Wednesday, April 30, 2014

Reasonable Legal Mistakes

by Sherry F. Colb

In my Verdict column for this week, part one of a two-part series, I consider a case on which the U.S. Supreme Court recently granted certiorari, Heien v. North Carolina.  In Heien, police stopped a vehicle on the basis of reasonable suspicion to believe that one of the vehicle's brake lights was not functioning.  Once the police stopped the vehicle, they obtained consent for a search and subsequently found evidence of drug trafficking.  On appeal, however, the North Carolina Court of Appeals held that the traffic law in North Carolina actually permits a vehicle to have only one working brake light.

The North Carolina Supreme Court assumed (but did not decide) that the Court of Appeals was correct in its interpretation of North Carolina law regarding brake lights.  Nonetheless, the state high court found that the officer's mistake of law -- if it was a mistake at all -- was a reasonable one and that when an interpretation of the law is objectively reasonable in this context, a police may lawfully rely on it to justify a valid stop, for Fourth Amendment purposes.

In my column, I take up the question whether the North Carolina Supreme Court was correct in its ruling regarding reasonable mistakes of law.  The column proposes that the good faith doctrine might provide an alternative (or even superior) basis for admitting the drug trafficking evidence that was the fruit of a stop based on a reasonable but erroneous understanding of the traffic law.  But I do not, in my column, take seriously the possibility that the drug trafficking evidence found in this case might actually be inadmissible. Here I discuss why I dismiss that possibility.

The argument that the evidence in this case was inadmissible is not a frivolous one.  If police perform a seizure of a person (which a traffic stop represents) in the absence of evidence that the person has committed an actual, existing offense, then police arguably lack a factual basis for stopping the vehicle.  Without a factual basis, police perform an unreasonable seizure, and the consequence of performing an unreasonable seizure is the suppression of the resulting evidence as the fruit of the poisonous tree.

If the Supreme Court were writing on a clean slate (at least as of 1961), I would expect this to be the result in the Heien case.  It is, almost by definition, an "unreasonable" seizure to seize someone for violating a nonexistent law, even if the police officer holds a reasonable (though incorrect) interpretation of the law.  The way that courts respond to unreasonable seizures is to suppress resulting evidence.  The victim of the Fourth Amendment violation is entitled to as much, a means of restoring the status quo ante the violation of his Fourth Amendment rights.

The Court, however, has long rejected the notion that people who experience Fourth Amendment violations are in any way "entitled" to the suppression of resulting evidence.  Starting at least in 1976, the Court has characterized the exclusionary rule -- which provides for the suppression of unconstitutionally obtained evidence -- as (1) not required by the Fourth Amendment itself and therefore discretionary with the Court, (2) exclusively a vehicle for deterring the police from violating the Fourth Amendment, and thus (3) best applied in circumstances that maximize the odds that suppression will yield better police compliance with the dictates of the Fourth Amendment.

This thinking has been part of the Court's approach to exclusion for decades, and the degree to which a majority holds this view -- one that is overtly hostile to the application of the exclusionary rule in any given context -- has only increased over time.  This is, for example, what accounts for the relatively recent expansion of the good faith exception.

Given this thinking, I have a hard time imagining that the Court would see fit to suppress evidence that was obtained as a direct result of unimpeachably reasonable behavior by the police.  Since it was reasonable for the police officer to believe that it was illegal to drive with one non-functioning brake light, the officer did nothing culpable, reckless, or even negligent by stopping a driver whose brake light appeared not to be functioning.  What, then, would there be for the exclusionary rule to deter here, and how could whatever minor deterrent value it might have possibly be worth the cost?

Whether the Court calls the police conduct a  technical Fourth Amendment violation that we cannot penalize because it is not culpable, or whether the Court calls it a valid stop under the Fourth Amendment, I am therefore confident that the Court will not find any deterrent value to suppressing the resulting evidence of drug-trafficking. For it to do so would represent a marked departure from the path it has been following for some time, and there is nothing to suggest this sort of departure.

Tuesday, April 29, 2014

Unforced Errors: Taxes, Servitude, and Duress

-- Posted by Neil H. Buchanan

Two months ago, in a post here on Dorf on Law, I expressed my extreme discomfort with everyday uses of the word "slavery" in our political discourse.  My point of departure was the casual analogies to slavery that one sometimes sees in anti-tax diatribes.  The "tax protest" movement includes people who claim that taxes violate the Thirteenth Amendment's ban on slavery and involuntary servitude in the United States, but they are hardly the only people who devalue the reality of slavery through glib abuse of language.

My latest Verdict column, published yesterday, picks up on my discussion of the more mainstream versions of the taxes-as-servitude argument that are often invoked by American conservatives.  I leave aside the "enslaving the beachcomber" argument, which I described briefly in my earlier Dorf on Law post, because that argument deserves a separate response.  (That argument is, by the way, one that even some liberals have used to analogize taxation to slavery.)  The column focuses instead on developing my objections to the Nozickian claim that income taxes are "on a par with forced labor," which forces a "person to work n hours for another’s purpose."

I begin the column with the rather unchallenging exercise of responding to the pop-culture version of Nozick's argument.  Every year, there is an announcement, dutifully reported by the media, of a day when people are "free" of taxes.  This year, the claim was that the average American had been working to pay his taxes from January 1 through April 21, and that he is now finally freed of that drudgery, once again at liberty to do as he pleases for the remainder of the year.

I will leave it to interested readers to pursue the details of my critique of "tax freedom" in the column.  My larger point, however, was to get back to the core Nozickian claim that the income tax is tantamount to forced labor.  I am currently in the process of developing a scholarly piece critiquing such claims, and I am using my Verdict and Dorf on Law writings to explore some of the ideas in a more accessible format and style.

The key error in Nozick's formulation is what I have referred to as "false aggregation."  When he said that income taxes were akin to "forced labor" because they induce citizens "to work n hours for another's purpose," he fundamentally misled his readers.  No one is forced to work because of the income tax (or, as I will explain elsewhere, by sales taxes, property taxes, or the other taxes currently in use in the U.S. and other countries).  The income tax cannot force me to start to work when I do not want to do so, and it cannot prevent me from quitting work, reducing my hours, or changing jobs.

Nozick was far too intelligent not to realize that the term "forced labor" would generally be understood in this way, with readers interpreting it to mean the government's coercive power being used to require people to toil when or where they would not choose to toil.  "Forced labor camps," after all, had a very specific historical meaning.  Even so, one could defend Nozick by claiming that my definition of forced labor is at least not the only possible definition.  Perhaps I am relying on a straw man, claiming that Nozick meant to analogize taxes to slavery when he really meant to use "forced labor" to mean something else.

