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Saturday, August 1, 2009

Idealism and Realism in International Law and Relations:

A brief note responding to a couple of comments on my post on Brad Roth's paper.

We have to distinguish here between "liberal" or, if one prefers, "progressive," on the one hand, and the "international law academy" in the US context, on the other. It is not that the international law academy is not "liberal" in the American sense; it is. But it is in a particular way. American liberal/progressive politics overall has long tended to a form of liberal internationalism that matched up with the internationalist values of the international law professoriat. (Liberal internationalism here means a belief that power politics in international relations should be, and will, be transcended by international institutions and international law. to borrow Fukuyama's useful characterization.)

For a long time it was assumed that this - and by extension, liberals including the academy - alone defined the 'idealist' position in international law and politics. Idealists (including the international law professors) to the left, realists to the right? Not precisely. Not all realists were 'right' - on the contrary, many realist IR professors broke that mold. But it could be said that with few exceptions, international law professors were all on the liberal-left, and that conservatives were generally realists.

But it turned out that conservatism and democratic sovereigntists were not all cold realists. Some of them - us - instead turned out to be animated by versions, and visions, of political idealism animating them. The strongest form, I suppose, being neoconservatism in its foreign policy mode, though that term has now largely lost much meaning. (Losing its meaning in part, as Fukuyama pointed out in his book on neocons, because neoconservatism in domestic policy was supremely realistic, in the sense of invoking the unintended consequences of well intended social policies and social engineering, and taking account of forward-looking incentives and disincentives on social behavior.)

I would count myself one such idealist in international law and relations - a believer, not in liberal internationalism, but instead in the sovereignty of liberal democratic states as the best order, not because it is sovereign, but because sovereign power serves as the vessel that best guarantees the security of liberal democracy. What makes that an idealist, rather than merely realist, position, is that it sees this as the best, rather than merely 'realistic' second best (ie, 'if only we could achieve liberal internationalism, but we can't, so ...' second best), position as a matter of political morality.

As the neocon vision of universal democracy remaking the irredentist Middle East unraveled in the Iraq war - as even conservative defenders were pushed back to realist defenses - a number of liberals re-discovered their realist side, buried with John Kennedy and Scoop Jackson. I have elsewhere called this the "new liberal realism" and think there is something of an ideological conflict within the Obama administration as between the new liberal realists (e.g., whatever you think of human rights in China, we're not going to go after our leading creditor and once-and-future financer of our national debt) and the traditional trasnationalists/liberal internationalists, exemplified by Harold Koh, where the position is roughly that international institutions and law should and will replace power politics in international affairs. I think the differences will get papered over by invocation of that kick-the-can down the road standby, "engagement." Engagement is an invocation of diplomatic ambiguity; it can artfully mean different things to different parties.

But 'engagement' is a policy you announce to the world, to the outside, and then can do whatever you like, or not, in the name of engaging. Inside the administration, in the struggles between ideological factions - I suppose I could be completely wrong, and everyone pretty much shares the same view, I have fielded no inside calls from Administration friends - I suspect the 'bridging' ideology is Whig history - the view that history follows a progressive trajectory. It has value in this context in allowing the sides to come together by saying that whatever they do today, it will be part of the long term historical trajectory toward liberal internationalism.

Among international law academics, there is far less division - there is not much of a realist wing, a power wing, for international law academics to contend with inside the legal academy itself, nor is there much of an "alternative" sovereigntist position based in democratic sovereignty idealism - although in each case, realism and idealism, more than there used to be. (I'll try to add some links later.)

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Hoover Senior Fellow Scott Atlas on Why American Health Care

is not as bad as you might have thought and, as it happens, has important advantages. (I ran across this in the latest Hoover Digest, and then found it had been making the rounds.) Dr. Atlas is also head of the neuroradiology department at Stanford Medical School. (Full disclosure: I'm also affiliated with Hoover). Dr. Atlas walks through a list of ten:

1. Americans have better survival rates than Europeans for common cancers. Breast cancer mortality is 52 percent higher in Germany than in the United States and 88 percent higher in the United Kingdom. Prostate cancer mortality is 604 percent higher in the United Kingdom and 457 percent higher in Norway. The mortality rate for colorectal cancer among British men and women is about 40 percent higher.

2. Americans have lower cancer mortality rates than Canadians. Breast cancer mortality in Canada is 9 percent higher than in the United States, prostate cancer is 184 percent higher, and colon cancer among men is about 10 percent higher.

3. Americans have better access to treatment for chronic diseases than patients in other developed countries. Some 56 percent of Americans who could benefit from statin drugs, which reduce cholesterol and protect against heart disease, are taking them. By comparison, of those patients who could benefit from these drugs, only 36 percent of the Dutch, 29 percent of the Swiss, 26 percent of Germans, 23 percent of Britons, and 17 percent of Italians receive them.

4. Americans have better access to preventive cancer screening than Canadians. Take the proportion of the appropriate-age population groups who have received recommended tests for breast, cervical, prostate, and colon cancer:

Nine out of ten middle-aged American women (89 percent) have had a mammogram, compared to fewer than three-fourths of Canadians (72 percent).

Nearly all American women (96 percent) have had a Pap smear, compared to fewer than 90 percent of Canadians.

More than half of American men (54 percent) have had a prostatespecific antigen (PSA) test, compared to fewer than one in six Canadians (16 percent).

Nearly one-third of Americans (30 percent) have had a colonoscopy, compared with fewer than one in twenty Canadians (5 percent). 5. Lower-income Americans are in better health than comparable Canadians. Twice as many American seniors with below-median incomes self-report “excellent” health (11.7 percent) compared to Canadian seniors (5.8 percent). Conversely, white, young Canadian adults with below-median incomes are 20 percent more likely than lower-income Americans to describe their health as “fair or poor.”

6. Americans spend less time waiting for care than patients in Canada and the United Kingdom. Canadian and British patients wait about twice as long—sometimes more than a year—to see a specialist, have elective surgery such as hip replacements, or get radiation treatment for cancer. All told, 827,429 people are waiting for some type of procedure in Canada. In Britain, nearly 1.8 million people are waiting for a hospital admission or outpatient treatment.

7. People in countries with more government control of health care are highly dissatisfied and believe reform is needed. More than 70 percent of German, Canadian, Australian, New Zealand, and British adults say their health system needs either “fundamental change” or “complete rebuilding.”

8. Americans are more satisfied with the care they receive than Canadians. When asked about their own health care instead of the “health care system,” more than half of Americans (51.3 percent) are very satisfied with their health care services, compared with only 41.5 percent of Canadians; a lower proportion of Americans are dissatisfied (6.8 percent) than Canadians (8.5 percent).

9. Americans have better access to important new technologies such as medical imaging than do patients in Canada or Britain. An overwhelming majority of leading American physicians identify computerized tomography (CT) and magnetic resonance imaging (MRI) as the most important medical innovations for improving patient care during the previous decade—even as economists and policy makers unfamiliar with actual medical practice decry these techniques as wasteful. The United States has thirty-four CT scanners per million Americans, compared to twelve in Canada and eight in Britain. The United States has almost twenty-seven MRI machines per million people compared to about six per million in Canada and Britain.

10. Americans are responsible for the vast majority of all health care innovations. The top five U.S. hospitals conduct more clinical trials than all the hospitals in any other developed country. Since the mid- 1970s, the Nobel Prize in medicine or physiology has gone to U.S. residents more often than recipients from all other countries combined. In only five of the past thirty-four years did a scientist living in the United States not win or share in the prize. Most important recent medical innovations were developed in the United States.

Despite serious challenges, such as escalating costs and care for the uninsured, the U.S. health care system compares favorably to those in other developed countries.

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Brad Roth on Ruthlessness in International Law and Politics:

Brad Roth, an old friend and law and political science professor at Wayne State University, delivers a heck of a punch with his new paper, set to appear in Santa Clara Journal of International Law (2009), but up in draft at SSRN, "Coming to Terms with Ruthlessness: Sovereign Equality, Global Pluralism, and the Limits of International Justice."

This article pulls no punches and must have caused a stir among the genteel precincts of academic international law when it was presented at the Santa Clara conference and, I believe, at the American Society of International Law meeting this past spring. (If you have trouble seeing what the fuss might be about, please just take my word for it, Brad's is not the general view within this academic subspeciality, and for purposes of this post, doesn't require comment.)

I tried to say something similar in an essay this year in the European Journal of International Law (sub req'd), but I can't say I said it with as much clarity and vigor as this extract from the article (emphasis added and footnotes deleted):

International law represents – not exclusively, to be sure, but vitally – an accommodation among entities prone to conflict rooted, not only in competing interests, but also in systematic and profound disagreement about justice. Political conflict’s much-lamented intractability is largely owing to its moral component; contestants are least willing to back down from positions taken as a matter of principle. Although human beings rarely disagree about the most fundamental moral principles in the abstract (e.g., “murder is wrong”), they all too frequently disagree about the application of those moral principles to unmediated struggles over the terms of public order (e.g., “one person’s terrorist is another’s freedom fighter”). While the specific configurations of contemporary international conflict can be ascribed to historical contingencies of the “Westphalian” state system, the animating tendency toward moral disagreement is endemic to the human condition.

In the absence of commonalities of substantive moral principle, participants in the international community need to find common ground on a different plane. The imperative to honor agreements – and other forms of accommodation on which others are led to rely – is not reducible to a pragmatic concern of the “repeat player” to maintain a reputation that will enable her to obtain cooperation on subsequent “plays,” but is a duty, owed to the community, to maintain an expectation of compliance with established institutions. Moreover, “honor” itself is not without moral significance, as it reflects integrity and respect for the other. One honors agreements made with the unjust, mostly because it is irresponsible to do otherwise when morally important interests depend on maintaining one’s own and others’ ability to trade on the convention of agreement in similar future contexts, but also because treachery, even when employed against actors who are themselves immoral, incurs a moral taint. The point is not that considerations of extraordinary injustice, even unilaterally conceived, may never override the duty to honor one’s formal commitments. It is that positive obligations may be morally binding even where they demand forbearance from the single-minded pursuit of one’s unilateral moral ends. Whatever the exceptions, they do not swallow the rule.

Thus, however paradoxical it may seem, restraint on the pursuit of justice is not only central to the mission of existing international law, but also central to any sound theory of international political morality that pertains to the development of international legal institutions. Unilateral impositions, deriving from a particular, empowered conception of universal morality, are more likely to be the problem than the solution. What Prosper Weil stated a quarter-century ago remains valid today:

"At a time when international society needs more than ever a normative order capable of ensuring the peaceful coexistence, and cooperation in diversity, of equal and equally sovereign entities, the waning of voluntarism in favor of the ascendancy of some, neutrality in favor of ideology, positivity in favor of ill-defined values might well destabilize the whole international normative system and turn it into an instrument that can no longer serve its purpose."

Interestingly, among human rights-oriented scholars, this argument has considerable (though by no means universal) appeal as applied to unilateral threats and uses of force, and perhaps even to unilateral coercive economic measures such as secondary boycotts. Yet some of the same scholars who embrace restraints on those categories of exertions by individual states or coalitions of the willing” appear to see national courts’ exercises of extraordinary extraterritorial jurisdiction, nullifications of the immunity of foreign officials, and creative circumventions of nullum crimen sine lege as not only exempt from the pitfalls of such unilateral executive measures, but actually as a peace-building and law-developing alternative to such executive measures.

This is a fundamental mistake. Extraterritorial prosecution of foreign-state actors and forcible impositions upon foreign political communities are both conceptually and practically intertwined. Because the legal limitations on the two derive from the same jurisprudential concept, the likely consequence of the loosening of constraints in the former realm will be the erosion of constraints in the latter.

International legal constraints on the use of force are predicated not on a principle of non- violence, but on a principle of respect for a foreign state’s authority within its boundaries. To put the point colorfully, but without substantive exaggeration, the right against coercive intervention is the right of territorial political communities to be ruled by their own thugs and to fight their civil wars in peace. It reflects a pluralism that self-consciously sacrifices one set of genuine moral imperatives to another. It favors the creation and maintenance of a stable platform for peaceful and respectful accommodation among territorial political communities – which may be ruled, for the time being, by governments bearing incompatible conceptions of political morality – over licensing unilateral projections of power across borders in service of what might objectively be a just cause.

Although considerations of human rights may ground episodic exceptions to the non-intervention norm, human rights do not constitute a general qualification of the norm; rather, a state’s right against dictatorial interferences in its internal affairs presumptively withstands the state’s own violations of international legal norms, including human rights norms. To the extent that extraterritorial jurisdiction licenses the vilification of foreign state officials, it has the potential to undermine the platform that undergirds peaceful and respectful international relations. International efforts to secure the bases of human well-being routinely require the cooperation of political leaders to whom significant human rights violations can be attributed. Even recourse to force, both international and internal, must often be directed toward creating the conditions for a compromise that will respect the honor of the opposing party, notwithstanding the opponent’s ruthless acts. Moreover, where ruthless acts have been committed with substantial popular support, particular leaders cannot be singled out for vilification without impugning underlying constituencies, thereby further complicating efforts to establish cooperation going forward. These are morally important reasons to forbear from the pursuit of retributive justice across borders, even though countervailing considerations may outweigh them in a limited set of circumstances.

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Allison Hayward on Citizens United:

I can vouch that Allison is a far better law professor than violin player.

The amicus brief filed by Allison and several other professors (both law and political science) is here.

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Puffins:

Who wouldn't like a blog post about puffins?

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Organic Food Still Ain't All That:

A review of existing research on the purported health benefits of organic foods confirms that organic food is no better for you than "conventional" food. From Reuters:

Researchers from the London School of Hygiene & Tropical Medicine said consumers were paying higher prices for organic food because of its perceived health benefits, creating a global organic market worth an estimated $48 billion in 2007.

A systematic review of 162 scientific papers published in the scientific literature over the last 50 years, however, found there was no significant difference.

"A small number of differences in nutrient content were found to exist between organically and conventionally produced foodstuffs, but these are unlikely to be of any public health relevance," said Alan Dangour, one of the report's authors.

"Our review indicates that there is currently no evidence to support the selection of organically over conventionally produced foods on the basis of nutritional superiority."

The study was published in the American Journal of Clinical Nutrition. The abstract is here.

This finding is no surprise. As I posted years ago, the organic food industry has never had any scientific evidence to support the widespread belief that eating organic is better for you.

It's also doubtful that organic farming has any clear environmental benefits over conventional agriculture. A major 2002 study (which I noted at the time), suggested that organic agriculture could be less energy-intensive, but some dispute this claim. State-of-the-art conventional techniques are far more energy efficient than they used to be. In other respects, organic agriculture appears to be environmentally inferior to conventional farming techniques. In particular, organic agriculture tends to be less productive than contemporary conventional farming, yielding less per acre. For those of us concerned about protecting species habitat and reducing agriculture's "footprint," this is a big deal.

But is organic food better in some other way? After all, haven't you ever had a meal featuring local, organically grown produce that was over the top? I sure have. But I doubt that the organic nature of production is the relevant variable. Rather, fresh, locally-grown produce will often taste fresher because it is fresher. Having grown up in Philadelphia, I can tell you that nothing beats some of the fresh produce we could buy along the roadside in south Jersey. Nothing — and I mean nothing — beats a fresh south Jersey tomato — [Okay, I really meant "no tomato"] but this is true whether or not organic techniques are used.

So, as I've said before (and will probably say again), eat organics if you want, but don't think you're doing yourself or the planet any favors. To the contrary, there are many good reasons not to be a food elitist.

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Blogging Hiatus:

I have not blogged recently, and will not for some time because a close relative (my grandmother) is terminally ill, and I must go to Boston to be with her and my family. I will return to VC posting when it is appropriate to do so. Until then, I appreciate the readers' understanding, and I know that my co-bloggers will provide plenty of interesting material in the meantime.


Friday, July 31, 2009

Pollak on Human Rights Watch:

I just noticed this piece in yesterday's Wall Street Journal by Noah Pollak, discussing HRW's bias against Israel.

Pollak is actually too soft on HRW. He focuses on one aspect of the problem, that HRW gives wildly disproportionate attention to what it considers Israeli violations of human rights. (In addition to the examples Pollack provides, consider that HRW's top Mideast official recently gave a speech on human rights problems in the Middle East, in which she devoted approximately twenty-five times as much attention to Israel as to Hamas and Hezbollah combined, and more attention to Israel than to the entire Arab world).

But he neglects another aspects of the problem, that HRW's reports on Israel are frequently either inaccurate, or based on information from eyewitnesses that can't be verified. And even when HRW is proven wrong about Israel, it absolutely refuses to apologize or retract, although it has done so when it's come under criticism from pro-Palestinian sources.

Is it really possible that HRW has NEVER made an error in its many reports and releases on Israel? Well, no it's not, especially because NGO Monitor, CAMERA, and others including Professor Avi Bell have pointed out such errors. Unfortunately, given that HRW director Ken Roth dismisses such critiques as "lies and deception" and HRW Middle East Director Sarah Leah Whitson says they amount to "griping and whining," it's not terribly surprising that they ignore them.

Over at the Opinio Juris blog, HRW fan/apologist Kevin Jon Heller pointed to this Jerusalem Post article, reporting that HRW's expert investigator of an incident in Gaza "conceded for the first time since the incident that [HRW] could not contradict the IDF's exonerating findings" and that the investigator "praised the IDF's professional investigation into the blast."

Heller takes this as evidence that HRW is indeed willing to apologize/recant/retract when it's wrong about Israel. But oops, this information never made it on to HRW's website, nor was there any other official correction or clarification. Quite the contrary, ten days after the Jerusalem Post piece appeared, HRW reasserted its original accusation, and alleged that Israel's investigation, praised by its own researcher, "betray[ed] a lack of interest in arriving at the truth of what happened." So HRW's leaders will contradict their own researchers' conclusions--at least when it makes Israel look bad. Though challenged, Heller has yet to come up with another, legitimate example of HRW officially responded to legitimate criticisms from pro-Israel sources the way it responded to (somewhat dubious) criticism from extremist anti-Israel critics.

UPDATE: Heller has now found an example of HRW correcting errors about Israel, though, as we shall see, it doesn't remotely count as "HRW officially respond[ing] to legitimate criticisms from pro-Israel sources the way it responded to (somewhat dubious) criticism from extremist anti-Israel critics.

Over a year after the Second Lebanon War ended, when no one was paying attention any longer, HRW issued a new report in which it corrected what it calls two major errors an earlier report, "Fatal Strikes," written in August 2006.

I checked up on one of the errors/corrections: HRW writes that "further Human Rights Watch investigations into a deadly strike at Srifa established that an Israeli attack there killed 17 combatants and five civilians on July 19, not the 26 civilians claimed in Fatal Strikes."

