Saturday, June 27, 2009

"Fannie Mae Health Care":

John Calfee on the dangers of a "public plan" for health insurance:

a public plan would possess formidable and perhaps overwhelming competitive advantages -- generated not by efficiency but by the artificial advantages of "public" status. This would have two disastrous consequences. The first will be to cause most Americans now covered by private insurance to move to public insurance -- one step away from single-payer health care. The second will be to undermine incentives to develop more of the immensely valuable medical technology that is central to all of health care.

Related Posts (on one page):

  1. Mankiw on the Pitfalls of a Public Plan:
  2. "Fannie Mae Health Care":

“You’re one of Fred Smith’s, I expect.”

A CEI short film, "The Silence of the Regulated," in which a Dr. Lecter asks: "You know what you look like to me with your good perfume and blunt white paper? You look like a libertarian." Having worked for Fred Smith, I found this quite amusing. Your mileage may vary. (LvIP)


Was Iqbal a Big Win for Business?

Today's WSJ has an interesting story about the potential impact of the Supreme Court's decision in Ashcroft v. Iqbal, a 5-4 decision rejecting Javaid Iqbal's effort to sue various high-level government officials for his alleged mistreatment and detention after September 11.

Ashcroft v. Iqbal, released in May, will make it harder to bring a lawsuit without specific factual evidence, raising the threshold for moving a case into expensive litigation and possibly saving companies millions of dollars in legal fees. The case was overshadowed by other business rulings on consumer lawsuits, environmental and employment law and other matters in a term set to end Monday, but legal experts said it may be the most important. . . .

In the case, a Pakistani named Javaid Iqbal sued government officials over his detainment after Sept. 11, 2001. The Supreme Court ruled that Mr. Iqbal didn't have sufficient factual evidence to proceed with his discrimination claims.

"While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations," Justice Anthony Kennedy wrote in the 5-4 opinion. He cited the 2007 decision in Bell Atlantic Corp. v. Twombly, an antitrust case that outlined what plaintiffs must assert to make it through initial court proceedings.

As a result of the Iqbal ruling, businesses may find it easier to fend off lawsuits by persuading courts to dismiss complaints early in litigation. . . .

The decision translates most easily to business cases that list not only a single company, but also its parent company and affiliates, Ms. Willis said. The court didn't allow Mr. Iqbal to assert that government officials had "supervisory liability" for the orders that resulted in his arrest.

More broadly, the opinion clarifies that the Twombly ruling applies beyond antitrust cases. It also makes it harder to press a lawsuit without making more substantive, factual allegations.


Friday, June 26, 2009

Texas Islamic Groups Argue That Internet Speech Should Be Less Protected Than Print, Radio, or Television Speech:

The Texas Court of Appeals disagrees, holding that a Texas statute that gives procedural protection to "electronic or print media" defendants covers Internet journalists on par with print journalists (and reaffirming that the First Amendment does as well). The case is Kaufman v. Islamic Society of Arlington, Texas; Kaufman is the defendant in the underlying libel action, even though his name is listed first in the appeal -- the plaintiffs, who made the argument, were Islamic Society of Arlington, Texas, Islamic Center of Irving, DFW Islamic Educational Center, Inc., Dar Elsalam Islamic Center, Al Hedayah Islamic Center, Islamic Association of Tarrant Count, and Muslim American Society of Dallas.

Here's the core legal issue: A Texas statute allows pretrial appeals of, among other things, an order that

denies a motion for summary judgment that is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73.

(Other parties generally have to wait until after trial to appeal, which means they have to invest money and time in litigating the case to trial, rather than just being able to appeal the denial of the motion for summary judgment.)

The plaintiffs "assert[ed] that Kaufman cannot be a media defendant under section 51.014(a)(6) because he 'merely posts to the internet,' because Front Page Magazine is simply Kaufman’s own internet blog (an assertion that is belied by the affidavits discussed below), and because Kaufman has not demonstrated that he has the training associated with traditional journalism." Part of their rationale was that "the internet 'has become a combination of gossip fence, coffee house, back alley, and bathroom stall for the dissemination of gossip, rumor, innuendo, and outright falsehood.'"

The court disagreed; citing various facts about Kaufman and Front Page Magazine, it concluded that

(1) Kaufman’s journalistic background and his notoriety outside of the parameters of the article and graphic at issue and (2) Front Page Magazine’s broad readership and its existence as a news/commentary medium that is independent from Kaufman’s articles, are sufficient to qualify Kaufman as a “member of the electronic or print media” and to qualify Front Page Magazine as an electronic or print medium in which Kaufman’s article and graphic appeared.

More broadly, it held that "a person who communicates facts or opinions through the internet is entitled to appeal under section 51.014(a)(6) when that person’s communication, under circumstances relating to the character and text of the communication itself, its editorial process, its volume of dissemination, the communicator’s extrinsic notoriety unconnected to the communication, the communicator’s compensation for or professional relationship to making the communication, and other relevant circumstances as the facts may dictate, would otherwise qualify as a communication covered by that section through more traditional electronic or print media."

The court's extended explanation of why "electronic media" covers the Internet and not just radio and television strikes me as quite persuasive, though too long and detailed for me to paraphrase here. In fact, I think that any blog with anything beyond a tiny circulation is a member of the "electronic ... media," even if the blogger isn't a journalist, is unknown outside the blog, and is a solo blogger (so that the blog is not "independent from [his] articles"). The limitations that the court imposes strike me as inapt, not mandated by the text, not sound policy, and too unclear and hard to administer (which is likely to lead to extra litigation and delay). Nonetheless, that only suggests that the Texas court's decision should have been even broader; certainly the court is right in concluding that Kaufman's publications, at least, were indeed in the electronic media.

The court then moves on to rule in favor of Kaufman on the merits, holding that his statements weren't "of and concerning" the plaintiffs and thus not libelous as to them, because the statements pointed only to the Islamic Circle of North America and the Islamic Association of North Texas (which didn't sue Kaufman). I won't summarize this detailed discussion here, because it's pretty tied to the particular facts of this case, and breaks no new legal ground./p>

The interpretation of "electronic or print media" to cover at least the Internet, on the other hand, is pretty important. The Supreme Court has made clear that First Amendment protections cover the Internet as much as other media. (Though the plaintiffs did argue, according to the court of appeals, that Kaufman "is not a media defendant for the purposes of First Amendment protection because he only communicates his articles through the internet (rather than in print or through radio or television)," that was clearly inconsistent with the U.S. Supreme Court's caselaw on the subject.)

But when a statute provides extra protection beyond what the First Amendment requires, the question is how that particular statute is to be interpreted. This should be a pretty important decision both in Texas and, in some measure, in other states that have similar statutory language.

Note: This case also involved the trial court's "temporary injunction against Kaufman, prohibiting him from threatening to take unlawful action against any of appellees or their members or causing or threatening to cause bodily injury to any of appellees or their members," and a request by plaintiffs for an injunction "related to Kaufman's existing and future internet publications" (as well as "nominal damages"). The court of appeals decision, however, did not resolve whether the temporary injunction was proper (and implicitly foreclosed the requested injunction).


Mr. Roberts & Mr. Jackson:

An interesting tidbit about the late Michael Jackson and Chief Justice John Roberts.


The End of Transparency (Before It Ever Began):

Earlier this week, the White House officially abandoned President Obama's "Sunlight before Signing" pledge (which I discussed here and here). As the NYT reported:

During the presidential campaign, Barack Obama promised that once a bill was passed by Congress, the White House would post it online for five days before he signed it.

“When there’s a bill that ends up on my desk as president, you the public will have five days to look online and find out what’s in it before I sign it, so that you know what your government’s doing,” Mr. Obama said as a candidate, telling voters he would make government more transparent and accountable.

When he took office in January, his team added that in posting nonemergency bills, it would “allow the public to review and comment” before Mr. Obama signed them.

Five months into his administration, Mr. Obama has signed two dozen bills, but he has almost never waited five days. On the recent credit card legislation, which included a controversial measure to allow guns in national parks, he waited just two. . . .

Now, in a tacit acknowledgment that the campaign pledge was easier to make than to fulfill, the White House is changing its terms. Instead of starting the five-day clock when Congress passes a bill, administration officials say they intend to start it earlier and post the bills sooner.

“In order to continue providing the American people more transparency in government, once it is clear that a bill will be coming to the president’s desk, the White House will post the bill online,” said Nick Shapiro, a White House spokesman. “This will give the American people a greater ability to review the bill, often many more than five days before the president signs it into law.”

The Administration also appears to be backing off its promises for greater access to government documents under the Freedom of Information Act (FOIA).

One argument for modifying (abandoning) the "Sunlight before Signing" policy is that the public no longer has any meaningful opportunity to influence prospective laws once legislation has passed Congress. Yet this is only true if the White House does not intend to be responsive to public concerns. Further, the original pledge was about ensuring that the executive branch did its part to ensure transparency and accountability in government, and was never pitched as a substitute for actions Congressional leaders could take to increase legislative transparency.

The explanation of the policy change also presupposes that there is meaningful opportunity for public involvement while legislation is still pending and subject to revision. Yet as the debate over the Waxman-Markey climate change bill illustrates, this is not a fair assumption. As Jim notes below, the House is preparing to vote on an 1,000-plus-page bill that was subject to a 300-page amendment last night — an amendment that was not even available to many members of Congress until today. Most members of Congress have had no meaningful opportunity to read, let alone digest, the bill. The same is true for most legislative staff. Forget the public.

If legislation of this sort, which establishes the first-ever regulatory controls on the most ubiquitous byproduct of modern industrial society, imposes new efficiency requirements on all-manner of appliances and consumer products, could trigger the imposition of tariffs on foreign products (likely in violation of U.S. trade commitments), furthers the federal government's environmentally destructive love affair with corn-based ethanol, contains numerous provisions drafted or urged by various special interest groups, and (at least in one version) contained provisions designed to create a national housing code, can be adopted by a House of Congress within hours of being written (let alone becoming public), then any claim of transparency in government is a farce.

UPDATE: FWIW, the Waxman-Markey climate bill passed 219-212. Any guess how many of those 219 (or, for that matter, the 212) really know everything that is in the bill?

SECOND UPDATE: As it turns out, there was not even a copy of the final bill language available in any form when the bill passed. Rather, as David Freddoso reports, the House Clerk had a copy of the 1090-page bill that emerged by committee and a copy of the 300-page set of amendments agreed upon at 3am Friday morning, and many provisions in the latter consist of the likes of "Page 15, beginning line 8, strike paragraph (11) . . ." In other words, it is highly doubtful that more than a handful of member of Congress knew the contents of the legislation they voted on. (LvPL)


Petition for Certiorari in Second Circuit Right To Bear Arms Incorporation Case

is here.


Forgo vs. Forego:

How Appealing noted an opinion by Judge Frank Easterbrook last week, to point out (among other things) that "Judge Easterbrook does not forgo using 'forego' to mean 'to do without.'" (The full phrase in the opinion was "the insurers contend that Freedom’s willingness to forego the collection of any deficiency ....")

There is indeed a common assertion that "go without" should only be written "forgo," and "go before" should only be written "forego," as in "the foregoing." ("The E in “forego” tells you it has to do with going before. It occurs mainly in the expression “foregone conclusion,” a conclusion arrived at in advance. “Forgo” means to abstain from or do without. “After finishing his steak, he decided to forgo the blueberry cheesecake.”") Bryan Garner's Oxford Dictionary of American Usage and Style largely echoes this. (I'm not sure about Howard Bashman's views; he may well have just been referring to the assertion, and not endorsing it.)

