The Right Coast

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

A Member of the Law Professor Blogs Network

Tuesday, June 30, 2009

You're a better man than I am, Gunga Greg
Tom Smith

Sorry, that was the best I could do.  Anyway, Greg Mankiw here kills Herr Doktor Professor Krugman with kindness, pointing out how the good Doktor Professor is just full of it.  He could have said what he says less nicely, but that is not his style.  Manikiw might be too nice, just as Krugman is too, uh, not nice.  But Manikiw's points are pretty devastating.  Krugman's macroeconomics is at least 30 years out of date.  And on health care, he is making bad arguments and making them in bad faith as well.  Both points strike me as probably true.

June 30, 2009 | Permalink | Comments (2) | TrackBack (0)

The Supreme Court Seems Poised
Mike Rappaport

to restore freedom of speech in the core area of political speech.  One of the worst things that George Bush II did was to sign the McCain Feingold Campaign Finance Law, for no fathomable reason.  (Oh yeah, I guess silencing political speech really is compassionate conservatism.)  Under that law, corporations and labor unions are not allowed to purchase TV or Radio political ads in the two months before an election.  It is hard to get more core political speech than that.  But there is an exception.  If you are a media corporation, you can talk away to your heart's content.  Surprisingly, the media loves the law.    

Two years ago, with the replacement of Justice O'Connor with Justice Alito, the Supreme Court narrowed the law's effect, but did not hold the law unconstitutional.  Now, the Court has asked for supplemental briefing on whether to overrule the two key judicial decisions that allowed the Law to be held constitutional.  As the New York Times wrote:

“The court is poised to reverse longstanding precedents concerning the rights of corporations to participate in politics,” said Nathaniel Persily, a law professor at Columbia. “The only reason to ask for reargument on this is if they’re going to overturn Austin and McConnell.”

Well, from Professor Persily's mouth to God's ears, but I do think the chances are good for an overruling.

Part of the reason for the overruling appears to be the facts of the case.  The federal government attempted to restrict a movie critical of Hillary Clinton during the primaries last year.  Somehow restricting a movie seems worse than restricting a commercial.  And, making matters worse, the federal government argued before the Court that "Congress had the power to ban political books, signs and Internet videos as long as they were paid for by corporations and distributed not long before an election."   Wow.  

June 30, 2009 | Permalink | Comments (8) | TrackBack (0)

Victor Davis Hanson Attempts to
Mike Rappaport

explain the Liar-in-Chief.  After discussing the "three noble lies" that Obama tells, here is Hanson's bottom line:

So why does President Obama so often get history wrong, so often call for utopian schemes he would hardly adopt for himself, and so often distort by misinformation and incomplete disclosure?

Partly the culprit is administrative inexperience, partly historical ignorance. But mostly the disconnect comes because Barack Obama believes he is a philosopher-king, whose exalted ends more than justify his mendacious means.

In other words, Obama is our first truly postmodern president. And the Guardians who form his elite circle — in the very manner that they once falsely accused neo-cons of doing — deliberately, but “nobly,” distort the truth on behalf of us all.

Well, maybe.  I see our truth-challenged President as much a product of the Chicago political culture as a postmodernist who is seeking to pursue the good for us all.  He wants national health care, even though people don't want it given the costs.  And so he claims it won't cost money, it will save it.  One hardly needs to be a postmodernist to engage in deceit in the pursuit of statism.  Just ask Julius Caesar.  

What was it Bob Kerry said about Bill Clinton?  "Clinton's an unusually good liar. Unusually good."  Well, I don't know how good Obama is, but, with a teleprompter, he is a very smooth liar.  Very smooth.  

June 30, 2009 | Permalink | Comments (4) | TrackBack (0)

Monday, June 29, 2009

A Loss of Perspective
Mike Rappaport

To quote it is to reject it:

Consider The Penguin Atlas of Women in the World (2008), by the feminist scholar Joni Seager, chair of the Hunter College geography department. Now in its fourth edition, Seager's atlas was named "reference book of the year" by the American Library Association when it was published. "Nobody should be without this book," says the feminist icon Gloria Steinem. "A wealth of fascinating information," enthuses The Washington Post. Fascinating, maybe. But the information is misleading and, at least in one instance, flat-out false.