What would that "something else" be?  One possibility is simply to collapse the notion of "forced labor" into the idea that "taxation is theft."  As I explained in my column yesterday, this requires one to argue that the "force" involved in taxation is merely the requirement that a person share some of the fruits of her labor with the government.  She was not actually forced to engage in labor, but once she made the choice to do some paid work, she was forced to split the proceeds with her government.  That rhetorical move, however, simply eliminates any unique content from the taxes-as-forced-labor argument.  The arguments that taxes are forced labor and that taxes are theft become the same argument, rising and falling as one.

If one still wished to believe that there is independent force (no pun intended) to the taxes-as-forced-labor argument, the best that one can make of Nozick's claim is that a person is being forced to work for more hours than she otherwise would, because the government has reduced her take-home pay.  A person facing a 20% tax rate ends up working five hours, instead of four, in order to take home enough money to buy what she wants to buy.  Taxes thus, per this reading of Nozick, force her to work that extra hour; and over the course of a year, taxes force her to work n extra hours.

But this is a truly expansive conception of force.  It is saying, after all, that there is something special about the amount of "stuff" that a person wants to buy (or the amount of saving in which she hopes to engage), such that she is operating under force when she works extra hours to reach her target earnings level.  A worker, however, is not under compulsion to consume or save a certain amount of goods and services in each time period.  (I am setting aside for now survival-level consumption, which is a special case.)  If the net-of-tax wage is lower, for any reason, than the worker would like it to be, then she has the choice to work more hours or days in order to reach her target, or to work the same number of hours and receive less net income, or even to work fewer hours (which is what most conservative economists claim will happen).  Taxes change the terms of the tradeoff, but there is no meaningful notion that the worker has been forced to make one choice over the other.  Otherwise, we are again merely collapsing the argument back to a restatement of taxes being theft, using different words.

What would be especially unusual about this possible reading of Nozick is that it is so inconsistent with general libertarian notions of individual free will.  During an economics panel a number of years ago, a left-leaning professor was describing how corporate farming operators forced laborers to work for sub-minimum wages.  After using that locution a number of times, she was interrupted by a conservative economist, who angrily shouted: "Who exactly was it that held the gun to their heads?"  The idea, of course, is that a person always has a choice not to work for the offered wage, even (or especially) when the employer is offering one that is illegally low.

Similarly, the law of "duress" is contested specifically over the question of when a person's choices are so limited as to amount to no choice at all.  Some legal scholars scoff at the very notion of the version of duress in contract law known as "economic duress," on the theory that no one is ever forced to engage in an economic transaction.  Even though contract law continues to recognize economic duress as an equitable defense, the doctrine is extraordinarily narrow, with a highly demanding definition of what counts as force.  Certainly, "I wanted to earn more than the terms of this deal allow me to earn, in the amount of time that I had hoped to earn it," would not be a successful claim.

I suppose that it is somewhat ironic that it is libertarians who generally are so tenacious about limiting the definition of force in non-tax contexts, given that some libertarians are so expansive in their use of the notion of forced labor in the tax context.  But perhaps that is merely my impression, or perhaps it is different libertarians making the argument in different contexts, such that no individual libertarian is being internally inconsistent.

That, however, is beside the point.  What matters here is the remarkably broad notion of force that would be required to save the Nozickian argument that income taxes are "on a par with forced labor."  One need not believe that people are fully free unless they literally have guns to their heads to believe that taxes are something far short of forced labor.

Which brings us back to taxation as theft.  As I argue in my Verdict column, even if one retreats from the forced labor argument entirely, by recasting taxation as a matter of forced sharing of the fruits of one's labor (which is quite different from being forced to engage in work), we are then hurled into one of the all-time great debates of classical economics: Do capitalists deserve to keep all of the surplus that they can extract from labor?

As I noted in passing in my most recent post about Thomas Piketty's blockbuster book, it is possible to simply assume that the entire output created by the combination of labor and capital is properly "earned" as wages by laborers and profits by owners, with no unearned surplus at all over which to struggle.  But that assumption is surely open to question, and the two centuries or so of scholarly inquiry about this question has turned up no convincing reason to believe what amounts to a very extreme empirical assertion: Capitalists' inputs into the labor process are, in a non-tautological sense, always (or even on average) paid exactly as much as they would be paid on the basis of their contribution to the output of the economy.

This, after all, is where the argument would stand, under this reading of Nozick.  If workers can rightly complain that the fruits of their labor have been stolen from them, by someone or something that has no legitimate claim on one's earnings, then we have to establish what the workers can truly claim as their own, and who is taking it from them.  If taxes amount to confiscation of a surplus that no one can claim as their own, then the story is quite different from the normal conception of theft.  If, on the other hand, owners are already stealing from their workers, and government steals it back and redistributes it to workers in other forms, then we have an even more complicated question of justice.

In any event, these are some initial thoughts on the notion of taxation as being akin to something slavery-like.  As noted above, I plan to return to these issues in future posts.

Monday, April 28, 2014

Rewarding Socially Beneficial Innovation: A Further Thought on the Aereo Case and High-Frequency Trading

By Michael Dorf

In Professor Hockett's preview of the Aereo oral argument last week, he argued that it would be wonderful if, in considering how to resolve the particular dispute under the Copyright Act, the Justices paid some considerable attention to the broader question of the implications of public ownership of the airwaves. In a related spirit, I want to use the oral argument (transcript now available here) as the launching point for a discussion about how Congress and the courts ought to think about innovation--both in the current context and more broadly.

First, a reminder of the dispute's basics: Aereo has facilities in various cities around the country at which it rents tiny antennae and disk space on an individualized basis, thereby allowing its customers to receive via the internet recorded broadcast programming. As Prof. Hockett explained, the key question in the case is whether Aereo's service amounts to a "public performance", and thus infringes the copyrights of the broadcasters, or amounts to mere time-shifting by the end users, and thus is permissible as not a public performance (pursuant to the doctrine of the 1984 Sony case).

Prompted by the briefing, during the oral argument, Justice Sotomayor raised concerns about the implications of plaintiffs' argument. In particular, she worried that if Aereo's transmission of the recorded signals of the broadcasters from their antenna/dvr farms in Brooklyn etc counts as an unlicensed "public performance" in violation of the broadcasters' copyright, then cloud computing might be in trouble.

