Tuesday, December 30, 2008

What's all this I hear about violins on television?

If the late great Gilda Radner were still with us, surely she would have a field day with the willingness of former Illinois AG Roland Burris to accept Gov. Blagojevich's nomination to serve as interim Senator. Picture Radner as Emily Litella (if you're too young, look it up on hulu or youtube):

Emily: What's all this I hear about the new Senator from Illinois shooting himself in the leg? If you ask me, taking an appointment from that Bigboyovich fellow may be shooting himself in the foot, but not the leg!

Chevy Chase or Jane Curtin: That's Plaxico Burress, not Roland Burris.

Emily: Oh, that's very different. Never mind.

Okay, maybe you had to be there, and by there, I mean watching television during the Ford Administration. Anyway, conventional wisdom will soon coalesce around the proposition that Roland Burris is doing himself a disservice by accepting the Senate appointment, but, as numerous news stories have already pointed out, Powell v. McCormack severely constrains the ability of the Senate to refuse to seat Burris. Like Adam Clayton Powell, Burris has the requisite qualifications for office.

Perhaps the Senate could conclude that, in light of his misdeeds, Blagojevich is not really the Governor of Illinois, and thus lacks the power to appoint a Senator, but this seems far-fetched in the extreme. Meanwhile, if the Senate refuses to seat Burris on this or some equally loopy theory, he should be able to get an injunction on the strength of Powell pretty quickly.

So here's my Machiavellian take: 1) Dems in Congress understandably want to distance themselves from Blago as much as possible, even to the point of not seating an additional Dem who would vote with them and who is, it appears, not personally tainted by Blago's corruption; 2) said Dems, plus President-elect Obama, are also good enough lawyers to know that their move will almost certainly fail if challenged in court, so taking this stand is likely to be cost-free.

Meanwhile, and completely unrelatedly, for my thoughts on the possible long-term constitutional implications of a new era of activist government, see my latest FindLaw column.

Happy new year to all. I'll return to regular blogging next week.

Posted by Mike Dorf

The Perfect, the Good, and the Acceptable

In my post yesterday, I argued that the current crisis in the automobile industry (which is most acute in -- but hardly limited to -- the U.S. auto industry) presents a rare opportunity to completely change the way the industry designs, manufactures, sells, maintains, and disposes of cars. The final paragraph of that post raised a specific example of a conundrum that we face in a number of areas:
All of this, of course, assumes that we should be encouraging people to have access to cars at all. The more fundamental challenge is to make driving less and less desirable and necessary, through better regional planning and investments in rail, etc. As we attempt to do so, however, there is no reason to squander this opportunity to require auto makers to improve both the cars they make and the ways we buy and rent them.
It is not at all obvious that the final sentence of this quote is true. That is, if we want to make driving less attractive, we might be better off doing nothing to help the industry improve the way it does business. In fact, we might want to do the exact opposite of what I suggested and instead make driving as miserable an experience as possible. (The second comment on the comments board explored this conundrum and anticipated some aspects of today's post. It raises some very important questions and is definitely worth reading.)

I briefly lived in central Pennsylvania, where the roads are notoriously bad (poorly designed, poorly maintained, and thus disturbingly dangerous). One thing I learned the hard way while driving on those bad roads is that it makes a person appreciate trains. While part of me wished that, for example, the on-ramp to the highway did not enter directly into a lane of traffic with no merge lane (and with the added joy of being on a steep uphill incline, with no sight-lines for oncoming traffic), I realized that a gleaming new highway would make me and others much less likely to want to get out of our cars. Similarly, if it were not a miserable experience to buy a car in this country, I probably would not have kept my car for 10 years and over 200,000 miles and would thus have contributed to the profits that extend the life of a bloated and globally disastrous industry.

One response to this observation, therefore, is to be aggressive in our efforts to make driving unappealing. Stop maintaining roads and bridges. Allow traffic jams to take up ever more hours of people's time. Repeal consumer protection laws designed to rein in a few of the worst excesses of car dealers. Repeal auto safety regulations and fuel economy regulations. In short, do everything we can both actively and passively to make people want to support a car-free alternative approach to transportation.

Readers will recognize this as nothing more nor less than the classic reformist vs. abolitionist (or liberal vs. radical) dilemma. Do we, for example, support laws that make feed animals slightly less miserable before they are brutally killed, if such laws will make people feel good about themselves for having been "humane" in their treatment of their victims? Do we expand medical coverage by HMO's, knowing that doing so will make people less likely to support universal health care coverage? Do we require businesses to treat their workers a bit better, knowing that doing so will make the workers less likely to support fundamental change in the way the workplace is organized? Do we, in other words, believe that things must be bad or worse before they can become better?

There has never been satisfying answer to that fundamental question. Certainly, there is no answer that applies convincingly to every situation. In part, there are consequentialist questions that can only be addressed by making empirical guesses. (How many more people have to die in auto accidents before people will finally say, "Enough!") In line with Mike's recent post on pragmatism (or at least my imperfect understanding of pragmatism), it seems to me that there can be no universal answer. The answer for the automobile industry might be different than the answer for health care, and that's (as Stuart Smalley used to say) okay.

The best case that can be made for the reformist approach to automobiles, I think, is found in Berlin, Germany. I had the good fortune of spending a week in Berlin last year for an academic conference, and I was astonished. A city that is not particularly densely populated (or, in fact, all that large) in a country renowned for its love of fast automobiles has made it possible to live quite comfortably while driving rarely or not at all. Riding in a taxi from the airport during the morning rush hour, I saw no rush hour. People were lined up for trolleys, subways, trams, and buses, all of which arrived frequently. People rode bicycles in well-marked and ubiquitous bike lanes. There were cars, but not many of them. (I admit that I might have happened to miss the bad traffic, but being able to drive from a major international airport to the center of a capital city at 8:30am on a Tuesday morning without seeing heavy traffic is pretty impressive.) Earlier this year, Paul Krugman reported on his recent visit to Berlin, noting the same phenomena.

It is, therefore, at least possible to have a society in which people own and drive cars that is not the environmental and human disaster that cars are in the U.S. It is, it seems to me, thus possible to get automakers to make cars that are a huge improvement on their current models but to get people to drive them less and to want to live in more sustainable neighborhoods and cities. I might be wrong, but it seems worth a try.

-- Posted by Neil H. Buchanan

Monday, December 29, 2008

Big Changes in a Crisis: Automobiles

As I noted last week, the current economic crisis that is deepening in the U.S. and spreading around the world poses not just the immediate challenges involved with economic policy -- assisting those who have lost their jobs and homes, stopping the slide, and putting the economic back on an upward path. It also offers many opportunities to think big, to reconsider in fundamental ways the laws, policies, and expectations that define the way our lives and our economy work. A crisis presents a rare opportunity to shake off the conventional wisdom and to gather the political will to create better ways of doing things. A crisis also, however, by its nature guarantees that many new policies will be rushed into place and thus that they will be flawed and potentially self-defeating. Thinking through these possibly large changes is thus essential to minimize the costs and maximize the benefits of change.

The most salient areas of possible large-scale change that had previously been highly resistant even to small changes include banking and finance, housing, health care, environmental policy, and education. Each of these major public policy areas have come to be thought of as "industries" with entrenched interests that fight fiercely to protect themselves from fundamental change. Nevertheless, all of them are likely to emerge from the current crisis in radically different form. Such a fate also clearly awaits the automobile industry. Today, I will describe some of the opportunities that have suddenly become imaginable as the U.S. auto industry faces the worst crisis in its history. The industry can, and should, change the ways it designs, manufactures, sells, maintains, and disposes of cars and trucks. Policy makers should help to shape those changes, especially given the historical reluctance of the Big Three to change the way they do business.

As of this writing, the Bush administration has promised to divert money that Congress approved for the financial bailout to offer about $15 billion in loans to GM, Ford, and Chrysler, giving them until March 31 to come up with a plan to put themselves on a path to long-run prosperity. The most promising possibility would be to require the auto companies to embrace environmental concerns rather than to continue their unending battles against laws to protect the environment. The product mix is already changing, with large SUV's and pickup trucks finally being replaced by smaller and more fuel-efficient vehicles. More hybrids are apparently on the way, and electric vehicles might finally make serious inroads in the U.S. Certainly the Big Three should be required to agree to serious increases in fuel economy and environmental standards for their cars, rather than (as they have in the past) engaging in scare tactics to convince the public that environmentalists want Americans to drive strange-looking glorified golf carts.

