The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

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Friday, March 31, 2006

Destiny time for France
Tom Smith

Yes, the French can be annoying.  But I think we all agree it would be nice if they are more than a culture museum ten years from now.  It would be good if they could make it over the hump into the 21st century.  Now we get to find out if they will.  Britain managed it under the Iron Lady in the 80's.  France can do that, or prove again that socialism, for all of its appeal to academic sorts such as ourselves, has the non-trivial fault of impoverishing nations which practice it.  We know that already.  And the French, well, they wouldn't like poverty.  It gets old.   So, bon chance, you guys.

March 31, 2006 | Permalink | Comments (1)

Scandal at Columbia (Part III)?
Gail Heriot

Curt Levey, author of a New York Sun op-ed entitled "Bollinger on the Spot," has responded to Columbia Dean David Schizer and Professor Avery Katz.  (See Part I and Part II.)  Here is his response:

"In an op-ed in the March 24 New York Sun (abbreviated version here; full version for $ here), I explored the scandal-plagued connection between Columbia University's president, Lee Bollinger, and Olati Johnson, who was recently awarded a coveted faculty position at the university's law school. Johnson played a central role in the Memogate Senate scandal, including recommending that the judicial confirmation process be rigged to influence the outcome of the University of Michigan affirmative action cases, in which Bollinger was the principal defendant. I urged Bollinger and his university to fully address the issues I raised about a conflict of interest and a possible payoff for services rendered. Thus, I thank Dean David Schizer and Professor Avery Katz of Columbia Law School for their timely responses. However, I beg to differ with a number of their points.

"Professor Katz says that he and his colleagues on the law school faculty 'did not consult [Bollinger] or consider his possible views regarding Olati's candidacy,' despite reviewing and discussing the allegations against Ms. Johnson. Even if true, this is of limited relevance. The point of my op-ed was that Bollinger's position as university president and a member of the law school faculty produced an inherent conflict of interest and 'the appearance of impropriety to anyone doing even a cursory Google search on Ms. Johnson's name.' If the rest of the law school faculty chose, nonetheless, not to discuss these issues with Bollinger, and believed their judgments about Johnson would not be affected by Bollinger's position, then my allegation of 'poor judgment' should be focused on the law school faculty. Moreover, as my op-ed notes, the faculty should have thought about the message it was sending to Columbia's law students concerning ethics and conflicts of interest.

"I also note that Johnson's tenure as Kellis Parker Fellow at Columbia Law School for the last two years gave Mr. Bollinger plenty of time to anticipate a conflict of interest and appearance of impropriety, even if no one specifically brought it to his attention.

"Both Katz and Schizer state that some of the facts asserted in my op-ed are in dispute and cast further doubt upon those facts by noting the 'intensely partisan atmosphere' that surrounded Memogate. But the key facts are plainly detailed in the memo which Johnson herself wrote, which can be viewed here. Despite having bar complaints filed against them, neither Johnson nor Elaine Jones – co-collaborator in the Michigan cases scheme – have ever denied the authenticity of the memo or their connection to it. Thus, I am genuinely puzzled as to what facts Professors Katz and Schizer believe are in dispute.

"Katz also states that 'We did not feel we had any reliable basis to conclude that the [ethics] allegations were accurate.' However, I remind him that, as my op-ed notes

"[Ms. Johnson] recognized the ethics problem, noting that she and another Kennedy staffer 'are a little concerned about the propriety of scheduling hearings based on the resolution of a particular case.' Nonetheless, Ms. Johnson recommended a delay because 'the Michigan case is important.'"

"Finally, Professor Katz misses another central point when he states that 'Even if the allegations were assumed arguendo to be accurate, . . . they would at most constitute an error in judgment that ought not disqualify someone from pursuing a career in teaching.' I agree that Johnson should not be disqualified from teaching. In fact, my op-ed specifically said 'I don't believe that Olati Johnson should be punished for what she did,' but added 'I would hate to think that she is being rewarded for it.' The key point is this:

"Had she gotten a position at virtually any other law school, the assumption would be that the school had impartially concluded that Ms. Johnson's talents outweighed the ethical implications of her involvement in Memogate. Unfortunately, because of the positions held by Lee Bollinger, Columbia could not make such a judgment impartially even if it tried."

"Space does not permit me to comment on other responses to my op-ed, except to note that they have included both approval – for example, here – and criticism similar to that of Professors Katz and Schizer – for example, here – as well as additional thoughts about Memogate here and here. I appreciate the negative as well as positive comments and remain fully open to the possibility, noted in my op-ed, that Columbia 'is guilty of poor judgment rather than anything more malfeasant.'"

March 31, 2006 | Permalink | Comments (1) | TrackBack (0)

Supermajority Rules in Iraq
Mike Rappaport

Over the years, John McGinnis and I have published numerous articles on supermajority rules.  One of the key questions concerning the desirability of supermajority rules is a tradeoff emphasized by Buchanan and Tullock in their classic, The Calculus of Consent.  On the one hand, supermajority rules operate to prevent a majority from using its power to enact legislation that harms the minority.  On the other hand, supermajority rules make it harder to enact legislation and as a result there may be significant delays in reaching an agreement.  Buchanan and Tullock argued that the optimal voting rule would be the one that minimized these two types of costs. 

