The Grubers in the Audience

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For a long time I’ve been thinking about Stephen Cox’s account (Liberty, November 22) of Jonathan Gruber’s now-famous remarks about how easy and necessary it is to fool the American people. Did you notice: Cox analyzed Gruber, but failed to analyze the audience that not only acquiesced in Gruber’s disgraceful performance but also, in some of the recordings, laughed along with him.

Cox isn’t the only one who failed to explore the subject. No one seems willing to do it, despite the fact that you can tell a lot about a culture by the willingness of an audience to tolerate what somebody says to it. On the one occasion on which I have heard this topic broached in the media — a discussion on a radio talk show — the two commentators agreed that because we don’t know who, individually, was listening while Gruber blabbed and smirked, we can’t say much about these people, except to label them elitists. The evidence of elitism was the fact that they were academics, or would-be academics, at academic, or para-academic, conferences; and academics, especially those at “elite institutions” such as Gruber’s headquarters, MIT, are elitists. End of discussion. But I’m not willing to end it there.

Yes, academics who work at elite institutions tend to be elitists. I know this by personal experience: I teach at an elite institution. But elitism can take many forms. A person who went to East Overshoe College, or no college at all, can be an elitist in the corporate boardroom, or the media deck of the football stadium, or the town council, or the self-appointed neighborhood watch. And a person who has taught at Harvard for 30 years can be an elitist in ways that are virtually harmless. He can be snotty about his colleagues’ grading standards, or their habit of pronouncing “err” as if it were “heir” (something tells me that Cox falls in that category of elitist), or their inability to decline Latin nouns.

None of the great intellectuals who exert political influence at Virginia appears to have had the slightest fear of reenacting this sorry story.

I don’t mind those forms of elitism. I hope that somebody at Harvard still has them. (Harvard is a ruthless inflater of its own reputation.) The kinds of academic elitism that I do mind are (A) the elitism of people who consider themselves entitled to push other people around, and (B) the elitism that maintains its self-confidence even after it has destroyed its legitimacy.

Gruber’s audiences appear to have been defined by those kinds of elitism. If the academics who sat and listened to Gruber objected to his boasts about pushing people into a healthcare system they didn’t want — a serious matter, much more serious than Latin case endings — some of them would have said so. But there is no record or hint of objection — only the appreciative laughter we hear on some of the recordings. If you show up for a dog fight, and you stay and don’t object, and instead you whistle and laugh and cheer, we can assume that you are morally indistinguishable from the men who trained the dogs to kill each other.

That reflection doesn’t speak well for Gruber’s audience. But here’s a worse reflection, one that has occupied me ever since the appearance of Cox’s article. Critics of elitism didn’t notice this, but Gruber’s elitist audience was forfeiting its very title to elitism. Academics’ legitimate title to respect and deference, to the exercise of any role of leadership in society, comes from their ability to identify facts and deal with them honestly. Yet this is the title Gruber and his audience forfeited, but were too elitist to care if they did.

Suppose that some academic is liberally paid and respectfully heard because he is an expert on civil engineering. This person wants to reform the laws about highway bridge safety. He wants this so badly that he misrepresents facts. If his misrepresentations are discovered, he will forfeit his title to respect and may forfeit his income too. Some colleges still fire people like that.

Or suppose some literary scholar believes that Jane Austen is a great writer and that everyone should read her. Inspired by this ideal, he goes to book clubs and academic conferences claiming that Austen is significant because she was the first woman novelist. But she wasn’t, and anyone qualified to pronounce on her merits would know that she wasn’t, because (for instance), one of her literary merits is her ability to satirize earlier woman novelists. In any audience, even a “lay” one, somebody will rise and ask a question about Aphra Behn or Fanny Burney or Madame Lafayette, and the Austen idealist will be discredited as an expert. If he put on a Gruberlike grin and said that what he meant by “novelist” is a great novelist, and what he meant by “woman” is a woman who never married, so he was right after all, the audience will make for the doors, and probably complain to his department chair. The offender won’t be fired, but his colleagues will give him funny looks in the hallway, and he won’t be invited to serve on many more academic panels.

But if he went further, and informed an academic audience that he didn’t believe any of those things, but merely went around saying them because he wanted to fool all the non-experts, who are stupid anyway, and he smiled and chortled and laughed aloud at the success he had, what would be his fate? The academics in his audience would be outraged, and they wouldn’t keep their outrage quiet. They would take his conduct as a slur on themselves — in general, as members of the human race, and in particular, as people falsely enlisted as his co-conspirators. The real elite would triumph with his ejection from the room, and likely from his career.

Academics do not qualify themselves for public respect because they are “honest” enough to vent their resentments, hysterias, and wish-fulfillment fantasies.

That, at least, is supposed to be the response to such things, and it would have been the response to Gruber if he had operated in the field of civil engineering or Jane Austen studies. But he is a public policy expert, and public policy experts have, apparently, become exempt from professional discipline. I haven’t heard any reports of Gruber’s rejection by the mass of academics in his field. Nor have I heard any vigorous censures from the professional organizations that are usually so quick to make pronouncements about what academics think, want, or demand.

And there is evidence of even more startling abdications of academics’ most basic professional duty, the duty to be honest. Rolling Stone published an article detailing the allegations of an anonymous woman who claimed that she had been gang-raped at a University of Virginia frat house. The details were so implausible as to render the story unbelievable on its face. Subsequent inquiries by reputable news sources, such as the Washington Post, demonstrated that it was largely, if not wholly, untrue. Nevertheless, on Nov. 22 the academic hierarchs at the University of Virginia arbitrarily canceled all campus fraternity activities until Jan. 9 and have never, thereafter, admitted that their quickly formed and extreme reaction was wrong. Even now, faculty members are trying to ban all fraternity activities from campus, and the administration is trying to extend its power past normal boundaries — in response to a crime that was never objectively verified.