All of this is important, of course, and such changes appear to be under serious consideration. As I suggested recently, however, once the auto makers have manufactured their cars, there is much more that they could do to improve their prospects with car buyers. The way that cars are sold in this country is, in a word, absurd. The entire process of buying a car is insulting and stressful, with car salespeople trained to manipulate and deceive buyers into overpaying for cars. In response to my post about auto sales tactics, one reader posted a link to a fascinating article in which an investigative reporter describes his experiences as a car salesmen at both traditional and "no-haggle" dealerships in southern Calfornia. The stories are both depressing and entirely believable. Another reader whom I know sent an email in which she described her experiences in dealing with car salesmen. (She is a petite, youthful woman, making her an especially enticing target of car salesmen.) Her comments also touch on many of the other problems with the way the Big Three automakers do business:
These [sales] tactics are why I bought a Saturn ten years ago when I was in the market for a car. Meanwhile, though, I brought two young salesmen to the brink of tears as I dickered, the first because he (literally) did not know his oil from his transmission dipstick. I ended up buying from a nice kindergarten teacher at the Saturn dealer. Every time I asked something about the car, she either immediately had the information, or she could get it in less than a minute. She could also tell me the cargo capacity of not only the Saturn I was looking at but also a dozen other similar vehicles. Last year, at 200,000 miles, I threw a rod in my beloved Saturn's engine. I shopped for three days. No car at the same size had the same gas mileage. No dealer wanted to deal; all of them wondered when my husband would be coming in. I ordered a new engine. The car now has 230,000 on it. Most of the parts are original. So, Detroit, what will it take to put me in a new car? Make one that drives as well, as cheaply, as comfortably as my old Saturn SW2. Make sure it gets at least 45 mpg; if you could give me 38 ten years ago, surely you can manage 45 now. Give me exactly the same price you give everyone else. I'll buy the car in a heartbeat. Meanwhile, I'm lusting after a used Saturn I pass on my way to work, same model as my car, that I'm betting has way lower mileage . . . either for replacing my car or cannibalizing for parts.
As humorous as war stories about car dealers can be, this is a serious waste of economic resources. The auto makers -- including the foreign brands -- have to date not dared to fight the dealer networks and their protectors in every state legislature, even though the tactics used by car dealers are a constant source of trouble and expense for the manufacturers (since, understandably, customers blame the abusive tactics of Big Bob's Chevrolet on GM as well as on Big Bob and his minions). Indeed, as the article that I noted above makes clear, the "no haggle" dealers are merely toned down versions of the sleazy norm, continuing to use the same old tactics to sell add-ons, etc. Even on-line sales must go through a traditional dealership in almost every case because of state laws that protect the business model of the car dealers.

The problem, from a business standpoint, is that customers are alienated and angry. Buying a car is such a stressful experience that people put it off as long as they can. While GM would like to build a bond with their customers to increase the likelihood of repeat business, car salesmen and their dealerships are in it for the quick kill. It was, in fact, the traditional dealerships that put huge amounts of pressure on GM to euthanize Saturn. (Although GM has not officially killed off Saturn, they certainly have allowed it to wither and have blown a huge opportunity to build on its early success.) If the Big Three automakers really want to get the people behind them, they could do a lot worse than proposing a complete break with the way cars are sold.

Even more fundamentally, we could ask why people own cars in the first place. As I pointed out here last summer, we need to seriously reconsider the fundamental assumption that individuals should own their residences, and this argument extends to automobiles as well. Current practices and laws make it extremely difficult to lease cars. (For example, despite my best efforts, I have not even been able to find a no-haggle lease.) This makes the family car "the second biggest investment you'll make," which makes no more financial sense in many instances than that biggest investment. People are simply accustomed to thinking that they should own their cars and their houses, even though there is no good reason to do so for many, many people. The inefficiencies of the used-car market are legendary in their own right, and we could pool a lot of risk as well as take advantage of some serious economies of scale by encouraging non-ownership of cars (and houses).

All of this, of course, assumes that we should be encouraging people to have access to cars at all. The more fundamental challenge is to make driving less and less desirable and necessary, through better regional planning and investments in rail, etc. As we attempt to do so, however, there is no reason to squander this opportunity to require auto makers to improve both the cars they make and the ways we buy and rent them.

-- Posted by Neil H. Buchanan

Saturday, December 27, 2008

Be Nice to Your Friends

At the end of my post yesterday about the Rick Warren controversy, I noted in very general terms that Barack Obama could (and should) pay a price for alienating those among his core supporters who support gay civil rights -- or, indeed, anyone who finds Warren's views on a whole range of issues scary. Obama has spent some of his political capital by making this controversial choice, and he has lost the benefit of the doubt when he inevitably needs help from these supporters in the future. I concluded: "Moving forward, the lesson to be learned is that those who want something from Obama should expect something big from him first, given the way he has treated those who supported him without a quid pro quo and who simply expected much better from him." We have recently learned to our dismay that trust matters in the financial markets, and Obama may well learn a similar hard lesson about law-making during his time in office.

One might argue, however, that there is no downside risk to Obama in making this decision. His pro-gay-civil-rights supporters -- as well as his pro-women's-rights supporters, his pro-science supporters, and his supporters who generally believe in the separation of church and state -- have nowhere to go (since voting Republican is not a serious option for those who care about any of these issues). Besides, the next election is a long way away and this is all about meaningless symbolism anyway. Even if the only consequence of presidential decisions were its effects on elections, however, this analysis is clearly incomplete. The standard approach to analyzing these decisions, after all, makes clear that one must take into account the risk of alienating supporters so much that they stay home from the polls, choose not to volunteer to work on campaigns, and refuse to donate money to a candidate. Maybe Obama is simply calculating that the odds of losing supporters is more than compensated by the odds of gaining ground among religious voters. As I noted yesterday, he might turn out to be right; but he is taking a very big risk.

Even if one looks at this as nothing more than cold political calculus, however, this analysis leaves out a very important way that presidential decisions -- even (especially?) symbolic ones -- can blow back on the president. The phenomenon is partly captured in the famous line (attributed alternatively to Wilson Mizner or Jimmy Durante): "Be nice to people on your way up because you might meet 'em on your way down." Applied to this context, the point is that Obama is going to have some rough times in his presidency, and at those times he will need the support of the people who supported him from the beginning. Facing a record-setting recession that could well become a depression, Obama's currently high approval ratings will surely fall, Republicans in Congress will oppose his initiatives, and Obama will need to rely on a core of devoted supporters to push back against his opposition. Will the Warren devotees whom Obama hopes to attract stick around when Obama's popularity starts to tumble? "Last in, first out" is not just a concept in inventory management but a staple of political life. You need to be able to count on your real friends.

As Paul Krugman put it in his column yesterday (which was not about the Warren controversy but is quite relevant nonetheless): "[T]he Obama administration and Democrats in general need to do everything they can to build an F.D.R.-like bond with the public. Never mind Mr. Obama’s current high standing in the polls based on public hopes that he’ll succeed. He needs a solid base of support that will remain even when things aren’t going well." Emphasizing the importance of symbolism, Krugman added that he could not have been "the only person who winced at reports about the luxurious beach house the Obamas have rented, not because there’s anything wrong with the first family-elect having a nice vacation, but because symbolism matters, and these weren’t the images we should be seeing when millions of Americans are terrified about their finances."

I should add that the need to have a core of enthusiastic supporters will become obvious not just when things get tough but early on in Obama's presidency. He will need to score early "achievements," and Republicans will want to deny him those achievements for purely political reasons. Having energized supporters who are willing to write letters to the editor, call in to radio shows, write blog entries, and generally push back against the right-wing echo chamber will be essential to Obama early and often. I concede that, individually, I am not a particularly good indicator of anything. Still, given that I am now much more inclined to criticize Obama and to stop giving him a pass on policy and appointments issues, my tiny corner of the blogosphere has become very much less hospitable to Obama. (I will, for example, soon write one or more posts describing why Obama's cabinet appointments do not bode well for policy. I would have been much less inclined to take the time to do so if I still believed that the guy at the top had his basic priorities in order.) When things get tough for Obama, I -- and I suspect many others -- will be hard pressed to find the enthusiasm to come aggressively to his defense (even when I agree on the substance of a policy question). This is not a matter of spite but simply the inevitable consequence of a loss of trust and respect. It is difficult to summon the energy to support someone who has shown that he views you as expendable.

The idea that those who are offended by the Warren selection "have nowhere else to go" is, therefore, reductionist in the extreme. Not only can Obama's shaken supporters who are disturbed by the Warren invitation go home rather than to the polls on election day, but they can go back to watching TV or reading a book when Obama needs their support in any particular legislative battle. At the very least, Obama has made his life more difficult, because he has squandered the most precious of political commodities: trust.

-- Posted by Neil H. Buchanan

Friday, December 26, 2008

Betrayal, Part Two

On Monday, I decried Barack Obama's invitation to Rick Warren to give the invocation at the presidential inauguration on January 20, describing Obama's decision (twice) as "appalling and stupid." In off-list emails and on the comments board, readers have raised a number of questions exploring Obama's decision and the public reaction to it, ranging from the question of whether this is a betrayal at all to the suggestion that this is not even Obama's biggest blunder to date. Here, I will explain why the Warren invitation is uniquely deplorable, add a few comments about Warren's views, and suggest the best response to Obama's decision as his presidency unfolds. In a future post, I will discuss why I think this decision is categorically worse than his other poor decisions to date.

