Posted by: Chris | December 31, 2012

Happy Decennial, Metroid Prime

As we head towards the end of the year, I just realized that the best game of the past decade (though decidedly not gaming’s “Citizen Kane,” whatever that might mean) turned a decade old itself last month.  I am in fact playing through the game again over the holidays, on the sadly limited edition Metroid Prime Trilogy (which is going for >$200 on the interwebs these days), once again reminded of how good it is.

IGN celebrated the decennial with an exhaustive summary of its tumultuous development and rapturous reception.  They also checked on the ill-conceived Metroid movie, which was thankfully also ill-starred.  Kotaku observed the centennial preemptively, with a lengthy interview with Retro and Nintendo back in 2009.

Of course, the Lure has written on the game as well.  We argued that MP has the best map in gaming, defended its placement at the top of the heap (while still blanching at IGN’s effusive and inaccurate praise), and preemptively (and perhaps prematurely) lamented Retro’s post-Metroid design choices.

Finally, if you need more Prime reading material, here’s one of the best reviews of the game I have encountered.

Posted by: captainfalcon | December 31, 2012

Seidman on Constitutional Quietism

In an op-ed yesterday, lurefave Louis Seidman lists what he perceives to be the baleful influences of our Constitution: it has “[1] saddled us with a dysfunctional political system, [2] kept us from debating the merits of divisive issues and [3] inflamed our public discourse.”  He argues that we should solve this problem by practicing “constitutional disobedience.”  The label he has chosen is regrettably inflammatory because he does not seem to seriously propose that constitutional actors should violate constitutional commands.  Instead, Seidman would retain our constitutional rights and institutions in (it would appear) more or less their present form, but he would change “the basis on which [constitutional actors] claim legitimacy [for their conduct].”

The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief.  Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine.  The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

What Seidman argues for, therefore, is not constitutional disobedience but constitutional quietism: in our public deliberations, we should not invoke the Constitution or its values as often as we do.  It is not clear to me that Seidman’s proposal would remedy what he perceives to be the three baleful influences of the Constitution.

1.  Political dysfunction.  What creates the “dysfunction” (if dysfunction there be) of our political system is not the rhetorical mode in which different actors within it seek to advance their interests, but the social and institutional powers those actors possess.  This is not a necessary truth — one can imagine a situation in which one group’s interests are only capable of being advanced as long as a particular mode of rhetoric retains currency — but that doesn’t appear to me to be true of the hear and now.  So without changing our institutions Seidman cannot change our political system (let alone improve it).

2.  Debating the merits of divisive issues.  The best way to test whether reducing the role of constitutional rhetoric in public deliberations would result in debates on the merits of divisive issues is to look to the non-constitutional arguments that are routinely made in public.  These arguments occur both on their own — in those cases where everybody agrees that a hot-button topic does not implicate the Constitution — and as a supplement to constitutional debates.  There is no guarantee that these non-constitutional debates do not merely replace appeal to one set of conversation-stopping norms (constitutional norms) with another (commonsense moral shibboleths, religious platitudes or economic slogans).  As Seidman has recognized elsewhere, there is also no reason to think that appeals to these kinds of norms (all are supposed to have a claim on each of us) are undesirable all things considered.

3.  Palliating our political discourse.  It is a trope that appeals to the Constitution inflame political discourse because they imply not just that a policy is a bad idea but also that it is illegal.  The problem with this trope is that it is widely understood that accusing an opponent of acting unconstitutionally is not a grave charge on the order of accusing him of violating a more routine law.  Instead, accusations of constitutional infidelity stand on the same footing as accusations of corruption, accusations of treason, accusations of socialism or communism (or fascism) and demonization of the intellectual heroes of the opposite side that are the coin of contemporary political discourse.  Routine accusations of constitutional infidelity are a symptom of our inflamed political discourse; they are not causes of it.

Seidman’s proposal would, at least, be ineffective.  It is also infeasible, as Seidman’s op-ed ironically proves.  In arguing for the reasonableness of constitutional quietism, Seidman draws heavily on the constitutional disobedience of the founders, thereby underscoring that the Constitution is so vital a source of political legitimacy that even those seeking to depart from it must appeal to it in so doing!  It is a dramatic demonstration of our powerlessness in the face of ideology.

Posted by: captainfalcon | December 27, 2012

Punishment and Intentional Infliction of Harm

David Boonin defines legal punishment as “authorized reprobative retributive intentional harm” (Boonin, 23).  He argues that this is permissibly cashed out as follows:

  1. Authorized: Punisher is a legally authorized official acting in his or her official capacity;
  2. Reprobative: Punishment expresses official disapproval of punished;
  3. Retributive: Punisher punishes because punisher (correctly or reasonably) believes that punished has committed an offense; and
  4. Intentional: Punisher punishes with the intent of harming punished.

Boonin believes his definition helps to distinguish what we pretheoretically think of as punishment from similar practices.  Quarantine, restitution, private executions and detention of prisoners of war all (correctly) fail to qualify as legal punishment whereas imprisonment, criminal fines, and impoundment in the stocks all (correctly) qualify.

I wonder whether his definition needs the “intentional harm” part.  Consider a judge who sentences an offender to a term of imprisonment even though he knows that the offender is wholly indifferent to going to prison (or even slightly prefers going to prison to the alternative*).  It is unlikely, maybe incoherent, that this judge intends to harm the offender.  But I’m still inclined to classify the sentence as punishment.  (If you are not, consider whether the means by which the state imposed this sentence would make a difference.  What if, at sentencing, the judge explains that the reason for the imposed sentence is that offender is a remorseless criminal who deserves to serve hard time?  What if the offender is roughly led away in shackles? Etc.)

This is a version of what Boonin calls the “masochist objection.”  Boonin thinks the masochist objection only applies to the harm requirement, not to the intentional harm requirement, but in fact it applies equally to both. Boonin replies that “even if [a] treatment is, in general, a form of punishment . . . [i]f subjecting a particular offender to a particular treatment does not harm her . . . she has not been punished” (Boonin, 12).  He gives two arguments for this reply.

The Symmetry Argument.  First, he argues that “there is a conceptual symmetry between punishment and reward” and “in the case of reward, it should be clear that a person has not been rewarded for doing a good deed if the treatment that she receives in response does not in fact end up benefiting her.”  He gives as an illustrative example somebody who is rewarded with a piece of candy, which causes a “severe allergic reaction” (Boonin, 9).  While we might say that there was an attempt to reward her, we would not say that she was actually rewarded.

The Cushy Sentence Argument.  His second argument, which rests on an intuition that apparently conflicts with the intuition my objection relies on, is that whether we are inclined to regard a sentence as punishment depends precisely on whether the sentence inflicts harm.  As Boonin puts it, “[w]hen a stay in a minimum-security prison for white-collar criminals seems to resemble nothing more than an all-expenses-paid vacation at a comfortable resort . . . people do not consider the offender to have been punished and they complain about his being treated so leniently precisely for this reason” (Boonin, 9)

With one important disanalogy, the Symmetry Argument and the Cushy Sentence Argument are structurally similar.  In the first, Boonin hypothesizes a putative reward that causes serious harm; in the second, Boonin hypothesizes a putative punishment that causes apparent pleasure.  The important disanalogy is that the putative reward actually causes harm whereas (as far as Boonin’s hypothetical is concerned) the putative punishment only appears to confer a benefit.

My intuition in the first case is that the putative reward actually qualifies as a reward whereas in the second case the putative punishment fails to be a punishment.  What explains this difference in intuitions, I think, is that in the first case the reward is successfully approbative (the candy expressed approval) whereas in the second case the punishment is not successfully reprobative (it did not express disapproval; in fact, it signaled that the state is prepared to wink-and-nod at well-heeled lawbreakers).  Thus, what does the work here is reprobative element, not the intentional harm element.

Maybe you don’t share my intuition about the Symmetry Argument.  A possible explanation why is that we tend to treat serious mismatches between the express purpose of conduct and its obvious effect as prima facie evidence that the express purpose is a pretext.  For example, when Congress said that its purpose in passing the Violence Against Women Act was to protect interstate commerce, we rejected that because the effect was not the protection of interstate commerce but the protection of women.  When a teacher fails a student for missing a deadline by ten minutes and then says he did it to teach him an important life lesson, a plausible hypothesis is that the teacher bears a grudge.  Or (why the Cushy Sentence Argument works) when the state send a white collar criminal to a cushy prison, a plausible hypothesis is that the state doesn’t really disapprove.

To eliminate the possibility that your intuition about the Symmetry Argument is the result of thinking that the putative reward was pretextual, consider a modified case where the person who receives candy as a putative reward just happens not to like candy very much.  (Or imagine somebody who receives the medal of honor but is wholly indifferent to it.)  What intuition then?

* Our intuitions about the case where the offender is happy to go to prison are not reliable.  Assume we have the intuition that an offender who is happy to go to prison has not been punished.  Boonin would argue that this is evidence that legal punishment requires offenders to be harmed.  But, equally, we might think that the punishment does not express official disapproval.  A reason we think this is that there can be a connection between harming somebody and expressing disapproval — a harmful act more typically expresses disapproval than does the conferral of a benefit — but this connection is not enough to sustain the intentional harm requirement.

Posted by: captainfalcon | December 24, 2012

Punishment and Desert

David Boonin makes a nifty argument in The Problem of Punishment to the conclusion that legal punishment — which Boonin defines as the state-authorized intentional infliction of harm  on offenders for reprobative purposes *– cannot be justified by the thought that offenders deserve punishment.

The argument runs as follows.  Imagine there’s only one kidney and five people who need transplants.  Four of the five are villains; one is a saint.  Imagine, further, that the saint clearly deserves the kidney.  E.g., assume (1) that, ceteris paribus, saints deserve medical treatment more than villains do; and (2) that things are ceteris paribus, i.e. there are no countervailing  facts such as that one of the villains was promised the kidney, etc.  It does not follow that the saint may be forced to undergo a kidney transplant.  If he refuses to undergo the transplant, for example, then the transplant may not be imposed on him.

The lesson is that the fact that A deserves x does not entail that x may be imposed on A.  Thus, the fact that an offender deserves punishment (if, indeed, he does) does not entail that the offender may be punished.  Something extra — e.g. the forfeiture by the offender of his right not to be punished — is needed.  (A response — deserving punishment and deserving rewards are not structurally similar kinds of desert — is ad hoc.)

* A weakness of Boonin’s book is its conception of legal punishment, which imposes too heavy a burden on those who would defend the practice (to show that it is defensible for every offense).

Posted by: i82much | December 22, 2012

Arnold’s Christmas Special

Better or worse than the Star Wars special?

Posted by: captainfalcon | December 18, 2012

Glenn Reynolds is an ass

And this was amusing.

Posted by: Chris | December 14, 2012

Epigenetics Made You Gay

At least, that’s what you might have read on the internet.  Unfortunately, it appears to be another case of science journalism telephone with bloggers misreading press releases misreading studies, ultimately leading to a sensationalist but erroneous conclusions.  The phenomenon is sadly not a new one.  Indeed, just last month, an over-excited NASA scientist gushing about Mars dust got the science press in a tizzy over potential aliens.

Regardless, even though the paper (accessible through jstor) does not “prove” anything about anything, it does set out an interesting hypothesis.  They first argue, using evidence from previous research, that sex hormones alone cannot explain sexual determination in humans, as fetus hormone levels are too variable and inconsistent to reliably ensure sexual differentiation.  Therefore, the body must have some trait that canalizes the process, making it less perturbable to flucuations in hormone levels.  The authors suppose that sex-specific epi-markers (things like DNA methylation that change the physical structure of genetic material but do not alter the base-pair sequence) are precisely that canalizing agent and build a model to demonstrate how this could work (I should note for clarity that everything beyond this point is hypothetical and explicitly a hypothesis to be tested):




Now this hypothesis would be interesting on its own (and definitely worth further investigation), but the authors went a step further and proposed that, if true, their theory of epi-markers assisting in sexual determination would also help explain the evolutionary puzzle of homosexuality.  They argue that, generally, the newly-formed embryo would create its own sex-specific genetic markers, based on the presence or absence of a Y chromosome (or even the SRY-gene itself).  However, residual markers on the genetic material inherited by the embryo from its parents may remain, and, if from the opposite sex parent, could muck with the sensitivity of the embryo to testosterone levels during development, leading to partially masculinized/feminized fetuses, especially after the gonads  are formed and fetus testosterone levels begin to approach one another.  Using a mathematical fitness model, the researchers demonstrate that the canalizing sex-specific epi-markers would be evolutionarily advantageous and be expected to reach fixation in the gene pool, even if some cross-generational leakage led to homosexual offspring (which the researchers posit not unreasonably to be damaging to fitness in a vacuum).

In all honesty, it is a really interesting hypothesis, as it avoids the specious logic usually involved in arguing that homosexuality in and of itself is an evolutionary advantage while providing the details that proponents of pleiotropic explanations usually cannot (and is certainly superior to the germ of the gaps and other fringier explanations).  I am really interested to see what the researchers and others do with the model and am curious if the gayness-as-parental-vestige hypothesis will ultimately pan out.  I just wish the science press had not assumed it already had.

