Urban Renewal

Later today I will be driving past a large, unattractive cement building, owned by a national newspaper chain. That location of that building will seem peculiar - it is, after all, a relatively new building, but its location will be on the main road to downtown, where it is apparent that many shops and homes once stood. It also is the sort of building that one would expect to be in an industrial park, or at the outskirts of a town, not right at the edge of downtown.

It seems that this town had a brilliant idea some decades back that it would "renew" its downtown area. It set about acquiring a large tract of property, with the goal of clearing off the old homes and businesses and building a large shopping mall. After the land was acquired and cleared, somebody finally asked the important question - "If we build it, will they come?" Okay, so that wasn't the actual question - "Private projects of this type and magnitude don't break ground until they have their anchor tenants signed to leases. Do we even have any potential anchor tenants who have expressed interest, let alone any who have signed leases?" Perhaps you have anticipated the answer to that question.

So the city was left with an empty stretch of land, once occupied by homes and buildings, and a revitalization plan which was not commercially viable. The best offer they got from a private enterprise for the land was from the newspaper company, hence the cement behemoth.

In recent days there has been a lot of debate on a variety of law-related weblogs about eminent domain, sparked by a somewhat peripheral comment on The Volokh Conspiracy about textualism as an approach to constitutional interpretation. One of the more interesting comments that came up through Crime and Federalism, more in relation to eminent domain than in relation to textualism, is actually an older post by Timothy Sandefur, where he discusses changes in philosophy whereby public takings for a private purpose became somehow "acceptable". The Volokh Conspirators also point to a critical reply from A Stitch In Haste which in turn points to a discussion at Legal Affairs between two law professors. In any event, if you follow the web, you'll read more about the "Takings Clause" and eminent domain than you probably want to....

The debate at Legal Affairs includes the observation that "only Justice Scalia expressed any enthusiasm for [the] argument to limit 'public use' to actual use by the public." It also alludes to what can happen if you don't allow a private landowner to force a neighbor to permit construction of a road: "There are cases of acute holdout difficulties where the property owner has little or no subjective value to his scrub land, but wants to prevent a mine owner from getting his ore to the railroad." But I have to admit, I find Scalia's minority opinion to be compelling, and I have little sympathy for a person who buys a mine, digs shafts, extracts ore, and only then realizes that he doesn't own a road from his mine to the railroad. If the neighbor never wanted a road on his land, the presence of the mine shouldn't change his private property rights. If the neighbor doesn't mind the road, but wants a share of mine profits, the mine owner would have been well-served to secure an easement for the roadway before digging the mine. Either way, the mine owner enters the situation with his eyes open, takes a gamble, and should not expect the state to bail him out. Or, as the Michigan Supreme Court put it a few years ago when striking down Michigan's Private Roads Act:

We note that the act does not impose a limitation on land use that benefits the community as a whole. Instead, it gives one party an interest in land the party could not otherwise obtain. By eliminating the landowner's right to exclude others from his property, the act conveys an interest in private property from one private owner to another. The taking authorized by the act appears merely to be an attempt by a private entity to use the state's powers "to acquire what it could not get through arm's length negotiations with defendants."

Tolksdorf v Griffith, 464 Mich 1, 10; 626 NW2d 163 (2001).

The professors debate about the wisdom of New London, CT urban renewal plan, discuss such things as whether "fair compensation" should include compensation for an emotional attachment, mention how the government carved out some peculiar exceptions to its property acquisition plans, and discuss the limits of when one person's assumed "better use" (for property tax purposes) should trump another person's property rights. But at the end of the day, I think Scalia (and Sandefur) have it right; in Sandefur's words, "Prior substantive due process decisions took it for granted that, since it was not legitimate for an individual to steal property, so it was not legitimate for a group of people to order the state to steal property on their behalf."

Today's Washington Post assumes a different philosophy:

The takings clause was meant less to restrain government than to ensure that it pays fairly when it infringes upon private property. And while the public-use requirements forbid land seizures where no conceivable public purpose exists, that is not the case here. New London may have proceeded in a bullheaded fashion, and ideally voters can evict officeholders who behave that way. But New London is unquestionably a distressed city in need of economic development, and federal courts shouldn't be second-guessing the city's determination of how best to accomplish that very public goal.