I continue to be stunned by Obama's extremely poor judgment in giving such a prominent position to a politically active minister whose positions on a range of issues are so at odds with Obama's views and those of most of Obama's supporters. Even so, some have suggested that Warren is a different kind of fundamentalist preacher who is not as intolerant as he seems. (High praise, indeed.) Even Melissa Etheridge, the singer and gay civil rights activist, has written in support of Warren, saying that Warren "regretted his choice of words in his video message to his congregation about proposition 8 when he mentioned pedophiles and those who commit incest. He said that in no way, is that how he thought about gays." Unfortunately, Warren has changed direction again, posting a video last weekend on his website in which he explicitly denied ever having drawn such comparisons, despite video evidence to the contrary.

Still, Obama himself has publicly stated that he also opposes gay marriage, right? If so, why is it so surprising that he would invite a fellow believer in "traditional marriage" as his spiritual voice at the inauguration? One answer is that, although Obama has not come out in favor of gay marriage, he did oppose Prop 8 in California. His supporters who are in favor of gay marriage thus were silent both on Obama's decision to state publicly that he opposes gay marriage and his decision not to campaign actively against Prop 8. In other words, those who are now upset with Obama are not asking for the moon and stars. They have already accepted that he felt he had to distance himself from them for "pragmatic" and "post-partisan" reasons. What I suspect they did not anticipate was an affirmative choice on Obama's part -- not prompted by the exigencies of a campaign with swing voters at stake -- that pours salt on the major wound from the election results. No one expected Obama's first official act to be officiating over a mass gay wedding on the White House lawn. One might, however, have expected Obama to understand that you do not kick some of your most ardent supporters when they are down.

On the other hand, many Obama supporters do not support gay marriage. Why should their views not be reflected in Obama's choice? First, this did not need to be an either/or choice. While I agree with those who find the whole notion of a religious invocation at a government event troubling, there really are ministers, priests, rabbis, imams, and others whom Obama could have invited for whom gay marriage would not have been a salient issue and whose public positions are inclusive rather than divisive. As a minister's son who is no longer religious, I continue to appreciate religious leaders who can give public prayers that are ecumenical and humanistic and whose public profiles match their rhetoric. Obama went a different way.

Furthermore, as I mentioned in my post on Monday, gay rights and gay marriage are the current great civil rights battle facing this country, putting President-Elect Barack Obama in a uniquely important position from which he can and should lead people to change their views about gay civil rights. Obama often invokes President John F. Kennedy as a role model. When Kennedy was running in 1960, the question was whether people could vote for a Roman Catholic to be president. Many of those who did vote for Kennedy surely opposed civil rights for African-American citizens, yet Kennedy did not say, "Well, my supporters oppose racial justice, so I'll leave that one alone." He not only did not invite an openly racist religious leader to give the invocation at his inauguration, but he was a leader on civil rights issues. One of the reasons I supported Obama was because I thought that he would know when to lead. He could still prove me right, but this is a very bad beginning.

Moreover, the objection to Warren need not be limited to (or even be principally about) his views on gay marriage. As I pointed out on Monday, he views homosexuality as something that people must "repent" before they can join his church. That is his choice in determining his church's rules, but it certainly puts him in league with the Robertsons and Falwells of the world and not with many, many other religious leaders whom Obama might have chosen. Warren also has described people who are pro-choice as "Holocaust deniers" and says that he differs only in "tone" from the most extreme leaders of the Christian Right such as James Dobson. Warren's views on women, moreover, include the "traditional" notion that wives must be completely subservient to their husbands; and spousal abuse does not -- repeat, does not -- constitute grounds for divorce in Warren's world.

Given all of this (and more), it is truly shocking to imagine that Barack Obama would make this decision. To repeat, the depth of my disappointment is not due to Obama's many choices to marginalize gay civil rights issues. Sadly, current political realities still make it suicidal for politicians to be in favor of gay marriage and to be "too open" about one's support of gay rights. The problem is that Obama made an affirmative choice, under no political pressure whatsoever, to pass over the whole range of inclusive religious leaders in this country and to choose someone whose very presence in the inauguration will make many of us feel less joy at this historic occasion.

Maybe Obama knows all of this yet chose to extend the invitation to Warren for purely consequentialist reasons. Warren did Obama a favor during the campaign by inviting him to a forum at Warren's church, and now Obama is doing his "friend" a favor in return. If so, then Obama has no sense of proportion, paying back Warren at, shall we say, usurious rates of interest. On the other hand, the liberal columnist E.J. Dionne suggested earlier this week that Obama's decision is not merely pay-back for a campaign favor but a down payment on getting Warren's support on issues such as anti-poverty programs and, more generally, a first step toward peeling away some religious voters from the Republican Party. If so, Obama has made a very big down payment, giving a key symbolic role to someone whose views on a wide range of issues are completely at odds with Obama's stated views.

That gamble could pay off. If it does, many who are currently in shock and disbelief will at least have to decide whether this cost-benefit approach to symbolic issues tips in favor of Obama's choice. In the meantime, however, Obama has lost the benefit of the doubt. He has shown that he takes his supporters for granted and is willing to insult them in the name of reaching out to those whose support he desires. Moving forward, the lesson to be learned is that those who want something from Obama should expect something big from him first, given the way he has treated those who supported him without a quid pro quo and who simply expected much better from him.

-- Posted by Neil H. Buchanan

Thursday, December 25, 2008

Blogging Schedule

With very low readership expected today, I have decided to publish my first "Big Changes" post (on ways to change the auto industry) either over the weekend or on Monday.

Tomorrow (Boxing Day and Kwanzaa), I will post a follow up to my post from this past Monday regarding Obama's invitation to Rick Warren to give the invocation at the presidential inauguration. Not surprisingly, there is more to say on this evolving issue (though, given Warren's claim that the existence of homosexuality disproves the theory of evolution, that is admittedly a poor word choice).

Peace and Joy to all!!

-- Posted by Neil H. Buchanan

Wednesday, December 24, 2008

What's In It For Me? Why Cap-and-Trade Should Stay Out of An Obama EPA

To no one’s great surprise, the D.C. Circuit closed its book on the “Clean Air Interstate Rule” (CAIR) litigation with the coup de grace. It remanded the CAIR rule it had just this summer invalidated as “fatally flawed” back to the agency that wrote it to fix on its own time—while the rule remains in effect. This whole affair has, in my view, shown why all the hype surrounding so-called “cap-and-trade” proposals for greenhouse gases is just that: hype. (Dangerous hype.)

A little background: In July 2008, the D.C. Circuit invalidated CAIR root and branch, saying the whole program had ‘fatal flaws’ and was contrary to the CAA. CAIR was the Bush EPA’s answer to a national shame. The CAA’s “national ambient air quality standards” for pollutants like sulfur dioxide, nitrogen oxides (nasty byproducts from combustion of almost all forms) have been in effect for three decades, yet huge chunks of the country still haven’t met them. Many millions of people have lived their whole lives in air too dirty for their own health. They are raising children in it now, indeed, and watching them develop asthma and other respiratory disorders at disproportionate rates. CAIR’s solution: tradable permits to emit these pollutants on the theory that market forces will incentivize the polluters to perform better (if there’s a profit in being clean, leaders will reap their rewards from laggards who must buy the excess permits to stay in business).

In North Carolina et al. v. EPA, the D.C. Circuit held that the whole set-up was so flawed as to be totally invalid, though. The CAA never provided EPA authority to experiment in this fashion, at least according to the court. The real problem was this, though: because of the CAA’s rigid timeframes supposedly binding the agency and the states that must have plans to attain the standards, time had run out on the parties while EPA had cobbled together CAIR and tried to make it all work across all the affected states, state implementation plans, and interrelated CAA programs. By the time the D.C. Circuit invalidated the rule in July, everyone’s chips were already down on CAIR (in good part because a lot of clock had been eaten up by previous rulemakings and previous litigation). Permits had already been traded and states had already begun figuring the expected emissions reductions into their plans when the CAIR rule went to court.

While this mess was being made, some in Congress took action—sort of. Citing EPA estimates that, by 2015, CAIR would save between $85 and $100 billion in avoided health care costs and prevent 17,000 premature deaths, some Senators (none of whom were running for President) started the push for a legislative cure. Of course, Congressman Dingell (D-MI) ultimately killed the effort—like most bills mentioning cleaner air that have come up in the last thirty years. (He argued it didn’t have the support of Congressman Barton (R-TX), then the ranking Republican on the House Energy and Commerce Committee and that Congressman Barton would support a review of the CAA as a whole after the election.) (By that point, even he had given up arguing against something because it was ‘bad for Detroit.’) EPA petitioned for rehearing in September and the end came yesterday.

For those keeping score at home, here’s the rundown: (1) in defense of the rule of law (which, in this age of delegation is a sham argument most of the time anyway), the D.C. Circuit stomped all over CAIR, going beyond the parties’ arguments to invalidate the whole thing; (2) which had the effect of flat-lining the market for emissions permits (thereby severely dampening any incentives CAIR was going to create) but not the program itself because all the regulators kept saying “trade, baby, trade”; (3) which galvanized Congress only to the point of actually having to chicken out publicly as the partisan political stakes ballooned out of proportion to any potential payoff in an election year (when is it not an election year anymore?); which then (4) confirmed to the court, upon rehearing the matter, that the rule of law was sufficiently defended if only a pall of suspicion were cast over CAIR, i.e., that it didn’t require actual judicial relief (even though the statute empowering the court says it “shall” set aside any rule it finds “arbitrary, capricious, an abuse of discretion . . . not in accordance with law . . . in excess of statutory jurisdiction, authority, or limitations, or . . . without observance of procedure required by law”).