And indeed, it sounds logical that "foregoing" should correspond to "going before" and not "going without." But it's also logical to denounce "its" as a possessive of "it" (the rule for most possessive is to add an apostrophe and an "s" rather than just an "s"), "aren't I?" as short for "am I not?," and "himself" (shouldn't it be "hisself," by analogy to "myself," and because we're talking about his self?). Logic takes you only so far when we're talking about English, and I imagine all or nearly all other languages.

So as these examples — and many more — illustrate, it is important to look to "the will of custom, in whose power is the decision and right and standard of language." And modern search technology makes it very easy to see what the custom is. A Westlaw search for "to #forgo" & date(> 1/1/2008) yields 916 hits; a Westlaw search for "to #forego" & date(> 1/1/2008) yields 1914. (The "#" is required to prevent Westlaw for searching for both, since it otherwise recognizes them as synonyms.) Quick eyeballing of reveals that these seem to mean "to go without," which makes sense: "To forego" in the sense of "to go before" would be a pretty odd locution. Googling reveals that this isn't just legal usage; "to forego" beats "to forgo," though by a smaller margin (1.74M reported hits vs. 1.56M). So both "forego" and "forgo" are in common usage to mean "go without"; custom approves of both.

Ah, some may say, that's just a sign of how the language is going to hell in these degenerate times. But the preference for "to forego" over "to forgo" seems to have been much stronger in past decades. Limiting the search to cases before 1940 yields 2626 cases for of "to forego" and only 9 for "to forgo." Either there's some serious glitch in Westlaw (unlikely; I get the same results with Lexis), or past usage is overwhelmingly in favor of writing "to do without" as "to forego" rather than "to forgo."

So it's hard for me to see any basis for condemning the use of "to forego" in the sense of "to do without." Logic, as I mentioned, doesn't tell us much. Modern usage, including in edited prose written by generally quite literate judges and law clerks, suggests that both "to forego" and "to forgo" are acceptable. Longstanding usage, at least longstanding legal usage, suggests that if anything "to forego" is more standard (though I wouldn't condemn "to forgo" on account of this; I'd say both are proper). There's no risk that "to forego" as "to do without" will be unclear to the reader; context pretty much always dispels any possible risk of confusion.

So all we have to criticize the "forego = do without" usage is basically some people's aesthetic judgment. If you share that aesthetic judgment, then by all means use "forgo." And even if you don't share the judgment, you might still want to avoid "forego = do without" in order to satisfy the purists, on the theory that today "to forgo" is the safe bet, though perhaps it wasn't in the past (at least in legal usage). But I see no real foundation for any claim that "forego = do without" is wrong, a "mistake," or even "poor usage."

UPDATE: "Esthetic" changed to "aesthetic," following commenter Mark N., Horace, and Google. Not that there's anything wrong with "esthetic," mind you ....


More transparency in the House.

At 4:05pm ET [some] Republicans on the floor of the House are asking where they might get a physical copy of the bill, in particular the 300-page amendment added in the middle of last night. They'd like to see what they are voting on before they are asked to vote.

The Chair doesn't know, which may perhaps be understandable. But none of the Democratic sponsors spoke up to offer a copy or two to the Republicans.

UPDATE: After 10 minutes, Congressman Markey finally said it's available on the Rules Committee website.

2D UPDATE: The House Majority Leader was granted one minute and talked for 14. Then at 5:33pm ET Minority Leader John Boehner was granted 2 minutes. It's now 6:26pm ET and he's still talking. He's reading parts of the 309-page amendment.

3D UPDATE: After a very effective speech, Boehner finally stopped at 61 minutes. Congressman Waxman, who tried to stop Boehner after about 18 minutes, asked how much time Boehner consumed. The Congresswoman sitting in the Speaker's chair (Ellen Tauscher) replied, "The gentleman used the customary amount of time yielded to the minority leader."

4th UPDATE: Nancy Pelosi then talked for just two minutes, less than one of which was substantive. She just said that the bill was about "Jobs, Jobs, Jobs!" Now a Republican replacement bill is being voted down.

Why Voters Reward Lucky Governments More than Good Ones:

Some scholars who discount the dangers of widespread political ignorance argue that voters don't really need to know much to make good decisions. They can simply reward incumbents who do well and punish those who perform poorly - an approach known as "retrospective voting." Unfortunately, effective retrospective voting requires citizens to be able to tell the difference between conditions caused by incumbents' policies and those that merely happened to occur on their watch without any such causal connections. Tim Horford summarizes a recent study by Australian economist Andrew Leigh which shows that voters generally can't do this [HT: Bryan Caplan]:

The question is, can the voters tell the difference between an incompetent government and an unlucky one? Andrew Leigh, an economist at Australian National University, thinks not. In a recent article in the Oxford Bulletin of Economics and Statistics, he looks at 268 elections held across the world between 1978 and 1999. He estimates how much of a country's economic performance is due to booms in the world economy and how much is due to competent government - and whether the voters can tell the difference.

Both matter, but as far as the voters are concerned, it is better to be a lucky government than a skilful one. For instance, a one-percentage point increase in world economic growth above the norm is associated with a hefty rise in the chance that incumbents will be re-elected - from the typical chance of 57 per cent to a more than decent 64 per cent. A stellar domestic performance, outpacing world growth by one percentage point, contributes less than half as much to the chances of being re-elected, raising them from 57 to 60 per cent.

These results may actually overstate the voters' knowledge. Short term growth rates higher than those of the world economy are also often due to luck. For example, Vladimir Putin reaped enormous political benefits from Russia's strong growth earlier in this decade - despite the fact that the growth was mostly due to a rapid increase in world demand for oil that Putin had done nothing to cause (just as he also didn't create Russia's large oil deposits). Ultimately, the effects of government competence are swamped by those of luck because the latter has much larger effects on short term swings in economic conditions - even though good policies have a major influence on long-run growth rates, which are far more important. Unfortunately, as Princeton political scientist Larry Bartels notes, most voters tend to focus inordinately on very recent economic events, discounting more significant longer term trends.

Leigh's study reinforces the conclusions of previous research on retrospective voting, which shows that voters routinely punish incumbents for bad events they didn't cause and could not prevent, including shark attacks and droughts.

A related danger of flawed retrospective voting is that it might lead voters to punish flawed incumbents by electing opposition parties that are much worse. The most famous example is the reaction of German voters to the Great Depression, which was blamed on the mainstream parties of the Weimar Republic. This led to electoral successes for the Nazis and (to a lesser extent) Communists, with horrible consequences for both Germany and the world. In recent years, poor economic performance and rising crime rates in Western Europe has led many voters to support parties on the socialist far left and nationalist far right; to put it mildly, either of these factions' policies are likely to make Europe's problems worse rather than better. Even if the incumbents really have screwed up, voters need to have sufficient knowledge to consider the possibility that the alternative is even worse.

I describe several other shortcomings of retrospective voting in Part III of this paper.

As Horford emphasizes, flawed retrospective voting is part and parcel of the more general problem of the public's rational political ignorance. Voters have little or no incentive to do the hard work of separating out outcomes that really are the result of incumbents' policies from those that are due to factors beyond their control:

Why are voters so wretchedly ungrateful? The common-sense answer is that it is not easy to distinguish a lucky government from a skilful one. In addition – and this point is less obvious – an individual voter has little incentive to do so. We all know that elections are almost never decided by a single vote, and so each voter would be right to conclude that her vote is highly unlikely to make a difference....

And if the result does not depend on any particular one of us, trying to disentangle luck from skill by ploughing through the latest reports from the International Monetary Fund is likely to remain a minority hobby.

UPDATE: It's worth noting that voters' myopic focus on short term economic trends has two other bad effects. It reduces officials' incentives to adopt policies that promote long-term growth (especially if they have visible short term costs), and it gives them strong incentives to adopt ones that artificially stimulate the economy in the short run at the cost of serious long term damage. Richard Nixon's 1971 price controls (which helped him win in 1972, but caused considerable longterm harm) are an excellent historical example.


Crime Severity and Constitutional Line-Drawing:

Justice Thomas's partial dissent in yesterday's school near-strip-search case contains this paragraph:

The majority’s decision in this regard also departs from another basic principle of the Fourth Amendment: that law enforcement officials can enforce with the same vigor all rules and regulations irrespective of the perceived importance of any of those rules. “In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.” Virginia v. Moore, 553 U. S. ___, ___ (2008) (slip op., at 6). The Fourth Amendment rule for searches is the same: Police officers are entitled to search regardless of the perceived triviality of the underlying law. As we have explained, requiring police to make “sensitive, case-by-case determinations of government need,” Atwater v. Lago Vista, 532 U. S. 318, 347 (2001), for a particular prohibition before conducting a search would “place police in an almost impossible spot,” id., at 350.

I often like much of Justice Thomas's work, but here it seems that he errs.

The notion that judges shouldn't evaluate the supposed severity of various crimes in applying constitutional tests is plausible. In fact, as I discuss in Crime Severity and Constitutional Line-Drawing, 90 Va. L. Rev. 1957 (2004), the Court has indeed sometimes endorsed this notion, including in the Fourth Amendment area. In Mincey v. Arizona (1978), for instance, the Court declined to create a “murder scene” exception to the Fourth Amendment warrant requirement, reasoning that courts had no manageable standards for drawing a line between murders and other crimes:

[T]he public interest in the investigation of other serious crimes is comparable. If the warrantless search of a homicide scene is reasonable, why not the warrantless search of the scene of a rape, a robbery, or a burglary? “No consideration relevant to the Fourth Amendment suggests any point of rational limitation” of such a doctrine.

Likewise, in New Jersey v. T.L.O. (1985), the Court allowed searches of public school students based merely on reasonable suspicion, and refused to limit such a doctrine to searches for evidence of serious offenses:

We are unwilling to adopt a standard under which the legality of a search is dependent upon a judge’s evaluation of the relative importance of various school rules .... The promulgation of a rule forbidding specified conduct presumably reflects a judgment on the part of school officials that such conduct is destructive of school order or of a proper educational environment. Absent any suggestion that the rule violates some substantive constitutional guarantee, the courts should, as a general matter, defer to that judgment and refrain from attempting to distinguish between rules that are important to the preservation of order in the schools and rules that are not.

But other cases have disagreed. Tennessee v. Garner (1983) held that the Fourth Amendment generally bars the police from shooting at a fleeing felon unless “the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.” Though “burglary is a serious crime,” the Court concluded, “it is [not] so dangerous as automatically to justify the use of deadly force,” because it is “a ‘property’ rather than a ‘violent’ crime.”

Likewise, in Welsh v. Wisconsin (1984), the Court held that a warrantless home arrest couldn’t be justified by the Fourth Amendment’s exigent circumstances exception when the person was being arrested for a nonjailable misdemeanor. The misdemeanor was drunk driving, which at least one member of the majority thought was very dangerous. Still, the Court concluded that Wisconsin’s classification of the misdemeanor as a nonjailable offense was “the best indication of the State’s interest in precipitating an arrest, and is one that can be easily identified both by the courts and by officers faced with a decision to arrest.”

