Wednesday, March 31, 2010

A Comparison of Veganism and Religion

Posted by Sherry F. Colb

In my column for this week, I discuss the case of a prisoner, Paul Cortez, who has been unsuccessful in his efforts to persuade prison authorities to supply him with vegan food in prison.  About a year ago, Cortez became a vegan when he came to see the consumption of animal products (accurately) as participation in unjustified violence toward nonhuman animals.  My column takes up the questions whether Cortez is entitled to accommodation under a federal statute (RLUIPA) and why, even if he is not, a decision to refuse to facilitate a commitment to nonviolence in prison may be independently ill-advised.

In this post, I want to explore tentatively the relation between ethical veganism (by which I mean the decision to avoid animal products because the violence involved in producing such products is wrong) and conventional religion, as a question separate from the doctrinal one of whether statutory and constitutional protections for religious exercise do or ought to apply to the practice of veganism.

One component of veganism that very much parallels religious devotion is a commitment to doing what is morally right.  A religious person might look to religious doctrine to determine what is and is not moral, as mediated by religious leaders.  A vegan might instead look to her own conscience.  The division here is somewhat artificial, however, because religious people regularly confront difficult questions and must consult their own sense of right and wrong, just as vegans may find a particular issue difficult and consult a vegan friend for guidance.  The important parallel is the role of conscience in the lives of both.  Religious people and vegans attempt to organize their behavior around pursuing what is just and avoiding what is unjust, even if their "sources" for moral instruction may be quite different.

Beyond this parallel, there is another that may have more to do with public perception than with reality.  Those who are not religious often view religious people as "fanatical," in just the way that nonvegans often view vegans.  Like secular people with respect to religious people and "sin," nonvegans tend to think that vegans secretly crave the (in my view nauseating) products of animal cruelty and slaughter.

In both cases, in other words, those outside the group seem to imagine the conduct of those inside the group as suffering some sort of hardship in "abstaining" from pleasurable activity.

I suspect that there are some religious people and some vegans who do secretly wish that they could do the things they believe to be wrong.  On the religious front, of course, there seem to be daily scandals in which promoters of religiously-defined family values turn out to be engaged in what their own faith considers sinful conduct (usually having to do with sex).  And among vegans, there are "former" vegans who now commit themselves to spreading the gospel of how they were all wrong before and how great it is to consume animal products again.  (A kind of "born again" in reverse).

Yet on the whole, religious people and vegans seem to find their/our lives quite full and satisfying and do not fantasize about going over to the other side.  This does not make for a salacious story, of course, so reporters have no reason to emphasize it.

An apparently important distinction between religion and veganism is the presence or absence of God and the notion that He (or She) has issued inerrant commandments that people are required to follow.  If one believes that God is all-knowing and all-powerful and all-good and that He or She said it is wrong for two men to have sex with each other, then it follows for such a believer that it is in fact wrong for two men to have sex with each other.  If one does not accept the idea of an inerrant God who explicitly identified some practices as an abomination, on the other hand, then the wrongness of homosexuality seems far less self-evident.

For ethical vegans, by contrast, there is no turning to a canonical text to support one's claims that unnecessarily inflicting suffering and death on animals is wrong.  There are instead premises shared with the rest of the human population, premises based on moral intuitions, followed by reflection on the sometimes-unexpected implications of those moral intuitions, some of which call into serious question the behavior that most of us have been raised to consider normal and ordinary (i.e., the eating and wearing of products of animal torture and killing).

I say the distinction is "apparently" important, however, because the reality is that religious doctrines generally contain directives that track many of our moral intuitions, including injunctions against murder and robbery and commandments to help the stranger in need and the widow and orphan.  For secular people, it should come as no surprise that religious people have arrived at many of the same moral rules as they. 

Furthermore and more importantly, when religious directives come into direct conflict with widely shared moral norms and intuitions, devout people tend to adjust their faith to conform to the intuition rather than doing the reverse.  A classic example is the presence in what Jews call the Bible (or Torah) and what Christians call Old Testament of discussion and regulation that accepts and condones human slavery and the deliberate killing of defenseless captives, including children, who are captured in the course of a war with an enemy nation.  Few Jews or Christians alive today view this discussion of slavery and the killing of defenseless captive children of enemy nations as a guide to moral behavior in the modern world.

All of us, then -- the religious and the secular, the vegan and the nonvegan alike -- attempt to live our lives in a manner that is more or less consistent with what we view as principles of morality and justice.  All of us also have conceptions of what is right and what is wrong that emanate, at least in part, from moral intuitions that we share with one another and from which we draw conclusions after reflecting on their implications.  We all act in accordance with our conscience sometimes and against our conscience at other times (and with moral ignorance -- whether deliberate or not -- at yet other moments).  This is why we can all talk to one another and try to persuade one another of our respective views of right and wrong.  One cannot do that with no shared assumptions.  And it is why, as well, each of us has the capacity to change our minds and our behavior.

At some level, this may sound like an argument against special rights for religious over secular practice.  But I don't mean to say that, exactly.  My view is that there are times when we act on the basis of moral commitments, and there are times when our "moral sense" is not engaged at all.  (This seems to be evident on brain scans when people consider various dilemmas posed to them while they are monitored).  When people act out of conscience, whether their act is to refuse to go work on a holy day, or whether it is to refuse to attend a nonvegan communal meal, or whether to serve on a jury charged with considering the death penalty, their actions should receive a heightened level of respect and accommodation, whether or not they are adherents to a formal religion.

Tuesday, March 30, 2010

Lecture on Same-Sex Marriage and Second-Class Citizenship

By Mike Dorf

On Thursday of last week, I gave a lecture in the "Distinguished Lecture Series" at Drake University on the topic of "Same-Sex Marriage, Labels, and Social Meaning." Readers interested in figuring out whether I managed to distinguish myself for anything other than the dark circles under my eyes, frequent blinking, and long-windedness should feel free to check out the recording (windows media here, mp3 audio here, mp4 video here).

The early draft of the paper on which the lecture is based--like the lecture itself--is an effort to make sense of what's at stake in cases challenging state laws that offer all of the legal benefits of marriage but not the term "marriage" itself to same-sex couples interested in entering civil unions. The answer, which I think is rather obvious and which is prominent in the state court decisions that have recognized a same-sex marriage right is a right not to be relegated to the status of second-class citizens, a right that is thus traceable to the statement in the first Justice Harlan's Plessy dissent: "in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here." That language, with which Justice Kennedy tellingly opens his opinion for the Supreme Court in Romer v. Evans, is both clearly apt and potentially problematic in the same-sex marriage context, for it raises the question of how one determines when the government has, through language alone, treated people as second-class citizens. In Plessy and Romer, after all, the law offered tangible benefits to white and straight people that it did not offer, respectively, to non-white and non-straight people.

One way of attacking marriage-in-all-but-name is to note that denial of the use of the word marriage is actually the denial of a legal benefit. As one Drake faculty member explained to me after the talk, one effect of the law is to out people who may want to remain closeted, at least in some contexts: A person in a same-sex civil union when asked whether he or she is "married," must say something like "sort of; I'm in a civil union." While I agree that this is a concrete consequence of the law (at least for people who don't ever want to give a dishonest or misleading answer to a question in a social setting), and that there are other similar effects of the denial of the term marriage, I nonetheless think it's worth thinking through the question of social meaning even on the assumption that the law has no ramifications of this sort.

The hardest problem here is that social meaning often differs with different audiences. Proponents of same-sex marriage (myself included) see second-class citizenship in its denial, whereas opponents claim that they only mean to defend traditional marriage. I find the latter claim almost impossible to parse, because the only way in which same-sex marriage poses a threat to traditional marriage would have to be through some sort of contagion effect: Association of straight marriage with same-sex marriage would somehow degrade the former, which can only be true if the same-sex couples are somehow inferior. Nonetheless, at least when speaking publicly, opponents of same-sex marriage will insist that they mean no insult, and presumably some of them even mean that at a conscious level. (I put aside otherwise-liberal politicians, including the President, who claim to oppose same-sex marriage because, I presume, they have made a political calculation that favoring it would be too costly. They don't mean to treat same-sex couples as second-class citizens, but only because their opposition to same-sex marriage is presumably insincere.)

Returning to the main question--how does one define social meaning?--I find that the most interesting parallel case involves official government displays of the Confederate flag. Between 1956 and 2001, the Georgia flag looked like this:

In 2003, a Confederacy-free flag was substituted in Georgia but the Mississippi flag retains the Stars and Bars, while the Alabama flag invokes it.  While the Georgia flag still looked as pictured above, it was challenged as a denial of equal protection, but the case was dismissed on summary judgment, and that dismissal was affirmed on appeal by the 11th Circuit.  However, the basis for the court's ruling was not that the flag did not insult African Americans but that there was no proof of further, tangible harm.  Similar analysis underlay the 11th Circuit's earlier decision in a case challenging the flying of the Confederate flag (along with the U.S. flag and the state flag) over the Alabama State Capitol.  A 1991 Student Note in the Yale Law Journal by James Forman (now a Georgetown Law professor) argued that the 11th Circuit was wrong, but there the matter rests.

So, how should courts determine the social meaning of government speech or symbolic action that connotes second-class citizenship (or worse) to some while connoting innocuous ideas (like "pride in our state") to others?  In the lecture I give a few possible answers, with more details eventually to follow in the paper.

