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March 15, 2005

Bankruptcy and Paternalism; The Zywicki Article

I've just come across by far the best description I've yet seen of the proposed bankruptcy bill. It's by Todd Zywicki, and I've quoted the most important part below (his description is also useful in that it starts by listing many other important but uncontroversial parts of the bill). Personal bankruptcy law is part of the social regulation I am forever hoping to write a book about, so I'll take the time here to think about it.

The real question is this: Should foolish people be allowed to have credit cards? We all know people who are forever in debt, having run up their credit card balances and never managing to reduce their spending enough to get the balance down to zero despite the burden of high interest rates. Should these people have been allowed to get credit cards?

The bankruptcy bill is not about this directly, of course. Here is the connection. Currently, some people with high incomes and low wealth would like to get credit cards, but they can't, because lenders are afraid they will declare bankruptcy and not pay back their debts. (This includes, for example, people who have already declared bankruptcy once or twice.) The new bill says that if your income is high enough to pay back a lot of your debt within five years, then you can't declare simple bankruptcy and liquidate your debts. Rather, you declare a different kind of bankruptcy, similar to business's Chapter 11, under which a judge decides how much of your debt you repay over a five-year period, during which your creditors cannot seize your assets. Thus, under the new law, some of those people who couldn't get credit cards will be able to.

The bill actually won't have this effect on the foolish people we know who now are in the thrall of credit card debt. Those people were already able to get credit cards.

The bill also isn't really about the profits of the companies issuing credit cards. They'll make more money in the short run, but the bump up in profits won't last. This is a fiercely competitive industry, with easy entry, and the companies compete strongly to lend to the spendthrifts. The spendthrifts pay high interest-- but they also default a lot. The debt slaves are, in effect, subsidizing the deadbeats, but as a group, debtors come out even.

I think I've heard it said that the credit card industry has high profits. That may be true, but I'm a little skeptical because of the competition and easy entry, and because proper accounting is tricky in that industry. A new company will look very profitable at first, because it will be earning high interest and not have any defaults yet. Overall, though, expected profits must even out to not be higher than if the entrepreneur had invested in some other industry-- say, the pickle industry. Thus, if we know profits will be abnormally high in the first five years of the company, we must expect them to be abnormally low in the rest of the company's lifetime. After the first five years, the company will be stuck with a lot of debtors who have a high rate of default. By then, some will be in such poor shape that the company will regret having lent to them-- but it will be too late. I wonder, in particular, what will happen when the debt slaves reach retirement age and their income drops. We may see mass bankruptcy thirty years from now-- and mass losses for the credit card companies.

Also, proper accounting, whenever a new debtor is added, the company should list as a cost some fraction of the expected loss from default. Estimating that expected loss is hard. Thus, even aside from the real path of profits and losses, the accounting path may be distorted-- and usually the company has an incentive to distort it towards having more apparent profits now (and therefore less later).

So the issue should not be credit card company profitability. Let's get back to the question of whether foolish people should be allowed to have credit cards. If bankruptcy is made more difficult in the law, more foolish people will end up with credit cards and debt. If we said that nobody had to pay back credit card debt at all, on the other hand, we'd reduce credit card debt markedly because most people wouldn't be able to find someone to issue them a card. So what should we do?

The libertarian position is that freedom is what matters, so people should be allowed to make any kind of deal they want. In fact, they should be allowed to sign away their right to bankruptcy at all, which would make it much easier for people with little wealth and income to get a credit card.

A liberal position might be that people cannot be allowed to put themselves into debt that is hard for them to repay, even if they want to, because it is degrading to human dignity, and what is good is not what they want but something else. They must be forbidden to borrow for the same reason that they must be forbidden to sell themselves into slavery.

The conventional economic position is similar to the libertarian one, but with a different objective, value maximization. Putting constraints on contracts is almost always bad for value creation, if people are rational decisionmakers. After all, even if

If we depart from the standard economic convention, however, and assume that some people are poor decisionmakers or poorly informed, then credit card debt might be a bad thing. Some people don't realize how unhappy they will be once they are in debt, and we would like to stop those people from making bad decisions. The question then becomes how many people are foolish, and whether we can restrain them without stopping smarter people from taking on debt. Can we keep someone from borrowing to buy clothes while not stopping someone from borrowing to start a home business whose quality can't be understood by a commercial lender? Usually we can't, and so a tradeoff must be made.

This is why some conservatives oppose the new bill, I think. A conservative, as opposed to a libertarian, is willing to be paternalistic on occasion.

A different argument is the moral one-- that consumer debt is bad because it encourages materialistic current consumption and a disregard for the future. This gets as complicated as the poor-information economic argument, though, so I won't pursue it here.

After thinking about it, I'm inclined to think the bill is a good thing. (Actually, of course, Tom Veal is correct when he says that this is complicated enough that we should really trust elected representatives whose opinions we value, rather than wanting to make the decisions ourselves.) The key is that this bill is not exactly about making bankruptcy more difficult. Rather, it is about shifting people from Chapter 7 to Chapter 13 bankruptcy-- from liquidation to court-ordered repayment. Consider a high-income low-assets foolish person who was intending to liquidate, but must now repay over a 5-year period. That person would have erased his old debt, and immediately set about getting in debt again. Now, the person will not be able to acquire new debts and overconsume for five years during which his expenditure will be controlled by the court. To the extent that we want to be paternalistic, this seems like a good change. We want to keep money from coming under the control of the foolish person. To the extent we do not want to be paternalistic, it is not a bad thing. The borrower and lender can contract around it, and still allow liquidation to be an option in the borrowing agreement, even though it would not be an automatic option if they did not write it in.

Here's the important passage from the Zywicki NR article:

The most important and controversial provision of the legislation is the "means-testing" of chapter-7 bankruptcy relief. Under current law, a person filing bankruptcy has two options. The debtor can file in chapter 7, the "liquidation" provision, which permits debtors to simply surrender all their assets and get a full discharge of unsecured debts a few months later. Or the debtor can file in chapter 13, under which he enters into a court-supervised repayment plan for a period of 3 to 5 years, during which he pays all of his "disposable income" to pay off what he can of his unsecured debt. To calculate the debtor’s available "disposable income," a judge uses his own subjective preferences to determine the debtor’s allowed living expenses.

The means-testing provisions of the bill will bring some rationality to this system. Those who make above the state median income (adjusted for family size), and can repay a substantial portion of their debts without significant hardship, would be required to file in chapter 13. At the end of the chapter-13 plan, this high-income filer would still get a discharge, just as other bankruptcy filers do. There is no "endless treadmill of payments," just a requirement that high-income debtors repay what they can.

In determining whether the debtor can repay a substantial portion of his debts, the legislation makes allowances for a whole range of expenses right off the top. First, it creates a standardized slate of expenses based on the relevant family size and regional cost of living, for such things as clothing, food, transportation, etc., eliminating the subjective judicial navel-gazing of the current system. It then subtracts from your income all of the debtor’s actual payments on secured debts, such as a home mortgage, car loan, or the like. The debtor can subtract any actual expenses for health care for himself or a dependent, as well as payments for health insurance premiums. Finally, there is an allowance for children’s educational expenses. If after subtracting out all of these expenses, the debtor still can repay $10,000 or 25 percent of his debts over a 5-year period, then he would be presumed to have to file in chapter 13.

The debtor could rebut this presumption by showing "special circumstances" that make it too much of a hardship to file in chapter 13, in which case the debtor would still be permitted to liquidate his debts in chapter 7.

So how many people would be affected by means-testing? The estimates are that some 7-11 percent of current bankruptcy filers would be affected by the means-testing provisions of the bill. Roughly 80 percent of bankruptcy filers earn below their state median income, and so will get tossed out of the means-test immediately. For that 80 percent -- roughly 1.2 million of the 1.5 million bankruptcy filers last year -- the means-test will be completely irrelevant. They will be permitted to file chapter-7 bankruptcy just as under the current system. Roughly half of the remaining 20 percent of filers won’t be able to repay enough of their debt to meet the repayment criteria, so they will be dropped out as well and be permitted to file just as today. So in the end, only the highest-income filers with the largest repayment capacity will be affected.

Posted by erasmuse at 09:43 AM | Comments (0) | TrackBack

March 14, 2005

More on Tribe on Richmond Newspapers

Juan Non-Volokh at VC notes today that Tribe has responded to charges that he told a false story in his Green Bag article on arguing Richmond Newspapers, 448 U.S. 555. As I blogged at length here, with lengthy quotations from Tribe's article and his brief in that case, Tribe's article does, as Romesh Ponnuru charged at NR, say that he pushed a 9th Amendment argument before the Supreme Court in that case, but actually he pushed 1st and 6th Amendments arguments, and mentioned a 9th Amendment argument briefly.