And the Court’s Fourth Amendment “special needs” cases (more or less the ones where the usual probable cause requirement is relaxed, as it is in schools) at times stress the harmfulness of the conduct that the search or seizure is trying to uncover. See, e.g., Mich. Dep’t of State Police v. Sitz (1990) (stressing, in upholding checkpoints aimed at catching and deterring drunk drivers, “the magnitude of the drunken driving problem” and “the States’ interest in eradicating it”); Skinner v. Ry. Labor Executives’ Ass’n (stressing the “compelling Government interests served by” a drug and alcohol testing program for railway employees involved in certain train accidents). It’s not clear, though, how significant a role this factor plays, or when the Court would conclude that the need is not great enough. In Delaware v. Prouse (1979), for instance, the Court suggested that checkpoints might be permitted even to check to make sure people aren’t driving without a license or a registration. Conversely, in City of Indianapolis v. Edmond (2000), and Ferguson v. City of Charleston (2001), the Court struck down drug checkpoints and the testing of obstetrics patients for drugs, because these programs were aimed at advancing “the general interest in crime control,” even though the crime that they were trying to control was quite serious, likely as serious as drunk driving. The Court’s special needs cases today thus seem focused primarily on whether the searches and seizures are aimed at some interest other than uncovering crimes (as opposed to trying to catch a specific criminal), on how intrusive they are, and on how much discretion they leave to the police. Nonetheless, while the seriousness of the crime being detected or deterred seems to be less significant, some still valid precedents do rely on the premise that certain searches are justified precisely by the seriousness of the crime involved.

To be sure, requiring government officials to make case-by-case evaluations of crime severity based on the specific facts of each case might well make the rule too unpredictable (though, in a related area, case-by-case evaluations of probable cause based on the specific facts of each case are precisely what Fourth Amendment law often requires). But some sort of evaluation based at least on the type of crime involved is indeed required by Tennessee v. Garner. And more broadly, even if the caselaw generally avoids case-by-case evaluations (one item that the quote from Justice Thomas's opinion condemns), it does not uniformly apply to enforcement of “all rules and regulations irrespective of the perceived importance of any of those rules.”

So it seems to me that Justice Thomas’s opinion here finds consistency and uniformity in an area where the cases are either inconsistent with each other or at least not uniform (even if their positions can be somehow reconciled). Perhaps the position that Justice Thomas is endorsing with regard to crime severity and constitutional line-drawing is the sound one. But it seems to me that it needs to be defended more on the merits, rather than by reliance on a supposedly “basic principle” derived from the existing precedents — precedents that are actually quite mixed on this question.

Related Posts (on one page):

  1. Crime Severity and Constitutional Line-Drawing:
  2. I'll say it if Justice Souter Won't:

Smug Alert: House May Pass Cap-and-Trade, the 21st Century Version of Smoot-Hawley.

Powerline has a depressing post (tip to Instapundit) suggesting that House Speaker Nancy Pelosi may have obtained the votes to pass cap-and-trade by making concessions to farm state congressman. It seems that they are willing to support the bill if the government is willing to continue its anti-environmental policy of promoting ethanol.

Before the last few years, scholars used to say that we couldn't get a depression today because policymakers wouldn't make mistakes as bad as the ones they made in the 1930s. Though we've made some great moves in the last year — increasing the money supply and guaranteeing money markets funds — we're also repeating many of the same mistakes as Hoover and FDR (propping up failing industries; raising taxes; wasting money on unneeded public works projects; corruption; expensive new anti-business government programs).

Certainly, the Smoot-Hawley bill of 1930 was dumb; it imposed huge tariffs on foreign goods imported into this country, which backfired when those countries raised their tariffs too. In a sense, cap-and-trade looked like it would be even dumber; it seemed that it might impose a tariff on our own US manufactured goods, but not on foreign goods. But the House realized this and decided to require the administration to impose tariffs on goods imported from countries that don't restrict their own emissions to the same extent as the US (tip to Maguire and OandO. This 21st century version of Smoot-Hawley will probably take years before the tariffs will be imposed.

The cap-and-trade bill, if passed by the Senate and actually implemented over the next few decades, would do more damage to the country than any economic legislation passed in at least 100 years. It would eventually send most American manufacturing jobs overseas, reduce American competitiveness, and make Americans much poorer than they would have been without it.

The cap-and-trade bill will have little, if any, positive effect on the environment — in part because the countries that would take jobs from US industries tend to be bigger polluters. By making the US — and the world — poorer, it would probably reduce the world's ability to develop technologies that might solve its environmental problems in the future.

If this bill were very likely to pass the Senate and if the restrictions were to be phased in quicker in the early years of the program than the bill provides, then a double-dip recession would be a near certainty. But because the Senate may reject such an anti-business bill altogether and because in future years the strictures of the law may well be postponed just when they might bite businesses, it is hard to predict what might happen to the economy in the short run.

Nonetheless, if the House and Senate were both to pass cap-and-trade, the chance of a double-dip recession, which was a remote possibility just last week, would be converted into a substantial possibility, though probably still less likely than not.

What cap-and-trade accomplishes besides causing businesses to make decisions that would otherwise be inefficient is that it makes its proponents feel morally superior.

This phenomenon was explored in the classic South Park episode, Smug Alert.

Here is Matt and Trey's official commentary to this episode:

Unfortunately, the price of "smug" is likely to be staggering.

Thursday, June 25, 2009

Health Insurance and the Public Plan: Where's The Beef?

The proposal to allow a public plan (also called a “public option” or a “government plan” depending on the normative atmospherics one wants to signal) to compete directly with private health insurers has become one of the hottest flashpoints in the debate over health reform. President Obama spoke to the issue earlier this week and yesterday’s Wall Street Journal had a lengthy op-ed by (former Labor Secretary) Robert Reich on the subject. Many others have been heard on the subject as well – including (in alphabetical order) Jonathan Cohn, Tyler Cowen, Tim Greaney, Jacob Hacker, Ezra Klein, Arnold Kling, Paul Krugman, Megan McArdle, and Frank Pasquale. The Cato Institute had a conference last week on health reform where there was a panel on the public plan at which I spoke, along with Cathy Schoen (Commonwealth Fund), Gail Wilensky (former administrator of CMS - then called HCFA) and Karen Davenport (Center for American Progress). A recent New York Times poll showed strong support for the public plan, but critics quickly pointed out those polled skewed heavily Democratic.

Design details matter; part of the complexity is that different groups are using the same words - "public plan" — to refer to very different proposals. For example, the Commonwealth Fund's version of a public plan is radically different than the one put out by the New America Foundation. Leaving that complexity aside, proponents argue that the public plan will improve the performance of the market, by creating more options and keeping the insurance companies “honest.” Critics argue that a public plan will be an unfair competitor, and will inevitably dominate the market.

There are different ways of conceptualizing the debate – I’m going to organize my analysis around the three M’s of a public plan: Monopoly, Monopsony, and Maverick. (I had a former colleague who told me the key to a good title for an article or speech is to pick three words that all start with the same letter, and use them to organize the analysis. So, monopoly, monopsony, and maverick it is).

I’ll concentrate in this post on monopoly and monopsony. Proponents of a public plan argue that the market for health insurance is monopolistic, and that a public plan will provide consumers with more options – thus making the market more competitive. The assertion that the health insurance market is monopolistic is usually based on some throwaway claims about the number of mergers of health insurers over the past several years, followed by statistics on market share or market concentration of health insurers in all 50 states. The original source of these statistics is a series of papers on HMO and PPO market share done by the American Medical Association, written to support their larger legislative agenda of allowing joint negotiation of fees by independent physicians and tightening regulation of health insurers. In 2004, Professor James Robinson published a paper in Health Affairs on the subject, providing detailed information on market concentration in all 50 states, for HMO/PPO and commercial insurance.

Let's ignore the irony that the AMA's work has provided the intellectual foundation for the Obama Administration to propose a public plan — which the AMA has now come out against. Instead, focus on whether the proffered statistics actually prove what they purport to establish. As I outlined in a paper in Health Affairs I co-authored several years ago, there are numerous difficulties with this approach to determining whether there is a monopoly problem in health insurance. (There may well be other problems with health insurers – but let’s put those aside for the moment). First, counting up the number of mergers doesn’t tell you anything useful at all. Mergers across discrete geographic and product markets are unproblematic, while mergers within such markets may or may not raise antitrust issues. Second, although states are a natural regulatory unit, the marketplace for coverage often does not track state borders – and market share/concentration ratios for something that isn’t a market are meaningless. The AMA’s focus on the market share of HMOs and PPOs also omits other options – such as self-funded ERISA plans (for large and small groups) and high-deductible health insurance plans (for individuals, often coupled with a health savings account). If the state is, in fact, the relevant market, all options need to be included for the market share/concentration ratios to mean anything. Third, market concentration ratios are a screening tool – and no one with antitrust enforcement responsibility in the past several decades has thought that de-concentration in the absence of an actual antitrust violation was a strategy that would go anywhere in court, or had much of anything to recommend itself as a general policy.

This doesn’t mean that there are no problems with health insurer performance – nor that no health insurance markets are oligopolistic – but you can’t answer those issues in the abstract or assume that there’s an antitrust problem, or that there isn’t such a problem – you have to actually go and look.

More importantly, if you think there is actually a monopoly problem in certain coverage markets, then we have an established way of dealing with that — prove it up, and use the remedies provided for by the antitrust laws. The principal remedy is structural – break up the monopoly, and restore competition to the market. As far as I can tell, in the entire history of antitrust, no one has ever thought a plausible response to a monopoly is for the government to go into the business of providing the monopolized services, in order to create some competition. (And, as I will detail in a subsequent post, when the government has gone into the business of providing insurance, the results have not been pro-competitive).

Let's be concrete. The government is currently investigating Intel and Google, and previously prosecuted Microsoft for antitrust violations – but anyone who suggested that the way to address a monopoly in these areas was for the federal government to go into the business of developing computer chips, web browsers and search engines would have been laughed out of the antitrust bar. If you want more competition in the market for health insurance, the most direct and obvious (and standard approach, if history is any guide) is to address the problem head-on – by bringing cases against violators, eliminating state-created barriers to entry, and otherwise trying to address the source(s) of market failure.

Next, monopsony. If a public plan can rely on Medicare’s purchasing power and pricing, it can probably under-price private insurance – although if proponents of a public plan are right that private insurers have a monopoly position in the market, its hard to see how a public plan gets much more leverage than that. And, if private insurers don’t have enough market power to engage in monopsony pricing, that means there isn’t a monopoly problem in the coverage market – which, after all, was the primary justification for a public plan in the first place.

Leaving all that aside, it is important to remember that consumers are harmed by both monopoly and monopsony. So, proponents might view the monopsony purchasing power of a public plan as a feature, but its actually a bug.

In my next post, I will address the "maverick" issue. This issue involves a series of sub-claims: that a public plan will have lower administrative costs than a private plan; that a public plan will behave differently than a private plan; and that we should not have a "level playing field" for purposes of regulation and taxes because doing so will strip the public plan of its "inherent advantages."


Bloggers agree that Cap & Trade prospects are dim; disagree on Health Care chances:

This week's National Journal poll of bloggers asked about the chances that Congress will pass Cap & Trade and health care bills. As for "How likely is Congress to enact comprehensive health reform legislation this year?" 80% of the Left, but only 42% of the Right, thought that passage was "very" or "somewhat likely."

I voted for "very likely," and wrote: "Very likely to pass something that will be called 'comprehensive health reform,' due to political needs to demonstrate a major accomplishment. Prospects for creating a government-run program appear to be dimming, fortunately."

Regarding "How likely is Congress to enact 'cap and trade' legislation this year to curb global warming?" (there is supposed to be a House vote on Friday), 71% of the Left said "very" or "somewhat unlikely." Suprisingly, only 50% of the Right thought it unlikely. This is an interesting result, since usually each side is relatively more optimistic about the prospects for whatever particular eventuality that side favors.

I voted "somewhat unlikely," and explained "Any 'cap and trade' that can actually pass will probably be a C&T in name only, with so many special exemptions as to be nearly meaningless in terms of carbon reduction -- although of enduring importance as a venue for rent-seeking and special interest gamesmanship."

