A Few More Thoughts on Local Government

In my post on Tuesday, I discussed the possibility that the current problem of severe local and state government budget crises across the United States might result in a (very positive, in my view) reduction in the number of local governments, with towns and villages forced to join forces as a way to save money. When, for example, two towns with a total of 2500 residents maintain separate police forces, school systems, sewer districts, local governments (executives, legislatures, and judiciaries), and so on, there is an awful lot of wasteful duplication of functions (not to mention nearly unavoidable failures to communicate and coordinate across jurisdictions). In comments on this blog's message board and in off-list emails, some readers have raised issues that are worthy of further discussion, a few of which I will try to address here.

First, as I mentioned in my original post, I am not aware of any estimates of how much money could really be saved by combining services across small towns and mostly-empty counties. I could easily believe that there is not as much money to be found as my original comments suggested. A former student of mine who lives in northern New Jersey offered the following facts and thoughts:

Take Fair Haven, for example. They recently merged police dispatch with another community's which saved FH the cost of part of a part time dispatcher. They might also be able to eliminate a police administrator, but that's about it. Even if that saves $200,000, it is a tiny percentage. Extend this approach to the schools and you end up with a multiplier of a small number.

Also, elected officials in many NJ communities don't make much if any money. FH is governed by a mayor and counsel, none of whom are paid. The county is governed by a Board of Freeholders who each make very little (it might be around $30,000). And the state assembly reps are paid like it is a part time job (maybe $60,000?) and have very limited ability to hire staff. There may be some economies of scale to be gained, but probably not much real savings.

In the aggregate, the numbers could clearly be large or small. It is worth remembering, of course, that even small numbers can add up when multiplied by large enough numbers, and having 99 counties in Iowa suggests that even small savings might add up to some big reductions in spending. Still, 99 times $1 is still only $99; so small numbers might simply add up to small numbers. If it turns out that there is just not that much money to be saved, then the political fight to consolidate would hardly be worth it. I suspect that there are some decent estimates on this question that I have not yet seen, but for now this should be treated as an open question.

Beyond the amount that might be saved, my post also pretty much ignored the benefits that might be gained from having a large number of small, very local government entities. It is certainly fair to point to some of those benefits, such as the certainty that someone who lives down the street will know more about your neighborhood than does someone who lives across the country.

As I suggested in my own comment on the message board, though, the existence of benefits to local-level governance does not make the issue that I raised an either-or proposition. That is, even someone (like me) who sees that there are benefits to decisions being made at the local level would not necessarily think it is a bad idea to have a smaller number of slightly larger local governments than we currently have. If we were starting from scratch and asking ourselves how to organize the states at the sub-state level of governance, it seems highly unlikely that we would choose numbers of localities and counties as large as exist today. Eight-eight counties in Ohio? Separate governments for side-by-side bedroom communities near Toledo? I am not, in other words, talking about eliminating local governments but rather how big local governments should be. The best direction for change seems fairly clear-cut, starting from where we are now.

Beyond that, it is also worth noting two further points. First, local decision-making can be done by state- and federal-level agencies. U.S. attorneys and the FBI maintain local offices, for example, allowing people employed by a non-local government to live locally but to take advantage of being part of governments with much better resources that can be shared efficiently. This can, of course, go too far in the other direction, with the burdens of coordination overwhelming the other economies that might come from statewide or national organizations. Again, however, that is an empirical question to which there is no obvious answer across the board.

Second, local decision-making sometimes has serious downsides. The term "local justice" is almost always used ironically to describe the inbred nature of decision making among small groups, with outsiders being disadvantaged and with local elites able to hold a tight grip on power. When I was living in Rhinebeck, NY, for example, I wanted to pursue a small contract claim against my employer. I learned that the local magistrate was employed as a maintenance man for my employer, and I was therefore advised not to bother bringing the case! Diversity jurisdiction in federal civil procedure is often justified in part precisely by the concern that local interests will taint the judicial process. Moreover, local police forces and sheriff's offices have been known to become arms of intimidation against outsiders, and local bosses can use their power over city services to make themselves essentially above the law. Again, this can happen at every level of government; but the smaller the number of people, the easier it can be to lock down power.

In short, there certainly are good things about preventing too much political power from rising up through the federal system. That is quite different, however, from saying that we should not whittle down the number of local governments in this country. There may be no precise way to determine the ideal number or size of localities and counties, but if the number of dollars at stake is at all significant, then it seems that we are currently uncomfortably above any plausible right answer to the question.

-- Posted by Neil H. Buchanan

Must the U.S. Extradite Alleged Torturers if they are not Prosecuted Domestically?

In my latest FindLaw column (available here some time Wednesday afternoon), I argue that if the Obama Administration ultimately decides not to prosecute anybody for committing torture during the Bush years, the President ought to consider pardoning all those involved---and simultaneously explaining that the pardons are meant to acknowledge rather than deny wrongdoing. Here I want to raise a related concern.

Under Article 7 of the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signatories are obligated either to extradite violators or to submit their cases to the "competent authorities" to consider bringing charges. These competent authorities, the provision goes on, "shall take their decision in the same manner as in the case off any ordinary offence of a serious nature under the law of that State." President Obama or his aides seem to be keenly aware of that provision, because earlier today he told reporters that he would leave the decision whether to prosecute the architects of the Bush policy to the Attorney General.

Suppose, however, that the Justice Department decides not to seek prosecutions for a combination of two sorts of reasons I discuss in my column: 1) the likely difficulty of obtaining convictions; and 2) the harm that lengthy trials would do to the country. Would that count as a "decision in the same manner as in the case off any ordinary offence of a serious nature?" It's hard to know because there are no exact parallels in the context of conventional crimes.

If a decision not to prosecute (with or without an accompanying decision to grant pardons) does not satisfy Article 7, then the U.S. would be under an obligation to extradite suspects sought by other countries or international authorities. That obligation would not be domestically enforceable, however, because the Senate ratification off the UN Convention includes a reservation specifying that it will not be treated as self-executing, and no federal statute implements the prosecute-or-extradite imperative of Article 7.

Still, even a non-self-executing treaty creates inter-sovereign duties on the United States. It would be quite awkward for a President who has made renewed multilateral cooperation a centerpiece of his foreign policy to breach an international human rights treaty in such a high-profile case.

Posted by Mike Dorf

Big Changes in a Crisis: State and Local Government

Late this past December, I inaugurated what I hoped would be a series of posts discussing some large changes that we could make in various areas of the economy and society, changes that might only be possible in a time of severe crisis. I did not realize it at the time, but the basic idea was captured by Rahm Emanuel, soon to be the chief of staff of the Obama White House, in his pithy observation that "you never want a serious crisis to go to waste." Some interests are so entrenched that our only hope for ever dislodging them is to ride the wave of an era-defining change in attitudes and expectations.

After my initial promise to write that series of posts, I wrote one post in which I discussed changing the automobile industry in the United States to be more environmentally responsible and customer-friendly. I then let the "big changes in a crisis" series lapse, in part because of the whirl of news and events surrounding the new administration, but also in large measure because it seemed that the Obama administration was taking to heart Emanuel's suggestion to think big. If anything, in fact, President Obama has been criticized for thinking too big about too many things, criticism that might tend to prove that the current crisis is not so severe as to have shaken loose the do-nothing tendencies in the political culture. Even some of his medium-sized (but very good) ideas, such as his plan to limit the tax deductibility of various items for higher-income taxpayers (which I discussed here and here), have already been beaten into submission.

Moreover, there are some big ideas that become less desirable (or politically plausible) during a big crisis. My strong preference that the country move away from home ownership and toward stable rentals of both apartments and houses (discussed here and in posts linked therein) is rightly not on the table, given that the collapse of home-building is one of the major reasons that the economy tanked last year and that there is no plausible substitute for a rebound in the housing industry as a necessary part of bringing the economy back to health. (Disclosure: My mother's father and brother were home builders, so I was partly reared on concrete blocks and 2x4's.) Changing the mix of owning and renting is an important project that could bring major benefits to middle-income families, but this must be a slow process that begins during relative prosperity.

Even so, it continues to be important to think about what can be done during a time that uniquely calls out for big thinking. In a guest editorial in yesterday's New York Times, the journalist Tom Brokaw suggests that it is time to re-think the number and organization of sub-state governments. (Brokaw is no more qualified to opine on this subject than any reasonably well-informed person, but why question the parentage of a good idea?) Brokaw suggests, in a nutshell, that there are simply too many county and municipal governments and school districts in this country and that it is time to combine them in a way that could save huge amounts of money. (He does not offer any numbers regarding plausible savings, and I would welcome comments pointing toward any estimates that have been made along these lines.) Doing so now might be possible because the states are having even more severe financial shortfalls than they usually face during an economic downturn, so that the same legislators who are reconsidering their previous embrace of get-tough prison expansions -- and even the death penalty -- on financial grounds might finally decide that it makes no sense to keep so many small-town mayors, police chiefs, and school superintendants on the job.

The problem of too many local governments is a classic example of simple institutional inertia. As the country grew, towns sprouted, and local governance was the norm. Brokaw talks about Iowa's 99 counties and the absurdity of the regional university system in his native South Dakota. Growing up in Ohio, I knew that there were 88 counties, most of which were less populated than my high school home room. When I lived in New Jersey several years ago, one of the most perplexing questions was why the state was continually in a budgetary crisis even while it was the most heavily taxed state in the country (and even while its highly educated and wealthy population should have been able to easily outweigh its urban poor in a budgetary sense).