Tribe has been silent, but he has now responded with a open a letter to National Review. Tribe repeats his claim that he pressed the 9th Amendment argument in Richmond Newspapers . He says:

[Ponnuru] undertakes a virtual grave-robbing exercise, excavating an 11-page memoir from Green Bag in which I recalled, in a voice deliberately "personal, not professional or academic or legal," my struggle to cope with my father’s sudden death a day after I called home to wish him and my mother a happy 40th anniversary....

My essay was in essence a family scrapbook, complete with baby pictures and photos of the father I miss to this day, not a tract on the trajectory of legal doctrine. It spoke not of the dynamics of the Court or the psychology of its Justices but of "the emotional equation I felt as I stood" before them to argue that case "so soon after seeing my father's body" lying in an open casket -- an equation in which "the murdered man's wife and kids" were "among the victims of the state's decision to conduct" the trial of the accused murderer "outside their gaze."...

[Ponnuru] then tries to make that (non-existent) boast seem all the sillier by insisting that the "Ninth Amendment argument" provided only a "rhetorical flourish" in my brief. In fact, it occupied fully seven pages, in a section whose title quoted the amendment’s text but whose burden was that even precedents< I> not mentioning the amendment, involving "unenumerated rights" such as voting, travel, and proof beyond a reasonable doubt, support a mode of analysis that covers the public’s right of access to criminal trials.

As for grave-robbing, remember who dug up the body and displayed it in the public square. Anyway, rather than refute Ponnuru's charges in detail, Tribe refers the reader to Goldstein's detailed reply to Ponnuru, so it seems Tribe thinks that is the best that can be done.

Tribe's defense is a good illustration of liberal jurisprudence.

(1) Facts don't matter, but emotions do, and truth is something very personal. Tribe says, in effect, that it doesn't matter whether his Green Bag article misrepresents what happened, because it is "not a tract on the trajectory of legal doctrine. It spoke not of the dynamics of the Court or the psychology of its Justices...". Rather, it was an article about Tribe's emotions.

Of course, most people don't care much about Tribe's emotions and do care about details of Supreme Court history that could be useful in understanding what happened. The article was about how Tribe argued the case, something to which not just his emotions but his actual argument is relevant. And while Tribe may think he is safe in retreating to the home ground of what his emotions were, if he can't get the facts about his brief and oral argument right, facts easily checked from documents, why do we think he can or wishes to remember his emotions correctly?

(2) Numerical evidence is unreliable; overall impressions are more accurate. Ponnuru notes that in his brief and oral argument Tribe hardly mentions the words "Ninth Amendment"-- though he does mention other amendments a lot, as I note in my post. Tribe does use one number-- the "seven pages" of section IID-- but he doesn't mention that there are 70 or so other pages in the brief, that the 7 pages are placed after his main arguments, and that the 9th Amendment is just part of the 7 pages.

Numerical evidence is nice because is it is objective, which is why Ponnuru and I use it instead of making our subjective impressions our only evidence. It can, of course, be misleading. For example, Tribe does not mention the 9th Amendment even once in his brief's summary, but the 9th amendment argument is actually there, if not emphasized. But in this case the word counts are not misleading. If you read the brief quickly yourself, your overall impression will probably be that Tribe doesn't argue the 9th amendment at all, because it is so small and buried a part of the brief. If you read more carefully, you will see it is there, but your overall impression will be that he hoped to win on 1st and 6th amendment arguments.

(3) Don't look carefully at the words of the text, its history, or its author's apparent intent; look to what you would like the document to mean, even if nobody else could see that until you explain it years later. As with so many ideas that liberals says are in the Constitution, the idea that Tribe was pressing the 9th Amendment unenumerated rights argument is not apparent from his brief, although it is at least mentioned there, unlike so many rights the Supreme Courts says are in the Constitution. But if you asked someone to read the brief and say what it was all about, they wouldn't say he was pressing that argument.

Goldstein's March 7 post here is so well written and so self-confident in its suggestion that in my post I misread the brief that I looked back at the brief again. Could it be that I missed something, and that although the 9th Amendment argument takes up very little space, it actually was the necessary culmination of a more complex argument involving the 1st and 6th Amendments?

No. I conclude that Goldstein is a good lawyer, and was bluffing. The summary section of Tribe's brief clearly says there are three separate arguments-- from the 1st Amendment, the 6th Amendment, and, if those fail, "it's gotta be in the Constitution somewhere" (my words in quotes there, not Tribe's).

Thus the Sixth Amendment, like the First, guarantees that criminal trials will be open to public attendance and observation. But even if the inference from these two texts seemed problematic, a judicially enforceable norm of open trials would follow from the role such trials play in the Anglo-American regime of ordered liberty and in our Nation's history and traditions.

On the other hand, Justice Burger's opinion , while to my mind rather confused, does seem to make a two-part argument-- that the 1st Amendment guarantees certain rights, and various unenumerated rights are necessary if the 1st Amendment is to succeed in doing that. (Reading the opinion, concurrences, and dissents is quite depressing, by the way-- typical waffling around to try to rationalize getting to the conclusion the judges want anyway for reasons of policy.)

Tribe's brief does not make a two-part argument, but perhaps he wishes he had, and so remembers it that way. Or, if you like, Tribe's 1st Amendment argument implicitly contains unenumerated subsidiary rights, and Burger just divided up the argument differently. But this takes us into different territory, which Ponnuru and Goldstein did not tread-- whether the 9th Amendment did matter at all to the outcome of Richmond Newspapers. Is Tribe is correct in his Green Bag article when he says,

Where was that protection to be found in the Constitution's text? Nowhere, exactly, but the plurality opinion of Chief Justice Burger made a point of recalling how James Madison -- responding to widely voiced concerns at the time of the Founding that adding any finite list of rights to the Constitution to assuage the fears of some about potentially excessive government power might perversely backfire, carrying a negative implication about rights not mentioned -- had spearheaded a move that "culminated in the Ninth Amendment," which was to operate as a "constitutional 'saving clause,' ... to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those not expressly defined." The right recognized in Richmond Newspapers, although it was later described simply as a First Amendment right (and might thereby be said to have emerged with free speech wings that had shed the Ninth Amendment chrysalis from which it sprang), became the first of only two rights ever grounded by a Supreme Court majority or plurality in an analysis that spelled out its debt to the Ninth Amendment as a rule about how to construe the Constitution.

The quote from Justice Burger is from footnote 15 of his opinion, and is the only mention of the 9th Amendment in it. In the paragraph thus footnoted, Burger is saying that the Founders worried that without explicit mention, unenumerated rights would be denied, but that they (explicitly including Madison) decided they didn't need to say anything about it. Only later was the 9th Amendment proposed. I read this as saying that Burger would have reached the same result even if the 9th Amendment did not exist! (This, actually, is the last part of Tribe's brief's Section IID.)

Just after footnote 15, Burger makes the unenumerated rights part of his argument:

But arguments such as the State makes have not precluded recognition of important rights not enumerated. Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and of privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. [n16] The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined.

Thus, Burger is saying that he is pulling the right of newspapers to attend criminal trials from the same place the court pulled such things as the right of privacy. Burger's claim is that the source of the new right is nothing novel, so if it is a 9th Amendment argument, the Court has been using that argument for years in prominent cases, not just the two times Tribe says.

I'm pretty far afield by now, and have gotten into the sometimes entertaining but not terribly serious activity of trying to figure out not the law, but what Supreme Court judges (or their clerks) were trying to say, or might have liked to have said if they'd been smarter. So I'll close with this paradox: Tribe may be right that his argument carried the day for his client-- he based his case on the 1st Amendment, not the 9th, so if the 9th Amendment was crucial to Burger, Tribe cannot claim credit for victory; but actually it was the 1st Amendment that was crucial to Burger, not the 9th, so Tribe actually can claim credit.

Posted by erasmuse at 10:15 PM | Comments (0) | TrackBack

Citations to Foreign Cases; Supreme Court Rationalizations

The use of citations to foreign cases, experience, and public opinion in Supreme Court opinions such as Kennedy's 2005 one on executing 17-year-olds is the same as the use of ethical pluralism that Richard Posner somewhere discusses. Posner is skeptical that a liberal education makes people more moral, because knowing more ethical systems gives a person more rationalizations for the evil things he wants to do. Knowing both Christian and Kantian ethics, he can make a Christian argument so he can do things the Kantians wouldn't allow, and a Kantian argument so he can do things the Christians wouldn't allow.

Similarly, if Judge Kennedy wants to do something like forbid states to execute 17-year-olds, and wants a legal peg to hang his personal opinions on, it helps a lot to be able to pick and choose among 100 countries' legal systems.

I think the main principle in writing a Supreme Court brief these days must be to (a) convince the judge that your side is right as a matter of policy, regardless of the law, and (b) give him a legal rationale, the persuasiveness of which is unimportant, on which to hang his opinion. It is very much like trying for jury nullification in a murder trial. You need to (a) convince the jury that the murdered man deserved to die anyway, and (b) make a legal argument such as temporary insanity or come up with some silly theory of a mysterious unknown murderer to provide a legal rationale.

