The Volokh Conspiracy

Slate columnist Farhad Manjoo has an interesting article arguing that conservatives are right to complain about the IRS’ use of political profiling, but argues that they should use the same reasoning to rethink their support for racial profiling in law enforcement. As he points out the IRS justification for political profiling is very similar to standard arguments for racial profiling in combatting terrorism and crime:

Pretend you work at the Internal Revenue Service... Every day, a big stack of files lands on your desk.... Each file represents a new application for a certain tax status—501(c)(4), a tax-exempt designation meant for “social welfare” organizations. Nonprofits with this status aren’t required to disclose the identity of their donors and they’re allowed to lobby legislative officials. The catch is that they must limit their political campaign activity....

It’s your job to decide which 501(c)(4) applications represent legitimate social-welfare organizations, and which ones are from groups trying to hide their campaign activities. What’s more, you’ve got to sort the good from the bad very quickly, as you’re being inundated with applications....

So what do you do? You look for a shortcut. Someone at your office notices that a lot of the applications for 501(c)(4) status are from groups that claim to be part of the burgeoning Tea Party movement. Aha! When you’re looking for signs of political activity, wouldn’t it make sense to search for criteria related to the largest new political movement of our times? So that’s what you do...

[T]here’s a name for the kind of shortcut that the IRS’s Cincinnati office used to pick out applications for greater scrutiny: “profiling.” By using superficial characteristics—groups’ names or mission statements—to determine whether they should be subject to deeper investigation, the IRS was acting like the TSA agent who pulls aside the guy in the turban, or the FBI agents that target mosques when investigating terrorism, or New York City cops who stop and frisk young black males in an effort to prevent crime....

All these efforts rely on the same intellectual justification—looking at surface characteristics makes sense because they’re a potential signal of deeper activity, whether it’s terrorism or crime or electioneering. As a right-wing blogger might say, “Not all Muslims are terrorists—but most terrorists are Muslims....”

That’s exactly what the IRS was doing with Tea Party groups. Not all Tea Party groups applying for 501(c)(4) status were engaged in campaign politics. But out of all the many groups that applied for such status, wouldn’t any reasonable person guess that a group called “Tea Party Patriots” is more likely to be engaged in campaign activity than, say, a group focused on rescuing abandoned puppies?

The deep irony of the IRS scandal is that people on the political right are being subjected to exactly the kind of profiling that they’ve long advocated in fighting terrorism and crime—and they don’t seem to appreciate it. I’m on their side: This case perfectly illustrates why profiling is wrong...

I made a similar point several years ago when I explained the parallels between the conservative defense of racial profiling and left-wing rationales for affirmative action (see here and here). Overall, I think Manjoo is right. And if he has not already done so, he should extent his skepticism about the use of profiling to cover the affirmative action case.

But I do have two caveats about his argument. First, I am not convinced that the IRS was merely engaged in neutral profiling intended to increase the chance of ferreting out political groups. It is true that “a group called ‘Tea Party Patriots’ is more likely to be engaged in campaign activity than, say, a group focused on rescuing abandoned puppies.” But the same is true of a group called “Occupy Wall Street” or one with some other name using a standard left-wing catch-phrase. Yet there is no evidence that the IRS targeted groups with liberal code words in their names in the same way it targeted conservative ones. That suggests political bias, not just a simple effort to economize on search costs. Obviously, however, racial profiling in law enforcement often flunks the neutrality test as well.

Second, I would not go as far as Manjoo in abjuring all forms of profiling. There is a difference between profiling based on characteristics that impinge on important constitutional rights such as freedom of speech and freedom from racial discrimination by government and profiling policies that rely on less problematic proxies. The latter may also be unjust or ineffective. But they are not as objectionable as profiling based on race or ideology.

That said, I hope that the IRS scandal will indeed persuade conservatives who support racial profiling to reconsider the issue. I also hope that more liberals will apply their critique of racial profiling to affirmative action.