In previous weeks, some VC commenters have wondered about the significance of the Blogger Poll. I suppose that the answer is that it has the same significance as the National Journal's long-running polls of "political insiders." (Or, most recently, of "congressional insiders.") For people who are professional participants in U.S. politics or government--a group which probably comprises close to 100% of National Journal print subscribers--knowing what the "insiders" think is interesting and important in itself. Of course, the insiders can sometimes be seriously mistaken. (As in an early 2004 insiders poll in which most of the Democrats thought that Howard Dean had a near-lock on the presidential nomination.) Nevertheless, it is useful for a political professional to know what the insiders happen to be thinking this week. Similarly, it is useful for a professional to know what the political bloggers are thinking, regardless of whether the professional estimates that the bloggers are correct. National Journal's on-line audience does include some non-professionals, but these readers are self-selected to be, at least, highly interested in politics, and so for them, knowing what the insiders or the bloggers think can also be interesting.


TMZ reports that Michael Jackson has died.

TMZ says that Michael Jackson was taken to the hospital and died this afternoon.

UPDATE: Just after 6pm ET, MSNBC, FOXNews, and CNN are being more cautious, reporting only that he is in the hospital.

2D UPDATE: At 6:22pm, CNN reported (citing multiple unnamed sources) that Michael Jackson is in a coma.

3D UPDATE: At 6:25pm, MSNBC says that the LA Times is reporting that Jackson was pronounced dead earlier this afternoon.

4TH UPDATE: At 6:28pm, Fox News said that the LA Times is now reporting that Jackson was in a coma. A minute later, Fox said that the AP — and the LA Times — are reporting that Jackson is dead.

Warning: Soccer News Below:

A truly historic day for US international sport, though I suspect that State-side it got a lot less play than it did over here in Roma (or elsewhere in the soccer-mad world): USA 2, Spain 0 in the semifinals of the Confederations Cup down in Bloemfoentein, South Africa. The Confederations Cup is not one of the "big" tournaments, to be fair; it's held every four years, the year before the World Cup, and brings together the champions of various tournaments in each of the different FIFA "Confederations" -- Europe (Spain, the winner of the European Cup in 2008), Italy (World Cup, 2006), Brazil (Copa America), Egypt (African Cup of Nations), Iraq (Asian Cup), etc. This year, it is being held down in South Africa, site of next year's World Cup, as sort of a dry run for the logistics and planning that South Africa will need to have in place before the world descends next summer.

The US, as usual, was not expected to fare terribly well -- they looked uninspired in losing 3-1 to Italy and 3-0 to Brazil in the first round, and only got to advance to the second round because the Italians thoroughly embarrassed themselves in losing to both Egypt and Brasil without so much as scoring a single goal (or, to be honest, even coming close to scoring a goal). And against Spain we were supposed to roll over and die. Spain has become the capital of world soccer on many fronts -- Barcelona just won the Champions League, the most prestigious of the "club" tournaments in the world, the Spanish national team won last year's Euro Championship (quite handily), and they are being touted as favorites to win next year's World Cup. They had, until Wednesday night, managed to put together a mind-boggling 35 game undefeated streak -- unheard of in international soccer. The Italian press was full of somewhat grudging, but ultimately effusive, praise for their style of play and the depth of their squad -- and for the Americans to handle them as easily as they did took the world of soccer (aka "the rest of the world") totally by surprise. Here's what la Repubblica, the newspaper I read here in Rome, had to say about the game:

"Ci sarebbe da cambiare pari-pari la nostra difesa azzurra con quella americana. L'arte di difendersi ha attraversato l'oceano."


"We should exchange our (italian) defense for the Americans'. The art of defending has crossed the ocean."

Let me tell you, that is high praise indeed - the Italians have long prided themselves on their defensive abilities (they call their style of play "Il catenaccio -- the chain link fence), and for an italian paper to say they'd exchange their defense for ours is truly a remarkable moment.

And later on:

"Gli americani avevano cominciato con la mano sul cuore e il volto rivolto verso la bandiera a stelle e strisce. Hanno finito in un tripudio di gioia, con l'intera panchina che e' corsa ad abbracciare gli eroi di Bloemfontein e con la curva nera -- ormai impazzito per gli americani -- che suonava a tutto spiano le sue vuvuzelas in loro onore."

"The Americans began with hand on heart, their faces turned to the stars and stripes. They finished in an eruption of joy, with the entire bench running to embrace the heroes of Bloemfontein, and the African fans -- by now, crazy about the Americans -- singing, in unison, their "vuvuzelas" (???) in their honor."

It's a little over-the-top, as Italian journalism tends to be, and I haven't the faintest idea what "vuvuzelas" are ... but for an American soccer fan, it was nice a nice thing to stumble upon in the paper early in the morning, sitting in my neighborhood cafe and drinking my morning espresso ...


Distributor of Software That Blocks (Alleged) Adware and Malware Immune Under 47 U.S.C. § 230 from Suit by Company Whose Software Was Blocked:

I'm afraid I don't have time to blog more about this now, but I thought I'd note it, since it seems like a pretty important cyberspace law decision. The case is Zango, Inc. v. Kaspersky Lab, Inc., handed down today by the Ninth Circuit.

Thanks to How Appealing for the pointer.


I'll say it if Justice Souter Won't:

The Supreme Court today held that a school's partial strip search of a thirteen year old girl, including requiring her to shake out her undergarments, "exposing her breasts and pelvic area to some degree," violated her Fourth Amendment rights. School officials were looking for a prescription-strength ibuprofen (which means, in effect, 2 Advils!).

Justice Souter, writing for the Court, stated that the majority meant to cast "no ill reflection" on the the school official, assistant principal Kerry Wilson, who ordered the search. Well, it should have. The combination of drug hysteria and the tyrrany of petty government officials is rarely a pretty sight. Unfortunately, the Court also held that no monetary damages could be awarded against Wilson and other school officials.

(FWIW, I'm not a Fourth Amendment expert, but as a matter of policy I would never let school officials strip search a child. If the incident is serious enough to merit police attention, say because school officials think the student is distributing heroin, call the police (who, among other things, have some training in probable cause and restrictions on searching without a warrant) and let them handle it. If the incident involves, say, possession of ibuprofen, which is neither illegal [it would be illegal if the girl didn't have a prescription, but that's not noted in the opinion, and in practice, prescription ibuprofen is just a double dose of regular ibuprofen] nor dangerous but only against school policy, handle it some other way.)

UPDATE: Two related questions: (1) If school offcials had conducted a body cavity search, instead of just a strip search, would Justice Thomas have still dissented? I'm not confident that there is anything in his reasoning that suggests otherwise.

(2) If this had been a private school, rather than a public school, and a similar search had been undertaken, also without parental consent, would the private school officials be criminally or civilly liable?

Related Posts (on one page):

  1. Crime Severity and Constitutional Line-Drawing:
  2. I'll say it if Justice Souter Won't:

Better late than never:

On the eve of gay pride weekend, the Office of Personnel Management (OPM) has apologized to veteran activist Frank Kameny for firing him in 1957 solely because of his homosexuality. The letter, from the director of OPM, says in full:

Dear Dr. Kameny:

In what we know today was a shameful action, the United States Civil Service Commission in 1957 upheld your dismissal from your job solely on the basis of your sexual orientation. In one letter to you, an agency official wrote that the Government “does not hire homosexuals and will not permit their employment...” He went on to say that “the homosexual is automatically a security risk” and that he “frequently becomes a disruptive personnel factor within any organization.”

With the fervent passion of a true patriot, you did not resign yourself to your fate or quietly endure this wrong. With courage and strength, you fought back. And so today, I am writing to advise you that this policy, which was at odds with the bedrock principles underlying the merit-based civil service, has been repudiated by the United States Government, due in large part to your determination and life’s work, and to the thousands of Americans whose advocacy your words have inspired.

Thus, the civil service laws, rules and regulations now provide that it is illegal to discriminate against federal employees or applicants based on matters not related to their ability to perform their jobs, including their sexual orientation. Furthermore, I am happy to inform you that the Memorandum signed by President Obama on June 17, 2009 directs the Office of Personnel Management—the successor to the CSC--to issue guidance to all executive departments and agencies regarding their obligations to comply with these laws, rules, and regulations.

And by virtue of the authority vested in me as Director of the Office Of Personnel Management, it is my duty and great pleasure to inform you that I am adding my support, along with that of many other past Directors, for the repudiation of the reasoning of the 1957 finding by the United States Civil Service Commission to dismiss you from your job solely on the basis of your sexual orientation. Please accept our apology for the consequences of the previous policy of the United States government, and please accept the gratitude and appreciation of the United States Office of Personnel Management for the work you have done to fight discrimination and protect the merit-based civil service system.

Sincerely yours, John Berry, Director

How times have changed since 1957. Kameny's papers are now archived at the Library of Congress and were the subject of a special Smithsonian Exhibit. You can see some of the more interesting correspondence, photos, and 1960s picket signs from the Kameny papers here. He organized protests in front of the White House in 1965, when sodomy was still criminalized in 49 states. He lobbied the APA to remove homosexuality from its list of mental disorders, finally succeeding in 1973. And so much more. No single living American has advanced the cause of equality for gays and lesbians more than he.

It has been my privilege to know Frank for about ten years. Now in his 80s, he is principled, fearless, cantankerous, and relentless.

Frank's answer to OPM: "Apology accepted."

UPDATE: With a Kameny-esque mix of humor, seriousness, and defiance, Frank emails this:

I responded too "quickly on the draw" in saying only "Apology accepted."

In 1957-58, I appealed my firing to the chairman of the Civil Service Commission — John Berry's predecessor several steps removed. The bureaucracy sometimes moves slowly, but, after 52 years, my appeal has apparently now been granted.

THEREFORE, as of noon, yesterday, June 24, I consider myself re-hired, and am inquiring as to when and where I should report for work — or to whom a letter of retirement resignation should be addressed.

Further, I am looking forward to receipt of a check for 52 years of back pay, which I can well use.

But, more seriously, in a phrase that I've used in a related connection recently, all this is like a story-book ending where all issues are resolved. I'm usually not very emotional, but I haven't really come back down to ground yet in all of this.


Congratulations to Recent Boalt Hall Graduate Carolyn Zabrycki,

whose student article (Toward a Definition of “Testimonial”: How Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement, 96 Cal. L. Rev. 1093 (2008)) was cited three times -- and seemingly significantly relied on -- by Justice Kennedy's dissent in Melendez-Diaz v. Massachusetts.

A feather in Zabrycki's cap, and (I hope) an encouragement to other students writing student articles.


Crossover Sensation, Justice Thomas

(to borrow a line from John Elwood). See Atlantic Sounding Co. v. Townsend.


The Foreign Law Debate: Part II.

Continued from here.

What divides the two groups in the foreign law debate? I will make a few conjectures, again with the proviso that I am supplying broad generalizations and do not mean to attribute any of these views to any particular person (including Koh) on either side of the debate.

Doctrine. Much of the debate in the academic literature has been carried out at the level of doctrine. The Bradley and Goldsmith article I mentioned in my previous post made a doctrinal argument, about what courts really do or should do; their critics took issue on these grounds. In his series of posts criticizing Koh, Ed Whelan also made doctrinal arguments. Whelan’s many critics made doctrinal arguments (you can find many of their posts at the Opinio Juris blog). My view is that doctrine does not get you very far. There are too few cases, going in all directions. A dull, dispiriting, and inevitable debate about what the founders believed has gone nowhere. The passions involved tell you that more is going on than a disagreement about what the sources say.