Posted by erasmuse at 08:48 PM | Comments (0) | TrackBack

March 13, 2005

Weblog Technology: Plans for the Future

I've gotten an account at Dreamhost, and it does seem better than Powweb. Next, I need to try using Wordpress and to move the blog, and also to move my www.rasmusen.org domain over to Dreamhost.

After, that, I'll see what I can do about useful formatting of the weblog, and I'll redo the categories.

Another idea is to go over the old entries and consolidate, cross-link, and improve them. One of my hopes in doing this weblog is that it will help me keep track of facts and thoughts, and that requires organization and culling.

Posted by erasmuse at 09:07 AM | Comments (0) | TrackBack

Landsburg and Aquinas on Junk Food, Law, and Flexibility

Steven Landsburg has a good April 2001 article using the economic approach to theology in Slate: "Why God Created Junk Food". Some of it from its beginning and end:

Suppose you're God. It's the sixth day of Creation and Your project for the day is to design a man and a woman who will be fruitful and multiply and replenish the Earth. Then You plan to take a rest and let the Universe unfold on its own. The problem is that once You cede control, Your free-willful creatures just might screw up big time. Your one and only chance to avert disaster is right at the Beginning, when You endow human beings with the preferences that will forever guide their choices.

For example, it would be a major catastrophe if Your people routinely forgot to eat. To guard against this, You have a choice of two strategies. You can create people who are very smart and self-aware, so they'll go around saying things like, "Hmmm ... I'm currently burning 315 calories per hour, which means I'm three-point-seven hours away from needing some fresh protein in order to maintain my blood sugar at the optimal level, so I think I'll cook a steak." Or you can create people who really like food, so they'll go around saying things like, "Man, I could sure go for a steak right now." Neither option is perfect; the first requires an awful lot of brainpower (which in turn requires an awful lot of energy, which might be difficult to maintain), but the second can lead to grotesque excesses (think of Bill Clinton let loose in a McDonald's). On balance, You settle for a dollop of the first and a whole lot of the second....

All of which is, I think, a really cool application of game theory to a fundamental puzzle about human behavior. Here, though, is what bothers me: Samuelson and Swinkels take their Prime Mover to be not God, but Nature, acting through the forces of evolution. But there's no obvious reason why an impersonal Nature would play this game with the same subtlety as a purposeful God. That's not to say there's no reason, just that the reason isn't obvious (and glib appeals to "the survival of the fittest," while quite possibly suggestive of a good argument, do not constitute a good argument in and of themselves).

He was inspired by a working paper by Larry Samuelson & Jeroen Swinkels, probably "Information and the Evolution of the Utility Function," which is not downloading properly from IDEAS.

I think the idea is related to the following passage from Aquinas's "Whether the New Law ought to prescribe or prohibit any external act" in his Summa, II-1-question 108, article 1.

In the second place there are those external acts which ensue from the promptings of grace: and herein we must observe a difference. For there are some which are necessarily in keeping with, or in opposition to inward grace consisting in faith that worketh through love. Such external works are prescribed or forbidden in the New Law; thus confession of faith is prescribed, and denial of faith is forbidden; for it is written (Mt. 10:32,33) "(Every one) that shall confess Me before men, I will also confess him before My Father . . . But he that shall deny Me before men, I will also deny him before My Father." On the other hand, there are works which are not necessarily opposed to, or in keeping with faith that worketh through love. Such works are not prescribed or forbidden in the New Law, by virtue of its primitive institution; but have been left by the Lawgiver, i.e. Christ, to the discretion of each individual. And so to each one it is free to decide what he should do or avoid; and to each superior, to direct his subjects in such matters as regards what they must do or avoid. Wherefore also in this respect the Gospel is called the "law of liberty".

I won't comment further now, though.

Posted by erasmuse at 09:01 AM | Comments (0) | TrackBack

March 12, 2005

Firing Ward Churchill: Reasons, and Hypotheticals on Firing for Lying About Race

A good Claremont report by the Corrys on whether Ward Churchill fired says

Mr. Churchill's termination is warranted for three of the above five reasons: his demonstrable professional incompetence, his neglect of duty, and his flagrant, persistent failure to meet minimum standards of professional integrity.

It need not and cannot be based on his well-documented disdain for the United States of America - as offensive as that is.

More and more Ward Churchill wrongdoing comes up all the time. This is the first report I've seen that discusses the blame that university officials should receive for his successful career at Colorado.

I don't think Ward Churchill's claim to be an Indian is proper grounds for dismissal, even if it can be shown to be false, which, as I've blogged before, is not an easy task. But it does raise interesting legal questions. The Corry report says:

"If he is not Native American, if he lied about his ethnicity to get a job in the Equal Opportunity program, I think they could fire him on those grounds alone," Caplis told the Rocky Mountain News in a February 11 article.19 Denver lawyer Craig Skinner concurred with Caplis in the article. "If it a material and international misrepresentation, then the university would be justified in terminating his employment...."

Whether a university can hire and fire somebody because of their race is a contentious issue. Conservatives say universities should not discriminate by race, and so should defend Ward Churchill here.

Consider the following three hypotheticals.

CASE 1. Roe University hired John Doe as a professor in 1995. Internal documents show that he was hired only because he claimed to be 100% white, even though such discrimination is illegal. In 2005, Roe discovers that Doe lied on his application form, and is actually 1/4 Black. Can they fire him for lying on his application form?

The argument for allowing Doe to be fired is that the law says you can be fired for lying on a job application, and that is exactly what is being done. The University, to be sure, has committed an illegal act, but that is a separate question.

The argument for not allowing Doe to be fired is that the university should not be allowed to take advantage of its own illegal behavior.

I would forbid him to be fired in Case 1.

I don't know how the law comes out, and would be interested.

CASE 1'. Roe University hired John Doe as a professor in 1995. Internal documents show that he was hired only because he delivered what he purported to be one hundred kilograms of cocaine to the board of trustees as a contribution to the college endowment. In 1996, the trustees discover that the white powder is actually flour. Can they fire Doe for getting his job by lying?

This is exactly the same as Case 1.

CASE 2. Roe University hired John Doe as a professor in 1960, at a time when the university had a perfectly legal policy of hiring only 100% white people. In 2005, by which time such discrimination is illegal, the university discovers that Doe lied on his application form and is actually 1/4 Black. Can they fire him for lying on his application form?

This is a harder case than Case 1. I don't know how I would come out. What is difficult here is that Roe University's action was legal in 1960, and they do have a valid concern now with the honesty of their professors, if not with their ethnicity.

The same problem occurs in Case 2'.

CASE 2'. Roe University hired John Doe as a professor in 1890, at a time when cocaine was legal, and part of the deal was that he delivered 100 kilograms of cocaine to the university for recreational use. In 1930, by which time cocaine use was illegal, the university finally opened the package, and discovered the supposed cocaine was really flour. Can the university fire Doe?

Posted by erasmuse at 12:20 PM | Comments (0) | TrackBack

March 11, 2005

Homosexuality n Ancient Greece and Modern Prisons

Victor Hanson has a good article in the Dec 27, 2004 National Review, in which he discusses ancient Greek homosexuality, which seems very close in style to modern prison homosexuality.
... in the Hellenic world, demarcations such as "homosexual" or "bisexual" did not quite exist, although we hear plenty about excessive "boy-loving" by the likes of Sophocles or, later, the philhellene emperor Hadrian. Indeed there are not even words for such iron-clad "orientations" in the classical or Hellenistic Greek vocabulary. Yet there are plenty of terms of scorn for "pathics" and "catamites" (e.g., kinaidoi or malakoi/malthakoi) who preferred passive relations, did not marry or sire children, and manifested open signs of femininity, including lisping, limp wrists, and girlish makeup and attire. Something like that would describe the precious Agathon, the Athenian playwright, or Giton, the pansy male gigolo of the Satyricon. In the corpus of Aristotle, at least, observations are made of the girlish stares, sashaying, and campy posturing of certain male types --- and the anonymous author may inadvertently be describing what we now associate with a genetic bent toward exclusive homosexual desire among 3 to 5 percent of the population. In any case, a Macedonian horse lord would never assume such a public role that even faintly resembled that of the "sodomite." ...

Our closest modern American notion relative to the sex practices of either ancient sophisticates or ancient randy soldiers might be characterized not as omnivorous pedophilia per se, but as a subset of pederasty: the sexual attraction toward young boys of older men, often otherwise "heterosexual," who seem both indifferent to men their own age and yet not interested in being a passive actor in sexual congress with youths. ...

Whether such homoerotic desire is an expression of innate homosexual tendencies in either participant or more a reflection of the many heterosexual obstacles within tribal societies--- involving the sanctity of female virginity, the relative scarcity of educated and empowered women, or life in a mostly male society — is not quite clear either in the present or the past. But what is unmistakable is that in the ancient Mediterranean occasional sex with feminine-looking men or adolescents did not earn the reproach of "acting queer" as it still does in the modern world. ...