Last week, economist Bryan Caplan wrote an interesting post explaining why people’s virtue or lack thereof is often most evident in their unpopular views:

Consider a world where 80% of people are Conformists, 10% of people are Righteous, and 10% are Reprobates. The Conformists are epistemically and morally neutral, so they believe and support whatever is popular. The Righteous are epistemically and morally virtuous, so they believe and support whatever is true and right. The Reprobates are epistemically and morally vicious, so they believe and support the opposite of what the Righteous believe and support....

What happens? There are clearly two equilibria: one good, one bad. If the true&right is popular, then the Conformists and the Righteous have 90% of the vote, so the true&right prevails. If the true&right is unpopular, then the Conformists and Reprobates have 90% of the vote, so the false&wicked prevails.

Now suppose that in this world, you are trying to assess an individual’s virtue. In the good equilibrium, identifying the virtuous is hard. Only 1 out of 9 supporters of the status quo is genuinely virtuous. The vast majority support the true&right out of sheer convenience. Identifying the vicious, however, is easy. In the good equilibrium, all supporters of the false&wicked are vicious.

The mirror image holds in the bad equilibrium. Identifying the virtuous is easy: Everyone who supports the true&right despite their unpopularity is virtuous. Identifying the vicious, in contrast, becomes hard...

On the plausible assumption that most real-world people are basically conformists, you can’t accurately assess virtue by studying people’s views in isolation. You have to look at their unpopular views. Believing true&right things despite their unpopularity is a sign of genuine virtue. Believing false&wrong things despite their unpopularity is a sign of genuine vice.

There is a lot of truth to Bryan’s argument. For example, modern Americans deserve little credit for being opposed to slavery, because almost everyone holds that view today. By contrast, William Lloyd Garrison deserves great credit for being an antislavery activist back when it was extremely unpopular in the 1830s. I would, however, extend Bryan’s argument to separate out moral and epistemic virtue. Some people might be genuine truth-seekers willing to court unpopularity, but simply do a poor job of evaluating the truth or falsehood of particular views. Others might be very good at evaluation, but choose not to use those skills because they care more about social acceptance than truth. One could argue that the well-intentioned but epistemically incompetent person deserves greater moral credit than the one who combines the opposite set of traits.

For readers who want to evaluate me using Bryan’s test, here are some of the most unpopular views I have ever expressed here at the VC, based on their divergence from those of the average voter:

1. Organ markets should be legalized.

2. Most (though not all) public sex and public nudity should be legalized.

3. Knowledgeable children should be allowed to vote.

4. The entire War on Drugs (not just the ban on marijuana and a few other relatively popular drugs) should be abolished.

5. It is unjust to decide immigration policy without giving the rights and interests of would-be immigrants at least close to the same weight as those of current residents of the United States.

Somewhat less unpopular, but still strongly counter to conventional wisdom:

6. No one has any special moral obligations to other people of the same race or ethnicity, including members of historically persecuted minority groups, (e.g. – Jews have no special moral obligations to other Jews, blacks have no special obligations to other blacks, etc.). It is possible that this position is more popular than I think it is. I haven’t seen any systematic survey data on it, and am mostly judging based on personal experience, combined with the ubiquity of rhetoric claiming that we have obligations to “our people” and the like.

7. Nationalism is a great evil, usually causing more harm than good even in its relatively more moderate forms. The conventional wisdom, I think, is that nationalism is a generally good or at least neutral phenomenon that becomes problematic only if taken to extremes.

There are important commonalities between 1, 2, and 4 on my list, and also between 5, 6, and 7. The former stem in part from my rejection of moral arguments that draw on the “yuck factor,” at least in so far as they are used to justify making anything illegal. The latter are partly a reflection of my unusually strong skepticism about moral claims based on ties of race, ethnicity, culture, or sovereignty.

Several of the above positions are less uncommon in academia than among the general public. But most do not enjoy majority support even among academics. There are, of course, many other issues where I go against the views of the majority of academics (who are, on average, much more left-wing than I am). But most of them are cases where my view has much greater support from general public opinion than the above.

UPDATE: I have made a few stylistic changes to this post.

