The Right Coast

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

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Thursday, October 30, 2008

Historic change in the offing
Tom Smith

Oh dear.  I hope this isn't true.  I fear it is.

Let's get rid of the ownership society.  I makes people too feisty.  These Democrats are pretty smart.  I wish I had them around when I was looking for someone to train my dogs.

October 30, 2008 | Permalink | Comments (0) | TrackBack (0)

What's Ahead
Maimon Schwarzschild

Some questions about the coming Age of Obama:

Will the mass media have the desire or the ability to step back from being a cheering section, a kind of Pravda, having transformed themselves over the past eight years into the partisan equivalent of the controlled press in a not-free country?

Will the tempremental extremism that have been evident over the past eight years among many, many people who used to be conventional liberals or centre-left people - will it recede when it is rewarded with sweeping power?

Will there be any reluctance to try to reproduce the one-party campus in the country as a whole?

After the Communists crushed a workers' uprising in East Germany in 1953, Bertolt Brecht famously asked whether it wouldn't be easier for the government to dissolve the people and elect another.  That thought may recur over the next few years.

October 30, 2008 | Permalink | Comments (2) | TrackBack (0)

Don't Vote
Mike Rappaport

Unless you know something.  Based on studies of political ignorance, that means a lot of people should not be voting. 

October 30, 2008 | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 29, 2008

A Choice Between a Disaster and a Catastrophe
Mike Rappaport

Todd Zywicki sees the light.  Let's go with disaster all the way!

Maybe I'm just slower at this than others, but it really took a long [while] for it to sink in to me exactly how far left Obama really is. On every single issue that I am aware of, he seems to be at the far left end of the Democratic Party spectrum. I mean really out there.

But as I've looked at the actual policy positions of the two more closely, it seems to me that Obama really seems to be pretty far out there. He is no Bill Clinton. And from what I can tell none of those libertarians or conservatives who are Obama supporters are attracted to because of his positions (other than those who care strongly about the Iraq war and foreign policy), but rather because of who he is. Obama is a compelling personality.

October 29, 2008 | Permalink | Comments (0) | TrackBack (0)

Multiple Choice Exams are
Tom Smith

a) More objective than essay exams

b) Easier to grade

c) fairer  to students

d) all of the above

The correct answer is (d).  In my opinion.  Thus I disagree with the long post linked to at Marginal Revolution, which I admit I did not read carefully because it was so long.

I have given many multiple choice exams ("MCE's") in my day, though not so much lately.  There is a lot to be said for them.  First, if you have graded your way through a stack of essay exams, you know how subjective the process is.  One student makes five points badly, another student makes two points well.  How should they compare?  One student's style is annoying, but he seems to get it.  Have you really graded him fairly against the nicely written essay where it's unclear the material is understood?  The A's and C's are easy to pick out, but the varieties of B are a morass of subjectivity.  One year, I did a correlation of the scores I had given for the essay portion of an exam and the scores I had given on the MCE, and found a pretty high correlation of .80 or so.  I had no idea whether one or the other was better, but my intuition was that the MCE was and that by factoring in the essay scores, I was just making the final grades noisier.  This was after many hours spent reading the essays, so it was a bad feeling.

The blog post reflects some common misunderstandings of MCE's.  Nobody should think, for example, that just because you can get a quarter of the answers correct by randomly guessing your way through a four option per question MCE, that you understand 25% of the material.  All you would know is where the random guesser ranked relative to the rest of his class.  If the class was any good at all, he would be at the very bottom.  I have administered a dozen or more MCE's to law students over the years, and only once or twice have I seen exams that could have been done by, say, a ferret walking on the scantron form.  Those people got F's, and those persons who correspond to their clients in an alternative universe should thank me.  A somewhat related curiosity is that you can vividly see the Condorcet Jury Effect (the "wisdom of crowds") if you look at what is the most popular answer to each question, and then construct an artificial answer sheet out of those answers.  That test will frequently be the best in the class.  Another nice feature of MCE's is that the weight of questions is self-adjusting.  If you are grading on a curve, as you certainly should, then a question that everybody misses or everybody gets right, has no weight.  The most heavily weighted question for scoring purposes is one which half the people get right, and half wrong.  This means you have to be careful that you do not have any questions that have two, equally correct answers.  Questions like that can introduce a lot of noise into your results.  But if you eliminate those, then questions that are overly obscure or overly easy get reduced in weight when you curve the raw scores.  If you think some questions should have more weight than others, spreadsheets are available that can do that for you.