Monday, March 29, 2010

The Future of Conservative Anti-Activism Rhetoric

By Mike Dorf

As Barry Friedman observes in The Will of the People, one of the most striking features of the last 20 years or so is that the Supreme Court has come under sustained criticism from both the left and the right for its ostensible judicial activism. Each side, of course, has been unhappy about different cases, but the combined effect was and remains unsettling. As the median Justice, Justice Kennedy, in particular, is simultaneously denounced as a radical lefty for supporting gay rights and the rights of detainees, and as a radical righty for voting to invalidate affirmative action and campaign finance regulation.

Both sides could be simultaneously right. If one thinks that in general courts should defer to the outputs of legislative bodies, then a jurisprudence that invalidates some laws as insufficiently liberal and other laws as insufficiently conservative would be highly problematic. But few criticisms of the Court take this form. In general, critics tend to denounce the decisions invalidating laws they like without accepting the other side of the coin: that this is the price of other decisions invalidating laws they dislike.

Nonetheless, the right has enjoyed a tactical and rhetorical advantage well illustrated by the events of the last week. Even as Republican AG's around the country demand that the courts invalidate health care reform legislation that was the product of a year-long debate and for which Democratic lawmakers are pretty clearly on the hook politically--i.e., even as they demand what, if the shoe were on the other foot, they would almost certainly denounce as judicial activism--it is obvious that they will continue to denounce as judicial activism any liberal decisions striking down legislation. Indeed, some conservatives will even denounce as judicial activism decisions NOT to invalidate laws and policies they dislike, as happened in the wake of Kelo.

It's tempting to dismiss such rhetoric as unprincipled, but I believe that much of it is sincere. Many conservatives believe:
1) Originalism is the only legitimate approach to constitutional interpretation;
2) Originalism almost invariably leads to politically conservative results;
3) It is therefore impermissibly "activist"--in the sense of judges substituting their views for what the Constitution "really" requires--for the Court to reach any liberal results.

Needless to say, this syllogism is extremely vulnerable at both points 1) and 2), and therefore at point 3). Yet I think we liberals misattribute insincerity to conservatives when we point out the audacity of their willingness to resort to what, from our perspective, looks like litigation deeply at odds with their rhetoric about the importance of judicial restraint. Given their very dubious but sincerely held premises, there is no contradiction.

Friday, March 26, 2010

Hyping a Non-Event: Social Security and the NYT

-- Posted by Neil H. Buchanan

With the passage of the big health care bill, the media is beginning to ask: What will fill the void? One favorite candidate is Social Security. In my FindLaw column next week (and, most likely, my DoL post next Friday), I will discuss the current state of the Social Security debate more broadly. Here, however, I will focus on a news column in yesterday's New York Times, an article that I described in an interview on a San Francisco radio show as "completely irresponsible," adding that "[t]here's no reason why it should have been written at all, much less put on the first page."

The article in question, "Social Security to See Payout Exceed Pay-In This Year," included a subtitle in the print edition: "At Tipping Point Years Ahead of Projection." After I describe the underlying facts and the report from the Congressional Budget Office on which the article is based, I will explain why my assessment of the article was so harsh.

Starting in 1983, the Social Security system was set up to collect far more in tax revenues than it paid out in benefits for several decades, followed by several more decades in which benefits would (by design) exceed revenues. Year after year since then, the system has collected tens of billions of dollars more than it needed, with the difference credited in the "trust fund." The trust fund would, in turn, later be drawn down to zero as the Baby Boomers moved through their life cycles.

The idea was to make it unnecessary to raise taxes significantly when the Baby Boomers started to retire. The system would thus collect much more than needed at first, with the annual difference between revenues and expenditures shrinking as the Boomers began to retire, then crossing over into slowly growing annual deficits, which would later shrink again and go to zero when the Boomers stopped collecting benefits (i.e., died).

With a plan that is to be carried out over the course of decades, of course, it is possible to overestimate or underestimate the amount of money needed. The possibility of coming up short is described as the system becoming "insolvent," which really means the possibility that revenues will fall short of annual expenditures at some point, even after crediting the system for the funds (plus interest) that it provided to the rest of the federal budget in the early decades of the plan.

As noted, however, the natural consequence of a plan that would first collect too much revenue for its annual needs, then too little, is that a year would come when the system would switch from annual surplus to annual deficit. The most recent estimates had that happening in 2016. Recently, however, the CBO issued forecasts that showed very small annual shortfalls in 2010-13, followed by very small annual surpluses in 2014-15, and finally growing shortfalls from 2016 onward. In other words, the Great Recession has reduced tax revenues and increased expenditures sufficiently to make the annual balance turn slightly negative for the next four years, before returning to the pattern that had been predicted all along. The permanent shift to annual deficits will still happen in 2016.

In short, there is no news here. More accurately, the news is so minor that it should either be deemed unworthy of publication or printed on the bottom right corner of page 16 of the Business Section. All we are being told, after all, is that the worst economic downturn since the Great Depression will lead to several years in which Social Security's finances are somewhat worse than they would otherwise have been. If anything, the news is good, since the changes in the system's finances are so minor -- even in the face of a historically deep and prolonged slump.

The Times, however, referred to this as an "important threshold it was not expected to cross until at least 2016." Even more provocatively, the article states: "Analysts have long tried to predict the year when Social Security would pay out more than it took in because they view it as a tipping point — the first step of a long, slow march to insolvency, unless Congress strengthens the program’s finances." (Note the unmodified "analysts." Are we to infer that "all analysts" agree? They do not.)

There is no "tipping point." "Tipping point" implies that there is some fragile balance that we are trying to maintain, and if we err and upset that balance, we will inexorably be pushed into an abyss. That is not what is happening with Social Security. There is an inevitable year when, completely as planned and expected, annual surplus must turn to annual deficit. Crossing from small annual surpluses to small annual deficits does not change the long-term prospects of the system, and it certainly does not tip the system into a situation that it would not otherwise have faced.

Again, the numbers from CBO bear this out. As noted, the four years of small deficits are followed by two years of small surpluses, at which point the system resumes its predicted course -- with the shift from annual surplus to persistent annual deficit predicted in exactly the same year (2016) that had been predicted before this report was issued. Nothing tipped, and nothing was "years ahead of schedule."

Moreover, the article elsewhere claims that the important date -- or "year of reckoning" -- for the system is the year in which the trust funds are depleted. That is only partially true, but let us accept that claim for a moment. The article itself quotes the Chief Actuary of the Social Security Administration as saying that this year's Trustees' report will not show the date of trust fund depletion changing significantly from last year's report. In other words, "the long, slow march to insolvency" will not be any shorter, even with the change in the short-term, recession-driven numbers with which the article is obsessed.

When it comes to fixing the supposed problem with the system, the article dutifully describes the three possibilities: raise taxes, cut benefits, or use general revenues. Yet is quotes Alan Greenspan twice as saying that "you have to cut benefits." No, you don't. You can raise taxes, cut benefits, or use general revenues.

Note that this distortion of the underlying facts is being offered in a news column, not an editorial or even a quasi-editorial "news analysis" that the Times runs on its news pages. The unmistakable messages from reading the article, however, are that the system is in trouble, that it is in bigger trouble now than we thought it was, and that we must fix it by cutting benefits (sooner rather than later, if possible). All of those assertions are highly contestable, and they are certainly neither "news" nor "facts." Moreover, none of those conclusions is supported by the new numbers in the CBO's report.

Notwithstanding my strong reaction to the article, however, I am not convinced that the writer actually had a political agenda. It has become such an article of faith among the mainstream press that there is a big problem with Social Security that reporters seem to be succumbing to confirmation bias, i.e., filtering any news that they receive about Social Security as proving the conventional wisdom. It is, apparently, not possible for them to believe that some information about Social Security is not only not bad news. It is not newsworthy at all.

Thursday, March 25, 2010

Senator Dodd's Proposed Finance-Regulatory 'Overhaul'

By Robert Hockett

Now that Senator Dodd has released his proposed plan for finance-regulatory reform, some DoL readers might appreciate a quick breakdown of its principal provisions, along with a brief bit of commentary. For what it might be worth, I think in sum that the bill represents a helpful, if nevertheless still but tentative, step forward. Among other things, it would bring the following long-awaited improvements to our presently hole-riddled 'system' of financial regulation.

First, the bill would impose more careful oversight of, and potentially required downsizing of, financial firms that approach 'too big to fail' size. It also would require these firms -- either in addition to or rather than taxpayers -- to finance a sort of 'bailout insurance' fund to the tune of $50 billion. Comment: It's often been heard of late that 'too big to fail' should be understood to carry the entailment 'too big to permit.' I confess to agnosticism about this, at least  so long as non-American financial firms continue to reach the gargantuan sizes they long have done. (A ripe topic for future international finance-regulatory negotiations.) I propose and would eagerly embrace, however, a cognate proposition: 'Too big to fail' should entail 'too big to permit not to be fully self-insured.'  Senator Dodd's bill seems to comport. One caveat, however: The very existence of the fund will of course import moral hazard vulnerability. Much will accordingly ride on who, precisely, the fund would make whole, and who would still stand to lose. Keep an eye, then, on proposed answers to this question as debate commences in Congress.