Suppose I pay for and download a licensed copy of the Beatles song Across the Universe. If I keep the file on my home computer, I can play it over and over again, without the need for a public performance license, because this is a private performance. However, under the plaintiffs' view in Aereo, if my home computer syncs my files to the cloud (via Dropbox, iCloud, Box, OneDrive, GoogleDrive, or whatever), then if I happen to play Across the Universe from my cloud-based storage rather than from the hard drive of my computer, the cloud server has engaged in a public performance for which an additional license is required. And even if an additional license is not required where the file that is stored in the cloud and then played is licensed, the cloud service provider would be responsible for public performance copyright infringement in the circumstances in which its customers upload and then download unlicensed copies of material--which the cloud service provider cannot possibly police.

Paul Clement, arguing for the broadcasters, had to find a way to say that Aereo is engaged in a public performance but that Dropbox is not.  He analogized Aereo to a car dealer--providing new cars--and analogized Dropbox to a valet parking service--merely providing space--and argued further that this distinction was somehow captured by the text of the Copyright Act. He also tried to assure the Court that it could find against Aereo without deciding the cloud question. That assurance was met with skepticism from every Justice who spoke, and Dave Frederick, arguing for Aereo, stoked the Justices' skepticism by offering various arguments for the indistinguishability of Aereo from Dropbox et al.

To my mind, the crucial policy question was posed by Justice Ginsburg. Dissenting from the Second Circuit's ruling for Aereo, Judge Chin wrote the following:
Aereo's "technology platform" is . . .  a sham. The system employs thousands of individual dime-sized antennas, but there is no technologically sound reason to use a multitude of tiny individual antennas rather than one central antenna; indeed, the system is a Rube Goldberg-like contrivance, over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.
Justice Ginsburg asked Frederick whether Judge Chin was right. He said no, and offered arguably-plausible-sounding technological reasons for the many antennae rather than one big antenna, but various Justices were skeptical. CJ Roberts, in follow-up questioning, suggested that even if Aereo's technology were designed simply to take advantage of a loophole in the Copyright Act, that Aereo might still win the case, and that seems right to me: sometimes the law pretty plainly forbids X but not Y, even though Y is functionally equivalent to X; in such circumstances, persons and firms act legally when they do Y even though there is no pre-legal reason for doing Y rather than X. But insofar as the law is unclear, it does seem like the courts ought to be guided by an anti-circumvention presumption modeled on the tax law doctrine of substance over form.

Pursuant to the substance-over-form doctrine, a transaction that serves no economic purpose other than avoidance of some tax will be regarded as taxable. The doctrine doesn't apply everywhere. In particular, sometimes Congress specifically creates unprincipled exceptions that serve more or less as safe harbors; in effect, Congress writes into the Internal Revenue Code particular circumstances where form matters. But in general, the substance-over-form doctrine acts as a background principle of construction.

I would model a parallel principle for intellectual property on tax law's substance-over-form doctrine: Unless Congress has specifically provided otherwise, firms should not be rewarded for "innovating", where the innovation does not serve a technological purpose independent of fitting into some relatively advantageous legal category. As applied to Aereo, if the Court agrees with Judge Chin, the principle would mean that Aereo could be held liable for performance copyright infringement even though cloud service providers would not be. Why? Because (by hypothesis), Aereo's service is indistinguishable from a technologically superior system that would infringe the broadcasters' copyright, which Aereo is only avoiding in order to circumvent copyright; by contrast, cloud computing is socially useful quite independent of the law, as it provides storage backup and convenience for sharing and syncing files across devices.

Just as in tax law, so too in intellectual property law, an anti-circumvention principle can be difficult to apply at the margins. Does some transaction really serve no tax-independent economic purpose? Are there really no advantages of lots of tiny antennae? As the exchange between CJ Roberts and Dave Frederick illustrated, a good lawyer will be able to create doubt about such matters. But that's a reason why anti-circumvention principles are simply one factor in what will sometimes be a complex calculus.

We might also want to think even more broadly about how to structure the law to incentivize useful innovation, rather than rent-seeking innovation. That task will often be pursued best by legislative action. For example, an attentive Congress would write rules of law that distinguish between particular forms of regulation-avoiding innovation and socially useful innovation. And doing so would extend beyond intellectual property.

In that connection, consider one of the leading sub-plots discussed in the Michael Lewis book Flash Boys (about which I blogged at length here). Lewis describes the multi-million dollar construction of a path for a fiber-optic cable between Chicago and northern New Jersey, the sole purpose of which was to shave off tiny fractions of a second in the time it takes to send a signal between the markets at each end, and thus to give an advantage to high-frequency traders (HFTs) using the new line rather than those using the slightly longer, and thus slightly slower, pre-existing line. The new line did not create anything of general value, even for the HFTs themselves, but once it existed, the HFTs needed to pay to use it so that they wouldn't lose out to other HFTs.

Now note that the construction of the straighter line between Chicago and New Jersey did not engineer around legal categories, so in that sense, it doesn't fit within the same anti-circumvention story. But it's part of a still-larger story about how our society goes about encouraging socially useful innovation. It should serve as a counterweight to the standard response of those on Wall Street who reflexively resist regulation by claiming that regulation would stifle innovation. The answer to that response should be: Stifling innovation is only a problem where the stifled innovation would have served to enhance social welfare.

Friday, April 25, 2014

Piketty and the Dangers (Again) of Arguendo Reasoning

-- Posted by Neil H. Buchanan

There has been an explosion of interest in Thomas Piketty's new masterpiece, Capital in the Twenty-First Century.  My most recent post (last Friday, here) was written after I attended an event at a DC think tank, where I witnessed one extraordinary example (out of many, many examples) of the red-baiting that Piketty's book has inspired among American right-wingers.  I also plan to write my annual scholarship review for the Jotwell website about the book, and the discussion among economists and other scholars promises to continue for months, if not years.

Today, due to limited time, I will make only one point about the response thus far to Piketty's book.  In a blog post yesterday (here), Paul Krugman argued against lefty economists who object to Piketty's methodological choice to use orthodox economic tools to explicate his arguments.  In particular, Piketty uses "aggregate production functions" as a starting point, and he makes the further assumption that the owners of Capital and Labor (the two inputs into the aggregate production function) are paid their "marginal products."

Although this is in some ways a mind-numbingly technical point, it is actually quite easy to understand.  The basic idea is that economic activity generates incomes, which are generally categorized into two boxes: wages/salaries or profits.  The standard economic approach acts as if the total amounts of capital and labor can be coherently measured by one number each (even though that is not true), and it then uses a mathematical shortcut that purports to "prove" that labor is paid nothing more nor less than its appropriate total reward, based on its productivity, and the same is true for capital.  That is, there are no "extra returns" for capitalists to expropriate from workers.  The mathematical shortcut, however, cannot help but "prove" that result, because using that form merely assumes what one purports to prove.