So here’s the take-away. Cap-and-trade at this scale with these stakes is simply too complex and too important to too many parties with too many conflicting interests and too many opportunities and motives to fight and make a fight last at least long enough to screw everything—everything—up beyond all recognition. Time, if not our thirst for conflict, is finite where environmental depletion and toxification are concerned. Unlike some who make this observation, though, my conclusion isn’t that we should do nothing about greenhouse gases. Climate disruption fees would probably be easier to start, be smoother in their market impacts, and be much easier to adjust when the inevitable mistakes come to light. In the mean time, a whole lot less preemption of state and local initiatives would be a hell of a good start.

Posted by Jamie Colburn

Tuesday, December 23, 2008

Making Big Changes During a Crisis

It is now obvious that the U.S. and the world are in what is likely to be a prolonged period of economic crisis. There is a serious danger of deflation and the first global depression since the 1930's. The good news is that it appears that the people who are (or, in the case of the U.S., will soon be) in position to implement policy responses to combat the crisis will do so quite aggressively. Despite the academic disfavor into which Keynesian economics fell after the 70's stagflation, we are once again all Keynesians now. Overreacting is better than underreacting, and policy makers seem committed to engaging in aggressive policy responses. The bad news is that this might not work or, more accurately, that it might not work well enough for a very long time.

Within the crisis, however, lie many opportunities and dangers. Outside of a crisis, it is virtually impossible to get people to support large-scale changes in the way things are done. This mostly comes down to the simple mechanics of political pressure: concentrated costs and dispersed benefits. There has to be a big enough crisis to focus people's attention, to get them to ignore the voices saying that "it ain't (too) broke, so don't fix it," and to say that the time has come to change something big to which we are accustomed but that has outlived its usefulness. For example, the Panic of 1908-09 led to the creation of a central bank in the U.S. -- the Federal Reserve system -- after decades of battles over the question of federal control of the financial system. (The residual opposition to having a central bank also explains why the system was given such an obscure name and a faux-decentralized structure.)

Unfortunately, policy making during a crisis is almost guaranteed to lead to mistakes large and small. The handling of the financial bailout by Secretary of the Treasury Paulson is becoming the poster child for this phenomenon. Congress had very good reason to try to prevent the collapse of the financial system, but they had to act fast and put a great deal of trust in the good faith and competence of the executive branch. Yikes.

Even without Paulsonian fecklessness, however, every policy intervention during a crisis is going to be flawed in some very important ways. My grandfather would regularly curse FDR and the New Deal, saying that the Civilian Conservation Corps was "a bunch of guys being paid to stand around leaning on shovels." When pushed, he would explain that he knew of many CCC projects that did not accomplish what they supposed to (or that it was never clear what they were supposed to accomplish in the first place). Even policies that are later seen as great successes overall, therefore, are generally not wart-free.

This raises a raft of interesting issues to think about during the current crisis. What are the ways in which we might make systemic changes in the way we do business that we could never imagine pushing through during normal times? What dangers come with such changes? What criticisms will inevitably be leveled even against the most promising changes? Starting on Thursday (Christmas Day, for those of you who take note of such things), I will inaugurate a series of occasional posts discussing some of the ways in which we might use the current crisis and its various sub-crises to think anew about the way we organize particular industries, social policies, government programs, etc.

First up: automobiles.

-- Posted by Neil H. Buchanan

Monday, December 22, 2008

Obama's Betrayal

Barack Obama has selected Rick Warren, a right-wing fundamentalist minister who opposes gay rights and has likened homosexuality to incest and pedophilia, to deliver the invocation at the presidential inauguration on January 20. The reaction to this appalling and stupid decision has been disturbingly muted. The New York Times ran a news story on the controversy on Saturday, but to this point the Times' editorial page has not seen fit to write anything about Obama's terrible decision nor to publish a guest op-ed on the subject. Even the liberal talk show hosts on MSNBC have had a difficult time finding guests who do not either (1) describe Warren as somehow "moderate" because he is not as awful as some others on the Religious Right, (2) defend Obama's decision as a wise effort to "reach out" to religious conservatives, and/or (3) dismiss calls for Obama to rescind the invitation as pointless and naive. While Obama has certainly shown his ability in the past to change his positions when the political winds change, therefore, there is no reason to believe at this point that what should be his first political crisis is even causing him mild discomfort. That is regrettable, because this should end the honeymoon before it begins.

The claim that Warren is somehow a moderate is based on setting the bar for moderation so low as to drain the concept of any meaning. He apparently believes that global warming is happening and is probably caused by humans, and he has taken a relatively humane position on HIV/AIDS. Great. This is certainly not what we have come to expect from the better-known fundamentalist ministers, but it is hardly a sign of being anywhere near the middle of the road. Another supposed bit of evidence that Warren is "reasonable": "[U]nlike many other evangelical pastors, Mr. Warren had not devoted as much time or effort in support of Proposition 8, a measure on the California ballot in November that amended the State Constitution to ban same-sex marriage." Of course, he did support Prop 8. Moreover, he will not allow gays (even gays who do not want to marry their partners) to join his church unless they "repent of their homosexual lifestyle." Finally, in an interview after Obama's announcement (excerpted in this clip) -- when he had reason to be especially careful with his words while speaking to the mainstream media -- he explained his opposition to homosexuality by claiming that wanting to have multiple sexual partners is a sign of immaturity and that people need to be willing to endure "delayed gratification." This is nothing more than the old insult of conflating being gay with being sexually insatiable and uncontrollable. In addition, this non-explanation ought, if taken seriously, to lead to his supporting those who would like to marry. Sadly, of course, it does not.

This is a terrible decision, but is it really a betrayal? Absolutely. We are not talking about inviting Warren to be one of the participants in some kind of presidential conference on religion or social issues designed to bring together diverse voices across the spectrum and to look for common ground. This is the religious invocation at the beginning of the celebration of the inauguration of the first African-American President of the United States, a position that puts Warren's face at the forefront of the proceedings. Obama's choice of Warren thus finds the new president celebrating one of the highest achievements of the civil rights movement by conferring a highly visible role on a man who is on the wrong side of the next great civil rights battle. It does so, moreover, in the immediate aftermath of the passage of Prop 8 in Warren's home state. Had that measure failed, one might imagine (though I still would not support) giving someone like Warren a small role in the inaugural festivities on the theory that one should be gracious in victory. It did not fail, however, and it is hardly enough that Warren did not support Prop 8 quite as much as some of his colleagues did.

The most obvious parallels to Obama's betrayal are the don't-ask-don't-tell policy to which Bill Clinton agreed early in his presidency and Clinton's signing of the Defense of Marriage Act (DOMA) a few years later. In each of those cases, however, there were at least some defensible strategic excuses for Clinton's actions. With don't-ask-don't-tell, Clinton was facing a mutiny from conservative Democrats, and he (tragically but characteristically) chose not to fight that fight. It should be obvious that no one (and certainly no one in his party) was going to jump ship if Obama did not award the invocation slot at the inauguration to Warren. Obama dropped this bomb without any public pressure at all on him to do so. With DOMA, Clinton made a terrible decision to sign intolerance into law while he was running for re-election. He did so in the face of a highly energized new Republican majority in Congress, and he cynically calculated that he would rather not fight for gay rights and possibly lose both that fight and his own re-election. Again, his decision was wrong, but the contrast with Obama's decision here is stark.

Maybe there is some solace in the fact that there is no policy decision at stake here, that this is entirely symbolic and can be quickly forgotten. It is precisely because it is symbolic, however, that this matters so much. Faced with choices on how to set the tone for his administration and what many had expected to be a definitive break from the intolerance of the Bush years and the rank opportunism of the Clinton years, Obama has chosen to open the festivities by giving over the stage to an agent of intolerance. Compared to the many disappointments for which Obama was already getting so much slack -- his many uninspired choices for his cabinet, to say nothing of his support for the new surveillance bill during the campaign -- this is, as I stated above, stupid and appalling.

It is possible that Obama has made this decision in the affirmative hope that he will score political points by betraying part of his base. Maybe being "transformative" and "post-partisan" really is the same thing as Clintonian triangulation and the cynical politics of taking one's strongest supporters for granted. If, as part of some larger political strategy, he actually wanted to enrage people who never imagined that he could be this cynical, one can only say: Mission accomplished.

-- Posted by Neil H. Buchanan

Sunday, December 21, 2008

Buchanan on Law/Happy Festivus

For the whole of this coming week and part of the next, I'll be taking a vacation from blogging. During that time, Neil Buchanan (and perhaps one or more of the other Dorf on Law bloggers) will be posting daily. Happy holidays (by which of course I mean to include Yule, Bodhi Day, Makar Sankranti, Maidyarem as per the Fasli calendar, Al-Hijira, Hanukah, Kwanzaa, Saturnalia, Festivus, and whatever other holidays people might happen to celebrate).