Politics. There is a clear left/right divide, with the left favoring the foreign law position. (In academia, “right” means something like center. Outside academia, though, “right” really does mean right, far- as well as near-.) Conservatives suspect that people on the left like foreign and international law because those people believe that these bodies of law tend to be more left-wing than American law is. (Whether international/foreign law is in fact farther to the left than American law is a question best left for another day. For too many people, the rest of the world consists of Europe rather than Iran, China, or Russia.) They note that people like Koh spend a lot of time discussing European attitudes toward the death penalty but not the European laws banning political parties or the worldwide trend toward restrictions on “defamation of religion.” More is going on, however. These political positions reflect broader ideological and institutional commitments.

Institutional commitments. The left and right disagree about more fundamental issues, such as constitutional interpretation; these issues are implicated by the foreign law debate. Conservatives see an attack on originalism, which leaves little room for foreign law, and what for them is the typical liberal’s excessive faith in the judiciary and distrust of the executive. The pro-foreign law positions are mostly about how the courts can take an active role in promoting international law. In their darkest nightmares, conservatives see a new generation of liberal judges selectively importing liberal norms into American law by citing foreign and international law—just when the conservatives thought they were on the verge of winning the debate on originalism.

American exceptionalism. Deeper still is the question of how Americans see themselves in the world. For conservatives, America is the exceptional nation. Other states should imitate the United States, not the other way around. Conservative or not, this is also mainstream public opinion. The pro-foreign law people, like most academics, reject American exceptionalism: the United States is an ordinary nation—good in some ways, bad in others. The United States needs to be disciplined and constrained, so that it is compelled to take into account the values and interests of other people in the world. The executive and legislative branches have no incentive to do this because only Americans can vote in U.S. elections. For this reason, only the courts, with their unelected, globe-trotting judges, can put a break on American exceptionalism.

It is this last issue which has made the foreign law debate politically explosive. Liberal academics have detected in the courts occasional dim glimmerings of awareness that the United States does not treat foreigners fairly. The academics seek to nurture this little plant, but the real basis for their view is not doctrinal but cosmopolitan—the particular cosmopolitan view that the fact of one’s birth on one side of a border or another is morally arbitrary. This view throws democracy itself—at the national level—into question and pulls the rug out from under one of the chief rationales for originalism and for judicial restraint—that they prevent judges from interfering with democratic outcomes. Modern democratic theorists believe that foreigners should have a say in American policy, at least to the extent that American policy affects them. Their followers in the legal academy have taken the next logical step, concluding that if the political branches will not give foreigners a vote, or at least take their views more seriously than in the past, then the courts must figure out some other way to protect foreign interests. Incorporating foreign and international law is the way to do this.

The problem for these people, and a problem that conservatives have been quick to exploit, is that cosmopolitanism has little popularity among Americans. Koh himself has resolved this dilemma simply by claiming that whatever is cosmopolitan is in America’s interest—that the American and global interest converge in a standard set of Democratic party policy prescriptions. But few will be persuaded by this argument.

The foreign law position, then, is politically vulnerable, while at the same time philosophically coherent and highly appealing to liberals and indeed sophisticated people of other political stripes who dislike America’s thuggish behavior on the international stage. In this way, it has a lot in common with Warren Court constitutionalism and, depending on how political winds blow, may someday likewise enjoy a moment in the sun.

Related Posts (on one page):

  1. The Foreign Law Debate: Part II.
  2. The Foreign Law Debate: What’s At Stake? Part I.

Federal Circuit Allows But Discourages Court-Appointed Experts:

Back in March, in Monolithic Power Systems, Inc. v. O2 Micro Int'l Ltd., the Federal Circuit Court of Appeals held that the district court's appointment of a nonpartisan expert under Federal Rule of Evidence 706 was not an abuse of discretion. That's the good news, and it's apparently better news than I initially thought, because I.P. commentators seem to think that this was a novel event.

The bad news is that Judge Randall Rader added dictum that will undoubtedly limit the future appointment of nonpartisan experts in cases that may wind up before the Federal Circuit on appeal: "The predicaments inherent in court appointment of an independent expert and revelations to the jury about the expert's neutral status trouble this court to some extent. Courts and commentators alike have remarked that Rule 706 should be invoked only in rare and compelling circumstances." Judge Rader than cited exactly one court, a district court opinion from 1993, and one commentator, Wright's Federal Practice and Procedure.

In fact, for well over one hundred years, evidence scholars (including me, and see citations in this article) and other commentators have (with some exceptions, of course) been arguing for much greater use of court-appointed experts, and have expressed frustration at judges' consistent reluctance to do so, whether under their inherent powers (before Rule 706), or under Rule 706 and state equivalents.

Rule 706 itself says nothing about "rare" or "compelling" circumstances, but simply: "The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection."

As far as courts are concerned, in Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court stated: "Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules.... Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing." In the follow-up case of Joiner v. General Electric Co., Justice Breyer, concurring, strongly advocated that courts take advantage of their Rule 706 power to appoint experts. One of the sources he cited was a book by Judge Jack Weinstein, author of the one opinion relied upon by Judge Rader.

In short, neither the text of Rule 706, nor the opinions of evidence scholars, and certainly not precedent emanating from the highest court in the land suggests that use of Rule 706 is limited to rare and compelling circumstances.


Pending OLC Opinion Request On Geithner's Power To Supervise The TARP IG:

The Judiciary Act of 1789 authorizes the Attorney General to advise the President and executive agencies on questions of law. The Attorney General has delegated that responsibility to the Office of Legal Counsel. It is unusual, but not unprecedented, for people outside the government to learn of an OLC opinion request before advice is provided and a decision is made whether to publish the resulting opinion, a process that can take a year or more. But thanks to an outspoken Inspector General (there are just enough exceptions to the stereotype to save that phrase from utter redundancy), the public has a ringside seat to a pending OLC opinion request by the Department of the Treasury involving the Secretary's authority to supervise the Special Inspector General for the Troubled Asset Relief Program (SIGTARP), Neil Barofsky.

According to a letter from Senator Grassley to Secretary Geithner (itself apparently based on reports from a source in the SIGTARP office) with a CC to Barofsky, Barofsky's response to Senator Grassley and Representative Darrell Issa, and a memo from Barofsky to Treasury Acting General Counsel Bernard J. Knight, Jr., that has become public, in probably late March or early April 2009, Treasury officials balked at providing certain documents SIGTARP had requested based on concerns that giving them to the IG would constitute a waiver of attorney-client privilege. The issue came to head in connection with SIGTARP's planned interview of a Treasury official regarding payments to AIG's Financial Products unit. As a result, on April 2, Acting GC Knight emailed Barofsky that he sought to obtain an opinion from OLC on three subjects:

Whether SIGTARP is within the Department of the Treasury;

Whether the Secretary of the Treasury has supervisory authority over SIGTARP;

If SIGTARP is not part of Treasury, whether providing Treasury's attorney-client privileged materials to SIGTARP effectively waives the privilege.

While Knight quickly addressed Barofsky's request for the documents (and Barofsky recently has stated that he has received all the documents he needs from Treasury), Treasury proceeded with its opinion request. While Barofsky turned over the email traffic involving Knight and OLC to Senator Grassley and Representative Issa, he redacted certain portions at OLC's "insistence" "to avoid interfering with its ongoing consideration of the questions that have been presented to it." (OLC's request to redact is consistent with long practice, which is not to release information that can affect the Executive Branch's deliberative process.)

Based on representations in SIGTARP's April 7 memo, Treasury apparently takes the position that SIGTARP is within the Executive Branch, but may question whether SIGTARP is actually within Treasury. In its April 7 memo, SIGTARP argued that the office is an independent entity within Treasury that is not subject to supervision by the Secretary of the Treasury; that privileges do not excuse compliance with an IG's request for materials; and that response to an IG's request is not voluntary and thus is not a waiver.

SIGTARP was created by section 121 of the Emergency Economic Stabilization Act of 2008 (EESA), as amended by Pub. L. 111-15, enacted earlier this year. Before broadband, you were asking for trouble to run an allfeds Westlaw search of "act" or "law" w/5 "not a model of clarity," and that already bloated search result will only grow as EESA works its way through the courts. Section 121 of the EESA does not explicitly state what Department the SIGTARP is in, or, for that matter, whether it is even in the Executive Branch.

It seems likely that if OLC writes an opinion (more on that later), it will conclude that SIGTARP is within Treasury and thus within the Executive Branch. SIGTARP performs the traditional functions of an IG, and section 101 of EESA vests Treasury with the job of administering TARP; thus, absent a statement to the contrary, one would expect SIGTARP to be created within the agency it monitors following the usual model of the IG Act. (The opposite argument, of course, is that an inference should be drawn from the fact that Congress omitted from EESA the usual language creating the IG Office within a particular "establishment" of the Executive Branch.) There is other evidence SIGTARP is within Treasury, although you have to cull bits and pieces from EESA, none of it particularly compelling in isolation: Treasury's budget is the source of SIGTARP's funding; the EESA incorporates the removal provisions of the IG Act of 1978, which speaks of transferring the IG to "another position within an establishment," suggesting the IG position is within the establishment; by incorporating provisions of the original IG Act of 1978, EESA requires the SIGTARP to keep the Treasury (as well as Congress) informed about its findings; the SIGTARP has offices at Treasury (and the original IG Act specifies that the head of an establishment is to provide the IG office space). SIGTARP and Treasury have been operating on the understanding that the office is part of Treasury, and there is precedent that agency practice is relevant in construing an ambiguous statute, but that consideration would be given less weight given that EESA is not even a year old and practice therefore is not longstanding.

The conclusion that SIGTARP is part of the Executive Branch (and, indeed, is part of Treasury) would ordinarily answer for OLC the question that appears to have precipitated the opinion request: whether turning over documents will result in a waiver of attorney-client privilege. The questions, as framed in the April 7 memo, implicitly recognize that conclusion. Both the attorneys and the SIGTARP ultimately are agents of the same client, and so provision of the documents would not result in a waiver of the privilege.

The hardest question is whether SIGTARP is subject to supervision by the Secretary of the Treasury. Congress was not terribly clear in incorporating elements from the IG Act of 1978. Congress incorporated some provisions by specific reference or by duplicating the language of the original IG Act (e.g., the removal provisions of IG Act section 3(b); rates of pay; application of a particular Hatch Act exception for policymakers; powers and authorities; compliance with Comptroller General audit procedures). So far so good. EESA does not, however, explicitly incorporate the most relevant provision of the original IG Act, section 3(a), which states in relevant part that "[e]ach Inspector General shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment."

While the EESA does state that "the Inspector General shall also have the duties and responsibilities of inspectors general under the Inspector General Act of 1978," it is not self-evident that the IG Act's provision for (and limitations on) secretarial supervision establishes a "duty or responsibility" of inspectors general. Although SIGTARP seems to be quite adamant that that sentence of 3(a) does not apply to the office, if it does not, presumably, neither would the last sentence of the provision: "Neither the head of the establishment nor the officer next in rank below such head shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpena during the course of any audit or investigation." I am aware of no comparable noninterference provision in EESA, but it is a big statute.