Is this a university that claims to operate with some kind of intellectual integrity, some willingness to exercise critical thought, some fairness in the search for truth — in short, with some kind of intellectual honesty?

No reader needs to be reminded that similar events have happened repeatedly in recent years, most notably in the famous Duke lacrosse scandal. Unfounded reports of sexual and racial abuses have been eagerly swallowed by esteemed academics, who did not hesitate to blame their own communities for crimes that were never committed; and their folly has been subjected to national ridicule. Yet none of the great intellectuals who exert political influence at Virginia appears to have had the slightest fear of reenacting this sorry story.

Another sorry tale is the intellectually dishonest reactions of several elite Eastern universities to the protests attending the failure of a grand jury to return an indictment against the cop who shot a young black man in Ferguson, Missouri, and to the much more justified agitation over the killing of a black man by cops on Staten Island. Not only were students at prestigious law schools invited to delay their examinations if they were upset by these events, but special help was offered in dealing with the “trauma” they suffered because the criminal justice system failed to agree with their views. Officialdom at Columbia University even opined that “focusing on routine matters such as exam schedules . . . diverts attention away from the real issue that should be examined now: how to ensure a criminal justice system that protects fairness, due process, and equality."

Common sense has never been in oversupply about academics, but this takes the cake. It is a radical refusal to comprehend the simplest facts of academic life — the necessity of tests and the ability of students to take them. It is, in a word, dishonesty.

But suppose, you say, these people actually believe these preposterous things? Suppose they actually believe that law students are such delicate flowers as to be unable to tolerate an imperfect world? Suppose they actually believe that demonstrating one’s knowledge of the criminal justice system diverts attention from “examining” how to reform it? Or, to return to UVA, suppose they actually believe that fraternities are — in a modern version of original sin — so evil by nature that they are certain to do evil, and do it continually, simply because they are fraternities, thus obviating the need to locate evidence of the specific evils they do? If people actually believe these things, then aren’t they acting with honesty, no matter how stupid and illiberal their actions may be?

Isn’t it a good thing that such people are increasingly distrusted by the populace in general? Yes, but that’s not good enough.

Indeed they are. But that doesn’t mean they are acting with intellectual honesty. Academics do not qualify themselves for public respect because they are “honest” enough to vent their resentments, hysterias, and wish-fulfillment fantasies. Respected professions are not based on primitive feelings. They are based on their practitioners’ respect for objective, critically tested truth. A plumber who “honestly” believed that water can run uphill would no longer deserve, honestly speaking, to be called a plumber. A physicist who reacted to some unexpected astronomical phenomenon by consulting a horoscope would no longer deserve, honestly speaking, to be called a physicist. It would make no difference that he “honestly” believed in astrology; he still could not honestly collect his paycheck from the physics department.

You see the point, which the politically engaged academics “honestly” do not see. As a result, they are squandering their influence along with their respect.

Well, what of it? Isn’t it a good thing that such people are increasingly distrusted by the populace in general? Yes, but that’s not good enough — for several reasons. For one thing, the offenders don’t care. They care only for their self-esteem and the esteem of like-minded colleagues. For every person who, like Gruber, suffers some material loss from exposure as a dope or fool, hundreds more are advanced in their professions, and corresponding hundreds of intellectually honest young people who merited academic jobs languish in unemployment or underemployment.

Bad money drives out good; institutionalized dishonesty always attempts to drive honesty as far away as possible, and it generally succeeds. Until the American people decide that the result of a college education should not be a credential to middle-class respectability but an exposure to honest thought, the disgraceful trend will continue.




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Legal Predation

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Alabama has not escaped an abuse suffered elsewhere in the country, one reminiscent of lawyers’ trolling for plaintiffs in their nightly TV ads. The Opelika-Auburn News has carried stories about a form letter (copied online by the newspaper) that local businesses have received from a law firm in Montgomery. (I have also had a brief conversation with an attorney for some of the victims.)

The letter threatens a federal lawsuit on behalf of not-yet-specified plaintiffs for not-yet-specified violations of the Americans with Disabilities Act unless the targeted firm agrees to an out-of-court settlement. The letter expressly says that a suitable settlement would cover legal fees. The amount later suggested, typically a few thousand dollars, apparently turns out to be small enough to persuade some victims to settle to avoid risking further and possibly great expense and trouble.

Such predation is one more example of using or threatening government power to redistribute wealth away from its real producers. It is also an example both of quasi-deception and of regarding business firms as fair game that just exists, almost automatically, to be exploited in various ways as might occur to somebody.




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Moral Minority

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Drowned in the Jury Pool

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The other day I reported for jury duty. In California, you report for one day, and if you aren’t lucky enough to get on a jury, you’re out for at least the next year. I’ve gone through this four or five times now, and only once did I land on a jury. That jury was hung, partly because the august legal minds empaneled a woman who claimed that her profession was teaching the principles of jury selection to students in a junior college. She proved to be, as almost anyone would have anticipated, an enormous pain in the ass.

This year, I waited in the “jury lounge” for several hours, not even pretending to watch a propaganda film about how wonderful it is to serve on a jury. I puzzled over the wording of my next book, chatted with a couple of people who, like me, wished devoutly not to get on a jury, celebrated the fact that it was 11:45 and no calls for jurors had been made — and then it happened. My name was announced as one of the 40 people who had to assemble in Superior Court, Section Such and Such, to be examined by the judge and attorneys to determine whether we were fit to decide whether someone should go to jail for burglary and such and such and so and so, and possession of methamphetamine.

The way they do this is to get all 40 victims into the courtroom, and then particularly examine the first 21, to see whether some of them should be replaced by some of the other 19. Why 21, I don’t know. I was randomly assigned a position as Prospective Juror No. 9.