Posted by Mike Dorf

Friday, December 19, 2008

Accountability of Government Lawyers

As noted in a NY Times editorial yesterday, the Senate Armed Services Committee report on detainee treatment during the Bush administration (executive summary here) provides a clear basis for criminal prosecution of the high-ranking government officials responsible for the policy. Here I'll quote just the final of the 19 conclusions the report draws:
The abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Interrogation techniques such as stripping detainees of their clothes, placing them in stress positions, and using military working dogs to intimidate them appeared in Iraq only after they had been approved for use in Afghanistan and at GTMO. Secretary of Defense Donald Rumsfeld’s December 2, 2002 authorization of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressures and degradation were appropriate treatment for detainees in U.S. military custody. What followed was an erosion in standards dictating that detainees be treated humanely.
Charles Graner is serving a 10-year prison term for not simply acting on his own. Lynndie England was recently paroled after serving her 3-year sentence for not simply acting on her own. Will the people who devised the policy that Graner, Lynndie and others carried out face any charges?

The NY Times editors think not, and take the occasion to criticize President-elect Obama: "Given his other problems — and how far he has moved from the powerful stands he took on these issues early in the campaign — we do not hold out real hope that Barack Obama, as president, will take [the] politically fraught step" of appointing a prosecutor to go after Rumsfeld, Addington, etc. Ouch!

Is Obama's presumed reluctance to take aggressive legal measures against the current and former officials responsible for detainee mistreatment simply a cold political calculation? With respect to the actual drivers of the policy, it would seem so. Ordering torture and other forms of illegal detainee abuse is no different, as a legal matter, from committing torture. Indeed, it is probably worse, because the big fish who gives the orders can harm many more people than the retail-level operator. As Don Henley put it, "A man with a briefcase can steal millions more than any man with a gun." The same principle applies here.

But what about those who simply "went along?" I have in mind in particular Justice Department (and other administration) lawyers who were asked for memos establishing the legality of "coercive interrogation techniques" and dutifully complied. Let's put aside John Yoo. The Armed Services Committee report does not take a position on whether Yoo was simply implementing policy devised by those senior to him or, as indicated in other accounts, such as Jane Mayer's The Dark Side, was one of a small number of people driving the policy. Whatever Yoo's exact role, certainly he had help from other lawyers who were not in a position to decide the policy. In the hypothetical world in which there actually were real accountability, should they be prosecuted for badly shading their legal analysis so as to authorize what nearly all competent lawyers acting in good faith would deem illegal.

Here's how I characterized the Bybee/Yoo torture memo in January 2005: "In content and tone, the memo reads much like a document that an overzealous young associate in a law firm would prepare in response to a partner's request for whatever arguments can be concocted to enable the firm's client to avoid criminal liability." So, what about the lawyers below Yoo and Bybee who worked on that memo (and others)? Should they be criminally prosecuted for what might be characterized as legal malpractice?

As a lawyer, my initial reaction would be no. Anyone who has ever done legal work for a client knows the pressures to start seeing the law so as to favor the client's interest. That pressure is only heightened when the client is the United States and the underlying case is a war against terrorists. So it would appear unfair to go after the lawyers who merely didn't try to stop the detainee policy.

And yet, that cannot be the right answer, for we hold members of the armed services accountable for carrying out policies they do not design, where those policies are manifestly unlawful. "Just following orders" is no more an excuse for lawyers than for soldiers, sailors or marines. Indeed, it is less of one, because lawyers have the training to know better and because they are under less pressure. An OLC lawyer who stood up to her boss and refused to whitewash torture risked firing and potential blackballing, admittedly harsh consequences; but a soldier who refuses to carry out an order (to attack civilians, say) risks court-martial (if she is wrong about the order's legality) or death at the hands of her commander (if she is right).

I share the view of the Times editorialists that no one is likely to be prosecuted for detainee abuse. Still, careful analysis of the legal liability that could and should attach suggests that lawyers need frequent reminders that our duties to clients (including government clients) are bounded by our duties to the law.

Posted by Mike Dorf

Thursday, December 18, 2008

Blowback and the (Reasonably) Good Guys

In two recent posts (here and here), I have noted that the Bush Administration's policies regarding torture and the treatment of prisoners suspected of terrorist activity (especially in Guantanamo Bay and Abu Ghraib, but extending also to rendition programs and hidden CIA prisons) have led to a loss of U.S. stature in the world. This loss of stature has the effects both of making it more difficult for the U.S. to gain the cooperation of other nations and of actually increasing the deaths of American soldiers (because our policies perversely encourage people to join anti-American groups that attack and kill our troops based in Iraq). I thus concluded that Bush's misguided policies did not merely prevent Americans from feeling good about ourselves in some abstract sense but affirmatively harmed us in tangible ways. It is important, I argued, for us to become "the good guys" once again.

Earlier this week, in "Blowback," Mike offered a very sobering set of observations in reply to my posts. Referring to Stephen Kinzer's book Overthrow: America's Century of Regime Change from Hawaii to Iraq, Mike pointed out that the long, sordid history of U.S. intervention around the world hardly leaves room for us to imagine a lost age of innocence before Bush when we were ever truly the good guys. Installing the dictatorship of the Shah in Iran, overthrowing Allende in Chile, supporting the contras in Nicaragua, etc., etc., hardly make for a list of proud achievements to which Americans can point as proof that we have unerringly been on the side of good. To this list of foreign policy malfeasance I would add such domestic atrocities as our treatment of the American Indians (perhaps most memorably the "Trail of Tears") and, of course, the long history of slavery and its aftermath. (Other examples abound, including the internment of Japanese American citizens during WWII.)

While Mike notes graciously that "
Neil is not entirely wrong in characterizing the U.S. as the good guys," I find it interesting that, even though I am fully aware of this shameful history of the U.S.'s malevolent actions both domestically and abroad, I felt (and to some degree still feel) comfortable describing America in the years before Bush as the good guys. Not only did I feel comfortable saying so with a straight face, moreover, I did so without even consciously thinking about all of the evidence to the contrary. The act of compartmentalizing our bad acts is thus, at least for me, pre-cognitive. What explains this -- other than the obvious possibility that I am simply an America-love-it-or-leave-it stooge, a Frank Burns of the law school set?

Part of the answer is, as Mike points out, that we are relatively better than authoritarian states in the way we handle our foreign ventures. We (no longer) countenance genocide, and we now pay serious attention to reducing (but obviously not eliminating) civilian deaths. Carpet bombing, for example, is not something that we have practiced recently. Even so, this remains true at the end of the Bush regime. That is, while Bush's policies are worse than the policies in place immediately prior to Bush's presidency, his policies also do not constitute genocide or the toleration of hundreds of thousands of deaths as "collateral damage." Even Bush's acts of omission, particularly with respect to Darfur, are hardly a major change from Clinton's failure to act in Rwanda.

If it were possible to quantify the "degree of horribleness," if you will, we might describe pre-Bush policies and Bush's policies as being within a multiple or so of each other (perhaps less), whereas the difference between recent policies and our worst acts of the past is arguably a matter of orders of magnitude. There are many parallels between Vietnam and Iraq, but thankfully the body count (of both soldiers and civilians) is not close even on an annualized basis. The steps backward since 2001 have been important, but they thankfully have not wiped out the progress that we have made in recent decades.

There have always been countries and peoples who can point to very plausible reasons for their hatred of the U.S. We have never been the good guys to everyone, and maybe not even to most people. It is probably impossible for any country to achieve such a status. Even so, it was possible before Bush to look at the positives of our history and the upward trajectory that it represents with some measure of pride, even taking into account the negatives and vowing never to let them happen again. Not reverting to being as terrible as we once were is a good thing, but it is not a defense for Bush's policies. His policies have harmed our interests, our soldiers, and many innocent people around the world. Whether we were ever good guys, we can certainly be better than this.

-- Posted by Neil H. Buchanan

Wednesday, December 17, 2008

Filling Senate Vacancies

The unusual election of two sitting Senators to fill the positions of President and Vice President, combined with the nomination of two more sitting Senators (Clinton and Salazar) for Cabinet positions, leaves Governors in Illinois, Delaware, New York, and Colorado in the position of picking interim replacements. We came very close to a fifth. Had Ted Stevens won re-election and been expelled by his fellow Senators, Alaska would also be on the list.

Thus we come to the Seventeenth Amendment, which provides for direct election of Senators. (The original Constitution gave state legislatures the power to choose their Senators.) The Amendment also provides:
When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This, in my view, is an unfortunate provision, and not only because, but for Patrick Fitzgerald, it would have empowered Rod Blagojevich to fill Barack Obama's former seat. Giving the Governor the power of interim appointment can seriously frustrate the will of the voters, especially when the Senator who resigns or dies in office belongs to a different party from the Governor.

Would it not be better, in cases of resignation but not death or mental incapacity, to vest the power of interim appointment in the resigning Senator herself or himself? Who better to pick a replacement to carry out the work as the People would have wanted than the person they chose? The problem here, of course, is that while Senators sometimes resign to take even loftier positions in the Executive branch, a fairly common reason for resignation is scandal.