Although there are question marks over the applicability of the IG Act's supervision provisions, it strikes me as unlikely that OLC would conclude that the SIGTARP is completely "independent" of secretarial supervision. The ordinary presumption is that an agency head supervises those in the agency, and there are various provisions of law that embody that background presumption. The explicit provisions of section 3(a) of the IG Act were designed to define the limits of supervision within an agency. While SIGTARP notes that the EESA does not make explicit provision for "supervision," its text is similarly silent about "independence." In the Executive Branch, it seems likely that such silence will be construed in favor of supervision rather than a lack of supervision; if Congress wants to exempt an official from supervision by the head of an agency, it is easy enough, given the separation of powers implications of interfering with another branch's traditional supervision structure, for it to say so explicitly. I understand that there is some legislative history from Senator Baucus indicating that he intended for the office to be "truly independent," and that is something OLC will have to consider. (There may be more, but I haven't been able to exhaustively search the legislative history.) I don't imagine that OLC will give the statement tremendous weight, because individual floor statements rank relatively low in terms of persuasiveness for legislative history, which is itself disfavored in an age when plain language is ascendant.

The actual phrasing of the Treasury request is critical, because if it is quite general (as in the SIGTARP letter: "Whether the Secretary of the Treasury has supervisory authority over SIGTARP"), OLC may not be forced to confront far thornier specific applications of that supervisory authority, such as whether agency head may, for example, order SIGTARP to redact privileged communications from the version of the report that is finalized and delivered to Congress. If Treasury was (as Sen. Grassley's letter suggests) concerned about waiver of attorney-client privilege, it may not be particularly enthusiastic about such communications winding up in the final report.

The thorny and politically explosive issue of IG supervision will give both Treasury and DOJ an incentive to try to resolve the matter short of a formal opinion. So if the parties have reached an accommodation that allows Barofsky to move forward with his immediate duties (as Barofsky's letter suggests), I would not be surprised if a decision is made not to finalize an OLC opinion on the subjects outlined above.


Wednesday, June 24, 2009

The Foreign Law Debate: What’s At Stake? Part I.

Now that Harold Koh is on his way to confirmation, it may be possible to discuss why some people (not me) opposed his appointment while others pooh-poohed their objections and accused Koh’s critics of ad hominem attacks. The foreign law debate is, in fact, an important one, with much at stake, and it deserves a better airing than it has received in the blogosphere so far. This is the first of two posts that will discuss the debate.

First, a word about Koh himself and vocabulary. Koh has called his own work “transnational legal process;” his opponents have therefore called him a “transnationalist.” Peter Spiro has given the equally ugly label, “sovereigntist,” to people on the other side. (Koh himself has called them “nationalists,” which of course has ugly connotations.) None of these labels are any good. Koh’s own work hardly exhausts or even represents well the pro-foreign law position, as I will call it (also not a good label but at least lacking pejorative overtones). Most people who take this position don’t refer to themselves as transnationalists, and disagree with each other about many particulars. What is true is that two clusters of positions have emerged on either side of a divide over the question how much American law, and in particular, American judicial decisionmaking, should be influenced by foreign and international legal norms. Because of Koh’s nomination to the state department, he has become a symbol of the pro-foreign law position, which he has enthusiastically celebrated throughout his career.

The current debate addresses four issues. The first concerns the extent to which American courts should “incorporate” international legal norms into domestic (non-constitutional) law. The pro-foreign law position is that courts should interpret ambiguous statutes so as to conform with international law (as reflected in the Charming Betsy doctrine, but more systematically than courts have willing to do so far); incorporate customary international law into federal common law; presume that treaties are self-executing (a part of domestic law) and are judicially enforceable; refrain from deferring to executive branch interpretations of international law; and stop ducking international law disputes on justiciability grounds. Together, these and other positions would make it easier for the political branches to create domestically enforceable international law, or (put differently) harder for those branches to avoid doing so when acting in the area of foreign relations, and harder for them to violate international law when they might otherwise want to. The skeptics prefer more limited interpretations of these doctrines and greater deference to the executive branch.

The second issue concerns the degree to which the United States should throw itself into the project of “advancing” international law and international institutions. The pro-foreign law people want the United States to enter treaties and institutions even when there may be doubts as to whether they serve U.S. interests in a narrowly defined way. They want the United States to use and support international courts like the International Criminal Court and the International Court of Justice even though skeptics point out ways that these institutions could make and, in the second case, have made trouble for American interests. The foreign law people lament the American tendency to pick and choose among multilateral treaties, and to qualify U.S. commitments with reservations, understandings, and declarations—when much of the rest of the world is less discriminating (and skeptics would say, less likely to take their commitments seriously). For the supporters of the foreign law position, American leadership on these issues will advance the (somewhat ill-defined) international rule of law, the idea that power and violence in foreign relations can be replaced with reason and argument. For skeptics, this is utopianism.

The third issue concerns one particular statute, the Alien Tort Statute, which gives federal courts jurisdiction to hear tort cases brought by aliens against violators of international law. These cases have been brought by victims of human rights abuses against security agents, former heads of state, and multinational corporations—virtually all of them involving foreigners and actions that occur on foreign territory. Many ATS cases are symbolic but the cases brought against corporations have put money at stake. Skeptics believe that these cases interfere with American foreign policy which, in the hands of presidents of both parties, has always been far more pragmatic, willing to deal with, rather than impose sanctions on, dictators and those who do business with them.

The fourth issue concerns the use of foreign and international law to interpret the U.S. Constitution. It is this issue that has received the most public attention. In a small number of recent cases, the Supreme Court has ruled that certain American practices—the juvenile death penalty, execution of retarded people—violate the U.S. Constitution, and in the course of making this argument has cited foreign and international law that suggests that most of the rest of the world disapproves of these practices. Skeptics disagree with this jurisprudential approach.

It is wrong to say—as so many bloggers have—that these issues are easy and that Koh’s critics are inventing controversies that don’t exist. What is true is that, so far, not much has been at stake. The juvenile death penalty did not have many defenders and the foreign and international citations in Supreme Court cases have seemed like window dressing, not drivers of outcomes; few ATS cases lead to money changing hands; and the controversies over statutory interpretation and federal common law are obscure. International institutions like the ICJ and ICC are too weak to pose a threat to American interests. But as is so often the case, relatively minor events can take on huge symbolic importance because they make especially clear or newly salient deep disagreements about principle that divide Americans. The skeptics are less concerned about the particular outcomes that have been reached so far, than what lies at the bottom of the slippery slope—which is where the foreign law advocates, by their own admission, want to take the United States.

Before I get to these disagreements, I also want to address the frequently made claim that “mainstream” legal academics take Koh’s side on all these issues. This is partly true, but most mainstream legal thinkers have not contributed to the debate. For many years, the positions on the first three issues hardened as a small number of like-minded people wrote articles agreeing with each other. I don’t think there was serious debate about them until Curtis Bradley and Jack Goldsmith published a major article attacking the federal common law view in 1997. On the question of America’s role in international institutions, there has been a lively debate among political scientists for decades—just one that law professors never joined. On the issue of constitutional law interpretation, it’s wrong to say that this debate has been settled. All of the conservatives who consider themselves originalists, and many others as well, reject the use of foreign and international law for constitutional interpretation; and although originalism remains highly controversial, it can’t be simply ignored. The debate on this issue has barely begun. Finally, even if “mainstream” legal academics take a relatively uniform pro-foreign law view, it’s far from clear that their view is that of the courts and other “mainstream” American institutions. Indeed, the foreign law advocates have spent a lot of time urging the courts and the executive branch and Congress to take a more positive approach to international law than they have before; Koh has always been explicit that he is an advocate, not a defender of the status quo.

In my next post, I will try to explain why these disagreements exist.

Related Posts (on one page):

  1. The Foreign Law Debate: Part II.
  2. The Foreign Law Debate: What’s At Stake? Part I.

The Most Important Review Russell Roberts Will Ever Get

for his novel, The Invisible Heart: An Economic Romance. I recommend blurbing it immediately:

hey daddy!

i just wanted to let you know that the book you lent me is really good and your students need to read it. it'll make them consider every side of good important economic issues and let them know that just because they argue what seems to be the humanitarian side or majority side of a case doesn't mean they have the right to sit on their high horse and be self-righteous, ignore every other argument. make them read it, it's a fast read and is completely worth it.

love you! xoxoxoxo renee

Co-blogger Todd mentioned his colleague Russell Roberts' economic novels a week ago, and I promptly ordered The Invisible Heart from Amazon. Beloved Daughter Renee, age 16, left to join Beloved Wife in Guatemala a few days ago and although she looked skeptical when I suggested The Invisible Heart if she was looking for reading while doing her school community service project (more about that in another post), she took it along. Now I'm looking forward to reading it.


Only 6% of Jewish Israelis think Obama is Pro-Israel,

while 50% think he favors the Palestinians.

This is bad news for Obama's Middle East plans, regardless of whether the poll results are objectively justified. If Israelis think that a pro-Israel president is putting justified pressure on a recalcitrant Israeli prime minister, that prime minister will have to yield or leave office. But if they think the prime minister is standing up for vital Israeli interests against a president who is hostile or indifferent to Israel, they will back the prime minister. Obama might want to invest some of his charm and charisma in wooing the Israeli public.


May Government Ban Advocacy Near Movie Theaters, Outdoor Restaurants, and the Like?

The reasoning of a Ninth Circuit panel decision last year seemed to suggest the answer was yes, on the grounds that the government may protect "captive audiences" near those places from potentially offensive speech. The decision was focused on the Seattle Center, a large park in Seattle, but the rationale would have equally applied to picketing on the streets, and a wide range of other speech.

The court just reversed that decision en banc. The opinions are long, and there are several dissents, including by my former boss Chief Judge Alex Kozinski, whose work I much admire (and usually, though not always) agree with. Unfortunately, I'm on a trip, and not sure whether I'll be able to discuss the arguments in more detail; but I thought I'd note this. I am, however, pleased that the captive audience argument, which is what troubled me most about the panel decision, has seemingly been rejected by the decision.

Thanks to Kent Scheidegger (Crime & Consequences), who seems to side with the dissent, for the pointer.


Tuesday, June 23, 2009

Test for Obama: US Tracking Probable North Korean Weapons Ship.

The Obama Administration responded to the North Korean provocations testing the resolve of our new president by supporting expanded UN embargoes on weapons shipments.

The US Navy is now tailing a North Korean ship suspected of transferring military weapons to Myanmar, which is also subject to embargoes:


South Korea's YTN news network reported that a U.S. Navy destroyer was tailing a North Korean ship suspected of carrying missiles and related parts toward Myanmar in what could be the first test of new U.N. sanctions against the North over its recent nuclear test.

The sanctions toughen an earlier arms embargo against North Korea and authorize ship searches in an attempt to thwart its nuclear and ballistic missile programs. . . .

"This administration — and our military is fully prepared for any contingencies," Obama said Friday during an interview with CBS News' Harry Smith, to be broadcast Monday on "The Early Show."

"I don't want to speculate on hypotheticals," Obama said. "But I want ... to give assurances to the American people that the t's are crossed and the i's are dotted in terms of what might happen."

The North's cargo ship, Kang Nam, is expected to travel to Myanmar via Singapore, YTN said, citing an unidentified intelligence source in the South. Myanmar's military government, which faces an arms embargo from the United States and the European Union, has reportedly bought weapons from the North.

The ship is reportedly the first North Korean vessel to be tracked under the new U.N. sanctions.

Two U.S. officials said Thursday that the U.S. military had begun tracking the ship, which left a North Korean port Wednesday and was traveling off the coast of China.

One of the officials said it was uncertain what the Kang Nam was carrying, but that it had been involved in weapons proliferation before.

The embargoes would seem to require that the US inspect the ship before it reaches its destination. The Israeli website speculates that Obama must do this to maintain credibility with the world.


The UN Security Council resolution of Friday, June 12 mandated sanctions, approved at Washington's behest, that authorize UN member nations' naval vessels to stop and search North Korean ships suspected of carrying nuclear materials.