Once we jurors had been properly infantilized, we were taken into the courtroom, seated in our places, and asked a series of questions by the judge.

My cohort’s progress into the jury room was impeded by a court official who spent 25 minutes checking off the list of 40 randomly generated names. He made jokes about his age, and his eyeglasses, and his difficulty reading the list, and our names, and his mispronunciation of our names, as if it mattered how he pronounced anything. He may have been wasting time because the judge wasn’t ready to invite us in. So if the dentist is late, does he have one of his assistants come out to the waiting room and start drilling your teeth?

Once we jurors had been properly infantilized, we were taken into the courtroom, seated in our places, and asked a series of questions by the judge. She turned out to be very sensible. She explained what she was doing with great succinctness, asked her questions clearly, and found ways to limit our answers to what was relevant. She was a welcome relief from my last judge, who when confronted by an elderly man who announced with pride that he had been a member of more than 30 juries and had always enjoyed himself, invited the aged idler to entertain us with stories from his service to American justice. The current judge wasn’t like that. After her round of examination, she gave the prosecuting attorney and the defense attorney just 15 minutes each to ask their own questions. I quickly grew to like her.

But what I’ll always remember is the responses of my fellow prospective jurors.

The man who answered the judge’s question, “Would you believe that the defendant is guilty just because he’s sitting at the defendant’s table?” by saying, “Yes. I mean, why else would he be the defendant?” Body language suggested that he wasn’t just trying to get off the jury. He was being honest.

The woman who, thoughtfully and repeatedly, said that she could not serve on a jury because her religious beliefs did not allow her to judge her fellow men. When I spoke with her at the end of the day, she proved to be a Christadelphian, a member of a sect that I had studied but of which I had never met a single member. This was a big deal for me. She was a nice person and probably the most intelligent person I met all day.

She tried to argue me into it. Surely I could vote on a question of fact?

The woman who, when asked whether she or any member of her family had been a victim of crime, revealed that her mother’s car had once been stolen, “and she never got it back!” She started crying hysterically and was told to go home.

The woman who, almost as hysterically, answered several questions by saying that she wouldn’t have a bias about someone accused of drug possession, but if she thought he committed a crime because he was “addicted,” she could never forgive him, “never! never!

The woman who said she had friends who were going to law school, and they told her that “there were things going on behind the scenes,” evidently “things” in the legal system, and therefore . . . something. The judge tried to get her to say what the “things” were, tried to joke with her about how law students sometimes make remarks that don’t mean very much, tried to get her to put some definition to anything she said. But her efforts were futile. She gave up.

The man who answered every question about things that might affect his judgment with some story about his “partner,” his “current partner,” or his “partner in the 1980s,” and who was concerned that his “partner in the 1980s” had a relative who was a “correctional officer.” “Do you know that person?” the judge asked. “No . . . I never met him.”

The woman who answered the question about whether police officers ever lie with an adamant declaration that no, they never do. Never? the judge asked. No, never. The judge’s eyes widened; she was obviously repressing the desire to say something like “What kind of an idiot are you?” Members of the jury pool had less luck repressing their laughter. The judge kept questioning the woman, trying to get her to say whether there was any possibility that any police officer might ever say anything except the truth. Finally the woman conceded that if you got together enough thousands and millions of police officers, one of them might possibly, on some occasion, probably in private, deviate very slightly and unintentionally from the exact truth.

The several people who plainly did not speak English with any facility but who were emphatic in correcting the judge about her pronunciation of their names.

The several people who, refreshingly, laughed off all mispronunciations.

The man who, very, very seriously, reviewed the long and irrelevant history of his employment.

The woman who, very enthusiastically, responded to every question with an account of the social work that she and her husband perform.

The many people who recounted friends’ and relatives’ run-ins with the law, almost always incidents about driving while under the influence (not injuring anyone, mind you) or using recreational drugs, then shrugged and said, “No, the punishment was fair; he brought it on himself.”

If you’ve been adding up this list, you can see that there were a lot of people in that first cut of 21 who may not have belonged on a jury.

What about me? I didn’t belong either. At the appropriate moment, I advised the judge that I thought it was immoral to convict anyone on a drug charge. She read a statement about juries not deciding the law for themselves, and I said that yes, I understood, but in the case of victimless crimes I was in favor of what the statement was trying to exclude, which was jury nullification. She smiled and said, “Yes, that’s what we’re talking about.”

The judge’s eyes widened; she was obviously repressing the desire to say something like “What kind of an idiot are you?”

The defense attorney of course wanted me to be empaneled, so she tried to argue me into it. Surely I could vote on a question of fact? Surely I could determine whether someone possessed methamphetamine? Surely that wouldn’t be convicting anyone? Surely only a judge can sentence anyone? I told her I could see where that train was going, and I wouldn’t get on it. The prosecuting attorney smiled and joked with me, suggesting that I was arrogant enough to think I knew better than everyone else. Maybe he was right, but I was wondering why he bothered. Maybe he was trying to discourage anyone else from acting like me in the jury room. By this point, ironically, I was getting interested in the process and mildly regretting that I wouldn’t get to serve.

After a couple hours of jury examination, punctuated by a short break that turned into a longer break, the judge called the attorneys into her chambers. A few minutes later they came back, and she announced that five people were excused: me, the young Mexican American who sat next to me, the Christadelphian lady, and two others whom I couldn’t connect with the answers they’d given. The Mexican American was a working class kid who had started responding to questions about drug convictions with answers like, “I don’t know. . . I could follow the law. But with recreational drugs . . . I dunno . . . It doesn’t seem right. . . . Well, yeah, I guess so.” After listening to the back and forth about me, he reached a more definite position. He said he would not vote to convict anyone for drug possession. I didn’t talk to him during the breaks, or at any other time; but maybe I was responsible for his values clarification.