Second, the Dodd bill would impose greater transparency and safety on the over-the-counter (OTC) derivatives -- including the credit default swap (CDS) -- market. It would do so in part by channeling more derivatives trading through exchanges of the sort that most other securities have been trading on for decades, which exchanges would constitute focal points to which regulators and other concerned parties could direct their attentions. The bill would bring greater safety also in part by imposing substantial buffer capital requirements on firms like AIG which in recent years promised much more than they could deliver. Finally, the bill will also require that hedge fund advisors be registered with the SEC. Comment: Two cheers. There might have been some -- minimal -- merit to suggestions in the late 1990s that the then-developing derivatives markets, which once grown could well complement the non-derivative securities markets, should be given a bit of breathing space in which to flourish and realize their potential. We've long since got there, with the notional value of derivatives trading dwarfing that of trade in other securities. Moreover, there seems no reason whatever to continue to permit standardized bets which so comprehensively permeate the financial markets now -- bets like CDSs -- not to be backed up by margins of the sort required of trading in other instruments. Caveat: The bill thus far provides an exception for 'customized' contracts, and exempts private equity firm advisors from the SEC registration requirement. These are precisely the sorts of tail that finance always seems able to make a dog-wagger of.  Keep an eye, then, on how this potential problem is addressed as debate commences in Congress.

Third, the Bill would end the current regulatory privileging of, and impose greater transparency and conflict-of-interest-prevention rules upon, the credit-ratings industry. It would also subject them to greater risk of liability for ratings, and empower the SEC to 'de-register' those that provide bad ratings over time. Comment: This industry of course failed spectacularly in assessing the risks posed by subprime-mortgage-backed securities, owing in part to insufficient competition in the industry, and in part to the current regime of compensation -- which long has been, perversely, by the very firms they were purporting to rate objectively. Attention to the conflict of interest inherent in the structure of audit and credit rating compensation is long overdue. My only concern here is that the bill will not go far enough in addressing this weakness. It is admittedly, however, a difficult problem. For the surest way to solve it -- essentially, by converting this to a not-for-profit public or quasi-public function -- would require public expenditure that might for the time being prove politically unpalatable, while the second best option -- opening the industry to many more entrants -- might be of only limited help too, in virtue of the scale economies that attend the development of sophisticated risk-measurement and valuation models.

Fourth, the bill would create a Consumer Financial Protection Bureau (CFPB), charged with looking out for the interests of less sophisticated clients of financial services firms, which would have its own funding, its own rule-making authority, and its own leader chosen by the President and confirmed by the Senate. Comment: Unification of the consumer-protection regime and regulatory apparatus is long overdue, as most of the most troubling practices have been developed by parties who have evaded provisions applicable in one financial services sub-industry by simply migrating to another such sub-industry where functionally equivalent practices are readily developed. The principal concern that has been raised in connection with Dodd's version of a CFPB stems from his housing it in the Fed, which is thought by many in recent decades to have been far more solicitous of the interests of banks than of consumers. A related concern stems from the plan to subject its decisions to review by an 'oversight council' comprising the other bank regulators less concerned about consumer safety than about the 'health' of the industry.

I share these concerns, but take some comfort in the independent funding, rule-making authority, and leader-selection provisions of Dodd's proposal. As often seems to be the case in our fragmented 'system' of financial regulation, much will ride on who has final word in events of inter-agency conflict. And most here will ride, more specifically, upon how much trumping authority the Fed will have in the event of such conflicts -- a question that finds an analogue in the system of 'functional regulation' we've moved toward in connection of financial holding companies (FHCs) holding multiple kinds of financial institution since 1999. Technically, the SEC still 'functionally' regulates, e.g., an investment bank qua investment held by an FHC, while the Fed serves as 'umbrella regulator' of the FHC qua FHC. But sometimes those 'qua's can get muddled up, and how precisly to mediate stark disagreement between Fed and functional regulator in such cases is a matter we're still working out. In view of the presumably plenary, trans-institutional (dare I say 'trans-qua'?) authority the CFPB will have in respect of consumer protection matters on the one hand, and the fuller Fed's emerging trans-institutional role as 'umbrella' and even 'systemic risk' regulator (more on which presently) on the other hand, one can imagine that disagreements might sometimes emerge, some of which disagreements might have trans-insitutional import. In theory this should not happen, because consumer protections seldom are in serious tension with bona fide systemic risk minimization. But in practice, the Fed has in recent decades been a bit slower to find risk and faster to champion growth, which latter can itself often easily be 'rationalized' as an industry 'health' -- hence 'systemic safety and soundness' -- concern. And measures that tend to fuel aggregate growth can of course come into conflict with measures designed to protect unwary consumers. One additional caveat: At present, the plan is for banks with assets under $10 billion to be exempt from the jurisdiction of the CFPB. It's not clear to me what rationale might justify restricting CFPB jurisdiction to a mere 100 or so of the nation's 8,000 plus banks. But a toehold for now, I suppose, is preferable to no hold. Stay tuned, then, in a big way on this one.  There is apt to be much disputation in Congress on the proposed CFPB.

Fifth, the Dodd bill will bring the executive and trading desk pay practices of large financial firms, many of which reward successful risk-taking while not penalizing unsuccessful such risk-taking, under careful Fed oversight. It would also require explicit 'say on pay' shareholder approval of financial firms' compensation arrangements, and impose separations between listed companies' compensation committees on the one hand, their full boards on the other. Comment: I confess to some skepticism as to how important pay practices have been in brining on the crisis, as well as to how much difference an explicit shareholder vote on pay arrangements -- which already had a pretty good substitute in shareholders' ready ability to sell off their shares -- is apt to make. This provision probably affords more political 'feel good' value than anything else. But I'm happy to be shown wrong.

Sixth, the bill would extend orderly wind-down authority currently held by the FDIC with respect to commercial banks, to cover other large financial firms as well -- huge, systemically integrated nonbank securities firms such as Bear Stearns and Lehman Brothers until recently were -- most of which now pose systemic risks to the broader economy quite as fully as commercial banks do. Comment: Ra ra again. It's high time. This measure, moreover, serves as a nice complement to the first measure described above. It is no accident that, in the banking context, the same regulator that administers the deposit insurance system is the regulator that deals with bank insolvency. Extension of a functionally equivalent system to financial sectors additional to the banking sector is long overdue.

Seventh, at long last, the bill would establish a national monitor, within Treasury, of insurance companies deemed to be 'systemically important.'  The insurance industry's exemption from federal regulation has been one of the chief -- and increasingly dangerous -- anachronisms of our 'system' of financial regulation.  The experience of AIG seems at last to have driven the point part way home. Caveat: I think we're destined ultimately to go all the way where federal regulation of financially integrated insurance companies are concerned; but as with the CFPB, I suppose a toe-hold is better than no hold for now, particularly if the Fed takes seriously the role envisaged for it per the final feature of Dodd's bill...

Finally and relatedly eighth, and again at long last, the bill would formally recognize the need of a 'systemic risk regulator' charged with overseeing the whole of our vast, sprawling, complex finance economy, and assign this role to that regulator best situated to fulfill it -- the Fed. The Fed would also be aided in discharging this task by a 'risk council.' Comment: I'm entirely on board with the need of a systemic risk regulator, and am also in agreement with the proposition that that institution whose principal concern is the monetary economy as a whole -- which economy effectively includes the credit and broader financial economy, as any good student of Keynes will tell you -- is best situated to play this role.

My only concern here, of course, is that the Fed seems to me to have been a bit cavalier about systemic risk in recent decades. But that's largely owing to the influence of one particular Chairman, as well as of a tired finance-monetary-economic orthodoxy. It seems that both of these have now by and large passed, and the Fed might well be situated to re-embrace its more time-honored role, associated with the past Chairmanships of William McChesney Martin and Paul Volcker, among others, as countercyclical smoothener of the monetary boom and bust cycle. Like Joseph's advice to Pharaoh, and Martin's advice to his Fed, so should be ours to Senator Dodd: Remove and store moneys and grain in the fat years, that you may have replenishment in the lean years. For more on this all-important matter, please see: .

Wednesday, March 24, 2010

Capping Heathcare Costs

By Paul Scott

This is just a short note on an effect of the new legislation as I read it. Heath-care costs to individuals have been capped at something less than 2.5% of an individual's taxable income. This comes about by the interplay of three provisions: 1) The prohibition of denying coverage based on pre-existing conditions; 2) the rate setting rules; and 3) the maximum penalty for going uninsured. It may be the case that these three never significantly intersect. But I suspect they sometimes will.

Under Section 111, the existence of a pre-existing condition cannot serve to limit or deny coverage.

Under Section 113, there are only three factors effecting rates for an individual: age, location and family status. That someone may have a pre-existing condition is not grounds for a different rate.

Under Section 59B, individuals without acceptable health-care pay a tax equal to 2.5% of their adjusted gross income after subtracting out the applicable exempted amount in Section 6012(a)(1) of the tax code.