This Vancouver Sun article reports that dogs are much more effective at sniffing out meat than drugs [HT: Steve Bainbridge]:

Federal search dogs at international border entry points have a penchant for sniffing out one thing more than anything else: meat.

In fact, dogs trained to find animal products turn up meat around 20 times more frequently than drug-sniffing dogs find narcotics, according to government documents obtained by Postmedia News under access-to-information legislation.

The release of the data comes as federal officials question the necessity and effectiveness of the dogs, with the Canada Border Services Agency dismantling some of its search-dog teams over the past year – a move the federal union believes will erode the ability to quickly search incoming cargo and seize drugs and firearms.

The article gives lots of explanations for this entirely unsurprising finding. But it ignores the obvious points that dogs like meat a lot more than drugs. Meat is edible while drugs (usually) are not. Thus, your average canine has evolved to be a much better meat detector than drug detector. In addition, as I discussed in this post, drug-sniffing dogs often err because their main objective is to please their human handlers rather than find the drugs as such; as a result they tend to signal “false positives” if they sense that that’s what the handler wants. By contrast, meat-sniffing dogs have reasons of their own for finding meat. The point is so glaringly obvious that this could be considered a dog-bites-man story – except that it is actually much more common for dogs to bite pieces of meat than humans.

Unfortunately, there is a more serious side to the story. Despite the fact that drug-sniffing dogs have a high error rate, government policy – and even Supreme Court decisions - are often based on the assumption that they are far more accurate than the evidence shows.

In his first Inaugural Address, President Obama famously said that we should not ask “whether our government is too big or too small, but whether it works.” I criticized this indifference to the size of government in one of my very first posts of the Obama Presidency. More recently, however, longtime Obama adviser David Axelrod recognized that the size of government does matter after all:

As the nation’s chief executive, President Obama is accountable for the IRS, State Department and Justice Department. His longtime adviser David Axelrod last week blamed a too-big government for the scandals: “Part of being president is that there’s so much beneath you that you can’t know because the government is so vast.” [HT: Don Boudreaux]

In my 2009 post on Obama’s Inaugural Address and in a forthcoming book, I explained that one of the dangers of big government is that rationally ignorant voters are unable to effectively monitor its activities. A closely related problem is that the modern federal government is also too large for the president to effectively monitor – even with the help of topnotch advisers like Axelrod.

Axelrod’s defense of Obama is actually very plausible. It is quite possible that Obama didn’t know about the IRS’ abusive targeting of conservative groups, and that if he had known he would have ordered them to stop – if only to forestall a scandal that might become a dangerous political liability. Yet Obama probably didn’t know because, as Axelrod puts it, “the government is so vast” that he could not possibly keep track of what it was doing.

In fairness to Obama, much of the government growth that makes his job so difficult occurred on his predecessor’s watch. The current administration is far from solely responsible for the overgrown size of modern government. But the president would be entitled to greater sympathy if he hadn’t spent much of the last four years expanding the size of government even further, and claiming that we shouldn’t worry about its growth.

UPDATE: This recent Washington Post story reports that senior White House officials admit they knew about the IRS abuses in April but claim they did not tell Obama. Even if we decide not to believe their denials on the latter point and conclude that Obama found out at the same time as they did, that still means he was unaware of the problem for over three years, since the targeting of Tea Party groups apparently began in March 2010.

Patrick Allen Foster of the Pub Editor blog has an interesting round-up of commentary generated by Matthew Yglesias’ recent Slate article on Star Trek, including my own post on the subject.

My wife and I recently watched Star Trek: Into Darkness, the second in the series of J.J. Abrams-directed”reboot” Star Trek movies that began in 2009. On the plus side, the film had some impressive action scenes and special effects. It also had more and somewhat better character development than its predecessor. Long-time fans of the series might like the many clever nods to the original series from the 1960s. At the very least, the movie was fun to watch, and I think we got our money’s worth.