Posted by: captainfalcon | December 12, 2012

The Originalist Gliberati

It’s said that there came a time when Hugo Dyson, who belonged to the same literary group as JRR Tolkien at Oxford, would writhe about on the floor moaning “My God, no more elves! No more elves!” when Tolkien would produce yet another draft chapter of The Lord of the Rings.  

I feel the same way about Andrew Koppelman’s new application of originalism.  “Does an originalist reading of the Thirteenth Amendment support a right to abortion?”  My God, not another exercise in exegetical virtuosity by a legal thinker too talented to be a mere ironist.

Text and history are indeterminate, no doubt.  And Balkin has taught that a gifted legal rhetorician who consciously, but without ever breaking character, pursues a motivated reading of the historical source material can craft a publishable progressive originalist reading of the Constitution that is tolerated (or even embraced) by the relevant professional community — legal academics — in part because it is gifted rhetoric, in part because it skewers the right-wingers, and in part because, maybe, it will actually help promote good results.

But it’s gone too far in two respects.  First, it should never have become a cottage industry.  A few exemplars of the genre — Balkin’s original trifecta — rather stunningly make the important point: originalism is capable of manipulation; originalism is political; its claim to objective authority (the only claim it ultimately has going for it) is bogus.  Piling on adds nothing of intellectual worth.

Second — a problem, distinctively, with Koppelman’s essay — glibly trying to shoehorn abortion rights into the Thirteenth Amendment by arguing that its original meaning covers them is reflective of a stunted moral sensibility.  To be sure, any possible interpretive argument to the contrary can be met by the formidable array of technologies the gliberati have developed or co-opted to make history cohere with their policy preferences.

 Argument: Nobody intended the Thirteenth Amendment covered the right to abortion; Response: intent is inapposite; what matters is the original meaning.

Argument: Okay, but nobody would have understood the Thirteenth Amendment to cover the right to abortion. Response: what matters is the meaning understood at an appropriate level of generality — did they understand the Thirteenth Amendment to embody a principle that extends to the right to abortion? 

But I am not making an interpretive argument here.  I am making an ethical one: it is not appropriate to transform the Thirteenth Amendment from a symbol of our repudiation of chattel slavery into a political weapon to promote even laudable contemporary political ends.  The Thirteenth Amendment should be approached reverently.  It should be fenced off from those parts of the Constitution where the ironists can play.  Glib readings of the Thirteenth Amendment are disgusting and wrong.

Posted by: captainfalcon | December 8, 2012

More on Standing in Windsor

Looks like I missed something in Windsor — just because the DOJ declines to defend the constitutionality of DOMA does not mean that, absent the BLAG’s having Art. III standing, there isn’t a case or controversy:

Notably, in the DOMA case (United States v. Windsor), the Justices can reject the BLAG’s status as defendant-intervenor and still rule on the merits.  There is an Article III case or controversy between the executive branch and Edith Windsor.  Although the executive is not defending DOMA, it is enforcing the law; in this case, the executive mandated that Windsor pay a federal tax on the estate she inherited from her same-sex spouse.  (If the federal government recognized Windsor’s marriage, she would have been entitled to a spousal deduction.)  The executive thereby injured Windsor and, in so doing, set the stage for a constitutional challenge.  The Court therefore, in our view, properly granted the Solicitor General’s certiorari petition and can resolve the concrete dispute between the executive and Windsor.

This seems absolutely right.  There is nothing in principle wrong with courts ruling on the merits even where a party does not appear on abandons its defense.  The alternative would be totally perverse.  Live and learn.

Posted by: captainfalcon | December 8, 2012

Grants of Cert. in SSM Cases

1.  Here are the questions presented in Hollingsworth v. Perry, the challenge to California’s proposition 8.

2. Here are the questions presented in United States v. Windsor, the challenge to DOMA that arose in the Second Circuit.

My thoughts.

First, one reason the Supreme Court decided to grant cert. in United States v. Windsor instead of Massachusetts v. DHS, the First Circuit DOMA challenge, is that Kagan was Solicitor General during the early stages of that case and might have felt pressure to recuse herself. 

Second, as a friend of mine pointed out, the question presented in Hollingsworth is far broader than the question the parties presented in their petition for certiorari, which suggests that the Court is, at least, not interested in foreclosing a broad constitutional challenge to state prohibitions on same sex marriage, as opposed to a challenge based on the unique circumstances in California. [Update: this also leaves open an interesting possible pair of results — (1) uphold prop. 8 b/c states have exclusive right to define marriage as they see fit; (2) strike DOMA for the same reason.]

Third, in both cases the Court has asked for briefing on justiciability issues, so, as this post points out, they are giving themselves an escape hatch in case they decide they don’t want to reach the merits.

Fourth, the justiciability issues in Windsor strike me as complicated and potentially interesting.  Two questions are presented.  First, whether the fact that that the United States accepts the Second Circuit’s opinion striking DOMA means that the Supreme Court is deprived of jurisdiction to hear the case; second, whether the Bipartisan Legal Advisory Group (BLAG), which intervened,  prior to either the First or Second Circuit’s handing down their DOMA decisions, to defend the constitutionality of the statute after DOJ demurred, has standing as a constitutional matter.

This may be purely hypothetical, but it seems to me these questions come apart in interesting ways.  Specifically, if the Court decides that it doesn’t have jurisdiction to resolve Windsor on the merits then it simply dismisses the suit while leaving the First and Second Circuit opinions standing.  If, on the other hand, it decides that BLAG lacked constitutional standing then I think it must overrule the Second Circuit opinion because BLAG intervened in the suit before the opinion was handed down.  A defeat for BLAG thus becomes a victory for anti-SSMers.

Another interesting question is what impact the Court’s holding that BLAG lacked constitutional standing would have on the First Circuit opinion.  Presumably the Court could not also overrule that, because it hasn’t taken it, but could the First Circuit sua sponte void it?  Or would the issue of the precedential status of the First Circuit opinion simply have to be litigated in a future proceeding in the First Circuit e.g. arising from a federal denial of benefits to same-sex couples?

Posted by: captainfalcon | December 5, 2012

Razib Khan on Conservatism

Chris linked to an essay by Razib Khan arguing that empiricism implies conservatism.  Khan defines empiricism as the conjunction of two attitudes: (1) we should “cautious of overturning practices and customs that have served society and individuals in good stead” (preference for the status quo), and (2) social change should occur through “an interative process that sifts optimal solutions by trial and error and maintains previous patches along the way” (preference for incrementalism).  Khan grounds his preference for the status quo and for incrementalism in epistemic humility.  “Human affairs are complex, contingent, and difficult to tease apart in their interrelationships,” so we should be wary of tinkering with them least we cause them to come completely unraveled.

Khan believes that these two attitudes, undergirded by epistemic humility, support empirical conservatism, which he defines as the view that “there doesn’t have to be a reason for a practice; its very persistence across generations is a mark in its favor, because the prejudice is that persistent practices are not harmful at worst and may be positively essential at best.” To clarify what this prejudice means in practice, Khan explains how the empirical conservative approaches whether to allow gay marriage:

Let us observe homosexual relationships and see if they flourish. On an empirical conservative worldview, the aim of marriage is not to fulfill a simple principle such as equality but to develop human life in full. Monogamy, whether heterosexual or homosexual, seems to fit that bill. In contrast, polygamy and polyamory seem suboptimal for a variety of reasons, although individuals make the arrangements “work” in some cases. Instead of reducing the argument for gay marriage to one of legal equality, one should enumerate the social benefits to a wide swath of individuals that legally sanctioned monogamy allows. Additionally, the reality is that gay marriage as a practice has been introduced in various locales without any negative consequences. The experiment has been attempted and seems to be a success.

Khan’s essay has at three flaws.  Its first flaw, clear from the portion purporting to apply empirical conservatism to the problem of gay marriage, is that it does not grasp the sweeping scope of the empirical conservatism that it has defined.  Khan believes that the empirical conservative should eschew arguments for gay marriage based on legal equality in favor of arguments based on the continued success of communities where gay marriage has been introduced.  He therefore thinks that empirical conservatism implies a (arguably pseudo)-scientific methodology for deciding whether a particular change should be supported.  This is not the case.  On Khan’s definition, empirical conservatism is a general prejudice in favor of persistent practices.  An entire category of persistent practices are decision procedures for deciding whether a particular change should be supported.  These procedures, including rights-based legal argumentation, are longstanding and venerable (I dare say, far more longstanding and venerable than Khan’s pseudo-scientific methodology for evaluating the desirability of gay marriage).  The empirical conservative thus should not recommend eschewing arguments from legal equality; he should embrace those arguments as part of a deep-rooted practice of, uh, politico-legal social dynamism.  Indeed, the empirical conservative should embrace virtually all of the common forms of politico-legal argumentation and reform that operate in America today for precisely the reason that they are common and they operate in America.  He therefore should have no cause to intervene in any political debate that is recognizably a political debate; his concerns should be confined to preventing radically different forms of politics from emerging.

The second flaw in Khan’s essay is that it does not provide for any principled way to define a practice presumptively worthy (a fortiori) of preservation.  Practices can be defined at varying levels of generality.  Take, for example, the practice of restraining people who violate criminal laws.  One statement of this practice is just a list of all the variegated ways in which we confine people.  Another statement is more general but still quite specific; the practice of confining people for certain periods of time in certain conditions for certain conduct and under certain public policy justifications.  Another is even more general still: the practice of confining people for certain periods of time (never mind the conditions).  Which one is the practice?  Define it too specifically and Khan’s conservatism becomes ridiculous (even on its own terms — how many times have we made minute adjustments to legal regimes without experiencing catastrophe?).  But how broad can one go?  This is a matter of crucial importance for concrete policy questions; until it is answered empirical conservatism can provide no guidance.

The previous two criticisms reduce empirical conservatism to a vague warning against radicalism.  This broad anti-radicalism, too, cannot stand because it rests on a faulty inference (one that is at odds with what conservatives believe in other contexts), viz. from the premise that human relationships are complex and difficult to tease apart to the conclusion that therefore we should walk on eggshells when trying to make policy, lest we disrupt the contingent web and cause all to come tumbling down.  But surely the complexity of human relationships, and the difficulty in teasing them apart, actually supports the view that they are resilient, and so it takes quite a lot to disrupt them.  (This is, indeed, a lesson conservatives are happy to absorb in other contexts, e.g. when focusing on the abject failure of Stalinist efforts to create an idealized Soviet Man.)  And if human relationships are, indeed, resilient then risks from significant social interventions that all would recognize as catastrophic (e.g. every single person starves) are vastly more remote than the empirical conservative would have you believe.

Assuming the falsity of empirical conservatism’s thesis that society is fragile does not require rejecting empirical conservatism’s anti-radical attitude.  It does, however, require recognizing its partiality.  In light of the fact that even major social interventions are seriously unlikely to promote results that are catastrophic for all, empirical conservatism’s anti-radicalism is the proper posture only for some.  Risk aversion is for people who have something to lose.  For people whose lives are intolerable — slaves, criminals, the miserably poor, (until recently) gay people — a roll of the dice is rational.  It wouldn’t be if the assumption of empirical conservatism that human society is always perched on the brink of unthinkable catastrophe was correct, but it isn’t.

In short, empirical conservatism is not a universalist panacea and politics remains a mired in dissensus.  Who’d’ve thunk.

Posted by: i82much | November 29, 2012

Bad Kids Jokes

Bad Kids Jokes

John has 32 cookies he eats 28 of them what does he have


Posted by: captainfalcon | November 28, 2012

A Natural Intuition Pump

This debate [follow the links] between Samuel Bagenstos and Michael Cannon is a good intuition-pump-in-the-wild.  It only needs a little background before it can be summarized.  The background is that an important component of the Affordable Care Act is that it provides tax subsidies to people who purchase health insurance.  In this way it incentivizes (and enables) entry into government-created health insurance exchanges, which is essential to creating the insurance risk-pool that makes the health insurance for which the ACA provides affordable.

Central to Cannon’s argument is that the ACA provides for two different kinds of government-created health insurance exchange.  Section 1311 provides a means for states to set up health insurance exchanges.  Section 1321 provides that, in states that do not set up health insurance exchanges, the federal government will do so.  Cannon notices that the only provision in the ACA providing for the tax subsidies that are necessary for the proper functioning of the health insurance exchanges provides tax credits for purchasers in the exchanges “established by the State under section 1311.”  There is no parallel provision providing for tax credits for purchasers in the federal exchanges.  Inference: purchasers in federal exchanges are not entitled to tax credits.  The argument is actually made most forcefully simply by excerpting the relevant provisions:

  • Section 1311(b)(1) “Each State shall not later than January 1, 2014, establish” an exchange.
  • Section 1321(c)(1) “If [a state does not establish an exchange] . . . the Secretary shall . . . establish and operate such Exchange within the State.”
  • Section 1401(a) “In the case of an applicable taxpayer, there shall be allowed as a [tax] credit . . . an amount equal to the premium assistance amount . . . which is the monthly premium[] [or adjusted monthly premium for] qualified health plans . . . which were enrolled in through an Exchange established by the State under [Section] 1311” (emphases added).