I disagree that the existence of a "conceivable" public use should transform a governmental taking into a public use. But then, I'm going to be spending part of the day driving past an ugly cement reminder of a "conceivable" public use gang aft agley.

Office-Based Treatment for Opiate Addiction

With abuse of prescription opiates and opioids at record levels, it seems obvious that a lot of doctors are a part of the problem. However, very few seem willing to be part of the solution.

Anniversary

Happy Anniversary, Honey. It's been a great year.

Gay Marriage

Over at Crime and Federalism, Norm Pattis has an interesting post on gay marriage.

Dear K-Mart

Dear Customer Service,

On February 4, I was at the Oak Park, Michigan branch of the Secretary of State Office. Due to the extraordinary wait, my wife left to pick up a few items at K-Mart (Store #3730 on Greenfield Road).

After she made her purchases, on her way out the door, a security guard rather brusquely demanded to look at her receipt and to look through her bag. (He did not make similar demands, for the receipt or for a search of the bag, to the customer who left before her, or the customer who left after her.) She permitted him to look, and as he rummaged through her purchases she joked, "If you wanted my phone number, all you had to do is ask." Apparently he took umbrage at her humor.

As she left the store, she was passed by a family which was also leaving, and the door security alarm went off. The security guard stopped my wife by grabbing her arm, and demanded "Was that you?" He started to rummage through her bag again. His attitude was belligerent.

The Secretary of State's office has a "take a number" system. My wife had accidentally taken the paper slip with our number with her to the store. As it was getting close to our number, I walked over toward K-Mart to see if she was coming back. Since I didn't see her, I phoned her on her cellular phone. As soon as the security guard heard her talk to me on the phone, and saw me outside through the window, his attitude immediately changed, he started stuffing her items back in the bag, and he permitted her to leave.

I have sympathy for your efforts to reduce "inventory shrinkage", or whatever the preferred term is these days for losses due to shoplifting. However, that does not give your security guards any right to be belligerent, particularly toward honest customers. Nor does it give him the right to harass female customers until the moment it becomes clear he might be confronted by their spouse.

Had the security guard sincerely thought my wife had set off the door alarm, he could easily have reset the alarm and allowed her to try to leave. She can't work magic - if she had a sensor on her person, the alarm would have gone off again. Further, my wife had only purchased three or four items - which the security guard had already reviewed the first time.

Perhaps he was trying to "teach her a lesson" for joking with him. I can only speculate as to his motive. I do know that his conduct was entirely unprofessional, inappropriate and unnecessary. If it was consistent with your company's security policies, those policies need to be revised.

Sincerely,

Aaron Larson

Double Standards

Susan Estrich presents her opinion on the double standard our society applies to statutory rape cases involving boys.

Return of the Village People

When The Village People sang, "They want you as a new recruit", did they have this in mind?

Guess Who's Coming To Dinner?

David Brooks announced yesterday that people are going to get tired of our nation's political leaders, and something new will happen:

Before too long, some new sort of leader is going to arise, especially if we fail to reform Social Security this year. He's going to rail against a country that cannot control its appetites. He's going to rail against Republicans who promise to be virtuous - but not just yet. He's going to slam Democrats who loudly jeer at Republican deficits but whose own entitlement proposals would make the situation twice as bad. He's going to crusade against the interest groups who are so ferocious on behalf of their members that they sacrifice the future.

That's right, folks. Before too long a "new" leader will arise, and will channel all of Ronald Reagan's sound bites from 1980.

And it goes on....

The story is now that they swapped out my hard drive for a new, fresh, blank one. Um... thanks?

Actually, though, if that is the case... are they now seriously claiming they had to swap out my hard drive twice within twelve hours?

Worse Than I Thought

Although a "restore to original configuration" request, to the best of my knowledge, cannot be made through the web interface, and I unquestionably requested the reboot service, an web search reveals that my hosting company reportedly did this to another of their customers....

A reboot request was submitted.

They mistook "reboot" for "reconfigure", wiped the server and restored it to its original configuration.

[Insert Gnashing of Teeth Here]

Crazy Week....

Okay, crazy madcap week. So, of course, it is capped off with an ultimate customer service nightmare.

Apparently there was a problem with my virtual server, upon which I host several websites, and after a server crash... the hosting company "fixed" the problem by restoring the server to its original configuration.

Did you follow that?