One odd thing about this is that various critics, including me, pointed out at the time that HRW's initial report on Srifa contradicted both published reports and common sense. Ms. Whitson nevertheless vociferously defended HRW's conclusion at the time, and indeed snidely attacked one of HRW's critics, Prof. Avi Bell. (Has she apologized to Prof. Bell? Don't hold your breath.) Whitson, indeed, seemed willing to stake HRW's credibility on the Srifa report. Prof. Bell replied that HRW was either incompetent or engaging in fabrication. He was right!

Even stranger, and contrary to its practice when it "clarified" criticism of Hamas, HRW has failed to otherwise update its website to reflect its correction. Thus, HRW's website still has the Fatal Strikes report up, and it still claims that Israel killed twenty-six civilians:

Killing of an Estimated Twenty-six Civilians in Srifa, July 19

Following the July 13 attack on Srifa village that killed four members of a Brazilian-Lebanese family (see above), Israeli warplanes and Apache helicopters continued to bomb the village and the surrounding fields, putting the villagers into a state of panic. A villager who had fled from Srifa explained how the heavy Israeli bombardment effectively trapped people inside the village, and how the village Sheikh had ordered the terrified civilians to seek refuge in the wealthier "Moscow" neighborhood of the village, where the multiple-story homes had concrete basements that offered greater protection: [Click to continue reading]

So, I'll acknowledge that HRW did, in fact, issued corrections regarding Israel--long after the relevant controversy faded from public consciousness, after vociferously defending its original report while attacking its critics (who turned out to be correct) in harsh, obnoxious terms, and without correcting the original charges on its website (the latter of which explains, along with the fact that it's not on HRW's "Corrections" page, why, contrary to Kevin's snarkiness, I was unaware of the correction). Oh, and Ms. Whitson still seems to assert that HRW has never gone wrong reporting on Israel by relying on local eyewitnesss, and Roth, of course, still dismisses all criticism of HRW emanating from pro-Israel sources as "lies and deception."

Forgive me if this fails to meaningfully change my opinion of HRW.


Pennsylvania Ban on Corporate Names Containing "Blasphemy, Profane Cursing or Swearing or [Words] That Profane the Lord's Name":

That's in 15 Penn. Stats. § 1303. In October 2007, the Pennsylvania Department of State in October 2007 told George Kalman that he can't get a corporate Certificate of Organization for a company called "I Choose Hell Productions, LLC." Kalman is now suing to invalidate that restrictions on Establishment Clause and Free Speech Clause grounds. Some quick thoughts:

Free Speech Clause: The restriction doesn't generally bar Kalman from saying what he wants, or even using "I Choose Hell" to describe his business in advertising — it affects only the formal corporate name of the business. On the other hand, it would affect Kalman's ability to express himself the way he wants in some business transactions (those that require the use of the official name). Plus, even though the grant of corporate charters is a government-provided benefit, it may be unconstitutional for the government to restrict this benefit in a viewpoint-based way; and the restrictions seems viewpoint-based, because what constitutes blasphemy or profaning the Lord's name likely turns on the viewpoint: "Save Your Souls From Hell Ministries" would presumably not be blasphemous, while "I Choose Hell" might be.

Establishment Clause: The restriction probably violates the Establishment Clause, on the grounds that banning blasphemy (1) requires entanglement of government and religion (in figuring out what constitutes blasphemy), (2) has the primary purpose or effect of advancing religion by restricting expression that is in some measure hostile or insulting to religion, and (3) in any event involves a denominational preference in favor of religions that recognize "the Lord."

By the way, "[i]n his complaint, Kalman claims that he chose the name 'I Choose Hell Productions, LLC' for philosophical reasons central to the expression of his films, namely his belief that suicide is a lesser alternative to struggling through difficult times: 'even if life is 'hell,' it is better to choose hell than suicide.'"

I learned of the case through the unpublished opinion in Kalman v. Cortes, 2009 WL 2256477 (E.D. Pa. July 28), but that opinion itself deals only with a venue question, not the substantive constitutional issue.

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Risk Taking:

As I've mentioned in some earlier posts, I've been doing a read of literature on the crisis, books coming out now - but at my kid's last swim meet, I took along instead Michael Lewis's Liar's Poker. That book, from the 1980s, holds up better than just about anything from that period. He does a better job of explaining the incentives and disincentives of the secondary tier players inside institutions better than anything else I've read. There's astonishingly little in that book that isn't still relevant today - partly because today's crisis is a credit crisis, and he was describing bond trading in the 80s, when it underwent a revolution that reformed corporate finance. In some sense, we are living out today the revolution of credit of the 1980s.

One section of that book that seems especially prescient to me - and is not really about finance directly - is his discussion of the how being a successful trader requires incredible fast, raw intelligence to make snap decisions about risk - but also a short attention span. This was all written before the internet, blogging, tweeting, all this stuff of instant novelty (as XKCD puts it in a slightly different sense, "constant novelty saps my initiative"). He describes Mike Millken - accurately, from everything I have read - as being the rare person who combined both instant raw trading abilities with the ability to formulate and pursue a long term strategy about an industry and a company and a market, rather than simply reacting with the next trade. These are really different skills in business, and everything else, and I wonder if the nature of incentives in the overall human capital markets are not favoring trader skills over institution builder skills ... many of the finance people I know don't understand deep-down what I even mean by institution building skills and don't value it, except insofar as they are able to ... trade it. Instantly.

One of these days I want to recount a conversation I had recently with a bunch of military officers, and their questions about risk taking in their profession and risk taking on Wall Street. I need to explain this in much more detail, and don't have time now - but the conversation caused me to rethink the basic psychology of those students I've known going to Wall Street in the last few years. I used to think they were risk takers. I no longer do. The military guys were frequently people who would describe themselves as risk-takers, trained as officers to control and channel the impulse, to the point that many of them would not seem, as personalities, as "risk takers" - quite the contrary: but as one of them said, when you have to make command decisions about lives and kinetic energy, what seems to be a cautious personality is actually something really different, risk by definition.

Whereas my students going to Wall Street in the last few years - I don't now think they were risk takers. Not one of them has ever opted for a corporate track - too risky, in fact, too many years invested for a middle tier payoff and a constricting career track. Wall Street, from the standpoint of the individual involved, is safer - it's where your friends are, for one thing, and the payoffs are greater and shorter term. And that's so even if you are betting huge amounts of money - it's other people's money - and if the payment structure pays you upfront, then no problem. Really, really different from the incentives and personalities of the military officers I had this conversation with, leading men in fields of fire and making decisions just as snap about the uses of deadly force. (This was originally an update to the earlier post on bonuses, but I thought it made better sense as its own post.)

Special Bleg: Related to this discussion, I am working on something that addresses differences in the conception of strategy and tactics in war versus how strategy is conceived on Wall Street and, as one of the commenters notes below, in various games. I would be grateful if in the comments you could point me to clear, basic expositions - of the kind that might appear in a current military academy introductory chapter on strategy - of strategy and tactics, and the difference and why it matters. Not classics like Clausewitz, Hart, etc., which I already have, but current literature.

Second, can you point me to something that explains why and how, when I go back to basic game theory, it does not seem to distinguish the two, strategy from tactics. I recall something from one of the couple of GT classes I took in school that said that the distinction is relevant to the playing of certain kinds of games, but not to the general theory of games - can anyone point me to that kind of discussion? Do I remember this correctly from my long ago classes?

Finally, I want to follow up on one of the commenters about short and long term in games like poker - long term in war often means a strategy that looks long term, but especially looks beyond purely serial thinking, one event, one encounter, one round, one engagement followed by another; what we describe in war as a strategic victory contemplates not just long term thinking, but thinking that is more than iterated engagements. I don't really understand poker, but does poker really engage in that kind of strategizing? The kind of war strategy that contemplates, for example, the strategic gambit of losing every tactical engagement in order to draw the enemy in to the place where he can be enveloped? Do games like poker have such strategic concepts, or does the serial nature of the game preclude them?

Update: I am putting in SK's comment from when this part of the bonus post up here - very important distinction, and I agree, but don't have time to flesh out now where this and how it arose in that conversation. I'll try to get back to it..

This would be a very interesting discussion. My experience with military officers is that they are not risk takers (by personality)-rather, they are extremely 'corporate' and methodical. In essence, they are part of a big, dangerous machine, and their job is to make that machine run well. Effectively, they are engineers in a dangerous business.

The follow up to that is; What does 'risk' mean? If it means 'impulsive,' then my opinion stands. Military officers really are not risk takers (with a few exceptions: the Pattons of the world). If it means 'willing to do work that is more dangerous than most,' even if that work itself is, in many ways, mundane (i.e. building roads, filing paperwork, making powerpoint slides, managing a hospital or feeding facility etc etc-the overwhelming majority of military officers are not directly involved in, or even involved in planning for, shooting), then, of course, military officers are 'risk takers' -they build roads and run hospitals in situations where they might be shot or blown up.

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Bankers' Bonuses:

Is the problem that they are too high? The Washington Post reports today on anger in Congress and elsewhere at the size of bankers' bonuses. NY AG Andrew Cuomo's office released a report yesterday with the unsubtle title, "No Rhyme or Reason: The 'Heads I Win, Tails You Lose' Bank Bonus Culture.". According the Post's account:

Cuomo's investigation into pay practices at Wall Street's largest firms found that nearly 4,800 executives and other employees were each awarded at least $1 million. Of those, more than 900 worked for Bank of America and Citigroup, which have been among the largest recipients of government bailout funds.

This latest report about Wall Street bonuses turned up the heat on lawmakers and regulators, who have been weighing how to rein in compensation practices that banking executives themselves admit contributed to the worst financial crisis in decades. The House is set to vote Friday on legislation that would give regulators authority to prohibit pay practices that they deem inappropriate and grant shareholders the right to cast non-binding votes on executive compensation.

Rep. Edolphus Townes, chair of the House Oversight and Government Reform Committee, announced hearings, and added, summing up pretty well the sense of outrage:

"A few months ago, they were facing bankruptcy. Then, after being bailed out, they're giving huge bonuses," Towns said. "I think the American people need some answers. With the economy being the way it is, and people suffering . . . how do you still do that?"

Are we headed to a system of government setting compensation limits for executives in banking and elsewhere? He who pays the piper, etc. If government and the taxpayer are going to be stuck holding the bill moral hazard when things go bad, then it is hard not think something like this. The ultimate insurers ought to be able to lower their costs if the taxpayers are essentially employing people. But the fundamental problems aren't the cost of bankers - the fundamental issues are aligning incentives, how efficiently bankers allocate capital and credit (including limiting it and leverage) and their incentives to get it right, and the efficient levels of risk. The article goes on to quote some very smart people on the underlying incentives problems - I particularly recommend Harvard Law professor Lucian Bebchuk's papers on the compensation problems. Bebchuk is quoted in the article:

"The details of design in many cases still fall short of what is necessary," said Lucian Bebchuk, a Harvard law professor who has met with Obama administration officials to discuss pay principles. "There is substantial distance we need to go before we have effective tying of pay with long-term results."

My general impression of the economics literature pre-crisis is that it tended to simplify and abstract away from the actual workings of institutions and agents on the inside. I think that has also been true of corporate finance law literature, as we have tended to assume that efficiency in markets takes care of itself, and forces efficiency within institutions. We are about to see a flood of literature taking account of "secondary" actors within financial institutions - and much of it, like Professor Bebchuk's work, is likely to come from corporate finance legal scholars, who often have a better idea of how institutions work. For example, see this piece by Steven Schwarcz, downloadable at SSRN, on secondary tiers of managers and their incentives within financial institutions. The read this Wired piece by Felix Salmon, with this note on secondary management failures:

Bankers should have noted that very small changes in their underlying assumptions could result in very large changes in the correlation number. They also should have noticed that the results they were seeing were much less volatile than they should have been—which implied that the risk was being moved elsewhere. Where had the risk gone?

They didn't know, or didn't ask. One reason was that the outputs came from "black box" computer models and were hard to subject to a commonsense smell test. Another was that the quants, who should have been more aware of the copula's weaknesses, weren't the ones making the big asset-allocation decisions. Their managers, who made the actual calls, lacked the math skills to understand what the models were doing or how they worked. They could, however, understand something as simple as a single correlation number. That was the problem.

(In a later post, I want to take up something at a more abstract level, something for which Lucian Bebchuk's papers have been illuminating for me, along with the writings of Duke Law School's Deborah DeMott - the need to re-enshrine "agency" as a body of finance law, and the need for economists to find ways to absorb it into their assumptions and their models, and not merely as a weird, special case of contract.)

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"Sotomayor, Gates and Race":

A very interesting column by the National Journal's Stuart Taylor, whose work I have long much admired.

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Where To Prosecute Interstate Obscenity Distribution?

That's a very important question in obscenity law, given both the realities that different juries apply vague terms differently, and the specific legal mandate to apply "contemporary community standards." It's well-settled that it's constitutionally permissible to prosecute someone who sends alleged obscenity from New Jersey to Montana in either place. But it appears that the Obama Administration is exercising its prosecutorial discretion to shift more to prosecutions in the sender's location rather than the recipient's, at least when the mailing was part of a deliberate sting and the recipient was a government agent. Josh Gerstein (Politico) has more.

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Bleg: Cheap or Free Access to Master Swap Agreement & Related Documentation:

Up until fairly recently, I had full access though some consulting work to ISDA and all the swap master agreements, documentation, etc., etc., available on the ISDA site. I don't anymore, and when I asked our library to get it for me, they (rightly) pointed out that what I seemed to have in mind would cost tens of thousands of dollars. So I am thrown back upon public resources, and I'm embarrassed to say that now that I'm on my own sources, I can't figure out where to find this stuff. Dear readers, where would I go to find open source, free, or cheap copies of the Master Swap Agreement and all the related documentation? Ideally with some way to get to the discussions and debates over modifications, side agreements, etc. But even just to get updated copies of the contracts. Thanks.

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No "Person(s) Posed in an Immodest or Sensuous Manner" on Alcohol Ads:

That's the rule in Alabama, and it's apparently being enforced against a wine that bears this label:

Seems pretty clearly unconstitutional; though commercial advertising (which would include product labels) is less protected by the First Amendment than most other speech, it generally can't be restricted on the grounds that it's offensive. Nor do I see any reason why nudity would be any different. Such depictions of nudity are generally constitutionally protected (see Erznoznik v. City of Jacksonville), and would presumably be no less protected on commercial advertising.

It's possible that some material that is constitutionally protected against obscenity prosecutions might still be so sexually explicit that it can't be displayed where unwilling viewers — and especially children — might see it. But I doubt that the picture above would qualify as "so sexually explicit," especially given Erznoznik's holding that mere nudity can't be restricted on such grounds. And in any case I see no constitutionally sufficient justification for banning such material on offensive grounds on alcohol advertising but not on other forms of advertising.

Thanks to Graham Simms and Dr. Vino for the pointer.

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Derivatives on Exchanges:

One reform to financial market regulation that has been widely (though not universally) endorsed is putting credit derivatives onto organized clearing exchanges. It is, for example, an important part of the Treasury White Paper on financial regulation reform. The WSJ ran a story yesterday, "Derivatives Plan Is Expected" (Thursday, July 30, 2009, C7) on where the plan currently stands with regulators and Congress.

The derivatives proposals coming to Congress (one of these days) are mixed up among several issues (note: a useful site to keep track of government regulatory efforts is the Treasury site FinancialStability.gov): One, how to regulate derivatives - what kinds and in what ways, and should certain instruments be banned or, if permitted, require different capital and leverage and margin rules. The WSJ article focuses entirely on credit default swaps (CDS). I don't disagree with the issues raised about CDSs, but think that the problems created by derivatives are as much or more on the leveraging of securitizations - in other words, the CDOs and similar instruments ratcheting up the leverage on securitizations, rather than CDS. The answer to CDOs and similar instruments might be less regulation of the instruments than simply limits on leverage, however arbitrary and clumsy that might be - sometimes second best solutions are better than the alternatives.

With respect to CDSs, the regulatory proposal is currently, first, to create standardized contracts that are traded and cleared on centralized exchanges, thus addressing the considerable problem of undisclosed counterparty risk as well as facilitating valuation via standardized contracts and presumably creating standards for margin and leverage. If parties wanted to go with customized, non-standard, off-exchange contracts, they would be subject to capital and margin requirements on these contracts (and perhaps disclosure to regulators of counterparties, so that someone would presumably be aware of the possible counterparty risks). These seem to me sensible regulatory changes.

More controversial is whether so-called "naked" CDSs should be banned. These are CDSs entered into by parties not for purposes of identified hedging - in other words, not using CDSs for one's own risk-hedging as insurance. This seems quite off to me - the "speculators," if one wants to call them that, provide liquidity and an important specialized information function. The Journal article remarks that there is concern among regulators that naked CDSs were being used to manipulate markets, but I am unsure as to what precise phenomenon the article means. I assume this is a reference to the "empty creditor" problem, but in that case the regulatory proposals, whether to ban them altogether or ban non-hedgers or non-market-makers, don't make very much sense to me, unless I am missing something major.

The problem of "empty creditor" is that a "creditor" of an enterprise has nothing at risk, having offloaded it by purchasing a CDS as insurance, and so is actually rooting for bankruptcy so that it can trigger its CDSs and do better than as a mere creditor. Banning naked CDSs or prohibiting non-hedgers or non-dealers from purchasing CDSs does not appear to me the best solution, if that's the problem they mean, and seems to create market distortion, not clarity in pricing. The problem is created, first, by the discontinuity of bankruptcy; I would have thought the better answer re-writing the bankruptcy provisions to apply only to creditors with something actually at stake, rather than those who have hedged it away. And, second, by mispricing by writers of CDSs as insurance, such as AIG - they allowed purchasers of CDSs to take out insurance and shift risk for an inadequate premium. If empty creditors are the problem, I don't agree with either a ban or a bar on "non-bona fide" hedgers or market-makers ....

(show)

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Thursday, July 30, 2009

"Profit" Is Not a Dirty Word:

Yale law professor Stephen Carter writes in defense of corporate profits.

High profits are excellent news. When corporate earnings reach record levels, we should be celebrating. The only way a firm can make money is to sell people what they want at a price they are willing to pay. If a firm makes lots of money, lots of people are getting what they want.

To the country, profit is a benefit. Record profit means record taxes paid. But put that aside. When profits are high, firms are able to reinvest, expand and hire. And profits accrue to the benefit of those who own stocks: overwhelmingly, pension funds and mutual funds. In other words, high corporate profits today signal better retirements tomorrow.

Another reason to celebrate profit is the incentive it creates. When profits can be made, entrepreneurs provide more of needed goods and services. . . .