In essence, Cannon argues that because Section 1401(a) only provides for tax credits for taxpayers enrolled in exchanges established by the state under Section 1311, taxpayers enrolled in exchanges established by the federal government under Section 1321 are not eligible for tax credits.  The result, of course, is that the federal exchanges will break down because the ACA does not provide a component that is essential to providing their risk pool and enabling universal access.

As far as I’m concerned Cannon’s argument from the text is as good as any argument from the text can be.  Samuel Bagenstos tries to argue that Section 1321(c)(1)’s provision that the federal government shall establish and operate “such Exchange” within the State if the State fails to do so means, as a textual matter, that there is no difference between Section 1311 exchanges and Section 1321 exchanges – the latter just are the former.  But plainly there is a difference between the two; Section 1311 exchanges are created by the States, whereas Section 1321 exchanges are created by the federal government.  The two exchanges have the same phenotypes but different parents.  And this is precisely the difference that Section 1401 endows with significance when it — the only provision to provide tax credits — provides only that tax credits shall be allowed to taxpayers enrolled in exchanges established by states under 1311.

On the other hand, Bagenstos is surely right that Cannon’s interpretation will eviscerate federal health exchanges.  One persuasive piece of evidence is the fact that it is Cannon’s interpretation.  (Cannon, who works at the Cato Institute, is strongly opposed to Obamacare on political grounds.)  Equally persuasive is a rudimentary understanding of how the health exchanges are supposed to work (risk pools) and what end they are supposed to serve (universal health coverage).

Text strongly supports Cannon; purpose strongly supports Bagenstos.  How would you decide the case?  How should we decide the case?  These questions, instances of the debate between purposivism and textualism, are hoary and well trodden, but they are worth visiting in a concrete context where the only intellectually honest position to take is that purpose and text are clearly and diametrically opposed.

Posted by: Chris | November 25, 2012

Razib Khan on Epistemology, Empiricism, and Conservatism

In keeping with a current theme in these parts, Razib Khan has detoured from genetics blogging to write a couple of recommendable posts on the benefits and limits of appealing to contemporary expert opinion instead of accepting received wisdom.  Some choice quotes:

All that being said, the economist’ faith on the power of mass market signals (“the crowd”) often strikes natural scientists as peculiar. When talking about elections it does seem that the “crowds” are going to be superior to the judgement of individuals or powerful quantitative models (after all, elections are about crowds!). But there is a long history of the crowd being wrong in the very specific areas of natural science which rely on contingent and formal fameworks to make non-obvious predictions on somewhat complex systems. But that’s because in some areas of the natural sciences humans have a systematic bias due to intuitive psychological tendencies. Aristotle’s model was just more intuitively plausible than those of his skeptics’ for a few thousand years. And quantum theory would never win a crowd-vote. One Bohr is worth a thousand other humans. I think this long history of the worthlessness of mass market intuition across large swaths of the territory of science is why many scientists find technocratic solutions very appealing. The formal reflections of the elect has worked miracles in physics, so why not “social physics” (i.e., economics)?

Science is special because there is no ancient wisdom. The ancients were fools, by and large. I mean no disrespect, but if you wish to design a rifle by Aristotelian principles, or treat an illness via the Galenic system, you are a fool, following foolishness. Science is the true ladder to heaven, anyone who has practiced it can not be help be amazed by its miraculous powers of prediction.

Non-scientific domains are not like this. A lawyer sees in the Corpus Juris Civilis a document which is different in degree, not kind. It is not obvious to me that modern ethics has progressed appreciably in substance as opposed to taste beyond Aristotle. The Iliad is still poetic greatness, in whose shadow moderns dwell. New Age reflections generally pale in comparison to the Bhagavad Gita. Marcus Aurelius’ Meditations can speak still to us down the ages.

All political persuasions are a mix of norms and assumptions about the way the world is arranged. When you make false assertion about the nature of things, you will make worthless inferences. The cultural Left which denies non-trivial differences between the sexes engages in faulty social engineering, because the science is not robust. Similarly, the cultural Right which denies the biological nature of much homosexuality does a disservice to its ultimate project of fostering virtue. Note that any assumption of what is does not here necessarily entail what ought to be. But it is much easier to achieve an ought if you accurately characterize the is.

Relatedly, Razib gave a great speech to some secular organization defending political conservatism, properly understood, on empirical grounds.

Posted by: captainfalcon | November 22, 2012

Unpublished Summary Orders

[NB: this post draws extensively on Brian Soucek’s Copy-Paste Precedent, which I thought was wonderful.]

When you think of a court resolving a legal dispute you typically think of a judge (or panel of judges) carefully reviewing the record and then crafting a custom opinion that is the judge’s or panel’s considered view of the merits of the case.  The opinion will cite extensively to the facts of the specific case, draw heavily on legal opinions, engage the best arguments on either side of the issue, and, in the end, be published in an official compendium of judicial opinions (in the federal system, this is the Federal Reporter) so that future courts and litigants can rely on the opinion for guidance.  The opinion will stand, authoritative within its sphere, fully binding other courts to follow it (or distinguish it, but at least to engage with it).

In the intermediate federal courts of appeals this is not how it actually works.  Instead, the opinion described above is a published opinion, whereas the vast majority of cases decided in the circuit courts are resolved through unpublished summary orders.  (For example: in 2010-11 the Second Circuit — which handles all federal appeals arising in New York, Connecticut and Vermont — 89% of all decisions were unpublished summary orders.)

The differences between published opinions and unpublished summary orders

Federal Rule of Appellate Procedure 32.1 requires federal appellate courts to allow litigants to cite both published opinions and unpublished summary orders.  (Unpublished is something of a misnomer; unpublished summary orders are actually reproduced in a reporter called the “Federal Appendix;” published opinions can be found in the “Federal Reporter.”)  Nonetheless, published opinions and unpublished summary orders differ in several respects:

(1) Substantively, published opinions are (as indicated above) bespoke; they are supposed to be carefully reasoned and attentive to nuanced factual and legal distinctions.  Unpublished summary orders, by contrast, are typically boilerplate: one paragraph reciting the law that is often copy-pasted from a prior unpublished opinion, another applying the law to a conclusory statement of facts.

(2) Judges are typically heavily involved in the drafting process for crafting a published opinion.  While their clerks may produce a memo, or even a first draft, judges will usually undertake extensive revisions, correspond with their clerks and other judges about the relevant issues, and request followup research as needed.  Judges will also hear oral argument on issues resolved by published opinions.  By contrast, unpublished summary orders are often drafted by career court staff attorneys (as opposed to the judges’ personal clerks), rubber-stamped by the judges, and resolved “on the briefs” without benefit of oral argument.

(3)  Finally, unpublished summary orders have a different legal status from published opinions: published opinions are precedent; unpublished summary orders are not.  This means that while courts are supposed to follow published opinions (absent a compelling reason to overrule them), they are free to ignore unpublished summary orders.  Litigants can cite to summary orders, and judges can accord those orders “respectful consideration,” but there is a huge difference, both in theory and in practice (even though theory and practice may diverge), between according an opinion respectful consideration and treating it as precedent.

Read More…

Posted by: i82much | November 22, 2012

The worst thing you’ll see today

Absolutely terrifying ad for .. ice cream?

Posted by: Chris | November 11, 2012

Romney Had No Idea

At least according to CBSNews:

Romney and his campaign had gone into the evening confident they had a good path to victory, for emotional and intellectual reasons. The huge and enthusiastic crowds in swing state after swing state in recent weeks – not only for Romney but also for Paul Ryan – bolstered what they believed intellectually: that Obama would not get the kind of turnout he had in 2008.

They thought intensity and enthusiasm were on their side this time – poll after poll showed Republicans were more motivated to vote than Democrats – and that would translate into votes for Romney.

As a result, they believed the public/media polls were skewed – they thought those polls oversampled Democrats and didn’t reflect Republican enthusiasm. They based their own internal polls on turnout levels more favorable to Romney. That was a grave miscalculation, as they would see on election night.

Those assumptions drove their campaign strategy: their internal polling showed them leading in key states, so they decided to make a play for a broad victory: go to places like Pennsylvania while also playing it safe in the last two weeks.

The Romney camp had lined up a fireworks display to celebrate the victory and even prematurely launched a transition website.  The candidate himself truly did only write a victory speech, as he had bragged to reporters, and was forced to scribble out his concession speech around midnight.

Apparently, they were under three misimpressions, all of which had been debunked by the combination of political scientists, pollsters, and statisticians commenting on the election:

1. They misread turnout. They expected it to be between 2004 and 2008 levels, with a plus-2 or plus-3 Democratic electorate, instead of plus-7 as it was in 2008. Their assumptions were wrong on both sides: The president’s base turned out and Romney’s did not. More African-Americans voted in Ohio, Virginia, North Carolina and Florida than in 2008. And fewer Republicans did: Romney got just over 2 million fewer votes than John McCain.

2. Independents. State polls showed Romney winning big among independents. Historically, any candidate polling that well among independents wins. But as it turned out, many of those independents were former Republicans who now self-identify as independents. The state polls weren’t oversampling Democrats and undersampling Republicans – there just weren’t as many Republicans this time because they were calling themselves independents.

3. Undecided voters. The perception is they always break for the challenger, since people know the incumbent and would have decided already if they were backing him. Romney was counting on that trend to continue. Instead, exit polls show Mr. Obama won among people who made up their minds on Election Day and in the few days before the election. So maybe Romney, after running for six years, was in the same position as the incumbent.

In truth, undecided voters do not consistently break towards challengers (late deciders went for Obama in 2008 and Bush in 2004).  Independents are not synonymous with swing voters.  Instead, they are an amorphous category that has swelled with disaffected Republicans since 2008 (indeed Republican-leaning independents are more conservative than Republicans).  Most damning, pollsters are agnostic to a priori turnout models: they simply let the likely voter screen guide their projection of the breakdown of the electorate, which turns out to be much more accurate.  In fact, the only pollsters assuming a specific turnout result were Rasmussen and the Romney internal team, both of whom badly misread the election:

Mitt Romney says he is a numbers guy, but in the end he got the numbers wrong. His campaign was adamant that public polls in the swing states were mistaken. They claimed the pollsters were over-estimating the number of Democrats who would turn out on Election Day. Romney’s campaign was certain that minorities would not show up for Obama in 2012 the way they did in 2008. “It just defied logic,” said a top aide of the idea that Obama could match, let alone exceed, his performance with minorities from the last election. When anyone raised the idea that public polls were showing a close race, the campaign’s pollster said the poll modeling was flawed and everyone moved on. Internally, the campaign’s own polling—tweaked to represent their view of the electorate, with fewer Democrats—showed a steady uptick for Romney since the first debate.

All of this belies the image Romney, at his most persuasive, tried to portray to the American people: that of a competent manager and a sophisticated consumer of data who would be able to cut through the bullshit and turn the country around.  Instead, he commissioned faulty polls and isolated himself in a bubble of misinformation.  Rather than invest early in infrastructure and field offices, they stockpiled their funds for a last-minute push that made little difference in the polls.  When they did spend, the campaign did so recklessly, waiting for the last minute to buy TV ads at a hefty premium, for instance, which allowed the Obama campaign parity in advertising despite the disparity in funds.  Their ground game was predicated on software that was never field-tested or explained to volunteers and was rolled out on the day of the election (and promptly crashed):

 On Election Day, the whole Romney ground-game flopped apart. ORCA, the much touted- computer system for tracking voters on Election Day, collapsed. It was supposed to be a high-tech approach to poll-watching, a system by which campaign workers would be able to track who voted. Those who had not yet voted could therefore be identified and then have volunteers tasked to finding them and getting them to the polls. ORCA was supposed to streamline the process, but it was never stress-tested. Field operatives never saw a beta version. They asked to see it, but were told it would be ready on Election Day. When they rolled it out Tuesday, it was a mess. People couldn’t log on and when they did, the fields that were supposed to be full of data were empty. “I saw a zero and I knew I wasn’t supposed to be seeing a zero,” said one campaign worker. A war room had been set up in the Boston Garden to monitor ORCA’s results, but in the end Romney and Ryan had to watch CNN to find out how their campaign was doing.

By contrast, the Obama camp planned months ahead and invested deeply in data-gathering, modeling, and analytics to guide the campaign’s actions:

Obama for America made what Messina called an “unparalleled” $100 million investment in technology. The reelect, said Messina, would be different than 2008 — a time when the iPhone was in its first iteration, when Facebook was one-tenth of its current size, and when the Obama campaign sent just one tweet on all of Election Day (“We thought it was a stupid technology that would never go anywhere,” said Messina).