And so it ended. I walked out of the courthouse, chatting with the Christadelphian lady, then proceeded to the eight-dollar-a-day parking lot, having experienced the American jury system in what may be nearly its finest hour.




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The Zimmerman Verdict

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The trial of the decade (so far) has ended and George Zimmerman is a free man. What are the important points we should take from this?

First, it’s clear that the system worked. Zimmerman received a fair trial. A jury of his peers found him innocent based on the law and the evidence presented at trial. Obviously, Zimmerman was foolish to ignore police advice and continue following poor Trayvon Martin. But he committed no crime in doing so. His actions provoked the confrontation that ended in Martin’s death, but again, under Florida law he was justified in shooting Martin in self-defense. The jury believed that Zimmerman feared for his life, and that’s enough in Florida to justify taking a life, even if the killer instigated the events that led up to the killing.

This trial was not a repeat of the first Rodney King trial, in which a jury consisting of ten whites, one Hispanic, and one Asian was almost certainly blinded by a conscious or unconscious fear of blacks. Nor was it OJ all over again, with a panel practicing jury nullification in support of the defendant. It did, however, resemble the OJ case in that the prosecution was quite inept. The prosecutors were ineffective in all phases of the trial, possibly because they had a weak case to begin with. The defense on the other hand hardly put a foot wrong, aside from the unfortunate knock-knock joke in its opening statement. The authorities also overcharged the case — there was never any prospect of finding Zimmerman guilty of second-degree murder. (Overcharging, by the way, is a tactic used by prosecutors all over the country as a means to get defendants to plead instead of going to trial. As such, it represents a major perversion of our justice system.)

We all should have the absolute right to defend our homes and families from aggression. But public spaces are a different matter.

We can be thankful that the verdict did not lead to major violence. The small-scale thuggery seen in Oakland and L.A. does not compare to the barbarism displayed in South Central L.A. after the King verdict. President Obama, who seems increasingly irrelevant both at home and abroad, performed a useful service by urging calm. On the other hand, the lack of a video in the Zimmerman case may have had as much to do with the absence of major violence as the measured words of America’s mixed-race chief executive.

Millions of people, both black and white, are deeply dissatisfied with the verdict. Many are urging the Justice Department to bring a civil rights case against Zimmerman. Such a case would be very hard if not impossible to prove. This analyst believes Attorney General Holder will decide not to bring a civil rights case against Zimmerman, for the simple reason that it would probably fall apart in court, embarrassing both the Justice Department and the president. That the Attorney General is an African-American probably makes it easier to resist the temptation to file federal charges against Zimmerman. An administration in which all the key players are white might very well feel compelled to do so.

Holder, like the president, has been a moderating voice in the wake of the verdict. This has been his finest hour — or rather, his first fine hour after four-plus years in office. In a recent speech he questioned the concept of Stand Your Ground laws, maintaining that people have a duty to retreat if they can safely do so — but adding the important qualifier, when outside their home. There needs to be a serious debate nationally about the concept of Stand Your Ground. In Vermont, where I live, the law says I should retreat even if a criminal comes onto my property or enters my home. This, to me, is crazy. The idea that I must flee from my home rather than subdue or kill someone coming onto my property with criminal intent repels me. But then Vermont is a crazy place.

In my view we all should have the absolute right to defend our homes and families from aggression. But public spaces are a different matter. It’s true that Zimmerman’s defense team never invoked Florida’s Stand Your Ground law. Nevertheless, that law hung like a storm cloud over the proceedings. The principle of stand your ground as applied to public spaces has led, in this case, to the death of a young man who was simply returning from a trip to the store. A cop wannabe decides to follow a teenage boy (whom he may or may not have racially profiled) despite police advice to desist, and thereby provokes a fight that leads to his shooting the kid to death. Despite these circumstances, the wannabe is innocent in the eyes of the law. The kid is dead; the wannabe walks. Surely in this case the law is an ass.




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The Law School Biz

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One of the necessary requirements for fundamental reform of a dysfunctional institution is self-reflection among the individuals within that institution. It is now quite obvious to knowledgeable spectators that the American system of higher education is desperately in need of fundamental reform. But this realization has yet to sink into the heads of most of the key players in that institution, the faculty and the administrators. This, I think, is mainly because they are not yet generally self-reflective.

One of the main impediments to self-reflection in the academic world is the tendency among its inhabitants to view higher education — indeed, all education — not as a business but as a kind of quasi-religious institution. Under this view, the key players (especially the faculty) are not agents delivering a service and subject to the same motivations as agents in any other business (chief among which is self-interest), but are instead disinterested and selfless individuals educating young minds as a noble calling.

That is why it is always useful to report data that demonstrate that in fact college is a business like any other, and the agents in it (the faculty, staff, and administrators) as well as the customers — the students — behave as agents and customers do in other businesses, i.e., as rational maximizers of their personal preferences. Recent data on the changing reality of law schools are very illustrative in this regard

Consider first the data on the market for law school graduates, as reported by Deborah Jones Merritt. If you look at the percentage of recent law school grads who land a full-time job requiring bar admission (as opposed to those who get any sort of full-time job, say, as a waiter or bus driver), you see a declining market. In 2001, only 75.9% found such jobs within the nine months after they graduated. In 2002, the figure dropped to 75.3%. In 2003, it was 73.7%; in 2004, it was 73.1%. In 2005, it ticked back up to 74.2%, in 2006, to 75.3%; in 2007, back down to 74.2%. But in 2008, it dropped to 71.2%; in 2009, to 65.2%; and in 2010 it slid to 62.3%. Now; in the 2011 figures, it has sunk to 59.8%. That is, over 40% of law school grads last year could not find full-time work for which their costly education was appropriate within nine months of graduation.