That is, they didn't notify me before they decided to take this route. They didn't make the old hard drive available for me to retrieve data. They didn't notify me afterward - I had the pleasure of logging into my server and finding that... even the passwords had reverted to the original settings.

So I started to restore the server, and it went down. So I requested a reboot and....

They did the same thing.

Gotta love it.

Completely Unrelated Editorials

I was reading the London Guardian today, and came across an article about poverty in Scotland. The article quotes a young professor who emerged from Scotland's poverty:

He said there were two kinds of people who decried the focus on poverty in Scotland in writing and culture: 'The first is the arrogant snob, who has never known poverty and wants to snuff out anything that doesn't conform to their own experience of comfort and security; the second is the first-generation professional who thinks, "If I can do it, anyone can." It would be like me saying, "Right kids, throw away the bottle of Buckfast and get doing the PhD." Life's just not like that. The reality is that there is massive poverty in this city. You'd either need to be a liar or a well-paid media person to deny that.'

Which brings me to the completely unrelated editorial by George Will, in which he advances his substitution of "euro-" and "European" as epithets, for his similar past use of "liberal".

California, where per capita spending in constant dollars has more than tripled in five decades, is burdened by the sort of growth-inhibiting government that has plagued some American cities. Writing in the Weekly Standard, Joel Kotkin, author of the forthcoming book "The City: A Global History," distinguishes between America's "aspirational" cities and "Euro-American" cities. The former -- e.g., Atlanta; Boise, Idaho; Charlotte; Fort Myers and Orlando, Fla.; Las Vegas and Reno, Nev.; Phoenix; and Salt Lake City -- are thriving. The latter -- e.g., Boston, Chicago, New York, Philadelphia and San Francisco -- are experiencing social fragmentation as government's clients fight over dwindling scarce resources, and many of these cities are losing population, often to the aspirational cities.

Euro-American cities, where teachers unions prevent improvements in public education and "municipal welfare states" keep living costs high, increasingly attract affluent and often childless liberals: Seattle, Kotkin says, "has roughly the same population it did in 1960, but barely half as many children." Euro-American cities have, in varying degrees, the malady known in the 1970s as "the British disease," when Britain was called, as Turkey once was, "the sick man of Europe."

Now tell me that there are no substantive differences between cities like Chicago, New York, and Boston, as opposed to Boise, Atlanta, and Fort Myers. Tell me that the demographics are the same. Tell me that the history is analogous. Tell me that they have similar populations of welfare recipients. Tell me that they have similar cultural opportunity. Oh... you can't?

Will's thesis, derived from an upcoming book, appears to be that childless liberals are attracted to cities which are wasteful and dying, whereas everybody else is flocking to cultural meccas like Boise and Salt Lake City - what Will describes as "aspirational" cities. My guess is that, were Will to actually think about his assertion, he would come to realize that there is a lot more at play - and, for example, would recognize the many reasons he lives in a Maryland suburb a stone's throw from Euro-Washington DC, and not in a suburb of Boise. (He might also take the time to count the children in his house, and consider where other rich, childless conservatives choose to live. Is someone like Will more likely to buy an apartment in Salt Lake City, or in, say, Trump Tower? Do you suppose that Will is more likely to vacation in London, Paris, or Charlotte?) It is also interesting to note that Will's lists exclude cities which fit his notions of "European" (e.g., Detroit), because their inclusion destroys his thesis that such cities attract childless liberals.

It is interesting to note that Will presents no solutions to the problems he perceives in this column, but if his notions of what is "European" and his past columns are to be taken as a guide he presumably believes we can make cities like Chicago and New York less "European" by slashing welfare benefits, abolishing public unions, and curbing government expansion (um... is government actually expanding in the cities at issue?) This isn't to say that we can't (or shouldn't) learn the lessons of an overextended welfare state, or of extending so many amenities to workers that our industries are no longer competitive. But those aren't really the lessons Will wants us to draw.

One might also take note that Will is both sneering at "European" welfare and government, while tacitly endorsing "European" social mores. Ah - but he rebrands those as "libertarian", thereby distinguishing them (albeit artificially) from his new favorite epithet:

[Schwarzenegger's] libertarianism extends beyond the theory of political economy he encountered as a young man in the writings of Milton Friedman and beyond the exuberant entrepreneurialism of his life, to social issues. He favors abortion rights, does not care if any state's voters endorse gay marriage and has "no use" for a constitutional amendment barring that.