Right now, the situation in Iraq is largely dependent on whether a new government can be formed.  That new government, however, must have the support of a two thirds supermajority of the legislature and therefore the costs identified by Buchanan and Tullock are at work.

The requirement that a supermajority support the government seems quite beneficial.  Initially, this was a way that the Kurds and Sunnis could avoid dominance by the Shiites.  Now, with the Kurds and Sunnis joined in a coalition that may have more legislators than the Shiites,  it represents protection for the Shiites.  In general, the supermajority requirement operates to promote coalition government and compromises between the contending religious and ethnic groups.

But it has a cost , and these days it is a big cost.  There is now a deadlock on forming a new government, and that deadlock is the direct result of the supermajority rule.  There seems little doubt that the Shiites or the Kurds and Sunnis could form a government if only a majority were required.   That government, however, would be divisive, since it would not represent the concerns of at least a significant minority of the country. 

Thus, despite the significant costs from the supermajority rule, I believe it is worth it.  What is needed now is sometime external event to force the parties to compromise.  While it would be far from ideal, pressure from the United States might be the best opportunity for breaking the deadlock. 

March 31, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 30, 2006

Bernard Siegan 1924-2006
Gail Heriot

A public memorial service for our much-loved colleague Bernie Siegan will be held here at the University of San Diego soon.  The date has not yet been set, but it will probably be sometime after Easter (and Passover).  I will post the details when I get them.  In the meantime, here is the tribute to Bernie that Maimon and I wrote for the National Review Online.

Two of Ronald Reagan's lower-court appointments went down in flames. One was Jefferson Sessions, whose nomination never made it to the Senate floor. Another was our colleague Bernard H. Siegan, Distinguished Professor of Law at the University of San Diego, who died Monday at the age of 82. Bernie's nomination was defeated in committee in 1988 on a party-line vote (making him the first "borking" victim after Bork).

Sessions went on to be elected to the U.S. Senate in 1996 and reelected in 2002 — quite a feat for a person accused of being out of the mainstream. Bernie, a kind and gentle soul, took a somewhat different direction. He changed the way America understood a fundamental human right.

Bernie Siegan was a stalwart voice for economic liberty under the Constitution. A law professor at San Diego from 1973 until his death this week, Siegan's books and articles — and his winsome but tireless public speaking — made him one of the key legal and constitutional thinkers in the movement of ideas which became the Reagan Revolution.

Richard Epstein at the University of Chicago Law School calls Bernie's Economic Liberties and the Constitution the opening salvo in the revival of the property-rights movement. "With great attention to historical detail," Epstein says, "Siegan effectively questioned the conventional wisdom of the day that Congress and the States had broad powers to restrict the use of property rights. He was a wise and humane figure."

Bernie's unconventional idea can be summarized, with just a little bit of license, this way: What's yours is yours, what's mine is mine, and the government does not have unlimited power to take that property or to tell us what to do with it.

Who could have given him such a crazy idea? Well, James Madison for one. Madison wrote:

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.

Bernie set out in the 1970s to convince the country that the right to private property and the right to earn an honest living in the marketplace were every bit as important as the right to free speech and the right to vote. By the 1990s, Bernie's ideas were becoming increasingly well known — not just in conservative and libertarian think tanks, but in wider legal circles. A movement was being born.

In 1991, the Institute for Justice, a libertarian public-interest law firm, was founded in Washington in significant part to pursue Bernie's vision and that of fellow thinkers in the property rights movement. Other conservative public-interest law firms around the country soon joined in.

The greatest victories so far have been in the minds and hearts of Americans. No longer is the idea of "property rights" hopelessly out of date. To the mantra that property rights should always take second place to human rights, there is a cogent reply: Property rights are human rights. This is well understood in the former Communist lands. It is also becoming increasingly well understood in Detroit and in New London, Connecticut.

The Michigan supreme court's 2004 decision in County of Wayne v. Hathcock is one of the more tangible victories of the movement to date. In that case, the court overruled its infamous 1981 Poletown decision, which had allowed the City of Detroit to bulldoze an entire neighborhood with more than 1,000 homes, 600 businesses, and a number of churches, so General Motors could build an auto plant. Calling Poletown "a radical departure from fundamental constitutional principles," the court acted "in order to vindicate our constitution, protect the people's property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law."

Kelo v. City of New London, a case uncomfortably similar to Poletown, was, of course, a major setback before the U.S. Supreme Court. But Kelo had four dissenters — something that would have been unthinkable in the days before Bernie Siegan and the property-rights movement. And the overwhelmingly negative public reaction to Kelo is likely, if anything, to strengthen Americans' insistence on fundamental property rights and basic economic liberties.

