The Right Coast

Editor: Thomas A. Smith
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Tuesday, October 31, 2006

The Pigou Club
Mike Rappaport

Greg Mankiw is a card carrying member of the Pigou Club, whose members favor higher Pigovian taxes in order to remedy externalities such as pollution and congestion while raising government revenue.  So Mankiw  favors raising the gas tax. 

Mankiw also discusses reasons why one would not join the club.  His fourth reason seems right to me:

You recognize the externalities but think the government should try to correct the market failure through regulations . . . or through market-based solutions that do not raise government revenue (such as cap-and-trade systems). Perhaps you are concerned that government would waste the extra revenue on useless government programs.

If I was sure that the government would lower other taxes dollar for dollar when it passed a gas tax, I would probably favor one.  But of course no one can be sure or even optimistic about that.

Nonetheless, read Mankiw's various posts on the subject, which are quite interesting. 

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

Monday, October 30, 2006

Noonan on Bush
Tom Smith

I know what she means.  I still think the biggest mistake RR ever made was choosing Bush I as VP.  If he hadn't, a lot would have been different. 

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

Rough justice in Utah
Tom Smith

This Utah judge is getting famous in a way she probably would not want.  I haven't tried handcuffing students who yawn in my class.  I used to call on this guy after he fell asleep, which was always good for a laugh.  At least I thought it was funny.

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

Sunday, October 29, 2006

Those darn Dems
Tom Smith

Robert Caldwell of the San Diego UT does a nice job summarizing why a Democratic House would be far to the left of the American mainstream, especially in national security.

In the it's an ill wind that blows no good category, 18 months of a Democratic controlled house may be enough to innoculate US voters against the current Democratic leadership for quite a while.  If I were on Hillary's staff, I would be hoping the Dems did not take the House.

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

Saturday, October 28, 2006

Is there anything wrong with spending gobs of money on yourself?
Tom Smith

PC pioneer and Microsoft billionaire Charles Simonyi is apparently going to be the 5th tourist in space, a joyride that will set him back $20 million or so.  If you would like to make such a trip, you can arrange it here.

As readers of this blog know, I am not particularly prone to liberal guilt, but I really wonder about the morality of dropping $20 million so you can play astronaut.  For practically nothing, you can build a play space ship in your back yard out of old boxes and duct tape, have a space adventure, and still sleep in your own bed. 

I also understand that space exploration may have great promise, though here I also think a lot of wishful thinking tends to go on by people who think if they get up there, maybe somehow they can be as sexually active as Robert Heinlein's heros are.  But I don't think our dreams are any more likely to come true in space than they are here, however far over the rainbow it may be.  And if some entrepreneur figures out space offers some great commercial opportunity, such as GPS or satellite phones, I'm all for that too. 

What I do question is splurging so grotesquely on a fantasy adventure.  But then I wonder, who am I to talk, really?  I have splurged on family and personal adventures to an extent I could afford probably less than space tourists can afford their $20 millions.  On the other hand, if we let inconsistency stop us from pointing out the flaws in others' behavior, we would have to remain silent far more than I have any intention of being. 

So, consider all the things a space tourists could do with $20 million.  If used for charitable purposes, it would be deductible, so call it more like $30 million.  That is a lot of kids to send to college, even more to escape the gravitation of rotten public schools, and thousands of kids you could yank out of the holes they live in in Lima or Rio.  You also have to wonder, suppose you could be a space tourist, but you could not tell anybody you had done it.  It would remain a secret.  Would any of these zillionaires still do it, for $20 million?  Or would it then only be worth $5 or $1 million?  A lot of it seems to be the most infantile kind of showing off your wealth.  What my lovely wife Jeanne would call tacky, very tacky.  The whole point is to show off your wealth only in the most subtle ways, so that you preserve a kind of deniability that you are showing off.  This business of, look at me, I'm an astronaut, is of a piece with those dreadful Christmas letters, the kind, I mean, which are designed not to inspire the warm, fuzzy feelings of the season, but the bitter tang of envy, that your family is not just back from skiing at Staad, kayaking in Nepal, or catching all the latest shows in the West End.  In truth, how many of us, if due to a faulty O-ring or something, Simonyi were sucked out into space, to spend the next thousand years or so orbiting the earth, could avoid yukking it up, just a little? 