Well, if that's the way Will feels, no wonder he feels more at home living (and presumably vacationing) in the cities he loves to hate.

"There Is No Trust"? What a way to put it.

President Bush spoke yesterday on the Social Security Trust Fund:

Some in our country think that Social Security is a trust fund -- in other words, there's a pile of money being accumulated. That's just simply not true. The money -- payroll taxes going into the Social Security are spent. They're spent on benefits and they're spent on government programs. There is no trust.

While it is tempting, in a sense, to get into a discussion about what should happen to a trustee who tells the beneficiaries of a trust, "Oops - I spent your trust fund", it is probably sufficient to instead reference a recent post on honesty.

"Cut My Benefits"

In today's Post, Robert Samuelson makes the case for transforming Social Security (and Medicaid) into at least partially means-tested programs:

We ought to nudge these programs back toward their original purpose as safety nets -- and not retirement subsidies. When the ratio of workers to retirees was high, we could afford to blur the two roles. In 1960 there were five workers for every retiree. But now there are three, and the projection for 2030 is two. The consequences of subsidizing retirement are increasingly undesirable. It penalizes the young, threatens the economy with higher taxes and drains capable workers from the labor force.

But in his giving GW Bush limited credit for "indirectly" broaching this issue, Samuelson overlooks the fundamental point of Bush's reforms - which are not to means test Social Security, so as to ensure that the neediest of the elderly are supported, even as cuts to the wealthier (and wealthiest) of the elderly are implemented to avoid the necessity of a tax increase.

The working poor would ultimately be hit the hardest by Bush's "reforms", as they would have the smallest "private accounts" while qualifying for the lowest retirement benefits (assuming any are still provided). And while the changes Bush proposes would also affect retirees of substantial means, Bush (like Samuelson) anticipates that they can take care of themselves. That may provide some overlap between the means-testing Samuelson proposes and the privatization Bush proposes, but there's no small difference between maintaining and undermining Social Security as a safety net.

Take An Interesting Idea...

Take an interesting (albeit dubious) idea, hamstring it, tie it to a counter-productive proposal, and you have a David "Babbling" Brooks editorial.

The notion of having the government set up funds for babies upon birth is interesting, although the only specific proposal Brooks mentions is odd:

Under one version of KidSave, the government would open tax-deferred savings accounts for each American child, making a $1,000 deposit at birth, and $500 deposits in each of the next five years. That money could be invested in a limited number of mutual funds, but it couldn't be withdrawn until retirement.

Why the deposits over five years, instead of a single deposit at birth? Who makes the decision over investment in the "limited number of mutual funds" - and can the child revisit that decision (without penalty) when he or she reaches adulthood? And, if the money cannot be withdrawn until retirement, how is this fundamentally different from Social Security? That is to say, Social Security roughly translates into "money you get when you retire", as does this. Watching a pool of "my money" grow is not much of an object lesson if I didn't earn it, can't invest it in the manner of my choosing, and can't actually spend it... (Or is it that we expect these people to come to some sudden realization about the importance of saving and investment when they retire?) And, if in keeping with Republican "it's your money / ownership society" policies, beyond the restrictions on how the money is invested, retirees are forced to purchase annuities with the funds when they retire, doesn't it become just another form of Social Security or just another iteration of GW's proposed "private accounts" Brooks believes to be a dead letter? These are what Brooks deems to be "the psychological benefits of ownership"? As evidenced by what? The direction in which Brooks' knee jerks? The fact that rich kids never squander their trust funds?

But for Brooks, hamstringing an interesting idea isn't enough. He also proposes,

We could start by indexing Social Security benefits to prices, not wages, so the system wouldn't go broke. Then we could give everybody under a certain age KidSave accounts. This money could either supplement the reduced Social Security benefits, or individuals could divert some of their payroll taxes into their KidSave accounts, trading guaranteed benefits for more ownership.

So we are going to "start" by phasing out Social Security by tying it to price inflation instead of wage inflation? (I don't think anybody with a whit of knowledge about that particular proposal denies that the change Brooks mentions in passing would, over time, be tantamount to elimination of Social Security benefits. Had it been implemented in the 40's, the present maximum Social Security benefit would be what? Something like $5,000 or $6,000?)

How about this? Let me decide how I invest my own money, and stop lying to me about your intention to functionally eliminate Social Security.