Nonetheless, the negatives outweigh the positives. Unsurprisingly, Into Darkness has most of the same flaws as the previous Abrams Star Trek movie, which I criticized here. Both films essential turn Star Trek into an action movie that just happens to utilize Trek characters and settings. I am far from an uncritical admirer of Star Trek as envisioned by Gene Roddenberry and his successors. Nor was I ever the kind of fanatical Trekkie who goes to conventions wearing Vulcan ears or signs up for classes at the Klingon Language Institute. But, despite its many flaws, I admired the Star Trek franchise’s willingness to take on big questions about the kind of future we should want for humanity. Abrams’ “reboot” essentially ignores all serious issues, and just ramps up the action. I don’t deny that a “reboot” may have been needed, given the poor quality of the last several old-line Star Trek movies; but not a reboot that jettisons almost everything that made Star Trek interesting and unique.

In addition, Into Darkness has huge plot holes big enough to fly a whole fleet of Romulan warbirds through. In the interest of avoiding spoilers, I won’t go through them in detail. I will only note that, for the Federation to get into the predicament that is the main focus of the plot, Star Fleet’s leadership would have to be ridiculously stupid. To take just one of many examples, it seems that Star Fleet Headquarters and Earth generally have no fixed defenses of any kind against incoming warships and missiles, even though previous history clearly established that such defenses are both feasible given the level of their technology, and clearly necessary, given previous enemy attacks. Yet none of the characters even mention this and other comparably ridiculous mistakes, not even the supposedly hyper-logical Mr. Spock (who makes some whopping errors of his own in the movie, which are also ignored by the other characters).

Perhaps the real implicit message of the reboot movies is to endorse the views of social critics who worry that advancing technology has bred a “generation of nincompoops.” Maybe the producers expect the nincompoopery to get even worse in the future, infecting Vulcans and Klingons as well as humans. Indeed, if the Klingons, Romulans, and other rivals of the Federation were minimally competent, it’s hard to understand how the Star Fleet portrayed in the reboot movies could possibly have become a major power in the galaxy. Maybe the “darkness” into which the Federation has descended is a severe outbreak of extreme stupidity among Star Fleet’s best and brightest. Although I strongly disagree with this kind of technopessimism, a science fiction series that seriously explored the idea that high technology leads to a “dumbed down” society might be interesting. Unfortunately, Abrams’ movies seem to raise the issue only unintentionally.

UPDATE: Mike Rappaport responds to this post here:

I agree with Ilya that the new movie fails to address the serious questions, but I think that was largely true of all of the Star Trek movies – especially the good ones. It was the series – and especially some of the individual episodes – that really addressed these matters. And, of course, it is a lot easier to do that in a series....

[T]he new movie and the rebooted movie series were able to accomplish something that the old movies never achieved: the first two consecutive movies were both good. The old series of movies, peculiarly but consistently, generated one good movie only to be followed by a bad movie. That was frustrating. Star Trek: Into Darkness was able to avoid this affliction.

I agree that serious issues are easier to address in a TV series than in a movie. But I think Mike is too soft on the Abrams movies (neither of which were actually good, given the stupidity of their plots, and the weak characterization in the first one), and too hard on some of the earlier Star Trek movies. The first two earlier movies were both good and took on serious issues. The first movie addressed the nature of sentience, while the second took on the ethics of genetic engineering and revenge. And both had at least minimally intelligent plots, which is more than can be said for either Abrams production.

Next Monday at 7 AM eastern time (probably rebroadcasting at that time in other time zones), I will be on Stand Up! with Pete Dominick on Sirius XM Satellite Radio, discussing my forthcoming book Democracy and Political Ignorance: Why Smaller Government is Smarter, which will be published by Stanford University Press in early fall (probably September or early October).

Stanford UP has created a website for the book. You can, if you like, preorder the book there. We even have a special coupon code just for Volokh Conspiracy readers that will give you a 20% discount at the Stanford site; the code is S13LAW. OK, actually the code is available to anyone who wants to use it. But at least VC readers will now be the first to find out about it! You can also preorder the book at Amazon, while still being eligible for any price reductions that either Amazon or Stanford UP adopt between now and the publication date.