This means that during the past four years, nearly 74,000 law school grads could not find appropriate full-time work (again, requiring bar admission). This represents huge direct costs in terms of money spent to educate these students (and the wages they have forgone in law school) and in even greater opportunity costs. (Most people bright enough to get through law school could have gone instead into medical, business, or technical trades.)

Students have apparently heard about the declining chances of employment in the field. Law school applications are way down over the past two years, dropping by nearly 16% last year alone.

More interesting still, the biggest drop in applications is not among the least but among the most qualified applicants — at least as measured by the ubiquitous Law School Admissions Test (LSAT). Among those who scored at the highest level (175–180), applications were down by nearly 14%; at the next highest level (170–174), they were down a whopping 20%. But at the next to lowest level (140–144), applications were down only about 6%, and at the lowest level (140 and below), only about 4%.

This leads to an interesting conjecture, especially for those who can’t believe that law schools are just businesses like any other. If law schools were run as quasi-religious institutions, solely devoted to the public good, they would respond to the obvious oversupply of attorneys and the resultant decline in the quality of applicants by cutting back on the number of students admitted. But if they are like other businesses that face a declining customer base, they will do what they have to do to attract the same number of buyers.

Specifically, my guess is that at the top-tier schools (especially the top 14, admittance to which usually requires an LSAT score of at least 165), you will see not a reduction in the size of the entering class but simply a reduction in the quality of that class, reflected in lower mean LSAT scores for those students.

We’ll see.




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In the Cloakroom

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Fungible Semantics: The Roberts Decision

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Tax: A contribution for the support of a government required of persons, groups, or businesses within the domain of that government.

Penalty: A punitive measure, regulatory in nature, established by law or authority, to deter certain conduct.

A Supreme Court decision upholding the constitutionality of the healthcare mandate based on the government’s taxing authority?

Well, why not? The tax code has been dragooned into service to influence and shape social behavior for over a hundred years, from a dollar-a-pack cigarette tax, to mortgage relief to encourage home ownership. In addition to the collection of revenue to bankroll government it evolved into an instrument for social engineering and stealth workarounds to advance social policy. Which of the following statements is true?

A tax raises revenue, a penalty raises revenue, therefore a penalty is a tax?

A tax influences behavior, a penalty influences behavior, therefore a tax is a penalty?

That’s right — neither is true. These syllogisms illustrate a well-known logical fallacy that can be found in any college textbook on logic. How, then, could a superior jurist like John Roberts persuade himself that a penalty is a tax? Well, the Chief Justice opined that the penalty for noncompliance with the mandate ($695) was too weak to constitute a deterrent, and must therefore be a tax! This left many to wonder if he had intentionally confounded these two concepts, and thus rewritten the mandate so the Affordable Care Act would pass constitutional muster.

The logic was so bizarre and flawed that some, like Charles Krauthammer, suggested that Roberts resorted to this semantic legerdemain to avoid politicizing the Court and weakening its prestige. But this is to forget that the Constitution was born in crisis and the Court has weathered more violent partisan storms than those of the current climate: just read some of the broadsides in newspapers written one hundred to two hundred years ago. To my knowledge, no Congressmen have been caned to within an inch of their lives in the well of the Senate (though, no doubt, some have deserved it), and no cabinet secretaries killed in duels in the past 100 years. A good rule of thumb: follow the law and let the chips fall where they may.

Misconstruing what is obviously a penalty as a tax may seem a harmless bit of hocus pocus, but playing hard and fast with meaning and general disregard for semantic precision has resulted in a Supreme Court decision that could have unfortunate consequences for the American economy. Or as one editorialist (James Delong) put it:

The ACA is a complex and incoherent law drafted in haste and secrecy, written largely by the healthcare industry to promote its own profits by bringing more people into a government-administered system open to capture and looting. It is defended by an administration trapped by the imperative of defending its handiwork. The product is a Rube Goldberg regulatory system that cannot be made rational, workable, or intelligible, and is a delicious (to Republicans) promise of an endless stream of outrages.

It is all very well for the Chief Justice to defer the issue of constitutionality back to elected officials, but as Ronald Reagan once remarked, “The nearest thing to eternal life we will ever see on this earth is a government program,” and it will be difficult to impossible to repeal the healthcare law even if Mitt Romney is elected president, unless there are significant Republican majorities in both houses of Congress. The stakes were high, very high. This could be the worst Supreme Court decision since Kelo v. City of New London, and it is fair to ask if, during his stormy sessions with the brethren, Justice Roberts experienced some sort of mental lapse.

In the last century or so, no Congressmen have been caned to within an inch of their lives in the well of the Senate — though, no doubt, some have deserved it.

The original sin was, of course, using the tax system as a quick-and-dirty tool to improvise policy, to encourage (say) petroleum exploration or to discourage the use of tobacco, thereby exempting government from the strenuous work of writing carefully crafted long-term programs to advance a coherent policy. The Constitution says that

The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . .

The framers did not say that the collection of taxes could or should be used to influence economic behavior or placate special interests, and in this they showed some foresight: broadening the concept of taxation to, for example, provide incentives for certain economic entities, has resulted in a Byzantine tax code so complicated and unwieldy, so corrupted by influence-peddlers and lobbyists, it has become a national embarrassment, and a general disincentive to business and entrepreneurship. Using the sacrosanct tax code as an ad hoc tool to implement policy (rather than enact problem-specific programs) has produced some very bad tax law.

Another institutional casualty, perhaps more fatal than the debasement of the tax system, has been the English language. A general contempt for the elegance and precision of English, e.g. twisting of meaning out of all recognition, demonstrates the dangers that George Orwell warned us about over 60 years ago in his essay, Politics and the English Language. The decline of English, he observed, had entered a deadly spiral:

it becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.