True, New Jersey is legendary in its tales (and reality) of political corruption; but other states have plenty of corruption as well. What makes New Jersey's government more expensive to run than, say, Illinois' or Texas' or New York's? One explanation was that New Jersey supports more local governments and school districts than any other state. Even after living there for a couple of years, I was constantly amazed to discover on a very regular basis yet another town nearby of which I had never been aware. It was something of a miracle that my town, South Orange, shared a high school with its neighbor Maplewood, since there seemed to be a state-wide allergy to combining any local services.

Brokaw points out that New York State not only has its own version of this problem but that a bipartisan commission has already offered a list of suggestions to modernize sub-state governance and thus to both save money and rationalize an absurdly scattered and inefficient system. Given that New York is one of the states with an especially acute fiscal crisis (driven by its dependence on the financial sector, which is obviously one of the most depressed parts of the U.S. economy), one would think that politicians there would be especially open to big changes that could save money. Yet the commission's recommendations apparently have little chance of being adopted.

Why would this be so? One possibility is that state-level politicians were once local politicians, which inclines them toward protecting their roots and the friends they left behind. There ought to be at least some element, however, of embarrassment and contempt among those who have "made it big" for their grimy past, which might counterbalance the desire to preserve the old ways with a desire to prove that one is now above all that. A more likely explanation is that state-level office is not far enough away from the local and county levels to allow state legislatures to act independently. The same people who keep a state legislator in office have interests in county commissions and town councils. (Another explanation is that one should not cut jobs, even duplicative local government jobs, during a recession. That, however, is a reason to phase out the jobs, not an excuse to do nothing.)

This should not be a reason to despair. Any political system, public or private, is going to be filled with people who resist change. (See any law school faculty.) The longer this crisis continues, the more hope there is that it will result in at least some reform in our wasteful and antiquated systems of local government. That is not a reason to cheer on the economic decline, of course, but it gives us one more way to direct our energies toward improving our society going forward.

-- Posted by Neil H. Buchanan

Roxana Saberi and Geopolitics

The conviction and sentencing of American (and Iranian) citizen Roxana Saberi after a secret trial is an outrage for which, of course, the Iranian government bears full responsibility. That said, the latest news about Saberi's case raises at least two issues connected to U.S. policy.

First, there was the bizarre news that Iranian President Mahmoud Ahmadinejad had sent a letter to the prosecution urging that Saberi be given a fair trial. It's hard to know whether this is even true, or what it would mean for Ahmadinejad to request a fair trial. It's also possible that the letter was a publicity stunt aimed at Iranian domestic opinion. Ahmadinejad faces a challenge from, among others, "reformer" and former President Mohammad Khatami. ("Reformer" is in quotation marks because it's practically part of Khatami's name.) Or perhaps instead (or in addition), this was a publicity stunt aimed at the U.S. Ahmadinejad may have calculated that his political interests lie in responding positively to the Obama Administration's diplomactic overtures. Holding an American journalist for 7 years on bogus espionage charges will undoubtedly make it more difficult for Ahmadinejad or his successor to do so, as it signals that the mullahs who hold real power in Iran aren't interested in warmer relations with us.

Second, the ability of the U.S. to rally international public opinion against Iran may well be undermined by U.S. detainee policies. The military commissions and combatant status review tribunals for Gitmo detainees almost certainly provided more procedural fairness than the secret trial of Roxana Saberi did. Still, having sacrificed the moral high ground on this issue, we cannot credibly describe the Saberi secret trial to the world as the outrage that it is. To be clear, even had we not undermined our moral authority in this way, it's quite possible that the Iranians would have been equally unmoved by our objections. But at least we could have made them more forcefully.

Posted by Mike Dorf

What is a Hard Case for Justice Thomas?

As noted in a NY Times article, Justice Thomas made a rare public appearance recently. The article paints an interesting picture of the Justice, who describes himself as sometimes morose. Putting aside such issues of temperament and mood, here I want to focus on what Justice Thomas says about judging. The article concludes as follows:

“This job is easy for people who’ve never done it,” he said later. “What I have found in this job is they know more about it than I do, especially if they have the title ‘law professor.’ ”

Prima facie, that's a fair point. It's generally easier to criticize someone else's decisions than to make those decisions yourself. Thus, what Justice Thomas appears to be saying is that the burdens of responsibility make decision making harder. That's almost certainly right.

And yet, subject to some critical scrutiny, the point would seem to undermine Justice Thomas's philosophy of judging. More than any other Justice in recent history, Justice Thomas is committed to the separation of law and morality. Judges, in his view, should interpret authoritative texts (such as statutes and the Constitution) to mean what the words were generally understood to mean at the time of their enactment. This approach--generally now called "public meaning originalism"--typically carries with it the further postulate that judges who resort to moral reasoning are illegitimately imposing their own values on the public.

To be sure, not all public meaning originalists say that. Some "neo-originalists" think that the semantic content of the text is very frequently indeterminate, and that when it is, judges are authorized to make judgments based upon, among other things, moral considerations. But Justice Thomas is not such a neo-originalist. He is much more of an "old school" originalist who thinks that the original meaning of the text is almost always all one needs to resolve legal questions. Certainly Justice Thomas has both authored and signed onto opinions criticizing his colleagues for injecting moral considerations into legal analysis in circumstances where those colleagues no doubt thought the text a mere starting point.

Why then would Justice Thomas feel burdened by the responsibilities of making a decision? We can well imagine that even for an old school originalist, there are hard cases. But for someone with Justice Thomas's professed views, a hard case is one in which the judge needs to do a whole lot of hard work to try to resolve a historical linguistic question as best he can. He may need to burn the midnight oil reading 18th century newspapers, but he's not going to lose sleep agonizing over whether he is doing the right thing in any moral sense.

And yet, Justice Thomas appeared to say precisely that cases are hard because they pose hard issues about what the right thing to do is, all things considered. In a statement that is otherwise admirable for his recognition of the importance of church-state separation, Justice Thomas answered a question as follows:

“There are some cases that will drive you to your knees,” he added. “In those moments you ask for strength and wisdom to have the right answer and the courage to stand up for it. Beyond that, it would be illegitimate, I think, and a violation of my oath to incorporate my religious beliefs into the decision-making process.”

I suppose it's possible to be driven to your knees about whether to credit Alexander Hamilton or James Wilson as better expressing the original understanding about state sovereign immunity, but the much more natural way of reading this answer is that Justice Thomas is saying that he seeks the wisdom, strength and courage to resolve cases in ways that are not simply a matter of linguistic or historical fidelity. He appears to be saying, both here and in his comments about the burdens of judgment, that he actually worries about doing what is right. If so, it's too bad he feels the need to pretend otherwise in other settings.

Posted by Mike Dorf

The Third Dimension

Now that our taxes are behind us for another year, let's take a break and talk about movies:

Almost a year and a half ago, in "Tech for Tech's Sake," I described my reactions after seeing two recent three-dimensional (3D) films: "Beowulf" and a re-release of "A Nightmare Before Christmas." Although the two movies used very different animation techniques, each was heavily marketed for its "3D experience." For both movies, my reaction was that the technology was little more than a gimmick and that the use of 3D actually detracted from the viewing experience.

This was especially surprising considering that 3D films have been around for over 50 years. Documentaries about the 1950's regularly include scenes of movie audiences wearing the telltale red-and-blue glasses, screaming and leaning backward when something on screen seemed to be coming toward them. As I mentioned in my earlier post, this was most memorably captured thirty years ago by the wonderful "Second City Television" series, which ran a variety of 3D spoofs (listed here, apparently not available on YouTube) with such titles as "Monster Chiller Horror Theatre: Dr Tongue's 3D House of Stewardesses," and "Monster Chiller Horror Theatre: Dr Tongue's Evil House of Wax." The running gag was that the only difference between a 3D movie and a 2D movie was that the actors would pick up props and move them dramatically toward the camera (often while making scary noises).

The 3D fad ended a long time ago, and the big breakthroughs in film technology since then have involved special effects and film clarity. Even so, 3D currently is seeing a comeback, perhaps in part because it is one of the few excuses that exhibitors have found to justify premium ticket prices. Because I am always willing to give things a second (and third and fourth) chance, I recently saw "Monsters vs. Aliens" in 3D at a state-of-the-art theater in suburban DC. Notably, the previews before the film were all for upcoming 3D movies; but also notably, the previews uniformly involved showing objects flying toward the camera to make the audience lean back and scream. (Just like grandma and grandpa did when they were courtin' in 1955!!) The economic downturn at least coincides with what appears to be a desperate attempt to get people to pay extra to see something that used to by called "real keen."

To be clear, "Monsters vs. Aliens" is a really fun and funny movie. It is exactly the kind of movie that is great for both adults and kids, with plenty of Looney Tunes-esque jokes that only the adults will understand. In addition, the 3D technology itself is now better than it was even a year and a half ago, with the objects on screen seeming more rounded than before. (The two films from 2007 seemed to involve flat objects set at varying distances from the viewer.) We are nowhere near the point where watching a 3D film seems any more real than watching a traditional film -- which, when done even reasonably well, has always allowed the viewer to suspend disbelief and immerse herself in the world on screen -- but this is a step forward.