In essence this means that if you are a healthy individual with limited need for preventative care (this is most people, as even from the over-40, but pre-medicare crowd, the out-of-pocket expenses for annual or semi-annual health checks are not significant relative to the cost of a policy), you should only buy health insurance if the annual premiums are lower than the tax penalty. Although this penalty is far from easy to understand from the text of the bill (I have spent no small amount of time reading the various provisions of this bill, and the exact cost I would have paid this year if I had no coverage is not clear to me), both experience and various common resources will eventually give people a reasonable feel for it. Once that understanding occurs for a substantial portion of the population, this will in effect cap the cost of health care premiums, as offering packages in excess of the penalty would make purchasing such health-care only sensible for the sick.

Deeming Again

By Mike Dorf

My latest FindLaw column addresses an issue raised by the abortive effort in the House of Representatives to pass health care reform via a "self-executing rule": What weight should be given to longstanding congressional practice in constitutional interpretation? (Short answer: Some.) Here I want to post a letter that UC Berkeley Law Professor Dan Farber and I sent to Representative Slaughter, Chair of the House Rules Committee, back when the self-executing-rule option was still on the table. After the letter, I have a few final thoughts on this fascinating little issue.

The Honorable Louise M. Slaughter
Chair, House Rules Committee
2469 Rayburn, House Office Building
United States House of Representatives
Washington, D.C. 20515

Dear Representative Slaughter:

As teachers and scholars of constitutional law, we are writing to express our strongly held view that the currently proposed self-executing rule for House enactment of health care reform would result in a fully constitutional statute.

Under the procedure now under consideration, the full House would first vote on a rule containing language declaring that upon passage of a further bill, the House reconciliation bill, the House would “hereby” concur in the Senate amendments to H.R. 3590, the bill that has already passed the Senate. Thus, once the House and Senate each pass identical reconciliation measures, each chamber will have produced two identical bills for the President’s signature. This procedure satisfies the Constitution’s “single, finely wrought and exhaustively considered, procedure” for lawmaking. I.N.S. v. Chadha, 462 U.S. 919, 951 (1983).

In Chadha, the Supreme Court invalidated a radical departure from the Article I, Section 7 procedure whereby a single congressional chamber could veto the President’s legal action, thereby inverting the constitutional order of events. Likewise, in Clinton v. City of New York, 524 U.S. 417 (1998), the Court struck down a law purporting to give the President a line-item veto, in clear violation of his constitutional obligation to sign or veto (or allow to become law without signing or pocket-veto) each “bill” as a whole. By contrast with the legislative veto and the line-item veto, the self-executing rule complies with the letter and spirit of Article I, Section 7. For that reason, it has been used for decades without occasioning controversy. Indeed, the very Line Item Veto Act invalidated in the Clinton case was itself adopted using a self-executing rule; yet in the course of litigation over the Article I, Section 7 formalities, no Justice in the majority or dissent even thought to question it on that basis. The self-executing rule, unlike the provisions in Clinton and Chadha, does not in any way affect the operation of an enacted statute or aggrandize congressional power; it is merely part of the process for enacting the law.

Critics of the self-executing rule have attempted to raise doubts by arguing that it would result in different actions being taken by the Senate and the House. According to this view, the Senate would have adopted its amendments to H.R. 3590 in a single bill, while the House would have adopted it in two bills: the combination of the rule and the reconciliation measure.

Yet just as in the House, so too in the Senate, passage of the amendments to H.R. 3590 but not the reconciliation measure, will have required two votes: In the case of the Senate, the first, procedural, vote on the amendments to H.R. 3590 was the cloture vote; the second vote was a merits vote. Thus, in both chambers, the initial bill will have been passed by a procedural vote followed by a substantive vote, while reconciliation will have passed by a single up-or-down vote.

More importantly, Article I, section 7 requires that any bill be “passed” by both houses of Congress, but does not specify the mechanism by which they give their approval. In particular, there is no constitutional requirement that the House and Senate express their majority support for a bill using identical procedures. On the contrary, Article I, Section 5 of the Constitution authorizes “Each House [to] determine the Rules of its Proceedings . . . .” This power necessarily entails that the House and Senate will have different rules from each other, as they have had since the beginning of the Republic. Such different rules mean that the method by which a majority in each chamber votes for a bill is within its own control. It is of no constitutional moment whatsoever that the House and Senate versions of a bill come out of differently named committees, or that debate in the Senate lasts longer than in the House, or vice-versa, or that votes are taken by roll call in one chamber but by voice vote in the other. Such differences fall well within the procedural prerogatives of each chamber.

Under the self-executing rule, a vote for the rule is a vote for the already-enacted Senate bill, subject to a condition subsequent, namely, House passage of the reconciliation measure. There is nothing unusual or untoward about such conditions subsequent. Congress frequently grants the President authority to take various measures--such as imposing sanctions against human rights abusers or collecting duties on goods from countries that engage in unfair trade practices--only upon the happening of some condition subsequent. The 2002 Authorization for Use of Military Force Against Iraq, for example, required the President to determine that further diplomatic efforts would be futile in order for the authorization to become effective. In this case, however, the condition subsequent merely applies to the internal procedural question of how the House votes on legislation, not to the actual operation of the statute.

The self-executing rule at issue here is especially appropriate in light of the fact that the occurrence of the subsequent condition is fully within the House's own control. If a majority of House members do not want to vote for the proposed health care reform legislation, they have two ways to vote against it: vote against the self-executing rule or vote against the reconciliation measure that triggers the “hereby” clause in the rule. By marked contrast with the legislative veto and line item veto, this procedure in no way short-circuits Article I, Section 7.

Finally, we would note that a lawsuit challenging the resulting health care reform legislation would face serious procedural obstacles. The difficulty of finding a plaintiff with a ripe claim before the Act’s regulatory provisions take effect, the enrolled bill doctrine, and the Constitution’s textual commitment to each chamber of the authority to decide upon its procedures all suggest that the measures at issue would not give rise to a justiciable case or controversy.

Nonetheless, members of Congress have an independent duty to abide by the dictates of the Constitution, regardless of whether the courts fully enforce that duty in any particular context. Fortunately, here there is no space between what the courts will allow and what you, as a conscientious legislator, may do. The proposed self-executing rule complies with the letter and spirit of the Constitution. If you have policy grounds for using this procedure, you may do so while honoring your constitutional oath.

Respectfully yours,

Michael C. Dorf
Robert S. Stevens Professor of Law
Cornell Law School

Daniel A. Farber
Sho Sato Professor of Law
Berkeley Law School

With the benefit of nearly a week of hindsight, was I right? On one question, I remain completely confident: As I said in my earlier post on this subject, using the self-executing rule would have made little political sense, because it would have provided virtually no political cover for those House members who didn't want to be on record as having supported the original Senate bill. I take it that the House itself reached the same conclusion when it decided to proceed via the more conventional route.

I also continue to think I got it right on the constitutional analysis, though I admit to being slightly less confident in this conclusion, thanks mostly to a set of tenacious comments and emails from a reader (and former law clerk for Justice Scalia), Hashim Mooppan. Readers interested in the technical details of his argument should look at his earlier comments, but I think I can boil the argument down this way:

1) Article I, Sec. 7 requires that each chamber pass the exact same bill for the President's signature to make it law;

2) Under the conventional procedure used by the Senate, a Senator who liked the original Senate bill but not reconciliation could simply vote for the original bill but not for reconciliation; however, under deem and pass, a House member could not express that view; to vote for the original Senate bill would require the House member to vote for both the rule AND for reconciliation, lest the condition subsequent deeming the original Senate bill passed by the House as well. So the House and Senate faced different packages, and that makes a substantive, not just a technical, difference.

That's not a bad argument but it fails, I continue to think, because procedural rules in each chamber routinely deprive members of those chambers of identical options. Consider the effect of committees. Suppose there is a bill in the House Armed Services Committee to fund some new nuclear submarine and to require employees of private military contractors in combat support operations to undergo some new psychological screening test. Congresswoman X supports the screening provision but opposes the nuclear sub. She moves to divide the bill in committee but her motion fails. Killing the bill in committee will prevent a full House vote on it. She would like to kill the submarine but advance the screening test. However, she has no way of combining these. Meanwhile, over in the Senate Armed Services Committee, the committee rules allow separate votes on the two measures simply on the request of a single committee member. (I am making these rules up, but they're similar enough to real ones.) It happens, however, that both measures pass in the Senate Committee, as they do in the undivided bill in the House Committee, and in the Senate they are recombined on the floor, so the final text of the bills from the two chambers is identical. This procedure clearly satisfies Art I, Sec 7, even though Congresswoman X, in her capacity as a member of the House Armed Services Committee, was denied an opportunity to vote against the sub but for the screening, while her counterpart in the Senate Armed Services Committee had that opportunity. The bottom line, however, is that what emerged after all the procedural rules were engaged was the same bill.

Now one might think that anything goes in committee--although even that concession would have to be based on a broad understanding of Article I, Section 5. But even if we distinguish committees from the full bodies, the procedural opportunities differ. To return to the core example in my earlier post, consider that under the cloture rule, a Senator who wants to vote for some measure--including, say, removing a provision from a bill via amendment--can't do so unless a super-majority permits him to, which it may not. Thus, he will be denied an opportunity to vote against a provision of a bill in a way that House members routinely will not be.