And does Brooks really mean this:

And let me commit an act of heresy: it would be smart for Republicans to forgo making the Bush tax cuts permanent in exchange for these kinds of accounts. The Bush cuts are going to be repealed by the next Democratic president anyway, but these accounts, once created, would be forever.

I mean, he believes that the President can implement and eliminate tax cuts, without even bothering to consult the Republican House and Senate? (Or does he anticipate that the blowback from Bush's present policies will be so severe that the Republicans will soon lose their House and Senate majorities along with the White House?)

Rhetorical questions, obviously. He anticipates that the Republicans will do away with their own tax cuts, and blame it on the poor Democrat who is elected to clean up yet another fiscal nightmare created under a fiscally irresponsible Republican president.

Reliance On Lawsuits

A few months ago, David von Drehle wrote a piece in the Washington Post, raising some good points about the tendency of certain factions on the political left to rely upon litigation to achieve what they cannot necessarily accomplish at the ballot box.

Half a century after the triumph of Brown v. Board of Education, the landmark desegregation case, reliance on constitutional lawsuits to achieve policy goals has become a wasting addiction among American progressives. The recent battle over gay marriage, in courts and at the ballot box, demonstrates that liberals today are more adept at persuading like-minded judges than they are at persuading undecided voters. Over the past 40 years, while progressives were winning dozens of controversial court cases on issues ranging from abortion to school prayer, the Democratic Party failed nine times out of 10 to win a majority of the votes for president.

Today, being right on top of things, in the National Review Online, Neil Gorsuch takes note of von Drehle's column:

There's no doubt that constitutional lawsuits have secured critical civil-right victories, with the desegregation cases culminating in Brown v. Board of Education topping the list. But rather than use the judiciary for extraordinary cases, von Drehle recognizes that American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.

Of course, there is a counter-point in relation to groups such as the ACLU, who use litigation not to win popularity contests, and certainly don't hesitate to litigate issues where popular opinion is against their client (many of the ACLU's members, for example, opposed the right of the KKK to march through Skokie, Illinois, and many resigned their memberships over its choice of client), but because there is literally no other means of protecting those constitutional interests. And not even the NRO is willing to attack liberals and progressives for advancing the civil rights movement through litigation - although their ideological peers at the time were not so taciturn on the issue.

But the more interesting aspect of this, at least from where I stand, is the complete absense of any mention of the use of litigation by the political right to advance its own agenda. The army of lawyers, for example, the Republicans had stationed across the country on November 2, ready to scurry into court to litigation election issues. Which, of course, would have been a repeat of the lawsuit filed in the name of George W. Bush, to stop Florida's courts from applying their own interpretation of their own constitution and election law to an election recount. But the better examples probably come in "property rights" cases, where the right has used litigation to chisel away at state and local zoning ordinances, environmental protections, and land use regulation. Or the near-invisible litigation that chisels away at the rights and protections of individuals, often in the name of "originalism" or "strict construction" of a statute, to effect changes in the law that a Republican legislature would be loathe to present as an election issue.

I personally believe both the political right and left should spend less time going to court, a lot less time trying to mislead the public or misrepresent the other side's agenda, and that their political representatives should spend a lot less time getting their palms greased by lobbyists. But... what are the odds?

Unintelligent Design?

In today's Times, Michael Behe, a leading proponent of "intelligent design" was given the opportunity to beg the question of the theological aspects of his theories. What I mean by that is that, while the author proposes a designer, he also pretends that his theory is separate from theology... presumably because he provides no information about the "designer" and does not speculate as to who the "designer" might (or might not) be. Beyond that rather patent omission, the author asserts, "Rather, the contemporary argument for intelligent design is based on physical evidence and a straightforward application of logic." Or, more accurately, not. Starting at the beginning:

The first claim is uncontroversial: we can often recognize the effects of design in nature. For example, unintelligent physical forces like plate tectonics and erosion seem quite sufficient to account for the origin of the Rocky Mountains. Yet they are not enough to explain Mount Rushmore.

Of course, we know who is responsible for Mount Rushmore, but even someone who had never heard of the monument could recognize it as designed.

Except this theory is neither new, nor is it compelling. It was, what, some eight centuries ago that philosophers suggested that order in the universe evidenced the existence of a God? The difference between "now" and "then" is that the larger forces of nature which create the apparent order in the universe are accepted by Behe and are acknowledged as "unintelligent physical forces". Yet this is a distinction without a difference - Behe is repeating the error of observing something that appears ordered and designed and, because he does not know (and refuses to acknowledge) "unintelligent physical forces" which could account for the same phenomenon, assuming intelligent design.

