the blogosphere generally and at the VC in particular, and I wanted to offer a few thoughts as to why that may be. If you disagree, please let me know in the comment thread (in a civil way, of course).

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Very Funny Essay: By Hillel Levin, and only 6 pages long:
Based on a true story, this piece starts with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges--father, babysitter, grandma (a liberal jurist, of course), etc.--who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.

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Krugman Wins Nobel Prize:

This morning, the 2008 Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel was awarded to Princeton economist Paul Krugman "for his analysis of trade patterns and location of economic activity." The award was bestowed for his academic work — which many have suggested was Nobel-worthy for some time — not his political commentary, though the latter may have played a role. "Krugman is not only a scientist but also an opinion maker," commented one member of the prize committee. Early NYT coverage is here.

UPDATE: I just reread the post and want to make clear that I believe Krugman's Nobel is well-deserved. He is clearly among the most important economists of his generation. My suggestion that his political commentary may have been a factor was not meant to disparage his accomplishment. It was a reaction to the quote in wire story cited above. That said, I will confess some dread at the prospect of hearing "according to Nobel Laureate Paul Krugman . . . " every time someone quotes one of his NYT columns on political issues.

UPDATE: Tyler Cowen discusses the award and Krugman's work here.

Related Posts (on one page):

  1. Henderson on Krugman's Nobel:
  2. Krugman Wins Nobel Prize:
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Fear Itself, Con't:

In a recent post, Eric Posner asks a very interesting question:

No one who believes that the government exploited fears after 9/11 to strengthen its security powers is now saying that the government is exploiting financial crisis fears in order to justify taking control of credit markets. No one who thinks that government would use fear to curtail civil liberties seems to think that government would use fear to curtail economic liberties. Why not?

Putting aside the question of whether it's strictly correct to say "no one" (see Ilya's response, here), I think Eric is on to something important, and I think I have the "answer" (sort of). The answer is: the vast majority of people place economic liberties on a decidedly lower plane than they place "civil" liberties.

Examples of this are everywhere. It's one of the reasons why people who believe strongly in economic liberties get so angry in law school -- it's not just the way the Supreme Court has basically stripped away any constitutional protection for economic liberties while waxing poetic about civil liberties, it's the way pretty much all of the professors and students seem to think this is perfectly sensible. [And please note that I'm not saying that I endorse this state of affairs -- I was one of those angry law students, actually. Just that it is what it is]

I realize this doesn't really answer Eric's question (hence the quotation marks above); it simply restates it: So why do so many people think that economic liberties are of lesser significance than civil liberties?. But it does so in a useful way, because I think there's a reasonably clear answer to the question when it's posed that way. The answer is: 1933.

I was thinking about this a few days ago when I read Ilya's recent posting about why he is worried about an Obama victory, in the course of which he quoted (approvingly) from UCSD law prof Michael Rappaport:

"Before the financial crisis, there was a realistic chance that electing Obama and a Democratic Congress would be Jimmy Carter in 1976 or Bill Clinton in 1992 — presidencies that soon led to Ronald Reagan and Newt Gingrich. But with the financial crisis, there is a much greater chance that electing Obama and the congressional Democrats will be like electing FDR in 1932. Obama could use the emergency to transform the country in a very bad way. And, given the crisis and Obama's political skills, it is quite possible that the country would reelect him, even if he does badly — which, after all, is what happened when FDR was reelected during the New Deal in 1936." (my emphasis)

What struck me about this was that, surely, most people would view the Obama = FDR analogy as a favorable one - Obama would like nothing more, obviously, than having people think he is the second coming of FDR. I am fairly certain that the vast majority of people in this country think FDR and the New Deal saved the U.S. from ruin, transformed the country in a fundamentally good way, and laid the groundwork for 75+ (we should be so lucky to get that +) years of unprecedented prosperity. Did it interfere with our economic liberties? Absolutely. Was it worth the cost? Most people -- unhesitatingly, I think -- would say it was.

Obviously, that doesn't make Ilya's view "wrong" -- but it is what it is, the view of the vast majority of people in this country.