Sirius Satellite Radio has posted the audio of my recentdiscussion of the Supreme Court with George State University Professor Eric Segall on Stand Up! With Pete Dominick. The audio is available here.

Much of the discussion focuses on general issues of constitutional theory and the extent to which the Supreme Court is or is not politicized, which I recently wrote about in this article. But towards the end, we also talked about the gay marriage cases currently before the Court, including my view that laws banning same-sex marriage are examples of unconstitutional sex discrimination.

After years of resistance, I have finally joined Twitter. Perhaps, as the Borg would say, resistance is futile and assimilation into Twitter is inevitable. For readers who may be interested, my Twitter username is IlyaSomin.

Despite this capitulation, I will not be completely assimilated into the Twitterverse. Given my rational ignorance about pop culture other than sports and science fiction, I won’t be tweeting any celebrity-related gossip. Not even if I somehow turn into the Twitter equivalent of Locutus. Instead, I will most likely be using the account to tweet about my activities elsewhere, such as recent or forthcoming books, articles, speaking appearances, and the like.

At Slate, Matthew Yglesias has an interesting article reviewing all of the Star Trek and many of the movies from the original 1960s series to the present. He especially focuses on the series’ ideology and politics, and its “utopian” vision of the future.

Despite coming at the issue from a very different perspective, I actually agree with much of Yglesias’ analysis. I think he is right that Deep Space Nine had many of Star Trek’s best episodes, that Voyager was the worst of the TV shows, and that the 2009 “reboot” movie (which I criticized here) takes the series in the wrong direction. Most fundamentally, I think we agree that Star Trek is interesting because it takes on serious issues about the kind of future we should want for humanity. That is a big part of the reason we are still talking about Trek almost fifty years after it began.

On the other hand, I have a much more critical perspective than Yglesias on Star Trek’s mostly left-wing politics, which I articulated in this Institute for Humane Studies podcast. As I explain in the podcast, I like Deep Space Nine better than the other series in part because it is more willing to question the Federation’s values, though it ultimately does still endorse them. I also disagree with Yglesias’ view that the economy of Star Trek is post-scarcity, thereby making socialism workable (and indeed the only feasible economic system). As I discuss here, many important goods and services are still limited in the Star Trek universe, including the energy sources that power starships, planetary real estate, a variety of personal services, and – most importantly – replicators. The replicator – the very technology that supposedly eliminates scarcity – is itself scarce; the Federation and its various rivals apparently cannot replicate a replicator.

Even if scarcity were more fully eliminated than in the Star Trek universe, I don’t think it follows that socialism is the only viable response, or that the knowledge and incentive problems that make socialism a menace in our world would suddenly disappear. So long as there are any important scarce goods at all, a government monopoly over them would still be a terrible danger, even if the government were democratic. If scarcity were truly abolished and anyone could have any good or service they wanted at zero cost, there would be no point to socialism, since we would not need government to either facilitate production or redistribute wealth.

Be that as it may, I agree with Yglesias that there is much to admire in Star Trek at its best, and I like some of his ideas for a new Star Trek series. Perhaps a new series will go where no series has gone before and hire him as a consultant.

The Institute for Justice, a leading libertarian public interest law firm that has litigated numerous property rights cases, reports that the Illinois state senate has passed a bill authorizing the use of eminent domain for the benefit of casinos:

The bill passed 32-20 in the state Senate on May 1 and is now being considered by the House Executive Committee. Gov. Pat Quinn has previously vetoed two Chicago casino bills in the past. However, while the governor still has concerns about this new casino bill, he has indicated he could sign, so long as gambling revenue funds education and ethics standards are tightened. (After all, four of Illinois’ last seven governors have gone to prison.) Yet casinos abusing eminent domain apparently hasn’t crossed Quinn’s mind.