Under Messina — the metrics-obsessed brain behind the operation — the campaign once defined by ideals and hope and change, became all about the data.

“We were going to demand data on everything, we were going to measure everything,” he said during the panel. “We were going to put an analytics team inside of us to study us the entire time to make sure we were being smart about things.”

Every night, Obama’s analytics team would run the campaign 66,000 times on a computer simulation. “And every morning,” said Messina, “we would come in and spend our money based on those simulations.”

Their models ultimately predicted Florida results within 0.2%, and Ohio within 0.4%. The only state they got wrong, noted Messina, was Colorado, “where we got one more point than we thought we would.”

The Obama campaign was able to do that, he said, because it turned away from mainstream polling from shops like Gallup, which he called “wrong the entire election” — specifically, in their prediction that fewer minorities and young people would turn out to vote.

“We spent a whole bunch of time figuring out that American polling is broken,” said Messina. “We never did a national poll. We only did local and state polls.”

The Romney campaign, by contrast, put heavy stock in the national tracking polls.  The New York Times reported a similar gap between the campaigns capabilities:

In Chicago, the campaign recruited a team of behavioral scientists to build an extraordinarily sophisticated database packed with names of millions of undecided voters and potential supporters. The ever-expanding list let the campaign find and register new voters who fit the demographic pattern of Obama backers and methodically track their views through thousands of telephone calls every night.

That allowed the Obama campaign not only to alter the very nature of the electorate, making it younger and less white, but also to create a portrait of shifting voter allegiances. The power of this operation stunned Mr. Romney’s aides on election night, as they saw voters they never even knew existed turn out in places like Osceola County, Fla. “It’s one thing to say you are going to do it; it’s another thing to actually get out there and do it,” said Brian Jones, a senior adviser.

Ultimately, the picture emerges of two campaigns: one a metric-obsessed business with its eye constantly on the bottom-line; the other a inefficient and insular bureaucracy, making decisions based on anecdotes and good vibes.  Its only fitting that the former won.

Posted by: Chris | November 7, 2012

Did Romney Know He Had Lost?

I overheard a conservative classmate today cursing out the Romney campaign today, not for running a poor campaign (though he did lament that), but for lying about their internal numbers.  Based on their assurances that all the pollsters were wrong, he bet on a Romney victory (and, needless to say, lost).  But more interesting to me, is implicit in this charge is the assumption that the campaign itself knew how poor his margins were in the first place.

There is some credible evidence that the Romney campaign was not entirely honest with their attempt to spin an imminent Republican victory.  As Jon Chait pointed out at the time, the Republican nominee’s rhetoric of confidence did not actually match with his campaign’s actions, suggestive of a last ditch attempt to vault into the lead through self-fulfilling prophesy.  Likewise, Nate Silver argued that the shift to Pennsylvania towards the final weeks was a defensible long-shot based on the resiliency of the Ohio polls, especially given Romney’s abundant money advantage.

But other data points are less easily explained.  The Republican candidates’ time, a resource nowhere near as bottomless as their bank account, was spent disproportionately in these long-shot states as well.  Further, the Romney camp went far beyond the typical cautious optimism of most political campaigns and certainly beyond what the ultimately victorious Obama reelection effort did to convey their confidence.  Surrogates proclaimed certainty in not just a win, but a big one, even as the polling soured more pronouncedly.  While both campaigns pushed back against disfavorable polls (something Romney did more frequently just because the polls suggested he was losing), days before the election, Romney’s own pollster discussed the internal polling with the press to argue that Romney was winning (note: not gaining or within the margin of error or any such fudging but winning) in key swing states.  The candidate himself told reporters he only wrote a victory speech, while Obama mentioned he had both prepared.  Most telling, though, was the campaign’s reaction on election night, when the networks called Ohio and thus the presidency for Obama.  The Romney camp publicly disputed the call (despite the voting being clearly not even close) and refused to concede for over an hour after  being declared the loser (and well after it became clear the votes just weren’t there).

All of these bits of information point to a campaign that appears to have believed their own spin on the election, that the real numbers pointed to a clear Romney victory.  If true, it is a pretty damning critique of the Republican bubble.

Posted by: Chris | October 30, 2012

Disney Acquires Lucasfilms

George Lucas decides Star Wars is too big for him to ruin by himself:

The Walt Disney Company, in a move that gives it a commanding position in the realm of fantasy movies, said Tuesday it had agreed to acquire Lucasfilm Ltd. from its founder, George Lucas, for $4.05 billion in stock and cash.

The sale provides a corporate home for a private company that grew from Mr. Lucas’s hugely successful “Star Wars” series, and became an enduring force in creating effects-driven science fiction entertainment for large and small screens. Mr. Lucas, who is 68 years old, had already announced he would step down from day-to-day operation of the company.

In a hastily convened conference call with investors Tuesday afternoon, Robert A. Iger, Disney’s chief executive, said the company plans to release a seventh “Star Wars” feature film in 2015, with new films in the series coming every two or three years after that. Mr. Lucas will be a consultant on the film projects, Mr. Iger said.

Silver lining: it could be a Thrawn movie

Posted by: captainfalcon | October 30, 2012

Three Thoughts on Pop-Skowronek

I just got around to reading Jack Balkin’s Skowronek-lite.  I think it was one of the better examples of that pitiable genre.  Three thoughts:

1. I wonder if it’s possible to have a disjunctive-preemptive president, who comes from the opposition and presides over the demise of the prior reconstruction while still implementing policies that bear its mark.  I’d think Obama could be one of those, such that it’s up to the next president(s) to reconstruct.

2. I wonder whether it is helpful to categorize presidents, as opposed to slices of time, as disjunctive or reconstructive.  Why does a reconstruction (or disjunction) need to be accomplished during a single presidency?  It seems equally possible, maybe more likely, that a period of oscillating affiliation and preemption could shade into a period of disjunction, which could, in turn, shade into a period of reconstruction.  While it gives me pause that Skowronek’s book always focuses on single disjunctive or reconstructive presidencies, thinking about it like that would refocus Skowronek’s epigones on what their majordomo himself wanted to concentrate: the politics the presidency makes as opposed to the politics presidents make.  An added benefit: by making it more difficult to assimilate routine political commentary to a political science framework, decoupling Skowronek’s theory from election-cycles would also make it more difficult for academics who want to try their hand at commentating on the horserace to pretend they are doing something highbrow.

3. To my point that Skowronek’s theory is not meant to aid in the inferring of facts about where we’re situated in political time from the politics of the moment, I think it is notable that Skowronek has never tried to do this.  (Bleg: is this true?)

I think this is the justification for scrupulously complying with grammar and usage conventions even where compliance does not enhance either the quality or clarity of the ideas expressed.  By its terms, the justification is limited to contexts where “authoritativeness” matters.  Thus, where you don’t care about the authoritativeness of your writing — where you are jotting notes to yourself, writing for aesthetic purposes, seeking to persuade without relying on an aura of authority,* etc. — slavish adherence to norms of grammar and usage is pointless.  (This is another virtue of the justification, as it gels with our (…my) intuitions about where attention to form stops being prudent and becomes fetishistic.)

Two open and related questions are, first, how important for one’s authoritativeness is slavish adherence to form, and, second, does the importance of such adherence vary across communities?  My sense is that usage and grammar are particularly weighty factors for evaluating authoritativeness in the legal community.  Other communities have their bugbears — using “beg the question” to mean “invite the question” in philosophy can detract from authoritativeness (whereas lawyers routinely use it in that sense) — but few accept, the way the legal community does, the legitimacy of judging a work by its grammar and usage (as opposed to its content), and few are as globally attentive to lapses in proper form.

I think the explanation for how strongly the legal community believes that authoritativeness depends on form is that, given our rule of law values, the fewer personal judgment calls appear in the law the more legitimate it appears.  The more you adhere to norms of grammar and usage the less you appear to be exercising your own judgment as opposed to channeling objective conventions.  This makes your legal writing appear more legally legitimate and thereby makes it more authoritative.

* I haven’t bothered to define “authoritativeness.”  Volokh’s explanation is incomplete but adequate for my purposes; one has authoritativeness where “when the argument involves judgment calls — is the case really that similar to that precedent? what are the practical effects of a ruling likely to be? — the reader will be inclined to be moved by the argument even beyond what the purely logical force of the argument justifies.”

Posted by: Chris | October 23, 2012

TED Blows

Via Andrew, it appears TEDxCharlotte got unintentionally Sokaled.  A man named Randy Powell gave a speech about something called vortex mathematics to which the enlightened TED audience gave a rapturous standing ovation.  It turns out vortex mathematics is fairly transparently nonsensical, just a gobbedly-gook of physics buzzwords arranged to sound as if every statement is pregnant with revelations.  TEDx, in damage control, has removed the offending video, but Mr. Powell is sufficiently prolific on the tubes that you easily can get a glimpse of what the audience in Charlotte applauded:

Charlatans do love to mangle Einstein.

I know we’ve been to this well before, but this latest embarrassment has churned up some more excellent TED critiques.  The last one, from science writer Carl Zimmer, gets to one of the key defects of TED as a conduit for reliable information: the complete disengagement of the audience:

Unfortunately, some TED talks about science don’t live up to Huxley’s example. The problem, I think, lies in TED’s basic format. In effect, you’re meant to feel as if you’re receiving a revelation. TED speakers tend to open up their talks like sales pitches, trying to arouse your interest in what they are about to say. They are promising to rock your world, even if they’re only talking about mushrooms.

So the talks have to feel new, and they have to sound as if they have huge implications. A speaker can achieve these goals in the 18 minutes afforded by TED, but there isn’t much time left over to actually make a case–to present a coherent argument, to offer persuasive evidence, to address the questions that any skeptical audience should ask. In the best TED talks, it just so happens that the speaker is the sort of person you can trust to deliver a talk that comports with the actual science. But the system can easily be gamed…

Zimbardo never seriously grapples with this kind of research in his book, even to mount an argument against it. Instead, he races off to his next anecdote, his next bullet-point list of statistics. And that’s the most TED-like quality of The Demise of Guys. When a TED talk end, the lights go out. There’s no time for questions.

TED reduces to an experience not a lecture.  Viewers are expected to abdicate critical thought to better enable the intended effect: that of the presenter’s genius overwhelming one’s faculties and producing the enjoyable sensation of making unintuitive  connections.  Unfortunately, this format only encourages gaseous vacuity and grand pronouncements that do not hold up to scrutiny.  Complexity, skepticism, or any admission of uncertainty intrude on the experience and are thus anathema to the typical TED talk.

The elevation of form over substance also rewards those whose knowledge base is quite shallow, provided they can mimic the format sufficiently.  This is what enabled not only Mr. Powell the new age mathematician, but countless other mountebanks with more gumption than sense.  Take, for instance, video from TEDxAustin:

Ms. O’Brien, in a  talk on the dangers of genetically modified organisms, mentions during the opening patter that she has the typical “older sibling, Type A genes.”  Its no wonder that everything that follows is misinformed or provably wrong.  But accuracy seems to matter little to those who curate TED and TEDx.

Posted by: Chris | October 20, 2012

Calling Pastor Mike Heath!

The 2012 election is shaping up to be a fairly apocalyptic one for the Maine Family Policy Council at least.  Not only is gay marriage likely to become the law of the land, paganism has gone bipartisan.  If the Republican Party is no longer a bastion of monotheistic faiths (at least the non-ululating varieties), is there nothing constant in this world?

Posted by: Chris | October 13, 2012

The Vacuity of the Second Obama Term

Ross Douthat and Peter Suderman explore, from different angles, why the Obama campaign has avoided outlining what a second term might look like.  Suderman focuses in on the man himself:

That was Obama’s pitch to America. He would allow all of us to escape the mundane reality of politics, to live that better story with him, and erase the messiness of the past and present—just as he had done for himself. In Dreams from My Father, Obama’s 1995 book about his itinerant childhood and work as a community organizer in Chicago, the pre-presidential candidate recalls his grandfather’s habit of rewriting uncomfortable truths about his own history in order to produce a better future. Obama, who as a child lived with his grandparents for many years, admits to picking up the habit himself: “It was this desire of his to obliterate the past,” he writes, “this confidence in the possibility of remaking the world from whole cloth, that proved to be his most lasting patrimony.”

Obama applied that very American tradition to politics. His campaigns would be about making the world a better place—more personable, less racially charged, more united in goals and respectful in temperament—more true, in other words, to the story we all wanted to believe about America. The ugliness of politics past would lose its grip on the reimagined future.

But the power to imagine is not the power to accomplish. Vague, high-minded goals get sullied when translated into specific, practical policies. Nearly a full term of a moribund economy has turned the words hope and change into bitter punch lines. As time passes, the suspicion grows that the same narrative gift that made Obama so interesting and fresh in the mid-1990s contained the seeds of his failure as a president. Storytelling, it turns out, is no substitute for governance, and nothing ruins a promising writer faster than the practice of wielding power. As the allure of Obama’s dreams wears off, so has the allure of his presidency. Obama promised to change politics; instead, politics changed him.