It was Orwell’s belief that words and semantic distinctions matter, that mangling language to suit one's purposes eventually leads to a world where black is white and up is down. How prophetic! We need language to map the world as it is, not as we would like it to be, and a breach of semantics can be even more lethal than a breach of law. Using imprecise language to conceal real meaning is a sure path to chaos. Orwell was talking about communist pamphleteers and flannel-mouthed journalists at the time, but it applies equally to any abuse of language, and that includes the recent decision by Chief Justice Roberts to call a penalty a tax.




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Prosecutorial Indiscretion

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On June 15, 2012, hundreds of thousands of foreign nationals living illegally in the United States turned on their television sets to hear that they had become eligible for (1) a renewable two-year deferral of removal from the country and (2) a work permit.

While this may seem like a big change for those immigrants, the focus here will not be on what it might do for them, but how it was done, and why.

How do you think it was done? Choose one of the following: (a) Congress passed a new law and the president signed it, (b) the Supreme Court struck down an existing law, (c) the president issued an executive order, or (d) none of the above.

If you chose (c), it would be understandable, as it was President Obama who announced this change in front of the cameras outside the White House. There was, however, no executive order. An executive order cannot be used to overturn an existing law. On September 28, 2011, President Obama told a group of Hispanic journalists that “this notion that somehow I can just change the laws unilaterally is not true. The fact of the matter is there are laws on the books I have to enforce.” The rest of the transcript is here:

http://blogs.suntimes.com/sweet/2011/09/obama_on_dream_act_cant_just_c.html

The correct answer is (d), none of the above, which leaves the question, “Then how?”

On June 15, Janet Napolitano, Secretary of the Department of Homeland Security, sent a memo to three of her underlings directing them to “exercise prosecutorial discretion” in the cases of certain “low priority” illegal aliens, “effective immediately.” (Yes, she ordered them to exercise discretion.) The memo enumerates the criteria to be used to determine which illegal immigrants will get the deferrals and work permits. The memo is here:

http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf

That’s right; it was done by interoffice memo.

It seems odd, doesn’t it? When I hear of prosecutorial discretion, I think of cases in which discrepancies in the chain of custody of a bag of pot lead the prosecutor not to bring charges or perhaps to drop charges, that sort of thing. But in this case, according to the June 15 New York Times, “more than 800,000 young people” are now eligible for deferrals and work permits because an unelected bureaucrat fired off a memo. Upon reading that, I had three thoughts: first, “That’s quite a few people.” Then, “That’s a pretty sweeping change.” And finally, “That’s some discretion.”

In any case, that seems to be how it was done. But why was it was done in just that way?

What follows is an informal examination of the power of prosecutorial discretion in the United States that may help explain the Secretary’s memo.

I once stayed with a friend who lived in the country just outside Düsseldorf. To go into town, I had to walk a few hundred yards to the end of a narrow lane and then cross a road to get to the bus stop. There was a crosswalk with a signal light activated by a button.

The first time I went to town, I walked down the lane, pressed the button and waited. Then I waited some more. With nothing but time on my hands, I looked down the road toward town and saw a straight, empty road that disappeared into some trees about of a quarter mile away. There were neat fields on either side. I turned my head and looked the other way and saw the same thing, fields and all. I then looked across the road toward the bus stop. After a minute or so, the light changed and I crossed.

On my second trip to town, I pressed the button, looked both ways, and, seeing exactly what I had seen before, quickly crossed the quiet, two-lane road.

In the shade of the bus shelter sat a German woman who did not approve of what I had done. I could tell that she did not approve because she told me so. Though my German is limited, I pieced together her strasse, verboten, and dummkopf, along with her gestures and facial expressions, and got the message. As I stood listening, I was reminded that German could do with more vowels and less phlegm. I was also reminded that I was not in Kansas.

Under the signs that tell pet owners to use plastic bags one often finds a fresh reminder of American pragmatism that would make William James proud.

Americans tend toward pragmatism. An American might say, “The purpose of the light is to prevent people from being run over by cars. If there are no cars, then the light, pragmatically speaking, has no purpose.”

Germans tend toward what might be called legalism. A German might say, “The purpose of the light is to tell the pedestrian when it is permitted to cross the street and, more importantly, when it is forbidden to cross the street.” To the German, the cars have nothing to do with it. While this is a simplification, it is not wrong.

In Southern California, where I live now, American pragmatism is on display for all to see. Each citizen sifts all rules, regulations, and laws through a personal pragmatic filter that removes those that are without purpose or of low priority.

A few examples will make the point. Speed limit signs are, of course, viewed as suggestions. Simple rules of the road regarding merging, tailgating, and signaling lane changes are ignored more often than not. Bicyclists are generally oblivious to traffic lanes, signs, and signals. Many locals feign surprise when told that the recreational use of marijuana is not legal. Only tourists stop at the signs that read “STOP”; locals just glide through. Under the signs that tell pet owners to use the plastic bag provided in the little dispenser one often finds a fresh reminder of American pragmatism that would make William James proud.

A German might ask, “What about the police?” In general, the police exercise a great deal of discretion. They use their personal pragmatic filters to screen out low priority violators and violations. Germans are surprised to see that people continue to disobey many laws even when the police are watching. Some of these violations, like dope smoking, depend on the jurisdiction, while others, like breezing past stop signs, are universal. What really shocks the Germans is that the police disobey many laws themselves. Those who doubt this can follow a squad car through traffic in Southern California and count the violations.

Some Germans find all this pragmatism bracing. Once, when I was camping in Zion National Park, a German with an RV and a sunburn walked up to me. In a beer-fed state of shirtless ecstasy, he threw out his arms and shouted, “Everything in America feels so free!” Most Germans, however, are appalled by our pragmatism. To them, it just seems stupid. I know this because they have told me.