Another thing about MCE's I like for law exams is that each question can be a problem that requires some analytical thought to solve.  Many students in my experience can't or won't do analysis in their essay.  You have to read between the lines to see whether they are engaging in the thought you want to see.  In an MCQ you have at least a probabilistic belief that they understand the analysis because they got the right answer.

Designing good MCE's is a lot of work.  But there are steps you can take to improve the quality.  A good rule of thumb is to ask many questions of moderate difficulty.  The law of large numbers is your friend, and if you have 50 or more questions, the odds get good that you are measuring something that is actually there.

Some very sophisticated exam instruments are in the multiple choice form.  For example, the medical sub-speciality board qualification exams are multiple choice, as well as open book and done at home.  In some fields, such as endocrinology and probably others, such as infectious diseases, they are diabolically difficult, mimicing the process of diagnosis, which is full of false leads and wrong answers.

Personally, I found the multistate bar exam a distressingly probing experience, having graduated several years previously from the Yale Law School, which did not stress knowledge of legal doctrine, to put it charitably.  I managed to pass it not knowing very much law, but it required extraordinary deductive efforts, and I hurt my brain so badly I'm not sure I ever recovered fully. Personally, I think I would favor some sort of super bar exam than anyone could take and if they passed it, become a member of the bar and apprentice at any firm that would have them.  In terms of learning law, I might have been better off on a desert island with the Corpus Juris Secundum than I was at law school.  It might also have been more fun, assuming there was some fishing and perhaps a surfboard.

October 29, 2008 | Permalink | Comments (7) | TrackBack (0)

A stupid column by Thomas Frank
Tom Smith

Well, this is dumb and annoying.  It is surprising and annoying that "Joe the Plumber" was put through media investigation just for querying Obama on his tax plan.  That was a bad thing.  Shouldn't somebody be able to question Obama in public without having all their dirty laundry aired?  Especially given that the MSM has hardly covered itself in glory telling us all about say, Obama's career in Chicago.  The MSM has given Palin a hard time.  And the blogosphere has been positively scurrilous towards her, especially The Atlantic and Andrew Sullivan.  The idea that contemporary American liberalism is the philosophy of cultural elitism is not made up.  Cultural elites are overwhelmingly Democratic.  Some of the attacks on Palin have been the merest snobbery and a fair bit of it has been positively offensive.  Granted, she can be remarkably inarticulate, but so can most people when a microphone is put in their face.  All of this has nothing to do with the young woman who fabricated an attack on herself by an Obama supporter.  I guess the idea is that the lattermost attack was a fantasy and so sort of were the former.  But the problem is, the former complaints are warranted.

I resent this.  Thomas Frank has all these prized column inches in the Wall Street Journal, and he can't even come up with a literary trope worth its weight in printer's ink.  If this guy had a blog, few people would link to him.  I am feeling sorry for myself here as a blogger, not as a conservative.

October 29, 2008 | Permalink | Comments (10) | TrackBack (0)

LA Times Obama tape
Tom Smith

Rumor has it, very controversial comments about Israel.  Hmmm.  What if we asked nicely after the election?  Then could we see it?  

Still, it is comforting to know the LA Times is looking out for us and making sure we don't get upset.

October 29, 2008 | Permalink | Comments (4) | TrackBack (0)

The Solution to Media Bias: A Modest Proposal
Mike Rappaport

This statement by John Malone about media bias has gotten a lot of play.  Of course, one can easily find evidence of bias just by reading the newspaper.  Tonight, I looked at the New York Times website.  On a day when the Dow went up nearly 11 percent, the Times has nothing on the front page of the website on it.  If one clicks to the Business Section, they do have a story, with the headline: "Even as Dow Soars 11%, Skeptics Lurk." 

People have been debating how important the media bias is.  Count me in the group who says, "very important."  I won't try to defend that claim here.  But I think it is clearly true. 

So the question is, is there a solution to the problem?  And you know what, there is a simple solution -- one that might not entirely cure the problem, but would go enormous steps towards constraining it.

It is regulation of the composition of media employees based on political views.  My guess is that the New York Times has about 80 to 90 percent Democrats.  Simply require that there be an even number of Republicans and Democrats at the Times.  Yes, there are all kinds of complications, but put those to the side.  They are details that can be addressed.

If the Commanding Heights of our information society had to be half conservative and half liberal, there would be much less liberal bias.  The usual arguments for integration would apply here.  Conservatives would have much more power to stop the bias.  Moreover, the fact that they were present in the newsrooms would make it harder for liberals to get away with biased claims without being challenged.  