Alexander's Macedonians were both more and less tolerant of homosexuality as we would describe it than the modern world, focusing not on the desire per se for male sexual companionship, but rather on the method of its manifestation. In some sense, the Macedonian evening communal tent was not unlike the savage world of the modern prison. In both, constant male intimacy created a strange classification of masculinity, in which active roles involving penetration were seen as quasi-normal sexual expression, a sort of surrogate intercourse when women are not to be found. Those weaker, prettier, or younger who are "used" are seen as little more than "women," and alone suffer the abuse of surrendering their male identity, whether by inclination or under coercion.

Compare with this horrifying Vdare article on Prison rape

Posted by erasmuse at 04:14 PM | Comments (0) | TrackBack

March 10, 2005

Ward Churchill's Loyalty Oath

David Kopel at VC points out that Colorado has a loyalty oath for its professors, which Ward Churchill presumably signed

Although CU professors are required by state law to sign an oath to support the Constitution of the United States and the Colorado Constitution, Churchill has repeatedly called for the violent overthrow of the U.S. government, and has urged his audiences to perpetrate 9/11 type terrorist attacks in the United States. In doing so, he has provided explicit instructions about where the attacks should take place, and how the attacker should dress so as to be able to get to the target.

If so, it would seem that Churchill has violated his oath, and could be fired for that.

It's interesting that such oaths are still around.

I've blogged before on the California loyalty oath controversy of around 1950 (though my blog's Movable Type search engine seems to be disabled too-- maybe this weekend I'll do the big technology switch to new software). I was reading a book on academic freedom controversies of that time. If I remember rightly, the controversy was the exact opposite of what I would expect-- professors were not upset that they had to swear an oath of loyalty to the U.S. Constitution, but that they had to swear not to join the Communist Party (I might be wrong in my recollection, though).

My views are the opposite. I oppose an oath of loyalty to the U.S. Constitution, because that does limit the kind of faculty we can have, and I see no reason not to have a few anti-Americans on the faculty-- or a lot, for that matter. Who cares if some math professor would like to see the U.S. Constitution overthrown? Also, of course, we don't enforce that kind of oath, and it is hard to. Every law professor who supports Roe v. Wade is subverting the U.S. Constitution, after all.

On the other hand, forbidding a professor to join the Communist Party is something objective and easy for him to comply with. If our physicist has to drop out from his political activities, he will have all the more time for his physics, and be a better professor. The same is true even for a communist political scientist-- he will have to give up party affairs, and do more writing if he wants to the further the Revolution, and writing is what the university hires him for.

Posted by erasmuse at 08:00 AM | Comments (0) | TrackBack

March 09, 2005

Aid to the Poor: SSI for the Old

I looked up a few figures on aid to the poor. The Statistical Abstract tells us that in 2002 (the latest year available) state and federal governments spent 258 billion dollars on medical aid for the poor, 34 billion on SSI, 19 billion on family assistance, 18 billion on food stamps, 48 billion on other assistance, and 52 billion on unemployment insurance.

4.8 million people were getting SSI. 40 million people were collecting social security. 151 million people had positive earnings. 32 million people had dividends.

SSI is an interesting program. Under it, able-bodied people can collect cash aid if they are aged 65 or over, even if they own their homes.

SSI is a federal program that gives monthly payments to people who are age 65 or older or are blind or have a disability and who have low income and few resources (things owned).

... Even though Social Security runs the program, SSI is not Social Security. SSI is financed by U.S. Treasury general funds, not the Social Security trust funds....

In most states, people who get SSI get Medicaid, which pays health care expenses.

Findlaw says
Countable income must be:

* below $500 a month for single adult or child
* below $751 a month for couple

(In states that pay SSI supplements, countable income can be higher; see list on back.)

* $2,000 for single adult or child
* $3,000 for couple (limit applies even if only one member is eligible)

Not all resources count. Some exclusions are:

* the home a person lives in
* a car, depending on use or value
This ought to more generally known.

Posted by erasmuse at 09:03 PM | Comments (0) | TrackBack

March 08, 2005

Susan Estrich on Writing a Column Critical of VP Gore

I've recently blogged on how Laurence Tribe falsified history in telling the story of his first Supreme Court brief. Susan Estrich appears to be an equally unreliable source of personal history. This article from the American Spectator tells how she had written an op-ed column attacking the Clinton Administration, but...

Estrich was then faced with an etiquette dilemma unknown to Post or Baldrige: "USA Today wants to run the column on Monday....On Monday, I am taking my children to the Easter Egg Roll at the White House. Then we're spending the night there." If she ran the column first she might by uninvited to the sleepover, but if she ran it afterwards she risked looking snarky and manipulative. And if she didn't run it at all one might get the impression she had been bought off or bullied. It was, she recalls, an easy decision for a woman of her integrity. "The only thing to do," she writes, "was to send it in and let the chips fall. I told my children we might be uninvited, but this was a matter of principle, and power. I sent the column to my syndicate."

But did she? She waffles a bit about it all in the next paragraph, disingenuously claiming that she "didn't know if any of the papers who take my column ever bothered to run it."

That is an incredible statement, of course. After all that worrying, she didn't bother to see if she had offended the most powerful man in the world?

The story continues, because thanks to computers, we can check on these things easily.

Contemporary accounts, as well as NEXIS, are more certain on this point: it was never published. According to the New York Daily News, Estrich in fact killed the piece after being yelled at by Al Gore. She also admitted that she withdrew a separate column intended for USA Today after a White House meeting where Clinton, just as Kinsey did in regards to his own office, admitted the campaign had a woman problem. Clinton's acknowledgement was enough for her to call off the dogs still unaccounted for, and when the campaign made only lackluster attempts to assuage her she kept her mouth shut even after her spiked column was reported in the press two months later. In the meantime, Gore did little to increase the number of women on the senior staff.

During the last Presidential campaign, Estrich publicly called for a smear campaign against Bush. She doesn't seem to be unduly extreme in her esteem for truth.

Posted by erasmuse at 08:50 PM | Comments (0) | TrackBack

Bureaucratic Infighting in the Bush Administration on Foreign Policy

I came across a good article on Infighting in the Bush Administration-- the National Security Council, the Defense Department, State, Cheney, and so forth. I was just reading volume I of Macaulay's History of England on the intrigues at the court of Charles II, and I'm reminded of that, a little. The article on the Bush Administration is critical, and one must read between the lines, but it's interesting to a student of bureaucracy. I'm always heartened by reports that a political appointee is rude and is wrecking the smooth operation of government, because it means there is a good chance he is actually achieving something. If the Defense establishment were happy with Rumsfeld, that would be a bad sign.It was a bad sign that the State Department bureaucrats were happy with Colin Powell- it was a sign they had him under control.

Posted by erasmuse at 08:40 PM | Comments (0) | TrackBack

Humor: "How to Argue Effectively"

I came across Dave Barry's "How to Argue Effectively" as circulating internet humor without attribution a few years ago. Now Best of the Web has pointed me to the source, and I record it here for future reference. If you haven't read this, do. It's the best Dave Barry piece I've ever seen, by a long shot.

Posted by erasmuse at 08:33 PM | Comments (0) | TrackBack

March 07, 2005

Academic Misconduct: Laurence Tribe and his Green Bag History

Romesh Ponnuru wrote a Feb. 25 piece for National Review detailing how Professor Laurence Tribe of Harvard Law School, already caught an one instance of plagiarism, seems to have manufactured a personal story about the Supreme Court. In essence, Ponnuru says that in an article in the journal Green Bag Tribe says that he pushed a daring and successful 9th Amendment argument onto the Supreme Court in his first oral argument in 1980 in Richmond Newspapers, 448 U.S. 555 (1980) , a case about whether courts had to let reporters in to observe trials when the defendant had waived his right to a public trial. Rather, Ponnuru says that Tribe made other arguments, but the 9th Amendment argument of an amicus brief was what drove the Supreme Court's ruling.

A critic of Ponnuru, Scott Goldstein, has a new website set up on the matter at http://tribeponnuru.blogspot.com/. At VC, Juan Non-Volokh on March 4 said,

For what it's worth, I thought the initial Ponnuru piece on Tribe cam up a bit short. Even accepting everything at face value, it hardly seemed like scholarly misconduct. At most it demonstrated that that Tribe engaged in a bit of puffery, so it hardly seemed worth all the space in National Review.

Given the generally poor reputation of Harvard faculty when it comes to plagiarism, I thought I'd look into it. The charges seemed serious enough to me-- in effect, lying about the historical record-- but of course sometimes accusations of lying aren't true. One needs to look at the Green Bag article and Tribe's Supreme Court briefs, and, if one is to be complete (which I wasn't), the transcript of the oral argument. This is hard for people who don't have Lexis, so I've excerpted the important parts of the document below.

The first question is whether it mattered to the Green Bag article that Tribe says he argued the 9th Amendment and won. i think it does. The article essentially says, "My father was dying during my first Supreme Court oral argument, but I withstood the stress and won using an innovative 9th Amendment argument." The two central points are that Tribe won despite the personal stress and that he won using a daring 9th Amendment argument.

