The Right Coast

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

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Saturday, July 30, 2011

Dicking with the data
Tom Smith

I don't know if this is more evidence that Herr Doktor Professor Krugman has farmed out his column to some annoying undergraduate, thinks his readers are stupid, or both.  Krugman is responding to claims by Stanford economists Boskin and Taylor that (I paraphrase) the Reagan years ushered in good economic times.  Then, mysteriously to me, Krugman shows us a graph from the BLS that shows multi-factor productivity growth in time chunks that don't correspond to presidential terms.  I'm just a humble law professor, but is this as dumb as it seems?  

Productivity, yes, productivity is good, but it's not the same thing as economic growth and it's not the same thing as wealth.  Suppose your business is going gangbusters.  You have so many orders you have to pull the old widget maker out of mothballs and fire it up.  You have to bring in every loser nephew and cousin you can lay your hands on to take orders and man the night shift.  Business is too good!  You are making money, but productivity, which is how much you can squeeze out of the additional factors of production (machines, nephews) is actually going down. Lately I have heard even in our current high unemployment, low growth doldrums, productivity is up because producers are squeezing more out of the workers and capital that they have.  In short, WTF is Krugman talking about?

Moreover, this is the age of the interweb.  Any idiot can google GDP growth and see the numbers. Here's a plot of real and nominal GDP growth rates since WW2 or so.  You can see it all -- the huge spurt in 1949 or so, the Carter recession, the Reagan recovery, our current sad state.  Remember, this is just rate of growth, i.e. rate of change in GDP.  Here is GDP itself over the post WW2 moment.  You can see why people say of the 1980s and '90s -- them were good years! And also why 2007 until now looks so spooky.  What the heck is that kink in the GDP growth path doing there?

In short, it looks like Krugman pretty much pulled the first irrelevant graph off the first website he stumbled upon that would look to the naive like the last 30 years of the 20th century weren't economically so great.  And then he uses that to assert that conservatism must be corroding the minds of Boskin and Taylor who as far as I know have never written anything so transparently idiotic as Krugman is presently foisting upon the reader.  This, when instead of throwing a great gob of bullshit at us, he could have simply referred us to the actually relevant and easily available data and said, see, there's a lot of ups and down in the growth rate (business cycles, anyone?  To which changes in productivity surely are relevant), but it looks like we have been on a pretty steady upward path in total GDP until, uhm, recently. Not as much political punch either way in saying this, but at least you are not insulting everyone's intelligence, even those who are not that intelligent to begin with.

July 30, 2011 | Permalink | Comments (4) | TrackBack (0)

Friday, July 29, 2011

Sure, they look blue, but are the Smurfs closet Reds? - Washington Times
Tom Smith

You remember the Smurfs: Blue skin, white caps and three apples high. Wanton berry junkies. A 1980s pop phenomenon. The adorable masters of the Saturday morning cartooniverse are back, the computer-generated titular attraction in a new movie opening nationwide Friday. As Papa Smurf and friends re-enter the cultural atmosphere, there’s no dodging the question: Are the Smurfs now, or they have ever been … communist?

via www.washingtontimes.com

Smurfs are indeed evil. But Thomas is a very useful engine.

July 29, 2011 | Permalink | Comments (4) | TrackBack (0)

I may have to take the rattlesnake off my truck over this
Tom Smith

Yeah, I think Glenn and Prof. Jacobson are right about this.  It's time to pass the Boehner bill and move on to 2012.  Krauthammer is also right.  It now looks like with a balanced budget amendment condition to the second extension of the debt limit, the Boehner proposal will pass the House.  But then what?  The House and Senate seem too far apart to produce anything (via conference?  I don't know what the order would be on this one) that the House would sign off on.  Obama's pseudo-bluff (I don't think it's really a bluff if he refers to it as a bluff) is irrelevant at this point.  