As the IJ post notes, takings for the benefit of casino interests have occurred in other states, and often lead to the same sorts of abuses as other “economic development” condemnations of the type upheld by the federal Supreme Court in Kelo v. City of New London. Such takings are routinely used by politically powerful firms to acquire property from the politically weak. They also often destroy more economic value than they create. I discuss these problems in much more detail in this article.

In the aftermath of Kelo, some 44 states passed eminent domain reform laws intended to curb such abuses. But Illinois’ law is one of many that contain major loopholes that prevent them from providing much in the way of meaningful protection for property owners. The IJ post notes that Illinois’ 2006 law rates only a D+ under their grading scale.

Hopefully, the Illinois House of Representatives will reject the Senate bill. The legislation is currently before the House Executive Committee. If the House does not reject the bill, it is possible that state courts would strike it down. In a 2002 decision, the Illinois Supreme Court ruled that the potential economic benefits of expanding the operations of a private business is not a “public use” justifying the use of eminent domain under the state Constitution. As the Court put it (quoting a lower-court dissenting opinion), “the economic by-products of a private capitalist’s ability to develop land cannot justify a surrender of ownership to eminent domain.” At least some takings for the benefit of casino interests could run afoul of this ruling, although the state supreme court did not categorically ban all takings that transfer land to private parties for economic development purposes.

UPDATE: I have made a few stylistic revisions to this post.

This Thursday between 8 AM 9 AM eastern time, I will be appearing on Stand Up! With Pete Dominick, on XM Sirius satellite radio to discuss the major cases of the current Supreme Court term. I will be joined by Professor Eric Segall of Georgia State University. I am not sure exactly which cases we will discuss. But it’s probably a safe bet that the gay marriage cases will be among them, along with Fisher v. University of Texas, the affirmative action case. Since the show lasts a whole hour, we should be able to cover a significant amount of ground.

With Rhode Island and Delaware recently becoming the tenth and eleventh states to permit same-sex marriage and Minnesota likely to soon become the twelfth, now is a good time to reconsider the impact of judicial decisions requiring state recognition of gay marriage. The trend towards gay marriage began in 2003, with a Massachusetts Supreme Judicial Court decision holding that the state constitution required recognition of same-sex marriage. At first, nearly all the states that recognized gay marriage did so as a result of judicial decisions rather than legislation. In this way, it seems clear that the cause of gay marriage benefited greatly from judicial action.

Nonetheless, scholars such as Gerald Rosenberg and Jeff Rosen argued that such litigation harmed the cause of gay rights more than it helped it, because it tended to generate a political backlash, a theory that gained some credence in 2008, when Proposition 8 reversed a pro-gay marriage California Supreme Court decision. In a series of posts written in 2008-2009, I argued that such skepticism was unjustified, and that pro-gay marriage judicial decisions were a major net benefit for the cause of gay rights, backlash notwithstanding.

I think recent events largely vindicate my side of this debate. Since early 2009, the number of states legalizing same-sex marriage has grown from four to a soon-to-be twelve, with most of the recent ones doing so through the legislative process. This undercuts claims that judicial action undercuts political action. Public opinion has rapidly moved in a pro-gay marriage direction, undercutting arguments that litigation would turn the public against the cause. And, of course, the Supreme Court might be on the brink of requiring recognition of gay marriage from some or all of the states that still deny it. That is highly unlikely to have happened absent litigation-driven progress at the state level. Even if the Supreme Court upholds California Proposition 8, it would likely do so only by a very narrow margin that could easily be reversed by future decisions – signalling that the issue is contested in a way that was clearly not the case just 10-15 years ago.

Obviously, some of this progress is the result of long-term trends in public and elite opinion that would have occurred even without litigation. But it is unlikely it would have happened anywhere near so quickly were it not for the example effect of the establishment of gay marriage in Massachusetts and other states where it happened through judicial action. These decisions made gay marriage seem much more thinkable and mainstream than before. They also helped galvanize the gay rights movement. Furthermore, they made the previously radical idea of civil unions seem moderate by comparison, which in turn helped lead to their adoption in ten states that still do not permit full-blown gay marriage. As in the case of the civil rights movement, feminism, the gun rights movement, and property rights activists, among others, judicial action and political action turned out to be mutually reinforcing rather than antagonistic.