While Douthat takes a bigger picture approach, echoing some of our Skowronek inspired points:

Sometimes Obama-era liberalism has disappointed because it has failed outright. The defeat of cap-and-trade legislation and the stillborn push for immigration reform exposed the deep fissures within the Democratic Party, and particularly the divide between the enlightened do-goodism of the party’s upper-middle-class supporters and the economic interests of its remaining blue-collar constituents.

The steadily worsening deficit picture, meanwhile, has been a reminder that an expanding government balance sheet makes sense only if you can persuade taxpayers to pay more to cover it, which Obama’s party hasn’t done. More important, given the limit to how much money can be extracted from the wealthy, it makes sense only if you persuade middle class taxpayers to pay more, which Obama’s party hasn’t even tried to do…

Again, every administration has its share of disappointments, and every ideology has to make concessions to political reality. But what we don’t see in this campaign cycle is much soul-searching from Democrats about the ways in which their agenda hasn’t worked out as planned.

Instead, in a country facing a continued unemployment crisis and a looming deficit crunch, liberals have rallied behind a White House whose only real jobs program is “stay the course” and whose plan to deal with long-term deficits relies on the woefully insufficient promise to tax the 1 percent. When Obama insiders wax optimistic about what a second term might bring, they mostly talk about pursuing legislation on climate change and immigration yet again, without explaining why things will turn out differently this time around.

Highly recommend both.

Posted by: Chris | October 13, 2012

Statistical Illiteracy, Ctd.

This piece is such a mess I am surprised it was written by a tenure professor at an Ivy League school (Cornell, but still) and published in a national magazine (Time, but still).

Posted by: Chris | September 21, 2012

Why The GOP Lost the 2012 Election, Ctd.

Mark Thompson uses some terribly placed billboards outside Philly to make a larger point about the GOP’s insularity:

The billboard, which states “Obama supports gay marriage and abortion. Do you? Vote Republican,” is one of at least two identical such ads placed by the Republican Party on I-95 north of Philadelphia.  This particular stretch of road is perhaps amongst the most trafficked stretches of road in the country, and certainly in the Northeast, meaning that any billboard is going to catch well in excess of 100,000 eyeballs a day.  Many, perhaps even most, of those eyeballs belong to suburban Philadelphia voters from places like Bucks and Montgomery counties, which just so happen to be about the most important swing districts in the entire state, and are home to about 10 percent of the state’s total electorate.  Combined, they have roughly the same amount of population as the Democratic stronghold of Philadelphia itself., and more than double the population of all of the Republican Central Pennsylvania stronghold.

Simply put, Republicans cannot win, or even really compete, in Pennsylvania without winning in Bucks and Montgomery counties. In other words, any political billboards on I-95 just north of Philadelphia are presumptively aimed entirely at folks from Montgomery and Bucks counties.  These folks are also, on average, the classic fiscally conservative, socially liberal Northeastern moderates of lore.  They are the reason why, even before President Obama’s announcement flipped African-American sentiment on gay marriage (which was always weakly held anyhow) in Philadelphia, gay marriage may have already had the support of 50 percent of the state’s voters; these counties are also noticeably more pro-choice than the rest of the state.

In effect, the above billboards, despite their imperative to “Vote Republican” are about as effective an ad as one can imagine…. for President Obama.  The ads tell a critical group of swing voters that, by and large, are fairly likely to answer the question “do you?” in the affirmative that President Obama agrees with them on the issue.

As importantly, in a year where the economy is as terrible as it currently is, this ad ensures that the national Republican Party is reaching out at least twice a day to this group of voters to tell them that gay marriage is the issue at the core of this election, the issue that most defines President Obama’s record.  Not taxes.  Not jobs.  Hell, not even health care.  Indeed, not anything that actively and tangibly harms or threatens to actively and tangibly harm these voters.  But gay marriage and abortion?  The message this billboard sends, even to those in the area who are ambivalent on gay marriage and abortion, is “even if you like what we have to say on other issues, we’re not actually very interested in the issues that matter to you.”

And so, nationally, it would seem, the Republican Party* remains fairly uninterested in what actually matters to voters outside of the party’s rural strongholds.  Instead, it seems to just assume that their problem is merely that people haven’t heard their message, rather than recognizing that it’s a message people outside of those rural strongholds just aren’t buying.

I’ve seen the ads in question and they really do paint the party in the worst light imaginable considering the target audience.

Posted by: Chris | September 13, 2012

Murder on the Orient Express

While everyone else has been clutching their pearls at Mitt Romney’s latest display of tactlessness, the Chinese heir apparent has disappeared and is possibly dead.

Posted by: captainfalcon | September 10, 2012

Bain Gains

As you all may know, Bain Capital and some other private equity firms are under investigation by the New York Attorney General for tax evasion.  Whether the investigation is politically motivated or not,* the legal strategy underlying it was supposedly inspired by this academic tax paper, which does a good job describing the tax avoidance tactic at issue.

To understand how the tax avoidance tactic works you need the following background.  Historically, and glossing various accounting issues and niceties of corporate structure, private equity managers have made money in two ways.  First, they have been paid a yearly “management fee” of 2% of the total money invested in their fund.  Second, they have received “performance-based” compensation of 20% of all gains to the fund calculated over the fund’s entire lifespan.  Importantly, the way the performance-based compensation is structured is that management (1) receives 20% of capital gains as calculated on a yearly (or maybe quarterly) basis, but also (2) agrees to a clawback provision that requires management to return money to the general fund if they receive performance-based compensation in excess of 20% of total fund gains (this could happen if early investments are successful but later investments fail).

From the managers’ perspective, this is not the most advantageous tax setup.  For federal purposes, while the 20% performance-based compensation, which is compensation that flows from gains on investment capital, is taxed at advantageous capital gains rates (maxing out at 15% or so), as a direct charge for services rendered the 2% management fee is taxed at the higher ordinary income rate (maxing out somewhere in the mid-30% range).

The tax avoidance tactic allegedly deployed by Bain is aimed at getting both of these income streams taxed at the advantageous capital gains rate.  The tactic makes two moves.  First, the 2% management fee is waived, so no income is paid directly to the fund for services rendered.  Second, management provides that it will receive the amount it would have received as a management fee as a “priority allocation” of any capital gains to the fund.  The priority allocation differs from the performance-based compensation in that (1) it comes out of the very first slice of capital gains that the fund realizes and (2) it is not subject to any clawback provision.  This means that, as long as the fund has enough capital gains at some point during its life to cover what was formerly the 2% management fee, management gets its priority allocation, no strings attached.  Assuming that the priority allocation is a “profits interest” (i.e. an interest in future profits generated by the fund) as opposed to direct compensation for services rendered, this tactic succeeds in “converting” the management fee from ordinary income into capital gains.  This is because “income from a profits interest is not subject to immediate taxation . . . Instead, income from a profits interest is usually taxed only if and when the partnership realizes the profits that entitle the holder to receive distributions from the partnership.  If and when such profits are eventually realized, the character (e.g. capital gain versus ordinary income) of the profits . . . flows through to the holder [of the profit interest].”

The paper I linked runs through various doctrinal arguments for why the priority allocation should be taxed as ordinary income, which I recommend to those interested in the legal details.  The basic intuition behind all of these arguments, obviously, is that the priority allocation is a flimsily disguised fee for services rendered, so it should be taxed as a fee for services rendered, and that means taxing it as ordinary income not capital gains.

* It is politically motivated.  The NYAG is pretty clearly a party man.

Posted by: Chris | September 6, 2012

PZ Myers Shall Smash Your Skull Like a Clam on His Tummy

Oh God, this is perhaps the best thing to happen all summer.  Schismatic leftie atheists have tired of Internet atheists (like potential asshole Sam Harris) and formed Atheism+, which seems to mean they are just like normal atheists, only somehow smugger:

Atheists plus we care about social justice,
Atheists plus we support women’s rights,
Atheists plus we protest racism,
Atheists plus we fight homophobia and transphobia,
Atheists plus we use critical thinking and skepticism.

Many bemused observers have referenced the Life of Brian (“splitters!”), but I think Trey Parker and Matt Stone are perhaps even more apt:

Science, do I love that episode.

Of course, on the substance, I agree completely with Razib Khan.

Posted by: Chris | September 5, 2012

Paul Ryan: Neither Athlete nor Mathlete?

This probably flew below most people’s radars, but there has been a minor controversy bubbling about something Paul Ryan said to Hugh Hewitt last week.  Not about the budget or Medicare, but his claimed marathon time:

HH: Are you still running?
PR: Yeah, I hurt a disc in my back, so I don’t run marathons anymore. I just run ten miles or yes.
HH: But you did run marathons at some point?
PR: Yeah, but I can’t do it anymore, because my back is just not that great.
HH: I’ve just gotta ask, what’s your personal best?
PR: Under three, high twos. I had a two hour and fifty-something.
HH: Holy smokes. All right, now you go down to Miami University…
PR: I was fast when I was younger, yeah.

In case you are not in running circles (or into running in circles), a 2 hr 50 min marathon time is really fast (as in <6:30/mile for 26.2 miles).  It is also not Paul Ryan’s actual marathon time.  Writers from Runner’s World, glad to find a kindred spirit in the spotlight, attempted to track down the race where PR PR’d but came up empty-handed.  Shortly thereafter, Ryan confessed to having made an error:

“The race was more than 20 years ago, but my brother Tobin—who ran Boston last year—reminds me that he is the owner of the fastest marathon in the family and has never himself ran a sub-three. If I were to do any rounding, it would certainly be to four hours, not three. He gave me a good ribbing over this at dinner tonight.”

His true time was in fact 4:01:52, which he ran at age 20 (slower than Sarah Palin in her forties!). Later, in a televised interview, Ryan elaborated, admitting that he had forgotten his true time and made up one he thought seemed like “an ordinary time.”

However, the explanation does not seem to have convinced many other runners.  Of course, runners have been known to slightly exaggerate their times or engage in creative rounding when discussing their PRs (myself included), but the difference between his stated and actual results is far too yawning to be dismissed as a mistake or some innocent braggadocio.  An equivalent reduction would make my highly unimpressive mile time the men’s world record by 5 seconds and put me 21 seconds away from the record in the 5k (both as a junior in HS to boot, thanks Paul Ryan Time Calculator).

Taken at his word, the flub says a lot about the GOP’s putative math whiz that he estimated an average time so poorly.   But that explanation is as unconvincing as it is unflattering.  As Nicolas Thomas at the New Yorker notes, Ryan stuck with his story even after Hugh Hewitt’s apparent shock:

What’s striking about the exchange is how he responds to Hewitt’s “Holy smokes.” A four-hour marathon, for a twenty-year-old, is not something that elicits a “holy smokes.” It’s entirely average; in fact, for the race that Ryan ran, it  was below average. In the marathon in question, he finished in nineteen hundred  and ninetieth place, out of just thirty-two hundred and seventy-seven male  runners. (A 2:55 would have had him at a hundred and thirtieth.) But Hewitt’s  reaction didn’t set off any alarm. Instead, Ryan could tell that he had just  impressed his host, and he reinforced it, saying “I was fast when I was younger,  yeah.”

Moreover, as a number of observers have noted, including Thomas, runners tend to be fairly obsessive about their times, especially their best times and these sorts of things do not just slip away.  I can still recall my results for a good chunk of races I’ve run and certainly those where I posted an as-of-yet-unbeaten personal best.  It is almost unthinkable, assuming Ryan thinks like many runners, that he could forget his time in the one marathon he ran and then guess so wildly incorrectly.

Then why lie?  As many commentators have pointed out, Ryan’s true time was far from embarrassing.  Heck, even completing a marathon without walking or resting deserves high praise (I am not sure I can do that in my current shape).  Though the fib itself is, in the grand scheme of things. fairly inconsequential and I imagine the resultant kerfuffle amuses non-runners imagining diligent fact-checkers at publications like Runner’s World assiduously cross-referencing politician’s claims, it does bespeak of a contempt for the truth and a disregard for those who did invest the effort to achieve:

That, of course, is the larger point — as far as I’m concerned, the only point that matters. This man claimed an honor that he never earned.

That’s it, in eight words. That’s what most folks are missing.

He claimed an honor that he never earned.

In doing so, Mr. Ryan diminished — just a little — the status of every single person who has put in the work to run sub-3:00, who has accomplished this feat, who has achieved this rare honor. This concept seems alien to him. Even now, he appears amused by all the fuss.

It will be interesting to see if Ryan’s similar claims about summitting the 14-footers in Colorado pan out.