Still, it is difficult to see how the current raft of 3D movies will not soon be seen in the same jaded light as SCTV's "3D House of Slavechicks." The technology is still a distraction rather than an enhancement. The introduction of talkies completely revolutionized movies, and color film opened up creative possibilities (including the choice not to film in color) that filmmakers continue to explore. (One of the most startling uses of color in an otherwise black-and-white film is in 1945's "The Picture of Dorian Gray." See it!) Creative people might ultimately find a way to add 3D technology to the filmmaker's bag of magic tricks (and to do so without requiring audiences to wear silly glasses), but more than fifty years on, it is still little more than a carnival show.

-- Posted by Neil H. Buchanan

Contraception and Abortion

In my FindLaw column today, I discuss a recent speech by a spokesperson for Feminists For Life (FFL), in which she said that FFL does not take a position on contraception (because some members favor it and some oppose). I criticize FFL's failure to take a position and argue that especially for an organization that is categorically opposed to all abortions yet prioritizes feminism, it is critical to support women's access to contraception.

In this post, I would like to explore an argument that some people have made about one form of contraception: birth-control pills. The argument has several components. First, birth-control pills have side effects that its makers did not initially fully appreciate and thereby gave women the illusion that they could "harmlessly" avoid the risk of pregnancy. Second, birth-control pills provide protection against one risk of sex (pregnancy) without doing anything to protect against sexually transmitted diseases (STD's). As a result, some have suggested, various S.T.D.'s have proliferated to a point at which virtually everyone above a certain age is a carrier. And third, birth-control pills suppress women's natural hormonal cycles, which has the consequence of obscuring an important physiological basis for selecting a mate: pheromones (which, among other things, attract women to men with whom they are unlikely to be close genetic relations).

These arguments, to my mind, are important in illustrating unanticipated effects of medicine. While we "treat" one risk or illness, we must remain mindful of the possibility that we thereby create more problems than we solve. This phenomenon, however, is hardly unique to birth-control pills. Indeed, another hormone treatment -- hormone replacement therapy, offered to relieve symptoms of menopause and assist in fortifying menopausal women's bone density -- has proved to pose enough health risks to motivate many doctors to recommend strongly against HRT. Other drugs (including, to continue on the theme of women, thalidomide) have turned out to be devastating in their unanticipated impact.

The introduction of any new drug is an experiment, and it is impossible to know in advance that costs will not ultimately outweigh benefits. To be sure, one might believe that, unlike various other medications, birth control pills confer no benefits worth having. That belief, in turn, rests on the view that there is not a good reason to try to separate sex from procreation, a view that is part of religious dogma but that is not otherwise especially appealing (as I argue more directly in my column).

Furthermore, even if we conclude, in retrospect, that the birth-control pill was, on net, a negative development, (a far-from-uncontroversial proposition), this does not have any necessary implications for other forms of contraception. Condoms, for example, do protect against sexually transmitted diseases (as well as pregnancy), do not appear to have untoward medical side effects, and leave a woman's hormonal cycles alone. The same might be true for other methods, still under development. And finally, for a couple that is truly monogamous but does not want children, various contraception methods that might not suit relative strangers (such as diaphragms, intra-uterine devices, and sponges) become far more attractive. And it bears emphasizing -- for those who favor abstinence -- that even married couples having exclusive sexual relations within their marriage might want, on occasion, to avoid having more children. It seems neither feminist nor particularly wise for a group that opposes abortion to have nothing to offer such people.

Posted by Sherry Colb

Orange Pekoe, Earl Grey, Cubby Wubby Womb Room* . . .

The talk of American politics this week is the so-called "tea parties" or "tea bagging" of politicians. There is much to be said on the topic, and everyone is having some fun. The obvious reference to very non-conservative sexual practices is one place to start, for those whose humorous tastes stopped developing in the 10th grade (not that there's anything wrong with that). Others have pointed out that the protests are anything but spontaneous uprisings of regular folks but are, instead, heavily financed by the usual suspects on the ideological right.

While the protests seem to be about a miasma of issues ranging from corporate accounting to simply opposing everything about Barack Obama (his citizenship, his religion, his Obama-ness), the gist of the tea party movement is, obviously, about opposition to taxes. As today is the date on which tax returns must be filed (unless you fill out an incredibly simple form for an automatic six-month extension to file), and as taxes are my academic beat, I feel that I should weigh in on this phenomenon. But what is there to say about a phenomenon that appears to be a combination of cynical manipulation of public unease and hard-core anti-government dogma?

Surely, it does little good to point out, as Bruce Bartlett (a former Reagan and Bush I tax advisor) has, that federal taxes in the U.S. are lower now than they have been at any time since 1950 or that the U.S. has a much lower aggregate tax rate than most other countries in the world, ranking 26th out of 30 OECD countries. (We have higher taxes than Japan, Korea, Turkey, and Mexico, which together hardly make a prima facie case that low taxes equal economic prosperity.) Taxes can always be lower than they are, after all; and we have a rump opposition party that has staked its future on the idea that the answer to every problem is to reduce taxes.

It does not even seem to matter that the protesters' evocations of the American Revolution clearly miss the point. The Declaration of Independence, as I pointed out in a TaxProf guest post in 2005, contains exactly one reference to taxes: the King had allowed Parliament to "impos[e] Taxes on us without our Consent." In other words, the revolutionaries really were upset about taxation without representation, not taxation itself. Even so, some protesters at these events are carrying signs with slogans such as "Taxation With Representation Sucks, Too!" At least they are aware of the historical inaccuracy.

What is interesting and less widely known, however, is that the protesters' use of the tea party meme is based on a fundamental misunderstanding of American history. As David Cay Johnston, the Pulitzer Prize-winning author, put it: "[A] tax favor for the friends of King George prompted the Boston Tea Party." That's right, the Boston Tea Party "was a protest against a tax exemption and the creation of a royal monopoly. The Constitution grants Congress the power to tax in a broad way because of the experiences of the colonists with the crown's use of tax favors for political purposes." (The latter quotation can be found here, in the 10th comment down, which Johnston wrote in response to readers' comments.) In other words, the Boston Tea Party was not even a protest against taxation without representation. It was a protest against a tax cut for a politically favored special interest.

Not that any of this will change anyone's mind. We seem to have reached the point where taxes are for too many people simply a rorschach test -- a quantitative subject about which facts apparently no longer matter, and all we have to do is wish that something is true to make it so. Fortunately, notwithstanding all of the media attention that this silliness is attracting, the grown-ups finally seem to be running things again. I certainly do not agree with everything that our new leaders are doing, but at least they are living in the real world.


* Cubby Wubby Womb Room tea is a fictional tea blend that was mentioned in "So I Married an Axe Murderer," an under-appreciated film from Mike Myers -- back when he was still funny.

-- Posted by Neil H. Buchanan

Symbols in the Same-Sex Marriage Debate

As the fight over same-sex marriage evolves, we can note two of its current features:

1) Each side will accuse the other of wasting time on a divisive social issue when there are more immediate and pressing problems for government to solve. Except in the four states in which same-sex marriage is already legal, this issue would seem to favor the social conservatives, since it's the liberalizers who aim to change the status quo. But there's an asymmetry that cuts in the other direction: Pro-same-sex-marriage political activists who are actually gay have a great deal more at stake in this debate than do anti-same-sex marriage political activists (most of whom presumably aren't gay). For the people in the political middle and thus potentially in play, it's the anti's on this issue who will tend to look like they're getting all worked up over something that is almost purely symbolic. Sure, most anti's claim that they're in it to defend traditional marriage, but they can't mean this literally (although some do purport to mean this literally). What the anti's mean is that their heterosexual marriages will be cheapened somehow if forced under the same linguistic umbrella as same-sex marriage. Even if we count that as an actual harm, it's hard to see how it counts for very much (by contrast with economic harm or, for that matter, harm to fetuses from abortion, an issue where the stakes for social conservatives are more real).

A complicating factor in all of this is that the stakes for the pro-same-sex marriage side are largely symbolic in states that recognize civil unions but not marriages, or at least so they appear: In reality, use of the word "marriage" has important practical (and not just symbolic) advantages (as explored here). But, if the public in general doesn't realize the practical difference between marriage and civil unions that nominally confer the same benefits, then there is a substantial chance that the pro side too will be perceived as getting all worked up over symbols--at least in states (like California) where the status quo is civil unions.

2) Defenders of the Iowa Supreme Court ruling have started talking about the rule of law rather than same-sex marriage. Here's an excerpt from a recent NY Times story describing the position of Iowa Governor Chet Culver:

Mr. Culver, who says he personally believes marriage should be between a man and a woman, said he was unlikely to support a constitutional amendment. “After careful consideration and a thorough reading of the court’s decision,” he said, “I am reluctant to support amending the Iowa Constitution to add a provision that our Supreme Court has said is unlawful and discriminatory.”

If Gov. Culver is saying that he found the Iowa Supreme Court's opinion persuasive, that makes sense. We can even make sense of the statement if he means something like "I'm not persuaded but these Justices know more than I do about this sort of thing, and so I'll defer to their judgment in a reasonably close case." But Culver's language also could be read much more broadly, so as to echo the views of those who opposed Prop 8 in California by saying things like "The state Constitution shouldn't be amended to take away rights." That's nonsense. The Thirteenth Amendment to the U.S. Constitution took away the rights of slaveholders to hold property in human beings---and quite rightly. Ultimately, rights can and should be taken away if they're the wrong rights.