Pyongyang said this measure would be deemed an act of war on the Korean peninsula and draw a "thousand fold" military retaliation.

However, at stake for the United States is a far larger issue, DEBKA-Net-Weekly's Washington sources report: It relates to America's standing as the leading nuclear superpower and guardian of the global nuclear order. In this sense, the Korean crisis confronts Barack Obama with a supreme test as US president with major ramifications for the Iranian program.

This goes to the motivation behind Kim Jong-Il's nuke-rattling, his decisions not only to unveil the appointment of his 26-year old son Kim Jong-Un as his successor, but most of all to take the lead in creating a bloc of nations willing to shake the United States on this pedestal.

Obama's non-confrontational stance on the Iran crisis obliges him to apply muscle to the Security Council's sanctions against Pyongyang - or lay himself open to criticism for being soft on both nuclear rogue states. This would disarm in advance any penalties the UN might impose on Iran for its nuclear violations.

Will Cap and Trade Pass Congress?

The House of Representatives is scheduled to vote on cap-and-trade this week.

The bill seeks to lower US per capita cabon emissions to levels below those of the US colonial period.

As I blogged four months ago:

The goal is an 83% reduction in carbon emissions by 2050 compared to 2005 levels.

That would bring US per capita emissions of CO2 down to a level below what we had in the 1700s. As Steven Hayward wrote in the WSJ last April about an 80% reduction then on the table:

Begin with the current inventory of carbon dioxide emissions – CO2 being the principal greenhouse gas generated almost entirely by energy use. According to the Department of Energy's most recent data on greenhouse gas emissions, in 2006 the U.S. emitted 5.8 billion metric tons of carbon dioxide, or just under 20 tons per capita. An 80% reduction in these emissions from 1990 levels means that the U.S. cannot emit more than about one billion metric tons of CO2 in 2050.

Were man-made carbon dioxide emissions in this country ever that low? The answer is probably yes – from historical energy data it is possible to estimate that the U.S. last emitted one billion metric tons around 1910. But in 1910, the U.S. had 92 million people, and per capita income, in current dollars, was about $6,000.

By the year 2050, the Census Bureau projects that our population will be around 420 million. This means per capita emissions will have to fall to about 2.5 tons in order to meet the goal of 80% reduction.

It is likely that U.S. per capita emissions were never that low – even back in colonial days when the only fuel we burned was wood. The only nations in the world today that emit at this low level are all poor developing nations, such as Belize, Mauritius, Jordan, Haiti and Somalia. . . .

If Obama succeeds in his quest to reduce carbon emissions by 83% by 2050, American business will be destroyed. Manufacturing in the US will essentially disappear to countries that do not have anti-business, anti-growth policies, mostly in the Far East.

It would be hard to imagine a government policy that is likely to be more destructive of jobs and economic growth than this one.

So what are its chances in Congress? I poked around a bit in order to determine if I needed to sell my US stock market positions.

Normally, the bill would not be brought forward in the House without the votes, but I came across this speculation:

The erratic course that legislation establishing transferable global warming fees has taken shows how hard it is to get a coalition together for a future problem that many people think is overstated.

While her admirers say that the reason the speaker kicked the bill out of committee for a sudden vote by the full House is because she believes she can get the job done, it's at least as likely that Pelosi knows she can't.

Leaving the bill in the hands of skeptical and regionally motivated committee chairmen and subject to special interest lobbying, Pelosi was losing control of the bill. Worse than having the Waxman-Markey bill defeated would be having it pass in some form that is really more of a subsidy to carbon emitters than a crackdown. . . .

By bringing the bill out for a vote this week, it will almost certainly fail in the House. If, by some miracle it does get out of the House, the Senate would smite any bill that amounts to a tax or hurts manufacturing states. . . .

Rather than being a sign of new life, Pelosi's decision to push the cap and trade bill out of committee may be something of an assisted suicide.

While I do not know anything of the bill's chances in the House, I wouldn't consider it a "miracle" if it passed. Yet, given the Senate's refusal to fast-track the bill earlier this year, I suspect that the Senate will not pass any version of cap-and-trade this year.

But that wouldn't be the end of cap-and-trade. The Obama administration might just implement it under its power to prevent air pollution.

What Your Body is Telling You:

It's a very interesting article on personal health in the Personal Journal section of the WSJ today, all about looking for various signs of illness or disease from things like skin changes, nails and hair, teeth and gums .... However, though no doubt designed to be inflammatory or at least to sell some papers, the front page headline for the story is:

How to Diagnose Yourself,

the which, I admit, does give me a certain pause.


President Obama's Press Conference.

President Barack Obama opened his press conference today with statements on three issues: Iran, the energy bill, and health care.

On health care, Obama claimed: "It will not add to our deficits over the next decade."

As he has in the past, Obama claimed: "There's no doubt that we must preserve what's best about our health care system, and that means allowing Americans who like their doctor and their health care plans to keep them."

On Iran, Major Garrett of FoxNews noted that Obama was now "appalled" and asked: "What took you so long?"

Obama responded that his comments on Iran were consistent from the start.

UPDATE: Obama was asked whether he could keep his promise that people could keep their health plans and their doctors. When Obama first dodged the question, a follow-up tried to pin him down. Obama's response:

When I say if you have your plan, ah, and you like it and your doctor has a plan — or or you have a doctor and you like your doctor that you don't have to change plans, what I'm saying is the government is not going to make you change plans under health reform.


Under Obama's health care plan, the government will not order you to change doctors or change plans, but some employers would change plans even without health care reform. The unstated assumption appears to be that, by changing the health care market, health reform will cause some employers to change plans. Thus, if you like your doctor or your health care plan, health care reform may cause you to lose them, but they won't be taken away by government fiat, rather by competition, which is usually good.

One additional note: as I was perhaps the first commentator to point out after the election, Obama picked at least his first few questioners by looking at his notes, sometimes not knowing where the reporter was seated. And the questioners appeared to know that they would be called on. This behavior appeared to be consistent with reports from last fall that the Obama press people discuss with reporters ahead of time whether they will be called on:

The press corps, most of us, don't even bother raising our hands any more to ask questions because Obama always has before him a list of correspondents who've been advised they will be called upon that day.

Iranian gun laws bleg:

The Small Arms Survey suggests that Iran's per capita gun ownership rate is 0.053 (that is, about one gun for every twenty people). This is fairly low by global standards. (See Tables 6 and 7 of my recent article in the Texas Review of Law & Politics.) Could commenters please supply information about the gun laws of Iran, and how they are enforced? What kind of people in Iran are allowed to own guns? What kind of guns? Please don't get into a discussion of whether the Iranian protesters would be better/worse off if they had guns. Just supply accurate information, with citations if possible. Comments based on personal experience from people who have lived in Iran, or visited Iran, are welcome.


Monday, June 22, 2009

The 1969 Cuyahoga River Fire -- Forty Years Later:

Forty years ago today, some oil and debris floating on the surface of the Cuyahoga River began to burn. The resulting fire was not much of a local event — it was out within 30 minutes and caused minimal damage — but soon became a national symbol of environmental ruin. The image of a river engulfed in flames seared itself into the nation's emerging environmental consciousness and helped spur a series of far-reaching federal environmental statutes. Today, people look at the Cuyahoga River with amazement at how far it has come in forty years time. "From fire to fish-friendly," as reported today by the Cleveland Plain Dealer.

The 1969 Cuyahoga River fire was one of the seminal events in American environmental history, yet the conventional narrative about the fire is all wrong — including the famous picture that Time magazine published erroneously. News photographers failed to arrive in time to catch pictures of the quick blaze. The picture Time published was actually from 1952.

The 1969 fire was less a symbol of how bad things could get, than a reminder of how bad things had once been. While the Cuyahoga River was hopelessly polluted in 1969, river fires by this point were largely a thing of the past. Indeed, river fires had once been common on the Cuyahoga and other industrialized rivers. Throughout the late 19th and 20th century, combustible material on industrialized rivers ignited somewhat frequently. By 1969, this problem had been largely solved. By that time, the Cuyahoga River had not burned in over 15 years, and the once-common problem of river fires had been largely forgotten. Water pollution remained a serious concern, but not because rivers threatened to burn.

There's been substantial media coverage of the river fire's 40th anniversary, much of which draws upon my effort to reconstruct an environmental history of the fire in "Fables of the Cuyahoga: Reconstructing a History of Environmental Protection" [14 Fordham Envtl. L.J. 89 (2002)]. The New York Times had a story today on the Cuyahoga River's tremendous environmental progress, as did NPR. The Cleveland Plain Dealer has been running a whole series on "The Year of the River," which includes this story on the history, and this one on my research.


Monday Bear Blogging:

I've been in Montana the past several days for a conference and some talks. Over the weekened, my wife and I hit Yellowstone National Park, and got quite a few wildlife photos. One of my favorites -- more for the subject than the picture quality -- is this picture of grizzly bear taken between Madison Junction and Norris.

My wife got a picture of a black bear that's much better that I might upload later in the week.

[Note to self: Get a digital camera with a better zoom.]


Helping the Iranian Protestors:

This seems like a good idea for Twitterphiles:

Do you twitter? Change your twitter setting to GMT +3:30 (Tehran time) and your location to any city in Iran. If all of us are Iranians then it is a little harder for government censors to track down Iranian tweeters. (See list of Iranian cities at

H/T: Kathleen Bergin.


New Yale Law Dean--Robert Post:

An email from Yale:

It gives me great pleasure to announce the appointment of Robert C. Post ‘77JD as the Dean and Sol and Lillian Goldman Professor of Law, effective July 1, 2009. Professor Post, who returned to Yale in 2003 as the David Boies Professor of Law, is a distinguished scholar of constitutional law, in particular the First Amendment, equal protection, and legal history. As a leading scholar and a respected citizen of the legal profession, he is ideally positioned to move the Yale Law School forward. He is greatly admired by his colleagues for his wisdom and judgment, and his commitment to sustaining the excellence of the Law School is unwavering.

Congratulations to Prof. Post, whose work I greatly admire.

I'm sure dean-elect Post faces many interesting challenges an opportunities. But those of us who write in the area of constitutional history want to know what this will mean for his volume-in-progress on the Taft Court for the Holmes Devise History of the Supreme Court.


Supreme Court Agrees To Hear Comstock Federal Power Case:

I blogged about the case in January, as did Ilya. Having had a (rare) success predicting the grant of certiorari, I now predict that the Supreme Court will reverse the Fourth Circuit decision, chiefly for the reasons I mentioned in my initial post.


Horace Comes to Law School:

A law professor e-mailed me this (prompted by my Correcting Students’ Usage Errors Without Making Errors of Our Own:

Over the years, I have tried to get students to use “garnishee” as a verb, as in “to garnishee an employee’s wages” rather than to garnish wages. I say “to garnish wages” is to sprinkle parsley but even as I say it I think I sound pedantic. Any thoughts?

Here's what I said in response: I don’t teach in the field, so my judgment might not be good here; but I’ve always much preferred “garnish.” True, “garnish” is also used for food, but English speakers are quite familiar with words that have vastly different meanings; no-one really thinks even for a moment about the limbs of forest animals, for instance, when they hear about “bear arms.” So I doubt that “garnish” is even distracting. And garnish certainly isn’t wrong: The Oxford English Dictionary attests it to 1577 (three centuries earlier than “garnishee” as a verb), and Black’s of course lists it as well.

What’s more, “garnishee” strikes me as sounding too much like a noun based on the verb, much as “employee” or “mortgagee.” At first, that’s all I thought it was; some years ago, I learned that it is indeed used as a verb, but it still sounds unpleasant to my ears (though again I stress that this isn’t my field).