Posted by: captainfalcon | July 23, 2012

[il]legal eagle (an overtaxed pun)

Heirs of the Sonnabend estate inherited a piece of artwork — “Canyon” — made out of a bald eagle.  The IRS says Canyon is worth $65 million, so the heirs owe $29.2 million dollars in taxes.  The heirs say Canyon is worth $0, so they owe no taxes.  The heirs base their valuation on the fact that the Bald and Golden Eagle Protection Act makes it illegal to sell Canyon — how can an unsellable good have a fair market value?  The IRS appears to have based its appraisal on the sensibilities of its inner aesthete:

[The $65 million] figure came from the agency’s Art Advisory Panel, which is made up of experts and dealers and meets a few times a year to advise the I.R.S.’s Art Appraisal Services unit. One of its members is Stephanie Barron, the senior curator of 20th-century art at the Los Angeles County Museum of Art, where “Canyon” was exhibited for two years. She said that the group evaluated “Canyon” solely on its artistic value, without reference to any accompanying restrictions or laws.

“The ruling about the eagle is not something the Art Advisory Panel considered,” Ms. Barron said, adding that the work’s value is defined by its artistic worth. “It’s a stunning work of art and we all just cringed at the idea of saying that this had zero value. It just didn’t make any sense.”

Not a felicitous soundbite for the IRS although elsewhere in the Times article it is suggested that their actual methodology was less egregious in that they tried to determine what price the work would command absent the legal restriction on its sale by looking at comparable works.

Still, the curator makes two howlers.  First, she makes a moral mistake in letting her concern for a piece of art trump her concern for the human beings on whom her preferred valuation, which may well respect or preserve Canyon’s reputation,  has an impact.  (On the other hand, this criticism might prove too much.  She is supposed to have a concern for what the law requires, not morality, requires.  Still there is probably a better case to be made that humanists should scrupulously apply the law than that they should scrupulously follow the dictates of aesthetics.)

Second, she makes a conceptual mistake in assuming that if something has aesthetic value it must have monetary value.  The values are not commensurable and, as Michael Sandel explains, it is inappropriate and a shame to think otherwise.

Posted by: captainfalcon | July 14, 2012

David Brooks is an asshole

David Brooks’s complacency, on display in “Why Our Elites Stink,” makes me fantasize about rocking his world until he looks out of an Edvard Munch painting.  (‘Alas, even if I could this would be an impossible task.)

No self-respecting body who had ever done any real intellectual toil could possibly write the way Brooks does.  “I’d say today’s meritocratic elites achieve and preserve their status not mainly by being corrupt but mainly by being ambitious and disciplined.”  “I’d say” — at least he’s explicit that this is pure ipse dixit.  But, then again, at least ipse dixit means something.  This isn’t even dixit.  There’s no sense given to who the “meritocratic elites” are; to what it is for them to not be (at any rate, “mainly”) corrupt; to why you can’t be, not just mainly, but wholly corrupt while also being ambitious and disciplined.  Needless to say, there’s no evidence for what he says either.  (First, how could there be it’s nonsense?  Second . . . there’s just no fucking evidence.)

Whatever.  Like a dump of shit he’s made his say-so.  But does he do anything with it?  Oh no.  It’s a mood — the elites are alright — followed by the prescription that we should “keep the current social order, but . . . give it a different ethos and institutions that are more consistent with its existing ideals.”

Now, how we keep the current social order but also change its institutions and ideology (what sounds a lot to me like changing, uh, the current social order) is puzzling.  So too is the distinction, which would be casuistic if it wasn’t just Brooks being random, between ethos and ideals.  Worse, though, is that it doesn’t seem to occur to Brooks that there is a gap between his premise (however you spell it out) that the elites are alright and his conclusion (however you spell it out) that the social order should be safeguarded.

For example: imagine a world, far removed from the habitat of conference calls during Piano recitals that Brooks writes to preserve, in which swathes of people labor (when they can find work) in conditions of poverty and exploitation.  Grant Brooks the assumption that, in this world, the elites are alright (really ambitious and disciplined and only a teensy bit — if even that! — corrupt).  Does the alright-ness of the elites in this imaginary world vindicate the swathes of poverty and exploitation?  Or is that thought, instead, a retard?

Posted by: captainfalcon | June 28, 2012


Here is one area of common(ish) ground, and two meaty places where the majority and dissent opinions come into direct conflict on the issue of whether the individual mandate is properly characterized as a tax.  On the first read assume that each author is intelligent, is fairly and faithfully citing his precedents and applying them in good faith — from that point of view can you say that one has made a clear error of application?  (I’m legitimately curious.)

I. Presumption of constitutionality

Roberts: The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v.Benson, 285 U. S. 22, 62 (1932). As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895).

Scalia: In answering that question we must, if “fairly possible,” Crowell v. Benson, 285 U.S. 22, 62 (1932), construe the provision to be a tax rather than a mandate-with-penalty, since that would render it constitutional rather than unconstitutional (ut res magis valeat quam pereat). But we cannot rewrite the statute to be what it is not. “`”[A]lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.'”Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 841 (1986) . . . In this case, there is simply no way, “without doing violence to the fair meaning of the words used,” Grenada County Supervisors v. Brog-den, 112 U.S. 261, 269 (1884), to escape what Congress enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty.

II. Formal versus Functional

Roberts: We have similarly held that exactions not labeled taxes nonetheless were authorized by Congress’s power to tax. In the License Tax Cases, for example, we held that federal licenses to sell liquor and lottery tickets—for which the licensee had to pay a fee—could be sustained as exercises of the taxing power. 5 Wall., at 471. And in New York v. United States we upheld as a tax a “surcharge” on out-of-state nuclear waste shipments, a portion of which was paid to the Federal Treasury. 505 U. S., at 171. We thus ask whether the shared responsibility payment falls within Congress’s taxing power, “[d]isre garding the designation of the exaction, and viewing its substance and application.” United States v.Constantine296 U. S. 287294 (1935); cf. Quill Corp. v. North Dakota504 U. S. 298310 (1992) (“[M]agic words or labels” should not “disable an otherwise constitutional levy” (internal quotation marks omitted)); Nelson v. Sears, Roebuck & Co.312 U. S. 359363 (1941) (“In passing on the constitutionality of a tax law, we are concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it” (internal quotation marks omitted)); United States v. Sotelo436 U. S. 268275 (1978) (“That the funds due are referred to as a `penalty’ [*35] . . . does not alter their essential character as taxes”).

Scalia: The issue is not whether Congress [*18] had the power to frame the minimum-coverage provision as a tax, but whether it did so . . . Quite separately, the fact that Congress (in its own words) “imposed . . . a penalty,” 26 U.S.C. § 5000A(b)(1), for failure to buy insurance is alone sufficient to render that failure unlawful. It is one of the canons of interpretation that a statute that penalizes an act makes it unlawful: “[W]here the statute inflicts a penalty for doing an act, although the act itself is not expressly prohibited, yet to do the act is unlawful, because it cannot be supposed that the Legislature intended that a penalty should be inflicted for a lawful act.” Powhatan Steamboat Co. v. Appomattox R. Co., 24 How. 247, 252 (1861) . . . We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. To be sure, we have sometimes treated as a tax a statutory exaction (imposed for something other than a violation of law) which bore an agnostic label that does not entail the significant constitutional consequences [*21] of a penalty—such as “license” (License Tax Cases, 5 Wall. 462 (1867)) or “surcharge” (New York v. United States, supra.). But we have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.”

III. Tax or Penalty

Roberts:  taxes that seek to influence conduct are nothing new. Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry. See W. Brownlee, Federal Taxation in America 22 (2d ed. 2004); cf. 2 J. Story, Commentaries on the Constitution of the United States § 962, p. 434 (1833) (“the taxing power is often, very often, applied for other purposes, than revenue”). Today, federal and state taxes can compose more than half the retail price of cigarettes, [*37] not just to raise more money, but to encourage people to quit smoking. And we have upheld such obviously regulatory measures as taxes on selling marijuana and sawed-off shotguns. See United States v. Sanchez, 340 U. S. 42, 44-45 (1950); Sonzinskyv. United States, 300 U. S. 506, 513 (1937). Indeed, “[e]very tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed.” Sonzinsky, supra, at 513. That § 5000A seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power.

Scalia: Our cases establish a clear line between a tax and a penalty: “`[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.'” United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213, 224 (1996) (quoting United States v. La Franca, 282 U.S. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act[*19] “adopt[s] the criteria of wrongdoing” and then imposes a monetary penalty as the “principal consequence on those who transgress its standard,” it creates a regulatory penalty, not a tax. Child Labor Tax Case, 259 U.S. 20, 38 (1922).

Posted by: captainfalcon | June 28, 2012

Obamacare Roundup II

1. The opinion upholding the individual mandate as a valid exercise of Congress’s taxing power.  Explanations of the opinion in plain English.

2. An explanation of the Court’s explanation why the individual mandate is a tax for constitutional purposes but not for purposes of the Anti-Tax Injunction Act.

3. An overview of language — that five justices embrace — rejecting the theory that the individual mandate is a valid exercise of the commerce power, and atepid half-victory lap on that score.

4. Medicaid, in case anybody cares.

5. Roberts flipped.

I think those are the key facts / portals into which you can dive at your discretion

Posted by: Chris | June 27, 2012

Seeing a Doubled Rainbow

Discover has an interesting synopsis of a recent study that suggests that the distaff relatives of color-blind males (red-green color blindness is an X-linked recessive trait, which means many female relatives would be carriers for that allele) might have an additional type of cone, which allows them to differentiate colors at a heightened level relative to the typical person:

Researchers suspect, though, that some people see even more. Living among us are people with four cones, who might experience a range of colors invisible to the rest. It’s possible these so-called tetrachromats see a hundred million colors, with each familiar hue fracturing into a hundred more subtle shades for which there are no names, no paint swatches. And because perceiving color is a personal experience, they would have no way of knowing they see far beyond what we consider the limits of human vision…

Color blindness ran in families, affecting men but not women. While color-blind men had two normal cones and one mutant cone, De Vries knew that the mothers and daughters of color-blind men had the mutant cone and three normal cones—a total of four separate cones in their eyes. He suspected the extra cone could be why the women perceived color differently—not because they saw less than most people but because they saw more. He speculated that such women might be using the fourth cone to distinguish more colors than a trichromat, but he buried this insight on the last page of the paper. De Vries never wrote about four-coned women again.

(H/T Andrew)

This finding might also shed light on the abnormal prevalence of color-blindedness in humans: a mix of unusual inheritance and carrier effects washing out the detrimental effects on males and allowing the allele to rise in frequency in the population.

Frustratingly, Andrew elsewhere today completely fails yet again to understand pleiotropy, getting hoodwinked into a ludicrous adaptionist story explaining balding as signalling mechanism.  Fortunately, actual biologists intervened to set him straight.

Posted by: Chris | June 12, 2012

The Runs of August

98 years almost to the day after Archduke Ferdinand’s assassination , another march of folly portends thanks to some damned foolish thing in the Balkans:

On June 17, Greece faces its second national elections in six weeks. Alexis Tsipras, the 37-year-old leader of Syriza who wants to reject the terms of the EU bailout while remaining in the euro, has a serious shot of topping the polls. To some observers, defaulting on debt while staying in the Euro is a contradiction, but there is a clear strategic logic to Tsipras’s position.

Tsipras believes his trump card is that Greece is too big to fail. So, rather than touting a graceful way out of the euro, he wants the prospect of a Greek exit to be as horrific and contagious as possible — an economic cataclysm that would drag everyone else down, as well. Essentially, he is arguing that Greece and Germany exist in a state of Mutual Assured Destruction: Germany will never pull the plug on Greece regardless of what it does because the risk to itself is just too high. And if Tsipras can convince the Greek people of this, they may vote him in — they’d get to have their cake and eat it too…

This is why after warning that a Greek exit from the eurozone could cause a global economic collapse, European officials are now suggesting it might not be so bad. German Finance Minister Wolfgang Schauble said“protective mechanisms” mean “the risks of contagion for other countries of the euro zone have been reduced and the euro zone as a whole has become more resistant.” EU Economic and Monetary Commissioner Olli Rehn saidthat an exit would hurt Greece, but that the rest of Europe is “certainly more resilient” to a Greek exit than it was two years ago when the bloc would have been “massively underprepared.”

Don’t be fooled by these reassuring words. Fears of contagion are as high as ever but, to prevent a Greek exit, European leaders must pretend it doesn’t matter very much for anyone but the Greeks. So now they are going over Tsipras’s head to tell the Greek people to tell their leaders that if they reject the bailout they will be forced from the euro, which will only hurt Greece. If the rest of Europe can convince Greeks of this, they may decide not to risk a Tsipras-led government.

In the wake of WWI, observers blamed everything from the insulation of the political institutions to the rigidity of the military schedules for the previous years’ bloodshed.  But it can as simple as states or leaders with divergent interests myopically pursuing those interests toward a mutually destructive equilibrium.

By the by,  if you have not read The Guns of August, you should endeavor to rectify that.  It’s one of the best written nonfiction books you will encounter and is short enough (and captivating enough) to plow through in a weekend.

Posted by: i82much | June 12, 2012

Creed shreds again

Posted by: captainfalcon | June 10, 2012

Idle Courts Question

Say a state trial court is faced with a federal issue. Say there is a Supreme Court precedent on point. Say, further, there is a mediating opinion by the highest court in the state that, by the trial court’s lights, interprets the Supreme Court precedent incorrectly. Is the state trial court bound, per the doctrine of hierarchical precedent, to follow the mediating opinion, or is it bound, per the supremacy clause, to follow the Supreme Court’s opinion?