[I'm not sure, to be candid, which camp I'm in, myself; I find Ilya's position very powerful, conceptually - but I also think FDR saved the country from ruin. Notice that it's not "inconsistent" to place economic liberties on a lower plane than civil liberties, any more than it is inconsistent to say French food is good and English food (even though they're both "food"). It just requires construction of a meaningful distinction between the two types of liberty - way beyond the scope of this conversation.]

But regardless of my own position on the matter, I think it's responsive to Eric's original question. It's not that people think the government might not "use fear to curtail economic liberties," it's that they don't care as much about economic liberties; they're more willing to tolerate error in the assessment of the crisis when the cost is a curtailment of economic, rather than civil, liberties.

And a final thought: Eric's put his finger on the very thing that made FDR's famous "we have nothing to fear but fear itself" line so fabulous: It's hard to argue that the government is fomenting fear to enhance it's own power when the president is not only asking everyone to be fear-less, but suggesting that fear-lessness is the key to solving the crisis.

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John McCain as Gandalf?

Victor Davis Hanson makes some reasonable points in his op ed urging conservatives not to "jump ship" on John McCain. On balance, I think McCain isn't nearly as good as Hanson claims, and Obama not quite as bad. Then again, I'm not a conservative, and so not the target audience for Hanson's column.

Be that as it may, I think Hanson's appeal goes a bit off the rails when he concludes by suggesting that supporting McCain is like "trust[ing] the grating harsh voice of Gandalf detailing the dangers of Saruman rather than the mellifluous charm of the latter who in soothing tones outlines his own victimhood." To paraphrase Lloyd Bentsen: I served with Gandalf in numerous D&D campaigns; I knew Gandalf from reading the Lord of the Rings umpteen times; Gandalf was a friend of mine. And John McCain is no Gandalf.

Related Posts (on one page):

  1. The Fate of Radagast the Brown:
  2. John McCain as Gandalf?
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Closed-End Funds and Panic Selling:

I posted a few days ago about the crazy action in closed-end mutual funds. At the end of the week, the action got even crazier. As of market close on Friday, the median closed-end fund was selling at slightly under a 30% discount to net asset value. In other words, investors could buy $100 worth of securities for just under 70 dollars.

This is simply extraordinary. In normal times, the average discount for a closed-end fund hovers around 5%. In bad times, it may go to 15%. Since the Great Depression, only in the early 80s has it gone above 20%, just before the great bull market that started in 1982.

To give you an example of the discounts that are out there, one single-state municipal bond fund closed at a net asset value of 11.21, with the last trade at $6.69, a 40% discount to net asset value. Earlier in the day, the fund sold for as low as $5.01, meaning that you could have bought $100 worth of underlying assets for less than $45. A few months ago, the fund was selling at a 10% premium to Net Asset Value. If such funds don't regress to something close to their historic mean discounts, investors will inevitably demand (with varying degrees of success) that the funds liquidate and distribute the proceeds to their shareholders--a fund selling at a 40% discount can return greater than 60% to shareholders by open-ending.

While municipal bond funds carry some risks that their underlying net asset value is misreported, and also some risk relating to the leverage they employ, even plain vanilla conservative stock funds are selling at historically high discounts of 25% or more. At least one fund that invests mainly in treasury bills and cash is selling at a close to 30% discount.

Unlikely other publicly traded securities, closed-end funds are primarily an investment vehicle of individual investors. Other such vehicles, such as master limited partnerships and Canadian energy trusts, are also getting absolutely hammered with little regard for fundamentals.

This all suggests to me that we are truly in a state of panic-selling, and, of course, that many closed-end funds are currently a bargain relative to purchasing the underlying securities. Panic-selling usually denotes the opposite of the buying frenzy at the end of a bubble market, that is, that a bear market is ending. But given the instability we have seen in the markets of late, I wouldn't bet the house on it.

UPDATE: CEF's that were trading at huge discounts Friday afternoon are almost universally up 10% or more with today's rally.

UPDATE AFTER MARKET CLOSE: Closed end funds soared today, as did the MLPs and energy trusts mentioned above. The single-state mutual fund I mentioned above was up 30% today.