When political anger over profit reduces the willingness of investors to take risks, the nation suffers. . . .

And although it is easy to be dismayed by excess, trying to regulate profit makes things worse. Capital flows to places where returns are highest. The more exercised our political leaders become when profits rise, the more investment capital will remain abroad.

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A Tax Break for Trial Lawyers?

Walter Olson notes that some folks in Congress are pushing a tax break for trial lawyers. Specifically, the proposal would enable plaintiffs' lawyers to deduct loans to clients to cover litigation expenses as made, rather than at the conclusion of the litigation. The estimated value of the tax code revision is $1.6 billion. Yet Victor Schwartz (among other things general counsel of the American Tort Reform Association) and Christopher Appel argue the revision could have broader implications:

Those who practice plaintiffs’ lawyer work learn quickly that it is a business similar to other capital businesses. Capital is placed at risk and a judgment is made whether or not it will bring a profit. Today the costs of litigation act as a curb against marginal and frivolous litigation. This is what makes the plaintiffs’ lawyers’ tax proposal of such great practical importance. While one cannot calculate it mathematically, having the federal government bear 40% of the initial costs allows plaintiff’s attorneys to take more cases with higher risks. The result to industries targeted by plaintiffs’ lawyers will be staggering.

Schwartz and Appel also challenge the argument that this reform would simply treat plaintiffs' attorneys' business expenses like those of other small businesses.

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Federal Judge Temporarily Restrains Release of Names of Anti-Domestic-Partnership Petition Signers in Washington States:

Today's order, in Doe v. Reed, No. 09-5456BHS (W.D. Wash. July 29, 2009), reads in relevant part:

Plaintiffs seek to enjoin Defendants from releasing copies of the Referendum 71 petition to any third party. Specifically, Plaintiffs seek to prevent Defendants from releasing the names, addresses, and other contact information of individuals who signed the petition. Plaintiffs contend that release of this petition would result in a violation of Plaintiffs , and others' First Amendment rights....

To obtain preliminary injunctive relief, the moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm to the moving party in the absence of preliminary relief; (3) a balance of equities tips in the favor of the moving party; and (4) that an injunction is in the public interest.

Having considered Plaintiffs' motion, Defendants' failure to appear or otherwise object to Plaintiffs' motion, and the remainder of the record herein, the Court concludes as follows:

1. For purposes of deciding Plaintiffs' motion for a temporary restraining order only, Plaintiffs have pled a colorable First Amendment claim, and have sufficiently demonstrated a reasonable likelihood of success on the merits.

2. Plaintiffs have demonstrated a reasonable likelihood of irreparable harm if Defendants release the contact information of those individuals who signed the Referendum 71 petition.

3. The balance of equities weighs in favor of Plaintiffs. Defendants and interested third parties will not be unduly prejudiced by delaying the release of this information until after this matter has been fully briefed, should Defendants ultimately prevail on Plaintiffs' motion for preliminary injunction.

4. A temporary restraining order is in the public interest. Plaintiffs' complaint raises constitutional issues potentially affecting over 100,000 voters....

The order lasts until Sept. 3, 2009, which is the date set for the hearing on a longer-lasting preliminary injunction pending a full decision on the merits. The plaintiff's constitutional argument — which the court said has "a reasonable likelihood of success on the merits," but which the court has not more expressly endorsed (since this is just a temporary restraining order aimed at maintaining the status quo pending a full hearing), is here, and here is an excerpt:

KnowThyNeighbor.org and WhoSigned.org[] have stated that they intend to make the names of the 138,500 petition signers available and searchable on the internet in an attempt to encourage Washington citizens to have a personal and uncomfortable conversation with any individual that has signed the petition. Ironically, the creators of WhoSigned.org have exercised their First Amendment right to remain anonymous, a choice the petition signers cannot make because of the Public Records Act. A temporary restraining order and preliminary injunction are necessary to protect Plaintiffs from suffering immediate and irreparable deprivations of their First Amendment liberties that will occur if Defendants release copies of the petition pursuant to the Public Records Act. As shall be set forth below and in Plaintiffs’ Verified Complaint, individuals whose names are already connected with Referendum 71 have been subjected to threats, harassment, and reprisals simply for exercising their First Amendment freedoms of speech and association. If a temporary restraining order and preliminary injunction are not issued, each of the 138,500 Washington residents who signed the Petition will suffer similar deprivations of their First Amendment liberties.

For more on the subject, see the prevailing lawyer's press release.

My thought: I think there are plausible arguments that voter signatures shouldn't be publicly released by the government. Just as we have a secret ballot for the ultimate votes, we could have at least a quasi-secret signature system for the signing of referendum, initiative, recall, and candidate nomination petitions. It might not be fully secret — for instance, the government would know what you signed, though it doesn't know how you voted, and it's possible that the signatures would be briefly visible as other people are signing the petitions (though that could be minimized, for instance if there's just one signature per page, and each page is concealed after it's signed). But there are good reasons why we might choose to make it as close to a secret ballot as possible.

Yet I don't think that such a system is constitutionally mandated by the First Amendment, just as I don't think that a secret ballot is constitutionally mandated by the First Amendment. Signing a petition is a legally significant act, and if the government chooses to publicize the names of people who have taken such an act, I don't think this abridges their freedom of speech even if the revelation might indeed have a deterrent effect on some people. Not all government action that deters people's exercise of their free speech rights is unconstitutional, and in particular government speech revealing signers' identities is not, I think, unconstitutional.

Even overt government condemnation of certain speakers is not a First Amendment violation, though such condemnation might deter speakers. The same is even more true, I think, of a simple release of over 100,000 names, though again I can't deny that there would be a deterrent effect. The judgment about how secret signatures or even ballots should be is a judgment that should be made legislatively (or by voter initiative). The First Amendment and First Amendment caselaw does not preclude either option.

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Congratulations to Jonathan Baker!

My Washington College of Law, American University friend and colleague, Jonathan Baker, has been named chief economist to the FCC. Congratulations, Jon! Jon is primarily a specialist in competition law, and also teaches law and economics, among other things, at WCL. He is a great professor and scholar, with long experience in senior government positions, and this is a great appointment by the administration.


Hate Crimes Laws, Anti-Gay Views, and Public Accountants:

Let me tell you an interesting story, from Ake v. Bureau of Professional & Occupational Affairs (Pa. Commw. Ct. May 20, 2009), and see what you think of it.

1. In 2001, Kevin Allen Ake was living at a YMCA in Illinois, apparently "so that he could assist an elderly member of his church who lived there." Several months after moving in, he was evicted, in his view because of his "efforts to begin a bible study program at the YMCA." As a result, he left a bunch of messages on the voice-mail of the YMCA's executive director, who was a lesbian; he denies that the messages contained explicit threats, but says he "basically shared what the Bible talked about was -- with that kind of unnatural lifestyle -- about lesbians and homosexuality."

Ake was then prosecuted and convicted for telephone harassment, which covers telephone calls made "with intent to abuse, threaten or harass." Two newspaper accounts reported that he was found guilty of leaving threatening messages, but nothing in the Illinois indictment, or in the Pennsylvania opinions that I read, makes it clear -- it seems possible that the finding was simply that he made the calls with the intent to "abuse ... or harass" rather than with the intent to threaten. In any case, though, telephone harassment, even harassment that isn't expressly threatening, is a crime; the laws banning it are generally seen as constitutionally permissible speech restrictions (with some exceptions); and the story here is in any event not about that conviction, which may well have been perfectly sound.

2. Now generally speaking, telephone harassment is a misdemeanor. But Ake was apparently motivated at least in part by the executive director's homosexuality, which made it a felony hate crime. Ake was thus convicted of a felony, and sentenced to 14 days' in prison, with credit for time served before trial, plus 2½ years' probation, 200 hours of community service, and a $2000 fine. In February 2005, Ake was discharged from probation.

3. So far, we have a normal "hate crime" story, though one in which the underlying crime was comparatively minor (and consisted of unprotected speech rather than physical violence). But there's a twist: Ake is an accountant, and in 2007 he applied to reactivate his Pennsylvania CPA license. He had it reactivated despite his felony conviction, but then the State Board of Accountancy moved to revoke the license because of that conviction. And the Board did revoke the license -- not just because of the conviction itself (which wouldn't automatically disqualify him, especially since the conviction didn't involve the sort of financial misconduct that most directly bears on fitness to be an accountant), but because of his continuing hostility to homosexuals and his perception that he was victimized by homosexuals:

[T]he very nature of Respondent's offense -- involving an irrational hatred of the victim -- is plainly a manifestation of a character defect. Although [Ake] had completed all requirements of his criminal sentence as of February 2005, the Board has grave doubts as to whether [Ake] fully rehabilitated.

In his testimony at the formal hearing, [Ake] expressed the view that his conduct in harassing the victim because of her sexual orientation, while regrettable, did not rise to a level requiring criminal sanction. He maintained that he was prosecuted because of the district attorney's sexual orientation, and he objected to his original mental health counselor because of the counselor's sexual orientation. These facts powerfully suggest that [Ake] has not reformed his views....

The Board is of the view that the revocation of [Ake's license] ... is warranted ... (1) to eliminate the risk of harm that [Ake] ... might pose to those with whom he would have professional dealings as a certified public accountant; (2) to deter other certified public accountants who might be tempted to commit felonious acts outside the practice of public accounting in belief that there would be no consequences for their professional credentials; and (3) to provide assurance to the public that only individuals of unquestioned moral character are permitted to be counted among the ranks of certified public accountants.

4. In May, the Pennsylvania Commonwealth Court reversed the Board's decision, and two weeks ago refused to reconsider its judgment.

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"Now he belongs to the English department": Sean Wilentz has a marvelous review essay in the New Republic entitled Who Lincoln Was in which he critiques a series of recent books about Lincoln. I highly recommend it and cannot adequately summarize all it covers. Wilenz's basic point is this:
The defamatory image of Lincoln as a conventional white racist, whose chief cause was self-aggrandizement, is even more absurd than the awestruck hagiographies that have become ubiquitous in this anniversary year. My point is simpler and larger. It is that Abraham Lincoln was, first and foremost, a politician.
That, for Wilentz, Lincoln must be understood, "first and foremost," as a politician is not a bad thing. Wilentz quotes James Oakes:
"It is important to democracy that reformers like Frederick Douglass could say what needed to be said," Oakes wisely observes, "but it is indispensible to democracy that politicians like Abraham Lincoln could do only what the law and the people allowed them to do." And, he might have added, it was indispensible for the nation, and above all the slaves, that Lincoln performed as president as well as he did.
Near the end of his essay, Wilentz offers a reconceptualization of the parellel between Lincoln the politician and Douglass the reformer:
Douglass in his later years did indeed become more like Lincoln--not because he turned "conservative," but because he came to recognize, as Lincoln did almost instinctively, the difference between the role of a radical reformer and the role of a politician. He arrived at a moral and historical appreciation of politics. James Oakes puts it well: "[Douglass] did not claim that the abolitionist perspective was invalid, only that it was partial and therefore inadequate. Lincoln was an elected official, a politician, not a reformer; he was responsible to a broad public that no abolitionist crusader had to worry about." Douglass, that is, had grown wiser, and had come to see politics as more complex than he had before the war. It is a kind of wisdom lost on political moralists of all generations, for whom radical reform is the ship, and virtually everything else is a corrupting bog of compromise.

Without an appreciation of this complexity, it becomes easy to view Douglass as a backslider, just as it is easy to see Lincoln as a hopelessly cautious politician--or, as Stauffer puts it, a "conservative"--who only began to transcend politics in 1862 or 1863. In fact, it was Lincoln's pragmatic, at times cynical, but always practical insistence on not transcending politics that enabled him, as Douglass put it in 1876 (in the passage that Gates finds puzzling), to restore the Union and "free his country from the great crime of slavery." Achieving either of those great ends, as Douglass finally understood, required the sympathy and the cooperation of Lincoln's "loyal fellow-countrymen. " Putting "the abolition of slavery before the salvation of the Union," Douglass observed, would have "rendered resistance to rebellion impossible." Had Lincoln truly been the radical that Stauffer would have preferred, the slaveholders likely would have won the Civil War.
Although it is not the central point of Wilentz's essay, I particularly appreciated his insistence on taking constitutional analysis seriously. For example,
By concentrating on Lincoln's writings about race and slavery, [Henry Louis] Gates also misunderstands how much more besides race affected Lincoln's political approach to slavery. Apart from the Thirteenth Amendment, which abolished slavery in 1865, Gates does not discuss the Constitution much, even though references to it abound in the Lincoln documents that he has selected, and even though constitutional issues were pivotal in Lincoln's thinking about both slavery and the Union. For Lincoln, to destroy slavery while destroying the Constitution would have been no victory at all, as it would demonstrate to the world that the American Revolution and republican government were follies or frauds--impervious to reform. Yet in accord with most anti-slavery men, Lincoln held that, like it or not, the Constitution tolerated and even protected slavery in the states where it already existed. How, then, could Americans abolish slavery under the terms of their own Constitution?

As of 1860, there was absolutely no possibility that Congress would pass, and that the states would ratify, a constitutional amendment banning slavery, which would have been the only peaceable and constitutional way for the federal government to outlaw bondage everywhere. Nor was there any possibility that the cotton states of the Deep South, or even the less slave-dependent states of the upper South, would abolish slavery on their own anytime soon. On that account, a minority of radical abolitionists, most conspicuously William Lloyd Garrison, concluded that the Constitution was morally bankrupt. But most of the anti-slavery forces, Lincoln among them, concluded that they would have to attack slavery where they believed the Constitution gave the federal government the power to do so, chiefly by barring slavery from the territories.

These anti-slavery advocates believed that, as an economic system, plantation slavery would have to expand or it would die. Halting its expansion thus amounted to a sentence of gradual death. (On this point, the slaveholders agreed.) Politically, the addition of new free states out of the vast territories added from the Mexican War, as well as the remainder of the Louisiana Purchase lands, would break the hammerlock that the South had long enjoyed in Washington over the slavery issue. This was what Lincoln meant when he spoke of putting slavery in the course of ultimate extinction--by containing it, as opposed to permitting slavery's expansion which, he said, would put the nation "on the high-road to a slave empire."
Then there is this:
The Dred Scott decision certainly moved Lincoln to clarify his thinking about the legitimacy of Supreme Court decisions, to himself as well as to the public--but contrary to Stauffer, Lincoln rejected the Dred Scott ruling not because he thought it violated a "higher law," but because he thought it was erroneous and unconstitutional (as well as unjust), and he called for constitutional and democratic action to overturn it. "We know the court that made it has often over-ruled its own decisions," Lincoln declared, "and we shall do what we can to have it over-rule this."

Lincoln hardly "repudiated" the Constitution. (Stauffer shamelessly constructs this contention by quoting, out of context, bits of Lincoln's writings from well before the Dred Scott ruling, dating back as far as 1854.) Lincoln repudiated the Taney Court's interpretation of the Constitution as flagrantly unsound. The best way to remedy the situation, he believed, would be to hold fast to the anti-slavery principles that Chief Justice Taney had wrongly declared unconstitutional, and elect officials (including a president and a Senate majority) who would uphold accurate constitutional interpretation. Once in office, those men would legislate and execute accordingly, and start to change the composition of the court, and finally succeed in overturning Dred Scott.
Wilentz's even-handedness is illustrated by this passage:
Stauffer's blanket condemnation of Republicans such as Grant for turning their backs on southern blacks is, at the very least, unfair. As Stauffer himself notes, Grant, as president, crushed the Ku Klux Klan in 1871. He might also have mentioned Grant's support for the successful ratification of the Fifteenth Amendment in 1870, and for the full range of the enforcement acts that he signed in 1870 and 1871, and for the Civil Rights Act of 1875--taken together, the strongest civil rights record of any president between Abraham Lincoln and Lyndon B. Johnson. Even after the economic panic of 1873 and a Democratic resurgence in the midterm elections of 1874 sharply reduced his options, Grant remained committed to enforcing the Fourteenth and Fifteenth Amendments, and doing what he could to protect Unionists and freedmen in the South.
At the essay's end, Wilentz offers his take on the relationship of the Obama phenomenon to Lincoln:
The intellectuals' rapture over Obama, their eagerness to align him with their beatified Lincoln, has grown out of a deep hunger for a liberal savior, the likes of which the nation has not seen since the death of Robert Kennedy in 1968. The eight years of George W. Bush's presidency only deepened the hunger; and last year it overtook a new generation of voters as well who, though born long after 1968, yearned for smart, articulate, principled liberal leadership. Along came Obama who, despite his inexperience--or, perhaps, because of it: he seemed so uncontaminated by the arts that he practiced--fit the bill, his African heritage doing more to help him by galvanizing white liberals and African Americans. Although Obama's supporters at times likened him to the two Kennedys, and at times to FDR, the comparisons always came back to Lincoln--with the tall, skinny, well-spoken Great Emancipator from Illinois serving as the spiritual forebear of the tall, skinny, well-spoken great liberal hope from Illinois.

The danger with the comparison does not have too much to do with the real Barack Obama, whose reputation will stand or fall on whether he succeeds or fails in the White House. The danger is with how we understand our politics, and our political history, and Abraham Lincoln. That the election of an African American to the presidency brings Lincoln to mind is only natural. But the hunger pangs of some liberals have caused them to hallucinate. Obama's legendary announcement in Springfield was the purest political stagecraft, but it was happily regarded as a kind of message from history. One hears that Obama, like Lincoln, is a self-made man--but Lincoln, unlike Obama, started out in life dirt poor, and lacked any opportunity to attend an elite private high school and then earn degrees at Columbia College and Harvard Law School. One hears that the rhetoric that carried Obama to the White House is Lincolnesque, which it most certainly is not, either in its imagery or its prosody. One hears even that Obama is not just an extremely talented and promising new president but, as Henry Louis Gates Jr. writes, that he is "destined"--destined!--"to be thought of as Lincoln's direct heir."

Who does not wish Obama well? But such hallucinations make it difficult for historians to keep the intricacies of political history front and center, or to acknowledge Lincoln's peculiar gifts as a political leader and a political president. It would appear that those intricacies and those gifts need to be salvaged from the mythologizing and aestheticizing glorifications, from populist fantasies born of forty years of liberal frustration.
I do not mean these lengthy block quotes as a substitute for the essay itself. Nor am I necessarily endorsing Wilentz's thesis about politics (though it has gotten me thinking). Lastly, Wilentz could not resist the historian's tick of elevating "historians" above mere partisans. "Stauffer's rehearsal of the old Speed story illustrates the difference between a historian and a professor with an agenda." As if many PhD'd historians lack an agenda that influences their history. Later, Wilentz himself notes that "Many historians have offered an exaggerated 'two Lincolns' interpretation of the president." But of course.