The second question is whether Tribe actually did rely on a 9th Amendment argument. Here, Ponnuru is correct, at least as far as the briefs are concerned (I didn't look at the oral argument transcript): Tribe does make that argument, but puts 90%+ of his weight on other arguments, throwing the 9th Amendment argument in rather carelessly towards the end. Instead, most of his brief is devoted to two other arguments: a 1st Amendment argument and a 6th Amendment argument.

Some objective evidence might help. The Ninth Amendment is mentioned 10 times in the Green Bag article. The word "father" is mentioned 24 times. The First Amendment is mentioned 3 times, all 3 times only to say that the First Amendment argument was very weak in this case. The Sixth Amendment is mentioned twice, in the introduction to say that the defendant had waived his rights under that amendment.

In Tribe's Supreme Court brief-- his written argument for the Court-- the Ninth Amendment is mentioned only twice--once as "Ninth", once as a cite to "IX". The First Amendment, in contrast, is mentioned 53 times (this requires a careful search, since "first" is used in other ways too). The Third Amendment is mentioned 4 times. The Fourth Amendment is mentioned 4 times. The Fifth Amendment is mentioned twice. The Sixth Amendment is mentioned 52 times. The Fourteenth Amendment is mentioned 9 times.

In terms of amount of space, the 9th Amendment argument section which I quote below is 4558 characters out of 142,953 in the entire brief-- about 3.2% (noting that not the entire section IID is 9th Amendment-- only its first third or so, so the "seven pages" claimed by Goldstein is not accurate). Double or triple that if you like, since much of the brief is made up of introduction, remedies, and suchlike, but you won't get the 9th Amendment argument to be prominent.

Thus, I think Juan Non-Volokh has it wrong when he says Goldstein has the best of it. Not at all!

Does this matter? I think so. Tribe's piece is not what would count as research for a tenure review, but it is published in a scholarly journal as a historical account of relevance to other legal scholars and to increase their esteem for Tribe's legal talents. If they rely on it, they will get history wrong and they will overestimate Tribe.

Below I have quotations from the Tribe article and brief that pertain to the 9th Amendment argument.

Well, in a way. But there was one problem, at least as I saw the case: To make an argument based on the First Amendment freedoms of speech and press, one classically needed to have a willing speaker: the right to observe and hear is just the flip side of a right to broadcast or speak, and in this case nobody in the courtroom wanted to speak to mere spectators -- not to the Richmond Newspapers, and certainly not to the victim's family. So the First Amendment didn't completely suffice -- unless one treated it as a very broad structural guarantee of access to information in an open society, a guarantee not enumerated anywhere in the Bill of Rights, but one reinforced by the Ninth Amendment's mandate that the Constitution's "enumeration ... of certain rights, shall not be construed to deny or disparage others retained by the people."

But the Ninth Amendment, I learned as I briefed Richmond Newspapers and as I found myself being lobbied hard by the pillars of the media bar, was barely to be mentioned in polite society, much less was it ready for prime time.

Who was I, an utter novice at Supreme Court advocacy, to buck the conventional wisdom on something so basic? Well, I was a lawyer who'd taken a case because he believed in it, who'd been teaching and would teach generations more of law students about the kinds of questions the case raised, who'd gone on record a couple of years earlier in a treatise, American Constitutional Law (1st ed. Foundation Press, N.Y. 1978) (now in its third edition as of 2000), on most of the issues the case touched, and who cared a lot more about keeping faith with what he'd feel bound to write and teach in years to come, and with how he thought the Court should be approached, than with what the Pooh-Bahs of the establishment thought of him. That's who I was. And am. So the Ninth Amendment argument stayed in. And, I'm happy to report, in the end it hit its target.

As Justice Stevens was to write in his concurring opinion, "never before had [the Court] squarely held that the acquisition of newsworthy matter is entitled to any constitutional protection whatsoever." Where was that protection to be found in the Constitution's text? Nowhere, exactly, but the plurality opinion of Chief Justice Burger made a point of recalling how James Madison -- responding to widely voiced concerns at the time of the Founding that adding any finite list of rights to the Constitution to assuage the fears of some about potentially excessive government power might perversely backfire, carrying a negative implication about rights not mentioned -- had spearheaded a move that "culminated in the [*291] Ninth Amendment," which was to operate as a "constitutional 'saving clause,' ... to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those not expressly defined." The right recognized in Richmond Newspapers, although it was later described simply as a First Amendment right (and might thereby be said to have emerged with free speech wings that had shed the Ninth Amendment chrysalis from which it sprang), became the first of only two rights ever grounded by a Supreme Court majority or plurality in an analysis that spelled out its debt to the Ninth Amendment as a rule about how to construe the Constitution. The other such right was that of reproductive choice, whose reaffirmance in a 1992 plurality opinion, Planned Parenthood of Pennsylvania v. Casey, 505 U.S. 833 (1992), was also expressly linked to the Ninth Amendment as a rule of construction.

. . .

I know that urgent phone calls imploring me, above all else, to forget that "crazy Ninth Amendment argument," didn't even scratch the surface of what I was feeling. Literally all I recall [*294] about writing the reply brief -- which ended (I've just reread it) with a call upon the Court to vindicate "a tradition ... demonstrably central to the public awareness and institutional accountability that define our form of government" -- is that I refused to use that brief as a vehicle for backing away from the Ninth Amendment,...

. . .

Reflecting now on my resolute commitment to arguing the case in Ninth Amendment terms -- and thus in terms of the Constitution's "tacit postulates," which my opening brief had reminded then-Justice Rehnquist and Chief Justice Burger that they had only recently described as no less "engrained in the fabric of the document [than] its express provisions," Nevada v. Hall, 440 U.S. 410, 433 (1979) (dissenting opinion) -- I think my grief may have permitted me to see a bit more clearly through the fog of superficial arguments and objections and may have steeled me against the kinds of eleventh-hour distractions and importunings that co-counsel, meaning to be helpful, are prone to inject as a Supreme Court argument nears.

Here's the entire mention of the 9th Amendment in the reply brief that Tribe says he re-read in writing his Green Bag article:

Nor have appellees addressed any of the reasons offered by appellants for concluding that the First, Ninth, and Fourteenth Amendments, in conjunction with the Sixth, have long secured a right to attend and observe criminal trials. Id. at 27-43, 51-59.

So much for "I refused to use that brief as a vehicle for backing away from the Ninth Amendment,..."

From Tribe's original brief we this summary of his entire argument. This, his own summary, never mentions the 9th Amendment by name, but the 9th Amendment is part of the argument of the last paragraph, which I've boldfaced.

Summary of Argument


For centuries, it has been an axiom of every just society that the people may enter freely into its halls of justice. The right to attend and observe criminal trials was taken for granted by our Constitution's Framers as well. No single provision of the Constitution expressly and unambiguously confers that right, but each of several provisions plainly implies it, and its existence is demonstrably entailed by those provisions' interrelated meaning and structure.

A guarantee that criminal trials will be open to orderly public attendance and observation is, first of all, implicit in the First Amendment. That the freedoms of speech and press include the freedom to observe and learn, and not only the freedom to talk and publish, is beyond doubt. Self-government presupposes knowledge; and knowledge of the administration of justice lies at the core of any society dedicated to the rule of law.

Although the First Amendment does not unseal government records or unlock private files, its central meaning requires that people remain free to seek understanding and information in those forums that have traditionally been open to the public, at least when their function depends vitally upon access by the public. This nation's courthouses are the clearest illustration: open from the beginning, and unable, if sealed from view, to fulfill their mission of displaying as well as doing justice.

The case for a First Amendment right of access to criminal trials is uniquely strong, for such trials are public by constitutional command. Even if the Sixth Amendment were thought to confer only on the accused the right to demand a public trial, the very fact that the accused has that right automatically removes criminal trials from the realm of proceedings the state is free unilaterally to treat as wholly internal and confidential, and from the realm of places that the state is empowered unilaterally to cordon off. In this special context, it matters not that the freedoms of speech and press are being invoked against the wishes of the trial's participants: since it is settled that the accused has no right to demand a secret trial, government's action making it secret is simply a form of censorship.

Entirely apart from the First Amendment, the Sixth confers standing on members of the public to invoke the public trial guarantee. No one doubts that the constitutional norm of open trials does more than protect defendants from oppression. It also protects the public from prosecutorial and judicial malfeasance and ineptitude. Because the public's interest in enforcing the Sixth Amendment's public trial clause is independent of, and often conflicts with, the perceived self-interest of the participants in a trial, vindicating that public interest requires recognizing standing for members of the public who have been denied access. Doing so not only serves the purposes of the Sixth Amendment; it also fully meets this Court's constitutional and prudential tests for determining who may assert a claim under the Constitution.