Related Posts (on one page):

  1. Closed-End Funds Update:
  2. Closed-End Funds and Panic Selling:
  3. Crazy Action in Closed-End Mutual Funds:
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Exploiting Crises to Expand Government and Curtail Civil and Economic Liberties:

In a recent post, co-blogger Eric Posner writes that:

The specter of fear is everywhere, not just on Wall Street. And the scale of the government’s reaction is no less than what it was after 9/11—that is what probably scares ordinary people the most. Yet no one who believes that the government exploited fears after 9/11 to strengthen its security powers is now saying that the government is exploiting financial crisis fears in order to justify taking control of credit markets. No one who thinks that government would use fear to curtail civil liberties seems to think that government would use fear to curtail economic liberties. Why not?

Perhaps Eric means to say merely that very few people who criticized the Bush Administration's reaction to 9/11 are now concerned about the expansion of government power in the present economic crisis. But it isn't true that "no one" has. I myself have been critical of the Bush Administration's claims of virtually unlimited executive power in the aftermath of 9/11 (see, e.g., here). And I have also warned repeatedly that the present economic crisis presents dangerous opportunities for government power grabs that curtail economic liberties and benefit powerful interest groups at the expense of the general public (e.g. - here, here, and here). And my position is far from unique. Indeed, it is similar to that taken by most libertarian commentators. The median libertarian public intellectual is probably even more skeptical than I am about both post-9/11 security measures and the federal government's policies in the current crisis.

In both the 9/11 case and the present crisis, I don't think it is merely a case of government officials cynically manipulating fear to curtail freedom in ways they know to be unjustified. Rather, I think that they, like most of the rest of us, naturally believe that expanding their own power and influence is also in the public interest. Crisis situations give greater scope for this natural bias by inducing fear in the general public and diminishing skepticism about government power grabs. Therefore, crises often lead to enormous - in many cases excessive - expansions of government power. The risk is heightened by widespread political ignorance, which makes it difficult for the public to assess which "emergency" measures are genuinely necessary. See here for a discussion of how political ignorance helped pave the way for various harmful policies during the Great Depression.

Some emergency expansions of government power may be defensible. But healthy skepticism is warranted during both economic and national security crises. And not everyone has been remiss in applying it.

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Sunday, October 12, 2008

Fear Itself.

Many commentators have argued that the Bush administration’s response to 9/11 was driven by fear. They were never precise about what they meant, but a number of interpretations suggested themselves. (1) That members of the public panicked and demanded that the government “do something” regardless of whether a particular action was rational. (2) That members of Congress panicked and therefore acquiesced in actions by the executive that had dubious justifications. (3) That members of the executive branch panicked and adopted measures that bore no relationship to their goals. Various unpopular measures—detentions in Guantanamo Bay, harsh interrogation techniques, even the invasion of Iraq—were blamed on either a panicky government or (more commonly) a rational government taking advantage of the public’s irrational fears to expand executive power. The theory, never fully articulated or explained, seemed to be that the executive’s thirst for power could never be slaked; its goal to expand its authority infinitely could best be accomplished when the citizenry is frightened and unable to exercise its critical faculties and thus grateful for any evidence of government action, however implausible the case that it might accomplish something of value.

Many legal academics claimed that courts should serve as fire walls against the conflagration of fear. When the government locks someone up, the courts should realize that in many cases either government officials have panicked or are violating someone’s civil liberties merely to assure frightened citizens that something is being done. For that reason, courts should treat the government’s justifications with skepticism, and never ever trust the executive branch.

These arguments have not yet surfaced in the current crisis. The specter of fear is everywhere, not just on Wall Street. And the scale of the government’s reaction is no less than what it was after 9/11—that is what probably scares ordinary people the most. Yet no one who believes that the government exploited fears after 9/11 to strengthen its security powers is now saying that the government is exploiting financial crisis fears in order to justify taking control of credit markets. No one who thinks that government would use fear to curtail civil liberties seems to think that government would use fear to curtail economic liberties. Why not?

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Thousands of Felons on Florida Voter Rolls:

Under Florida law, individuals convicted of felonies lose their right to vote, at least temporarily. (Some felons are eligible to have their vote restored upon release from prison.) Yet while many felons in Florida are ineligible to vote, they remain on the rolls, according to the Sun-Sentinel.