But today's 'historian superiority complex' is kept to a tolerable minimum in an essay that demonstrates well what a careful and measured historian can contribute to public discourse.

Related Posts (on one page):

  1. Jefferson, LIncoln, Wilentz, Gates, and Slavery:
  2. "Now he belongs to the English department":

Feds to Target Texting?

Senator Charles Schumer and several other Democratic Senators have introduced federal legislation to ban texting while driving. Specifically, the law would require states to enact anti-texting legislation or forfeit 25 percent of their share of federal highway funds.

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Wednesday, July 29, 2009

Ninth Circuit Will Rehear Nordyke v. King En Banc:

That's the decision in which the Circuit held that the Second Amendment was incorporated against the states, and also that counties could — despite that — bar guns from county property (at least the fairgrounds and the fairground parking lots involved in that particular challenge).

As is usual with decisions to take the case en banc, the order provides that "The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." This technically means that there's no longer a circuit split on the subject, which diminishes the likelihood of Supreme Court review of the Second and Seventh Circuit decisions rejecting incorporation. (The Seventh Circuit decision involved the Chicago handgun ban.) But those two circuit decisions stressed that they felt themselves bound by Supreme Court precedent. That precedent is old and inconsistent with modern incorporation approaches (as D.C. v. Heller itself acknowledged). And over two thirds of the states (including California) support certiorari on this question, and support incorporation. This suggests that there's still a very good chance that the Court will agree to hear the incorporation issue, notwithstanding the Ninth Circuit's decision to review the matter en banc.

At the same time, I should acknowledge that I had wrongly predicted that the case probably wouldn't be taken en banc. So please view my other guesses about what courts will do with suitable skepticism.

UPDATE: According to the Ninth Circuit, "En banc oral argument will take place during the week of September 21, 2009."

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Stop Law School Junk Mail:

That's the advice from an e-mail quoted by Prof. Glenn Reynolds (InstaPundit):

As you can tell by my e-mail, I work for [name omitted] Law School. I am one of the faculty assistants; we sort the incoming mail for the professors. We get a LOT of mail from law schools looking to advance in the U.S. News Rankings -– and I’ve worked for both faculty hiring committee chairs and new professors, so I know that this is a lot of mail, everything from postcards and brochures to law school alumni magazines.

If I could say just one thing to all law schools who do this, and the deans who think it’s a good idea: STOP. It is a bad idea. It has no effect on your rankings, and in all likelihood it’s hurting them. The professors who receive this pile of extra junk mail call it “law porn.” Every professor that I know of who gets these instructs us assistants to put it all straight into the trash. They call it a waste of paper -– very expensive glossy paper. One told me that it’s actually a negative –- the more law porn a school sends him, the more he marks it down on the rankings -– and I’m not sure he was kidding. Most of it is academic conference brochures for schools on the other coast in subjects the professors receiving them do not teach in. 50+ page alumni magazines are probably the biggest wastes. But one law school went the extra mile and actually sent separate postcards announcing each of its new faculty hires for the last year, four or five in all, which particularly annoyed the professors here. If these schools want to improve their US News rankings, it’d probably be better to take the money spent on this law porn, which nobody will read, and use it for something else that does improve rankings – more library volumes, for instance. Or better professors.

I can't say that "the more law porn a school sends [me], the more [I] mark[] it down on the rankings"; I don't have the spare neurons to keep such a hit list. But indeed, all those glossy publications go straight into the recycling bin.

UPDATE: The post title was originally "Stop Law Porn," since these mailings are sometimes called "law porn." But I changed that, since there's nothing at all titillating about them.

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Interesting Tenth Circuit Concurring Opinion on the Right To Bear Arms and Felons:

The case is U.S. v. McCane, decided yesterday. The majority rejected the defendant's Second Amendment claim by simply saying that the Court "explicitly stated in Heller that 'nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,'" and citing a recent Fifth Circuit opinion echoing this. But Judge Tymkovich wrote a concurring opinion, which said:

I join in Judge Murphy's cogent opinion, but write separately regarding certain issues raised by our Second Amendment holding ..., for two reasons....

My first point is that the felon dispossession dictum may lack the "longstanding" historical basis that Heller ascribes to it. Indeed, the scope of what Heller describes as "longstanding prohibitions on the possession of firearms by felons," is far from clear. To be sure, some sources would support the proposition. But more recent authorities have not found evidence of longstanding dispossession laws. On the contrary, a number have specifically argued such laws did not exist and have questioned the sources relied upon by the earlier authorities. Instead, they assert, the weight of historical evidence suggests felon dispossession laws are creatures of the twentieth — rather than the eighteenth — century. Together these authorities cast doubt on a categorical approach to felon dispossession laws.

This uncertain historical evidence is problematic in light of Heller's Second Amendment interpretation. Central to the Court's holding are a detailed textual analysis and a comprehensive review of the Second Amendment's meaning at the time of its adoption. After conducting this analysis and review, Heller concludes the right "to keep and bear arms" is a corollary to the individual right of self-defense. At the "core" of the Second Amendment right, the Court found, is self-defense in the home.

Knowing the meaning of the Second Amendment right and having identified its individual nature, the issue becomes what limits the government may place on the right.... For example, the broad scope of 18 U.S.C. § 922(g)(1) — which permanently disqualifies all felons from possessing firearms — would conflict with the "core" self-defense right embodied in the Second Amendment. Non-violent felons, for example, certainly have the same right to self-defense in their homes as non-felons. The validity of § 922(g)(1) was not at issue in Heller, so presumably the lower courts would be left to sort out this restriction — as well as other restrictions — and to wrestle with any complexities in applying Heller. But the issue was not really left to the lower courts.... Heller's felon dispossession dictum is particularly noteworthy considering the scope of the § 922(g)(1) ban. The statute prohibits firearm possession by any person convicted of a felony, irrespective of the nature of the felony, the length of time elapsed since the felony conviction, and the treatment of the felony by the state in which the felon resides. Every individual right has exceptions, of course, and the application of § 922(g) to a violent felon such as Mr. McCane would appear appropriate under any Second Amendment reading. After all, felons lose out on fundamental rights such as voting and serving on juries, and face discrimination that need only survive rational basis review. The question may be less clear, however, where the underlying felony is non-violent, such as financial fraud, perjury, or misleading federal investigators. But § 922(g)(1) encompasses these (and other) non-violent felons as well, permanently restricting their Second Amendment right to self-defense.

This brings me to my second point. The Court's summary treatment of felon dispossession in dictum forecloses the possibility of a more sophisticated interpretation of § 922(g)(1)'s scope. Applying Heller's individual right holding to various regulations would be complicated, and it is of course possible (if not probable) that different courts would articulate different standards. Already a number of commentators have considered and proposed approaches to the existing gun laws and the proper level of constitutional scrutiny. But the existence of on-point dicta regarding various regulations short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts. In this case, for example, we need not address the standard of review applicable to gun dispossession laws — strict scrutiny, intermediate, rational basis, or something else — or the examination of the governmental interests in light of the standard of review.

Rather than seriously wrestling with how to apply this new Second Amendment rule, therefore, courts will continue to simply reference the applicable Heller dictum and move on. And in light of the Supreme Court's clear direction, this is perhaps how it should be. After all, "our job as a federal appellate court is to follow the Supreme Court's directions, not pick and choose among them as if ordering from a menu." I nevertheless wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases.

Note also that Judge Tymkovich's view is especially important in light of U.S. v. Engstrum, where a federal district court in Utah held that a defendant who is prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor has a Second Amendment right to present an affirmative defense "that he posed no prospective risk of violence." (I take it this must mean no prospective risk of violence beyond that posed by the average person.) The jury, under the trial court's approach, would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute.

The government has filed a mandamus petition, asking the Tenth Circuit to review this decision; Judge Tymkovich might be called upon to consider this petition, either if it comes to him as a panel member, or if a panel decision in the case leads to a call for en banc review.

Thanks to How Appealing for the pointer.

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Crime-Facilitating Speech, and Showing Photos (and One Home Address) of Undercover Police Officers:

Radley Balko (The Agitator) writes:

A Virginia woman has been arrested for blogging about the members of a local drug task force. The charge is harassment of a police officer. She apparently posted on the blog one officer’s home address, as well as photos of all members of the task force, and a photo of one officer getting into his unmarked car in front of his home....

Photographing, writing about, and criticizing police officers, even by name, should of course be legal. But it’s a tougher call when the officers in question work undercover. Naming them, posting their photos, posting their addresses, are all pretty clearly efforts to intimidate them, and it isn’t difficult to see how doing so not only makes it more difficult for them to do their jobs, but may well endanger their lives....

This is indeed a tough issue, and a special case of another tough issue, which I discussed at some length in my Crime-Facilitating Speech article: When may speech be restricted because it provides others with information that may help them commit crimes? Here, the information may help people kill police officers, or at least conceal their crimes from police officers (once the undercover officers' covers are blown). But similar crimes could also be caused by a TV station's running a story about undercover police officers, or a newspaper's publishing the name of a crime witness, or a civil rights boycott organizer's publishing the names of people who aren't complying with boycotts, or a neighborhood watch group's publishing the name of a sex offender who has recently moved into the neighborhood, or IndyMedia's publishing the names and addresses of Republican delegates, and so on. And the broader issue arises even with less personalized data -- what if a Web page, a research paper, a novel, or a chemistry textbook provides information that can help people commit crimes in general, and not just information about particular prospective crime targets? I give more examples, and citations, in the article.

One thing I stress in the article is that much (though not all) such crime-facilitating speech does have value to law-abiding readers as well. Knowing the identity of an undercover police officer can help noncriminals know which of their acquaintances aren't what they seem, and can help criminal defense lawyers figure out how to better defend their clients. Even knowing a person's home address could be useful if you want to organize picketing of their homes. Such residential picketing could be restricted by city ordinance, but in some cities it isn't; and even if focused residential picketing is banned by a city ordinance, parading through the targets; neighborhood in order to express your message of condemnation to the targets' neighbors is constitutionally protected. See Madsen v. Women’s Health Ctr., 512 U.S. 753, 775 (1994); Frisby v. Schultz, 487 U.S. 474, 480-81 (1988).

One can certainly argue that the speech is so dangerous when revealed to criminals that it should be restricted despite its potential value to law-abiding readers. But I don't think one can assert, as I've heard some people assert, that such speech has no value to the law-abiding.

Thanks to Joe Olson for the pointer.

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Does Health Insurance Make You Fat?

According to this new paper (HT McArdle & WSJ), it constitutes a "true economic subsidy for obesity." As one of the WSJ economics blogs sums the paper up:

According to the paper, which estimates weight gain in terms of body mass index, a measure of weight related to height, “private insurance increases BMI by 1.3 points and public insurance increases BMI by 2.1 points.”

Economists have long been saying that fat people weigh on taxpayers’ finances. A 2005 study estimated that the federal government pays for roughly half the total annual medical costs associated with obesity, resulting in an average annual $175 in per-capita taxpayers’ costs to pay for obesity expenditures among Medicaid and Medicare recipients.

And a study released today revealed that the overall cost of obesity-related health-care treatment doubled in a decade to $147 billion, growing faster than obesity rates, which went up 37% during the same time period.

The new evidence fits well with what Bhattacharya, Bundorf, Pace and Sood argue: Health insurance isn’t simply a transfer of wealth from thin taxpayers to overweight ones, but a “true economic subsidy for obesity.” According to the study, health-care coverage literally encourages obesity, because people tend to become less careful about weight-gain when they know that insurance will cover at least some of the weight-related health costs in which they may incur.

Though the study found weak evidence that more generous insurance encourages greater weight gain, or that risk-adjusted premiums discourage it, there was “strong” statistical evidence that being insured increases body mass index and obesity.

I am both intrigued with and skeptical of papers purporting to find economic-sy rationales underlying cultural and, more exactly, biologically-grounded behaviors (food, eating, hunger, etc.). A quick (granted, very quick) read of the paper suggested that the details and qualifiers make it far more cautious than suggested by statements such as "insurance makes you fat" or that the fact of certain correlations quite so literally "literally encourages obsesity."

My own personal sense, as someone who always struggles with weight issues, is that the economics obesity accounts (this paper), or the political-ideological-social accounts (Fast Food Nation or David Kessler's new book) don't explain much about personal behavior. Well, let's be more precise. They don't explain much about my behavior - and, as my md-phd brother once remarked, think of yourself as the most exciting statistical series possible of 1: I'm the one who matters here (!).

At least in my own case, I think the more useful stuff lies at the level of appetite changes, set points, hormonal changes triggered by eating and digestion, research into what makes me eat at the biological level. I struggle every bit as much with weight and obesity as the obese African-American teenager who is apparently programmed to go to McDonald's every day, or the middle class white teen who spends all possible moments in front of the videogame and then goes to McDonald's. I suspect, for whatever prognostication on this most difficult of bio-behavioral topics is worth, that the most important work will come from understanding how what we eat now affects our eating at the next meal, along with the basic question of how much physical activity. I don't think it will come from calorie counts in restaurants - I don't mind them, but as a candidate for Jenny Craig, my interior calorie consumer tells me that it's not the fundamental issue.

That said ... look, I never thought I'd find myself admitting this in public or, frankly, anyplace else. I ran across the Seth Roberts thing from Freakonomics and thought, well, here's one that is (a) effortless (b) won't do any harm (c) worst downside is another 400 calories of monounsaturated fats a day (d) at an additional 400 calories a day, I'll know in a month or two what the verdict on the technique is, for better or worse ...

But I'll be danged if over the last two years, I haven't found myself gradually losing weight. Very gradually, and I've been working out more, especially in the deadly light-deprived winter - but, anecdotal series of one, I would swear that my appetite is simply less. I just don't have the same interest in food. Your results might radically differ and, who knows, it might all come back tomorrow or maybe it will cause some weird cancer of the big toe, and also you have no idea how embarrassing it is to be gratuitously plugging a thing called the Shangri-la Diet ...

Bottom line is I'll stick with both my health insurance, Congress and the President willing, thanks, and the Shangri-la Diet. I am also mildly worried that telling you all about how this seems to have kinda worked for me will - I don't know - jinx it or something. Maybe it only works if you keep it a secret. I'd like to keep those twenty pounds off, if possible. And if it's not possible for an academic with control over his time, it's not possible for anyone. It's not as if this diet has any scientific evidence behind it, as that same md-phd brother has further pointed out; it is based explicitly on the Seth Roberts series of 1.

(Update: Megan McArdle has a nice series of posts on obesity and health policy in America, including an interview with Paul Campos, author of The Obesity Myth.

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Dan Drezner's Top Ten Books of International Economic History:

Dan Drezner, at his blog at the Foreign Policy blog site, lists his selections for the top ten books of international economic history. Let me raid his list plus commentary:

1. Gregory Clark, A Farewell to Alms: A Brief Economic History of the World (2007). I've already tagged this book as an interesting read. If nothing else, the first chapter of this book - "The Sixteen-Page Economic History of the World" - actually matches the audacity of the title. As I said, I don't completely buy Clark's explanation of Malthus + genetics = Industrial Revolution in Great Britain. His attempt to explain away the irrelevance of institutions doesn't hold up to scrutiny. Still, I will say I better appreciated the heyday of mercantilism after reading Clark. (KA: I agree with the criticism, but think the book is better than the critique suggests. I think Dan thinks so too, but doesn't want to get into any extended arguments.)

2. Nathan Rosenberg and L.E. Birdzell, Jr., How the West Grew Rich (1986). Perfect when paired with Clark, because Rosenberg and Birdzell present the classical argument for why Western Europe was the birthplace of the Industrial Revolution. (KA: read this first.)

3. Jared Diamond, Guns, Germs, and Steel (1997). The third leg in the triad of "why did Europe dominate the globe?" explanations. If Clark focuses on genetics/culture, and Rosenberg and Birdzell focus on institutions, Diamond proffers a geographical determinism. Simply put, he thinks the temperate climate of Eurasia was bound to produce the most sophisticated societies with the most advanced animals, germs, and technologies. Diamond's argument compliments rather substitutes for the institutions and culture arguments. If nothing else, it is impossible to read this book and ever buy the ending to War of the Worlds. (KA: you already know everything about this book.)

4. John Nye, War, Wine and Taxes (2007). David Ricardo's classic example of comparative advantage was English wool for Portuguese wine. Nye explodes the "natural" aspect of this trade, demonstrating how high tariffs against French wine proved a boon to both the Portuguese and English beer distillers. Nye stretches his argument too far at times, but the interrelationship between war, protectionism, and statebuilding is pretty damn fascinating. (KA: this one I have not read.)

5. Douglas Irwin, Against the Tide: An Intellectual History of Free Trade (1996). Irwin's book is more a history of economic thought than economic history, but nevertheless tells a remarkable story: how did the idea of free trade knock off mercantilism, protectionism, strategic trade theory, and other doctrines? (KA: since I think one of the big problems with current economics teaching is its deliberately obscuring ahistoricism, I always appreciated this book.)

6. Kevin O'Rourke and Jeffrey Williamson, Globalization and History (1999). A lucid, detailed and fascinating study of how the nineteenth century of globalization went down. When anyone argues that the current (fast fading?) era of globalization is historically unique, take the hardcover version of this book and whack them on the head with it. (KA: I have not read this.)

7. Jeffry Frieden, Global Capitalism: Its Fall and Rise in the Twentieth Century (2006). This book is to the twentieth centiury as Williamson and O'Rourke's book is to the nineteenth - except it's written for a wider audience, so it's a more accessible read. Accessible doesn't mean simple, however - this book is chock full of interesting arguments, cases, and counterarguments. (KA: I haven't read this, but think now that I should.)

8. Barry Eichengreen, Globalizing Capital: A History of the International Monetary System, second edition (2008). A more narrow work than Frieden's, Eichengreen's book is the starting point for understanding the classical gold standard, the Bretton Woods regime, and whatever the hell system we have now the Bretton Woods II regime. (KA: This is a great book. I also like Robert Solomon's The International Monetary System, 1945-1981, although it is too time limited and out of print; I read it in Costa Rica one summer, when I supposed to be filing documents for the Interamerican Court of Human Rights.)

9. Daniel Yergin and Joseph Stanislaw, The Commanding Heights (1997). Yergin and Stanislaw tell a cheerleader's tale of how the Washington Consensus displaced the old quasi-Keynesian, quasi-socialist economic order that had its apogee and downfall in the 1970s. What's particularly interesting is their argument that what mattered was the content and spread of the ideas themselves, and not some coercive power, that led to the re-embrace of markets. (KA: I once skimmed this at a London bookstore and alas none of it comes back to me.)