Krugman makes two very important points: (1) It is not fatal to the analysis that production functions are a convenient analytical fiction, and (2) One can believe that capital and labor are paid their "just" returns without giving away the inequality debate, because we can still argue that the ways in which people come to own capital are unjust.  That is, we can conditionally allow that GM is not underpaying labor without conceding that the owners of GM deserve to own GM (and thus deserve their share of GM's profits) in the first place.

This is an important and elegant point, but I think that it is an extraordinarily powerful example of the dangers of arguendo reasoning that I have discussed here on Dorf on Law in the past (especially here and here).  That is, I see how one can believe that we could still win the debate over inequality, even after strategically setting aside our very real objections to the two points that Krugman is willing to hold in abeyance.  But holding them in abeyance is not likely to be static or reversible.  The more we concede, or even fail to argue, important points on which the debate could be waged, the more likely it is that those points will be viewed (even by people on the better side of the debate) as having been fully conceded, not just provisionally set aside.

And this is going to be a fierce debate.  Giving any ground, even for clever debating purposes, carries extraordinarily high consequences.  I see Krugman's point, but I think it is naive to imagine that we can hang everything on the idea that the public at large will be open-minded on the question of who should own capital.  The stakes are too high to let everything come down to that one question.

Thursday, April 24, 2014

The Burkean Argument Against Gitmo Trials, And A Stray Thought About Incorporation of the Bill of Rights

by Michael Dorf

The recent report of snooping on Gitmo defense lawyers by the FBI is disturbing, to say the least. More than twelve and a half years after 9/11, the special-purpose tribunals for trying those of the perpetrators in U.S. custody still appear to be a work in progress. As discussed in the NY Times story linked above, not only are defense lawyers and their staff being surveilled by the FBI, but the CIA had been secretly afforded the ability to cut the courtroom video feed based on its own determination of national security, quite apart from the determinations of the presiding military judge.

It is tempting to see these missteps as evidence that the current Gitmo process, while affording more protection for defendants than the original system devised by the Bush Administration, remains essentially a system of kangaroo courts. And it may well be. But there is something else that is wrong with the system: It was built mostly from the ground up. We might thus criticize the military justice system that has been constructed at Gitmo on Burkean grounds.

In offering a Burkean critique of the Gitmo system, I should be clear what ideas I am (and am not) attributing to Edmund Burke. Burke is generally credited with the observation that complex systems--including, especially, legal systems--reflect the accumulated wisdom of the ages, and thus should not be lightly discarded. Although now regarded as the patron saint of conservatism, Burke was in fact a Whig. He did not believe in blindly accepting all inherited traditions, and thus was not against change per se. He was against radical change that uproots whole systems without paying sufficient attention to the interconnection of their moving pieces. He believed in evolutionary rather than revolutionary change.

Now obviously the rules governing trials at Gitmo are not entirely a break with the civilian criminal justice system or the system of trials under the Uniform Code of Military Justice (UCMJ). There are judges, lawyers, rules of evidence, etc., rather than, say, trial by battle or an inquisition. But even if modeled on familiar rules of American justice, the system is stand-alone, so that centuries of precedents--except insofar as constitutionally required, which is itself unclear--do not apply of their own force. To my mind, the money quote from the Times story linked above is this:
Greg McNeal, a former adviser to the top Guant├ínamo prosecutor, said the military tribunal system was ripe for episodes like the one with the F.B.I. because it is so new. The civilian system and the traditional military judicial system have well-established rules and precedents for handling issues that arise. “Because it’s new and different, they may have a sense that they can get away with things,” Mr. McNeal said.
And it's not just that prosecutors have a sense that they can get away with things; everybody is legitimately uncertain about nearly all of the sorts of ancillary questions that are governed by existing precedent in the regular courts.

To be clear, the point is not that our regular approach is perfect; it isn't. But the pieces fit together in ways that have been shown to work, more or less, over time. And where they don't work, there is no shortage of reform proposals.

Thinking about the problem with starting a system of adjudication from scratch can help explain what is otherwise something of a mystery in a different context. In 1937, in Palko v. Connecticut, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not forbid a state from granting the prosecution the right to appeal an acquittal where the prosecution alleges that the trial judge erroneously ruled for the defendant on various procedural questions, even though the Double Jeopardy Clause of the Fifth Amendment would have barred such an appeal by the prosecution in a federal case. The Due Process Clause of the Fourteenth Amendment, Justice Cardozo wrote for the majority, does not impose on the States all of the provisions of the Bill of Rights; it only requires that States respect those rights that are "implicit in the concept of ordered liberty," and granting the prosecution the power to appeal an acquittal does not violate any such right.

The particular holding of Palko was overruled in 1969 in Benton v. Maryland. By that time, the Court was no longer requiring the stringent "implicit in the concept of ordered liberty" test to decide whether a right in the Bill of Rights applies against the States. Instead, the Supreme Court held that nearly all of the provisions of the Bill of Rights are applicable to the states. As the Court explained in 1968 in Duncan v. Louisiana, incorporation should not turn on whether some right is fundamental in some abstract sense--as the Palko test assumes--but instead on whether it is "fundamental to the American scheme of justice."

There is a ready legal realist explanation for the shift: the Warren Court used incorporation to rein in state courts that it regarded as violating civil rights. But what is the intellectual justification for the shift?

I read the shift from Palko to Duncan as a shift to a Burkean perspective. Whereas Cardozo's test required the Court to ask whether an American judicial system could function in a fundamentally fair manner, the Duncan test says that our notions of fair procedure are shaped in and by the system we have, and that even if one particular might be fair in some hypothetical legal system, there is simply too much path dependence in the system we have to draw such conclusions reliably.

Finally, I want to be clear that I'm not saying that the incorporation decisions apply of their own force to military trials at Gitmo. What I am saying is that we appear to be paying a price for the Bush Administration's initial fateful decision to proceed by military tribunal, and for Congress's rejection of the initial Obama/Holder effort to reverse the Bush policy.

Wednesday, April 23, 2014

SCOTUS Rejects "Political Process" Challenge to Michigan Affirmative Action Ban

By Michael Dorf

My latest Verdict column unpacks yesterday's SCOTUS ruling in Schuette v. Coalition to Defend Affirmative Action. The column speaks for itself. Here I want to add the observation that I find each of the five separate opinions unsatisfactory in one way or another.