More than 30,000 Florida felons who by law should have been stripped of their right to vote remain registered to cast ballots in this presidential battleground state, a Sun Sentinel investigation has found.

Many are faithful voters, with at least 4,900 turning out in past elections.

Another 5,600 are not likely to vote Nov. 4 — they're still in prison.

Of the felons who registered with a party, Democrats outnumber Republicans more than two to one.

Florida's elections chief, Secretary of State Kurt Browning, acknowledged his staff has failed to remove thousands of ineligible felons because of a shortage of workers and a crush of new registrations in this critical swing state.

Browning said he was not surprised by the newspaper's findings. "I'm kind of shocked that the number is as low as it is," he said.

Asked how many ineligible felons may be on Florida's rolls, Browning said, "We don't know."

Whether or not felony disenfranchisement is a good idea -- some would even argue that it is unconstitutional -- it seems problematic that thousands of legally ineligible voters remain on the rolls and that a not-insignificant portion of these voters appear to cast votes. Florida also seems to have a problem with double voting, particularly by seasonal residents. Let's hope the election results in Florida are not particularly close.

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Jews and Abortion:

My father tells me that he has quite a few Jewish friends in their 60s and 70s who tell him that they would vote for McCain over Obama but for the issue of abortion rights. This is a bit odd; obviously, few people in their 60s and 70s are concerned that they will have direct need for an abortion; the friends in question live in New York, which had legal abortion even before Roe v. Wade, and will continue to have it regardless of whether the Supreme Court further backtracks on Roe.

My father's experience is consistent with polling I've seen, and with my own anecdotal experiences. The polls show that some absurdly high percentage of Jews believe in strong abortion rights. And my anecdotal experience suggests that many Jews do consider opposition to abortion rights a dealbreaker for political candidates, elevating it about other considerations.

This is certainly not a question of Jewish tradition. Jewish law is not nearly as hostile to abortion as, say, Catholicism, but it is not exactly encouraged, either.

So why are Jews--even elderly Jews who live in states where abortion is protected by the political process--so concerned with the issue?

My guess is that they see abortion rights as a heuristic for "a (politically) secular society." They know that most political opposition to abortion rights comes from (Christian) religious sources, and so they associate such opposition with a mixing of religion and state, something that most American Jews are very much against.

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Overnight Stock Index Futures Up Sharply Early Sunday Evening.

Several times last week, overnight Dow Jones stock index futures were up 100-200 points, only to collapse the next day, when the US markets actually opened, finishing down substantially.

Tonight, Sunday evening, stock index futures are up sharply (all prices are from 6:00-6:49pm ET):

S&P 500 Index (SPZ8) 917.40 +26.40

Nasdaq 100 (NDZ8) 1314.25 +31.75

Dow Industrials (E) (ZDZ8) 8592 +222

E-Mini S&P Midcap (EWZ8) 558.30 +12.60

Russell 2000 (TOZ8) 530.70 +9.60

A chart version is here.

At 7:19pm ET, Australia's main index is up 5%, while the New Zealand market is up only slightly.

The move up may reflect happiness with the European financial plan announced earlier today.

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Palin Must Keep Private E-Mails:

An Alaska judge has issued an order requiring Gov. Palin to preserve e-mails from private e-mail accounts (including the one that was hacked) which she used to conduct state business.

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20 Reasons Why You’re Not Rich.

Over at the Street.com, Jeffrey Strain has added 10 more reasons why you’re not rich to a list he published last year. Here were the 10 original reasons:

1. You Care What Your Neighbors Think:

2. You Aren't Patient:

3. You Have Bad Habits:

4. You Have No Goals:

5. You Haven't Prepared:

6. You Try to Make a Quick Buck:

7. You Rely on Others to Take Care of Your Money:

8. You Invest in Things You Don't Understand:

9. You're Financially Afraid:

10. You Ignore Your Finances:

Here's Strain's new list:

Many people assume they aren't rich because they don't earn enough money. If I only earned a little more, I could save and invest better, they say. The problem with that theory is they were probably making exactly the same argument before their last several raises. Becoming a millionaire has less to do with how much you make, it's how you treat money in your daily life. . . .