10. Paul Blustein, The Chastening (2001). Blustein, a reporter for the Washington Post, tells the you-are-there version of the Asian financial crisis and the reaction from the U.S. Treasury Department. If you want to know why Pacific Rim economies started hoarding foreign exchange reserves beginning in 1999, read this book. (KA: terrific book!)

He asks what readers would add to the list. I put the same question to you, gentlereaders. This list is a fine one - I've read most of them, and tend to agree. What would I add?

First, a book I have mentioned here before - the absolutely superb James Macdonald, A Free Nation Deep in Debt: The Financial Roots of Democracy (2003 FSG). I think it's stronger than just about any other entry in the field interlinking finance, economics, and a strong, provocative, well supported thesis about politics in history.

I would also probably add something from the traditional of radical economic history - Perry Anderson, I guess - Passages from Antiquity to Feudalism or Lineages of the Absolutist State. Not precisely economic history, but Marxist historical materialism. (Perry Anderson is one of the most graceful writers to appear in the academy of the last fifty years; every paragraph, I find, is a pleasure to read, even when I don't agree with a word of it.)

What would you add to this list? Leaving aside my Perry Anderson suggestions, please stick with international economic history. What's missing? Good alternatives welcomed, too, especially as some of this stuff is a bit hard to locate.

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Targeted Taxes on Getting Abortions, Buying Guns, and Exercising Other Constitutional Rights:

The question about whether Congress can single out abortion for special taxation reminds me of this item I wrote about taxes on guns, in my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda; the analysis for taxes on abortion should be pretty similar. (Note, incidentally, that the gun tax question would arise as to state taxes under the 40+ state constitutional individual rights to bear arms in self-defense, quite apart from the various Second Amendment debates.)

Taxes on guns and ammunition, or gun controls that raise the price of guns and ammunition, would be substantial burdens if they materially raised the cost of armed self-defense. A $600 tax proposed by Cook, Ludwig & Samaha [in another article in the same symposium for which my article was written -EV], justified by an assertion that “keeping a handgun in the home is associated with at least $600 per year in externalities,” is one such example. “The poorly financed [self-defense] of little people,” like their “poorly financed causes,” deserves constitutional protection as much as the self-defense of those who can afford technologically sophisticated new devices or high new taxes. (See Martin v. City of Struthers, 319 U.S. 141, 146 (1943) (striking down ban on door-to-door solicitation, partly on the grounds that “[d]oor to door distribution of circulars is essential to the poorly financed causes of little people”); see also City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994) (striking down ban on display of signs at one’s home, partly on the grounds that “[r]esidential signs are an unusually cheap and convenient form of communication. Especially for persons of modest means or limited mobility, a yard or window sign may have no practical substitute.”).) This is true whether the tax or expensive control is imposed on gun owners directly, or on gun sellers or manufacturers, just as a restriction on abortion can be a substantial burden even if it’s imposed on doctors and not on the women who are getting the abortions.

High gun taxes should remain presumptively impermissible even if they are based on some (doubtless controversially calculated) estimate of the public costs imposed by the average handgun: The average takes into account both the very low cost stemming from guns that are always properly used by their owners, and the very high cost stemming from guns that are used in crime. The law-abiding owners thus are not just being required to “internalize the full social costs of their choices,” even if you take into account as a “cost” the possibility that any gun will be stolen by a criminal. They are also being required to internalize the social costs of choices made by criminal users of other guns -- much as if, for instance, all speakers were charged a tax that would be used to compensate those libeled by a small subset of speakers.

Nonetheless, some modest taxes might not amount to substantial burdens, as a review of taxes and fees on other constitutional rights illustrates. Taxes based on the content of speech are unconstitutional, regardless of their magnitude. But this is a special case of the principle that discrimination based on certain kinds of characteristics -- race, sex, religiosity, or the content or viewpoint of speech -- is unconstitutional. Setting aside these special areas of constitutionally forbidden discrimination, and setting aside poll taxes, which were constitutional until the Twenty-Fourth Amendment forbade them, other kinds of taxes, fees, and indirect costs imposed on the exercise of constitutional rights are often permissible.

The government may require modest content-neutral fees for demonstration permits or charitable fundraising permits, at least if the fees are tailored to defraying the costs of administering constitutionally permissible regulatory regimes. The same is true for marriage license fees and filing fees for political candidates (though the Court has held that the right to run for office is protected by the First Amendment). The same is doubtless true of costs involved in getting permits to build on your own property, a right protected by the Takings Clause.

Likewise, regulations of the right to abortion are not rendered unconstitutional simply because they increase the cost of an abortion. The Court so held when upholding a 24-hour waiting period even though it required some women in states with very few abortion providers to stay in a hotel overnight or miss a day of work, and when upholding viability testing requirements that might have marginally increased the cost of an abortion. So long as the extra costs don’t amount to “substantial obstacle[s]” to a woman’s getting an abortion, they are constitutional.

At the same time, when a cost is high enough to impose a substantial obstacle to the exercise of a right for a considerable number of people, it is unconstitutional. This is likely also true when a cost goes materially beyond the cost of administering the otherwise permissible regulatory scheme, as several federal circuit court cases hold and some U.S. Supreme Court cases suggest. And if a law substantially burdens rightholders who are relatively poor, an exemption would likely be constitutionally required, as it has been with regard to permit fees for speakers and candidates.

I acknowledge that any such regime necessarily creates linedrawing problems and poses the danger that a genuinely substantial burden will be missed by judges who are deciding how much is too much. But, first, there is ample precedent for such tolerance for modest fees in other constitutional rights contexts, and it seems neither likely nor normatively appealing for the courts to conclude that the right to bear arms is more protected than these other rights. Second, the caselaw from those other areas can provide guideposts for the linedrawing process. And third, the caselaw from those other areas (as well as the general logic of the substantial burden threshold) can provide justification for a constitutional requirement that poor applicants be exempted from fees -- say, fees that dramatically increase the cost of a new gun, or that are required for periodic reregistration of an old gun -- that are substantial for them even if relatively minor for others.

Related Posts (on one page):

  1. Targeted Taxes on Getting Abortions, Buying Guns, and Exercising Other Constitutional Rights:
  2. Could Congress Tax Abortion?
45 Comments

Could Congress Tax Abortion?

Members of Congress have toyed with various tax ideas to help pay for health care. So, for instance, some floated the idea of a tax on cosmetic surgery -- the "BoTax"? -- an idea Professor Bainbridge thinks could alter the political landscape of southern California). This prompted Glenn Reynolds to wonder whether Congress could tax abortion. It's an interesting question, to which Paul Caron responds here.

My own view is that, under current law, a tax targeted at abortions would be difficult to sustain. Under Casey, states may not impose regulations that place an "undue burden" on a woman's constitutional right to terminate her pregnancy. A law creates an "undue burden" where it has "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Any abortion tax large enough to raise a meaningful amount of revenue would likely increase the cost of abortions sufficiently to constitute an "undue burden" under this test.

Of course, this assumes that Casey would govern the case, but I think that is a fair assumption. While at least two, and perhaps as many as four, justices believe the "undue burden" test is too restrictive on states, Justice Kennedy was part of the Casey decision that established this test and has shown no indication he is willing to abandon it. Indeed, one could argue that his opinion in Gonzales v. Carhart is more consistent with the test articulated in Casey than Stenberg v. Carhart. So I believe the question would come down to whether an abortion tax is consistent with Casey's "undue burden" standard.

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Posner on Consumer Financial Protection Paternalism:

Judge Richard Posner thinks the proposed Consumer Financial Protection Agency Act of 2009 goes overboard in trying to protect consumers from themselves. Better to treat them — us — as "consenting adults."

The plan of the new agency reveals the influence of “behavioral economics,” which teaches that people, even when fully informed, often screw up because of various cognitive limitations. A leading behavioral economist, Richard Thaler of the University of Chicago Booth School of Business, wrote “Nudge: Improving Decisions About Health, Wealth, and Happiness” last year with Cass Sunstein, who is President Barack Obama’s nominee for “regulatory czar.”

Mr. Thaler, whose views are taken seriously by the Obama administration, calls himself a “libertarian paternalist.” But that is an oxymoron. He is a paternalist with a velvet glove—as the agency will be. Through the use of carrot and stick, the agency will steer consumers to those financial products that it thinks best for them, whatever they naïvely think. . . .

Behavioral economists are right to point to the limitations of human cognition. But if they have the same cognitive limitations as consumers, should they be designing systems of consumer protection?

UPDATE: Richard Thaler responds here.

The premise of behavioral economics is that humans are not perfect decision-making machines. We are busy and distracted. We have fields that we know well, but are amateurs in most other domains. If our car breaks down, we go to a trained mechanic. Even the best mechanics will make some mistakes (they are human), but for most of us they still have a better chance of getting our cars to work than doing it ourselves. Even Judge Posner is human, and given the number of books he has written, he must have made a few mistakes in print. But our legal system needs judges, and one of the reasons we have a layered judicial system is so that mistakes by one judge can be corrected by others. Should we abolish our legal system because judges are known to make mistakes?

No government agency (or judge) will be error-free. The goal of the Nudge agenda sketched out in my co-authored book of that title was to create decision-making environments in which it is easier for error-prone human decision makers to choose well. The Agency proposed by the administration is a good example of this kind of thinking. Even imperfect experts can help us achieve better outcomes, just as imperfect judges can help us enforce the law fairly. Until we invent the perfect human (or computer decision-making devise), we have no good alternatives.

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Tuesday, July 28, 2009

Do the Recent Failures of the Oakland A's Discredit Moneyball Strategies in Baseball and Academia?

Like many academics, I have praised the "Moneyball" strategies adopted by Oakland A's GM Billy Beane. Beane's innovative use of statistical methods for evaluating player performance built the small-market A's into a powerhouse that posted records as good as those of top teams with much higher payrolls, including the Red Sox and Yankees. Meanwhile, in the academic world, my employer, the George Mason University School of Law, used similar strategies to identify and hire undervalued scholars, an approach that enabled the school to rise rapidly in the US News rankings (from around 90th or so in the late 90s, to a peak of 34th in 2007 and 41st today). GMU's moneyball approach also enjoyed impressive successes on measures of faculty quality, such as Brian Leiter's citation count study, in which we ranked 21st in 2007. Like the A's, GMU has outperformed competitors with much greater financial resources (we charge lower tuition and have a much smaller endowment than most of our peer schools).

However, as ESPN writer Howard Bryant explains in this article, the A's poor performance over the last three years has led many people to doubt the effectiveness of Beane's approach. Although GMU's rankings haven't fallen anywhere near as much as the A's place in the American League standings, we have fallen a few slots in US News over the last two years.

In my view, the the A's recent problems in no way discredit Moneyball strategies. In both baseball and academia, Moneyball hiring is still a success. And, while the A's may not have a bright future, I am cautiously optimistic that GMU does.

I. The A's Problems are Caused by Moneyball's Success.

As Daniel Drezner explains, the A's have slipped not because Moneyball strategies stopped working, but because other teams with bigger payrolls (most notably, my beloved Red Sox) successfully copied them. So long as the A's were the only ones rigorously applying Moneyball strategies, they could outperform bigger-spending rivals with inferior approaches. But once the Red Sox and other larger market teams copied the A's approach, it got much harder for Beane to keep up. If the A's were defeated by clubs relying on pre-Moneyball conventional wisdom, that would indeed discredit their approach. Being defeated by better-heeled imitators actually vindicates it.

Furthermore, Beane's overall record as GM is still very impressive. Since he took over in 1999, the A's have made five playoff appearances and had two other seasons when they won around 90 games and just missed the postseason. I hate to admit it, but this is almost as good as the Red Sox' record over the same period (6 playoff appearances and one other 90 win season) - and the Red Sox spent more than twice as much as the A's on payroll during that time. The Red Sox of the last ten years are usually considered one of the best-run teams in baseball. Had Beane been given as much money to play with as Boston's GMs, the A's would probably have been a lot better than the Sox - or any other AL franchise.

II. Implications for GMU and Legal Academia.

Nonetheless, the recent decline of the A's does raise the question of whether GMU will suffer a similar decline as better-funded competitors mimic some of our hiring strategies. It certainly could happen, but I am guardedly optimistic that it won't. Competitive pressure in academia is much weaker than in professional sports, where losing GMs tend to get fired and owners of losing teams suffer big financial losses. In the academic world, faculty who perform poorly relative to their competitors are unlikely to lose either funding or tenure. Even law school deans are unlikely to lose their jobs merely because the school's ranking stagnates or declines.

Thus, GMU's innovations are less likely to be copied widely than those of the A's. Even so, some have spread. The three undervalued faculty assets that GMU has historically pursued include 1) law and economics scholars, 2) conservative and libertarian academics who might have gone to higher-ranked schools but for ideological discrimination, and 3) academics with strong publication records who were overlooked by higher-ranked schools because they didn't have a prestigious clerkship or didn't get their JDs at a top-5 school. I think it's clear that law and econ scholars are no longer undervalued by most of our competitors. Ideological discrimination and school/clerkship snobbery persist, but both are less intense than ten years ago. In particular, our rivals are beginning to realize that past publication record is a better predictor of the quality of future scholarship than who you clerked for or where you got your JD (this is similar to Beane's famous insistence on evaluating prospects based on minor league and college stats rather than whether they looked good to tradition-minded scouts).

Overall, one of our comparative advantages has been completely eliminated by the market, and the other two have at least been eroded. On the other hand, we have several edges that the A's don't. Unlike the A's, we can close the financial gap that separates us from our rivals by building up our endowment over time (the A's resources, by contrast, are constrained by their status as a small-market team). The school's rise in the rankings and increased public profile make fundraising easier. Converting a temporary innovative edge into longterm financial success is much easier in academia than baseball.

In addition, ideological discrimination and school/clerkship snobbery are likely to persist to a significant degree. We can therefore continue to exploit these two shortcomings of many of our peer schools. Finally, GMU has an important advantage stemming from its geographic location near Washington, DC - an attractive site for people interested in law, history, and public policy. I doubt that GMU will rise as fast in the rankings over the next ten years as it did over the last ten. But if we continue to follow good hiring strategies, we should be able to hold on to our gains and hopefully make some additional progress.

UPDATE: I do not wish to suggest that US News rankings are anywhere close to perfect indicators of a law school's relative quality. Like many other academics, I have criticized them in the past. However, rising 50 slots in the rankings, as GMU did, is probably an indicator of significant progress. In addition, GMU actually does better on more objective measures of faculty quality, such as Leiter's citation counts (where we are close to the top 20), and SSRN download counts (where we rank 18th over the last year, and 11th if one controls for the relatively small size of our faculty).

UPDATE #2: My colleague Josh Wright (a prominent rising star in law and economics), makes some good points on these issues at Truth on the Market. Josh points out that, even though law and economics scholars are no longer undervalued as a group, some specific types of L&E research still haven't gotten as much cache as they deserve in legal academia. Thus, there are still some undervalued assets in law and economics that GMU (and perhaps other pioneering schools) can exploit. I agree. Josh also believes that ideological discrimination and school/clerkship snobbery have not diminished as much as I assume. I still believe that they have, but I admit that the issue requires systematic study.

51 Comments

Sotomayor's Nomination Approved by the Senate Judiciary Committee:

To no one's surprise, Sonia Sotomayor's nomination to the Supreme Court was approved by the Senate Judiciary Committee today, on a near party-line 13-6 vote (one Republican senator, Lindsey Graham, broke with his party and supported Sotomayor despite expressing serious reservations about her).

Despite this nearly-inevitable outcome, the hearings were far from a total loss for those of us who have serious doubts about Sotomayor's judicial philosophy and that of the president who selected her. Under questioning, Sotomayor was forced to repudiate two major precepts of liberal constitutional jurisprudence: reliance on "empathy" to help decide many important cases, and the use of international law as a tool for interpreting the US Constitution (except in very narrow and uncontroversial contexts, such as treaty interpretation). It's not every day that a Supreme Court nominee explicitly repudiates a central tenet of the judicial philosophy of the president who nominated her as clearly as Sotomayor did with empathy by stating that she "wouldn't approach the issue of judging in the way the president does." These concessions will make it harder for liberal jurists and political leaders to advocate empathy and international law in the future. If these liberal legal principles can't be openly defended by a minority nominee with an inspiring personal story, backed by a popular president, and facing an overwhelmingly Democratic Senate, it's not clear when they can be.

In addition, the hearings focused on property rights to a far greater extent than any previous Supreme Court confirmation fight. Both Republican and Democratic senators raised these issues. Senator Jeff Sessions, the ranking Republican on the Committee, even went so far as to list Sotomayor's notorious anti-property rights decision in Didden v. Village of Port Chester, first among the dubious rulings justifying his vote against her nomination (I discussed Didden in this op ed, and much more extensively in my testimony before the Committee). All of this is an important step forward for those who want to raise constitutional property rights up from their current "poor relation" status in the federal judiciary. It marks the rise of property rights as an important enough issue that every nominee to the nation's highest court must at least consider them.

Overall, Judge Sotomayor's supporters have good reason to be happy with today's outcome, and she herself deserves congratulations. But the tactics she and the administration adopted to win this battle could make it harder for them to prevail in the longterm war over the future of constitutional law.

NOTE: My linking of Senator Sessions' op ed doesn't necessarily imply agreement with everything he said there. For example, I think it is unfortunate, though understandable, that he cast his objections to Sotomayor as a a critique of her "judicial activism" - a term that I think has lost most of its intellectual coherence. I cite the op ed only because it is one of several indications of the rising prominence of property rights issues during the hearings.

58 Comments

Twitter Post Yields Libel Lawsuit:

Law Librarian Blog reports: "Horizon Group Management, of Chicago, who filed a libel lawsuit against a former tenant who tweeted 'Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s okay.'" The blog post has a pointer to the complaint, and a news story.

Libel law generally speaking applies equally to newspapers, blog posts, Twitter, and pretty much any other written medium. And the important medium distinction — that under 47 U.S.C. § 230, online services aren't liable for things posted by their users, while offline institutions such as newspapers and even bookstores potentially are, especially if they are notified that the material is libelous — doesn't apply here, since the lawsuit is against the author, not against Twitter. Still, this struck me as worth noting, since it's one of the first Twitter libel lawsuits I've heard of. Many thanks to Vicki Steiner for the pointer.

UPDATE: I should note that, as this Chicago Breaking News post points out,

In March a Texas-based fashion designer sued Courtney Love, the wife of the late Nirvana frontman Kurt Cobain, claiming Love defamed her on Twitter.

The suit alleged Love called Dawn Simorangkir a "nasty lying hosebag thief," said she was a drug addict and a prostitute and accused her of stealing thousands of dollars.