There are many expensive things I don't find morally objectionable.  Private aviation is fine because the airlines treat us like dogs, and many of one's fellow passengers deserve little better.  So that's fine.  Good food and wine is celebrated in the Bible, supports important human arts, and fights depression. I approve them.  Nice clothes, ditto, except for the Bible part.  Anyone who thinks you should not spend money on books is a philistine, notoriously unpopular in the Bible.  And of course, creating wealth through enterprise is a positive good.  Perhaps space tourism falls into this latter category, but only ambiguously so.  The space station is a pile of junk that probably diverts more from real progress in space than it contributes.  The Russians who run this operation are probably epiphenomena of that rapidly decaying nightmare empire.  It's a bit like paying $20 million to ride in a Nazi flying saucer.  Cool, but those faded SS symbols would be kinda creepy.

Don't get me wrong.  I would love to be a billionaire.  I think it would be swell.  I would get up early, log on, and just stare at all those big, constantly changing numbers in my very diversified accounts, until I got bored.  But if I were to drop $20 million on an amusement ride, I would keep it a secret.  I would not want everybody to know I was that selfish.

October 28, 2006 | Permalink | Comments (37) | TrackBack (0)

Friday, October 27, 2006

Meredith v. Jefferson County Board of Education
Gail Heriot

I'd like to thank the UCLA chapter of the American Constitution Society for inviting me to participate in their Supreme Court moot session on Tuesday.  It gave me the opportunity to bone up on the case of Meredith v. Jefferson County Board of Education, which will be argued before the Supreme Court in December.  No, I still haven't worked out in my own mind exactly how I think the case ought to be decided.  But I'm a lot closer than I was before the moot session, so I'm making progress.

I'd never done a Supreme Court moot session before this one (though I'm now scheduled to do another one in a few weeks).  Their purpose is to give an attorney who will be arguing before the Supreme Court an opportunity to rehearse before a "moot court"--preferably one composed of liberal and conservative legal experts who approximate the range of views the attorney will encounter before the real Court.  In this case, the attorney was Francis J. Mellen, Jr., who will be arguing Meredith v. Jefferson County Board of Education on behalf of the school board.  The members of the moot court were Professor Cheryl Harris, Dean Ken Starr, Professor Kimberly West-Faulcon, Michael Small and I.  ( I should add that, in addition to giving Mellin a chance to rehearse and refine his argument, the event also gave UCLA students a chance to hear an important Supreme Court oral argument before the Court gets to hear it. This was good, since Mellen did such an excellent job presenting his client's case that he didn't seem to need the rehearsal.)

I was intrigued by the title the ACS gave to the program: "Defending Brown:  Race Conscious Remedies in Education."  In some ways, it's the perfect title to describe the case as a whole.  Which party is defending Brown v. Board of Education is precisely the issue.  Is it the Jefferson County School Board, which assigns many of its students to schools on account of their race--making sure that at least 15% but no more than 50% of those at each school will be non-white?  Or is it Crystal Meredith, whose son was denied admission to the school of his choice because of his race?  Both sides firmly believe themselves to be on the side of the angels.   

After reading the briefs and hearing Mellen's argument, there are two things I am convinced the Meredith case isn't:

1.  This is not a "remediation" case in the tradition of Swan, Milliken, Jenkins, etc.  By that, I mean that it does not center on the governmental authority (judicial or otherwise) to remedy the past wrong of segregated schools.   Yes, Jefferson County (which is the county in which Louisville, Kentucky is located) did at one point operate separate schools for blacks and whites.  And yes, Jefferson County went through its court-ordered forced busing phase.  Indeed, court supervision of the Jefferson County schools officially lasted until 2000.  But in that year, the district court found that the school system had "eliminated the vestiges associated with the former policy of segregation and its pernicious effects." 

Whatever the ills of Jefferson County schools today, the court has found that they are not the proximate result of previously segregated schools.  Jefferson County School Board thus cannot claim that it is remedying its past wrong.  (Bear in mind that insofar as many neighborhoods in Jefferson County do not reflect the overall racial composition of the county, that is not a wrong committed by the Jefferson County School Board--or perhaps by anyone, but certainly not by the School Board.  It therefore does not give rise to any special powers of remediation that would not exist in the absence of a wrong.)

2.  This is not a "diversity" case in the tradition of Bakke or Grutter.  Even assuming that racial diversity serves the same purpose in the public schools as it was found to serve in Bakke at UC Davis Medical School and in Grutter at the Univerity of Michigan Law School, the Jefferson County schools haven't come close to complying with the requirements of strict scrutiny articulated in Grutter. 