Of course, many readers may say, "you have got to be kidding.  That would interfere with the First Amendment and would have many of the same problems as other similar types of regulations, like affirmative action." 

Well, maybe.  But at least recognize this.  If the bias were conservative bias instead of liberal bias, there is no doubt that liberals would be arguing for something like this.  How do I know?  Because they do it all of the time.  In academia and other places, racial or gender "imbalance" leads to strong calls for affirmative action.  More importantly, when conservatives appear to have an advantage in an area of the media, like talk radio, many liberals call for the Fairness Doctrine (which is very similar to my proposal).   Just think about that.  We are witnesses tremendous liberal bias in favor of Obama, and liberals want to regulate conservative talk radio, while leaving the Commanding Heights of the information society -- where they dominate -- unrestricted.  Just amazing.

Update: Some people seem to be missing my meaning here.  My subtitle of "A Modest Proposal" is a reference to Jonathan Swift's satirical essay "where he suggests that the impoverished Irish might ease their economic troubles by selling children as food for rich gentlemen and ladies."  My point in making this proposal is not to actually recommend it, but to point out that it would address the bias problem and that liberals would go for this type of thing if the shoe were on the other foot.

October 29, 2008 | Permalink | Comments (10) | TrackBack (0)

Tuesday, October 28, 2008

McGinnis on Fried
Mike Rappaport

I had forgotten my friend and coauthor, John McGinnis, had written about Charles Fried's political expediency at the expense of principle when he served as Solicitor General in the Justice Department:

In the first two paragraphs of his book review of Fried's book on his experiences at the Justice Department, John writes:

Professor Fried begins Order and Law, an account of his tenure as Solicitor General, with the admission that as a cloistered academic he was unprepared for the political hurly-burly of Washington. Order and Law thus demonstrates that adult education is always possible, because the book is often a political rather than a theoretical enterprise. Indeed, Order and Law follows the first rule of political biography that the writer is the hero of his own story. The reader is treated to a lively tale of Professor Fried's mostly victorious ride between his adversaries on the right and on the left, together with vivid portraits of the leading actors on the Reagan Administration's legal scene. Unfortunately, Fried's interest in political justification has an adverse effect on the book's contribution to scholarship and theory. Scholarship requires the sustained investigation of first principles wherever they may lead. The natural tendency of politics, especially bureaucratic politics, is to encourage confusion and shifting among principles to achieve the most advantageous appearance. Thus, what the book gains in political interest is often outweighed by the loss of dispassionate reflection by a leading academic on the unique office he once held.

In Order and Law, Fried tends to slide from principle to principle in order to position himself politically midway between his liberal critics  outside the Administration and his more conservative colleagues within. Nowhere is this tendency more evident than in his discussions of his role as Solicitor General. For instance, Fried defends a brief he filed urging the Supreme Court to overrule Roe v. Wade as grounded in jurisprudence rather than politics. "[T]he merits of the right-to-life versus freedom-of-choice [policy] dispute" were not relevant to his legal analysis. Less than a page later, Fried proudly recounts a victory over people in the Justice Department whom he labels the "federalism police." The "federalism police" argued that states were free to impose additional penalties for federal labor violations, despite the existence of federal labor laws. Fried favored preemption, because "leaving the states free to do as they liked posed a greater threat of overregulation than did giving precedence to federal law." Thus Fried avoids analyzing the doctrinal and jurisprudential issues presented in the case (such as federalism and the scope of preemption) by appealing to precisely the kind of policy decision (expansive vs. limited labor regulation) that he claimed to eschew in the abortion case.

I was actually one of those "federalism police," and I remember Fried's antics well.

I highly recommend McGinnis's review in the Stanford Law Review.    

October 28, 2008 | Permalink | Comments (4) | TrackBack (0)

Monday, October 27, 2008

A western movie treat
Tom Smith

Appaloosa is a terrific little Western.  If you like the genre, do yourself a favor and see it in a theater. Ed Harris and Vigo Mortenson are completely convincing as lawmen-for-hire who arrive at Appaloosa, New Mexico to establish law and order after the local bad guy kills the marshall and his deputies.  The dialog alone, laconic and dryly hilarious, is worth the price of admission.
It's not as ambitious as Open Range, a great Western in my book, lushly beautiful and with greater emotional range.  No one in Appaloosa expects to find love.  Virgil is happy, very happy, to find a woman who bathes every day and chews her food nicely.  

October 27, 2008 | Permalink | Comments (2) | TrackBack (0)