The legal systems of the two countries reflect the difference between pragmatism and legalism. In the United States, as Rebecca Krauss explains in her essay The Theory of Prosecutorial Discretion in Federal Law: Origins and Development,“Prosecutorial discretion is a central component of the federal criminal justice system. Prosecutors decide which cases to pursue and plea bargains to accept, determining the fates of the vast majority of criminal defendants who choose not to stand trial.” She concludes the paragraph by pointing out: “In Germany, however, a rule of compulsory prosecution constrains prosecutorial discretion, checking the prosecutor’s ability to pick and choose which cases to pursue. No comparable regime restrains American prosecutors.” The entire essay can be found here:

http://erepository.law.shu.edu/circuit_review/vol6/iss1/1

Generally, then, in Germany, citizens obey the laws, the police enforce them, and the prosecuting attorneys, if the evidence is sufficient, take cases to trial. By contrast, in the United States, the pragmatic citizenry exercises what might be called perpetratorial discretion, deciding which laws to obey; police exercise enforcement discretion, deciding which offenses and offenders merit citation or arrest; and prosecuting attorneys exercise prosecutorial discretion, deciding which cases will be brought to trial. While this is an exaggeration, it is not wrong. (In China I was told, in response to a question about driving with my headlights on during the day, that “any behavior that is not explicitly permitted should be considered to be prohibited.” They make Germans look like softies.)

There is another connection between American pragmatism and Secretary Napolitano’s use of prosecutorial discretion. Pragmatism is at the root of the illegal immigration problem.

It is obvious that for millions of foreign nationals to reside illegally in the United States, millions of foreign nationals must be exercising perpetratorial discretion and knowingly disobeying what they deem to be low priority laws that cover border crossings and residing in the country without authorization.

In the United States, the pragmatic citizenry exercises what might be called perpetratorial discretion, deciding which laws to obey.

In order for them to stay, of course, it is also necessary for millions of American citizens to exercise their own perpetratorial discretion and knowingly disobey low priority laws that ban hiring illegal aliens. So, undocumented immigrants are hired to pick crops, mow lawns, frame houses, flip burgers, clean hotel rooms, assemble mobile homes, and take care of wealthy people’s children. It is not difficult to find workplaces in Southern California where most of the employees are in the county illegally. Both those doing the hiring and those being hired are getting what they want. As they see it, pragmatically speaking: no harm, no foul.

In addition, entire municipalities, counties, and even states are exercising enforcement discretion, looking at (or not looking at) the offenses and the offenders and deciding that immigration regulations are low priority laws that do not warrant action. Sometimes, the federal government even gently thwarts the efforts of smaller jurisdictions to give these laws a higher priority. Put another way, the crosswalk light says, “Don’t walk,” but there are few, if any, cars.

The consequence of all this perpetratorial and enforcement discretion is that there are very roughly estimated 11 million illegal immigrants living in the United States. What could be a more fitting a punch line to this droll tale than to have the welcome mat put out for 800,000 of these immigrants with an act of mass prosecutorial discretion?

But back to the question: why was the memo sent?

The memo was sent so that the president could announce the good news in front of cameras on the White House lawn. He was pandering for Hispanic votes. Secretary Napolitano could not have sent the memo without his approval. He gave his approval because he wants to keep his job and, for that to happen, there must be a strong Hispanic turnout. The memo will help him get that turnout.

If the release of the memo and its theatrical announcement were not a reelection stunt, the policy could have been quietly announced to the press long ago.

Oh, wait. It was.

According to the Los Angeles Times (August 18, 2011), “The Obama administration announced Thursday that undocumented students and other low-priority immigration offenders would not be targeted for deportation under enforcement programs. . . . The move means that those who are in deportation proceedings will have their cases reviewed and, if they are set aside as low-priority, could possibly be given work permits.” Here is the entire article:

http://latimesblogs.latimes.com/lanow/2011/08/dream-act-students-not-targeted-for-deportatiom.html

So, in effect, the change had already been quietly launched last August. The June 15 memo and White House announcement really were a political circus act.

There is a more serious problem with this memo. Prosecutorial discretion has traditionally been used by government attorneys to quietly decide if individual cases should be tried. If the circumstances of a specific undocumented immigrant’s case were such that the attorney in charge of the case judged deportation to be inappropriate, that attorney already had the discretion to defer removal. With this memo, there is not much discretion left. The criteria for deferring removal are enumerated. Discretion has also ceased to be discrete. Prosecutorial discretion has been transformed into a mass political weapon launched by the president from the White House lawn. Its purpose is not only to win millions of votes and the election in November, but also to circumvent the legislative process.

The memo was sent so that the president could announce the good news in front of cameras on the White House lawn. He was pandering for Hispanic votes.

Since the failure of the DREAM Act to pass the Senate, one of the president’s slogans has been, “We can’t wait for Congress to act.” With this memo, we now see what the slogan means. Executive impatience with the legislative and judicial branches of government has a long and colorful history. Historically, many elected executives have become so impatient with the separation of powers that they have arrogated legislative and judicial powers to themselves. While using prosecutorial discretion to alter, practically speaking, the status of 800 thousand people under existing law in order to win an election may not sink to the level of abolishing the legislature, it is an unfortunate step in that direction.