But rather than just relying on my ear, let me suggest that we go with Horace, and follow “the will of custom, in whose power is the decision and right and standard of language.” A Westlaw search for ((garnish garnished) +5 wages) & date(> 1/1/2000) reports 675 hits, seemingly (from looking at the first page) almost entirely genuine and not false positives. A search for ((garnishee garnisheed) +5 wages) & date(> 1/1/2000) reports 23 hits. One of those is labeled “[sic],” and 12 use “garnishee” as a noun and not a verb (e.g., “orders the garnishee to withhold attachable wages”). So it looks like there are only 11 hits (one condemnatory, because of the “sic”) for “garnishee” as a verb, as compared to 675 for “garnish.”

That, I think, strongly counsels against the “garnishee” usage. Some people, such as the “sic”ing court (the Second Circuit), might think “garnishee” is wrong. And others who understand and accept the usage would still likely be distracted.

So it seems to me that students are better off learning to use the familiar and broadly accepted “garnish,” notwithstanding the possible (but in my view unlikely) association this may briefly create in the reader’s mind with parsley, rather than the much rarer “garnishee.”

I'm pleased to report that my correspondent e-mailed me back to say that this argument "convinced [him] to go back to garnish as a verb." What do you think?

Related Posts (on one page):

  1. Horace Comes to Law School:
  2. Horace and Google:

Court Takes Commerce Clause Case:

This morning the Supreme Court accepted cert in United States v. Comstock, a commerce clause challenge to post-sentence civil commitment of sex offenders. This case will be the first test of the Roberts Court's commitment to the federalism principles embraced (even if somewhat inconsistently) by the Rehnquist Court. The cert papers are on SCOTUSBlog here. Our prior posts on the case are here.

I'd post more, but I'm in Montana at the moment. So maybe later, and perhaps I'll be able to put up one of our bear pictures too.


Sunday, June 21, 2009

Sunday Song Lyric - Father's Day Edition:

By request, a Sunday Song Lyric for Father's Day: "My Father's An Accountant" by Peter Himmelman. The song begins:

My father's an accountant and I used to think that he was dull
He sits all day long crunching numbers in his skull
He'd get up to sharpen his pencil
Or put a spoon of sugar in his teeth
My father is a hero
But for a while, I just couldn't see.

The video is here. Happy Father's Day.


Father's Day Gifts.

Amazon has some sales on Father's Day gifts, including exercise equipment, 45% off on South Park DVDs, and 50% off on men's sandals. Oh Boy!

A Sequel or a Commentary on "Catcher in the Rye"?

The New York Times has an interesting story on a copyright case involving a possible sequel to The Catcher in the Rye:

The judge, Deborah A. Batts of United States District Court in Manhattan, granted a 10-day temporary restraining order forbidding publication in the United States of a new book by a Swedish author that contains a 76-year-old version of Holden Caulfield while she considers arguments in a copyright-infringement case filed by Mr. Salinger.

His lawyers contend that the new work is too derivative and that the characters in “Catcher” are protected by copyright. . . .

“I’ll issue a written decision as quickly as I can,” she said, adding that until then, her order would prevent publication here of the new book, “60 Years Later: Coming Through the Rye,” by J. D. California, a pseudonym for the Swedish writer, Fredrik Colting. . . .

Mr. Colting’s book, which was published in England, describes itself as “An Unauthorized Fictional Examination of the Relationship Between J. D. Salinger and his Most Famous Character.” His American lawyer, Edward Rosenthal, called the book a critique that describes an aged Holden Caulfield — in the persona of a character called Mr. C — as “a lonely old man,” and depicts Mr. Salinger as a prisoner of his own achievements who is haunted by his famous creation.

Characters in Mr. Colting’s book and Mr. Salinger’s inhabit parallel worlds, visiting Grand Central Terminal, the Museum of Natural History and the carousel in Central Park. Both Holden Caulfield and Mr. C despise the word “grand” and both like the phrase “to tell you the truth.”

Supporting characters from “The Catcher in the Rye” also surface in Mr. Colting’s book. There are references to Mr. Spencer, a teacher from Pencey Prep, and to a student, Stradlater, who in the new book confesses to having stolen a pair of gloves that Holden Caulfield wondered about in Mr. Salinger’s book.

Holden Caulfield’s younger sister, Phoebe, shows up in the book by Mr. Colting too, having aged into a drug user suffering from dementia.

Mr. Rosenthal argued that his client’s book, which includes several new characters, qualified as a form of literary criticism because it provoked questions about the nature of Mr. Salinger’s book. “I believe that this work significantly comments on ‘Catcher in the Rye,’ ” he told the judge.

But Marcia Paul, a lawyer for Mr. Salinger, said the book has assumed the appearance of a sequel.

While all this sounds bad for the author of the new work, there was one line of argument offered by Salinger’s lawyers that seems off base, even though it might or might not be supported by case law:

Mr. Salinger’s lawyers have said that Mr. Colting is trying to exploit the popularity of “The Catcher in the Rye,” a classic coming-of-age novel that has sold 35 million copies . . . .

“They described and sold this book,” she said, “in order to trade on ‘Catcher in the Rye.’ ”

It is absolutely routine for one work to spawn imitators that “trade on” or “exploit the popularity” of the more successful work. Very successful works create their own subgenres.

And books, movies, plays, and TV shows are often referred to or marketed as being attractive to those who liked an earlier work. I did a quick Westlaw news search for the phrases “Star Wars meets” or “meets Star Wars” and found 461 examples, such as “'Star Wars' meets 'The Ten Commandments'” or “Monty-Python-meets-‘Star-Wars.’"

In a Westlaw search, I found 252 examples of "'Jaws' meets" or "meets Jaws."

There were 62 examples of "from the studio that brought you" and 21 examples of "from the producers who brought you."

Though most of these examples of trading on another work’s success were made by third-party commentators, some were made by marketers of the new works.

I understand why the law of copyright might want to restrict the writing of actual sequels or prequels using the same characters. I offer no argument on that issue, though I would want to give a broader protection for commentary in novel form on earlier works than current law probably affords for modern works (e.g., I think that the many reinterpretations of Sherlock Holmes are a pleasant and useful addition to modern literature).

My comments here are not really about existing copyright law, which is not one of my areas of expertise. Rather, it is about where, in my opinion, the law should draw the line. If in J.D. California’s novel no characters had been repeated, I would see nothing wrong with the rest of what is complained of. Building on other people’s accomplishments and appealing to existing fans of copyrighted and trademarked work is how knowledge, art, and commerce advance.

Related Posts (on one page):

  1. J.D. Salinger's Lawsuit Over the Sequel (?) to Catcher in the Rye:
  2. A Sequel or a Commentary on "Catcher in the Rye"?

Varieties of Realism and Idealism in the Obama Administration:

The Iran crisis is perhaps signaling, so far as I can tell watching from the outside, divisions within the Democratic Party and possibly within the Obama administration, not just between idealists and realists, but among an increasingly complicated set of normative foreign policy positions.

A couple of years ago I mentioned the rise, as a consequence of the Iraq war, of what I called the 'New Liberal Realists' (it was in this review essay of Francis Fukuyama's After the Neo-Cons and Peter Beinart's The Good War), urging caution against democracy promotion agendas as foreign policy. Hillary Clinton exhibits something of this tendency, at least when in the mode that early on dismissed concerns about human rights in China out of hand, as, well, befits relations between debtor and creditor.

Distinguished from the New Liberal Realists are the transnationalists, the liberal internationalists who, in Fukuyama's useful categories, seek to use international law and institutions to overcome the international power politics that the realists, including the New Liberal Realists, take for granted. It is also the home of universalist human rights. The default position for many in the Democratic Party's intellectual and academic wings - Harold Koh, for example - it is a form of foreign policy idealism, of course, but exists in some tension with the New Liberal Realism. It has not been very apparent which tendency is ascendent, or whether they will simply exist in tension within the administration.

But there is another form of idealism - one which has been distinctly disfavored recently in the Democratic Party, even though formerly quite popular, until Bush embraced it and then the Iraq war: democracy promotion. Universal in one sense - universal not in the liberal internationalist sense, however, but instead in the sense of a universal form of internal governance - by consent of the governed through elections - within sovereign states. It is not universalism in the sense of embracing global governance, but the assertion of a value as being universal for application within sovereign nation-states.

This democracy-promotion idealism is not necessarily inconsistent with liberal internationalism, and that has generally been the position of its Democratic Party supporters, who have embraced both. Still, if you are a liberal internationalist, for whom a principal commitment is hostility to sovereignty as such, in favor of global institutions, then this democracy promotion is not really what interests you, because this democracy-promotion is about political order and values within a sovereign state, not about reducing the importance of sovereignty as such.

Democracy-promotion has had very important intellectuals and supporters within the Democratic Party - some of whom have gone into the Obama administration. Michael McFaul of Stanford University is the most important among the intellectuals and academics. But it is not very clear to those of us on the outside how much influence the ideal of democracy promotion has within the administration, notwithstanding that it has a pedigree in the Democratic Party quite separate from neoconservatism.

Update: My reservations about the "new liberal realism," in a piece from 2006 (slightly revised from publication form). I have about the same reservations today.

The new liberal realism is profoundly unattractive--as though liberal idealists, long constrained by their moral Calvinism to worship at the altar of severe Wilsonian idealism, were suddenly freed, through the failure of conservative idealism, the failure of neo-conservatism, to celebrate a Carnival of realism, petit moralistes, catechists of the Categorical Imperative, until now sternly watched over and instructively smacked on the head to prevent dozing off in the Church of Human Rights by the likes of Michael Ignatieff, Kenneth Roth, Samantha Power, Geoffrey Robinson, Jimmy Carter, Claire Short, Louise Arbour, but the seminarians of human rights idealism are suddenly freed to dance drunk in the avenues of dubious virtue, to party in the sinful precincts of hard realism usually reserved to the morally benighted Brent Scowcroft and James “no dog in this fight” Baker, freed to expound on the virtues of accommodation, containment, stability, and interests, freed to expatiate realist necessity, game theory, instrumentalism, rational choice; freed not to have to sing hosannas at every goddamn waking moment to the glory of Moral Ends and Human Rights Universalism, and freed to maintain the necessity of "our sonofabitch." Think Wilberforce on a drunken bender.

Update 2: Welcome Instapunditeers and thanks Glenn! Glancing at the comments, I probably should have posted more of the above quote - in context, it's not intended to be snark. This was written before Obama, before the surge, before lots of things, and it was intended to channel, as it were, the feelings of some of my close liberal friends. Things they wouldn't be willing to say publicly but were definitely their private views. It goes on to say that I don't think the Carnival can last, because eventually these folks will recover some form of foreign policy idealism. Where I would like to see us all wind up is in some form of "chastened idealism," some form of "tempered idealism." Wouldn't you?

What that means for the administration on Iran today, well, I would prefer it to be more willing to assert the American value of liberty - and unlike some of the commentators, I have no hesitation in ascribing that to us - but also believe that this kind of difficult judgment is fully within the call of an administration, either way.

That said, as to the above quote, it is rare that I get any reaction to something I write in a law review - only a blockhead, I believe Samuel Johnson put it, ever read a law review except for money - but I got several striking emails following this piece, from good liberal friends among the academics and intellectuals, saying, that's me, that's me - skip the substance, I just love being able to be a realist, a real realist, you get to say things I could never say before, it's so much fun!

I say this, by the way - Anderson talking - as an idealist, not an realist, though I hope a suitably chastened one.