In the end, I think what divides those of us who disagree on this issue is our respective senses of the power of each chamber to make its rules under Article I, Section 5. Looking at the enormous, effectively outcome-determinative, power that procedural rules convey via the committee system, the cloture rule in the Senate, and a host of other mechanisms, I see the use of deem-and-pass as well within the normal range. Others see the language of Article I, Section 7 as doing a lot more work, even when the risks of upsetting the balance of powers are not nearly so clear as in cases like Chadha and Clinton. There I am content to leave the disagreement, especially now that the practical issue has gone away. So I'll happily read but won't add to any further discussion of the point in the comments.

Tuesday, March 23, 2010

Animal Rights, Violent Interventions and Affirmative Obligations

Posted By Sherry F. Colb

Monday of last week, I had the honor of hosting Professor Gary L. Francione here at Cornell Law School, where he gave a lunch workshop to my colleagues and then lectured to the students in my Animal Rights seminar.  Both the workshop and the classroom lecture were fascinating and engaging, and they each exposed the audiences to important ideas and arguments that might have previously been unfamiliar. 

In this post, to shed light on some of the issues that arose in the faculty workshop,  I want to focus on some of the questions that my colleagues posed to Professor Francione.

Are We Really All Michael Vick?

About three years ago, when many people were expressing outrage about Michael Vick’s cruelty to dogs, Professor Francione published an editorial entitled “We’re All Michael Vick.”  In it, he argued that what offended so many people about Michael Vick’s behavior toward dogs is morally no different from what most of us do every day:  inflict terrible pain and death on animals for purposes of our own amusement.  Michael Vick enjoyed watching dogs fight, and others enjoy chewing on the flesh and reproductive products of nonhuman animals.

The only salient differences, Professor Francione argued, are the species of the tortured and killed animals (dogs versus pigs, cows, chickens, etc.) and the fact that Michael Vick committed his acts directly while the rest of us, in consuming animal products, pay others to do so.  As I recently suggested in a letter to the editor of the International Herald Tribune here, dogs are not morally distinguishable from the animals whose flesh and products we consume.  And as our law reflects, paying someone else to inflict harm does not reduce one’s responsibility for the harm inflicted. 

The article about Michael Vick gave many readers the opportunity to think about what Professor Francione calls the “moral schizophrenia” of our ethical norms with respect to nonhuman animals.  In some contexts, we are outraged by animal cruelty inflicted to serve transparently frivolous objectives; in other contexts, we find such cruelty unremarkable and engage in it ourselves.

One of my colleagues questioned the analogy between Michael Vick and the rest of us and suggested that such an analogy is like equating a deliberate murder, on the one hand, and a car accident in which the driver accidentally runs over and kills someone, on the other.  This colleague added that the grandmother who buys and prepares a turkey for Thanksgiving could not possibly be comparable to Michael Vick, could she?

Professor Francione responded to the question by emphasizing that in both sorts of cases, someone is inflicting pain and death for a trivial purpose, whether that purpose is entertainment by watching a dog fight or entertainment by chewing on flesh.  This emphasis is important.  Because time was short at the workshop, however, I want to elaborate a bit here.

The question posed by my colleague really divides, I think, into two different questions:  First, isn’t consuming meat analogous to an accidental homicide, while conducting dog fights is more like an intentional homicide?  Second, isn’t it counterintuitive to compare Michael Vick, whose dog-fighting operation repulsed so many of us and led to a criminal conviction, to the friendly grandmother who cooks a turkey for the holidays?

Murder and Manslaughter?

To the first question, I would point out that when we consume animal products, we inflict harm and death on chickens, pigs, cows, and other animals that is no more accidental than the harm and death that Michael Vick inflicted on dogs.  While vehicular manslaughter represents an accident (resulting from negligent driving that created an unreasonable risk of death to others on the road), the creation (and accordingly the consumption) of animal products inherently inflicts great suffering and death on sentient beings.  Everyone who consumes animal products, including the flesh of turkeys, thus intentionally and knowingly participates in making nonhuman animals suffer and die.  People who drive negligently, by contrast, do not intentionally or knowingly hurt anyone.

Some readers might respond, “But wait!  The grandmother does not enjoy the fact that a turkey was hurt and slaughtered, but Michael Vick does enjoy the fact that dogs were harmed.”  This distinction is flawed for two reasons. 

First, Michael Vick might well argue that he never enjoyed the dogs’ suffering and death; he enjoyed the competition and drama of the fights.  Though the suffering and death involved was inevitable and known, in other words, Vick could plausibly say that he found both regrettable, just as the grandmother might find the turkey’s pain and slaughter regrettable as well. 

In both cases, the objective of the activity is the pursuit of an unnecessary pleasure, and in both cases, the infliction of harm and death are inherent in the activity and understood by the participants.

Even if one insists, moreover, that Michael Vick was truly being sadistic toward the dogs killed in fighting, while the grandmother is not being sadistic toward the turkey killed for Thanksgiving, this distinction is far less important than that which differentiates murder from involuntary manslaughter.

In both dog-fighting and turkey consumption, there is intentional infliction of suffering and death on animals (either directly or by paying someone else to inflict the harm).  The difference between sadistic killing and killing for a pleasurable product is accordingly like the difference between someone who kills another human in a terrifying and painful way because he likes watching people suffer and die and someone else who kills another human in a terrifying and painful way because that is the only way to steal the victim’s property.  The harm inflicted is equal in both cases, and each is supported by indefensible reasons.

Second, there is a real distinction in play, but it is not a difference between the respective moral status of what Michael Vick and the grandmother each do.  It is instead the difference between the people, Michael Vick and the grandmother, a distinction that reflects how the sorts of people whose violence includes only what is socially permissible differ from the sorts of people whose violence breaches socially accepted boundaries. 

Committing violence against a turkey in order to consume the turkey’s flesh is, in today’s world, considered acceptable, whereas committing violence against dogs in the U.S. in order to enjoy the spectacle of a dog fight is, outside of some subcultures, not considered acceptable.  A person who commits unsanctioned violence is likely to be socially and characterologically deviant in ways that extend beyond the particular violence, whereas a person who commits only sanctioned violence is not.

Consider an analogy from the period of our country’s history during which human slavery was legally protected and accepted.  At that time, a person who was otherwise normal and even kind might have participated in the violence of chattel slavery.  To put the point more directly, a kindly grandmother – of the sort who would today slaughter and prepare the body of a turkey for family members on Thanksgiving – would also, if sufficiently wealthy, buy a slave and later sell that slave’s children to a different owner.  She would use violence (or the threat of violence) to prevent the escape of her human property, though she – like those who today buy “free range” turkeys – might perhaps use no more violence than “necessary” to accomplish her purposes.

There is nothing about the 1785 slave-holding grandmother, in other words, that would allow us to identify her as a sociopath or a generally evil person, in the way that there would likely be something identifiably wrong with anyone we found engaged in holding and selling humans as slaves today, when such behavior is universally condemned as a human rights violation.

Stated differently, part of why the grandmother who cooks a turkey for Thanksgiving is not like Michael Vick is that the surrounding society accepts and applauds the grandmother’s conduct while it frowns upon and condemns Michael Vick’s.  Nothing about these social practices, however, provide a morally tenable distinction between her behavior and his; it simply marks him and not her as someone prepared to violate society’s norms. 

As Professor Francione suggests, the line we draw between the two sorts of conduct, respectively, is an arbitrary one.  What the grandmother does is no better than what Michael Vick did, even though the grandmother is generally – perhaps – a kinder person than Michael Vick is, when society has not expressly approved and embraced a particular type of unkindness.  If we consider the level of violence inflicted on the animal involved, the intentional and knowing nature of that violence, and the alleged justification that is offered for it, the two acts cannot be meaningfully distinguished from each other.  People need neither animal products nor dog-fighting entertainment to live a healthy and happy life.  They consume one or the other or both because they feel like it.

Must We Then Kill A Person to Save A Tiger and Treat The Tiger for His Cancer?

A second and then a third colleague were interested in pursuing a different line of discussion with Professor Francione.  If animal and human lives are equally inherently valuable, they both asked, do we not then owe it to wild animals to protect them from human predators, with violence, if necessary?  And do we not also owe it to wild animals to provide them with health care and other benefits that we feel obligated to extend to our fellow humans?

Why Violence Is Objectionable, Even to a Non-Pacifist

To illustrate their question about violence, a series of hypothetical examples emerged in which a tiger was threatening a human (and the question was whether it would be justifiable to kill the tiger) or the human was threatening the sleeping tiger (and the question was whether it would be equally justifiable to kill the human).  Professor Francione responded to the violent hypothetical examples as the proponent of non-violence and pacifism that he is.  He said that killing – even to protect life – is generally not justified, but it may be excused.  As a person who is not a pacifist but who does believe in animal rights (including those of both human and nonhuman animals), I want to make a related but somewhat different argument here.

I believe that killing a tiger to prevent the tiger from killing a human is justifiable, in the same way that I believe that killing a deranged or spasmodic but innocent human assailant who poses a threat of killing another human is justified.  If someone threatens your life, you are justified in responding with deadly force.  Similarly, if someone threatens another human, you are also justified in so responding.  By contrast, I do not think it is generally justifiable to shoot at people who are in the process of killing animals.  Does this distinction demonstrate that I think humans have greater inherent value than nonhumans?  Does it commit me to the proposition that consuming animal products is acceptable?  It does not.