Here are 10 more possible reasons you aren't rich:

1. You care what your car looks like:

2. You feel entitlement:

3. You lack diversification:

4. You started too late:

5. You don't do what you enjoy:

6. You don't like to learn:

7. You buy things you don't use:

8. You don't understand value:

9. Your house is too big:

10. You fail to take advantage of opportunities:

Read the original posts for the explanations of each point.

The question the articles answered was variously presented as why you're not rich and why you're not a millionaire. These are not the same question. If you have a million dollars in liquid assets at retirement, that would usually generate about $50,000 - $90,000 a year, enough to live comfortably in many areas of the country, but not enough to be rich. And if half of that million dollars is tied up in your house, then you can expect an income of about $25,000 - $45,000, which would generate a smaller income than the average working family.

To be a millionaire is a goal that many working families aspire to -- amd most do not reach -- but it is no longer enough to make one rich enough to own a median house in a fairly expensive city and an income stream in retirement significamtly larger than the median family income for working families.

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The Rise of the Machines:

A bit over-the-top, but Richard Dooling's essay in today's NY Times ("The Rise of the Machines") has some ring of truth to it, to my eyes. It blames the financial crisis, in effect, on computers -- or, more precisely, on the networked machine intelligence without which the complex financial instruments now unraveling before our eyes could not exist:

"As the current financial crisis spreads (like a computer virus) on the earth’s nervous system (the Internet), it’s worth asking if we have somehow managed to colossally outsmart ourselves using computers. After all, the Wall Street titans loved swaps and derivatives because they were totally unregulated by humans. That left nobody but the machines in charge. . . .It was easy enough for us humans to understand a stick or a dollar bill when it was backed by something tangible somewhere, but only computers can understand and derive a correlation structure from observed collateralized debt obligation tranche spreads. Which leads us to the next question: Just how much of the world’s financial stability now lies in the “hands” of computerized trading algorithms?"

There's something to it, I think. Nobody knows what to do about this crisis, at least in part because no one has the necessary information about the effects of small changes -- adding capital here, letting banks fail there -- in a complex interlocking network of financial instruments all linked to one another. I don't know if it's a case of the machines taking over (as Dooling suggests), but it's not like other crises we've seen before and will require some real innovative thinking to get it under control.

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Where are the Libertarians on Troopergate?

For obvious reasons, those on the left have seized on the Troopergate report as evidence of Gov. Palin’s shoddy tactics and unfitness to serve as Vice President. That’s entirely predictable. But how about the libertarians? You’d think that libertarians would be concerned about a charge that a state executive abused her executive power for personal gain – not financial gain, but to advance a personal agenda. Executive power unconstrained by law, to the libertarians, is the paramount threat to liberty – neither the legislative nor the judicial branches can accomplish anything without the state’s monopoly on the use of force, wielded by the executive.

I’ve now read the entire Troopergate report. It’s pretty petty stuff – significant only if you think that even small abuses of executive power are significant (as, I would think, many libertarians do). It’s pretty clear that Gov. Palin wanted Wooten fired, or at least demoted, and that she communicated that desire (and allowed her husband, using State resources (State computers, the Governor’s office, State telephones) to do so as well. I haven’t seen anything to contradict that, even from Palin’s spokespersons (see below). The question is whether she acted improperly in doing so.

As best I can make out, here are the defenses that have been offered for Palin’s conduct.

1. The investigation was politically motivated. (e.g., from the Palin campaign: “Today's report . . . illustrates what we've known all along: this was a partisan led inquiry run by Obama supporters”). That’s almost certainly correct; it’s hard to imagine an investigation of a candidate for national office in the final weeks of a campaign being free of political motives. But the motives of the investigators don’t effect the existence, or the meaning, of past events. That is, even if we assume that it’s a hatchet job, there are facts in the Report, and the facts say something, for themselves. So let’s assume the investigation was entirely politically motivated and move on to the more important question: was there, in fact, or was there not, an abuse of power?