Justice Kennedy (for the plurality of himself plus CJ Roberts plus Justice Alito): I agree with the core reasoning of this opinion but it contains an objectionable paean to the positive liberty (in Berlin's sense) of citizens to make their own decisions about race-based affirmative action. That sentiment would be easier to swallow if Justice Kennedy, CJ Roberts, or Justice Alito had ever voted to uphold an affirmative action program. But as none of them has, it's hard to take them seriously when they say that they just want the voters to be able to have their say; they want voters to have their say when they reject race-based affirmative action, but not so much when the voters choose it. The opinion also goes on about how difficult it is to tell what counts as a "racial" matter under the Hunter/Seattle line of cases. This strikes me as silly, at least in the current case, where race is expressly the topic of the Proposition.

Justice Breyer (for himself): Alone among the eight Justices who participated in the case, Justice Breyer appeared to vote contrary to his policy druthers. Props to him for that. But the rationale that Justice Breyer offers--that race-based affirmative action in Michigan was chosen by administrators rather than voters--is contradicted pretty clearly by the information Justice Sotomayor provides in dissent. And even if Justice Breyer is right about that point, he has some responsibility to decide the case on principle. What would he do if the prior regime had been local-voter-approved? The logic of his opinion suggests that he would then be with Justice Sotomayor, but her dissent has some serious problems.

Justice Sotomayor (for herself and Justice Ginsburg): I'll give her the stare decisis point. This case really does seem to follow from the rationale of Hunter/Seattle--a point that Justice Scalia also makes. But Justice Sotomayor fails to provide a good argument for that rationale. In particular, why is the baseline for analysis whatever policy a locality happens to have?  Suppose a state supreme court interpreted its equal protection clause as barring race-based affirmative action. Would that be impermissible? Would the answer depend on whether the state's EP clause pre-dated the federal Fourteenth Amendment? How could it? As I noted in my criticism of the 9th Circuit ruling in the Prop 8 case, there's no sound basis for a constitutional endowment effect. The best explanation for the 9th Circuit ruling there was that, while a state might have a rational basis for not recognizing a right to SSM in the first place, a different reason might be needed to take away the right--or perhaps the taking away manifested animus. But Hunter/Seattle doesn't rely on either of these moves. It says the taking away is problematic in itself. And that's just odd.

Justice Scalia (for himself and Justice Thomas): I agree with a lot of what Justice Scalia says here in criticism of the Hunter/Seattle doctrine but I disagree with his view that those cases were wrong even on their facts. It seems to me that Justice Kennedy has it about right when he recharacterizes those cases as really about hidden animus or invidious purpose. The Scalia opinion also contains a whole lot of unnecessary snark in support of his background view that the EP Clause requires color-blindness. Most inexplicably, Justice Scalia says here, as he has said elsewhere, that "the text" of the EP Clause "plainly requires" color-blindness. Really? The text? The text of the Fifteenth Amendment expressly forbids race discrimination with respect to voting, but the text of the Fourteenth Amendment nowhere mentions race, much less the formalistic understanding of racial equality that Justice Scalia advances. There are respectable policy grounds for thinking that color-blindness is the best understanding of equal protection (although I disagree with them), and perhaps one could make a historical argument that the original understanding of the Fourteenth Amendment requires color-blindness (although there is pretty strong evidence to the contrary), but the text is simply silent on this issue.

CJ Roberts: The Chief Justice mostly writes in response to Justice Sotomayor, apparently offended that she's implying that he's a racist. I could see why he would be offended if that's what her dissent implied, but I don't think she was saying that. She seems committed to the (odd) proposition that it would be perfectly fine for the governing board of the University of Michigan to abandon affirmative action, and that wouldn't make them racists; she just thinks (wrongly in my view) that this is problematic when done by the voters in an initiative.

Tuesday, April 22, 2014

What Rents May Broadcasters Charge?

By Bob Hockett

When I first moved to Ithaca some years ago, I was relieved by something that some people told me about television in this town – something that I suspect few would have counted as good news.  This was that it is impossible to receive television broadcasts by air in this region, such that one must seek cable or satellite service to see any television at all.

This came as a relief rather as Ulysses' being bound to the mast of his ship on approaching the Sirens is said to have relieved him.  I didn’t want to be tempted by television into wasting time, and feared that I would be thus tempted were I able simply to turn on the television unthinkingly when tired and then receive eye-catching and ultimately addictive broadcasts.  The fact that cable or satellite access would require one’s affirmatively seeking it out and then waiting for weeks before installation, I figured, meant that I wouldn’t end up getting cable or satellite service, hence wouldn’t end up turning on television unthinkingly and then being captivated by bad programs that wasted good time.

As it happens, I have since acquired cable service – just seven months ago, in fact – but happily I don't think it stems from akrasia.  It is, rather, because certain cable network programs, which I had occasion to see while on sabbatical last year when renting an apartment that came with cable, proved to be brilliant.  (I doubt that I am alone in suspecting that much of the world's best creative talent is presently engaged in the writing and producing of, as well as acting in, cable television programs.  A televisual 'golden age' appears to be underway.)  It is likely in part this new status, as one who views (alas, now too much!) cable but seldom views broadcast programs, that has me interested in the lawsuit I’d like to discuss in this post.  But that’s far from the only reason, as I’ll explain in due course.

So here is the suit:  The Supreme Court today hears arguments in a case brought by network broadcasting firms.  The case concerns yet another new communications technology’s implications for intellectual property law.  The technology this time combines cloud computing with ultrasensitive radio antennae.  With these technologies an innovative Brooklyn firm, Aereo, Inc., enables individuals who pay an $8/month fee to ‘receive,’ via antennae assigned to them on a one-person-one-antenna basis, television programs that are broadcast over the airwaves.  Customers then store these programs in ‘the cloud,’ and can download them either much later or immediately after storage, even while the programs are still airing, for viewing over the internet. 

Broadcasting networks including ABC, CBS, NBC, and Fox object to Aereo’s business model, as it appears to threaten to undercut the substantial fees that they charge cable and satellite television providers when the latter offer the broadcasters’ programs in their program packages.  The professed worry is that, if Aereo is legally able to avoid paying royalties to the broadcasters in virtue of the way its technology works, then cable and satellite firms will be emboldened to develop counterpart means of capturing broadcast programs and offering them to their customers, without having any longer to pay royalties to the broadcasters.  (Intriguingly, the leading cable and satellite firms are actually siding with the broadcasters in this suit, perhaps out of fear that some of the channels they bundle will be less compelling to no-longer-captive viewers able to access broadcast programs independently and inexpensively.)