In her essay (see link above), Rebecca Krauss makes three points about this expansion of prosecutorial power. First, far from being embedded in the constitution, prosecutorial discretion does not make its first appearance in American case law until 1961. It has been cited with increasing frequency ever since. Second, prosecutorial discretion is not subject to normal judicial review, and is consequently outside the balancing framework of the separation of powers. Third, the rapid growth of prosecutorial discretion in both its breadth of scope and its frequency of use has been of increasing concern to legal scholars. Summing up these points, Krauss writes:

The Framers’ “constant aim [was] to divide and arrange the several offices [of government] in such a manner as that each may be a check on the other,” yet the other branches of government provide almost no check on prosecutorial powers. Rachel Barkow has remarked that “[o]ne need not be an expert in separation-of-powers theory to know that combining [modern prosecutorial] powers in a single actor can lead to gross abuses.”

The Napolitano memo was an abuse of prosecutorial discretion. While it may have been legal, it was an electioneering gimmick and a contrived expansion of prosecutorial discretion. Some day, the shoe may be on the other foot. What if a future president, exercising prosecutorial discretion, deems an array of federal gun control laws to be “low priority,” and directs the responsible authorities to defer all action in enforcing those laws and in bringing such cases to trial? What do you suppose the New York Times editorial page will have to say about prosecutorial discretion then? Or suppose a president deems the laws that defend private property to be “low priority” and has one of his secretaries fire off a short memo that suspends “effective immediately” all enforcement of private property rights? What do you suppose libertarian journals will have to say about prosecutorial discretion then?

Our democracy is an untidy system, with its checks, balances, two houses, three branches, and 50 states. It’s full of squabbles and compromises, contradictions and delays. It is that way by design.

Tyrannies are neat. All you have to do is send a memo.

rdquo;; locals just glide through. Under the signs that tell pet owners to use the plastic bag provided in the little dispenser one often finds a fresh reminder of American pragmatism that would make William James proud.




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Obamacare and Judicial Activism

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Last week the Supreme Court of the United States heard oral argument on whether to overturn Obamacare. I had written previously in Liberty that I suspected Obamacare would stand, and estimated a mere 1% chance of the vile, disgusting step towards socialized medicine being struck down.

But amazingly, Obama’s Solicitor General, who argued the case, was, by most accounts, totally incompetent. He got so tongue-tied that he had to be verbally bailed out by Justice Ginsberg — several times. He could not articulate a limiting principle for where the powers of government would stop if Obamacare stands. This frightened some of the justices (although, in fairness, no such limit can be articulated, because Obamacare is a slippery slope towards socialism.)

Most importantly, Justice Kennedy said things suggesting that he would probably vote to strike Obamacare down. Kennedy is the moderate justice who holds the crucial swing vote between four liberals (all of whom are thought to support Obama’s health care bill) and four conservatives (who are believed to oppose it). So the legal community now suspects that Obamacare is doomed. The so-called “individual mandate” is most likely going to die, and the entire convoluted, ungodly abomination might get dragged down with it, thus ending America’s nightmarish experiment with socialized medicine.

This is great news for libertarians and bad news for President Obama.

How did Obama respond? This is how: by holding a press conference in which he bullied the justices, threatening them with the charge that overturning his law would be “judicial activism” and noting that the Supreme Court is not elected whereas Obama’s Congress, which narrowly passed his healthcare plan, was elected. His statement contains two glaring flaws.

1. Yes, Congress is elected and the Supreme Court isn’t. That is the beauty of the Founding Fathers’ scheme, that the rights of individuals are safeguarded by courts which do not answer to the whims and emotions of the hysterical and easily manipulated masses. Yet voters had sent a clear message that they did not want Obamacare passed, when they elected Senator Brown of Massachusetts. The Brown election was widely viewed as a referendum on Obamacare. It was an election in which a Tea Party candidate won in a strongly left-leaning state. The bill only passed because of procedural maneuvering by the then-Democratic House. The 2010 election of the Tea Party House was a resounding rejection of Obamacare by the American people. Once again, Obama has a mass of facts wrong.

2. The practice of “judicial review,” the name for courts overturning unconstitutional laws, dates back to the famous case of Marbury v. Madison (1803). Since that case was decided, it has been well established that the courts have the power to overturn laws that violate the Constitution.

It is true, of course, that conservatives often bemoan “judicial activism,” and now Obama is bemoaning it. So what is the difference between judicial activism and judicial review? Is it merely that if you like it you call it judicial review and if you dislike it you call it judicial activism?

I do not believe that’s the truth. I would offer a deeper libertarian analysis: the Constitution of the United States was designed to limit the powers of government and protect citizens from the state, as a reaction by the American Revolutionaries to the tyranny of the British empire, which they had recently defeated. Democrats love to say that the Constitution is a “living document,” which means that the Constitution changes to reflect the desires of the public (which, they believe, have become ever more leftist since the American Revolution). But the meaning of the Constitution is clear, and it does not change. The argument to overturn Obamacare comes from the fact that Congress has only the enumerated powers given it by the constitution. Obamacare sought to use the Commerce Clause, which gives Congress the power to regulate “interstate commerce,” in order to effect a partial nationalization of the healthcare industry. But as I argued before, and as Justice Kennedy implied at oral argument, this is far beyond what the Commerce Clause and the cases interpreting it explicitly permit.

So it will not be judicial activism but judicial review, which consists of faithfully conforming the law to what the Constitution allows, if the Supreme Court overturns Obama’s health care plan. It is judicial activism when leftist judges follow the philosophy embodied in the legal theories called “legal realism” and “critical theory.” These theories hold that there is no such thing as an objectively correct or incorrect interpretation of the law, and therefore a judge is free to rule as his or her subjective feelings on morality and justice dictate (and note that somehow these feelings are almost always Marxist or leftist feelings).

Critical theory, which explicitly attacks the legitimacy of “legal reasoning,” is hugely popular on many law school campuses. Many of the lawyers and judges of the future may buy into it. But when the Supreme Court rules on Obamacare in June of this year, I hope it will be clear to the Marxists that they don’t run America quite yet.




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