Both Bakke and Grutter made it clear that, among other things, race must not be the only measure of diversity.  Students with other unusual characteristics must have a chance to be considered diverse too.  In Meredith, however, race is the only measure of diversity.  And it is the only factor that could prevent a Jefferson County student from getting an open seat at school of his choice (within his cluster).  The School Board doesn't distribute the children of missionaries throughout the system.  It don't care whether each school gets a tuba and a piccolo player for the school band or that talented athletes are distributed widely.  All it cares about is race.  Each school must have at least 15%, but no more than 50% non-whites.  That makes the Meredith case more like Gratz v. Bollinger (the case the University of Michigan lost) than like Grutter v. Bollinger (the case it won).  As a result, if the Supreme Court is to decide Meredith consistently with Grutter and Gratz, it would have to hold that the Jefferson County School Board's policy fails strict scrutiny, because (among other things) the policy is not narrowly tailored.

That doesn't mean that the Meredith case is a sure loser for the School Board (or even that I think that the case should be a loser for the School Board.)  Just because the Jefferson County School Board isn't authorized to act under the remediation line of cases or under the diversity line of cases, doesn't mean that its actions are in violation of the Constitution.  But this post is long enough now.  I will write this weekend about possible "third ways."

I don't think this case is easy by any means. 

October 27, 2006 | Permalink | Comments (1) | TrackBack (0)

Thursday, October 26, 2006

Stanley Mosk and Lewis Powell
Gail Heriot

Loyal Right Coast readers may recall a post I did a year ago about Justice Stanley Mosk (1912-2001), one of California's (and indeed the country's) most colorful and talented 20th century jurists.  When I teach torts, I sometimes find myself in disagreement with Mosk's products liability decisions, some of which helped him earn a reputation as the court's most liberal justice.  But his position on racially preferential affirmative action programs is awe inspiring.  Here's what I said in my previous blog entry:

I’ve been working on a short essay this week about UC Regents v. Bakke, 438 U.S. 265 (1978), and that caused me to re-read Justice Stanley Mosk’s extremely eloquent opinion written for the California Supreme Court in that case. Read the whole thing if you get a chance; it is a strongly-worded opinion condemning the UC-Davis Medical School's race-based admissions policy as unconstitutional. Here is a taste:

"To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality."

The litigation went downhill from there. The U.S. Supreme Court, affirmed the California Supreme Court in part and reversed in part in a split (4-1-4) decision that continues to baffle those who have tried try to follow its logic. The three opinions issued in connection with that decision all lack the clarity of vision so palpable in the Mosk opinion. No matter what side of the issue you’re on, the opinions are a confusing mess.

Mosk was considered one of the most liberal judges on any state supreme court in the country at the time. And his credentials as a civil rights activist were impeccable. In his personal life, he had quit fraternal organizations like the Elks and the Eagles in protest over their refusal to admit blacks as members. As Attorney General of California, he had banned the Professional Golfers Association, which banned African American players, from using state golf courses. As a judge, he had outlawed restrictive racial covenants.

Mosk surely knew that he would face a lot of angry people on account of his Bakke decision, but I wonder if he was prepared for the onslaught. Hundreds of placard-carrying demonstrators gathered beneath his office window to denounce his decision and demand its reversal. Thousands rallied elsewhere. When visiting local campuses, Mosk would routinely find himself greeted by picketers and hecklers. And when UC-Davis, no doubt in part as a conciliatory gesture, invited Mosk to give the commencement address at the law school in 1978, minority students wrote to him insisting that he decline the honor. When he accepted over their protests, one quarter of the graduating students walked out. But Mosk was undaunted. "Judges in California cannot be intimidated," he said. "Lawsuits are won and lost in courtrooms not on the streets."

Even in death, Mosk was not forgiven for this (and a few other) deviations from liberal orthodoxy. In his obituaries, four years ago, critics explained them away as Mosk’s efforts to bend with the political winds. In fact, Mosk showed backbone rarely found in judges. Whether one agrees or disagrees with his legal opinion in Bakke, it is difficult to deny that it was the product of his convictions.

A follow-up post on Stanley Mosk can be found here.

This evening I've been reading Jerome Karabel's The Chosen:  The Hidden HIstory of Admission and Exclusion at Harvard, Yale and Princeton in preparation for writing a review for Academic Questions. He briefly describes the history of the Bakke case and discusses the swing opinion of U.S. Supreme Court Justice Lewis Powell (1907-1998).  It was Powell's decision that gave a green light to racially discriminatory admissions policies adopted to promote racial diversity.