Realistically, my gut is that it depends on how obviously the state high court’s opinion is in conflict with the Supreme Court opinion. If the state high court’s interpretation is even minimally “permissible” or “reasonable” then the trial court will feel obliged to follow the state high court’s interpretation. (This seems the only way to give the doctrine of hierarchical stare decisis the bite that it usually enjoys.) If, on the other hand, it is unambiguously contrary to the Supreme Court opinion (the clearest cut case is if it expressly states that the Supreme Court got it wrong) then the trial court will not feel obliged to follow the state high court’s interpretation (and may feel obliged to not follow the state high court’s interpretation).

Note that a trial court will rarely find itself faced with an unambiguous conflict because it has a range of possible moves to reconcile the state high court and Supreme Court opinions. The trial court will have some wiggle room to reinterpret the Supreme Court’s decision; to reinterpret the state high court’s decision; and to characterize the reconciliation in a reasonable-sounding way. (It is an interesting question towards which opinion the trial court should have most fidelity — should it bend over backwards to respect its best interpretation of the Supreme Court’s opinion even if that means embracing a stretched or implausible reinterpretation the state high court’s opinion, vice versa, or neither?)

No cases I have found address this issue, and it appears to be undertheorized in the secondary literature as well.

Posted by: Chris | June 6, 2012

Who Invented Statistics

The NY Times has a piece on gender discrimination in the male-dominated tech industry, a recommendable look into the perversities inherent in having one gender severely overrepresented for so long.  A female writer at BoingBoing decided that the best response would be to obtusely dispute the premise:

Here’s the opening graf (bold-ing, mine):

MEN invented the Internet.And not just any men. Men with pocket protectors. Men who idolized Mr. Spock and cried when Steve Jobs died. Nerds. Geeks. Give them their due. Without men, we would never know what our friends were doing five minutes ago.

You guys, ladies suck at technology and the New York Times is ON IT.

Radia “Mother of the Internet” Perlman and the ghosts of RADM Grace Hopper, Ada Lovelaceand every woman who worked in technology for the past 150 years frown upon you, sir. Women may have been invisible, but the work we did laid the groundwork for more visible advancements now credited to more famous men.

“Men are credited with inventing the internet.” There. Fixed it for you.

Its quite telling when the three heroines cited here (as well as, presumably, the anonymous “every woman”) had contributions that were either unrelated or negligible.  But even accepting Ms. Jardin’s argument that these three women had significant and relevant roles to play in the formation of the internet, the original point still holds.  Men predominated in virtually all elements of the early tech industry and the few women contributors were outliers not the norm.  It does not matter whether this disparity was caused by path dependencies or, as Julian Sanchez argues, harsh sexism and constraining gender roles.

But certain people are adverse to even acknowledging these trends.  Part of this, as I am liable to push in these parts, is a lack of probabilistic or statistical familiarity more broadly.  But I suspect something deeper going on (amusingly, though, the hunch just based on anecdotal evidence).  Ms. Jardin, for instance, concludes:

I have no special knowledge about the truth, or lack thereof, in the Pao lawsuit. I know only what you and I and everyone else can read in the court documents, in the context of what I’ve experienced as a woman who has worked in the technology industry for about 20 years. I can’t speak to the merit of this case. But, Earth to dudes: yes, this stuff is real and normal, and so are we.

Lucky for Streitfeld, and the rest of the world, that the Women in Technology conferencehappens to be under way today in Santa Clara. Stop by and get a clue.

Oh, and? I, too, cried when Steve Jobs died. And I still idolize Mr. Spock.

This sentiment reverberated through the previous series of examples as well, that the only source of anecdotal evidence that matters in the end is oneself and truths that conflict with personal experience are necessarily suspect.  I wish I had a more satisfying explanation (identity politics? Millenial narcisissm?), but it is a connection worth keeping an eye on.

Posted by: Chris | May 20, 2012

Skewed Metrics

I think the point of this picture is to giggle at the gullible of the world, but I find the variegated conversions of 0.05km more amusing.  I assume the two people who converted properly were from the inner city.

Posted by: captainfalcon | May 9, 2012

Last one on Amendment One

It passed with 61% of the vote. That is a substantially greater percentage than the 55% of people who were either in favor of Amendment One, or “unsure,” on the assumption that it constitutionalizes a prohibition on both gay marriage and civil unions. One possible explanation for this is that what Amendment One means is unclear.

Amendment One’s operative language is: “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State.” As this (reasonably objective) report from the North Carolina chapter of the ACLU makes clear, the phrase “domestic legal union” is new to North Carolina law. As a result, the legal impact of a constitutional prohibition on recognizing any “domestic legal unions” other than heterosexual marriage is unclear.

In the NC-ACLU’s assessment, Amendment One almost certainly outlaws the domestic partnerships that some North Carolina municipalities offer (pp. 11-12). It also likely forbids conferring benefits on the partners of public sector employees, as similar language has been interpreted that way in Michigan (p. 37).[1]  It is less clear, however, whether Amendment One will prohibit private employers’ conferring benefits on the partners of their employees (pp. 38-9), and also whether it affects contractual and child-custodial arrangements among cohabitating gay and straight couples (p. 17).

The interpretive uncertainly surrounding Amendment One may help to explain why more people voted for it than would have had they believed Amendment One constitutionalized a prohibition on both gay and domestic parternships. Conceivably, some voters could have concluded that that the meat of domestic partnerships — family law relationships among cohabitating couples, labor law benefits, etc. — would probably survive Amendment One’s passage. With domestic partnerships functionally preserved, a vote for Amendment One could have been seen as, in real terms, a vote simply to constitutionalize a prohibition on gay marriage.

Obviously, voter ignorance could also have played a role. In reality, I’d guess both are part of the explanation.

[1] Though, under certain social conditions, I would guess a legally permissible interpretation of Amendment One has it invalidating only the state’s recognition of domestic partnerships, not the conferring of benefits on the partners of public sector employees. How does the state confer benefits on partners without recognizing or deeming valid their partnerships? Simple: interpret recognition and validation as specific ceremonial acts performed by the state. Distinguish the conferral of benefits on partners as, not a ceremonial act, but merely an administrative one. The domestic partnership is not legally valid, it is simply a fact found in a proceeding to determine the allocation of benefits.

Posted by: captainfalcon | May 8, 2012

More on Amendment One and Direct Democracy

Two posts back, I argued that it is reasonable to interpret North Carolina polling data as indicating that a majority of North Carolina voters want to outlaw gay marriage; a majority want to allow civil unions; and a majority want to outlaw gay marriage more than they want to allow civil unions. Thus, if faced with a choice between (1) outlawing gay marriage but keeping civil unions and (2) outlawing both gay marriage and civil unions, the North Carolina electorate chooses (1). But if faced with a choice between (a) outlawing both gay marriage and civil unions or (b) outlawing neither, the electorate chooses (a). Of course, if faced with a logically exhaustive set of choices — (1) ban gay marriage and keep civil unions; (a) keep gay marriage and ban civil unions; (2/b) ban both; (iv) ban neither — the North Carolina electorate chooses (1), the only constitutional change actually supported by a majority of North Carolina.

Amendment One presents the non-exhaustive choice between (a) and (b). As a consequence, it is an abuse of North Carolina’s system of constitutional amendment. Amending the North Carolina Constitution is a two-step process. First, the legislature must pass an amendment. Next, the amendment is submitted to the electorate in a legislatively referred referendum; only if a majority of voters approves the legislatively-approved amendment does it become law.

The North Carolina amendment process only makes sense on the assumption that each change to the North Carolina Constitution ought to be supported by a majority of North Carolina voters — that it ought to directly reflect the will of the people. Amendment One violates this principle. Because it does not contain a logically exhaustive set of choices, it actually presents two changes to North Carolina’s Constitution only one of which is supported by the majority of North Carolina’s electorate.

This situation also illustrates a special (but curable) problem with legislatively referred referenda. On its face, this permutation of direct democracy might seem to evade the traditional, Federalist 10, objection to direct democracy. The traditional objection is that direct democracy is more likely to select bad legal norms than is representative democracy because the electorate lacks the practical wisdom of the legislature. This criticism doesn’t directly apply to legislatively referred referenda, as the questions referred must first have been adopted by a representative body. Arguably, with legislatively referred referenda you get both the preliminary filter of republicanism and the majoritarian legitimacy of direct democracy — the best of both worlds.

Amendment One both belies this — legislatively referred referenda do not necessarily confer majoritarian legitimacy — and also points to a specific problem with legislatively referred referenda, which is their corrosive effect on representative democracy. That is: when Amendment One passes, the changes it effects on North Carolina’s Constitution will be the result of a majority of the North Carolina electorate’s (Hobson’s) choice. They will be to blame. Concomitantly, North Carolina’s legislature will not be to blame. Its accountability is diminished and, insofar as representative-democratic theory is correct that accountability leads to enlightened majoritarianism, so too is its capacity for good governance.

Both of these criticisms lacks bite, however, if constitutional amendments are presented as sets of logically exhaustive choices. Under those conditions, legislatively referred referenda become more difficult to condemn from within the confines of representative-democratic theory (though external considerations, such as efficiency, may nonetheless provide the ingredients of a critique).

Posted by: captainfalcon | May 8, 2012


One more post and then back to work-work-work. Last night, I spiraled from the pages about Pittsburgh’s funiculars deep into Cold War paranoia (Curtis LeMay, Herman Kuhn, Joe McCarthy, Project Blue Book, missile gap, the New Look, second strike) and eventually found myself at Stuart Symington’s page. An interesting dude: hawkish, anti-segregationist (so much so that during the 1960 presidential campaign he was the only Democratic contender to refuse to speak to segregated audiences), anti-McCarthyite Democrat who resigned his senatorial seat in order to preserve seniority for his Republican successor (don’t make ’em like that anymore).

Sanctimonious Stu, as McCarthy called him, was responsible for passing a law forbidding the expenditure of tax dollars to study how the United States might surrender to a foreign power. The impetus was a “defeatist” RAND study he thought was investigating the possibility of United States surrender to the Soviets. In fact, Symington misread and the RAND study actually surveyed past examples where the United States demanded unconditional surrender of other powers.

It would have been quite diverting to be an amateur blogger with upper-middlebrow political interests in the ’50s. (Mis)applications of Game Theory, such as Kuhn’s On Thermonuclear War, would have made for heady posts. (Kuhn, by the way, was one of the inspirations for Dr. Strangelove — the Doomsday Machine was a rhetorical device he deployed in OTW.)

Somebody should write a rollicking history of the early Cold War defense intellectuals — they seem like loons.

Posted by: captainfalcon | May 8, 2012

Amendment One and Structuring Direct Democracy

Andrew links to a poll of North Carolina voters indicating the following:

  1. 55% would vote for Amendment One (refusing recognition to gay marriage and same sex civil unions).
  2. 57% think gay marriage should be illegal.
  3. 27% think gays should be allowed to marry and 26% think gays should only be allowed to form civil unions and 43% think there should be no legal recognition of gay couples.
  4. Only 46% think Amendment One bans both gay marriage and civil unions.

From these numbers the pollsters infer that “In some sense North Carolinians are voting against their own beliefs. 53% of voters in the state support either gay marriage or civil unions, yet a majority also support the amendment that would ban both.”

There is another permissible inference. Overall, 69% (heh) of North Carolinians think gay couples should not be allowed to marry (43% who oppose by gay marriage and civil unions + 26% who oppose only gay marriage). If 12% of those who support civil unions but not gay marriage are more avidly opposed to gay marriage than they are supportive of civil unions then 55% in favor of Amendment One makes perfect sense.

The pollsters prefer an explanation grounded in voter ignorance, pointing out that “only 46% of voters realize the proposal bans gay marriage and civil unions” and noting that “informed voters oppose the amendment by a 61-37 margin.” On the other hand, only 44% of hypothetical informed voters would vote no on Amendment One if they knew it banned both gay marriage and civil unions, leaving 39% in favor of Amendment One and 16% undecided. There was no option “conflicted,” so no way to further parse the 16% to see which are really in favor of the Amendment, but regretfully so; and which are legitimately unsure. But it is a tantalizing possibility that the 16% are actually conflicted — that “unsure” is where the conflicted went — thereby yielding 55% in favor of Amendment One.

Bracketing the general desirability of initiatives legislatively referred referenda from the point of view of political theory (they are a bad idea), the real lesson here is that the so-called “single subject rule” — which requires that if an initiative question asks multiple sub-questions they all must pertain to the same subject matter (so no omnibus initiatives) — is not stringent enough to ensure that each norm of law an initiative selects is actually approved by a majority of voters. This is a travesty even (especially!) on the assumptions of those weirdos who support direct democracy. In this case, it also happens to be a human travesty.