The political backlash against the 2003 Massachusetts decision did lead to the enactment of anti-gay marriage constitutional amendments in some thirty states. But for reasons I noted in this 2009 post, that was only a minor setback for gay rights activists. All but one of these states (California) were unlikely to enact gay marriage in the near future anyway. In addition, most of their constitutions are relatively easy to amend, which means that it will not be hard to reverse these amendments when and if public opinion in the state changes.

None of this proves that pro-gay marriage decisions were legally correct. In my view, gay marriage bans violate the federal Constitution because they constitute sex discrimination, and also those state constitutions that contain Equal Rights Amendments. But the correctness of these decisions is separable from their impact. They could be practically effective but legally dubious, or vice versa. Overall, litigation has turned out be a highly effective strategy for gay marriage advocates, whatever you might think about the correctness of their legal arguments.

That does not mean, of course, that litigation is always an effective strategy for all social movements. In order for it to succeed, there has to be at least some amount of preexisting support for the cause among both elite and general public opinion. Efforts to secure recognition of same-sex marriage through legal action flopped in the 1970s, because that base level of support was still lacking. Even where litigation does work, it is usually effective only in tandem with political activism, rather than completely removed from it.

But the recent history of gay marriage does show that litigation can often help advance a cause significantly faster and more effectively than would be the case otherwise. It therefore helps undercut the arguments of revisionist scholars who claim that such action is almost always ineffective, except in cases where the political process is likely to reach the same results on its own.

Co-blogger David Bernstein and I criticized such revisionist arguments in this 2004 article, focusing on the history of civil rights litigation. We pointed out several ways in which litigation can help disadvantaged minorities even when the political majority remains hostile or indifferent. The gay marriage case seems consistent with our theory as well.

At Deadspin, Reuben Fischer-Baum has an interesting piece cataloguing the highest-paid state employees in each of the fifty states. Forty of fifty are coaches, all but one of them in either football or basketball.

As Fischer-Baum notes, this state of affairs is not quite as egregious as it may at first seem. Many of these Division I football and basketball programs generate a lot of revenue for their state universities, and the coaches are often paid out of that revenue rather than taxpayer funds. I would also add that NCAA coaches are among the very few state employees who face a serious risk of being fired for poor performance. Most Division I football and basketball coaches get fired within a few years of starting a new job.

On the other hand, as Fischer-Baum also points out, many of the coaches are paid far more than is justified by their marginal contribution to their universities’ revenue streams, even as the NCAA – supported by state and federal governments – continues to operate a cartel that tries to prevent all financial compensation for the players. I made the case for paying Division athletes here and here.

Finally, the state of Maine deserves special recognition from legal academics. According to Fischer-Baum, the highest-paid state official in the Pine Tree State is a law school dean.

UPDATE: In the original version of this post, I accidentally got Fischer-Baum’s first name wrong (I put “Robert” instead of “Reuben”). Perhaps I subconsciously confused him with the late Bobby Fischer. In any case, I apologize for the error, which has now been corrected.

The Health Care Case: The Supreme Court’s Decision and its Implications - A new book on last year’s controversial Supreme Court decision on Obamacare is now available for pre-order at Amazon. The book is edited by Columbia law professors Nathaniel Persily, Gillian Metzger, and Trevor Morrison, and published by Oxford University Press. It contains essays on numerous aspects of the health care decision by a wide range of scholars, including VC-ers Jonathan Adler, Randy Barnett, and myself. There is also a large number of contributions by leading scholars on the other side of the issue, including Jack Balkin, Jamal Greene, Andrew Koppelman, Gillian Metzger, and Neil Siegel, among others. The Oxford University Press website has a complete table of contents here.

My own contribution to the volume addresses the Court’s analysis of the Necessary and Proper Clause, and explains why the individual health insurance mandate was not “proper” even if it could be considered “necessary.” An earlier version of that essay is available on SSRN here.