The reason that it is not justifiable in most circumstances to kill a person to prevent the death of a tiger is that society has not generally accepted the notion that killing a tiger is murder.  As a socially accepted activity (or at least an activity whose true violence is not yet salient for the overwhelming majority of people), hunting or otherwise inflicting death on defenseless animals is, in most instances, committed by the same sorts of people who are otherwise nonviolent people (when society has not invited them to engage in sanctioned violence). 

To kill such people is not justified and, moreover, would prove counterproductive for anyone who supports animal rights, because it would (unfairly) lead people to identify a peaceful movement whose goal is to protect animals from unjustifiable violence with unlawful violence.  In a context in which the killing of animals for trivial purposes is ubiquitous and celebrated, one can easily save many, many animals’ lives without committing any violence, by adopting homeless animals and providing sanctuary to farmed animals who are no longer a source of profit to their owners (like the cows left to die in piles, unable to get to food or water).

For similar reasons, John Brown and other violent abolitionists are not universally embraced as having acted justifiably.  Brown and others committed murder to free slaves in a context in which slavery was normatively embraced by much of society.  The people killed were, accordingly, likely to be people no different from other people in their inclination to kindness and respect toward others who occupied the widely-accepted circle of moral concern.  Killing such people – slave-holding families – is not justifiable and may have generated sympathy for slave-holders rather than impressing anyone with the justice of the abolitionist cause.

By contrast, if a person today kidnapped and held another human as a chattel slave, it would be an uncontroversial exercise of justifiable deadly force to kill the kidnapper if necessary to rescue the victim.  As mentioned above (in connection with Michael Vick and the grandmother), the sort of person who would keep a slave today is likely to be evil in the way that the sort of person who would have kept a slave in the South in the eighteenth or nineteenth century might not have been. 

This difference, however, between the slave-holder of 1785 and the slave-holder of today does not mean that chattel slavery in the eighteenth and nineteenth centuries was in any way justifiable.  Slavery then was not, in other words, morally superior to slavery now, even though slave-holders then would have been quite distinct in their character from slaveholders now.

To provide an example from a different context, many people in the anti-abortion movement opposed and condemned the murder of abortion provider Dr. George Tiller, perpetrated to stop him from performing abortions.  Pro-life opponents of the murder of Dr. Tiller condemned his actions, notwithstanding the fact that they believed that what Dr. Tiller did was morally no different from the killing of a born child. 

In a societal context in which an objectionable form of violence (whether toward sentient beings or toward embryos and pre-sentient fetuses) is not only permissible and lawful but broadly accepted as normal, the use of deadly force to intervene is morally distinct from the use of such force to stop criminally prohibited misconduct.  Within peaceful branches of historical justice movements (including the abolitionist movement that opposed human chattel slavery and the civil rights movement), this distinction was well understood and did not detract from the underlying equality claims at issue.

Why Health Care For Wild Animals Isn’t Required

In a related but conceptually distinct variant on the question about using violence to protect humans from nonhuman animals and vice versa, a colleague posed the query why, if nonhuman and human animal lives are equally valuable, do we have affirmative obligations to the latter but not to the former.  That is, if one is not a libertarian, then one holds the view that we are under an obligation to take affirmative care of other people – by providing health care or food, for example.  If one holds this view and also believes in animal rights, does that not commit one to the position that we have an obligation to provide health care and food to all of the nonhuman animals who live in the wild and might be suffering?

It is useful, first, to note that accepting the premise that we have affirmative moral obligations to act to alleviate other humans’ suffering does not entail an equation between the direct infliction of suffering, on the one hand, and a failure to alleviate suffering, on the other.  For example, I might take the view that we have a moral obligation to provide health care benefits in the United States.  Nonetheless, I (and most people, I suspect) would distinguish between failing to pass a universal health care bill, on the one hand, and voting to expose some group of people to tuberculosis to learn about the progress of the disease, on the other. 

Our obligations, then, begin with refraining from inflicting harm on others.  For this reason, if one of the doctors involved in a human tuberculosis exposure experiment simultaneously helped cure other humans of the disease, we would still classify such a doctor as doing something horrible, while the person who neither inflicted T.B. nor intervened in curing it would not earn a similar condemnation.

The priority of the rule against inflicting unnecessary harm and violence over the rule requiring affirmative assistance becomes important in assessing whether we owe health care coverage to tigers in the wild.  Because the obligation to offer affirmative assistance is not as great as the obligation to avoid inflicting direct harm, we can decide how and to whom we choose to extend affirmative assistance. 

Even if we were to pass universal healthcare in the U.S., for example, such a law would not provide care to people in other countries, just as volunteering in a soup kitchen in Ithaca does not help poor people in Tallahassee.  In neither example, however, have we assigned greater inherent value to Americans or Ithacans than we assign to people who live in other countries or cities. 

With respect to affirmative assistance, we understand that each of us belongs to many groupings – family, social network, employment, neighborhood, town, city, nation, etc. – and we understandably provide affirmative assistance to those we view as “closest” to us.  When people give to charity, in other words, they are not obligated to treat everyone in the world the same but may instead place a priority on those to whom one feels in closest relation (whether because of family relation, religious community, proximity or similarity of circumstances). 

Family represents an especially salient example of this phenomenon, because not only social norms but the law itself imposes affirmative obligations on us to take care of those belonging to our own families.  No one, of course, would suggest that such obligations reflect a judgment about family members having superior inherent value than strangers.

Just as people in the U.S. do not feel obligated to ensure that every human in the world has healthcare (but might nonetheless believe strongly that citizens of the U.S. should pay to provide healthcare to everyone living in this country), it is perfectly coherent to suggest that wild animals live outside of our community and are therefore not morally entitled to our medical interventions.  The fact that we may refrain from giving health care to wild animals does not, however, mean that we may go out and kill such animals because we enjoy doing so or because we like the taste of their flesh, anymore than our decision not to subsidize health care in other countries entails the notion that we may use people in those countries for medical experiments or as chattel slaves.

A parallel dilemma – concerning the difference between preferring humans and using animals as resources – arises in the “lifeboat” and triage hypothetical examples that often confront those of us who contend that using animals as sources of flesh and skin in the presence of alternatives is unjustifiable.  If you were in a lifeboat with a man and a dog, and you had to throw one of them overboard to avoid having the lifeboat sink, which one would you choose? 

Most people would choose to throw the dog overboard, and opponents of animal rights argue that this preference, if legitimate, somehow means that people may legitimately use and kill nonhuman animals as resources for humans.

The problem with this “lifeboat” argument is that, as with affirmative obligations, we all recognize that in triage situations, we prefer those whom we perceive as “closer” to us or as belonging to some community that we personally value more than other communities.  Most parents, for example, would choose to throw a stranger’s child overboard rather than to throw their own child overboard.  This does not amount to an assertion by the parent that the stranger’s child is not inherently valuable or that the stranger’s child may now be owned as a slave or killed in a non-triage situation.  It simply means that we permit ourselves to prefer those closest to us when we confront an emergency and must make a choice.  When we exit triage, however, we are not entitled to translate our preference into a hierarchy through which we may inflict pain, slavery, or death or those whom we do not prefer, in order to satisfy our appetites.

Very few people on this earth must consume the products of nonhuman animals to live a healthy life.  There is no need, in other words, to eat the flesh of cows, cow cheese, yogurt, butter or milk, the flesh of pigs, sheep, goats, the cheese of sheep or goats, chickens, chicken eggs, turkeys, ducks, geese, fishes, or any other nonhuman animal.  Indeed, plant-based diets are healthier and dramatically reduce the odds of heart disease, diabetes, and cancer.  They are also delicious and satisfying, which I can say as someone who has occupied both worlds. 

Furthermore and ironically, the commonly invoked hypothetical triage argument has it exactly backwards.  The production of animal flesh and products through animal breeding and farming uses up enormous amounts of water, grains and other sources of plant-based food that could be going to hungry humans around the world.  If we truly prefer the humans in the lifeboat, we ought to stop bringing farmed animals into existence (by demanding their breeding and subsequent destruction).  Eating animal products means directing much of the planet’s limited food and water to farmed animals and thereby leaving an insufficient amount of food for the rest of the planet’s human inhabitants.

Animal agriculture is destroying the planet, by being the main contributor to global warming and by generating pollutants (through, among other things, excrement runoff) that poisons our water.  None of the consumption behavior that pays for animal agriculture – and which inflicts horrible suffering and death on sentient nonhuman animals – serves the interests of humans around the globe.

In short, an ethic that says “cause no unnecessary suffering to animals but prefer humans in triage and affirmative obligation contexts” necessarily means that we stop breeding animals for consumption, that we stop consuming the flesh and products of those who now exist, and that we understand that what makes Michael Vick’s actions objectionable applies beyond dog-fighting to the consumption of the animal products in which most people -- including those who condemned Michael Vick's behavior -- engage.