Read More…

Posted by: captainfalcon | May 6, 2012

More on Qualified Immunity

From How Appealing, an interesting Ninth Circuit case reversing the Northern District of California’s denial of John Yoo’s motion to dismiss a Bivens and RFRA suit filed against him by Jose Padilla. Padilla sought nominal damages against John Yoo, alleging Yoo set in motion Padilla’s detention and interrogation and thereby violated Padilla’s due process and Eighth Amendment rights, for violations of which Bivens damages are available. (Bivens recognized a right to damages against federal agents acting in their official capacity who violated a plaintiff’s Fourth Amendment rights. Bivens has since been extended to the Eighth and Fifth Amendments.)

The Ninth Circuit ordered the suit dismissed on the grounds that Yoo enjoyed qualified immunity from suit. The black letter law of immunity for executive aides is that they enjoy immunity from suit arising from conduct that (i) was done in their official capacity (e.g. writing memos for OLC) and (ii) was not contrary to clearly established law of which the official should reasonably have been aware. In the qualified immunity context, “clearly established law” is law established either by controlling precedent in the jurisdiction (e.g. Supreme Court case law, or current case law from the Circuit where one is operating) or a consensus of persuasive precedent from sister jurisdictions. Abstract principles (e.g. “disproportionate punishment violates the Eighth Amendment”) do not make for clearly established law. Rather, as the Ninth Circuit explains the contours of the right must be sufficiently clear such that every “reasonable official would have understood that what he is doing violates that right.”

Applying this doctrine to Padilla’s suit against Yoo, the Ninth Circuit held that clearly established law between 2000 and 2003 did not show that Padilla enjoyed the constitutional rights he alleged Yoo violated. Ex Parte Quirin, a 1942 case, had denied that a United States citizens operating as a German agent and detained on United States soil enjoyed the right to trial by jury, and this was sufficient, the Ninth Circuit reasoned, to cast doubt on Padilla’s claims to constitutional rights. (Hamdi, which confirmed (or announced) that citizen’s designated enemy combatants and held on US soil enjoy certain constitutional rights (a) was decided in 2004 and (b) anyway does not clearly define the contours of the constitutional rights enjoyed.)

The Ninth Circuit also considered an alternative argument that, because Yoo authorized the use of torture on Padilla, he thereby triggering an exception to the requirement that clearly established law be fleshed out suitably enough that the contours of the right be defined. Even if no case is directly on point, Padilla argued, authorizing the torture of an American citizen is sufficiently egregious that it is clearly against the law. The Ninth Circuit recognized the exception, but rejected this argument on the grounds that the conduct to which Padilla was subject was not clearly torture at the time Yoo authorized it: “In 2001-03, there was general agreement that torture meant the intentional infliction of severe pain and suffering . . . The meaning of “severe pain or suffering,” however, was less clear in 2001-03.”

At Balkinization, Rob Weiner’s guest post about the advent of the legal challenges to Obamacare has some good funfacts, especially about the Florida Attorney General’s forum-shopping and how in some states governors filed the anti-Obamacare lawsuits and in others Attorney Generals did.

On the other hand, his assessment of the “disparity” between Democrats and Republicans in their conduct toward Obamacare is ill-considered even if it comes to the right conclusion. He writes:

Although Democrats are almost as consistent in defending the constitutionality of legislation as Republicans are in attacking it, their positions are not in parity. Legislation is presumed to be constitutional. It is Republican Attorneys General and Governors, supported by Republican members of Congress, who departed from the default position, who took the initiative to bring the challenges and who seek to displace the verdict of the elected branches of government. It is thus the lineup of the challengers of the law, not the defenders, that raises concerns about the democratic process.

Two problems. First, whatever “parity” is supposed to mean here (parity with respect to what?), it is clearly supposed to have something to do with fidelity to the presumption of constitutionality and the democratic process. But, then, it is clear that the Democrats occupy a superior position here solely in virtue of the happenstance that they support Obamacare. They are not motivated by fidelity to the presumption of constitutionality and the democratic process; it just so happens that their interests do not require them to disrespect those fictions. It is a commonplace too trivial to note that the Democrats have, in the past, been in a position of opposing prior “verdict[s] of the elected branches of government.” (This matters because if fidelity to the presumption of constitutionality and the democratic process are the criteria by which one is to judge the probity of political actors, then the real story is not that the Democrats are in a superior moral position with respect to Obamacare but that both parties are wholly disreputable. That this is not the real story suggests, as we’ll see, that the criteria Weiner deploys are inconsequential.)

One could perhaps muster arguments that the Democrats’ prior opposition has been more plausibly grounded in constitutional doctrines (themselves the product of Twentieth Century politics). The rejoinder is invariably some combination of (i) those constitutional doctrines still don’t mandate the result you seek (and should be read cautiously given the presumption of constitutionality), and (ii) they are, anyway, deviations from an earlier set of constitutional doctrines. Were those earlier deviations illegitimate? If not, then deviations per se aren’t illegitimate either.

The reason this persiflage can continue ad infinitum is that there is nothing real under debate here. The goalposts can be in constant flux because they are not tethered to bedrock human concerns (if any there be*). This raises the second problem with Weiner’s post, which is that it propounds an alienated analysis that fetishizes two fictions carrying, of themselves, no independent normative weight. True, the presumption of constitutionality exists, alongside other doctrines, in the contradictory welter of indeterminacy and neglect that is the Supreme Court’s methodological jurisprudence. It is also true that we happily (my suspicion is, for the most part, also knowingly) indulge the illusion that decisions made by the “elected branches of government” represent the will of the people and, as a mysterious result, have some kind of normative weight. Equally, it is true that one can invoke the democratic process and the presumption of constitutionality to score points in partisan flamewars (though whether you’ll get converts, or just high-fives, is another matter).

But only somebody who has lost all touch with what really matters — “bedrock human concerns” — would let the presumption of constitutionality, or concerns about the integrity of the democratic process, determine his view about what ought to be done. This is because the moral parity or disparity of two positions does not turn on how many stirring abstractions are emblazoned on their eschatons. (Though rhetorical parity does so depend. Recall the question I asked earlier — parity with respect to what? Maybe rhetorical parity is what Weiner is writing about? That would be sad.) Instead, the moral worth of a particular course of action (which bears on, but does not wholly determine, the moral parity / disparity of those advocating for it) turns on a complex, all-things-considered judgment about its effect on the things we should care about.

From this perspective the Democrats may still be in a superior moral position. The diminution of human suffering is a reasonable candidate for something we should care about, and Obamacare seems to work that effect to some small extent. But notice that we are now about as far from the desiccated presumption of constitutionality as one can get.

* Metaethical note: It is possible (likely) that there are no “bedrock human concerns” that we all should, as a matter of immanent rationality, care about. In that case there is still room for moral assessments. They will be relativistic, but need not, as a consequence, be any less emphatic. I repeat and re-allege, emphatically, that when the chips are down nobody should give a shit about the presumption of constitutionality per se.

Posted by: captainfalcon | May 2, 2012

Of I-Law Interest

[Cross posted at Phallacies. Whoops.]

Here’s an interesting order issued by a Bronx trial court denying Dominique Strauss-Kahn’s motion to dismiss a civil action filed against him by Nafissatou Diallo.  DSK argued that the court lacked subject matter jurisdiction on the basis that DSK enjoyed absolute immunity from suit as a result of his position as head of the IMF. (DSK had to base his motion on absolute immunity, as opposed to “official acts” or “functional” immunity, because whatever happened in Sofitel Hotel plainly did not involve DSK acting in his official capacity.)

Because the Bretton Woods Agreement Act (codifying the Bretton Woods Agreement) only confers official acts immunity on IMF employees, DSK argued instead (a) that absolute immunity for heads of international agencies is a norm of customary international law and (b) that CIL is federal law binding on state courts by virtue of the Supremacy Clause. To establish that absolute immunity for heads of international agencies is a norm of CIL, DSK pointed to the Specialized Agencies Convention’s provision conferring such immunity. While the United States is not a party to that Convention, 118 other countries are, which, DSK argued, was adequate to establish that it stated a norm of CIL.

The New York trial court came close to conceding that head-of-agency absolute immunity is CIL, but nonetheless denied that it worked to bar the suit. It made three moves. First, it held that the IMF had opted out of the immunity conferred by the Specialized Agencies Convention, so the norm of CIL it reflected did not extend as far as DSK’s position. Second, it held that, to the extent CIL provides the default norms of federal law, the International Organizations Immunity Act, conferring only official acts immunity on employees of international organizations, superseded any norm of absolute immunity (including for heads of those organizations). Finally, it flagged the possibility that CIL is federal common law of the sort the Supreme Court in Erie v. Tompkins repudiated, as opposed to a residuum of federal common law that survives post-Erie.

Finally, in case you are wondering, the reason this suit has been filed in the Bronx is that, in New York, civil suits are filed in a litigant’s county of residence, and Diallo lives in the Bronx.

Update: Opinio Juris has a brief comment on the matter here.

Posted by: Chris | May 2, 2012

A Historical Corrective

The next time you hear someone make broad claims about “Red States” or “Blue States”* as political constants, especially if it’s to whine about imputed injustices of the Electoral College, you would do well to remind them how historically contigent these labels are.

For instance, prior to 1992, bluest of the “blue” Vermont had only voted for a Democratic presidential candidate once previous, in 1964, voting for the Whig/Republican candidate the other 39 elections.  Now its the most reliable three votes the Democrats get from any state (sorry DC).  Likewise, do you know the earliest election that the former Confederate states voted as a bloc for the Republicans when a significant chunk of the remainder voted Democrat?  Bush-Gore in 2000.

Just because something is does not mean it always was or ever will be.

*Even the colors are mutable: the networks alternated colors until the shitfest in 2000 from whence the names originated and everything solidified.  Wikipedia has even ahistorically retconned its color scheme to conform to current party identities, thus painting Lincoln red and Douglas blue when they themselves had no such affiliation.

Posted by: Chris | April 30, 2012

Warning: Challenger Approaching

In our inaugural post, I noted that the few Super Smash Brothers clones out there seem to overtly miss the keys to why the original franchise is so successful.  Strangely, no like games have been produced with either SSB’s damage system (with percentages indicating how far hits throw players) or its simple control scheme universal across characters, both of which are what make the franchise stand out.

Instead, the wannabe copycats all seemed to think that the essense of Super Smash Brothers is frenetic action and four-player capabilities (which are in truth mildly detrimental and beneficial but nonessential, respectively).  Thus, they go overboard on the onscreen mania (IGN called Capcom’s outing “impossible to follow”), but retain the traditional lifebars and D-pad chewing control schemes.  The end result is too overwhelming for newcomers to grasp but too shallow to sustain any real following, and they all faceplant in sales.

Well, Sony has decided it has accumulated a sufficiently deep bench to attempt a mascot brawler of its own, and the results are maddeningly the same.  The game, which is actually called Playstation All-Star Battle Royal (maybe its being ironic?), looks identical to all of the previous pretenders to the crown.  The backgrounds are busy with clutter and incredibly intrusive into the gameplay.  Weapons and character moves are likewise showy and distracting.  However, despite glimpsing a brief combo, there is no launching system and damage is accumulated onto a lifebar, with players poofing out once they have accumulated enough hits.  I imagine the control scheme is similarly akin to traditional fighters.  The game does have the support of a major publisher, which might augur well for sales, but even fanboys can recognize a flop.  Oh well.

Some day, someone must realize the potential that exists for even a competent Smash Brothers clone.  To reiterate my original almost two-year-old conclusion:

The saddest part of this whole thing is that the Smash Brothers series as a whole is incredibly poorly executed. The games are glitchy, poorly balanced, and wracked with incredibly unoriginal character designs. They all basically trade on the uniqueness of their scheme and pure Nintendo nostalgia to get the sales they do. A well-made straight-up clone would probably sell incredibly well, even without a strong license, largely due to the miserable quality of the competition. Yet no one has ever tried, contenting themselves to failed four-player frenzy fests that completely miss the point.

Posted by: Chris | April 19, 2012

A Vice Precedent

Now that Mitt Romney has accomplished the impossible and effectively won his party’s nomination, the media has begun to speculate on his potential vice presidential choices, of whom, the plurality appear to be governors, which, though it may not seem so, is actually somewhat odd.

Though governors are abundant amongst Presidential nominees (2008 was the first election since 1976 where neither candidate was a sitting or former governor), they are surprisingly poorly-represented amongst the nominees for veep, both in quanity and quality.  For instance, the last Republican governor nominated for vice president prior to Sarah Palin was Maryland Governor Spiro Agnew in 1968.  Before that, nominated Earl Warren in 1948.  Not exactly the most auspicious group of candidates.

For their part, the Democrats haven’t nominated a governor for veep since 1924.  Interestingly, assuming JB gets renominated, the we are currently in the midst of an unbroken chain of federal legislators as vice presidential nominees for the Deomcrats that stretches back to 1940 and Henry Wallace, whose only prior political position was as Secretary of Agriculture.

And now you know.

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