Which leads to the second claim of the intelligent design argument: the physical marks of design are visible in aspects of biology. This is uncontroversial, too. The 18th-century clergyman William Paley likened living things to a watch, arguing that the workings of both point to intelligent design. Modern Darwinists disagree with Paley that the perceived design is real, but they do agree that life overwhelms us with the appearance of design.

That's not really a second claim, so much as a variant of the first. It has a simplistic appeal - if something looks like it might have been designed, it is reasonable to assume a designer. But, as Behe himself suggests in asserting "unintelligent physical forces"as the force behind what philosophers once viewed as evidence of "design", this claim begs the question.

The next claim in the argument for design is that we have no good explanation for the foundation of life that doesn't involve intelligence. Here is where thoughtful people part company. Darwinists assert that their theory can explain the appearance of design in life as the result of random mutation and natural selection acting over immense stretches of time. Some scientists, however, think the Darwinists' confidence is unjustified. They note that although natural selection can explain some aspects of biology, there are no research studies indicating that Darwinian processes can make molecular machines of the complexity we find in the cell.

Scientists skeptical of Darwinian claims include many who have no truck with ideas of intelligent design, like those who advocate an idea called complexity theory, which envisions life self-organizing in roughly the same way that a hurricane does, and ones who think organisms in some sense can design themselves.

Here, again, there is nothing that lends support to "intelligent design". If one were to assert, "Many scientists believe the Earth is flat. I think it is shaped like a cube. As there are many scientists who disagree with the 'Flat Earth' theory, including some who think it is hexagonal and some who believe it is a dodecahedron, my theory is valid," the illogic would be patent. (I don't mean to belittle the two alternative theories Behe mentions - my analogy is to his effort to, through simplistic presentation, implicitly suggest that his own speculations are at least equal.)

Beyond the illogic, it also is not correct from a scientific perspective. There is extensive scientific analysis - which, unlike "intelligent design", has passed peer review - which presents observations and theories of evolution at the subcellular level. It is possible that Behe does not understand that body of science, or that he disagrees with the concusions of the scientists behind it, but it is fundamentally dishonest for him to pretend that it does not exist. The fact that Darwinism itself has evolved from its rawest, 19th Century form is no surprise. But subsequent additional scientific research, knowledge, and theories do not mean that "anything goes" or "my speculation is equal to (or better than) their science".

The fourth claim in the design argument is also controversial: in the absence of any convincing non-design explanation, we are justified in thinking that real intelligent design was involved in life. To evaluate this claim, it's important to keep in mind that it is the profound appearance of design in life that everyone is laboring to explain, not the appearance of natural selection or the appearance of self-organization.

A circular and self-serving argument: If I don't find other theories more compelling than my own, I should not only be able to adhere to my opinion but should be able to advance it as equal or superior to its "competitors". And, at its core, this isn't really different from the earlier points that, if something looks like it was designed (like the "face" some used to imagine on the surface of Mars) then it is reasonable to assume that it was designed. However Behe rationalizes the manner in which he puts these four "claims" together, he's remarkable in his circularity.

But it seems to me that the principle failing of Behe's theory is one he chooses not to address: His refusal to identify the designer, or to apply his own "claims" to the notion of an intelligent designer. Why? Presumably because he knows that the concept of God that is embraced by most of those who purchase his book falls apart when his four "claims" are applied to its existence. After all, if God is an all-seeing, all-knowing, all-powerful being, capable of simultaneously being everywhere and anywhere, and credited with knowledge of the smallest act of man, and with designing life and matter right down to the subatomic level, God is the most complex being ever conceived. Why isn't Behe demanding that theologians explain, "Who designed God"?

Defamation

While the United States has defamation laws which make it very difficult to hold a media company liable for publishing false information about a public figure, many European nations do not. The Wall Street Journal, faced with that reality in England, has been working to create a "public interest" exception to British libel laws, under which "newspapers could print untrue and defamatory information if they could prove it was in the public interest and was the product of responsible journalism.". The Journal's lawyer described the situation:

"There is a flaw in the qualified privilege defence that is highlighted where you have five anonymous sources that cannot come to court. It is obviously a major concern for people who want to see a free flow of information."