Monday, March 22, 2010

The Urban/Rural Divide on Health Care

- posted by Craig Albert

I was struck, in the House votes on the health care bill yesterday, by the urban-rural divide in the vote tally. There are 75 cities in this nation whose population exceeds 250,000, and the total population of those cities is about 55 million. The House members representing 56 of those cities voted in favor of the bill, while those representing 18 voted against (Miami split). The "no votes" came predominantly from small cities. Apart from Fort Worth and Oklahoma City, all of the urban "no" votes were from cities ranked 40th and smaller by population, totaling less than 7 million. Now, if you look at the map, it's easy to see that gerrymandering concentrates Democratic power within cities, while Republican districts are drawn to go to the city border and no farther. But I wonder whether the well-documented disparities between urban and rural areas in availability of health care services has given rise to a difference in attitude toward paying for health care. The story would be that people who don't have ready access to health care and therefore use doctors less frequently, and have learned to get along without ready access, don't feel the need or desire to participate in a plan that doesn't necessarily increase access to health care services in their own communities. (By the way, the rural dwellers are not healthier than their city counterparts. According to a CDC survey, non-MSA dwellers self-report themselves as being in "fair" or "poor" health at about 50% greater frequency than MSA dwellers, although the distribution of the number of doctor visits per adult is roughly similar among the two groups.)

The Economic Catastrophe That We Avoided

-- Posted by Neil H. Buchanan

Last week, Professor Dorf posted some thoughts about the political activities of Virginia Thomas, who is married to Supreme Court Justice Clarence Thomas. Citing reports that Ms Thomas is the leader of a group of anti-government political activitists, Mike concluded that there is nothing unethical about what she is doing, even though her activities are "disturbing." Indeed. Put another way, the issue really boils down not to process but substance: It is the content of her revealed political views that should give us pause, not that she is doing these things as the spouse of a highly-placed government official.

The anti-government groups are (as far as anyone can tell) surprisingly small in number both compared to their recent influence on American politics, and also -- both as a cause and effect of that puzzling influence -- compared to the media's fascination with their activities. Even so, it is impossible at this point to pretend that their extreme views can be safely ignored. I share Mike's conclusion that these views are "disturbing," and this seems like a good opportunity to discuss a few reasons why the views of these anti-government activists are scary.

Because of their small numbers and relative lack of organization, we must be somewhat tentative in ascribing a set of beliefs to a group that seems more motivated by unfocused rage than anything else. Still, it seems plausible to isolate a core set of common beliefs. One major player in the movement is former House Majority Leader Dick Armey, who has reportedly been pushing hard to put the entire focus of this movement on economic issues rather than social issues like abortion, gay marriage, etc. The idea, apparently, is that everyone can agree on balance budgets, even if they cannot agree on what is a sin.

Because macroeconomic policy is my principal area of scholarly commitment, and budget deficits are my focus within macroeconomic policy, I am particularly concerned with the economic arguments that we are hearing from the anti-government crowd. Bob Hockett's post here on DoL last Friday did a very nice job of discussing the most important long-term damage caused by anti-deficit mania: short-changing public investment in a completely distorted effort to achieve "fiscal responsibility." I even saw one protester recently carrying a sign that read: "Spending ≠ Investment." Yes and no. Some spending is not investment, but other spending is. Pretending that all spending is the same is simply foolish. Bob's post is extremely clear and persuasive on this issue.

Here, I will focus on the other big economic issues that seem to unite this crowd: they oppose short-run deficits -- even in the face of a near-depression -- and they oppose all bailouts. Consider what the world would be like if politicians had followed this advice.

Eighteen months ago, we were watching the financial system implode, with some of the largest and most influential financial institutions in the country disappearing or, at least, becoming technically insolvent. The entire financial system was experiencing a "run" of historic proportions. The Bush administration proposed a 3-page bill giving Treasury the right to extend $700 billion in bailout money to those institutions. Understanding that -- when it comes to legislative language -- short is not sweet, the Democrats in Congress passed a different, longer bill with important oversight mechanisms and at least a decent chance of working. The Obama administration came into office and continued to administer that program. Meanwhile, the Fed pumped hundreds of billions of dollars into the banking system, to prevent the run on the financial system from bringing down the entire economy.

Twelve months ago, it looked quite possible that the symbol of American capitalism, GM, would cease to exist. Chrysler was on the rocks, too. In the midst of an economy that was already hemorrhaging jobs, this raised the specter of another million jobs being lost (in the auto industry and in auto-dependent companies) -- with those losses being concentrated in areas such as Michigan and California, which were already in huge trouble.

Some people said that we should just let GM and Chrysler fail, and Americans could buy cars from well-run companies like Toyota. (Ahem.) Instead, the Obama administration and Congress bailed out both companies, letting them move through modified bankruptcy proceedings to emerge as viable enterprises.

At the same time, Democrats in Congress (with no votes from across the aisle) passed a medium-sized fiscal stimulus package.

Where are we today? The financial system looks to be emerging from its deep freeze. Financial institutions have been tripping over themselves to pay back their bailout funds, in part to get out from under government oversight rules that they did not like. (Incentives can work.) The taxpayers have spent substantially less than the initial price tag suggested, and the ultimate number could approach zero. Meanwhile, the Fed has begun to work out plans to drain the liquidity that it pumped into the system. The auto companies have not been in the news lately, which counts as unmitigated good news.

It is, of course, possible that this is entirely a post hoc fallacy. Just because a Democratic Congress, the Bush and Obama administrations, and the Fed worked together on policies to save the financial system does not mean that the financial system's non-collapse and the economy's tentative recovery were caused by those policies. Maybe things would be even better if no one had done anything. Other than simply believing that the economy would have fixed itself (because that is what the economy unerringly does), however, there is no reason to believe such claims.

Moreover, it is difficult to take such an argument seriously from people who argue, for example, that Ronald Reagan "ended inflation" and "defeated the Soviet Union." If it happened on his watch, he caused it. Now, as we come back from the brink of financial collapse, as we see a stabilizing jobs situation (as a prelude to turning it around, one hopes), and as we see clear signs of economic health throughout the economy, can we not conclude that this was similarly "caused" by policies that Congress, the President, and the Fed enacted?

Beyond the issue of hypocrisy, the more important point is that there actually is a logical sequence by which we can understand the success of these policies. Banks were threatened with collapse because their liquidity had evaporated; TARP and the Fed provided liquidity; and the banks did not fail. States and cities were going to lay off teachers and cops; the stimulus gave them money to make that unnecessary; and the states and cities fired fewer teachers and cops. This is not difficult to follow.

The idea that these successes were accomplished at an unacceptably high cost -- by piling "mountains of debt" on future generations -- is simply wrong. Borrowing money to keep American capitalism -- financial capitalism and industrial capitalism -- alive is hardly a burden on the future. The whole point of short-term policies is to prevent the flu from becoming pneumonia. At this point, it looks very much like that is what we have done. The costs will be easily borne in the future by a larger, healthier economy than we otherwise would have bequeathed to our progeny.

As it happens, I have been critical of President Obama on both the stimulus and bailouts. My concerns, however, have been quite different: (1) There has been too little deficit spending, given the enormity of our economic problems (especially the punishingly high levels of unemployment), and (2) The bailouts were extended on terms that were both too generous and (therefore) politically damaging. The anti-government protesters, however, would have none of either.

We can argue forever about counter-factuals, but the reality is that we seem to have successfully avoided an economic catastrophe of epic proportions -- the kind of catastrophe that would have brought down the largest economy on earth (and the world's other economies with it). I am not happy with much of what happens in Washington, but the politicians did something very right. They could have, and should have, done even better; but at least they did not abandon their responsibilities to the nation and to future generations by listening to those who shouted at them to do nothing.

Saturday, March 20, 2010

The 3-D Ship Has Sailed: Can We Enjoy the Voyage?

-- Posted by Neil H. Buchanan

Last month, I posted "3-D Fails Another Test,"in which I returned to the question of whether 3-D technology in movies is much ado about nothing. Having seen "Avatar" first in 2-D, then in 3-D, I concluded that the record-setting film was just as visually awesome in either format, with no extra awesomeness accruing from the newer technology. Given that this was simply my opinion offered on a slow news day, I was not surprised to see readers (both on the comment board, and in private emails) offering both agreement and disagreement with my idiosyncratic opinion.

One reader, however, posted something of an invitation on the comment board. Disagreeing with me regarding 2-D vs. 3-D, he added: "Avatar should be regarded as an IMAX 3D movie, that happened to be shown in Digital 3D and 2D because IMAX theaters aren't the norm." Intrigued, I decided to see "Avatar" once more, this time in IMAX 3-D.

My conclusion: While nothing about regular 3-D wowed me, IMAX 3-D delivered what I had hoped 3-D would deliver. It was a completely different experience. In fact, the movie "felt" like a different experience, in the very physical sense. As a person who never, ever speaks during movies, I was shocked at one point to hear myself saying, "That's cool!" (Luckily, no one could hear me over the 10,000-watt sound system.)

This positive reaction is all the more impressive because, as I wrote in my earlier post, there is nothing especially interesting or innovative about "Avatar," with the outstanding exception of its visual breakthroughs. Even on my third viewing of a movie with average acting and a very familiar story, the IMAX 3-D technology was simply amazing. To say the least, I was never bored.

Hollywood has obviously decided that 3-D movies are here to stay, for very good cost-benefit reasons. The studios spend zillions on the new technology (including the cameras and theaters in which to display the new-style movies), and they get many more viewers (paying a higher ticket price, at least in IMAX theaters) who would otherwise have watched a pirated version on their iPhones. Unless the economics changes, therefore, we will see many more movies released in 3-D.