Now I happen to think that there should be a right to same-sex marriage, but I'm not a politician worried about re-election. For politicians who either favor or don't oppose same-sex marriage, it's much safer simply to say that this is a tough enough question on which the courts' considered judgment should be respected. That's what Presidential candidate Michael Dukakis said in 1988 when challenged about his veto of a bill that required Massachusetts schoolteachers to lead the Pledge of Allegiance. Realizing the unpopularity of his position, Dukakis said that his hands were tied by an advisory opinion of the Massachusetts Supreme Judicial Court. (Story, complete with red-baiting by George H. W. Bush, here.) We know how well that worked out for Dukakis.

Posted by Mike Dorf

So You Want to be a Federal Appeals Court Judge?

The Legal Times recently broke the news that SDNY Judge (and my former Columbia Law School colleague and all-around good guy) Jerry Lynch noted in his response to the Senate Judiciary Committee questionnaire regarding his nomination to the 2nd Circuit that he did not seek out a promotion; rather, Sen. Schumer asked Lynch whether he was interested. I suppose that's news, although it hardly amounts to juicy gossip. There is something a bit off-putting about the customary practice as described in the LT story, whereby potential candidates for circuit clerkships are supposed to promote themselves to sponsoring Senators, and so Lynch scores a few points for modesty, but only a few: Surely he would have been on the short list for a 2nd Circuit vacancy in any event; he's one of the youngest Democratic appointees on the SDNY, with both prosecutorial and academic credentials from his pre-judicial career, and has presided over some high-profile cases.

Perhaps more newsworthy than which of Pres. Obama's initial batch of nominees asked to be considered for the job is the questionnaire itself. The file of Judge Lynch's questionnaire on the Legal Times website was corrupted (according to my computer) and in any event very large, but I'm less interested in the answers than in the questions, which I got from the Senate Judiciary Committee's website, posting the questionnaire reply of David Hamilton, currently a federal district judge in the Southern District of Indiana. President Obama has nominated Judge Hamilton to the 7th Circuit. Here I'll note a few observations:

1) The questionnaire is quite burdensome for any reasonably accomplished person---i.e., any likely nominee---to fill out. For no apparent reason, it asks for 4 copies of everything, including a text, transcript or notes of every speech ever given (or summaries if no notes were used). I suppose we should be glad that the Judiciary Committee is trying to save money on photocopying, but for nominees already holding judgeships, this simply transfers the costs of photocopying from one branch of the government to another.

2) More burdensome than the photocopying, of course, is the actual substance, including summaries of the 10 most important cases decided, 10 most important cases litigated, and much more. It seems unlikely that a federal district judge would actually write these summaries in the first instance anyway, so what the Judiciary Committee is really doing is offloading its research from its own staff to law clerks, or, in the case of private practice lawyers, associates. For academics, perhaps student research assistants? The same sorts of questions are asked of executive branch nominees, so we might ask Elena Kagan and Dawn Johnsen whether they had help filling out their questionnaires.

3) Whether or not nominees receive assistance from underlings in filling out their questionnaires, they will undoubtedly fill them out in a way that is designed to make themselves look good, which for confirmation purposes means: public-spirited, moderate, and bland. A district judge nominated for a circuit court judgeship who ruled, say, that the death penalty is cruel and unusual punishment in all cases, or that the Establishment Clause bars the recitation of the Pledge of Allegiance with the words "under God," couldn't hide such decisions as not making the top 10, but of course those Senators and interest groups likely to be troubled by such decisions would surely find them even absent the questionnaire. So what’s the point of asking the nominee to fill out the questionnaire?


4) Because both supporters and opponents of any particular nominee have easy access to Google, YouTube and WestLaw, it’s hard to imagine that the questionnaire is designed to call attention to matters the Judiciary Committee wouldn’t otherwise discover on its own. Rather, a better explanation is that it’s designed to make nominees themselves think twice. A prospective federal judge when asked to list all organizations of which he has ever been a member will realize that writing “NAMBLA” on the questionnaire will not only cost him the judgeship but will be more broadly humiliating, and will withdraw before things get out of hand.

5) That’s my best hypothesis anyway. Critics who want to say that the similar internal executive branch process didn’t work to screen out problems for Tim Geithner et al might want to reflect on what would have happened if, instead of having failed to pay some taxes, various of the President’s nominees had given speeches praising Hitler. Or, on second thought, maybe even that wouldn’t matter if the nominee were otherwise acceptable.

Posted by Mike Dorf

Some Bologna About Academic Freedom

Consider the recent news that three American states (Indiana, Minnesota and Utah) are undertaking pilot programs to standardize university curricula in particular majors. The programs are of a piece with the so-called "Bologna Process" in Europe, which aims to create comparable standards across much of Europe, so that prospective employers wishing to hire, for example, a chemical engineer, will have some assurance of what a degree in chemical engineering means. (Presumably "bologna" lacks its American idiomatic meaning in Europe; it's also worth noting that the University of Bologna is the oldest continuously degree-granting university in the world, so that sophomoric jokes aside, "Bologna Process" is quite an apt name.)

Predictably, Bologna-like programs have led to the expression of concerns about academic freedom by the American Association of University Professors (AAUP), whose president was quoted (in the story linked above) as saying that

if you’re teaching history of physics and for you it becomes central to teach the development of the atomic bomb, it may be difficult to shape your course in a way that is completely understandable to history-of-physics courses elsewhere. Being able to decide how you’re going to shape and weight your course is central to academic freedom.

Is that right? Critics of academic freedom think not. For example, one leading voice, Stanley Fish, sometimes writes as though he thinks that academic freedom does not include any classroom freedom, although much of his argument rests on ridiculing professors who don't teach the assigned course at all. That's good fun, to be sure, but it hardly follows from the fact that a university can insist that a course called "history of physics" include instruction in the history of physics, that a university can also insist that a faculty member teaching the history of physics refrain from any discussion of the connections (that faculty member sees) between the development of weapons and the development of science.

Part of the confusion arises because academic freedom is best understood as having two dimensions. First, there is the question of where academic freedom can be exercised. Most defenses of academic freedom put the academic's research according to the standards of the discipline at the core, and then also protect academics to some extent in their teaching (subject to reasonable requirements of curricular coverage) as well as against firing for statements made wholly outside their professional work. Thus, it would generally be considered a breach of academic freedom to fire an otherwise excellent biology professor because she spoke (on her own time) at an anti-war rally.

There is also a second dimension, concerning the body of law that protects academic freedom. Typically, that is contract law and, for professors at state universities, the First Amendment. Fish rightly notes that strictly as a matter of contract, freedom to teach extends only as far as the professor's contract allows. A private university that strictly conditioned employment as a history professor on use of a particular textbook would not be in breach of contract for firing a professor who insisted on using a different textbook.

But so what? This only shows that contract law provides very weak protection for academic freedom. A private university would also not be in breach of contract for firing a professor for violating the terms of her contract in her research, even if the research were otherwise an exercise of what everyone deems well within the bounds of professional standards.

The real problem with Fish's analysis is that he makes a category error. The legal protection that contract law affords university faculty is limited by the terms of contracts, but the normative concept of academic freedom is broader. As the AAUP's 1915 statement on academic freedom puts the point, university faculty members

are the appointees, but not in any proper sense the employees, of the [university trustees]. For, once appointed, the scholar has professional functions to perform in which the appointing authorities have neither competency nor moral right to intervene. The responsibility of the university teacher is primarily to the public itself, and to the judgment of his own profession; and while, with respect to certain external conditions of his vocation, he accepts a responsibility to the authorities of the institution in which he serves, in the essentials of his professional activity his duty is to the wider public to which the institution itself is morally amenable. So far as the university teacher’s independence of thought and utterance is concerned—though not in other regards—the relationship of professor to trustees may be compared to that between judges of the federal courts and the executive who appoints them. University teachers should be understood to be, with respect to the conclusions reached and expressed by them, no more subject to the control of the trustees, than are judges subject to the control of the president, with respect to their decisions . . . .

The extent to which the First Amendment protects the foregoing conception of academic freedom for faculty at state universities is an open question. So too, one can legitimately disagree with the normative vision of the 1915 statement on its own terms. Just as one might think that, on balance, life tenure for federal judges gives them independence at too high a cost to democracy, one might think that on balance, the costs of academic freedom outweigh the benefits. But those are at least critiques of the norm of academic freedom as such. Arguments like those put forward by Fish---contract law only protects the terms of a contract---wholly miss the point made by champions of academic freedom, which is a point about what the terms of the contract should be.

Posted by Mike Dorf

All Those Trillions Must Mean Something, Right?!

Earlier this week, I discussed the meaninglessness of the gross federal debt as a measure of the U.S. government's fiscal position. I pointed out that of the current debt of roughly $11 trillion, about $5 trillion of that should not count as government debt because it is "intragovernmental holdings" of debt, accounting entries that keep track of what one agency of government owes another, not what the government owes its creditors. Almost all of the intragovernmental debt represents the value of Treasury securities held in the Social Security Trust Fund, which is currently growing by about $140-150 billion per year because Social Security taxes currently exceed benefits paid -- that is, the Social Security system is running a huge surplus.

I thought that at least that claim was uncontroversial, because the preference for using net debt rather than gross debt is bipartisan and essentially unchallenged. Earlier today, however, I came across the website for a recent PBS Frontline Documentary, "Ten Trillion and Counting," which interviewed a number of economists who are known to argue that current U.S. fiscal policy is unsustainable and which generally takes a sky-is-falling attitude toward the subject of government debt.