Also, as the Chicago Breaking News post points out -- and as followers of cyberspace libel law (and even libel law more generally) have long known -- such lawsuits tend to be pretty bad for the plaintiffs even if the plaintiffs are in the right, since they vastly increase the audience for the original libel.

15 Comments

Washington State Makes it a Felony for School Employees to Have Sex with Up-to-21-Year-Old Students,

when the employee is more than 5 years older than the student. That's HB 1385, which just went into effect. (Arkansas and in Louisiana have similar laws.)

As I argued before, this strikes me as quite wrong. It might be unprofessional conduct that would justify firing the employee, but not sending the teacher to prison.

The "abuse of a position of power" rationale doesn't work here, I think; a teacher has no more power over the student than the typical employer, or police officer, or many other people. Yet we deal with the extraction of sexual favors through threats in those contexts by requiring proof of abuse (whether in a civil case or a criminal extortion case), not by just presuming it. And the law applies to even less powerful employees as well.

Nor does the psychotherapist analogy work; the teacher-student relationship strikes me as quite different from the psychotherapist-patient relationship: It involves far less likelihood of emotional fragility on the alleged "victim"'s part, and a professional relationship that is far less likely to involve revelation of deep secrets and the seeking of important life advice. Criminal punishment, and especially felony punishment, of sexual behavior should be reserved for genuine force, fraud, imposition on children, or situations where there seems to be a real risk of extraordinary psychological or physical harm, or harm to social institutions — not to consensual sex between adults, even when one adult is a school employee and the other is a student.

Thanks to Fred Ray for the pointer.

UPDATE: I originally said that psychotherapist-patient sex doesn't, to my knowledge, lead to felony criminal punishment (as opposed to professional patients). But Kent Scheidegger pointed out that at least in California, it might: California law treats such sex as a misdemeanor, or a felony if it's committed with two or more "victims." I've therefore revised the post to focus on the difference between the teacher-student relationship and the psychotherapist-patient relationship. (I should say that the California law also criminalizes sex between physicians and patients, including when the patient is no longer a patient but "the [professional] relationship was terminated primarily for the purpose of" having a sexual relationship. I would likewise oppose criminal punishment in that context as well, and quite likely even professional discipline, at least unless something beyond a physician-patient relationship is present.)

Related Posts (on one page):

  1. Washington State Makes it a Felony for School Employees to Have Sex with Up-to-21-Year-Old Students,
  2. A Crime for a High School Teacher to Have Sex with a 20-Year-Old Student?
101 Comments

It Is Only an Accident

that David Bernstein's "Why Marry?" post (which points to Megan McArdle's question) is right next to my "Alienation of Affections -- Still Alive" post. I would not suggest that even North Carolinians should choose marriage simply because it might give them a cause of action against their spouses' potential future lovers (or because the availability of an alienation of affections lawsuit would deter such potential future lovers).

Related Posts (on one page):

  1. It Is Only an Accident
  2. Alienation of Affections -- Still Alive:
8 Comments

A Really Romantic Property Law Reason to Get Married:

David Bernstein and Megan McArdle ask whether there is any good reason to get an official marriage sanctioned by the state, as opposed to just arranging a private ceremony without state sanction.

Unfortunately, they both ignore an important property law reason for getting an official state-sanctioned marriage: it gives you the right to own property together in tenancy by the entirety. This form of concurrent ownership has two advantages not available otherwise. One co-tenant is not allowed to sell their interest without the other's consent. And should one spouse become insolvent, creditors are not allowed to seize the joint property to pay off her debts (though they still can do so if the debt in question is a joint debt owed by both partners to the marriage). So if your significant other tends to run up lots of debts that he can't pay, or you worry that he will sell his share in your jointly owned property to obnoxious third parties, you may want to get married. Assuming, of course, that you want to stay with such an untrustworthy spendthrift at all. Romance, thy name is property law!

On a slightly more serious note, I don't see any good reason why the right to own property in tenancy by the entirety should be limited to married people (and, in some states, participants in same-sex civil unions). Yes, that is the traditional common law rule. But I frankly don't see any good rationale for it.

UPDATE: I should note that tenancy by the entirety is permitted in only about half the states. So if this is you main reason for getting a state-sanctioned marriage, you should check whether your state allows it. Some 19 states and the District of Columbia allow tenancy by the entirety for the ownership of any type of property, and seven allow it only for real estate. See here for a list. Fortunately, my beloved Commonwealth of Virginia does allow it, and my fiancee (yes she's a lawyer too) has already suggested that we might want to convert our new house to this form of concurrent ownership once we tie the knot.

Related Posts (on one page):

  1. A Really Romantic Property Law Reason to Get Married:
  2. Why Marry?:
29 Comments

Jesus Christ!

Mark Tapscott (Washington Examiner) writes:

It's ... long been the rule among prudent politicians with national aspirations to say nothing unkind about anybody's religious faith. But the silence that has greeted Vice President Joe Biden's use of "Jesus Christ" as an expletive in an on-the-record interview with The Wall Street Journal, suggests that such prudence has been tossed aside.

Biden isn't the first nor will he be the last politician to abuse the name of the man revered for two millennia by Christians of every denomination as the Savior, the God-Man who created and sustains the universe, and who at His Second Coming will someday return to Earth to judge all men. Jesus Christ is, in short, a heavy dude, if He is indeed the dude He claimed to be.

I have no idea what the vice president believes about Jesus. What I do know is that he apparently thought nothing of taking the name described in Holy Scripture "as the only name given under Heaven by which men are saved" and used it the same way most people routinely use the words "damn," "hell," and others unfit to print in a family newspaper.

Having myself uttered such words on too many occasions, I can hardly fault Biden if this particular incident was simply an unintentional slip of the tongue. One would assume that if such was the case, Biden would have by now offered an apology.

But there is no indication on the public record that he has since recognized the offensiveness of what he said and apologized or otherwise sought to make amends. Queries to Biden's spokesmen went unanswered yesterday.

So the question must be asked: Did Biden intend to offend millions of his countrymen who worship Jesus, one of whom happens to be his boss, or did he just not care if they were offended?

Either way, had Biden used the name Mohammed in this manner, Muslims would be crying foul. Quite possibly rioting in the streets, to boot. And if the vice president had used "gay" or "Black" as swear words, folks would be rightfully angry about that, too.

Hate speech is hate speech, whether it is aimed at Christians, Muslims, Gays, or African-Americans. Whether or not it should prosecuted or, as Thomas Jefferson argued, left undisturbed as a monument to tolerance and the strength of rational argument is a different issue. Here, it is sufficient to note that hate speech is speech meant to demean, ridicule, and discredit all who are associated with its target.

So where is the outrage about Biden's hate speech against Christians? We've not heard a peep of protest from the Southern Baptist Convention. Nothing from the U.S. Conference of Catholic Bishops. Nothing from the Presbyterian Church U.S.A. Nothing from the United Methodist Church.

And neither have we heard from Biden's boss, whose spokesman had other things to do yesterday than discuss another veep flap....

Biden's uncorrected cursing is indicative of the slow strangling by the unrelenting forces of political correctness of the religious tolerance that is Christianity's greatest gift to America.

We've reached a point in which the nation's second highest official can without fear insult and degrade the name revered by millions of Americans, but woe unto him who says a word even remotely critical of the PC flavors of the day.

It may well be that actual insults of Christians or Christianity are treated less seriously by some than actual insults of Muslims or Islam, or of other groups. And I agree that the term "hate speech" has been much stretched by some people.

But it seems to me that the typical use of "Jesus Christ" as an expletive — the Biden quote was, "I can see Putin sitting in Moscow saying, 'Jesus Christ, Iran gets the nuclear weapon, who goes first?' Moscow, not Washington." — is not "hate speech" under any sensible definition of "hate speech." It is generally not intended to convey hatred of Christianity, or even hostility to Christianity, nor "to demean, ridicule, and discredit all who are associated with [Christianity]." Nor is it generally reasonably understood that way.

To be sure, it is seen as offensive by some Christians. My sense is that most Christians, including devout ones, view it as at most mildly offensive — a sign of lack of sufficient respect for Christianity and for one of the Commandments. But I doubt that most Christians see it as even deeply offensive, much less a sign of an intention to express hostility to Christianity.

And this, I think, is pretty clearly visible from normal practices among Christians in a mostly Christian country. "Jesus Christ!," "Jesus!," and the like, are in my experience pretty common exclamations. This both reflects their being seen as being at most only slightly offensive, and further reinforces that: A typical Christian, I suspect, would have heard the words used often this way by other Christians (even if not the most devout ones), and would therefore not associate the words with a likely message of hostility to Christianity. He may disapprove of the words, but he wouldn't interpret them as deliberate insults, or as "hate speech" "aimed at Christians."

In fact, Tapscott himself acknowledges that he's used Jesus Christ as an exclamation himself, and not just once or twice. Why would he have done that if the phrase were "meant to demean, ridicule, and discredit all who are associated with its target" (presumably all Christians)? Why would he have done that if it wasn't just at most mildly disrespectful, but "insult[ing] and degrad[ing] the name revered by millions of Americans"? I take it that he doesn't regularly mean to demean, ridicule, and discredit Christians, or insult and degrade Jesus's name. The fact that he — and others — use "Jesus Christ" as an expletive suggests that it is not indeed inherently seen as insulting, degrading, demeaning, ridiculing, or discrediting of Christ or of Christians. (Naturally, it could be used in a context where other factors suggest that the speaker is trying to insult Christians; but no such contextual cues are evident in Biden's quote.)

Nor is it particularly telling that Biden didn't apologize. Presumably he doesn't see there much reason to apologize here, or he thinks that an apology would become more of a story than the original quote itself. One might argue that this bespeaks insensitivity to the views of those who are offended by the taking of Jesus's name in vain, but even if that's so, it still doesn't suggest any attempt on Biden's part to insult, degrade, deman, ridicule, or discredit.

Now I think that the lack of Christian condemnation of Biden's use of "Jesus Christ" is a sign of maturity on the part of most Christians. Even if you think that the term is mildly offensive, there's little reason to publicly condemn such mildly offensive behavior, or even to call for a public apology. The violation of the Commandments would not itself be much of a basis for public condemnation; most Christians rightly don't publicly excoriate politicians for worshipping idols, or breaking the Sabbath, and see it as chiefly a matter between the politician and God. And the offensiveness of the words to the hearer, I suspect, is quite mild, for the reasons I mentioned above — there was likely no deliberate desire to insult, and thus likely no reasonable perception of insult, so at most there is a slight sort of disrespect of what others see as holy.

But even if there is a basis for some mild condemnation here, accusing Biden of "hate speech" — especially under the "speech meant to demean, ridicule, and discredit all who are associated with its target" definition — strikes me as simply inaccurate, given the way Biden's use of "Jesus Christ" was likely to have been intended and reasonably understood.

I should note that I've corresponded briefly with Mark Tapscott about this, and confirmed that his argument was indeed serious, rather than an attempt to perform a reductio ad absurdum of various "hate speech" claims. (I thank him for his gracious responses to my questions, which led me to refine my argument in some measure.)

UPDATE: Mark Tapscott has also allowed me to post the following response that I got to an earlier version of the post that I sent him. (My paragraph about Biden's not apologizing is in large measure a reaction to the first paragraph I quote below.)

[I]t depends upon the sense in which Biden intended it, assuming that he had any intent at all. As I pointed out in the column, if it was not an intentional use, then there is no reason for Biden not to offer an apology. Had he done so on his own or through his spokesman, the matter would have been ended. He hasn't and two of his spokesmen declined opportunities to do so on his behalf. The question then becomes whether Biden's use constitutes "hate speech" or mere mendacity. Either way, it conveys at a minimum a disrespect that is inappropriate coming from a public official speaking in an official capacity. Others are certainly free to disagree with my conclusion on that point.

Whether the silence of various Christian bodies bespeaks the maturity you describe or something else, only they can definitively say. My point is that it comes in a public policy context in which for many years public expressions of a Christian nature (prayers at public high school events, Christmas displays, etc.) have been actively discouraged due to what I suspect we both would view as politically correct doctrines, while little or no official discouragement meets expressions hostile to Christianity and its values. If Biden intends his words to be taken in some context other than that, it is his public responsibility to do so; otherwise, he should not be surprised that some significant portion of the community he represents concludes that he meant to be offensive to them.

As for my own confession of failure, there are two key differences between Biden and me in this matter. First, he did it in an official capacity whereas in my case, our fellow citizens have never had to decide whether to entrust me with any official duties (and my expectation is that they, wisely, never will). Second, as a believer, I regret using such language on every occasion, have asked for forgiveness (i.e. apologized), and recognized it as evidence of something Paul described in Romans 7:21-25, the continual presence of the Original Sin that afflicts all of us, according to orthodox Christian belief. Fortunately, God is far from finished with me, as Paul makes clear in Romans 8:1.

186 Comments

Why Marry?:

Via Instapundit, Megan McArdle asks(and answers) "why marry," especially when the tax consequences can be awful. She gives reasonable answers, but doesn't consider a more subtle question: assuming you're religious, why not marry within your religious tradition, in a public ceremony, but not have an official, government-recognized marriage? You're still married in the eyes of God, you have still made a public commitment to a life together, and, in most religious traditions, you'll still need to get some sort of official divorce.

I can imagine all sorts of answers, but I first thought of the question many years ago while watching a rerun of All in the Family. Archie and Edith were scandalized because an elderly couple was living together "in sin" because they didn't want to lose some of their social security benefits. So, why didn't they just go to their minister, have a marriage ceremony, keep their benefits, and tell busybodies Archie and Edith that they WERE married, but just didn't register their marriage with the government?

119 Comments

Alienation of Affections -- Still Alive:

Alienation of affections basically consists of a defendant’s (1) wrongfully (2) causing plaintiff (3) to lose the affection and often company of the plaintiff’s spouse. In principle, it could apply to supposedly meddling in-laws, and has sometimes been applied that way, though if the in-laws are looking out for their married child’s best interest such behavior might not be “wrongful.” In practice, it has generally been applied to people who supposedly seduce away one spouse from the other (if it can be shown that they caused the alienation, rather than that a preexisting alienation of the spouses caused one spouse to be interested in the defendant’s attentions). The related tort of criminal conversation basically consists of a defendant’s having adulterous sex with plaintiff’s spouse, though of course such conduct may also often lead to an alienation of affections claim.

Many people assume that these two torts are dead. But some states -- Hawaii, Illinois, Mississippi, New Mexico, North Carolina, South Dakota, and Utah -- still recognize them (or at least recognize the alienation of affections). And it turns out that they still account for a significant amount of litigation, not much less than some well-established torts whose viability no-one doubts.

It seems that the main jurisdiction in which there's a good deal of alienation of affections litigation is North Carolina. My search through the NC-CS and NC-TRIALORDERS databases in Westlaw uncovered 38 cases from 2000 to mid-2009, and it seems likely there were more (since those databases don’t offer a complete list even of decided cases, and entirely exclude ones that were filed but were settled before any decision). By way of comparison, the well-established tort of slander (oral defamation) seems to be litigated only slightly more often than alienation of affections in North Carolina. The well-established right of publicity seems to be litigated in North Carolina much less often than alienation of affections (2 cases since 2000 in the NC-CS and NC-TRIALORDERS databases, as opposed to 38 for the alienation of affections).

Even on a national basis, a search for sy(“right of publicity” ((misappropriat! appropriat!) +5 (name likeness image))) & date(> 1/1/2000) through the ALLCASES database yielded 150 cases, while sy((alienat! +3 affection) "criminal conversation") & date(> 1/1/2000) yielded 66, of which 50 were in jurisdictions that still recognize one or both of those torts. Now naturally these results may not be representative of all cases litigated through trial, or of all cases filed in court. (For instance, there might be reasons why people might be more or less likely to settle right of publicity cases than they are to settle alienation of affections cases.) Also, my right of publicity query might have excluded some cases in which the matter is discussed solely as "invasion of privacy" (from which the right of publicity derived).

Still, the comparison suggests that alienation of affections claims are not vastly less common than right of publicity claims, which no-one treats as moribund. In many states, it has indeed been abolished, so it's not of practical importance to lawyers who litigate solely under the law of those states (though even California lawyers might come across it if, for instance, their clients acted tortiously in North Carolina, or perhaps even in California with a visiting North Carolinian). But I think it should still be seen as being of scholarly and pedagogical significance to tort scholars and teachers, untainted by a sense that it is somehow entirely moribund.

Related Posts (on one page):

  1. It Is Only an Accident
  2. Alienation of Affections -- Still Alive:
23 Comments

Amicus Brief in U.S. v. Stevens Depictions-of-Animal-Related-Crimes First Amendment Case:

Andrew Tauber and Craig Canetti of Mayer Brown LLP and I worked on this amicus brief on behalf of the National Coalition Against Censorship and the College Art Association, and I thought I'd pass it along in case some of our readers are interested. Here's an excerpt from the Summary of Argument:

The government contends that the criminalization of “depiction[s] of animal cruelty” effected by 18 U.S.C. § 48 is constitutional because it outlaws only a narrow category of expressive material emanating from the “netherworld of animal cruelty” that is forbidden in this country. But in fact, as we will show through practical examples throughout this brief, Section 48 criminalizes, and thus chills, numerous forms of protected expression in the service of a government interest -- the prevention of animal cruelty -- that, by the government’s own admission, already is comprehensively served by State and Federal statutes that directly target the objectionable conduct.

I. By its plain terms and in its practical application, Section 48 extends far beyond “depictions of illegal acts of extreme cruelty.”

A. In fact, Section 48 criminalizes any depiction (intended to be placed in interstate commerce for commercial gain) that shows an animal being wounded or killed by a person acting in violation of any Federal or State law, including laws intended to conserve natural resources, ensure public safety, or regulate the use of dangerous weapons. The statute thus criminalizes depictions of people engaged in acts ranging from hunting with weapons (such as crossbows) that are allowed in some States but not in others, to hunting out of season, to bullfighting.

B. The government’s confidence that depictions having “serious value” will not be subject to prosecution under Section 48 is misplaced. The history of conceptual and avant-garde art, for example, is replete with instances in which the public scorned work later deemed to be groundbreaking and influential.

C. The inadequacy of the protection purportedly afforded by Section 48’s “serious value” exception is compounded by the fact that the statute does not require that the value of a depiction of animal cruelty be assessed in the context of the entire work in which it appears. Viewed in isolation and without context, a depiction of violence to an animal might easily be judged to have no “serious value,” although the larger work within which it is embedded possesses such value.