Another possibility might be to let the state legislature itself pick an interim Senator. Because the main point of the Seventeenth Amendment was to displace the system of state legislative selection of Senators, however, its drafters did not give serious consideration to this possibility. (Even under the original provision of Article I, Governors could pick interim Senators while the state legislature was out of session.) Still, state legislative selection would run the risk of frustrating party expectations, just as gubernatorial selection does.

Here I want to suggest a way to circumvent all of these problems: State legislatures should simply disempower Governors of their respective states to make interim appointments, while special elections should be held to fill Senate vacancies within a couple of months of their occurrence. This process would mean that there would be no incumbent, which in a way is only fair. The benefits of incumbency ought to go only to Senators who have actually earned their incumbency. Of course, the somewhat greater likelihood of party turnover that would arise from eliminating incumbency might in turn lead to fewer Senators resigning their seats to fill other offices. I reserve judgment as to whether that effect would be desirable or not.

Posted by Mike Dorf

Tuesday, December 16, 2008

Pragmatism and the Reciprocity of Means and Ends

Pragmatism is the one distinctively American contribution to philosophy (think Charles Sanders Peirce, William James, John Dewey, and more recently Richard Rorty and perhaps Hilary Putnam), but because the word "pragmatic" has both a technical/philosophical and a colloquial sense, the declaration that someone is a "pragmatist" is often more confusing than illuminating.

In law, for example, the Ur-Pragmatist was certainly Oliver Wendell Holmes, Jr., who was in fact part of the "Metaphysical Club" with the philosophical pragmatists. Yet our leading contemporary legal pragmatist, Richard Posner, sometimes invokes Holmes as an exemplar of the more prosaic notion of pragmatism as simply a rejection of core principles in favor of "muddling through" (in Charles Lindblom's phrase). That also appears to be the notion of pragmatism favored by Justice Stephen Breyer. Both espouse pragmatism as a kind of post-ideological moderation. And of course, the pragmatist du jour is the President-elect, who has been described as "ruthlessly pragmatic."

Here I won't attempt a full-scale exegesis of the points of overlap and discontinuity between philosophical pragmatism and prosaic pragmatism. Instead, I want to briefly respond, on behalf of both sorts of pragmatists, to a very common but in my view quite mistaken criticism. Pragmatists (of both the philosophical and prosaic sort) often say that they simply want to find out "what works," and do that. Anti-pragmatists then say something like this: Figuring out what works is fine when there are shared goals, but many of our most pressing issues, and certainly our politics, involve questions about what the goals should be; pragmatism is a good way to choose means to agreed ends but has nothing to say about choosing ends.

The mistake in the anti-pragmatist view is its assumption that human beings can have fixed ends except in the most abstract and thus unhelpful way. First I'll give a homey example (literally). Earlier this year, my partner and I were trying to decide where in Ithaca to live. We drew up a list of criteria: good elementary school district; walking distance to either elementary school or Cornell campus; modern plumbing and appliances; etc. We soon discovered that there was no place to live that met all of our requirements. So, like anybody would under the circumstances, we re-evaluated our goals. We would have to have a car to go shopping anyway and for half the year I could ride my bike, so maybe it wasn't crucial to live within walking distance of Cornell; the school district that had the best test scores used methods that we had seen turning one of our daughters off to homework in her previous school, so perhaps we should consider an alternative school; etc. As we found ourselves frustrated in the pursuit of our original goals, we realized that we needed to change our goals, so we did.

This is a universal phenomenon. You set a goal: To find the best Chinese restaurant near the movie theater. You locate it, but then you discover that they don't take reservations and can have long waits for tables. Maybe then you decide that you don't really want to see the movie so much after all and instead want to go to this great restaurant. Or you really do want to see the movie and realize that you'll probably eat so much popcorn there that you'll only want a salad afterwards, so you can go to a different place, that does take reservations, or isn't crowded. As you pursue an end, the means available cause you to re-evaluate that end continually.

The fancy way to put this point is that ends and means are reciprocal. If there are not good means of achieving your ends, you change your ends. And not just on trivial stuff like where to eat or on medium-level stuff like where to live, but on the most important decisions in your life like what career to pursue. You thought that getting a law degree would be a good way to give you credibility in negotiating contracts in the music business, but in law school you discover that you have a passion for criminal defense work, so you completely change your career plan. Or you start dating someone in law school who is on a student visa, and so you move to Thailand where, because of the different legal system, you're unable to practice law, so you go into business with your new father-in-law. As means unfold, ends change, often radically.

Here the anti-pragmatist objects that such adjustments are fine for an individual but that in the world of politics one is trading off the welfare of some for the welfare of others. But this is either just wrong or irrelevant. The problems real politics addresses are almost invariably very complex. As a result, pursuing any objective stated at even a medium level of abstraction--like "improving high school graduation rates"--will lead to unexpected obstacles and learning that, in turn, will lead back to re-evaluation of the goals.

What we discover is that the sorts of ends that remain fixed typically fall into one of two categories. First, some ends are fixed in a given time and place because they are not salient. Thus, "not enslaving people" is a fixed end of our domestic politics today but only because it doesn't take any effort to achieve this end. Second, some ends are fixed only because they are stated at such a high level of abstraction as to provide no guidance. "Respect individual rights" or "promote human flourishing" are examples.

Perhaps the anti-pragmatist means only that goals such as these irrelevancies and bromides must be fixed for pragmatism to get off the ground. If so, we pragmatists can concede the point without conceding anything of importance. Figuring out "what works" will still play a very substantial role in defining our ends at a level of generality that is more useful. That, at any rate, is what I mean by pragmatism.

Posted by Mike Dorf

Monday, December 15, 2008

Bla(g) Bla(go) Bla(o)

My latest FindLaw column argues that Rod Blagojevich differs in (substantial) degree but not in kind from other American politicians. My core claim is not that everyone is at least a bit corrupt but that what makes corruption of the Blagojevich variety objectionable is present to varying degrees in ordinary lawful politics.

Here I'll briefly address the efforts to tie the incoming Obama Administration to the sins of Blagojevich. There are the silly claims: They're both from Illinois! And then there are the
superficially plausible claims: If Obama's people have nothing to hide, why did they have to change their answers about who spoke to Blagojevich when? And aren't Rahm Emanuel's conversations with Blagojevich aides inherently illicit?

I have no inside information and so I acknowledge it's theoretically possible that a conversation like the following took place:
Emanuel: We'd like you to name CANDIDATE X to the seat.

Blagojevich: Well, a Senate seat is a fucking valuable thing. You
don't just give it away for nothing.

Emanuel: What's your price?

Blagojevich: Make me either Secretary of Energy or Ambassador to
Switzerland. And use your influence to get my wife some well-paying
foundation job.

Emanuel: Done! You give us the quid and we'll give you the quo.
But what are the odds? It seems much more likely that Emanuel, in discussing possible candidates to fill the Illinois seat, didn't realize that he was dealing with a psychopath, and so thought it not at all improper to make suggestions---because, frankly, when dealing with a normal governor, that would be completely fine. If we learned that Hillary Clinton had a conversation with David Paterson in which she suggested a name for her vacated seat, no one would bat an eyelash. Indeed, even if Emanuel had an inkling that Blagojevich was unhinged, it still wouldn't have been improper to suggest names, so long as he didn't agree (expressly or tacitly) to a quid pro quo.

Indeed, as I argue in the column, arrangements that come pretty close to a quid pro quo are quite routine.

Posted by Mike Dorf

Technical Difficulties

Dreamhost, which hosts Dorf on Law, has been having major technical difficulties for the last 24 hours. It now appears that my site has returned, but is VERY slow. I'll post something more substantive when it's working more reliably. Apologies.

Meanwhile, check out my latest FindLaw column.

Posted by Mike Dorf

Saturday, December 13, 2008

Seen Milk?

Under a fairly conventional narrative, conservative Christian political activism emerged in response to Roe v. Wade, and only in recent years turned attention to opposing gay rights, especially same-sex marriage. This narrative is sometimes combined with a normative claim that the Supreme Court erred in Roe, and that but for Roe, our political system would long ago have reached a stable compromise on abortion.

Anybody who believes this narrative should see the film Milk, which portrays the political career of the late Harvey Milk, the first openly gay elected official in America. (Actually, everybody should see Milk, which is a terrific film for which Sean Penn will likely win a Best Actor Oscar.) For anyone too young to remember, the film shows how, by the mid-1970s, religious conservatives were fully engaged in opposing gay rights, opposing local anti-discrimination laws and seeking laws that would dismiss gay and lesbian teachers from their jobs.

It's worth noting that the legal developments that Anita Bryant and other religious conservatives opposed in the 1970s were political developments, not the products of judicial decisions. They sought to overturn liberal measures adopted by local governments. This suggests that people who warn against courts moving too fast to recognize same-sex marriage rights (or other rights) are naive. Religious conservatives who oppose liberalization of laws regarding homosexuality, abortion and other social issues will be galvanized into reaction by any change, regardless of whether it comes from the courts or through the democratic process. That fact is not itself a reason for courts to act, but it does suggest that concerns about backlash inspired by courts as such are overblown.