In microeconomics classes, however, we teach our students that there is a difference between "social cost-benefit analysis" and "private cost-benefit analysis." The difference is in the possible "externalities" that might cause the costs and/or benefits that private actors face to differ from the overall social costs or benefits. Even if a private market embraces a new technology, therefore, the new technology might still not represent a social improvement.

Obviously, we would need something more than "'Avatar' really is better in IMAX 3-D" to prove that the social benefits of filmmakers' embrace of this new technology are large enough to represent an overall social improvement. The key question (assuming away other complicating factors, as economists are wont to do) is whether the marginal enjoyment of 3-D movies is as high as the higher ticket revenues indicate, or whether those revenues somehow overstate the marginal social benefits (because, for example, the demand for tickets reflects fad effects). Given that this is armchair theorizing, I will not go into technical details about the underlying economics. The question is simply whether movies will be better in 3-D than in 2-D -- and sufficiently better to justify the much higher production costs.

To collect another data point, I saw "Alice in Wonderland" in IMAX 3-D yesterday. Very enjoyable, and a pleasant change for Tim Burton after his recent embarrassments ("Charlie and the Chocolate Factory" and "Sweeney Todd"). Unfortunately, the IMAX 3-D technology did not seem worth it. The movie is not good enough to see twice more, in the other formats, but it seems easy enough to guess that the 2-D version would be just as fun and interesting as the version that I saw. One hint is that Burton felt the need to hurl objects toward the audience at every opportunity -- a sure sign of desperation in the use of 3-D technology.

In short, I remain skeptical that movies are really going to be transformed by 3-D technologies. It is good to know that some films will make full use of the new possibilities. That, however, does not mean that we will ultimately consider the current 3-D breakthroughs to be as important as the introduction of talkies in the 1920's. They might, in fact, well come to be seen as no more important than the 3-D breakthroughs in the 1950's.

Friday, March 19, 2010

Tea Parties and T-Bills

By Robert Hockett
Neil has been so persistent, so lucid, and so thorough in addressing current fears -- which for the most part have struck me as what I'll call 'crocodile' fears -- about the longterm U.S. fiscal position that I have felt no need to comment on the subject here thus far.  That has been the case notwithstanding some awareness of and even more interest in the subject at my end.  I've nevertheless intended to offer a few cents of my own on the matter for a while now, and so, with Neil's blessing, I post on it now.

What I wish to highlight and address is a curious gap that I find in much current discussion of U.S. federal expenditures and the federal deficit.  Specifically, I find it remarkable that while tax-cutting is widely acknowledged -- particularly by Republicans and 'Tea Party' types -- to be capable of generating higher tax revenues and hence reduced deficits in the longer term, the counterpart claim that can be made on behalf of expenditures -- what I'll call 'the public investment' claim -- seldom if ever is made or so much as acknowledged.  Why do Republicans and Tea Partiers never acknowledge this possible claim?  And why do the Democrats not remind them?  That's what I want to explore here. 

Let me begin my elaboration by acknowledging this much at the outset: Recent growth in (a) the U.S. national debt, (b) U.S. government debt, and (c) the rate at which those magnitudes are growing has drawn concern from a number of even mainstream economists, policy analysts, pundits and members of the lay public. It is widely observed – even, remarkably, by some in the credit rating industry now (not that they've proved reliable of late!) – that current trends are not indefinitely sustainable, and might not even be sustainable for much longer than the present.

Although it has not yet occurred, and although great uncertainty attends the question of just when a proverbial 'tipping point' might be reached, continued federal borrowing at current rates of course must eventually reach a point at which lenders will no longer be willing to finance U.S. government operations – at any rate, not without exacting much higher interest charges than currently prevail in the credit markets. If and when that point is (eventually) reached, the debt service burden will begin seriously to crimp the material standard of living of American citizens: severe 'belt-tightening' could be imposed very suddenly. Should that occur while the financial and real economies remain in their still only tentative emergence from slump, full recovery from our recent contraction could be stopped in its tracks: a Japan-reminiscent 'lost decade' – or more – could be in the offing.  So the ultimate stakes here admittedly are high, even if timing, and even probability-weighted timing, remain for the time being out of reach.

And there is more:  The prognostications I've just recited are rendered all the more worrisome, in the view of many, by imminent demographically-wrought increases in entitlement spending on behalf of aging and retiring baby-boomers. This is of course one reason why health insurance reform is so widely understood to be urgent. Because the size of the pool of workers whose taxes fund entitlement expenditures pursuant to our 'paygo' system of entitlement finance is projected to shrink dramatically relative to that of the pool of beneficiaries well into the future, entitlement spending presented a significant projected challenge to U.S. public finance even prior to the recent contraction. Hightened federal expenditures responsive to that contraction have accordingly served simply to render that much more urgent what was already a significant looming -- even if remotely looming -- fiscal challenge.

Now in response to these and related concerns, a number of the aforementioned economists, policy analysts and pundits have begun urging retrenchment on the federal government.  And Republicans and Tea Party types have echoed and amplified such calls in particularly shrill tones.  Expenditures of various sorts, these people have admonished, must be drastically cut. By the same token, some -- albeit curiously fewer -- have argued, federal revenues might have to be boosted through the imposition or re-imposition of higher rates of taxation.

The dilemma posed by such recommendations, of course, is that any such measure -- expenditure cutting or tax hiking -- might itself put an end to the currently tentative recovery mentioned a moment ago just as surely as would a sudden rise in interest rates reflective of suddenly contracting demand for U.S. government debt instruments.  So addressing the deficit in the short term could itself result in a recovery-squelching, Japan-style 'lost decade' just as surely as doing nothing to address the deficit could.  The U.S. accordingly looks, at least prior to more careful reflection, to be caught between the proverbial rock and hard place.  What, then, to do?

I am of course not unsympathetic to, or unware of the theoretical underpinnings of, the concerns just rehearsed, as these appear in current discussion of the U.S. fiscal position -- particularly when they are raised by serious people rather than Congressional Republicans and Tea Party types. I do note, however, a conspicuous absence -- the lacuna I noted at the outset of this post.

It is a commonplace of all disciplined analysis of public finance that some fiscal measures which decrease revenues or increase expenditures in the short term will tend in the longer term to do the reverse. The familiar observation that well targeted decreases in marginal tax rates can, through Keynesian-mulitplier-amplified stimulative effects on the macro-economy, ultimately increase federal revenues is an obvious case in point. Indeed it was explicitly appealed to by members of the Reagan, Clinton, and Bush economic teams over the course of the 1980s, 1990s, and the first decade of the new millennium.  (It is what Reagan's 'Laffer Curve,' so far as I understand it, was all about; and I think that it is what candidate George H. W. Bush is said to have derided as 'voodoo economics' back in the 1980s.)

But while the idea that forgone tax revenues now can bring larger such revenues later is common, its equally if not more plausible counterpart – that greater expenditures now also can bring greater revenues later – does not seem to be as widely discussed these days. This is surprising. Any businessman or –woman, and indeed any household, knows that there is a distinction to be drawn between consumption on the one hand, and investment on the other. The same people know also that investment will often be best financed, not out of accumulated savings or retained earnings, but by borrowing. That is particularly so when interest rates are particularly low – as they remain for the present and look apt to remain for a while – and prospective future earnings, such as those that some investment multipliers are apt to produce, are high. Not to finance high-yield projects through debt when borrowing rates are low is to 'leave money on the table' by failing to arbitrage the spread between borrowing costs and project yields. Such opportunity costs are just as much 'costs' as are explicit borrowing costs.

It seems to me, then, that projections and prognostications based, as all current such projections and prognostications seem to be based, on various possible federal borrowing scenarios alone, with no account taken of what that borrowing is used to finance, are inherently incomplete. No determinate predictions, or even probabilistically weighted such predictions, can be made on such incomplete bases. One might as well try to utter a sentence without using a verb.  Everything rides upon what debt-financed federal expenditures are spent upon – in particular, whether they are spent upon productive public investments on the one hand (e.g., transportation and communications infrastructure, green technologies and infrastructure, educational facilities, etc.), or ultimately sterile or even destructive undertakings (as many wars and "nation building" projects embarked upon by past 'superpowers' like Spain, the Netherlands, and the United Kingdom, for example, have proved historically to be) on the other.

I accordingly believe that all who are seriously -- rather than what I shall call 'gimmickly' -- concerned about the federal deficit right now will add value to the current discussion over the U.S. fiscal position only when they begin seriously aiming to fill this gap. That is to say, I think we can all usefully sharpen the current debate by taking explicit account of the distinction between long-term revenue-enhancing expenditures on the one hand, and merely revenue-draining expenditures on the other hand. Doing so will afford a much fuller and more nuanced portrait of the options actually available to – as well as the dangers actually facing – our nation than is currently in circulation. It will also supply a badly needed counterpart, on the expenditure side of public finance, to the regularly encountered tax policy arguments heard so tiresomely often in connection with the revenue side of the same.

I'm even inclined to say something like 'by their fruits ye shall know them' here:  Henceforth, if you hear anyone whinging about the deficit, ask whether they are so much as mindful of the distinction between productive and unproductive debt-financed expenditure -- or between consumption and investment.  If they are not, take their expressions of concern with considerable salt.  They are crocodile tears that express crocodile fears.