As written, the statute poses a particular threat to participants in the stock photography industry, who do not create, sell, or possess their images for any “serious religious, political, scientific, educational, journalistic, historical, or artistic” purpose (18 U.S.C. § 48(b)), but rather for an exclusively commercial reason, namely, for sale to third-parties.

Stock images depicting violence to animals -- for example, images of bullfighting, cockfighting, and dogfighting -- thus fall squarely within the ambit of Section 48 yet enjoy no protection under the “serious value” exception.

II. Section 48 does not define the statutory term “serious value.” As a result, criminal liability under Section 48 depends on prosecutors’ and jurors’ subjective, ad hoc assessments of whether a depiction of animal cruelty has such value. That unavoidable subjectivity invites not only inconsistent application of the law, but viewpoint discrimination as well.

III. Section 48 chills protected expression. Criminal liability under Section 48 encompasses anyone who, for commercial gain, “knowingly creates, sells, or possesses” a work containing a depiction of animal cruelty. 18 U.S.C. § 48(a). The reach of the statute thus extends to the many layers of participants involved in the production, distribution, and display of artistic and other works, such as motion pictures, magazines, photographs and video art. If just one necessary but risk-averse participant in the process decides, out of an abundance of caution, not to join in the production, distribution, or display of a work that includes statutorily defined depictions of animal cruelty for fear that it might subsequently be found by a prosecutor or jury to lack “serious value,” the dissemination of protected expression could be deterred. That danger flows directly from the absence of any criteria in Section 48 to guide the application of the “serious value” exception, which makes it impossible for any of these participants to determine prospectively and with any reasonable certainty whether a particular work will be found by a prosecutor or jury to violate Section 48.

You might notice that parts of the brief are based on responses to this bleg of mine. My apologies for not giving credit to the commenters -- had this been a law review article rather than a brief, I would have certainly given credit where credit is due.

I should note that I'm a part-part-part-time Academic Affiliate for the Mayer Brown firm, and worked on this case in that capacity.

8 Comments

Anarchy and Development: I have not yet read Anarchy and Development: An Application of the Theory of Second Best by Peter T. Leeson & Claudia R. Williamson, but the title and abstract sound interesting:
Could anarchy be a constrained optimum for weak and failing states? Although a limited government that protects citizens' property rights and provides public goods may be the first-best governance arrangement for economic development, among the poorest nations such "ideal political governance" is not an option. LDCs face a more sobering choice: "predatory political governance" or no government at all. Many predatory governments do more to damage their citizens' welfare than to enhance it. In light of this, we show that conditional on failure to satisfy a key institutional condition required for ideal political governance—constrained politics—citizens' welfare is maximized by departing from the other conditions required for this form of governance: state-supplied law and courts, state-supplied police, and state-supplied public goods. Since departing from these conditions produces anarchy and fulfilling them when government is unconstrained produces predatory political governance, anarchy is a second best.
(H/T Nate Oman via FB)

"Exploitation" of the Poor is a Poor Reason to Ban Organ Markets:

The arrest of Brooklyn Rabbi Levy Izhak Rosenbaum for trying to broker the sale of a kidney has rekindled public debate over the possibility of legalizing organ markets. This is an issue I teach every year in my Property class. Each time, one of the most common objections raised is the claim that organ markets must be banned because they will lead to "exploitation" of the poor. Obviously, the exploitation argument is often raised elsewhere as well.

There are several major problems with the argument: it is inconsistent with allowing poor people to engage in far riskier activities for pay; it doesn't even begin to prove that preventing the "exploitation" is an important enough value to justify the deaths of thousands of people for lack of organs; and it overlooks the fact that poor organ donors are likely to benefit from organ markets. Finally, even if all these points are unpersuasive, the exploitation argument still can't justify banning organ sales by the nonpoor as well.

I. Poor People Are Allowed to Take Much Greater Risks for Pay.

Many organ market critics may be unaware of the fact that the risks of donating a kidney (the main proposed organ market) are actually very small. As the National Kidney Foundation explains, people who have only one kidney can live normal lives with only minor added health risks, and a life expectancy equal to that of those with two kidneys. For those who sign advance contracts to donate their kidneys after they die, even these minimal risk are not present.

If it is somehow wrong to allow poor people to assume these very minor risks in exchange for pay, why should they be allowed to brave vastly greater dangers for money? Military personnel, firefighters, police officers, and others accept far greater risks to life and limb than kidney donors do. And of course they are paid to do so. Should poor people be banned from entering those professions? NFL players, most of whom come from poor backgrounds, risk very serious injuries. On average, they also lose about 2-3 years of life expectancy for every season they play. Yet no one argues that poor people should be banned from professional football. If it is permissible to "exploit" poor people for the sake of providing entertainment to football fans, shouldn't we be able to do so for the sake of saving thousands of lives?

II. Is Preventing "Exploitation" Important enough to Justify Killing Thousands of People?

As Virginia Postrel explains in this article, some 80,000 lives in the US alone could be saved by legalizing kidney markets. Even if you find the "exploitation" of poor people in organ markets morally repugnant, you have to ask whether following that moral intuition is so important that it justifies sacrificing all those lives. So far, I haven't seen any argument that even comes close to showing that it is.

In this context, it's worth noting that banning kidney markets is actively killing people, not merely the lesser wrong of letting them die by refusing to help. When the US government bans organ markets, it uses the threat of force to prevent dying people from engaging in voluntary transactions to purchase what they need to survive. Those who disobey are imprisoned, as Rosenbaum probably will be. The government would obviously be guilty of active killing if it used force to prevent a starving man from buying from willing sellers the food that he needs to survive. And it could not excuse the killing merely on the grounds that some of the sellers were poor people who might be "exploited."

It's perfectly understandable if you find organ markets offensive or distasteful. But if you want to justify a categorical ban, you have to have a rationale compelling enough to justify killing large numbers of people.

III. Organ Sales are Actually Good for Poor Donors.

Given the minimal risks of organ donation, it is highly likely that kidney markets will actually benefit poor donors far more than they could conceivably harm them. The logic isn't complicated. After all, one of the main problems that poor people face is lack of money. Getting, say, $100,000 for a kidney in exchange for accepting a very small health risk is likely to leave a poor donor much better off than he was before. Indeed, I might well accept that deal myself, despite being relatively affluent. Perhaps the existence of poverty is a morally repugnant injustice. If so, we should be extremely reluctant to ban transactions that might help the poor to alleviate it.

If the poor person reasonably believes that the risk is worth it, I don't see why the government should force her to choose otherwise. Obviously, it's possible that she will miscalculate, underestimating the potential harms. Perhaps that justifies regulations requiring the provision of accurate information about health risks to donors. But it surely doesn't justify a categorical ban - especially given that the risks of donation are minor and relatively easy to understand. If poor people can be trusted to make decisions about whether or not to accept the much greater dangers of military service, firefighting, or playing in the NFL, we should also trust their judgment about organ markets. Indeed, if ill-informed decision-making is really the problem, it would justify banning unpaid organ donations by the poor no less than sales. After all, an unpaid donor could misunderstand the risks just as easily as a paid one.

IV. The Exploitation Argument Doesn't Justify a Ban on Organ Sales by the Nonpoor.

When I teach this issue in Property class, one suggestion I sometimes throw out to people who raise the exploitation issue is the possibility of limiting organ markets to nonpoor sellers. Wouldn't the "problem" be solved by passing a law allowing organ markets, but limiting them to donors whose annual income exceeds some threshold (e.g. - the poverty line or the national average income)? Given that we have 300 million people and only need about 80,000 additional kidneys, a market that excludes the bottom 50% of the income distribution could still probably generate enough organs to eliminate the shortage, or at least a large part of it. Indeed, legalizing organ markets only for nonpoor sellers might actually reduce sales by the poor relative to the status quo, since it would wipe out much of the demand for black market organs (which are usually sold by poor people).

In my experience, those who raise the exploitation argument almost never endorse this proposal - despite the fact that it would eliminate any possible exploitation of the poor caused by legal organ markets without killing thousands of innocent people (as today's categorical ban on organ markets does). Few of them raise any technical policy objection to it. They simply seem find the idea intrinsically distasteful. Nonetheless, if your main objection to organ markets really is the fear of exploitation of the poor, you should at least give the idea some serious thought. If, on the other hand, the exploitation argument is just a rationale for some other objection such as intuitive repugnance at the mere thought of organ sales, then we would have a better discussion if you admit that and focus on the real object of your concern. Just remember that it should be a principle important enough to kill innocent people for.

NOTE: I should perhaps mention that in class, I assign readings on both sides of the issue and don't simply lecture in defense of my own view. I also don't present my objections to the exploitation argument as thoroughly as I have here (partly because of the need for balance and partly because of time constraints). The classroom environment is very different from the blogosphere and imposes different obligations on academics.

UPDATE: The original version of this post said that kidney markets could save 80,000 lives in the US every year. Unfortunately, I misread the source article. In reality, there are only about 80,000 people waiting for kidney transplants in the US in total, with approximately 4000 dying each year. And the article notes that the waiting list (and death toll) grow every year. These are still shocking figures, but admittedly not as bad as the mistaken figure given in the original post. I regret the error, and have corrected the post.

Related Posts (on one page):

  1. "Exploitation" of the Poor is a Poor Reason to Ban Organ Markets:
  2. Ending Kidney Corruption:
126 Comments

Monday, July 27, 2009

Pathogens in Harm's Way:

The Department of Homeland Security is planning a $700 million pathogen research facility in a tornado-prone part of Kansas. The Government Accountability Office thinks this is a supremely bad idea, and that the analysis supporting the decision for placing the facility on the U.S. mainland -- let alone in tornado alley -- is not "scientifically defensible." According to the Washington Post: "The GAO said DHS greatly underestimated the chance of accidental release and major contamination from such research, which has been conducted only on a remote island off the United States." How could this happen? The Post suggests strong bipartisan support could have played a role. Republican Senators Sam Brownback and Pat Roberts joined then-Governor (and now HHS Secretary) Kathleen Sebelius lobbied hard to get the facility in Kansas.

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End Corporate Criminal Liability?

PointofLaw.com is hosting a discussion/debate on corporate criminal liability.

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Women's (or Men's) Concealed Carry Handgun Recommendations:

Some responses to my pepper spray post suggested a gun instead of pepper spray. My friends live in jurisdictions (such as Los Angeles) in which a concealed carry license is very hard to get. I also suspect that some of them would be reluctant to carry a gun even if they could get a license (whether that's a sound view or not, I leave to them).

Still, most Americans live in places where concealed carry licenses are fairly easily available to law-abiding adults, at least those age 21 and above; and presumably because of that, reader George Phipps asked,

Since several responses have suggested a pistol as a more efficacious alternative, would EV consider a new post, with more or less the same requirements, that would ask for comments on a pistol for his friends, provided of course that they would consider a firearm for self-defense?

I am happy to accept the suggestion, and am therefore putting up this post.

In keeping with my original query, I'd like to ask commenters to specially consider what might be preferred by women, or to be more precise (1) by people who might be on the smaller side, or (2) by people who might want to carry in a purse rather than in a holster. On the other hand, if you think you have a good unisex answer, or have advice only for men and not for women, please feel free to post it -- just note whom your advice is focused on.

Related Posts (on one page):

  1. Women's (or Men's) Concealed Carry Handgun Recommendations:
  2. Pepper Spray Recommendations:
137 Comments

Now That's a Tradition I Can Get Behind:

A reader writes:

Periodically a crop of paralegals departs the [name of prestigious government agency omitted]. We give them a parting gift [with funds contributed by the lawyers in the office]. Since almost all go to law school, it has become a tradition to give them inscribed copies of your Academic Legal Writing.

The reader also asked me for personally signed bookplates for the books, which I was of course delighted to send.

UPDATE: Reposted, because comments were broken on the original post. (Honest!)

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Court Orders Woman Not To Post Details About Family Court Proceeding Involving Her Brother:

The Rhode Island ACLU, which is representing the woman, reports:

In a case raising important issues of freedom of speech, the Rhode Island ACLU has intervened in Family Court on behalf of a Barrington woman who has been barred by the Court from posting on the Internet any details about a pending Family Court custody proceeding in which her brother is involved. In a motion filed with the Court, RI ACLU volunteer attorney H. Jefferson Melish calls the ban a violation of Michelle Langlois’ First Amendment rights. The motion also argues that the Family Court had no jurisdiction to issue the order because the proceeding was filed in Kent County, even though neither party lives in that county.

Ms. Langlois’ brother is involved in a child custody case with his ex-wife. After Ms. Langlois posted information about the case on her Facebook page, the ex-wife filed a “domestic abuse” petition against her, claiming that Ms. Langlois’ postings constituted “harassment.” The ex-wife’s petition sought a court order barring Ms. Langlois from posting any information about the case on the Internet. In late June, Family Court Judge Michael Forte issued such an order. When Langlois contacted the ACLU about the matter, the ACLU agreed to provide her representation to challenge the constitutionality of the Internet restriction.

RI ACLU executive director Steven Brown said today: “The court order issued in this case is a significant intrusion on the First Amendment. Every person has the right to comment on public court proceedings, and the court order that prevents Ms. Langlois from doing so on the Internet is precisely the sort of prior restraint on speech that the First Amendment was designed to protect against. Ms. Langlois should no more be barred from speaking out about this case than should a reporter seeking to post information about it on a newspaper web site. We are hopeful that this troubling order will be dismissed.” Michelle Langlois added: “I do not believe the truth was coming out in Family Court. I was simply using the internet to publicize my brother’s plight.”

I've seen the order, which indeed says that Michelle Langlois "is restrained and enjoined from posting details about the children and the pending Family Court proceedings on the Internet." The order strikes me as pretty clearly unconstitutional; I hope the Rhode Island ACLU prevails on this. An order that bars certain constitutionally unprotected publications might be constitutional (for instance, information that a party has gotten using coercive discovery, or some other category of communication that may be constitutionally restricted). But I see no justification for categorically prohibiting the defendant from posting (1) any comments about a government proceeding, to which she is not a party — including, for instance, criticism of the judge's behavior — and (2) any information about her young relatives.

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Ending Kidney Corruption:

Sally Satel thinks politicians are drawing the wrong lessons from the connection between clandestine kidney brokering and the New Jersey public corruption busts.

According to a federal criminal complaint filed in district court in New Jersey, Levy Izhak Rosenbaum of Brooklyn conspired to broker the sale of a human kidney for a transplant. The cost was $160,000 to the recipient of the transplant, of which the donor got $10,000. According to the complaint, Mr. Rosenbaum said he had brokered such sales many times over the past 10 years.

“That it could happen in this country is so shocking,” said Dr. Bernadine Healy, former head of the Red Cross.

No, it isn’t. When I needed a kidney several years ago and had no donor in sight, I would have considered doing business with someone like Mr. Rosenbaum. The current law—the National Organ Transplant Act of 1984—gave me little choice. I would be a felon if I compensated a donor who was willing to spare me years of life-draining dialysis and premature death.

The early responses to the New Jersey scandal leave me dismayed, though not surprised. “We really have to crack down,” the co-director of the Joint Council of Europe/United Nations Study on Trafficking in Organs and Body Parts told MSNBC. That strategy is doomed, of course. It ignores the time-tested fact that efforts to stamp out underground markets either drive corruption further underground or causes it to flourish elsewhere.

The illicit organ trade is booming across the globe. It will only recede when the critical shortage of organs for transplants disappears. The best way to make that happen is to give legitimate incentives to people who might be willing to donate. Instead, I fear that Congress will merely raise the penalties for underground organ sales without simultaneously establishing a legal mechanism to incentivize donors.

Dr. Satel was lucky to have a generous friend in Virginia Postrel who was willing to donate a kidney, many others are not so lucky. As Postrel wrote in The Atlantic:

Living donation is a low-risk procedure for the donor that offers life-changing rewards for the recipient. Yet the donor is the only person involved in the process who receives no compensation. “There’s no reason that someone who does this should not get something substantial that will make a difference in their lives,” says David. To people who like to celebrate living donors as heroes, payment seems terribly crass. But the vicarious thrill of someone else’s altruism comes at a terrible cost.

Our current system is perverse. We encourage the needy with means to travel abroad (so-called "transplant tourism") and the desperate to enter the criminal underworld. Overall, fewer people are saved. Allowing payments to donors may be crass, but it is also more compassionate to those in need.

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Bleg--San Salvador, El Salvador:

For obscure reasons, the Bernstein family, including the little ones, is considering spending 3 or 4 days in San Salavador, El Salvador next month. Encouragement, discouragement, etc. is solicited.

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The Constitution in 2020?

A new book edited by Jack Balkin and Reva Siegel collects essays that envision a progressive constitution by 2020. The odd thing about the book is that the editors stipulate that Warren Court-style judicial activism is dead, while still insisting that a progressive constitution in eleven years is possible or even likely. Hence they and their contributors have the formidable task of imagining how a progressive constitution could emerge without judicial involvement or with limited judicial involvement, or even in the teeth of resistance by a right-wing supreme court. The upshot is that some contributors advocate judicial restraint so that courts will not block progressive legislation duly coughed up by legislatures—a backhanded kind of progressivism if that counts as progressivism at all—while others simply advocate progressive legislation of various flavors without saying much about the courts at all, hoping that this legislative activity will have constitutional implications. Others address a third way, but with mixed results. Adrian Vermeule and I wrote a review for The New Republic, which you can read here. Some of Balkin’s blog posts on the book can be found here, here, and here.

If there is any lesson of the last twenty-eight years of supreme court jurisprudence, it is that supreme court justices—on left and right—have no interest in judicial restraint. Certainly, they have no incentive to engage in restraint; no one of any importance advocates it. As Obama loads up the federal courts with liberals—and especially if he has the chance to appoint a few more supreme court justices—academics will need to supply the theories that rationalize their decisions, an agenda that is inconsistent with the premise of The Constitution in 2020. Young legal academics will flock to the standard even if Balkin and Siegel’s contributors stick to their guns. The book is mistimed but that was an inevitable consequence of its whole conception. Balkin amusingly told NPR, “My view of the Supreme Court is sort of like the husband in the French farce…. He’s always the last to know.” He thinks that the Court takes its lead from political developments including social movements. But a better candidate for the husband in the French farce is not the supreme court but the legal academy. Nothing to be ashamed of, but academics are thinkers, not prophets or even doers. “The owl of Minerva takes flight at dusk.”

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Merce Cunningham, Adieu:

The legendary choreographer Merce Cunningham has died at the age of 90. He and John Cage altered the landscape of the avant garde in dance and music. When younger, I attended a lot of dance recitals - I took a fair amount of dance, despite having anything but the body type for it. The fencing teams I was part of often met in dance studios, so I was around dancers a lot from an early age, including some first girl friends - I was under the impression in my early teens that all girls stood around with perfect turnout and upturned chin and little bun at the back of the head and aspired to Giselle.