In light of their objections, the broadcasters have brought suit against Aereo under color of the Copyright Code, demanding that Aereo be enjoined from offering its service while programs are still being aired.  As ever under the Code’s relevant language, the key question is whether Aereo is effectively transmitting network-owned ‘performances’ to ‘the public’ without having received prior permission from the owners.  The Southern District of New York effectively found that it is not, and the Second Circuit agreed in a split decision.

Cutting against the broadcaster plaintiffs is, among other things, the Supreme Court’s holding in 1984 that Sony did not transmit ‘performances’ in marketing Betamax video-recorders to customers who might subsequently use those devices to infringe television broadcasters’ copyrights in their programs (by transmitting ‘performances’).  Since Aereo customers decide whether to receive particular programs via the antennae assigned to them and then whether to record and download those programs, Aero can straightforwardly analogize their antennae-renters to Sony’s Betamax-purchasers and invite the Court to hold Aereo non-liable for much the same reasons as led it to find Sony non-liable.

Possibly cutting against Aereo, on the other hand, is the Court’s 2005 decision concerning ‘peer-to-peer’ file-sharing companies’ business model.  In that decision the Court held that, although it was the individual file-sharers who were directly violating the rights of those who held copyrights in the music and films shared as files, the marketers of file-sharing software also partook of those violations as enablers in virtue of their actively encouraging people to acquire the software whose principal purpose was to render their predicate copyright violations possible.

My own provisional view is that the Betamax decision is probably more directly on point than is the file-sharing software decision, precisely because the latter rested the indirect-infringement conclusion on the likely – and indeed encouraged – direct infringements made by purchasers of the software.  In the Aereo case, there is no claim that users of the service will be violating copyright, hence there is nothing illicit for Aereo to be ‘enabling’ by renting out antennae to its customers.  The programs in question are all broadcast gratis already over the public airwaves, and anyone with a sufficiently powerful antenna can access those programs without violating anyone’s copyright.  All Aereo does is to rent out antennae that are sufficiently powerful to do the trick.

In a certain sense, however, my own provisional read on the merits of the two sides’ copyright arguments is neither here nor there for present purposes.  I am no expert on copyright or intellectual property law more broadly, and accordingly leave full evaluation of the merits of the case qua copyright case to people like Mike’s, Sherry’s, and my colleague, Oskar Liivak.  My interest in this case is instead rooted in a distinct policy interest that dovetails with, but is not identical to the copyright interest.

The interest I have in mind has to do with certain rents that we as a public permit certain private parties to extract while using our – public – resources, and with the consequent right that we as a public have to condition extraction of such rents upon their compatibility with the public good.  I am interested in this phenomenon because it seems to me we’re not exercising that public right as we should.  We are failing to do so in a number of distinct contexts that I plan to discuss in a subsequent post, while here I’ll discuss only the broadcasting context.

The Aereo case, as it happens, involves not just one salient rent for my purposes, but two.

There is, on the one hand, that rent which is copyright itself.  Through the institution of copyright we – the public, through our laws – confer a temporary monopoly right in a particular work of art upon someone who either creates that work of art or purchases the monopoly right from the work’s originator.  The primary reason we do this seems to be that we think the work of art in question something whose creation is good, in the long run, for the broader public, but which might be under-produced in the absence of a temporary monopoly right.  The key background question in any copyright case, then, is accordingly whether the temporary monopoly rent is ultimately good not merely for the rentier, but also for us, the public, through its incenting more creating.  (I ignore for present purposes the absolutist, ‘natural right’ or ‘moral right’ justification that some advocates proffer for copyright.)

In addition to copyright rent, the Aereo case also involves what we might call sub-lessors’ rents.  As most of us have heard since our childhoods, it is ‘the public’ that owns broadcast spectrum.  ‘The airwaves’ are ‘ours’ – the general public’s – just as are public lands and waterways, and just as is the full faith and credit of the United States that ultimately backs up the liabilities of many financial institutions.  We lease exclusive rights to use specific intervals of the airwaves to particular broadcasters, in turn, and allow them to extract rents from others – others who wish to advertise – so long as they generally use their rented intervals of the spectrum for the good of the public.  Over time, the ‘good of the public’ in this context has come to be understood as free public access to that which the radio and television networks broadcast, with the broadcasters accordingly left to earn revenues by offering advertising space to other firms rather than by charging the public.

Both of these contingent rent-right conferrals upon broadcast firms, it seems to me, bear policy implications not only for the Aereo case, but also for other issues with which we as a polity have recently been confronted and will continue to be confronted.

To begin with Aereo, as just noted, the rents that we allow broadcasters to extract while using our spectrum resource are to be extracted from advertisers, not from the public.  That suggests that a service, like Aereo’s, which merely enables viewers to view more easily what they are already ‘entitled’ to view per the public’s arrangement with users of the public’s broadcast spectrum, might be expected to enjoy some presumption in its favor when a broadcaster seeks public (in this case, court) recognition of a right to charge rents to the provider of that service (in this case, Aereo).  For any such rent would be, indirectly at least, a rent charged the public – a rent charged by the tenant to the landlord, as it were.

By much the same token, because that rent-right which is copyright is conferred only insofar as it is thought necessary to encourage creative activity that we the public wish to see encouraged, there is at least some reason to presume that broadcasters’ copyrights are not infringed by Aereo.  For pursuant to our American model of broadcasting it is advertising revenue, not viewer subscription fees, which incent the production of materials that are broadcast over the radio-television spectrum.  And there seems no reason to suppose that Aereo’s service will do anything to dampen advertisers’ rental payments to broadcasters.  Indeed, quite the contrary, inasmuch as Aero will facilitate their reaching a broader audience.  (The broadcasters have apparently admitted in proceedings below that at least 90% of their revenues continue to come from advertisers.)

Broadening out from Aereo to other contexts in which publicly conferred rent-rights are salient, it seems to me worth noting an interesting connection between Aereo on the one hand, and the McCutcheon decision that Mike discussed a couple of weeks ago on the other.  It seems to me that that which occasions not only McCutcheon, but indeed all of the Supreme Court’s best-known campaign finance jurisprudence from Buckley through Austin through Citizens United on down, is precisely the fact that we permit our ‘tenants,’ so to speak – the broadcasters – in effect to charge illegitimate rents to us, the ‘landlord,’ for use of what’s properly ours.  For by far the greater part of all campaign expenditures goes to pay broadcasting firms for precious brief moments of airtime, during which insipid and downright mendacious ‘soundbites’ are tiresomely broadcast in the interest of getting candidates elected to office or ballot initiatives passed.