Nor is the norm of open trials one that could better be vindicated politically than judicially. Like the right to vote or the right to speak, the right to watch silently the operation of our courts must be held securely beyond the reach of pluralist interest-group compromise.

Although dicta in the majority opinion in Gannett point in a different direction, nothing this Court has ever held -- not even in Gannett -- either requires or implies that the public trial clause is unavailable to persons ejected from a criminal trial at the behest of its participants. Gannett, as the majority noted and the Chief Justice stressed, involved only pre trial suppression hearings. To find no public right of access to such proceedings under the Sixth Amendment says nothing about access to trials as such, since both in history and in purpose suppression hearings and criminal trials are poles apart. The aim of the first is to keep inadmissible information from the jury; of the second, to present admissible information to the jury -- and to the community that the jury represents. It is only in the context of the pretrial suppression hearing that openness and fairness are in tension. At trial, where a battery of devices may be deployed to keep any improper evidence from the jury, the two norms converge -- even though the personal interests of the accused, the accuser, or the judge may at times be advanced by concealment.

Thus the Sixth Amendment, like the First, guarantees that criminal trials will be open to public attendance and observation. But even if the inference from these two texts seemed problematic, a judicially enforceable norm of open trials would follow from the role such trials play in the Anglo-American regime of ordered liberty and in our Nation's history and traditions. Like the right to vote, which the Constitution does not expressly mention, the right to attend criminal trials is fundamental because it preserves all other rights. And, like the right to demand proof of guilt beyond reasonable doubt, the right to observe criminal trials is constitutionally protected because it is indispensable to public confidence in the legal system. Plainly, the time-honored right to observe criminal prosecutions in progress was among the rights "retained by the people" when the Constitution was adopted.

The bulk of the argument has two parts, one based on the 1st Amendment and one based on the 6th, both rather weak. The last section of Section II of the brief, the section with the constitutional arguments, makes the 9th Amendment argument, crowded in one section with two other arguments. The 9th Amendment starts the section, is followed by a 14th Amendment argument, and that is followed by an argument that the rest of the Constitution, as a whole, requires a right to observe trials. Here is the 9th Amendment part:

D. Even if Not Otherwise Enumerated, the Right Is Implicit in Ordered Liberty and Is Among the Rights or Privileges "Retained by the People."

Even if this Court should conclude that the right of members of the public to be present as observers at criminal trials finds insufficiently specific "enumeration in the Constitution," that fact alone could "not be construed to deny or disparage" the existence of such a right, as one "retained by the people." U.S. Const., Amend. IX.

On the contrary, a Ninth and Fourteenth Amendment right, privilege, or immunity of access to criminal trials would follow directly, even without more specific textual enumeration, from the central role of such a right in the "Anglo- American regime of ordered liberty," Duncan v. Louisiana, 391 U.S. 145, 149-50 n.14 (1968) -- a role at least informed, even if not unambiguously guaranteed, by the First and Sixth Amendments, and one undeniably revealed in "this Nation's history and tradition." Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (footnote omitted). Cf. Duncan v. Louisiana, supra, 391 U.S. at 148-149 & n.14; Johnson v. Louisiana, 406 U.S. 356, 372 n.9 (1972) (Powell, J., concurring). n46 Just as the expressive "use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens," Hague v. C.I.O., 307 U.S. 496, 515 (1939) (opinion of Roberts, J., joined by Black, J.), so, too, the observational use of the Nation's halls of justice has, from time immemorial, been among those same privileges, immunities, rights, and liberties. See, e.g., 3 W. Blackstone, Commentaries n* 373 (6th ed. 1681); 2 E. Coke, Institutes of the Laws of Englandn* 103 (1765-1769).

n46 To hold that due process of law must be open process of law would entail no elevation of a substantive zone of personal autonomy into a newly-recognized right against the majority, cf. Moore v. City of East Cleveland, supra, 431 U.S. at 537 (Stewart, J., joined by Rehnquist, J., dissenting); id. at 549 (White, J., dissenting); it would require little beyond the quintessentially procedural recognition that accessibility to the public is a characteristic "inhering in the institutional process by which justice is administered." Estes v. Texas, 381 U.S. 532, 588 (1965) (Harlan, J., concurring). For a public trial implies nothing about the permissible content of a state's criminal laws or sanctions; it "implies only that the court must be open to those who wish to come, sit in the available seats, conduct themselves with decorum, and observe the trial process." Id. at 589.

Indeed, the right of public access to criminal trials seems an indispensable precondition of the system of government established by the Constitution. No less than the unenumerated right to vote in state elections, Harper v. Virginia Board of Elections, 383 U.S. 663, 665 (1966), the right of access to criminal trials must be "regarded as a fundamental political right, because preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (voting). No less than the unenumerated right to proof beyond a reasonable doubt, In re Winship, 397 U.S. 358 (1970), the right of access to criminal trials has won "virtually unanimous adherence" throughout our history, reflecting "a profound judgment about the way in which law should be enforced and justice administered." Id. at 361-62, quoting Duncan v. Louisiana, supra, 391 U.S. at 155. Indeed, much like the reasonable doubt requirement, our system of open trials has proven itself "indispensable to. . . the respect and confidence of the community in applications of the criminal law." In re Winship, supra, 397 U.S. at 364. n47

n47 Where the state forbids any extrajudicial resolution of a particular dispute, this Court has held that only the litigant's unimpeded access to court can make the state's "monopoly over techniques for binding conflict resolution. . . acceptable under our scheme of things." Boddie v. Connecticut, 401 U.S. 371, 375 (1971) (indigent divorce plaintiff entitled by the due process to waiver of court costs). So too, the state's monopoly, through the criminal law, over the legitimate use of force, see Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 346-47 (1827) (Marshall C.J., joined by Duvall and Story, JJ., dissenting), is acceptable only because all have access to criminal trial courts. For the victims of violent crimes, for example, the legitimacy of insisting that official prosecution replace private vengeance is ultimately linked to the victim's ability to enter the courthouse to see justice done.

All in all, it looks like Tribe is taking advantage of 20-20 hindsight, even though he has the briefs available to help out his memory and apparently even looked at them.

Posted by erasmuse at 02:08 PM | Comments (1) | TrackBack

March 06, 2005

Augustine on Knowledge and Multiple Biblical Meanings

I came across a good passage on Knowledge in Augustine's Confessions, Book 11, chapter 25. He is using the example of interpreting the Book of Genesis.

Let no man fret me now by saying, "Moses did not mean what you say, but what I say." Now if he asks me, "How do you know that Moses meant what you deduce from his words?", I ought to respond calmly and reply as I have already done, or even more fully if he happens to be untrained.

But when he says, "Moses did not mean what you say, but what I say," and then does not deny what either of us says but allows that both are true--then, O my God, life of the poor, in whose breast there is no contradiction, pour thy soothing balm into my heart that I may patiently bear with people who talk like this! It is not because they are godly men and have seen in the heart of thy servant what they say, but rather they are proud men and have not considered Moses' meaning, but only love their own--not because it is true but because it is their own. Otherwise they could equally love another true opinion, as I love what they say when what they speak is true--not because it is theirs but because it is true, and therefore not theirs but true. And if they love an opinion because it is true, it becomes both theirs and mine, since it is the common property of all lovers of the truth. But I neither accept nor approve of it when they contend that Moses did not mean what I say but what they say--and this because, even if it were so, such rashness is born not of knowledge, but of impudence. It comes not from vision but from vanity.

And therefore, O Lord, thy judgments should be held in awe, because thy truth is neither mine nor his nor anyone else's; but it belongs to all of us whom thou hast openly called to have it in common; and thou hast warned us not to hold on to it as our own special property, for if we do we lose it. For if anyone arrogates to himself what thou hast bestowed on all to enjoy, and if he desires something for his own that belongs to all, he is forced away from what is common to all to what is, indeed, his very own--that is, from truth to falsehood. For he who tells a lie speaks of his own thought.

I read this to say that some passages admit of more than one equally valid interpretation. Both may be true (as Augustine says), or it might be that one is true and one is false but we cannot say which is which with reasoning and available evidence. If so, we should not puff our own opinions as the only valid ones.

In fact, to do so would be folly as well as sin. For if my opinion is the only true one, then it is also not special to myself, but is true for everybody else too, and is a discovery of mine, not an invention. I can lay claim to it only if I invented it-- but in that case, it is false. The scientist cannot be as proud as the artist, because he only discovers what already existed and what somebody else would discover at some point if he did not. At most, the truth can be his sole possession only temporarily.

Creativity is bad in science. The idea is not to be create the truth, but to discover it.

A little later Augustine says more:

Let us not, then, " go beyond what is written and be puffed up for the one against the other." Let us, instead, "love the Lord our God with all our heart, with all our soul, and with all our mind, and our neighbor as ourself." Unless we believe that whatever Moses meant in these books he meant to be ordered by these two precepts of love, we shall make God a liar, if we judge of the soul of his servant in any other way than as he has taught us. See now, how foolish it is, in the face of so great an abundance of true opinions which can be elicited from these words, rashly to affirm that Moses especially intended only one of these interpretations; and then, with destructive contention, to violate love itself, on behalf of which he had said all the things we are endeavoring to explain!