Posted by Mike Dorf

Friday, December 12, 2008


In a post here 11 days ago, Neil Buchanan looked forward to the Obama Inauguration as an opportunity for the U.S. to "become the good guys again." There and in a follow-up, Neil explained how the Bush Administration policies on detention and treatment of prisoners at Gitmo and in Iraq have been counter-productive, providing motivation and recruits for radical Islamists. I don't disagree with the assessment but I do want to raise a question about the notion that we used to be the good guys.

I've just finished reading Stephen Kinzer's book Overthrow: America's Century of Regime Change from Hawaii to Iraq. The book makes clear that George W. Bush hardly invented the idea of using force to displace foreign regimes deemed insufficiently friendly to American interests. Here are a few of Kinzer's key points:

1) Prior to the 1890s, the expansion of the U.S. was a process that occurred within the North American continent and many Americans thought that as a democracy, the U.S. should not collect overseas colonies. That attitude changed rapidly in the period surrounding the Spanish-American War. Today--in the post-WW II post-colonial era--Americans again don't believe we should have colonies (with an asterisk for Puerto Rico), but the idea that the U.S. can and should use force to defend its interests abroad is widely accepted by Americans.

2) Even so, and even during the period during which the U.S. was acquiring colonies or installing friendly dictators in place of regimes seen as hostile, Americans do not like to hear that we are acting out of less-than-altruistic motives. Thus, interventions that were ultimately about protecting British access to oil or American fruit companies were justified as protecting the populations of the countries in question from communists--even when the displaced leaders were either not communists or, if left-leaning, not in the orbit of Moscow.

3) Blowback from regime change has a long tail. The best example is probably the American-engineered coup that displaced Iran's democratically elected and generally liberal PM Mohammed Mosaddeq with the dicatorship of the Shah. As Kinzer tells the story, the Shah's repression meant that the only outlet for opponents of the regime was via the mosques, so that when the Iranian Revolution came, it created a lethal combination of anti-Americanism and Islamic fundamentalism. It's entirely plausible that but for the 1953 coup, we would not now be in Iraq, because there would have been no Iranian Revolution in 1979 and no Iran-Iraq War. From there, who knows how Middle Eastern events would have unfolded, but there is a very good chance that Iran today would be an ally rather than a foe. (I'll leave for another day discussion of the blowback from our support for the Islamists fighting the Soviets in Afghanistan in the same period.)

Kinzer makes other points as well, but here I'll add one of my own. The problem of empire we now face is nearly two and a half millenia old, and it is this: Can a democracy still uphold its values when it becomes an empire? Thucydides thought not. He saw that Athens treated its subject states no better than its rivals treated theirs.

But Thucydides was probably unduly pessimistic. Neil is not entirely wrong in characterizing the U.S. as the good guys. Nations that acquire empires abroad must do some nasty things but democracies that value rights at home may do fewer and less severe nasty things than regimes that are out-and-out tyrannies. The empire built by George W. Bush was and is corrupt, incompetent and brutal, but it was not and is not genocidal.

Even if we can assume that President Obama will not embark on any new regime changing adventures, we will still be left with the question that Thucydides asked with respect to our ongoing projects, including Afghanistan, where we are about to increase our troop strength. A more honest, more competent, and less brutal approach to empire is welcome. The abandonment of imperial aspirations (even benign ones) would be better still.

Posted by Mike Dorf

Thursday, December 11, 2008

"What Do We Have to Do to Put You in a New Car Today?"

In the midst of the unrelenting negative news about the auto industry, I have to admit that one piece of the story has put a bit of a smile on my face. As the auto manufacturers shrink and look for ways to cut costs, local car dealers are on the chopping block. I would be amazed if I am the only person who is enjoying this moment of schadenfreude, because car salesmen are typically held in even lower public esteem than mob bosses, mimes, or lawyers.

The sleazy tactics employed by auto dealerships are the stuff of legend and extensive legislation. Among many other tricks, these include putting customers in an office that is monitored by closed-circuit television to watch a husband and wife discuss their highest acceptable price, turning up the heat in the offices, and physically blocking the door as an angry and frustrated customer tries to leave. The movie "Fargo" includes a memorably cringe-inducing sequence with a car dealer running through his manipulative bag of tricks with a customer, feigning shock at the suggestion that he has been dishonest and agreeing to go "talk to my manager" to see if he can authorize a better deal. (Of course, the salesman simply goes into the lounge for a few minutes and watches a hockey game on TV.)

Many -- but certainly not all -- of these tactics are now illegal in most states. I say "many ... tactics" and "most states" because car dealers have a great deal of local political power, using their ill-gotten profits to protect their local empires by "influencing" legislation that might affect their businesses. This is one of the best examples of a concentrated interest group harming the public good in the name of its own illegitimate enrichment. Perhaps the best outcome from the current crisis could be the realization that there is no good reason for this business model to exist at all. People should be able to buy cars the same way they buy other items. The recent move toward no-dicker dealerships and internet sales is good to see, but traditional dealerships continue to exist for no good reason other than raw political influence. It will be a big step forward if we can send Joe the Car Salesman into his place in the dank basement of a cultural history museum.

-- Posted by Neil H. Buchanan

Wednesday, December 10, 2008

Non-negotiable Obligations

In my column on FindLaw this week, I take up the question whether composing student term papers for purchase is either legitimate or constitutionally protected speech. The topic came to my attention when I heard a radio interview with a former term-paper ghostwriter of this sort and read an article by him (in which he describes and rationalizes his behavior). It will probably surprise no one that I reject the claim that writing term-papers for hire is either legitimate or protected by the First Amendment. In this post, I want to consider the more general topic of negotiable and non-negotiable debts.

What I would call negotiable debts are those obligations that we may delegate to someone else for payment on our behalf. Many (though not all) financial debts work this way. If, for example, I cannot afford to pay my rent this month but my brother can and -- more importantly -- is willing to pay it (in exchange for my undying gratitude or a few home-cooked meals), there is nothing wrong with his sending my landlord a check for my rent this month. Similarly, if I see a DVD at the video store that I desperately want to watch, it is perfectly legitimate for my mother to purchase it for me.

Non-negotiable debts include such things as apologies, appearances at a child's dance recital, and term papers. If I hurt my sister's feelings, for example, by saying that she was probably not qualified for the promotion that she just received, it would not be acceptable for my next-door neighbor to take money from me in exchange for his expressing his regret for what I said to my sister. Similarly, if neighbor called my sister on the telephone and pretended to be me, apologizing for hurting my sister's feelings, my sister would likely be very upset upon learning the truth, and she would almost certainly believe that I still owed her an apology (and perhaps two apologies now). Sending my colleague to attend my daughter's dance recital in my stead would likewise fail to satisfy anyone's idea of an attentive parent. And finally, a student's paying someone else to write his term paper for him would not legitimately fulfill the requirements of any course.

What unites the second, non-negotiable, set of obligations is that each has personal significance and thus loses its interpersonal value when the person involved changes. That is, an apology is a relational act by which the offending party expresses sincere remorse for harmful or offensive conduct toward the injured party. If the offending party absents herself from the transaction, then the relationship between her and the injured party is necessarily not repaired by the third party's apology or expressions of regret. Attending a child's performance represents an act of celebration of and delighting in the child's accomplishments; sending a colleague to attend the recital instead represents neither of the above. And paying a third party to write a paper deliberately evades the behavior -- the preparation and writing of the paper -- that is truly the requirement of the course, of which the finished product is, to some degree, merely evidence. That is, the professor has actually required the student to do the work of the paper production, and the finished product (assuming it is not publication-worthy) provides a means for the professor to evaluate whether and how well the process was completed. With apologies, attendances at recitals, and term papers, one might say that the process rather than the end product is what counts, and one cannot legitimately delegate the process of remorse, celebration, or reading and writing.

It is with this dichotomy in mind that I pondered an article -- the cover story -- that appeared in the New York Times magazine two Sundays ago. The article was about a woman who had experienced heartache and frustration in her attempts at procreation and finally decided to hire a gestational surrogate to become pregnant with and give birth to the genetic child of the writer and her husband. Many readers wrote angry and critical responses to the article, suggesting that it ignored the class-difference component of the surrogacy arrangement and that the surrogate was in fact a "servant" for the wealthy and privileged woman who could go about her life while another person carried her baby.

I found these reactions, as reported by Times Public Editor, Clark Hoyt, interesting and somewhat perplexing. Whenever one person asks another person to do something difficult for pay, the odds are that the buyer is either wealthier than the seller or the seller has a special talent that the buyer lacks. In the case of surrogacy, both of these are typically the case. The Times writer who hired the surrogate was both wealthier than the surrogate and lacked the ability (which the surrogate had) to gestate a pregnancy successfully to term. I suspect that critics would not have been (as) offended if the writer had hired a person to clean her house or to babysit for her child, even though in such cases, the class difference would have been even more decisive, because the talent difference would not be a factor. So why the anger?