Since the title of the program clearly referred to the gross measure of federal debt, I was pleased to see that an economist at the Office of Management and Budget had sent a letter to the Frontline producers correcting their error. To their credit, the producers posted the letter on the website. Unfortunately, they also posted a response in which they announced that they "nonetheless stand by our decision to highlight what we consider to be the true dimensions of the problem by using the gross debt figure of $10 trillion -- now more than $11 trillion -- and counting." They were wrong to dig in their heels, and their unwillingness to change their minds provides an insight into the nature of the distorted public debate about the national debt.

The OMB economist, Thomas Gavin, pointed out that "[m]ost economists and budget analysts use debt held by the public -- and not gross debt -- as the most meaningful measure of the government's current fiscal position. This is a point of wide agreement among analysts, across political parties. ... And, this is a (perhaps rare) point on which this Administration agrees with the prior one." Gavin specifically addresses the significance of the debt held by the Social Security trust funds:

You might think that gross debt is a superior measure since intra-governmental debt is, in part, owed to the Social Security trust fund -- and, so, it might be thought to indirectly capture the federal government's obligations to future Social Security beneficiaries. But, this is not the way to do so. If you're interested in measuring the federal government's financial position going into the future, you have to take into account not just liabilities but also the federal government's main asset going forward -- namely, future tax revenues.

This is exactly right. Put simply, the IOU's in the trust funds represent the amount of money that the Social Security system will ultimately be able to demand from the Treasury when annual benefits exceed annual revenues (starting in about ten years). If Social Security ultimately needs to cash in all of those IOU's, it will be because future benefits will in the aggregate exceed future revenues by $5 trillion plus the total surpluses that we build up over the next decade. Gavin's point is that whether or not we tap out all of the IOU's depends on whether future tax revenues will fall short of future benefits and by how much. Frontline's producers respond to Gavin's argument essentially by ignoring it:

[I]ntra-governmental debt represents the future promises we have made. Due to the retirement of the baby boomers and rising health care costs, under some projections Medicare and Social Security will run out of money. If this happens, the trust funds for those programs will have to start cashing in those I.O.U.s, and to pay them the government will need to borrow more from the public. Or it could raise taxes to cover the shortfall, or it could make cuts to the programs to make them less expensive. If our future economy grows more robustly than expected, it will be easier to pay for these commitments, but the intragovernmental debt is not simply going to evaporate.

Actually, intragovernmental debt might indeed evaporate, at least inasmuch as it might never become a debt that must be paid. If, as one forecasting scenario used by the Social Security Trustees predicts, we will never tap out the trust funds, then those IOU's will never be cashed in. Future taxes will then pay for future benefits going forward, and there will be no need to honor the IOU's in the Trust Fund. This could also happen if -- as President Obama has suggested (and which I oppose for different reasons) -- benefits are cut and taxes raised such that the trust funds are not depleted even under more pessimistic predictions. In that case, by the way, workers today will have overpaid their Social Security taxes in order to cover a shortfall that never comes to pass.

On the other hand, the situation could become much worse, in which case the current intragovernmental holdings represent less than the total amount of money that future taxpayers would have to pay. A future Congress could refuse to cut benefits even if the trust funds become depleted, in which case future borrowing would be higher even than Frontline's approach would suggest.

The point is that the amount of aggregate intragovernmental debt holdings is simply unrelated to the ultimate burden that promised future benefits will impose on future taxpayers. Five trillion dollars is neither an upper nor a lower bound. It is a meaningless number. Gavin is thus correct to say that "[t]here's an active debate among analysts as to how best to summarize the federal government's financial position going into the future -- but using gross debt is clearly not the right way to do so." Frontlines' producers misunderstand the fact that future benefits and taxes might change, believing that somehow that means that the current amount of intragovernmental holdings actually means something.

Moreover, as my post on Monday pointed out, these debt numbers have no meaning out of context (and precious little meaning even after they are put in context). Whether the national debt is $6 trillion or $11 trillion or some other number, what does that mean? The debate to which Gavin refers has to do with estimates of net borrowing in the future, which only begins to mean something when measured against income (GDP) in the future. Even the scariest-sounding projections out there, with net future debt having a present value of roughly $80 trillion, have to be put in the context of a present value of all future income of roughly $1400 trillion, for a debt-to-GDP ratio of approximately 6%. And again, what does that number mean? What is the right number, and why should we believe that it is zero or that any other number is wrong?

As I have suggested in recent postings, technical expertise is neither necessary nor sufficient to speak intelligently about public policy. When it comes to accounting concepts with specific meanings, however, it turns out that some amount of knowledge is actually necessary. Apparently, none of that matters to those who have decided to hype a big round number.

-- Posted by Neil H. Buchanan

Sunset

It's certainly welcome news that the FDA will require new approval for medical devices that were on the market already in 1976 when the law changed to require approval for medical devices and were exempted from approval at that time.  That's long overdue.

The change is of a piece with regulatory practice in a number of contexts.  The FDA itself sometimes requires a drug manufacturer that has received pre-market approval of its drug to conduct post-marketing studies, which can either confirm or cast doubt upon the initial judgment that the drug's benefits outweigh its risks. Likewise, in other specific contexts, the law either expressly requires periodic re-evaluation or regulates via an open-ended standard that itself has room for growth: E.g., a requirement that a device, drug or whatever be "safe and effective" would seem to require an updating of the baseline for both safety and effectiveness as technology improves.  In this way, standards (rather than rules) sometimes automatically function as the sort of "best-practice" requirements that I discussed earlier in the week in my FindLaw column.

Nonetheless, regulation often occurs via fixed rules that have a limited capacity for re-evaluation and even best-practice standards can become dated over the course of a sufficiently long period of time.  Perhaps the best example of these phenomena is the U.S. Constitution, whose essential features are so difficult to change that it operates in many respects like an outdated medical device, one that perhaps was justified many years ago but cannot be judged "safe and effective" today, given the alternatives (such as abolishing the Senate and the Electoral College, limiting Supreme Court tenure to 18 years, and you-name-your-pet-change).

Posted by Mike Dorf

Same-Sex Marriage and the Economy

What, exactly, is the relation between socially conservative activism and the economy? Under one view---which we can associate with Thomas Frank's What's the Matter with Kansas?---tough economic times provide the opportunity for conservative political leaders to appeal to people who are suffering economically by scapegoating cultural elites (the sort of people who favor abortion rights and legalizing same-sex marriage) as the cause of their problems. No doubt there is some of that going on now, and if the economy were to become substantially worse, then all manner of dangerous social movements might arise, many of them offering simplistic solutions that scapegoat various minority groups.

But there is another effect at work as well: So long as people hold out some reasonable hope that the economy will get better, they will reward political leaders who appear to be focusing on getting us closer to economic recovery. Under this logic, politicians who focus unduly on cultural issues will earn the ire of all but the hardest of the hard core social conservatives: "How will banning same-sex marriage get me a job?" one imagines people asking.

Consider last week's Iowa Supreme Court ruling and today's Vermont legislative decision, each legalizing same-sex marriage. The timing is certainly coincidental: The Iowa case was in the courts long before the current economic crisis, and the Vermont legislature's decision is, in an important sense, merely the latest step in reaction to the Vermont Supreme Court's 1999 Baker decision requiring the legislature to provide either same-sex marriage or civil unions. The legislature originally chose civil unions but has now changed the law.

Yet if it is only a coincidence that these developments are occurring at the current moment, that fact also may say something about their likely staying power. One suspects that what same-sex marriage needs to survive in any given state is a toehold: As people get used to the idea, they can't muster the political will to take it away, and as more and more couples marry, the unattractive prospect of either retroactively invalidating their marriages or of having a class of "grandfathered" married same-sex couples makes the legalization decision sticky. To amend the Iowa Constitution, it takes a majority vote of each house of the state legislature, followed by an election, followed by another majority vote of each house of the state legislature, followed by popular approval in a referendum. Thus, social conservatives who seek to overturn the Iowa Supreme Court ruling face a built-in stickiness of the sort that has made same-sex marriage stick in Massachusetts. In normal times, perhaps a movement of social conservatives would have the staying power to overturn the Iowa Supreme Court decision, but in our current situation, the sort of sustained campaign necessary could be toxic for any politician associated with it.

That's my hope, anyway.

Posted by Mike Dorf

The Marginality of the U.S. Supreme Court

I've just returned from the roughly biannual Constitutional Theory Conference, hosted this year by the USC Gould School of Law. It was a good time for all involved but I couldn't shake the feeling that our debates over such questions as how much weight should be given by U.S. Supreme Court Justices to original understanding in constitutional interpretation, were largely inconsequential because of the marginal role the U.S. Supreme Court plays in American law and policy.

Of course I don't mean to deny that Supreme Court decisions can have enormous consequences. Bush v. Gore is an obvious example. But note that in Bush v. Gore the importance of the case stemmed from the particular stakes rather than any larger point of law. When the Supreme Court has taken a stand in recent years---as in the cases arising out of the Gitmo detentions, it has mostly taken the position that Congress needs to speak more clearly. Even the detainee case that was most constitutionally freighted---Boumediene v. Bush---left open the possibility that the Court's interpretation of the Suspension Clause could be circumvented simply by holding prisoners closer to battlefields. The district court ruling in Maqaleh v. Gates rejects that distinction but it is quite possible that the Supreme Court would narrowly limit the reach of Boumediene if and when the issue returns.