But if the radio-television spectrum is properly ours, the public’s, and if we as a public need frequent and sustained exposure to candidates and issue-advocates in order to form intelligent decisions as to how we should vote, then why do we permit these sub-lessor rents to be charged?  Why not instead condition our leasing out of our spectrum to lessees upon their turning the premises back over to us for specific intervals during campaign seasons, since we need those airwaves in order to function as a deliberatively democratic polity?

We might of course also wish to condition use of that spectrum by candidates and issue-advocates upon their meeting certain voting thresholds, in order to ensure that all candidates and advocates are ‘serious’ and stand reasonable chances of persuading large swathes of the public.  Presumably we also would wish to develop formatting norms to ensure that use of the spectrum by candidates and other advocates be done in an orderly manner that actually facilitates bona fide public deliberation.  But surely all of this could be managed with relative ease.  And the real point for present purposes is at any rate simply to remind us all that the spectrum is ours, that we lease it to broadcasters conditionally, and that there is no reason we could not include among the relevant conditions our right to reclaim it during specific timeslots during political campaign seasons.

It would be lovely, I think, were considerations such as these to figure into the Court’s thinking as it decides what to do with the Aereo case.  It would be lovelier still were the Congress and Court alike to think along such lines in future in a serious effort to salvage our now broken electoral campaign system.  I doubt this will happen, however, unless and until we first revive a robust and rich understanding of what resources are properly the public’s, and what that designation entails where law and policy are concerned.  I’ll offer more suggestions along these lines in a subsequent post that I’m titling ‘Public Resources, Private Rents.’  Please stay tuned (pun intended).

Monday, April 21, 2014

Whom to Punch in the Nose: Bundy, Putin, Both, or Neither?

by Michael Dorf

Popular fiction and conventional wisdom offer the same advice: When faced with a bully, don't give in, for that will only embolden him; better to stand up to the bully because every bully is ultimately a coward. To be sure, not everyone says the bully's victim should punch the bully in the nose, especially if the bully is bigger than his victim or has bully friends. Maybe the victim can enlist others in his defense, or (contrary to the unofficial rules of the schoolyard), go to the authorities.

I don't mean to be flip about a serious subject. In the last decade or so, bullying has been (rightly) recognized as a serious problem, and there is lots of good advice out there. Here I want to briefly explore its application (or non-application) to two ongoing crises: the standoff between the federal Bureau of Land Management (BLM) and rancher Cliven Bundy and his defenders; and the conflict in Ukraine.

In each conflict, each side views (or at least portrays) the other side as the bully. Thus, in Nevada, Bundy's defenders say that the federal government is bullying him. And while Sen. Harry Reid's description of Bundy's private militia as domestic terrorists drew much of the news coverage late last week, other observers worry that by backing down from confrontation, federal officials will embolden right-wing anti-federal-government militias more broadly. In short, they would prefer that the feds stand up to Bundy's bullying.

Meanwhile, in the conflict over Ukraine, Russia portrays the Kiev government as neo-Nazis intent on persecuting Russian-speakers and other minorities, while the Ukraine government and its supporters fear that if the armed men who have seized government buildings in eastern Ukraine are not confronted, they will be further emboldened (even as they also worry that the substantial bloodshed that could result from a major confrontation would serve as precisely the pretext that bully Putin wants to send Russian tanks rolling across the border).

I don't want to get bogged down in a discussion over which side is the "real" bully in these conflicts. Here, as elsewhere, the bully tag may depend on the framing. Consider, for example, the question of whether to regard Tamils in Sri Lanka as a minority, because they constitute only a little more than ten percent of the population, or as the potential hegemon because they are the largest group in the neighboring Indian state of Tamil Nadu, which is considerably larger than Sri Lanka. This question was much mooted during the Tamil insurgency that ended a few years ago, because being the smaller party conferred victim status.

So let's put aside the question of who is the real bully as ill-defined and focus on a different question of how to navigate between two grave risks in international and domestic affairs involving the use or potential use of force: If you have a hair trigger, loss of life can follow, but if you show too much restraint, you embolden bad actors who might have been stopped by a modest show of force. To over-simplify quite a bit, we might think of these competing risks as, respectively, the risk of starting World War I and the risk of appeasing Hitler and, in the bargain, not even preventing World War II.

Seen from the perspective of the federal government, how serious is each risk in each conflict?

Let's start with the Nevada standoff. Bundy and his defenders have no legal justification for their actions. The closest thing I have seen to a cogent argument on their behalf came from Sen. Rand Paul, who appears to think that there are legitimate questions about the constitutionality of the federal Endangered Species Act. He's right about that. Although I think that the ESA is valid under the Commerce Clause, I am not completely confident that five Justices of the Supreme Court would agree, at least not in all circumstances. As a circuit judge, John Roberts indicated that he had doubts about the validity of the ESA as applied to protect a species of toad that lived entirely in one state. And so, perhaps Paul is right that the underlying basis for the government's grazing restrictions are invalid--but if so, that in no way warrants Bundy in simply refusing to pay his fines, much less in taking up arms against the federal government. He could have made his argument in court.

The very fact that Bundy's legal position is so weak heightens both risks. On the one hand, it underscores that he and his followers are extremists. Directly confronting Bundy et al really could result in a bloodbath. At the same time, however, legitimizing armed resistance as a means of protest--what another Nevadan, former GOP Senate nominee Sharron Angle, once called "Second Amendment remedies"--would almost certainly invite additional armed resistance from anti-government types who hold all sorts of unorthodox legal views.

The stakes in Ukraine are ultimately much higher. Secretary of State John Kerry's announcement that the U.S. would use "21st century tools to hold Russia accountable for 19th century behavior" predictably became the instant object of ridicule: How, exactly, would Twitter and Facebook stop Russian tanks? And, joking aside, doesn't the Budapest Memorandum actually require the United States to respond much more forcefully? But of course the Obama Administration's unwillingness to use armed force in defense of Ukraine is driven by the overriding imperative of avoiding a direct shooting war between the U.S. and Russia, which could lead to nuclear armageddon.

In the end, then, the calculations for the Obama Administration look relatively straightforward: If Bundy et al can be made to comply with the law peacefully, great, but if push comes to shove, the federal use of force would be warranted. By contrast, Putin knows that Ukraine is not sufficiently important to the West to justify military conflict, and thus he is emboldened already. Economic sanctions may have some limited effect but the biggest constraint on his conduct is the conduct itself: the Anschluss of eastern Ukraine, if it comes, could be very costly to Russia.