2. Bill Dyer’s report at Townhall.org (to which Jonathan Adler pointed in his original posting here) claims that the Report is fatally flawed with a central inconsistency:

Here are the two key "findings" (from page 8 of the .pdf file; boldface mine): “Finding Number One For the reasons explained in section IV of this report, I find that Governor Sarah Palin abused her power by violating Alaska Statute 39.52.110(a) of the Alaska Executive Branch Ethics Act. Alaska Statute 39.52.110(a) provides The legislature reaffirms that each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust." Finding Number Two I find that, although Walt Monegan's refusal to fire Trooper Michael Wooten was not the sole reason he was fired by Governor Sarah Palin, it was likely a contributing factor to his termination as Commissioner of Public Safety. In spite of that, Governor Palin's firing of Commissioner Monegan was a proper and lawful exercise of her constitutional and statutory authority to hire and fire executive branch department heads.”

Here's a note to Mr. Branchflower, who clearly is verbose, but obviously none too keen a scholar of logic: Gov. Palin's so-called "firing" of Monegan (it wasn't a firing, it was a re-assignment to other government duties that he resigned rather than accept) can't simultaneously be a violation of the Ethics Act and "a proper and lawful exercise of her constitutional and statutory authority." This, gentle readers, is a 263-page piece of political circus that actually explicitly refutes itself on its single most key page!

That doesn’t really make any sense. It is perfectly logical to conclude, as the Report does, that (a) the re-assignment of Monegan was lawful and consistent with the Ethics Act, and (b) other conduct of Gov. Palin was not lawful and consistent with the Ethics Act. This is hardly an “explicit refutation” or some kind of inconsistency.

3. No money changed hands. This is the primary defense offered by Palin’s lawyers:

Every prior reported Ethics Act violation involved financial motives and financial ‘potential gain, or the avoidance of a potential loss.’ [citing cases] The common thread in all of these Ethics Act cases is money – and the use of a government position to personally gain. Here there is no accusation, no finding, and no facts that money or financial gain to the Governor was involved in the decision to replace Monegan.”

That’s an odd one – that Gov. Palin did not do anything to enrich herself seems like a hyper-technical defense to a charge of abuse of the public trust: “I didn’t line my pockets, I was just acting out a personal vendetta.” One would think that if any of the facts were incorrect, her lawyers would want to point that out, but they didn’t.

Also, while I’m no expert in Alaska Ethics law, this strikes me as a most peculiar reading of the Alaska Ethics Act, which provides:

“The legislature reaffirms that each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust.”

Just as a matter of elementary statutory construction, it’s pretty obvious, to me at least, that the statute cannot be construed to cover only financial matters, because such a construction renders the words “personal or” entirely superfluous, and we all know that interpretations of statutes making words superfluous are disfavored.

4. Wooten was a threat to public safety. Palin’s campaign press release again: “the Report illustrates [that] the Palins were completely justified in their concern regarding Trooper Wooten given his violent and rogue behavior.” That’s also an odd defense, and perhaps the most disturbing one of all – at least, disturbing to a libertarian. Let’s again assume it’s true – that Wooten was an unstable and potentially dangerous man, unfit to serve as a state trooper. There are procedures in place to remove such people from office; they had already been activated here, and had reached a conclusion with which Gov. Palin apparently disagreed (i.e., Wooten was not dismissed). So she and her husband are justified in putting additional pressure on those in a supervisory position to try to see to it that Wooten is removed from the force. I don’t know about you, but this makes me pretty nervous. That’s always the excuse for abuses of executive power: I had the public interest in view, and surely I can’t be burdened with complying with those niggling laws and procedures, which only get in the way of my doing my job. That’s a really disturbing philosophy for someone who might wield national executive power to hold.

5. It’s just her husband. Most of the factual allegations concern actions taken by Todd Palin, for which Gov. Palin should not be held responsible. This is probably the strongest defense on the facts – except for the fact that Todd Palin was given access to the governor’s office and personnel and computers and phones while he was engaged in this activity. Several of the meetings described in the Report took place in the governor’s office, with Todd and Monegan or some other State official being the only ones present. Either the governor knew that (bad) or didn’t (also bad).