This creates an interesting tension between "protecting an anonymous source" and avoiding liability. While there is certainly something to the argument that there is a "chilling effect" if you make a newspaper reveal its anonymous sources in order to defeat a libel action, there is also something to the argument that if a newspaper chooses to premise a story entirely upon anonymous sources who will refuse to come forward if the story proves false, the newspaper should be willing to accept the consequence of that decision. A cost of doing business (in that manner).

Health Insurance

Quite a bit of attention is being paid to what was something of an open secret:

Illness and medical bills contributed to roughly half the personal bankruptcy filings in 2001, affecting as many as 2.2 million Americans, a new Harvard study says.

More than 75 percent of the filers had insurance, but many of them lost coverage during their illness, the research showed.

There are some easy solutions to this, at least in relation to people who are initially insured, including requiring that health insurance carriers build into their premiums a form of 'disability coverage' which will satisfy a worker's health insurance premium while the worker is disabled due to illness. But a little bit of honesty would be nice for a change - the biggest reason this is an issue is not because insuring every American would be too expensive, but because, for insurance companies and the politicians they own, rent, or lease, the present system is too profitable. (The richest nation in the world "can't afford" national health care, while many poor nations can and do? Yeah, right.)

The Scheduling of Change (And the "Raw Deal")

I have previously observed the tendency of the Bush II Administration (which is far from unique in this respect) to put off major policy initiatives until "after the next election". Be that putting off the Medicare Prescription Plan until 2005, with parts not to be implemented until 2010, or his promises of a Palestinian state by 2005. Putting things off into the future provides the dual benefit that the President doesn't have to accept any responsibility for the pain caused by his policies, particularly when they turn out to be bad, and if he (or his party) walks away from the policy... well, memories are short, right?

So it should come as no surprise that, even if Bush's plans for the privateering of Social Security are passed,

In a nod to lawmakers worried about the budget deficit, the White House will also hold down the initial cost of the Social Security plan by phasing it in over three years, beginning in 2009. The administration official said funding the individual accounts would cost $754 billion through 2015. But because of the phase-in, the personal-accounts system would not be fully effective until 2011.

There's nothing like a crisis of such urgency that... any policy change can be put off until after the next Presidential election. (Bush may not be running in 2008, but his party obviously doesn't want this dog nipping his successor candidate's heels.)

Oh - and your privateered Social Security Account? You would not be able to invest "your money" in the manner of your choosing - "The federal government would administer accounts." You know, because Bush "trusts you" with everything (except the facts and your money). And his promise that the privateering would enable you to leave "your money" to your children was also, apparently, false, given that "Participants would be required to buy annuities to ensure steady payments out of the accounts over a lifetime." (If you are paid out "over a lifetime", whatever that lifetime is, any ostensibly residual value of an annuity is typically lost at the end of that "lifetime", be it thirty years or thirty days.) Oh yes - and even with those qualifications it isn't really "your money" after all - because the government will loot "your account" to subsidize the Social Security program as a whole.

If a worker sets aside $1,000 a year for 40 years, and earns 4 percent annually on investments, the account would grow to $99,800 in today's dollars, but the government would keep $78,700 -- or about 80 percent of the account. The remainder, $21,100, would be the worker's.

If implementing Social Security was part of "The New Deal", perhaps this should be dubbed (dubyad?) "The Raw Deal".

Fighting SPAM

The New York Times has noticed that SPAM is a problem, even though we have federal legislation telling direct marketers that they CAN-SPAM. The article notes the opinion of some that:

"Can Spam legalized spamming itself," said Steve Linford, the founder of the Spamhaus Project, a London organization that is one of the leading groups intent on eliminating junk e-mail. And in making spam legal, he said, the new rules also invited flouting by those intent on being outlaws.

The article spends a lot of time describing how various players in the anti-SPAM game are wringing their hands, and suggesting that the problem is futile.

"The more effective the filtering technology," Ms. Mitchell said, "the more spam they have to send to get the same dollar rate of return."

Those rates of return can be staggeringly high (and the costs of entry into the market relatively low).

A spammer can often expect to receive anywhere from a 25 percent to a 50 percent commission on any sales of a product that result from a spam campaign, according to a calculus developed by Richi Jennings, an Internet security analyst with Ferris Research, a technology industry consulting firm.