Consider also the Supreme Court's absence from the legal debate over one of the great questions of constitutional rights these days: whether there is a right to same-sex marriage. Gay rights organizations have avoided even bringing the federal constitutional claim for fear of an adverse Supreme Court decision that would set the cause back at least a few years and possibly much longer. Accordingly, this area of law has been left entirely to state legislatures, state referenda, and state courts (such as the Iowa Supreme Court).

Might statutory cases undermine the hypothesis that the Supreme Court is a marginal actor? I don't think so. My latest FindLaw column discusses Entergy Corp v. Riverkeeper, Inc.---in which the Court holds that Section 316(b) of the Clean Water Act permits cost-benefit analysis in assessing whether to require various technologies to mitigate the harm that power plants cause to aquatic life. That is a non-trivial decision but at most a third-order policy matter. Either Congress or the Obama Administration could readily change the Bush policy that was challenged in Entergy Corp. And as I also explain in the column, the really important regulatory question---whether to regulate through fixed design standards, fixed performance standards, or inherently dynamic best-practice standards---will not be answered by courts.

Finally, it's worth noting that the courts have just about nothing to say about the most important questions of our day: Which industries should get government bailouts and on what terms? What is the right size and shape of the government stimulus? How should the banking rules be rewritten to reduce incentives of executives to take enormous risks with other people's money? What should be done to control the cost and spread the availability of health care? How should we reduce our collective carbon footprint? What should U.S. foreign policy be with respect to Afghanistan? Iraq? Pakistan? China? North Korea?

The complete invisibility of the courts on such questions makes it hard to take seriously the claim that any particular method of constitutional interpretation is illegitimate because of the judicial power grab to which it supposedly leads. Any power grab is very feeble. That's not to say that there is no point at all in thinking and writing about the work of the federal courts, or even in doing so at a high level of abstraction. But as one of the participants in the weekend's conference observed in a different context, much of our fascination with such phenomena as the "counter-majoritarian" difficulty may be a consumption good---something we care about because we derive utility from the fun of constitutional argument rather than its importance to the real world.

Posted by Mike Dorf

When Pundits Talk About Economic Policy

Last week, I argued that the emergence of the economic crisis has made it especially unfortunate that the current crop of op-ed columnists for The New York Times (with two notable exceptions) is not up to the task of discussing the critical issues of our time in anything but superficial terms. While training in economics is neither necessary nor sufficient to allow one to discuss the crisis in a helpful way, it is turning out that the talents of the Times's current opinion columnists are particularly ill-suited for writing about the economic crisis in a way that enhances public discussion of the issues.

A particularly frustrating case is Maureen Dowd, whose columns tend toward (sometimes genuinely funny) barbed comments about political personalities in the service of an overall message of cynicism about the culture in Washington. For me, these columns amount to a guilty pleasure (an assessment in which I suspect that I am not alone). Unfortunately, Dowd is so embedded in the political culture that, when she occasionally comments in passing on economic and budgetary issues, she simply accepts the conventional wisdom and repeats without apparent reflection anything that she might have heard that supports her overall thesis that politicians are a bunch of charlatans who ignore real problems.

This overall thesis is, of course, all too easy to believe. There is plenty of raw material to work with if one's daily purpose is to write about politicians who seem to be obsessed with superficial issues or are incapable of getting anything done. The problem with Dowd's approach is that she repeats and amplifies the stupid things that too many political figures are saying, and she does so in a way that enhances the conventional wisdom even while lampooning those who live by it. A few examples from the past few months will demonstrate the point.

On January 10, in a column that generally involved saying nasty things about Dick Cheney and Donald Rumsfeld (opening line: "In the past week, I’ve twice been close enough to Dick Cheney to kick him in the shins.), Dowd ran through a list of failures of the Bush years. While I agreed with her assessment that "[i]t's frightening to think where a lot of people would be now if [Bush's partial privatization of Social Security] had succeeded," she also offered this: "From Gaza to the unemployment figures to the $10.6 trillion debt, things keep spiraling while W. keeps fiddling. Just as when he was in the National Guard and didn’t bother to show up, now, as the scabrous consequences of his missteps shake the economy and the world, he doesn’t bother to show up."

The $10.6 trillion debt? First, it is notable that the announcement that the total federal debt had risen to $10.6 trillion was one of the headlines of the week in which Dowd was writing. This is the kind of context-free fact that every columnist can use as proof that something is seriously wrong, safe in the knowledge that they need not understand what the number means or why it might be a "scabrous" result of policies that "shake the economy and the world." Dowd is hardly alone in this, but her willingness to simply repeat a big number as if its wow factor was enough to prove her point contributes to public misunderstanding of an important issue. (Jon Stewart, about whom I generally have very positive things to say, went down this unfortunate road this past Thursday when he interviewed Obama's budget director. He couldn't use the word "trillion" often enough.)

Why is this a big deal, at least to budget geeks like me? Of the $10.7 trillion in Total Public Debt Outstanding in December 2008 (the most recent data available when Dowd was writing -- although, to be fair to her, the papers did report it as $10.6, not $10.7 trillion), $6.4 trillion was held by the public, of which $5.8 trillion was held in marketable securities (which are the Treasury bonds that drive the financial markets). The debt not held by the public is held as "intragovernmental holdings," i.e., accounting entries as various U.S. government entities hold IOU's issued by the federal government -- essentially, nearly $5 trillion worth of accounting for the government's having moved money from one pocket to another. As the Treasury puts it: "Debt held by the public is the most meaningful of these concepts and measures the cumulative amount outstanding that the government has borrowed to finance deficits."

So the $10.6 trillion number that Dowd dutifully repeated really should have been $5.8 trillion. Off by a mere forty-five percent! Even so, what does the $5.8 trillion figure mean? The only meaningful way to express these numbers is as a percentage of GDP (roughly, national income), because that ratio compares money owed by the national government to the capacity of the nation's economy to service the debt. As the CBO demonstrated in a recent slide show, debt held by the public in 2008 was about 40% of GDP, which is actually lower than it was in the mid-1990's (and, although not shown on the linked graph, much lower than it was in the decades after WWII).

Of course, as the CBO shows, that percentage is sure to rise above 50% this year, with the worst of the recession (at least, we hope it's the worst) now upon us. Is that bad? Compared to what? There is no "right" level of public debt, by either historical or theoretical standards. (Zero debt would actually be harmful, for reasons too complicated to discuss here. Even if it weren't harmful, however, if zero debt is good, why is negative debt -- overall surplus -- not better? Where's the limit?) Moreover, if we tried to prevent the debt from rising in 2009, we would have to either cut spending or raise taxes to balance the budget. This would be a move that would make Hoover look like a Keynesian. (Even the Republicans' proposed budget freeze falls well short of that.) In other words, even if one believes that the public debt is a meaningful datum that we need to manage as a primary policy goal, stating it as an out-of-context large number tells us nothing about the nature of the problem or even the right direction for current policy.

What part does Dowd play in all this? It is all kind of trivial, in its way -- but that is exactly the point. She eagerly becomes part of the chorus of uninformed voices that simply repeat certain facts as if they matter. A few weeks after writing the column discussed above, she wrote about the confusion over the bank bailouts. In her eagerness to trash the party in power, she lamented "the Democrats’ bad judgment in accessorizing the stimulus bill with Grammy-level 'bling, bling,' as the R.N.C. chairman, Michael Steele, called it." Why worry about the fact-free nature of Steele's claim when you have a snappy quote? Even worse, she added: "Geithner is not even requiring the banks to lend in return for the $2 trillion his program will try to marshal, mostly by having the Fed print money out of thin air, thereby diluting our money, or borrowing more from China. (When, exactly, can China foreclose on us and start sending us toxic toys again?)" As I discussed last week (here and here), these claims are also mere repetitions of popular talking points that are worse than empty.

Finally, on March 3, she joined the anti-earmarks carnival of triviality (how's that for a Dowd-like turn of phrase?) by dutifully listing a number of funny-sounding spending items about which John McCain had recently complained ("$2.1 million for the Center for Grape Genetics in New York. 'quick peel me a grape,' McCain twittered."). We certainly would not want our money going to geneticists to study an economically important agricultural product, would we?

As Dowd so amply demonstrates, the danger is not just that a tiny bit of knowledge is a very dangerous thing. The fundamental concern is that her misunderstanding of economic issues shows up in her columns only indirectly, as presumptions that she confidently states in passing because they will be perceived by her readers as obviously true and profound, allowing those facts to be used as set-ups in the service of her ultimate zingers. She confirms the misinformed conventional wisdom, helping to perpetuate myths that distract us and that stand in the way of clear thinking about how to address our economic problems. She might do better simply to kick Cheney in the shins.

-- Posted by Neil H. Buchanan

Supposedly Wasteful Spending and Anti-Intellectualism

[Note: In my post on Wednesday, I stated that my next post would "address some of the more silly comments about economics that some of the Times op-ed writers have offered recently." I will publish that post on Monday morning.]

One of the more amusing aspects of the debate over the fiscal stimulus package and President Obama's first budget has been the attempts by Republican politicians to score points by decrying line items from the budget that (they think) sound silly, hoping that voters will conclude that Democrats just want to waste money on bizarre projects with no social value. These items are then picked up by the echo chamber and turned into momentary causes celebres. (Being a liberal, I am compelled to use a French phrase.) High-speed rail from Disneyland to Las Vegas? How horrible! As this example demonstrates, it is not even necessary that the program actually have been proposed by any real politician, only that it sound outrageous.