One color-coded map illustrates how women are kept "in their place" by restrictions on their mobility, dress, and behavior. Somehow the United States comes out looking as bad in this respect as Somalia, Uganda, Yemen, Niger, and Libya. All are coded with the same shade of green to indicate places where "patriarchal assumptions" operate in "potent combination with fundamentalist religious interpretations." Seager's logic? She notes that in parts of Uganda, a man can claim an unmarried woman as his wife by raping her. The United States gets the same low rating on Seager's charts because, she notes, "State legislators enacted 301 anti-abortion measures between 1995 and 2001." Never mind that the Ugandan practice is barbaric, that U.S. abortion law is exceptionally liberal among the nations of the world, and that the activism and controversy surrounding the issue of abortion in the United States is a sign of a vigorous free democracy working out its disagreements.

Hat tip: Instapundit.

June 29, 2009 | Permalink | Comments (7) | TrackBack (0)

Disparate Impact
Mike Rappaport

Richard Epstein gets to the heart of the flaws with the disparate impact test under Title VII:

Government bodies and private employers both need reliable information in order to make intelligent decisions on promotion, and it would be a scandal if Title VII were to remove one core component of any employment decisions [that is, employment tests].  If the disappointed applicants could have proposed their own alternative test, that would have had both predictive power and no disparate impact, there is room for a discussion on the point. But one of the least appealing features of the current law on testing in race cases is that the attackers of the result do not have to present that alternative. And it is not likely, given the long history of failed attempts, that they would be able to do so. The defenders of affirmative action do us no favor when they attack the validity of tests that are now so carefully engineered that major improvements seem unlikely.

In other words, if one's employment test produces a disparate impact, then it can be struck down even though no one has shown that another test was available that would not have had the disparate impact.

June 29, 2009 | Permalink | Comments (3) | TrackBack (0)

Women are discriminated against
Tom Smith

But it's by other women, not men.  At least in this paper about performance art.  We will pause now for a moment so you can go to the link, read the article and recover in case you are seized with a fit of uncontrollable laughter.  There.  Feel better?  We can continue.

Personally, I don't find it difficult to believe in the least that women discriminate against other women. The important thing to remember is, it is the fault of men that they do so.  Women discriminate against women because of the patriarchial yada yada and so on and so forth and whatever, but the main thing is, it's men's fault.  As if you had to ask.

An anecdote.  I was talking to a lawyer the other day whose wife is some sort of professional psychologist.  She had to take a professional exam to get licensed in California, and in spite of being very well prepared, she failed the exam, twice.  The exam included an oral exam and no one could figure out what was going on so they hired a consultant.  He looked her over and said, "you're too pretty.  Get some fake thick glasses, and make yourself ugly with makeup and frumpy clothes."  The examination board was mostly women.  Dressed as an ugly psychologist, she passed with flying colors. Bear in mind, however, that when women discriminate against other women for being too pretty or not pretty enough, it is men's fault.

(I should add that I have personal experience with men discriminating against women I know in the professions, but in my view they do this not because they are men, but because they are assholes.)

Via WSJ.

June 29, 2009 | Permalink | Comments (5) | TrackBack (0)

Treason against the planet
Tom Smith

Herr Doktor Professor Krugman lets us know that global warming deniers (does that include skeptics?) are committing "treason against the planet."  I think that's a curious phrase.  It's very, uh, fanatical.

I'm not a global warming denier;  I'm just a skeptic.  I am prepared to believe in global warming, even more than I am prepared to believe in UFOs.  I just have to see something that convinces me.  I don't trust consensus any more than I trust Krugman because I know how politicized science can be.  It's almost as bad as economics.  The apparent, reported fact that global temperatures are not actually warming adds to my skepticism.  I don't consider models themselves any sort of evidence.  So I am left in doubt. The costs of the changes asked for are enormous.  It strikes me those global warming believers ought to bear a heavy burden of proof, but even to say that is to deny the "precautionary principle".  But then the whole thing starts to take on the non-falsifiable flavor of ideology:  We must do these things whether or not there is enough evidence, just in case they might be necessary.  And if you say no, you are a traitor.  Does that remind you of anything?