Even if only 2,000 of 200 million recipients of a spam campaign - a single day's response rate for some spammers - actually go to a merchant's Web site to purchase a $50 bottle of an herbal supplement, a spammer working at a 25 percent commission will take in $25,000. If a spammer makes use of anonymous virus-enslaved computers to spread the campaign, expenses like bandwidth payments to Internet service providers are low - as is the likelihood of anyone's tracking down who pushed the "send" button.

Okay, so here's an idea which I would have though would be obvious: the commissions don't come from the ether, so if you can't go after the spammer go after the commission. The "spam-friendly merchants" described in the article certainly do exist - but even they have nominal "no spamming" rules for their affiliates (even as they roll in the dough from SPAM-generated sales and refuse to acknowledge complaints from victims of their affiliates' spamming). Rather than the impotent status quo:

The new federal law does give prosecutors some leverage to go after the merchants - but it must be proved that they knew, or should have known, that their wares were being fed into the illegal spam chain.

Have an agency such as the FTC maintain a list of IP numbers which, due to a history of bad conduct, cannot be approved for commercial email campaigns. Require vendors to mandate that affiliates register in advance of any email campaign the IP number from which their email campaign will originate, to deny permission to affiliates who want to use a banned IP, and to deny commissions to affiliates who fail to register their email campaigns. Give prosecutors the right to seize commissions payable to those whose affiliate ID's are associated with mass email campaigns which violate the law, and require that the affiliates petition for release of the funds. (I'm not advocating forfeiture, or reversal of the burden of proof - Once the affiliate identifies himself and appears in the U.S. Court, if the prosecutor cannot demonstrate that the affiliate did indeed engage in spamming, the funds should be released upon proper petition, if a prosecutor does not move forward within a specified period of time to demonstrate wrongful conduct. But I suspect that true spammers will be reluctant to identify themselves to a court and to subject themselves to its jurisdiction. And a history of claims of "victimization" should be admissible as evidence, consistent with FRE 404(b).)

If you want to move past SPAM email, require that vendors refuse to grant affilate status to websites hosted at IP numbers associated with spamming activity, and require that they terminate affiliates whose websites move to banned hosts.

Law School

Over at The Volokh Conspiracy, Todd Zywicki has an interesting post on some of the foibles of law school scholarship.

Without rehashing the whole peer review v. non-peer review debate yet again, to my mind one benefit of peer review is that it tends to prevent errors of omission--i.e., completely ignoring a relevant article or argument that is related to the subject under examination. This means that old ideas can be passed off as new--and often, not even intentionally, just unintentionally because of a lack of knowledge of what came before. Of course, the process of graduate school training, including mandatory courses and field exams also goes a long way to insuring that you have a basic grasp of the foundational material. Nothing like that exists in law, that I can see.

Perhaps the problem's a bit deeper.

Perhaps the root of the problem is that law schools transformed themselves from the latter part of an undergraduate education (where you earned your L.L.B., or "Bachelor of Laws") into graduate institutions (where you earn your J.D., or "Juris Doctor") without actually making a significant change to anything but the writing on the diploma. While the evolution of law school makes the teaching of law something quite apart from the role of a professor who never teaches graduate school, and instead exclusively teaches undergraduate classes, a strong argument can be made that something was lost in the manner of transformation of the basic law degree into a graduate degree, and that loss continues to have ramifications in the nature and quality of legal scholarship.

Granted (I cynically add), one could argue that the biggest difference is that a humanities professor at any other elite graduate school has to master his or her field of study before composing an article that will be sufficiently novel to merit publication in a prominent, peer reviewed journal, usually to be read by few, understood by fewer, and of value to (almost?) no one. But, I guess, such is the cost of making the publication of articles a critical element of staying on the tenure track.

Excuse Me?

They say that misery loves company, but in reading Jack Shafer's comment,

Even a stopped clock tells the right time twice a day.

I find myself in the position of having to protest that I am not yet so miserable as to want that company.

Seriously, though, I picked the name of this weblog as a bit of self-parody - no matter how I come across at times, I don't take myself that seriously - but at times like this I feel compelled to point out that a stopped clock is not right twice a day. It is wrong all of the time. The fact that the incorrect information it conveys is, on a recurring basis, consistent with the facts does not change the fact that the information frozen on its face is entirely disconnected from reality. And such is Judith Miller.