This gives some Biblical authority for not pushing the text further than it can yield truth. Also, it makes the good observation that God's Word is carefully written, and if it seems to have two meanings, it probably does have two meanings. One might go even further, and say that if it misleads a lot of people, it is intended to do so. Jesus says more than once that his parables are not meant to be understood properly by everyone, and we know that many prophecies were rightly understood only after they were fulfilled, not before.

Posted by erasmuse at 09:52 PM | Comments (0) | TrackBack

March 05, 2005

Translating "Brothers" in the Bible: Anti-Feminist Doctrinal Implications

The Baylyblog has an interesting discussion of whether it is correct to change "brothers" to "brothers and sisters" in translating the Bible.

Tim correctly boldfaced this part of his post:

"But remember, it's not my usage under debate, but the usage of the Holy Spirit."

Suppose a person believes the following two things: (a) "brothers" is not inclusive of females, and (b) the Bible is the Word of God, correct as a guide to doctrine.

That person's conclusion should not be that wherever "brothers" appears in the Bible it should be replaced by "brothers and sisters".

Rather, his conclusion should be that God means to exclude females in all those passages. Thus, anyone who takes the Bible seriously has to realize that believing "brothers" is noninclusive will take him away from political correctness, not towards it. This isn't just important for translation; it has much more important implications for doctrine.

That is a surprising conclusion, but if whenever the Bible says something we disagree with we conclude that the words of the Bible should be changed, we aren't going to learn anything from it.

Under that philosophy, the reader can't take out anything more than he puts in.

Posted by erasmuse at 09:24 PM | Comments (0) | TrackBack

Mathematical Constructivism and Proofs in Economics

Steve Han asks me what I think of Mathematical Constructivism, described in this Wikipedia entry. As the entry describes well, there are four parts to Mathematical Constructivism: (1) if you are proving that a class of things exists, you have to actually find one example in the class that does exist, (2) if you are proving that a property is true for every element of a class of things, you have to provide an algorithm that will show it is true for every individual element, (3) the concept of infinity can't be used, and (4) you can't use proofs by contradiction (something which flows from principles 1 and 2).

I remember first hearing of this in Herb Scarf's math econ class at Yale around 1978. Brouwer was a constructivist, and Scarf was happy that in the Scarf Algorithm for finding fixed points he had found a constructive proof of Brouwer's Fixed Point Algorithm.

I use proofs by contradiction all the time, and do believe that they indeed lead me to truth. That is because I would define a true statement as one on which we can rely under all circumstances and to which everyone would agree if they thought hard and long enough. I do not, however, think that proofs by contradiction lead me to understanding. I can rely on my proved theorem, but I do not necessarily understand it, by which I mean that I cannot generalize it further or extend it to even slightly different premises (unless I can be assured that the contradiction carries over to those different premises).

Thus, knowledge attained via proofs by contradiction is useful but unsatisfactory. It is okay for theorems that one uses as a technical tool, but not for ultimate conclusions. (Maybe I'm caught in a contradiction here-- how can I rely on an ultimate conclusion reached by a technical tool that I don't understand?)

Take, for example, the question of existence of a Nash equilibrium in a particular game-- say, the Battle of the Sexes. Here are three ways I could prove that an equilibrium exists:

1. I find a strategy profile that fits the definition of equilibrium-- that is, such that neither the Man nor the Woman would unilaterally deviate. One such strategy profile is that both players go to the Prizefight. The Man would not deviate, because he likes the Prizefight better than the Ballet and he likes being with the Woman. The Woman would not deviate, because although she likes the Ballet better, it is more important to attend the same event as the Man.

2. I could show that this game (with mixed strategies included) fits the premises of the standard theorem about when equilibrium exists-- that the game's payoffs are closed and bounded, that the payoff functions are continuous in the strategies, and so forth.

3. I could in effect re-prove an existence theorem by showing that a contradiction arises if no equilibrium exists. (Is it true that whenever a Proposition is true, one can find a proof of it by contradiction? Probably.)

For this simple situation, method (1) is easiest and best. I not only achieve my goal of proving existence, but I end up with an example of it too. I understand the situation much better than if I had used (2) or (3).

More often, method (1) is not easiest, because it is hard to find an example but easy to show that the conditions of some other theorem apply, method (2). But method (1) still yields the best understanding, I think.

In economic modelling, understanding is particularly important. Our models are always special cases anyway, and we want to extend the mathematical conclusion to the real world. Thus what we call "intuition" is crucial. It is not enough to do the proof: the economist must make the reader understand why the general idea behind the proposition is true. The proof is there mainly to provide a check on the intuition, because purely verbal explanations are more likely to be flawed.

An example is the Walras-Arrow-Debreu proposition that there exists a set of prices which equate supply and demand. The premises of the theorem never apply exactly, but frequently apply approximately. The proof is a useful achievement, but what is most important is the idea that the Invisible Hand works, an idea as old as Adam Smith, but one which in the form he presented it would leave any careful reader uncomfortable.

Posted by erasmuse at 09:27 AM | Comments (0) | TrackBack

March 04, 2005

The Vietnam War: Troop Levels, Victory, and Poll Opposition

The Vietnam vs. Iraq comparison came up yesterday in our law-and-econ lunch. My recollection was that U.S. political support for the Vietnam War was extremely high up till around 1967 and that by the 1972 North Vietnamese offensive the U.S. troops had pretty much withdrawn, except for the air force, and the South Vietnamese beat North Vietnam on their own. (Their eventual defeat in 1975 occurred long after U.S. troops had left, and when the U.S. would no longer even supply weapons to South Vietnam.) I'd call the 1972 situation victory, as far as the U.S. objective was concerned. Others were skeptical (these are all contrary to the general impression the media gives us of the war), so I decided to pin them down.

(1) When did public opinion in the U.S. turn against the Vietnam War?

IU doesn't have the Gallup Brain database, which is what I'd need to check this out.

There was, by the way, substantial support for a stronger war effort, especially early in the war. For instance, in a poll conducted in February 1968, 25 per cent wanted to "gradually broaden and intensify our military operations", and 28 per cent wanted to "start an all-out crash effort in the hope of winning the war quickly even at the risk of China or Russia entering the war". Just 24 per cent wanted to "discontinue the struggle and begin to pull out of Vietnam gradually in the near future", and 10 per cent wanted to "continue the war at the present level of military effort".

That webpage has other interesting data:

There is just one question that was asked, with the same wording, throughout the war. Gallup asked the following question frequently: "In view of the developments since we entered the fighting in Vietnam, do you think the U. S. made a mistake sending troops to fight in Vietnam?" If some one answers no, then we can assume that they supported the war. ...

Almost every time the question was asked, people under 30 were more likely to say no than people 30-49, who in turn were more likely to say no than people 50 and older. ...

Educated people were more likely to support the war, not less. There is not as much data on the subject, but draft status did not seem to affect opinions on the war.

Some common beliefs about the war are correct. Women were more dovish than men, and blacks more dovish than whites. All the patterns that I have mentioned were also found in public opinion during the Korean War and World War II.

The page has a good table (except that it would be nice to know how many said "yes", since apparently quite a few (though 20% or less) had no opinion. Peak support was in November 1965, when 75% of people under 30 and 57% over 49 thought the war was not a mistake. By March 1968 50% of the young and 35% of the old thought the war was not a mistake. At the end of the data, in May 1971, 34% of the young and 23% of the old thought the war was not a mistake.

By the way, if you come across the paper, "Interpreting White House Public Opinion Mail and Polling: Vietnam Hawks and Lyndon Johnson", be wary about its conclusion that polls expressing dissatisfaction with the conduct of the war in the early years meant people were opposed to the war. Recall from the Gallup data that more people were dissatisfied because Johnson was too timid than because he was too vigorous in his war plan.

(2) Were U.S. troops gone by 1972?

As this table of troop levels shows, the peak year for American troops was 1968, when there were 536,000 of them in Vietnam. In 1971 there were only 156,000, and in 1972 only 24,000. Thus, the South Vietnamese were indeed able to defeat an all-out North Vietnamese offensive without U.S. ground troops (though the U.S. air force did play a big role in that victory).

(3) Did the U.S. lose the Vietnam War?

I haven't been able to find a web source, but I think that during the entire Vietnam War, the Communists failed to conquer and keep (for more than three months, let us say) even one of the 44 provincial capitals until 1974, when Phuoc Binh fell. They had attacked many (all?) of them, and seized some of them temporarily (Quang Tri in the 1972 offensive, for example), but in terms of territorial control, the Communists were never anywhere near winning the war until its very last year.

I'd say that when the U.S. pulled out its troops in 1972 it had achieved victory-- in the sense of achieving its objective. It had stopped the Communists from taking over South Vietnam. It had not, to be sure, driven the Communists from North Vietnam, or even driven their troops from all of South Vietnamese territory. But those were not the war's objectives.