Bernie Siegan was a sweet, funny, optimistic man. We wish we could have kept this gentle Reagan Revolutionary with us a little longer.

((The Orange County Register had a tribute to Bernie today.))

March 30, 2006 | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 29, 2006

Charles Murray's New Book
Mike Rappaport

In his new book, Charles Murray argues that the government should eliminate all welfare spending and instead should provide every individual over 21 with $10,000 per year.  Interestingly, I had proposed a similar idea in a paper in grad school for Charles Lindblom, who wasn't too taken with the idea (but did give it an A).  I am sure Murray does a better job than I did. 

For a brief interview with Murray about the book, see here

March 29, 2006 | Permalink | Comments (2) | TrackBack (0)

Tuesday, March 28, 2006

French students protest against supply and demand
Tom Smith

AP (Paris)  French students took to the streets again today to protest the law of demand.

"It is humiliating, how you say, most unfair," said Jean-Luc de Roubeauxchambaird de Muscadet.  "Just because there is more of a thing, why should it mean that it is less dear?  It is not less dear to me," remarked the philosophy graduate student, who was busy setting a vintage Citroen DS ablaze.  "And less of a thing, more dear?  It is most paradoxical, a contradiction, if I may employ the Marxist terminology."

French trade unionists are cautiously supporting students in their call that the laws of both demand and supply be repealed.  "These are English laws, very bourgeois, and we do not like them very much," said Eiloueouieoeux D'Ohmiquexioueix, president of the National Congress of Florists, one of the more radical unions. "We should be able to charge whatever we want, and still make a decent living.  Otherwise, one works too hard." 

"Prices go very much up and down; what is that about?" added Horeauqqiw D'Orbit, a student leader.  "This is discriminatory.  How can we know what things will cost with all of this up and down?"

High government officials worried out loud yesterday that protests might spread to cover rainy weather in large parts of the country, and perhaps gravity and other physical constants.  "We can fake repealing supply and demand," said the official.  "Gravity is much harder to disguise."

March 28, 2006 | Permalink

Sunday, March 26, 2006

Conservatives are sick puppies -- an update
Tom Smith

Jim Lindgren is much nicer than I would be, but then I probably suffer from all those nasty personality traits that we are said to suffer.  JIm delicately makes the point, that I should think was obvious, that in order to make generalizations about conservatives outside of your sample, your sample of them has to be representative.  The small number of future conservative kids in -- get this -- the nursery school for kids and staff at Berkeley, and a co-op nursery in the same place are, just a wild guess here, probably not representative of, let's see, more than half of the voting population of the United States, who were conservative enough to have supported the dreaded W. 

I'm just an unfrozen caveman who became a law professor, but I would think that to make generalizations about all conservatives in this brave land of ours, you should have, gosh, at least several hundred, maybe even a few thousand, little could-be future conservatives.  I would not want them all to be coming from a nursery school with a picture of Che on the wall, or the 92nd St Y in New York, or the all Bible Jesus God school in Snakebite, Arkansas either. For goodness sake, we're talking about  human nature here, or  at least something as grand as  human  psychology and its relation to politics.  But anyway, we all owe a debt of gratitude to  Professor Lindgren for staying calm long enough to politely dismantle the ridiculous claim that you can figure out the psychology of conservatism by studying a few much to be pitied children in the co-op nursery in Berkeley CA.  It's a wonder those kids are as sane as they are.  Maybe the lesson is, if your kid is a future conservative, don't send him to a place like that, or he is likely to feel persecuted for the rest of his life.  Maybe they should study future conservative kids in Utah, and see if they turned out so poorly.

HERE is Jim's earlier post, and it is gratifyingly hard hitting.

March 26, 2006 | Permalink | Comments (2)

Sorry, you can't kill the Christians
Tom Smith

Here's how it works.  If Americans die liberating you from your benighted, medieval theocracy, then whatever government you set up next can't execute somebody just because they convert to Christianity.  It's one of the few absolute rules left in this everything is relative world of ours. Maybe something's changed within the last few days, but the British are not exactly covering themselves with glory on this one.  It seems like they are afraid of offending the Muslims by saying they can't kill people for leaving the faith. 

I suppose if you wanted to have some little country out in the desert, with big signs on the border, that said, Christians Will Be Persecuted, that would be one thing.  But once you start harboring plane hijacking terrorists, and we have to clean things up to stop our people from getting murdered, your right to maintain your nation as a tyrannical hellhole just sort of evaporates.  Deal with it.

March 26, 2006 | Permalink | Comments (1)

Goodbye Blogger
Tom Smith

It seems only appropriate that the weekend before we had planned to switch to Typepad, Blogger should perpetrate yet another outrage upon us.  This time, Blogger has locked me out of my own blog, telling me I am a spammer.  I've tried resetting my cookies enablement, logging in on both Explorer and Firefox, but nothing seems to work.   What can you say, except die Blogger, die die die. I can only hope the transition to Typepad goes smoothly.  Sometimes outrage is the mother of invention.  Stayed tuned!

March 26, 2006 | Permalink | Comments (1)