And consider this:

To fully appreciate the irresponsibility and immorality of climate-change denial, you need to know about the grim turn taken by the latest climate research.

The fact is that the planet is changing faster than even pessimists expected: ice caps are shrinking, arid zones spreading, at a terrifying rate. And according to a number of recent studies, catastrophe — a rise in temperature so large as to be almost unthinkable — can no longer be considered a mere possibility. It is, instead, the most likely outcome if we continue along our present course.

Thus researchers at M.I.T., who were previously predicting a temperature rise of a little more than 4 degrees by the end of this century, are now predicting a rise of more than 9 degrees. Why? Global greenhouse gas emissions are rising faster than expected; some mitigating factors, like absorption of carbon dioxide by the oceans, are turning out to be weaker than hoped; and there’s growing evidence that climate change is self-reinforcing — that, for example, rising temperatures will cause some arctic tundra to defrost, releasing even more carbon dioxide into the atmosphere.

Temperature increases on the scale predicted by the M.I.T. researchers and others would create huge disruptions in our lives and our economy. As a recent authoritative U.S. government report points out, by the end of this century New Hampshire may well have the climate of North Carolina today, Illinois may have the climate of East Texas, and across the country extreme, deadly heat waves — the kind that traditionally occur only once in a generation — may become annual or biannual events.

I'm not qualified to critique the MIT studies, though I should observe neither is Krugman.  Few people are.  In my case, the sheer vitriol of Krugman's language makes me even more skeptical, like he is trying whip people into a panic.  This would not be the first time scientists predicted doom that did not arrive and did so apparently for as much political reasons as scientific ones.  It also bothers me that if Krugman and the MIT scientists are wrong, it's not as if they will be on the hook for the trillions of dollars lost.  And this business of here comes the annual deadly heat wave -- can that be anything other than the merest speculation, thrown in to cause alarm?  It seems to me Krugman has been quite irresponsible opining about things he should know about, so I don't see why I should take him seriously regarding something he is no more an expert on than most.  I suppose one could throw words like "traitor" around, but I think I'll settle for just "really unprofessional."

Here's this piece again from the WSJ.  I'm not saying the deniers are right either.  My strong suspicion is that we don't really know how climate works well enough to predict with any confidence at all whether human activity will cause warming and how much.  If Krugman were as clever as he obviously thinks he is, he would realize that smearing people who do not share his zeal on this actually hurts his case.  It's poor rhetorical technique.  In order to effectively bully people, you have to have more over them than the opinion of the New York Times.  On the other hand, it could be he is just such a bully by nature that he can't help himself.  If this is so, he should consider taking a class or reading a book on how to argue effectively.  There are a lot of them out there.  Maybe the New York Times would pay for it.

June 29, 2009 | Permalink | Comments (4) | TrackBack (0)

Ricci decision
Tom Smith


Some links here.

June 29, 2009 | Permalink | Comments (0) | TrackBack (0)

Ginburg's Footnote 10 in Ricci
Gail Heriot

Josh Gerstein of Politico is reporting that today's 5-4 decision in Ricci will make it difficult to fault Judge Sotomayor for her decision below, since four justices agreed with her.  Says he:

"The ruling will be portrayed as a snub to Sotomayor, but the fact that four judges agreed with her position suggests that her assessment of the case was hardly outside the mainstream."

This is simply not true.  The justices disagreed with each other on whether the City of New Haven's proffered reason for scratching the test (fear of litigation) was legally sufficient, but the dissenters agreed that the plaintiffs should have been allowed their day in court to prove the proffered reason was a mere pretext for flat-out malicious discrimination against whites.  In other words, the dissenters agreed that Sotomayor and the other members of the Second Circuit panel erred.

Ginsburg makes it clear that she does not think that such discrimination is the most likely explanation for what happened (see p. 37), but she does concede that she would have remanded the case for further proceedings.  She agrees with the Solicitor General (who urged in an amicus brief that the case be reversed and remanded on exactly that ground), not Judge Sotomayor (who held that New Haven should prevail as a matter of law).  The decision was thus 9-0 on the issue of whether the Sotomayor opinion correctly disposed of the case.