The Korean War worked out much the same way. The U.S. went into the war merely intending to restore the status quo of restricting the Communists to North Korea. At the end of the war, they had succeeded in that-- though the Communists still retained a little South Korean territory, and the Allies had conquered a little North Korean territory.

Of course, the Communists did win in Vietnam. But that was in a separate war, that started two years after our ground troops had left, a war in which the United States refused to take part. The same thing would have happened in Korea if we'd decided to withdraw not 90% but 100% of our troops and to stop helping South Korea in any way.

Phuoc Binh, the capital of Phuoc Long Province, about 60 miles north of Saigon, falls to the North Vietnamese. Phuoc Binh was the first provincial capital taken by the communists since the fall of Quang Tri on May 1, 1972.

Posted by erasmuse at 08:43 AM | Comments (1) | TrackBack

March 03, 2005

Fixing the Weblog: Switching to WordPress and DreamHost

Rather than try to reconstruct this, I will in a week or two change both software and hardware.

It looks as if Wordpress is superior to Movable Type as blog software, so I'll try moving to that. Not only does MT not work as it's supposed to, but it's anti-spam features are feeble, it doesn't have a "notify commenter" feature, automatic trackbacks don't work, and it doesn't allow convenient reorganization of categories (possibly the most important feature).

I am also not happy with Powweb, the company which has the computer that hosts my website. Powweb is cheap and has lots of disk space-- way more than I need-- but it is often slow, does not have much documentation, and does not allow a telnet connection that would let me log in and use unix commands. ince I can only use FTP, I can't delete entire directories, for example. So I'm thinking of moving to Dream host .

The domain name (www.rasmusen.org) won't have to change-- it's independent of the computer used.

Posted by erasmuse at 07:45 AM | Comments (0) | TrackBack

March 02, 2005

The Exclusionary Rule; Ward Churchill

A reader asked me

Prof Braider is a professor of French literature at U of C, and advances the argument that since the investigation into Ward Churchill was based upon his controversial comments, any evidence of lies, plagerism, academic fraud, etc cannot be used against him. Freedom of speech will void any non speech related issues that happen to turn up in the process.

Is there legal precedent for this, or is this just academic posturing?

That is false, I think, as a legal matter, and even if it were not, that would not matter in the end. This is by analogy with the exclusionary rule in criminal procedure, a peculiar rule that says that if the police search my house for drugs without a proper warrant, and find ten dead bodies rotting in my basement, they cannot act on that information to go after me for murder. I'll come back to the desirability of that rule later, but for the moment note that if at the same time the neighbors are complaining that my house stinks of decaying flesh and other evidence points to my criminality the police can conduct a second search based on that, and use the evidence so obtained. In the Ward Churchill case, people have previously been complaining that he was an academic fraud, quite independently of the current controversy. It is legitimate for his Chancellor to start an investigation based on that-- or not to start one, as the Chancellor pleases. Moreover, once an investigation starts, it certainly is not limited to misconduct of the kind that started it. Thus, even if the current 30-day investigation would be ruled improper, the Chancellor could just start a new one, to achieve the same result.

Now back to the exclusionary rule. This might be worthy my writing a scholarly article about.

There are two reasons for the exclusionary rule. One is the purely formalist idea that this is analogous to other parts of the law, where a person cannot benefit by his own bad behavior. Here, the police should not benefit from an illegal search.

The second reason is that we want to deter the police from making illegal searches. This is a good motivation, since we indeed want to avoid illegal searches. But why do we want to avoid them? Because we want to avoid searches that hurt innocent people. There is nothing intrinsically bad about the police not getting the right paperwork done before they conduct a search; the reason we require the paperwork is that unless the police can convice a judge that they have a good reason, the search probably isn't justified because it has too high a chance of hurting an innocent person and not coming up with evidence of a crime. The reason for the paperwork is not to hinder the capture of criminals, but to prevent police from making unjustified searches. But the exclusionary rule's cost of a few criminals who get away is worth the benefit of deterring a lot of unjustified searches.

As solution to the problem of unjustified searches, of course, the exclusionary rule does have a glaring problem: it does not punish anyone for making a truly unjustified search. If the police ransack my apartment and find that I haven't committed a crime, the exclusionary rule just tells them they can't use the evidence they haven't found to prosecute me. The exclusionary rule only helps punish the police when their search was justified, because there did exist evidence of a crime.

TA more straightforward solution to the problem of unjustified searches is simply to punish police who do them. If the police want to risk cutting corners in making a search, they can, but if the search doesn't turn up anything, they are in deep personal trouble. Since if the search *does* turn up something, they get only a mild personal reward-- the career credit of having turned up some useful evidence-- the incentives would still be for the police to be overly cautious. Remember, most of the benefit from catching a criminal goes to the public; the policeman gets paid the same salary whether he catches criminals or not.

I'll mention a couple of other arguments about the exclusionary rule.

First, it gives a big advantage to expensive lawyering relative to pure justice. The rule is all about complying with legal niceties. Thus, it puts a premium on expensive legal talent, and especially benefits rich criminals such as drug dealers or white collar criminals relative to the ordinary citizen.

Second, it makes it easier for corrupt police to protect criminal allies. If the police feel they have to investigate a case because of public pressure, but they don't want to actually convict the criminal, they can foul up the search procedure and blame the courts for the criminal staying free.

I wonder, too, if anyone's thought about the following hypothetical. Smith is on death row, having been convicted of murder. The police make an illegal search of Jones's car, and find a signed confession that says Jones did the murder, not Smith. Should Jones remain free and Smith die? That is the logic of the exclusionary rule.

If you like, add to the above hypothetical that the police also find a plan by Jones to murder a third person, Roe, the following week. Should the police be allowed to warn Roe that he is in danger?

The exclusionary rule has long been criticized, so probably most of these criticisms are well known. I know I was surprised when I wrote an article on the supposed "right against self-incrimination" at how little attempt there was in the law journals to justify it, and how many criticisms of its logic. The law of criminal procedure is a mess.

Posted by erasmuse at 09:58 PM | Comments (2) | TrackBack

March 01, 2005

The Open Anti-Semitism of the British Labour Party

The London Times

reports on the openly anti-Semitic Labor Party campaign against the Jewish leader of the Conservative Party, Michael Howard. This apparently is in appeal to British Moslems, an ominous sign of how Moslem immigration can turn domestic politics in a nasty direction. Let fans of terrorist groups like the PLO immigrate, and how else do you expect the politicians to respond?

Yesterday, The Mail on Sunday rightly published two striking photographs side by side. Both are carefully staged, with a Fagin figure holding an old-fashioned pocket watch on a chain. The first is a picture of Barry Humphries actually playing Fagin. The second is a Labour Party poster of Michael Howard, carefully chosen to fit the Fagin image .

The second picture has, of course, been doctored by Labour. The watch and chain have been added. The relationship between the two poses is obviously intentional; there is even an unusual knot in the watch chain that appears in both. We are intended to associate Mr Howard with Fagin, that is with a sinister Jewish criminal as seen by anti- Semites.

This is part of the Labour pre-election campaign. Another Labour Party poster, to be seen on the Labour website, shows Michael Howard and Oliver Letwin as two flying pigs. Recently Mike O’Brien, the Trade Minister, wrote an article for a Muslim newspaper that questioned whether Mr Howard could be trusted to support Muslims. Last year Ian McCartney, the chairman of the Labour Party, compared Mr Letwin to Fagin.

The steering group for the Labour election campaign consists of 12 members, led by Alan Milburn and Alastair Campbell. It includes Darren Murphy, who is the Downing Street press officer. All 12 are close to the Prime Minister. The Prime Minister himself should be regarded as fully responsible for the policies of his campaign, which is largely run by his political friends.

The posters have not been withdrawn since the first complaints were made.

Posted by erasmuse at 02:21 PM | Comments (0) | TrackBack

Professor Fired for Heresy at Huntington College

The Chronicle of Higher Education tells us that Huntington College actually fired a professor for heresy. I don't find this unjustified, since it is a religious college; actually, it is rather encouraging that anybody cares about as purely theological a point as this.

The Board of Trustees of Huntington College, a United Brethren Church institution in Indiana, wants to get rid of John E. Sanders in the worst way. Mr. Sanders, 48, a research professor of philosophy and religion, has been at the college for seven years.

The board spent much of a three-day retreat in Carefree, Ariz., last month considering the large outpouring of support for Mr. Sanders from Huntington's president, faculty members, and students, before offering him a one-year paid sabbatical next academic year and at least one more year's salary if he agrees to resign.

The problem is that Mr. Sanders is a prominent proponent of Open Theism. That minority approach within evangelical theology maintains that the future, rather than being foreordained, unfolds through a continuous give-and-take between God and humans.

Posted by erasmuse at 02:20 PM | Comments (0) | TrackBack