Friday, April 18, 2014

What's a Little Red-Baiting Among Friends?

-- Posted by Neil H. Buchanan

There was an event earlier this week, held at the Urban Institute here in Washington, that captured perfectly what is wrong with "This Town."  The Tax Policy Center (TPC), a policy group jointly supported by the Urban Institute and the Brookings Institution, hosted a discussion on April 15 (announcement with video here) to mark the release of Thomas Piketty's important new book, Capital in the Twenty-First Century.

This was clearly meant to be an Important Event that should be taken seriously in This Town, so it was predictable that the organizers would invite a liberal policy wonk and a conservative policy wonk to chat with Professor Piketty about his book.  TPC Director Len Burman, an economist who is himself a veteran of these dog-and-pony shows, thus hosted Dean Baker of the Center for Economic and Policy Research (The Liberal) and Kevin Hassett of the American Enterprise Institute (The Conservative).  Because Piketty's book is being hailed by liberals, and because Burman has advised Democrats over the years (and TPC is thought to be left of center), one might be forgiven for imagining that Hassett was alone in a hostile environment.

When Hassett spoke, however, he made it clear that this was simply a group of old friends talking shop.  Hassett began by noting that it was Tax Day, suggesting that people at liberal places like the Urban Institute would celebrate that wonderful day by "bringing out the party hats."  Good yucks all around.  We're all pals here.  He even went out of his way to note that Brookings had given him an early break in his career, and he also mentioned that he and his old friend Burman had sometimes thought that they ultimately disagreed merely about a few empirical estimates, rather than anything fundamental about how to approach economics or tax policy.

Sadly, that is essentially true.  As a methodological matter, Hassett and Burman are solidly in the inner circle of orthodox economists who trade places in successive administrations.  The conversation on Tuesday, therefore, was peppered with references to "CES production functions" and various insider references to empirical economics papers, with Hassett accusing Piketty (very politely, of course) of cherry-picking from the statistical literature to support his call for higher wealth taxes.

All of which would have been merely annoying and only too predictable, had it stopped there.  Hassett, however, did not stop there.  He made two further moves that genuinely surprised me, and not in a good way.  First, he made a moral claim in the guise of a technical claim, asserting that the current distribution of consumption in the U.S. is acceptable, given the large amount of government transfer payments that allow after-tax-and-transfer inequality to be less extreme than before-tax-and-transfer inequality.  I should say that I was not surprised that Hassett tried to change the conversation to consumption from income and wealth, because that is a standard move by conservative economists; but I was disappointed that no one called him on it.

The surprising parts of that claim were the blithe assertion that the current distribution is presumptively acceptable, and the idea that we could continue to maintain that distribution with current levels of transfer payments.  No one called him on the former claim, but Piketty effectively (if subtly) responded to the latter claim.  After all, when we talk about the "transfer payments" that supposedly make things acceptable, we are talking mostly about Social Security and Medicare.  Hassett was one of the top economic advisors to the Romney/Ryan campaign in 2012, and he is generally part of the conservative chorus that claims that those transfer programs are unsustainable.  When he said on Tuesday that we can rely on those programs well into the future, so long as they are "funded," he essentially said that the way to keep the current distribution going was to raise taxes to pay for Social Security and Medicare.  When Piketty pointed that out, the audience got the joke.

But it was Hassett's second move that simply blew my mind.  As I have noted before, there is a tendency among too many people on the right to red-bait their opponents, and especially to attack academics as out-of-touch lefties.  This, however, is supposed to the territory of nameless cranks, and the Sarah Palins of the world, not economists at Establishment conservative think-tanks like AEI.  Yet there was Hassett on Tuesday, ending his remarks by invoking the conservative economist Joseph Schumpeter, who, Hassett said, "had great respect for Marx's intellectual accomplishments."  OK, so why are we talking about Marx and Schumpeter?  "So here's the interesting thing, and I found Schumpeter very, very compelling.  Schumpeter and Marx agreed that capitalism was going to destroy itself, but for different reasons."

After a slight digression, Hassett got to the point:
"Schumpeter thought that as we got richer and richer, what was gonna happen would be that all of our kids would go to universities, and when they went to universities, they would be more and more over time, presented with a professoriate that was really anti-capitalist.  ...  He thought that the problem would be that academics would be digging deeper and deeper to try to find flaws in capitalism and would be proselytizing against it all the time."
 At that moment, Hassett's final PowerPoint slide attributed the following to Schumpeter:
"He argued that the academy would become the focal point of opposition to capitalism and would subsequently breed an intellectual elite that would control the media, and ultimately politicians themselves. The academy would reflexively hate capitalism because it is the job of the intellectual to criticize, and because academics detest people who actually accomplish something. Professors would envy the wealthy, and feel themselves more worthy."
Rick Santorum would be proud!  This is the litany of grievances from the extreme right, including all of the claims about "intellectual elites" who "hate capitalism" -- and do so "reflexively" -- because their job is to find fault with people who "actually accomplish something."  There is nothing in Hassett's remarks (and his attributions to Schumpeter) that we have not heard on Fox News or from Limbaugh or Beck.  This is an attack on professors who supposedly think they're better than everyone else, who do nothing but tear things down.  But of course, he said all of this while smiling and being friendly.  So he must be reasonable when he insinuates that Piketty is helping capitalism destroy itself, right?

Hassett was quick to absolve Piketty himself of such insidious intentions, even while red-baiting unnamed people who like Piketty's book:  "I would argue that -- and it's certainly not the case that that is what's going on in this book -- but if you look at some of the discussions of the book, I think that Schumpeter would find that that is an echo of what he thought was going to happen."

So the problem is not Piketty himself, because it is "certainly not the case" that the book under discussion proves that professors accomplish nothing and simply dig deeper and deeper to find flaws in capitalism, or that this an example of proselytizing against capitalism.  Perish the thought!  But "some of the discussions of the book" are eerily similar to what worries Hassett, allowing him to suggest that capitalism will be destroyed by people who take inspiration from Piketty's book.  Piketty might not be anti-capitalist, but he is apparently a fellow traveler or an enabler, aiding and abetting those who are poisoning the minds of our young people.

This was quite a performance.  Inside the walls of a respected Washington think-tank, people sat politely while a supposedly non-extreme conservative policy wonk slandered the professoriate and red-baited those who are engaging in "some of the discussions" of Piketty's book.  Any remaining doubts about whether there is a "reasonable right" in this country dimmed even further on Tuesday.  But in This Town, it is important to smile and applaud, and act like nothing happened.