To my mind, the anger results from the (contested but probably dominant) view that biological motherhood must not be delegated to another person, that it is -- in other words -- one of those non-negotiable items like apologies and term papers. To call a person a "servant" rather than an "employee" is to imply that the person is performing a service that everyone should perform for himself or herself (or not at all). As Professor Radin at Stanford has suggested, then, giving birth to a child is not something that should be commodified (in the same way as kidneys and livers should not be commodified). Interestingly, far fewer people seem to have this intuition about sperm donation (or about the fact that whenever a couple has a biological child in the ordinary fashion, the woman is in some ways acting as a gestational surrogate for the man, though not for a financial payoff).

There is thus a built-in unfairness in calling a man a biological "father" when he contributes genetically and allows his wife or girlfriend to carry the pregnancy while simultaneously calling the woman who delegates gestation to a surrogate exploitative and, implicitly, an inadequate biological mother. One additional unfairness we might note is the fact that just as one might view the distribution of financial resources as arbitrary or unfair (in favoring the writer over the surrogate, in the Times story), one perhaps should not take the distribution of capacities as given. In other words, we might view the writer's inability to have a baby through pregnancy, despite her many attempts, as part of the unfairness of life, a part that might be remedied -- if imperfectly -- by permitting a woman with fewer financial resources to trade her own (unfairly bestowed) endowment for her employer's, especially if the end result is two women who feel at peace with their exchange.

By Sherry F. Colb

Tuesday, December 09, 2008

Clarence Thomas Versus Barack Obama -- Not

The blogosphere and much of the professional media as well have been reporting that Justice Clarence Thomas referred the case seeking to have President-elect Obama disqualified to the full Supreme Court out of spite or pique. I suppose it's theoretically possible that is true, but there does not appear to be any actual evidence for this view. In fact, the record is quite to the contrary.

As required, the petition for a stay of judgment pending the filing of a certiorari petition in Donofrio v. Wells was originally filed with the Third Circuit Justice, i.e., Justice Souter. He denied the stay. Then, as permitted by Supreme Court Rule 22 (full rules here), the petitioner himself got to pick which Justice to ask for a second opinion. According to the docket sheet, Donofrio chose Justice Thomas. Justice Thomas at that point had three options: 1) He could grant the stay; 2) he could deny the stay; or 3) he could refer the stay application to the full Court. He chose option 3.

"Aha!" say the conspiracy theorists. This shows that Justice Thomas is in league with the likes of Alan Keyes and others on the far right who are trying to deny President-elect Obama the fruits of his victory. In this view, by choosing option 3 over option 2, Thomas manifested his disdain for Obama.


Supreme Court Rule 22 allows a petitioner to take a shot at a second Justice and then Rule 23 gives him a shot at the full Court. If Justice Thomas had chosen simply to deny the stay (option 2), Donofrio likely would have returned with a stay application to the full Court. (28 U.S.C. sec. 2101(f) appears to authorize only an individual Justice--and not the full Court--to grant a stay in such a case, but the All Writs Act, 28 U.S.C. sec. 1651, would allow the full Court to grant a stay in the truly extraordinary case where two Justices first turned the application down erroneously.) By referring the matter to the full Court himself, Justice Thomas got the case finally denied more swiftly than if he had simply denied the stay himself. There is simply no reason to think that Justice Thomas was hoping the full Court would grant the case, as he neither voted to grant the stay himself (option 1) nor wrote a dissent from the full Court's denial of the stay application.

Perhaps the journalists and bloggers touting the Clarence-Thomas-is-out-to-get-Barack-Obama story have inside information they're not revealing, but I very much doubt that. Bottom Line: This is a non-event.

Posted by Mike Dorf

Monday, December 08, 2008

The Trial of the Century of the Month

If tragedy repeats as farce, how does farce repeat? It's hard to imagine anyone other than the defendant himself getting very excited about the sentence in the latest O.J. Simpson case. But it's also easy to forget just how obsessed the country became with his murder trial. Whole law school courses (in evidence, criminal law, criminal procedure, etc) were taught using the Simpson case as raw material. And of course, the larger culture embraced the Simpson trial for what it said about celebrity, race, domestic violence, and a host of other subjects. I vividly recall complete strangers asking me what I thought about OJ (or as a woman who worked at a dry cleaner I frequented at the time inexplicably referred to him, "Big Bird").

Looking back, it's also hard not to run together the media circus surrounding the Simpson case and the Monica Lewinsky affair. One completely appropriate frame in which to view the mid to late 90s is distraction: As serious enemies of the United States gathered strength and as the basis for our economy unraveled, Americans took a long vacation. In this narrative, 9/11 snapped us back into reality, although the balance of the Bush years replaced the distraction of scandal with the distraction of fear.

Here's another way to frame Simpson Then and Simpson Now: The first Simpson case was instrumental in the creation of the phenomenon of cable news. OJ didn't exactly create Greta Van Susteren (and other talking heads), but he did greatly increase their time in front of the camera. And though Van Susteren (and no doubt others) are already picking over the carcass of Simpson 2, this sequel is about as compelling as would be, say, a reunion show of Frazier---a revival of a spinoff.

Following the media narrative, then, we might point to the rise of the internet---and to the fact that cable news has practically become a parody of itself (so much so that the best parody of the genre is the most realistic)---as reason to think that the farce of OJ 2 is simply a marker for the decline of all tv news. There is something to that view, no doubt, but I would also argue that some of the tendency towards hysteria of our online culture owes to the fact that it was born and nurtured in the shadow of cable news. In that sense, the OJ-obsessed culture is the gift that keeps giving.

Posted by Mike Dorf

Pirates and Negotiations

It's easy to see why an individual, organization or nation would both want to establish a firm policy of not negotiating with pirates, hostage takers and the like, and, in any given crisis, would want to pay the ransom. The policy removes the incentive for future acts of piracy, hostage taking, etc., while once one's own family members, fellow citizens, or even super tanker is being held, it's hard to avoid doing what it takes to get them back.

But suppose that paying the "ransom" is actually in the long-term interest of the victim. To be concrete, let's assume the following:

1) It is in the long-term interest of India to relinquish sovereignty and control over Kashmir;

2) A substantial fraction of the people who are now interested in committing terrorist acts against the civilian population of India would lose their motivation (either abandoning terrorism altogether or directing their actions at non-Indian targets) if India were to relinquish Kashmir;


3) For India to relinquish Kashmir, either unilaterally or as a result of a negotiated settlement with Pakistan, would be seen as capitulating to terrorists.

Under these circumstances, it is understandable for India to dig in its heels precisely to avoid rewarding terrorism.

Nonetheless, one suspects that if 1 and 2 hold, then the rational thing for India to do is pursue its own interest, even if that happens to coincide with what some terrorists want. But that is only because, as I've set up the assumptions, there are no further demands made on India after it lets go of Kashmir.

Suppose now that we substitute Israel for India and the West Bank and Gaza for Kashmir. Here too, there are undoubtedly Palestinians currently willing to attack Israelis who would make their peace with an Israel that recognized a Palestinian state on the West Bank and Gaza. However, some substantial number of radical Palestinians would not, and so the possibility of rational intransigence for Israelis arises: Even if it is in the interest of Israel to relinquish the West Bank and Gaza, doing so under fire could be seen to reward armed attacks and thus encourage further attacks by those who object to the entire State of Israel, not merely to the occupation of the West Bank and Gaza.

Thus, the logic of refusing to give in to pirates, hostage-takers, terrorists, and so forth can lead not only to extreme short-term sacrifices (of the refusal to pay ransom sort) but also to sacrifices of long-term interests.

Posted by Mike Dorf

Saturday, December 06, 2008

Party Like It's 1893?

Two or three weeks ago I might have said we are all Keynesians now. But recently some conservatives have begun to express concern about too much government spending via stimulus and other measures. (This was apparently a somewhat effective point used by Saxby Chambliss in the Georgia runoff.) One talking point is that the New Deal did not in fact end the Great Depression. This is, strictly speaking, true, but it undermines rather than supports the opposition to massive government spending. Roosevelt's efforts to balance the budget created another dip in 1937, and it wasn't until the truly massive stimulus of WWII that the economy turned around.

Here's my prediction: In the relatively near future, fiscal conservatives will talk less about the Great Depression and start talking about the near-great depressions that preceded it. In 1893, for example, following over-expansion in railroads, banks collapsed, consumer confidence plummeted, foreigners withdrew capital, and the economy shrank. President Cleveland did not respond with Keynesian stimulus, however. (John Maynard Keynes was 10 years old at the time.) Yet, after about 4 years of severe economic distress, the economy recovered anyway.

What Keynes showed was that economic activity can reach an equilibrium far below healthy capacity, but what the pre-1930s depressions arguably show is that the economy can bounce off of that equilibrium even without Keynesian stimulus. The key here is "arguably" and the key question is "how fast?". Even if economic recovery can eventually occur without government spending as stimulus, the latter should be able to accelerate it. Nonetheless, in the coming weeks and months, look for fiscal conservatives to start pointing to earlier depressions (while continuing to mischaracterize the 1930s) as reasons to oppose the stimulus.

Posted by Mike Dorf