So I’d be curious to know whether there are some outraged libertarians out there whose writings I haven’t seen pertaining to this affair (or if there are other defenses to Gov. Palin’s conduct that I haven’t summarized above and that more clearly excuse her conduct). [And a special request, if I may -- I'm sure that everyone will appreciate efforts to keep comments on-point and away from ad hominem attacks]

Related Posts (on one page):

  1. Where are the Libertarians on Troopergate?
  2. "Troopergate" Report Released:
181 Comments

Will Sixth Circuit Ohio Election Decision Be Overturned En Banc?

Yesterday's divided Sixth Circuit decision voiding the district court's TRO against Ohio Secretary of State Jennifer Brunner prompted a strongly worded dissent by Judge Griffin.

Defendant Ohio Secretary of State Jennifer Brunner's lack of concern for the integrity of the election process is astounding and deeply disturbing. Also troubling is the majority's rush to issue the present order in violation of the practices of our court. Although a petition for initial en banc hearing is pending and will be decided tomorrow by our active judges, Jude Moore along with visiting Judge Bright, have decided to ignore the en banc petition and issue their order. I respectfully dissent regarding the merits of their decision and object to the procedure.

In the normal course of review, we will grant a stay of a temporary restraining order only if the district court abuses its discretion. . . . Here, defendant Brunner has failed to demonstrate that the district judge abused his discretion, and, thus, the emergency motion for a stay should be denied.

The majority assumes, and I agree, that plaintiffs possess standing to bring this 42 U.S.C. § 1983 action alleging a violation of the Help America Vote Act (HAVA). . . . Defendant Brunner claims compliance with HAVA, but the district court found that the system as currently structured is unable to effectively identify the mismatches of potential voters to the county boards of elections. The court determined that the "Verification of voter registration information" required by HAVA was not executed because "there is no effective way for irregularities to be reviewed." Without implementation, there is no compliance. In order to remedy this violation, "Defendant represented that it could take two or three days of programming work before the State would have the ability to search for mismatches in the same way it has the ability to search other fields such as name, address, social security, date of birth, precinct number . . . ." The district court's TRO requiring defendant to take two or three days to make the identification system effective and in compliance with HAVA is certainly not an abuse of discretion.

Judge Griffin then attached of the opinion and order by District Court Judge George Smith.

Allegations of procedural irregularities on the Sixth Circuit are something we've heard before. An en banc ruling could issue as early as today. Stay tuned.

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Frank Rich Versus Reality:

Rich's column suggests that McCain-Palin's rhetoric is risking the assasination of Sen. Obama. His evidence:

"raucous and insistent cries of 'Treason!'" links to "a crowd member [that is, one crowd member] screamed "treason!" during an event on Tuesday after Sarah Palin accused Barack Obama of criticizing U.S. troops.

"raucous and insistent cries of ... 'terrorist' and 'kill him!'" links to a story in which one reporter claimed that one crowd member allegedly shouted kill him, likely referring to, if anyone, Bill Ayers, and also mentioning that "a male member of the crowd in Jacksonville, Florida, yelled 'treason!'"

"the uninhibited slinging of racial epithets,'" links to a story in which one member of one crowd slung a racial epithet at a cameraman.

So, of the hundreds of thousands of people who have attended McCain-Palin rallies, we have a grand total of four [update: Rich has one more equally tenuous link, so make that five] whose conduct is said to taint the campaigns. Heck, I can find four similarly unpleasant comments on a typical DailyKos thread.

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Sunday Song Lyric: NPR did a story on Dolly Parton's "Jolene" this week. It's a classic song (from the album of the same name) that's been covered by everyone from Olivia Newton John and Strawberry Switchblade to Sisters of Mercy and the White Stripes. There's not much to the lyrics, but they're fun nonetheless. Here's an edited taste:
Jolene (x4)
I'm begging of you please dont take my man
Jolene (x4)
Please dont take him just because you can
Your beauty is beyond compare
With flaming locks of auburn hair
With ivory skin and eyes of emerald green
Your smile is like a breath of spring
Your voice is soft like summer rain
And I cannot compete with you, Jolene
Of course, the Parton song should not be confused with this Jolene by Cake.
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