A little game theory moment.  If it were a true game of chicken (recall, that's two cars rushing at each other, such that if they collide both drivers die) if both players refuse to swerve, both die.  In this game, it is actually to the advantage of the player to be known or believed to be irrational.  If you think the other fellow would rather die than lose (i.e. is crazy) then you will swerve, unless you are crazy too.  Thus the tea partiers may be rationally acting crazy in order to win the game.  The problem is, the Democrats in the Senate may not believe that a crash (default on the debt and/or credit downgrade) really is such a negative outcome for them, because they may (indeed correctly) believe this outcome would be blamed on those crazy tea party Republicans and their GOP enablers.  So on one side you may have actually crazy or rational-but-acting crazy tea partiers and on the other side Democrats who think default might be terrible for the country but good for them. This is not a true game of chicken but some sort of funky game unlikely to lead to anything good; call it the Stupid Selfish Politician Game, until a better name comes along.

Krauthammer has the most important insight.  The debt limit is the limited government vs. European style social welfare state debate and is really something for the people to decide in 2012, which is almost here already conveniently enough.  That's really the constitutional moment (thanks Bruce!) to decide whether we keep the party going until we hit the iceberg, or change course towards the sunny waters of liberty.  As the French used to say, conserver tout votre calme.

July 29, 2011 | Permalink | Comments (1) | TrackBack (0)

What Happens if We Don't Raise the Debt Ceiling? - Megan McArdle - Business - The Atlantic

But okay, let's say they don't pass anything, what then?

Here's what I think I know about what will happen:

via www.theatlantic.com

July 29, 2011 | Permalink | Comments (0) | TrackBack (0)

James Forte Stabs Himself After Tripping Over Cat: Pa. Police
Tom Smith

Freemansburg police say 50-year-old

was opening a bag of coffee with a knife on Thursday night when his wife asked him a question. As he turned to her, Forte said a cat ran under his feet and he fell with the knife in his hand.

The steak knife went about an inch into Forte's chest. He was treated at a hospital and police say he will be fine.

via www.huffingtonpost.com

You can't trust the furry little demons.

July 29, 2011 | Permalink | Comments (1) | TrackBack (0)

Erin Go Bonkers - George Weigel - National Review Online
Tom Smith

Then came le déluge: the deluge of Vatican II, the deluge that Europeans refer to as “1968,” and the deluge of the “Quiet Revolution” in la Belle Province. Once breached, the fortifications of Counter-Reformation Catholicism in Spain, Portugal, Quebec, and Ireland quickly crumbled. And absent the intellectual resources to resist the flood-tides of secularism, these four once-hyper-Catholic nations flipped, undergoing an accelerated course of radical secularization that has now, in each case, given birth to a serious problem of Christophobia: not mere indifference to the Church, but active hostility to it, not infrequently manifested through coercive state power.

via www.nationalreview.com

Lie down with governments, get up with fleas.

July 29, 2011 | Permalink | Comments (3) | TrackBack (0)

Thursday, July 28, 2011

Scaring Seniors With Social Security

Social Security historian Nancy Altman and my Pepperdine colleague Mark Scarberry have updated their original op-ed in light of President Obama’s Monday night speech to the nation, in which the President once again warned that Social Security checks might not go out on time if the debt ceiling is not raised. (Michael McConnell (Stanford) agrees that the President's "attempt to scare Social Security recipients is without legal foundation.")

via taxprof.typepad.com

July 28, 2011 | Permalink | Comments (5) | TrackBack (0)

Tuesday, July 26, 2011

Cool Like Dad: Classic gear that still rocks | Product Reviews | Wired.com | Wired.com

Your dad had it all back in the day — a boss ride, a stylish pad and the sweetest-sounding hi-fi. A lot of those same gadgets are still around, and they’re just as awesome today as they were back then.

via www.wired.com

July 26, 2011 | Permalink | Comments (0) | TrackBack (0)

Jed Rubenfeld on Affirmative Action
Mike Rappaport

I came across this 1997 Yale Law Journal article by Yale Law Professor Jed Rubenfeld recently.  Only a portion of it is devoted to originalism, but that portion is very weak.  Perhaps it is sign of progress in the understanding of originalism (even among nonoriginalists) that I don’t think it would be published this way today.

Rubenfeld believes that he has made a great discovery – one that suggests that affirmative action cannot be unconstitutional as an original matter.  And he wants to play gotcha with the conservative originalists on the Court.  The article has that tone.  The problem is that he has not gotten anyone. 