What is both interesting and disturbing, however, is the pattern that emerges when one listens to the types of spending proposals that raise the ire of the defenders of fiscal probity. From Bobby Jindal's complaints about an earthquake monitoring system and a "magnetic levitation" high-speed rail project to Fox News's horrified reaction to the idea of spending money on research about insects, the common theme is that anti-spending politicians think they have a winner when they can point to money that would be spent on something that sounds scientific or intellectual. They really, really hate "studies" of any kind. The idea, apparently, is that regular guys don't want their hard-earned money going to eggheads.

This is an old trick, of course. At least as long ago as the 1970's (which is as far back as my political memory goes), Sen. William Proxmire (D-WI) mounted a one-man crusade against wasteful spending, announcing his "Golden Fleece Awards" to spotlight egregious wastes of public funds. One week, he announced that the award was going to a government study that was designed to investigate why inmates try to escape from prison. How ridiculous, opined the Senator. We already know why they want to get out of prison: They don't like being in jail!! Even as a teenager, I could not understand why this study was being ridiculed. Obviously, the question was why inmates would try to escape given the likelihood of being injured or killed in the attempt, the likelihood of being recaptured, and the increased sentences that accompany escape attempts. Why would we not want to spend a few thousand dollars (which really was the extent of the spending) to try to learn more about this question? We might even discover inexpensive ways to decrease escape attempts.

Proxmire's shtick was later picked up by NBC News, which ran a series called "The Fleecing of America" for several years. As one columnist noted at the time, exposing government corruption is a lot less risky than exposing corruption in private industry, because you're much less likely to be sued by a federal agency if you're wrong. Some watchdog groups have recently revived the Golden Fleece Awards, again to expose the politicians who are supposedly spending us into the poorhouse.

As someone who believes that government should not waste money, I generally think that it is important to keep a close eye on the spending of public funds. Inspectors general should be aggressive, whistleblower protections should be enhanced, and the Government Accountability Office should continue to do its important work. It is truly objectionable, however, when the hunt for misspent funds becomes -- as it so often does -- an attack on education, research, and science. As a very wise smart guy once said: Knowledge comes with a price, but ignorance is far too expensive.

-- Posted by Neil H. Buchanan

Giving Cost/Benefit a Bad Name

There was little surprise in the Court’s announcement of Entergy v. Riverkeeper yesterday. By a margin of 5-1-3, the Court upheld EPA’s interpretation of Clean Water Act (CWA) § 316(b). CWA 316(b) requires EPA to establish performance standards for so-called “cooling water intake structures,” the sometimes-giant intakes of water that power plants and other industrial sites operate which tend to obliterate the life in the water that passes through them. The text of the Act tells EPA that it should set such standards to require the “best technology available for minimizing adverse environmental impact.” EPA had concluded this language allowed it to weigh the costs of various technologies against the environmental benefits they would produce—an interpretation many criticized as unfaithful to the “legislative intent” and/or true meaning of the CWA.

The technology EPA reviewed ended up being tiered as between new installations of a certain (large) size, large existing-, and small existing installations. EPA’s rules were segmented accordingly into Phase I, II, and III. Of principal concern to the challengers in this case were the so-called Phase II rules applicable to large existing installations, mostly power plants. EPA required these facilities to reduce their impacts (so-called “impingement” and “entrainment”) by between 60 and 95% of existing levels. The reason it did not go further—technology exists which would reduce impingement and entrainment by roughly 100%—is because of what it called the “generally high costs” of installing and operating “closed-cycle cooling” technology or better. It also allowed that some of these Phase II plants could seek variances if their costs were “significantly greater” than the reference case in the rulemaking.

I’ll lay aside a pet peeve of mine that was hammered home yet again in Entergy (that the Supreme Court has repeatedly held that a statute which does not rule out cost benefit analysis normally leaves the choice to the agency and that agencies normally choose to employ it) and instead reach for some optimism. The Phase II rulemaking was done with a sham of a cost/benefit balancing analysis. The costs of impingement and entrainment were backgrounded and discounted while the costs of mandatory closed-cycle cooling retrofits were inflated and foregrounded. But doesn’t this just reflect the identity of the analysts? Had the Bush EPA actually weighed all of the costs and risks of continuing our cooling water intake practices across some 500 facilities sucking in over 200 billion gallons of the nation’s waters every day, stringent retrofits probably would have seemed to make good sense.

At the very least, and as Justice Breyer said in a partial concurrence/dissent, the analysis EPA actually published was incomplete. Why should the “generally high costs” of a particular technology suffice to categorically preclude its adoption for a category as broad and diverse as “large existing power plants” throughout the U.S.? That seems to ignore the reality that benchmarking these plants against each other will reveal their disparities of performance, disparate market positions, and variable opportunities for improvement. Locking in a performance standard that is based on so coarse a data set will lock out better, finer-grained, comparative information which is always hard to amass at any given moment but which can be collected over time.

An Obama EPA almost certainly recognizes as much. What margin it has to act on this hindsight now that the Phase II rules have been defended all the way to SCOTUS is unclear, though. I hope at least that variances from the Phase II rules won’t be easy to get.

More generally, many progressives have long denounced the opacity of cost- or risk/benefit balancing in general. But transparency is inversely related to complexity and risk/benefit analysis—whether it includes monetized values, discount rates, and statistical lives or not—is inherently complex. So the other factor to keep in mind if you are among the Riverkeepers of the world is that transparency also suffers when agencies behave strategically. And there’s a good argument to be made that they behave most strategically of all when they fear their tough choices made on incomplete information will be reviewed with fine-toothed combs. As the Obama administration reshapes the regulatory review that occurs within the Executive Branch, what we all should be urging is more coordination and cooperation in the production, sharing and refinement of specific, accurate information that is highly dispersed and of uncertain strategic value. Litigation like Entergy v. Riverkeeper shows how hard that is.

Posted by Jamie Colburn

How Many Nukes Do We Need?

President Obama wants to negotiate further reductions in the U.S. and Russian nuclear arsenals. (Story here). Why? An attack by either country using just one nuke would be devastating, and the use of a dozen or so could end human civilization as we know it. (Modern nukes are MUCH more potent than the bombs that caused horrific consequences at Hiroshima and Nagasaki.) The difference between the current limit (2,200 warheads) and the proposed new limit (1,500) is thus, by itself, pretty meaningless. So it has to serve some other function. Here are some possibilities:

1) It's good symbolic politics. A summit meeting at which President Obama and President Medvedev and/or PM Putin sign a nuclear arms control pact could begin to repair the frayed relationship between the two former superpowers (yes, get used to it), and enhance the international standing of each, reminding the world (i.e., China) that these are still the most powerful countries in the world (as measured by how much damage we can do).

2) A feel-good meeting with the Russkies could then in turn pay benefits on issues of substance, such as cooperation in trying to moderate Iran, oil and gas sales to Europe, and so forth. The most important issue on which cooperation is needed is securing potentially loose nukes, and an agreement on nuclear arms reduction could include elements regarding securing weapons and nuclear materials. But this isn't automatic. Indeed, to the extent that further arms limits do not contain strict verification protocols for the destruction of nuclear weapons, they could actually make things worse: Nukes decommissioned from the Russian arsenal could then end up in the hands of people not subject to the logic of mutual assured destruction.

3) A first agreement under the Obama Administration could be a step towards complete nuclear disarmament, a goal long sought by many peacenicks and their fellow travelers. It is highly doubtful, however, that this would become U.S. policy under the Administration of just about any President. Nuclear weapons technology cannot be uninvented---except perhaps by the application of nuclear weapons to convert the Earth into a post-apocalyptic dystopia in which the know-how to make a toaster, much less a nuclear weapon, is lost. Thus, so long as there is the possibility of a single potentially hostile power having a single nuke, the U.S. is not at all likely to reduce its arsenal to fewer than something on the order of a hundred nukes.

For people who think that the longer nukes exist, the greater the likelihood that they will eventually be used against human populations (again), the imperative should be: A) securing loose nukes; and B) developing very highly reliable inspection regimes to ensure that a country that says it has no nukes is telling the truth. Accomplishing these objectives would enable the U.S. to reduce to zero without fear that in doing so, it opens itself to nuclear blackmail. A new arms agreement with Russia could therefore serve yet another purpose: It could operate as a testing ground for new methods of disarmament verification.

Still, I am very skeptical of the prospects for getting a fully effective verification regime off the ground. A power bent on nuclear blackmail could game the system, cooperating with inspections so as to lull others into thinking it's out of the game, and then reconstituting its weapons programs after its potential adversaries have disarmed. (This is not in anybody's long-term interests, but the hypothesized regime---let's call it "North Korea" just for kicks---is not entirely a rational actor.)

Thus, I'm led to conclude that the main goals of the proposed arms control negotiations are as described in 1 and 2.