I love dance, actually, and I recall seeing a couple of the MC performances at UCLA in the early 1980s. They really stimulated me. I eventually got tired of the whole random thing, the John Cage silence thing, not so much because of what Cunningham and Cage did with it, but because it so quickly and inevitably became a schtick in later hands, and a schtick at the expense of actual formal technique. Back at UCLA, a young avant garde film student, much influenced by Cage, once asked me if I would put my modest cello playing skills at his disposal as the sound track to his film. He had in mind some (for me) fairly difficult music, and I spent many months working it up and recording it for him. Having been perhaps overinfluenced by the avant garde, however, he took the tape with my (okay, not so thrilling) efforts, and proceeded to stomp on it, sprinkle the tape with oil and dribbles of bleach, and finally run it through a bucket of sand. Then he used that as the "musical" soundtrack. There wasn't much cello, high quality or low, left on the tape, and when I expressed my less-then-thrilled views, he told me that it wouldn't have been the same had I not put those months of effort into it. He cited Cage as inspiration (which I thought was not quite right) and thanked me sincerely and entirely without apology.

Still, even after I had tired of the gimmicks that all this zenny stuff spawned, I always loved Merce Cunningham Company performances. The dance was always amazing, it had something that really did introduce a spontaneity to contemporary dance that must have been like a glass of cold water when it first appeared. It managed to move and excite me when I saw it decades later. Merce Cunningham, adieu.

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Pepper Spray Recommendations:

Some women friends of mine are interested in getting pepper spray. If any of you have researched which products or product designs are most effective and most convenient, or have had experiences that lead you to favor one or another, I'd love to see your recommendations in the comments. I'm looking for a device that's the best mix of effectiveness, reliability, ease of use, and ease of carrying. Cost matters very little. Thanks!

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Georgia Courts Expressly Allow Religious Headgear in Court:

I blogged late last year about a Georgia woman who "was jailed ... after a judge found her in contempt of court for refusing to remove her hijab, the head covering worn by Muslim women." I'm pleased to report that the Georgia courts just announced a headgear policy that expressly allows religious headgear:

The Georgia courts have adopted a new policy on head coverings that will take effect in every court in Georgia. At a meeting Wednesday of the Judicial Council of Georgia –- the policy-making body of Georgia’s courts -– judges from around the state voted unanimously to endorse the measure permitting headgear in court that is worn for religious or medical reasons. Other types of head coverings will continue to be prohibited in courtrooms.

The policy is designed to balance a court’s legitimate security concerns with a person’s right to practice his or her faith in a public place. Under the new policy, if a security officer wanted to conduct a search, the person would have the option of having the inspection performed in a private area by an officer of the same gender.

The measure stems from the December 2008 arrest of Lisa Valentine after she refused to remove her hijab, the head scarf worn by Muslim women. She said to do so would violate her faith. But Judge Keith Rollins of the Douglasville Municipal Court found her in contempt of court and ordered her to serve 10 days in jail. The incident prompted a formal complaint from the U.S. Department of Justice. The Anti-Defamation League, Council on American-Islamic Relations and American Civil Liberties Union also lodged complaints. On June 12th, Ms. Valentine testified before the Supreme Court of Georgia Committee on Access and Fairness in the Courts.

“If this had been a nun, no one would have required her to remove her habit,” said Chief Justice Carol Hunstein, who chairs the Judicial Council. “I think this is a good rule, and I think it’s clear.”

Specifically, the adopted policy states: “Head coverings are prohibited from the courtroom except in cases where the covering is worn for medical or religious reasons. To the extent security requires a search of a person wearing a head covering for medical or religious reasons, the individual has the option of having the inspection performed by a same-sex officer in a private area. The individual is allowed to put his or her own head covering back on after the inspection is complete.”

As I wrote last December, this not a new or Muslim-specific issue (just as many of the religious accommodation questions involving Muslims have arisen in the past with non-Muslims). Trial judges have, for instance, applied no-hat rules to demand that parties or witnesses remove yarmulkes, see, e.g., Close-It Enterprises, Inc. v. Weinberger, 64 A.D.2d 686 (N.Y. App. Div. 1978), or their Catholic or Episcopalian priestly garb, People v. Drucker, 418 N.Y.S.2d 744 (N.Y. Crim. Ct. 1979); O'Reilly v. New York Times Co., 692 F.2d 863 (2d Cir. 1982); Ryslik v. Krass, 652 A.2d 767 (N.J. Super. App. Div. 1995). The priest cases didn't involve headgear, but one can easily imagine similar issues arising as to nuns' habits. And nearly all the appellate courts that have considered the matter have expressly held that such rules should not be so applied to people who wear headgear or religious garb for religious reasons. For instance, a Seventh Circuit opinion by noted conservative judge Frank Easterbrook put it well:

The Constitution does not oblige the government to accommodate religiously motivated conduct that is forbidden by neutral rules, and therefore does not entitle anyone to wear religious headgear in places where rules of general application require all heads to be bare or to be covered in uniform ways (for example, by military caps or helmets). Yet the judicial branch is free to extend spectators more than their constitutional minimum entitlement.

Tolerance usually is the best course in a pluralistic nation. Accommodation of religiously inspired conduct is a token of respect for, and a beacon of welcome to, those whose beliefs differ from the majority's. The best way for the judiciary to receive the public's respect is to earn that respect by showing a wise appreciation of cultural and religious diversity. Obeisance differs from respect; to demand the former in the name of the latter is self-defeating.

It is difficult for us to see any reason why a Jew may not wear his yarmulke in court, a Sikh his turban, a Muslim woman her chador, or a Moor his fez. Most spectators will continue to doff their caps as a sign of respect for the judiciary; those who keep heads covered as a sign of respect for (or obedience to) a power higher than the state should not be cast out of court or threatened with penalties. Defendants are entitled to trials that others of their faith may freely attend, and spectators of all faiths are entitled to see justice being done.

Whatever might be the symbolism of wearing a normal hat indoors, surely there's no disrespect that's usually intended, or likely to be reasonably perceived, when someone is wearing religiously mandated garb. A judge need not feel insulted by an Orthodox Jew's wearing a yarmulke, or a Muslim woman's wearing a hijab.

So there's no important government interest really being served here. But the burden on the religious objectors is very great: A no-religious-headgear rule in court means that if they are to comply with their felt religious obligations, they can't participate in one of the most important functions of American civic life. In some cases, the religious objectors might be accompanying relatives to court, itself a pretty important function. In other cases, they might be parties, witnesses, or even criminal defendants, whose presence may be legally mandated for some purposes. Even if they are not legally forced to be in the courtroom, they may still have to forgo adequately litigating their cases, or defending their liberty, as the price of complying with their religious obligations.

This is precisely the sort of situation where religious accommodation makes perfect sense — just as the constitutionally specified accommodation of witnesses and officeholders who refuse to swear, and instead must affirm, makes perfect sense. As I've written before, requests from minority religious groups for accommodation are a longstanding and respectable part of the American tradition of religious freedom. Where religious pluralism goes, multiculturalism is indeed a traditional American value. To be sure, not all religious beliefs have been accommodated, and not all should be accommodated. But when accommodation is cheap — where the only matter at stake is the judge's sense of decorum, which shouldn't even be seen as undermined by the wearing of religious headgear, as opposed to a baseball cap — and the religious objector's interests in participating in a government function are important, the religious objectors should indeed be accommodated.

To be sure, under Employment Division v. Smith, which I generally approve of, such accommodation probably wouldn't be a constitutional obligation (at least unless some other constitutional right, such as a criminal defendant's right to participate in her trial, or to put on witnesses, is involved). If a judge evenhandedly cites for contempt Orthodox Jews, Catholic nuns, and Muslim hijab-wearing women who refuse to remove their headgear, his actions might not violate the Constitution. But state court systems should aspire to something more than just constitutionally minimal religious accommodation; the Georgia courts' decision thus strikes me as quite right.

Thanks to Religion Clause for the pointer.

UPDATE: A commenter asks whether the policy would also apply to face coverings (such as veils) or just to hats and scarves that leave the face visible. I think it wouldn't.

Literally a veil is indeed part of a "head covering"; in fact, it covers more of the head than a yarmulke or a nun's habit. But I suspect the courts were using "head covering" in the more common sense of something that covers the top of the head (and perhaps the sides and back), rather than the face. Among other things, face coverings raise various concerns about judging a witness's demeanor (and ascertaining a person's identity) that the press release didn't discuss, and that the judges likely didn't focus on in making the rule. And of course the case that triggered the adoption of the policy, discussed in the press release, involved a hair covering, not a face covering.

These factors might matter less with a statute or a constitutional provision, which might well be literally interpreted according to its terms. But I expect that Georgia judges will interpret this policy (itself made by Georgia judges) to focus on hair coverings, not on face coverings.

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John Yoo, On the Offensive:

The Washington Post has an interesting article today on John Yoo's efforts to defend his work at the Justice Department's Office of Legal Counsel. It begins:

Some public figures, if their judgment and ethics come under fire, retreat into solitude. Then there is John C. Yoo.

The former Justice Department official, whose memos blessed the waterboarding of terrorism suspects and wiretapping of American citizens, has come out fighting, even as negative assessments of his government service pile up. . . .

While former colleagues have avoided attention in the face of such scrutiny, Yoo has been traveling across the country to give speeches and counter critics who dispute his bold view of the president's authority. Now a law professor at the University of California at Berkeley, he engages in polite but firm exchanges with legal scholars over conclusions in their academic work.

The article also discusses the effect of Yoo's decision to retain private counsel rather than rely upon DoJ attorneys. This decision avoids a potential conflict-of-interest for DoJ attorneys who would have had to defend Yoo while opposing his policies.

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The SG's "Remarkable" Citizens United Brief:

On the Election Law blog, Rick Hasen has an interesting post on "The Government's Remarkable Supplemental Brief in Citizens United."

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Monday Bear Blogging:

It seems that Yellow-Yellow of the Adirondacks is a very special bear, capable of opening the "BearVault 500" food canister, which had been designed to be bear-proof. Now it's back to the drawing board for BearVault's makers. They're using Yellow-Yellow to field test their next model.

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Vote For/Against Public Option: I recently joined the Arena Players on The Arena at Politico, though I have yet to post anything. Today's topic is a debate on the so-called "public option" of a government provided health insurance plan and features Maggie Mahar (FOR), of the Century Foundation HealthBeat blog, and Stuart Butler (AGAINST) of the Heritage Foundation. You can vote for or against the public option here.

A Modest Proposal for Bar Exam Reform:

This week, many of my former students will be undergoing the painful experience of taking the Virginia bar exam. My general view on bar exams is that they should be abolished, or at least that you should not be required to pass one in order to practice law. If passing the exam really is an indication of superior or at least adequate legal skills, then clients will choose to hire lawyers who have passed the exam even if passage isn't required to be a member of the bar. Even if a mandatory bar exam really is necessary, it certainly should not be administered by state bar associations, which have an obvious interest in reducing the number of people who are allowed to join the profession, so as to minimize competition for their existing members.

In this post, however, I want to suggest a more modest reform. Members of bar exam boards, such as the Virginia Board of Bar Examiners and presidents and other high officials of state bar associations should be required to take and pass the bar exam every year by getting the same passing score that they require of ordinary test takers. Any who fail to pass should be immediately dismissed from their positions, and their failure publicly announced (perhaps at a special press conference by the state attorney general). And they should be barred from ever holding those positions again until - you guessed it - they take and pass the exam.

After all, if the bar exam covers material that any practicing lawyer should know, then surely the lawyers who lead the state bar and administer the bar exam system itself should be required to know it. If they don't, how can they possibly be qualified for the offices they hold? Surely it's no excuse to say that they knew it back when they themselves took the test, but have since forgotten. How could any client rely on a lawyer who is ignorant of basic professional knowledge, even if he may have known it years ago?

Of course, few if any bar exam officials or state bar leaders could pass the bar exam without extensive additional study (some might fail even with it). That's because, as anyone who has taken a bar exam knows, they test knowledge of thousands of arcane legal rules that only a tiny minority of practicing lawyers ever use. This material isn't on the exam because you can't be a competent lawyer if you don't know it. It's there so as to make it more difficult to pass, thereby diminishing competition for current bar association members (the people whose representatives, not coincidentally, control the bar exam process in most states - either directly or through their lobbying efforts). Effectively, bar exams screen out potential lawyers who are bad at memorization or who don't have the time and money to take a bar prep course or spend weeks on exam preparation.

My proposed reform wouldn't fully solve this problem. But it could greatly diminish it. If bar exam board members and bar association leaders were required to take and pass the exam every year, they would have strong incentives to reduce the amount of petty trivia that is tested. After all, anything they include on the exam is something they themselves will have to memorize! As prominent practicing lawyers, however, they presumably are already familiar with those laws that are so basic that any attorney has to know them; by limiting the exam to those rules, they can minimize their own preparation time. In this way, the material tested on bar exams might be limited to the relatively narrow range of legal rules that the average practicing lawyer really does need to know.

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If You're Reading This, You're Probably a Federal Criminal:

Radley Balko has an interesting post discussing the ever-expanding reach of federal criminal law. As he points out, the problem is not just that federal criminal law has expanded to cover many areas that are better left to state or local governments. It is that the scope of federal criminal law is so broad that the feds could probably find a crime to pin on almost any American adult.

Judge Alex Kozinski and Misha Tseytlin have an excellent essay entitled "You're (Probably) a Federal Criminal." As they put it, "most Americans are criminals, and don't know it, or suspect that they are but believe they'll never get prosecuted." You are a federal criminal if you have done any of the following:

1. Used any of the hundreds of substances banned by federal law, including smoking small amounts of marijuana and the like when you were in college. The last three presidents of the United States are all federal criminals under the drug laws, as are probably the majority of people who went to college in the last 40 years. Kozinski and Tseytlin cite statistics suggesting that nearly half of Americans have taken banned drugs at some point in their lives. The next presidential state of the union address should perhaps begin with "My fellow federal criminals," instead of the traditional "My fellow Americans." It would be a great teaching moment!

2. Underpaid federal taxes (often even inadvertently). As even sophisticated players like certain Obama Administration officials have learned, the federal tax laws are often so complex and bvzantine that it's not hard to violate them by accident. If you do, there are often criminal penalties attached.

3. Cut corners in your business dealings. The federal mail and wire fraud statutes are so broad that virtually any sharp business practices can potentially be prosecuted as a federal crime. Indeed, as Kozinski and Tseytlin explain, the statute criminalizes actions that deprive employers or customers of "the intangible right to honest services," which in many cases leads to the imposition of criminal penalties on professionals who are guilty of nothing more than doing a poor job (sometimes in cases where their poor performance didn't cause any harm.

4. Mishandled supposedly dangerous substances or did a poor job of supervising workers who handled them. Federal regulations criminalizing such conduct often punish people even if their actions didn't create any real danger to life, health or public safety.

5. Violated a wide range of miscellaneous federal regulations. There are far too many of these to list. Kozinski and Tseytlin discuss some of them. One example is the Lacey Act, which makes it a federal crime to violate most American and even foreign fishing and wildlife regulations. They note a case where a group of businessmen were imprisoned for violating an obscure Honduran fishing regulation that even the Honduran government itself claimed was invalid.

The vast scope of federal criminal law is a very serious problem. Because of it, most Americans are effectively at the mercy of federal officials whenever they might choose to come after us. We are used to thinking of "criminals" as a small subset of the population. In that happy state of affairs, criminal law threatens only a small number of people, most of whom have committed genuinely heinous acts. But when we are all federal criminals, perfectly ordinary citizens can easily get swept up in the net simply by being unlucky or because they ran afoul of federal prosecutors or other influential officials. Overcriminalization also leads to the longterm imprisonment of hundreds of thousands of nonviolent people (mostly as a result of the War on Drugs, but many for other reasons as well) who haven't caused any harm to the person or property of others. Some 55% of all federal prisoners are nonviolent drug offenders. In addition, the ability to convict almost anyone of a federal crime means that federal officials have wide discretion to punish people who are unpopular, politically weak, run afoul of the current administration, or otherwise become tempting targets. Tellingly, the people who get imprisoned for nonviolent drug offenses are mostly poor and lacking in political influence, while middle class people who do similar things are less likely to be singled out by federal prosecutors.

To me, the amazing thing is not that federal prosecutors sometimes abuse their enormous powers, but that they don't do so far more often. However, as federal criminal law continues to expand, it will be more and more dangerous to keep relying on their self-restraint or that of the Department of Justice.

These dangers are not unique to federal law. State criminal law has been expanded too far as well. However, states that overcriminalize risk losing people who "vote with their feet" either because they fear imprisonment or because they don't want to pay the high taxes needed to finance an overgrown criminal justice and law enforcement system. It is far more difficult to escape the feds. It is, therefore, no accident that the vast majority of federal prisoners are either nonviolent drug offenders or people who commit regulatory "crimes," while 72% of state prisoners have committed either violent offenses (53%) or property crimes (19%). Overbroad state criminal law is a menace. The fact that we are all federal criminals is even worse.

UPDATE: I want to briefly address two points regarding the statistic I cited indicating that 55% of federal prisoners are nonviolent drug offenders (both raised by various commenters and e-mailers). First, it is true that most of these people are small-time traffickers rather than mere users. That does not, however, take away from the fact that mere users are also subject to heavy penalties under federal law. Most are spared them, but only because of underenforcement. In any given case, federal prosecutors still can go after users if they so choose, which leaves a large part of our population effectively at the feds' mercy. Also, the plight of the traffickers is still significant. Even if you are more sympathetic to the War on Drugs than I am, it might still trouble you that people who sell small quantities of drugs are routinely sentenced to many years in federal prison.

Second, it is also likely that some of the people convicted of nonviolent drug offenses also, at some point, committed violent crimes for which they were not convicted (e.g. - perhaps for lack of evidence). However, it is implausible to assume this to be true for the vast majority of the hundreds of thousands of people imprisoned for nonviolent drug crimes. And, in a free society, we should not imprison people for activities that do not deserve lengthy prison terms in themselves merely because we suspect that they committed other, worse, deeds.

Moreover, much of the violence that drug dealers engage in is itself a product of the War on Drugs. By creating a vast illegal market, the War on Drugs creates opportunities for organized crime and gangs, which in turn tend to enforce their contracts and property rights through violence, since they obviously cannot turn to the legal system to do so. This point is made in numerous social scientific studies of the War on Drugs, such as Dukes and Gross' America's Longest War. In addition to the moral problems, citing drug-related violence as a justification for imprisoning people for nonviolent drug offenses ignores the fact that drug prohibition is itself the major cause of such violence.

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