Rubenfeld argues

Although it is a matter of public record, most lawyers and judges are unaware that Congress in the 1860s repeatedly enacted statutes allocating special benefits to blacks on the express basis of race (and I am not referring to the well-known Freedmen's Bureau Acts, [FN2] which did not rely on express racial classifications). Accordingly, to be true to their principles, two of the five Justices in the prevailing anti-affirmative action majority-- Justices Scalia and Thomas, whose commitment to original understandings and practices is also a matter of record--should drop their categorical opposition to race-based affirmative action measures.

Having set forth his position, Rubenfeld lays out his evidence:

In July 1866, the Thirty-Ninth Congress--the selfsame Congress that had just framed the Fourteenth Amendment--passed a statute appropriating money for certain poor women and children. Which ones? The act appropriated money for “the relief of destitute colored women and children.”  In 1867, the Fortieth Congress--the same body that was driving the Fourteenth Amendment down the throat of the bloody South--passed a statute providing money for the destitute in the District of Columbia.  (And remember that Congress is the constitutional analogue of a state legislature for the District of Columbia.) What classification did Congress adopt in this poor-relief statute? Relief was to be given to the destitute “colored” persons in the nation's capital. Year after year in the Civil War period-- before, during, and after ratification of the Fourteenth Amendment--Congress made special appropriations and adopted special procedures for awarding bounty and prize money to the “colored” soldiers and sailors of the Union Army.

But this is silly.  It is true that Congress did enact statutes allocating special benefits to blacks on the express basis of race.  But this does not show that section 1 of the 14th Amendment, including the Equal Protection Clause, does not forbid special benefits on the basis of race.  Rubenfeld has forgotten something very elementary: Section  1 of the 14th Amendment forbids states from denying anyone equal protection of the laws.  That section does not apply to the federal government.

Opps.  Rubenfeld might have forgotten this because so much of modern law is nontextual and ignores this basic fact.  In fact, some originalists forget it.  But it is clearly in the 14th Amendment.

Why did Congress not forbid discrimination by the federal government when it proposed the 14th Amendment?  Hard to know for sure.  Perhaps it did so because it wanted to confer special benefits to blacks in the near future.  Perhaps it did not want to impose limits of the federal government generally.  Perhaps it believed that only the states, given their history, could not be trusted with this power.   

Rubenfeld is right about one thing.  The Congress that proposed the 14th Amendment did not oppose color conscious statutes passed by the federal government.  But that says nothing about what they intended, or what the 14th Amendment meant, for the states.   

There is a lot more that could be discussed here: Subjects such as the enumerated powers for these statutes, the effect on precedent such Bolling v. Sharpe, etc. But the basic point remains. 

Rubenfeld concludes his first section:

I am no originalist, so I cannot regard the practices of Congress in the 1860s as dispositive of affirmative action's constitutionality. In fact, nearly no one today is a true equal protection originalist, because true equal protection originalism would repudiate Brown v. Board of Education. [FN25] Hence the point is not to foreclose argument by citing old statutes. It is to begin the argument with a little more candor. The colorblind contingent must begin by recognizing that they are calling on courts to render the kind of judgment about justice (beyond the letter of the law, beyond original intent) that elsewhere they deplore.

I would say that Rubenfeld owes “the colorblind contingent” some amendments to his article.  It is he who "must begin to recognize" that his accusation was seriously deficient.

Cross Posted at the Originalism Blog

July 26, 2011 | Permalink | Comments (4) | TrackBack (0)

From Norway To Hell | Via Meadia
Tom Smith

We still live in the Age of Apocalypse that opened in World War Two when Hiroshima and the Holocaust delineated the essential problems of the new and possibly last era of human civilization.  Mankind has long had the potential for radical, desolating evil; today we still have that potential among us, and we have united it to the power to end all life on earth.  We live with one foot in the shadows and another on the high and sunny uplands of democratic and affluent society.  We have one foot in Norway and the other in Hell and nobody knows where we step next.

via blogs.the-american-interest.com

So I take we have four feet?

July 26, 2011 | Permalink | Comments (2) | TrackBack (0)