Posted by Mike Dorf

A Botched Abortion and Wrongful Death

On FindLaw today, I have a column discussing the case of Sycloria Williams, a woman who sought an abortion in her 22nd or 24th week of pregnancy and -- due to her doctor's failure to arrive in time -- delivered her fetus, reportedly still alive, on her own, at the clinic. After delivery, a co-owner of the clinic allegedly cut the umbilical cord and then placed the live fetus into a biohazard bag, which she then allegedly sealed and discarded (but which was subsequently discovered by police after the fetus's body had begun to decompose). The column takes up the question of what exactly makes this case as disturbing as it is, by distinction both from the abortion that Williams had sought to have, and from the abortions that an overwhelming majority of women who terminate their pregnancies undergo.

My objective in this blog post is to focus on the perspective of Sycloria Williams, the woman who went to the clinic to have an abortion. Quite apart from the morality or immorality of the clinic owner's alleged conduct with respect to the fetus, Williams has herself brought a lawsuit for wrongful death. My question for this blog post is whether such a claim could possibly be legitimate.

One answer is no. Williams may be able to complain about a number of things that occurred -- the traumatic circumstances of her delivery and the events that followed, along with the substandard medical care that she received. But she is not in a good position to complain about the fact that her fetus is dead. After all, she chose to terminate her pregnancy, and the manner she chose essentially guaranteed that the fetus would die. Had things gone as she had planned, the fetus would be as dead as it is now. She might not have suffered the physical pain and accompanying trauma accompanying labor and delivery, and she also might not have seen the body of the fetus (or the actions of the woman who placed the fetus, while alive, into a biohazard bag), about all of which she can justifiably complain. But these factors concern her experience of medical care (or the lack thereof), not with the fact that her fetus died, which is the basic "wrong" of which a plaintiff complains in a "wrongful death" suit. After consenting to a death, in other words, one is ill-placed to complain of its wrongfulness.

Another answer is yes, an answer at which one might arrive by two discrete paths.

The first route is to say that Sycloria Williams was misled by the clinic into believing that something other than a baby or fetus was going to die in the course of an abortion. If that were the case, then Williams had never truly given informed consent for an abortion. Like a woman who is given a cup of coffee that has been spiked, unbeknownst to her, with an abortifacient, Williams could potentially sue for wrongful death on the theory that she never really consented to terminate.

This argument -- which I believe is the one that Williams has chosen -- appears quite weak, to the extent that Williams was an adult at the time of the events in question (18) and was capable, in seeking an abortion, of figuring out with minimal research that a relatively developed fetus will die as a result of an abortion at 24 weeks gestation. Nonetheless, if her providers affirmatively misled her about what was to occur, she might have a claim (though I am betting she loses).

The second route is to suggest that Williams had agreed to an abortion but not to a post-abortion killing of a fetus delivered alive. That is, Williams had consented only to the removal of the fetus inside her body and to the dismemberment of that fetus to facilitate its removal from her body without causing her injury. Once the fetus was outside her body, however, the clinic no longer had her permission (which she was not in a position to give, in any event) to kill or otherwise harm her now-separate fetus. She had, once seeing the fetus alive, reportedly formed a bond and decided she wanted the fetus to live. The clinic had no right, at that point, to kill it.

To illustrate, imagine that a pregnant woman tried to terminate her pregnancy using a cocktail of drugs. As it turned out, however, the drugs were lodged in her esophagus and never made it into her bloodstream. She took the pregnancy to term and gave birth, after which she fell in love with her child. If the pharmacist from whom she had originally purchased the abortion drugs were to murder the child a day after she gave birth, she would surely be justified in bringing a wrongful death suit against the pharmacist, despite the fact that she had earlier tried to abort. To say this differently, a person can attempt to abort without thereby forfeiting future wrongful death suit options, if the abortion fails and the woman decides she wants the baby after all.

For Sycloria Williams, of course, the argument is a more challenging one than it would be for the woman in the above hypothetical example. Williams did not apparently decide at any point that she wanted to have a baby. She was reportedly waiting for the doctor to come and perform an abortion even at the moment that she delivered her fetus alive. It therefore will be somewhat difficult for her to maintain that she changed her mind (or that she made her change of mind clear to the people in the clinic) at the time the fetus was killed.

Nonetheless, the reality is that Williams had no reason to expect, once she delivered her fetus alive, that anyone would come along and kill the fetus, and she might accordingly not have had to say anything to "call off" the abortion -- it was arguably "called off" the moment she finished giving birth to it.

However one feels about this case, I suspect that people's reactions to Sycloria Williams' wrongful death lawsuit will not break down along pro-life/pro-choice ideological lines. And that is, in itself, a refreshing change of pace.

Posted by Sherry Colb

Not Exactly Fools, But . . .

In my "Obeying Our Overlords" post on Monday, I mentioned in passing that the New York Times op-ed columnist Nicholas Kristof had recently been a panelist on a public affairs show, a show on which he discussed inter alia some questions about international economic policy. In a particularly uncharitable moment (even for me), I then noted that Kristof was "completely unqualified to speak on the subject." This suggests a related question: On what subject, if anything, is Nicholas Kristof qualified to speak or write? Which, in turn, raises the question of what qualifies any op-ed columnist for his or her job. In honor of "fools' day," I thought it worthwhile to consider the nature of the newspaper op-ed and its practitioners, particularly at the highly influential New York Times.

I should say that I am a bit uncomfortable in going down this path, not because of the obvious hypocrisy of a blogger opining about other people's rights to opine. That comes with the territory, and I am happy to embrace the paradox. Instead, what concerns me is that it is just too easy to take shots at the Times' lineup of op-ed writers -- so easy, in fact, that zillions of blogs seem to be devoted to little else. Right-wing "truth squads" try to debunk everything Paul Krugman says, for example; and William Kristol's misbegotten stint on the Times' roster created a feeding frenzy of appropriately critical commentary. Having been in the blogging game for a couple of years, I have tried mightily to avoid falling into the pattern of waking up, reading the op-ed page, and then blogging about something with which I disagree. If I weren't a vegan, I would liken that blogging strategy to shooting ducks in a barrel.

Two things have changed my mind. First, Mike recently demonstrated that one can occasionally take a really good shot at someone on the Times' roster (in his case, Thomas Friedman) in the service of a larger point. Second, because of the current economic crisis, the content of the Times op-eds has become much more oriented toward economic issues. The low quality of the commentary about a subject for which I am actually qualified to speak has made it impossible to ignore this low-hanging fruit any longer.

Therefore, my post this Friday will address some of the more silly comments about economics that some of the Times op-ed writers have offered recently, the larger purpose being to show that the quality of debate about economic issues is surely degraded by having these people weigh in with their uninformed views.

Since I am taking the leap into this void, however, I am hereby indulging my long-held desire to critique this crowd individually and as a group. The group in question is composed of David Brooks, Gail Collins, Maureen Dowd, Thomas Friedman, Bob Herbert, Nicholas Kristof, Paul Krugman, and Frank Rich. (I know that Charles Blow and Roger Cohen should be included as well; but they are relatively new and thus far unremarkable.)

Many others have pointed out that this roster includes 7 liberals and one conservative who sometimes sounds non-conservative. Given my strongly liberal views, this should make me happy. Would that it were so! Politics aside, my most frequent reaction to Times op-eds is that they are simply shallow. This is not inherent to the enterprise, because Krugman's columns demonstrate repeatedly that 750 words are sufficient to make an intelligent and deep argument. (Even those who disagree with Krugman's views must surely find his arguments non-shallow.)

I am thus tempted to attribute the difference to Krugman's academic training, since he is an economics professor at Princeton whereas (so far as I know) none of the other columnists have any advanced academic training. This, however, fails to explain Frank Rich, whose political commentary single-handedly makes the Sunday Times worth its price but whose background is in film criticism. Advanced academic training is thus not necessary (and op-eds from guest economists prove beyond doubt that it is also not sufficient).

Each of the other five liberals -- Collins, Dowd, Friedman, Herbert, and Kristof -- has developed a unique voice. Dowd, for example, seems happiest when she can make snarky and unfalsifiable comments about someone on a personal level (such as her repeated claims that Hillary Clinton "got inside Obama's head"). Kristof seems intent on proving what a great humanitarian he is. (He actually does some wonderfully humanitarian things, but he somehow always manages to make it seem to be all about him.) Friedman spends his time thinking up catchy phrases (the world is flat; after the IT revolution will be the ET -- environmental technology -- revolution). Collins and Herbert seem to have their hearts in the right place, but their columns too frequently add up to nothing.

My overwhelmingly negative reaction to David Brooks has not been based (at least as a first-order matter) on his conservative views. I actually play a game when I read his columns, seeing how far I can get into each column before he says something so preposterous that I have to stop reading. (One example: Discussing something about Bush's foreign policy a few years ago, Brooks wrote: "Bush, ever the visionary . . ." I had so much coffee coming out of my nose that I couldn't breathe normally for a week.) I occasionally finish his columns, but not often. His pattern is to return to two themes: (1) pompous literary references, and (2) agreeing with the Right's negative views of "elites." The self-hatred obvious in the interactions of those two themes should keep a good psychologist employed for years.

Given this parade of lightweights (with the two notable exceptions), it would be tempting to dismiss the whole enterprise and instead spend more time reading things that are actually well-reasoned. The problem is that these people help to set the agenda and define the meta-narrative of politics in this country. When the biggest issues facing the world are Congressional page scandals and wardrobe malfunctions, the damage from this system is minimal. When our leaders are trying to figure out how to end wars and avoid global economic depression, though, it is more than a bit worrisome that our political discourse is set by people whose greatest claim to expertise is that they have always claimed to have expertise.

-- Posted by Neil H. Buchanan