Update:  The Gerstein article has been up-dated to remove the sentence I quoted above.

Another update:  Some folks are having a difficult time following what I mean.  Let me try to make it clearer:

At trial, both parties made a motion for summary judgment.  That means both parties thought that under the undisputed facts, they ought to win, but the plaintiffs had a backup argument that they ought to be given the opportunity to prove that the City is lying about its concern over litigation.  The trial judge had three options:  (1) Agree that under the undisputed facts, the plaintiffs should win; (2) Agree that under the undisputed facts the City of New Haven should win; or (3) find that the facts are disputed and therefore the case must go to trial. 

Plaintiffs made two arguments:  (a) that the City of New Haven's motivation for refusing the promotions--fear of litigation--was insufficient as a matter of law unless New Haven could show that the litigation would be meritorious; and (b) even if that motivation would be sufficient if  true, it was a mere pretext and the City of New Haven's was in fact motivated by a desire to prevent too many whites from getting the promotion.  The City of New Haven also made two arguments: (a) that its fear of litigation was sufficient as a matter of law to avoid liability on that basis; and (b) its fear of litigation was not a mere pretext for other motivations. 

The trial court went with (2) and entered summary judgment for the City without trial.  The Second Circuit affirmed. 

Five justices of the Supreme Court held that Option 1 was the proper course and granted summary judgment to plaintiffs.  For them, it wasn't necessary to decide whether the City's proffered reason was real or pretextual, because plaintiffs would win either way.  The four dissenters believed if the City of New Haven was inspired by fear of litigation, then it was not liable.  In that narrow respect they agreed with the Second Circuit judges and the district judge.  But their bottom line was that the Second Circuit judges and trial judges erred, because they had ended the case in summary judgment and they should have remanded the case. The plaintiffs were entitled to attempt to prove that the proffered motivation was a mere pretext. 

In other words, five justices voted for Option 1; four justices votes for Option 3.  No justices voted for Option 2, which was the option chosen by the Second Circuit judges and the trial judge.  

June 29, 2009 | Permalink | Comments (2) | TrackBack (0)

Sunday, June 28, 2009

How to Destroy America
Mike Rappaport

The Washington Post reports on the new CBO Report:

To put it bluntly, the fiscal policy of the United States is unsustainable. Debt is growing faster than gross domestic product. Under the CBO's most realistic scenario, the publicly held debt of the U.S. government will reach 82 percent of GDP by 2019 -- roughly double what it was in 2008. By 2026, spiraling interest payments would push the debt above its all-time peak (set just after World War II) of 113 percent of GDP. It would reach 200 percent of GDP in 2038.

This huge mass of debt, which would stifle economic growth and reduce the American standard of living, can be avoided only through spending cuts, tax increases or some combination of the two. And the longer government waits to get its financial house in order, the more it will cost to do so, the CBO says.

The CBO's new long-term forecast is considerably more pessimistic than the one it issued 18 months ago, mostly because of the recession, which has driven the budget deficit above 12 percent of GDP. But the report makes clear that the recent economic downturn did not cause the government's predicament and that the situation will not necessarily improve once the economy does. The principal cause of long-term fiscal distress is the aging of the U.S. population, coupled with rising health-care costs -- which, together, will drive spending on Medicare, Medicaid and Social Security to new heights. Unchecked, federal spending on Medicare and Medicaid combined will grow from almost 5 percent of GDP today to almost 10 percent by 2035 -- and to more than 17 percent of GDP by 2080.

Yes, it is a good time to be passing national health insurance. And that fake stimulus bill, another great idea.  Bailing out the auto companies -- nice move.   Cap and Trade -- that will help the economy.  And what we really need to handle these problems is stronger unions. 

How bad is Obama?  That's a good question, but based on these 5 months, I would say one must go back at least to Lyndon Johnson to get a President as bad as him.  

June 28, 2009 | Permalink | Comments (5) | TrackBack (0)