I already knew that Powell did not have Mosk's history as a champion of civil rights prior to becoming a judge.  Powell's reputation as a hero of affirmative action came only as a result of his opinion in Bakke.  What I didn't realize was that Powell, a kindly Virginia gentlemen by all accounts, had himself been part of the civil rights problem.  Karabel writes that while Powell opposed the strategy of massive resistence to Brown v. Board of Education when he sat on the Richmond School Board, he did precious little to comply with the law (when it was his responsibility to do so).  Karabel wrote:

Always active in civic affairs, Powell served as chairman of the Richmond School Board from 1953 to 1961 and as a member of the Virginia Board of Education from 1961 to 1969.  His own carefully worded assessment of his service in these position was that it had taken place when the pace of desegregation had been "necessarily more measured than civil rights leaders would have liked."  But this was a rather generous interpretation of his role in the years after the Brown decision, for when Powell stepped down as chairman of the Richmond School Board in 1961, after eight years of service, only 2 of the city's 23,000 black children attended school with white children.  And during his two terms with the state Board of Education, Powell's sympathetic but fair-minded biographer reports that "he never did any more than was necessary to facilitate desegregation ...[and] never spoke out against foot dragging and gradualism."

It's a crazy old world.  Almost 30 years later, the timid Powell is an icon of the civil rights establishment and Mosk, a man who took real risks throughout his life to stand up consistently for color blindness, is a villian who bent with the wind.  Go figure.

October 26, 2006 | Permalink | Comments (1) | TrackBack (0)

Getting the Job Done in Iraq
Mike Rappaport

The Best of the Web reproduced an e mail from an American soldier in Iraq, who analyzed the situation.  The letter as a whole is extremely interesting.  Two of his remarks bear special comment.
First, he explains:

In Germany after World War II, we controlled our sector with approximately 500,000 troops, directly administering the area for 10 years while we rebuilt the country and rebuilt the social and political infrastructure needed to run it. In Iraq, we've got one-third that number of troops dealing with three times the population on a much faster timetable, and we're attempting to unify three distinct ethnic groups with no national interest and at least three outside influences (Saudi Arabian Wahhabists, Iranian mullahs and Syrian Baathists)each eagerly funding various groups in an attempt to see us fail. And we are.

One of the big questions is why reconstruction in Germany (and Japan) worked and why it is not working very well in Iraq.  According to this letter, it is because we have been reconstructing on the cheap.  I find this very persuasive.  Depressing, but persuasive.

Second, he writes:

We need to backtrack. We need to publicly admit we're backtracking. This is the opening battle of the ideological struggle of the 21st century. We cannot afford to lose it because of political inconveniences. Reassert direct administration, put 400,000 to 500,000 American troops on the ground, disband most of the current Iraqi police and retrain and reindoctrinate the Iraqi army until it becomes a military that's fighting for a nation, not simply some sect or faction. Reassure the Iraqi people that we're going to provide them security and then follow through. Disarm the nation: Sunnis, Shias, militia groups, everyone. Issue national ID cards to everyone and control the movement of the population.

Well, I favor adding troops to Iraq, but adding this amount is simply not going to happen.  I don't know if this number of troops was needed initially, but certainly the US could have had many more troops in Iraq during the previous couple of years.  Sadly, Bush and Rumsfeld have wasted the time when large numbers of additional troops could have been supplied.

Of course, even twice the number of troops might not have solved the problem either, but at least we would have given it our best shot.

In the end, an enterprise like Iraq turns on as much about the willingness of the American people to make the sacrifice and stay the (or some) course as anything else.  At the end of the first Gulf War, I reluctantly agreed with Bush I's decision not to go to Bagdad.  The reason was that I simply did not believe the American people would support the efforts needed to pacify and control Iraq.  In 2003, I concluded that it was worth it to invade Iraq, because the American people would provide the requisite support, since they understood it involved issues of Islamic terrorism.   I still think that judgement might have been correct, depending on how many troops were needed and how long it would have required to pacify Iraq.  But given the failures to take adequate action until now, it does seem pretty clear that the American people will not provide the requisite support needed to do the job now.

October 26, 2006 | Permalink | Comments (6) | TrackBack (0)

Tuesday, October 24, 2006

What Bush should do on Iraq
Mike Rappaport

Rich Lowry has a good idea. 

October 24, 2006 | Permalink | Comments (1) | TrackBack (0)

If the Democrats take the Congress
Mike Rappaport

Assuming that the Democrats take one or both houses, the world will not end.  Indeed, some good things may happen.  Some people  have argued, not unpersuasively, that spending may go down as President Bush decides to veto Democratic spending projects. Here is another happy possibility: President Bush can more persuasively threaten the Iraqi government that it needs to take action against militant Shia, or else he will be forced by the Democrats to withdraw the troops (or at least more of the troops than he would have otherwise).  None of this is certain, but there is always a bright side to matters.  One thing that would be pretty certain and that is desirable is that the Republicans would have been punished for straying from their base.  And that is  worth quite a bit.   

Update: I added a couple of sentences to clarify my meaning and to make a new point.

October 24, 2006 | Permalink | Comments (0) | TrackBack (0)