You Know What We Need? A Bigger Trial Tax!

The "trial tax" is a term given by lawyers to the tendency of courts to impose higher sentences on defendants who are convicted after trial as compared to those who plead guilty. There are many rationalizations for the trial tax - the guy who pleads guilty shows remorse, the guy who presents a trumped up defense or gives false or misleading testimony is wasting the time and resources of the state, etc. But there is an inherent tension between a defendant's right to be presumed guilty and increasing the defendant's penalty if he makes the state prove its case. The worst aspect of the trial tax is not that a guilty defendant gets a longer sentence, but that an innocent defendant may be forced to choose between a light sentence or probation if he accepts a guilty plea, or going to prison if he's convicted.

Deborah Orr is outraged that some defendants not only present false defenses at trial, but can display the same type of sociopathy or sadism they demonstrate in their crimes as part of their defense. She's from England, so she's focusing on some of the outrageous accusations the murderer of a thirteen-year-old has directed at some of the witnesses, including the child's father. But the same thing happens here. Orr's solution seems to lie somewhere between imposing a severe trial tax and (although she claims otherwise) weakening the presumption of innocence:

I am not suggesting changes in the law, or for an eroding of the rights of defendants in court. I am suggesting a change of emphasis in sentencing, whereby defendants no longer have nothing to lose from telling lies on a slender punt and absolutely everything to gain if their lies succeed. Clarke's proposed reforms invoked the carrot. Their flaw was that even a person who had no chance of being found not guilty would be further rewarded for pleading guilty. He needs to take another look at his ideas, and invert them. He needs to invoke the stick. Plead not guilty, and risk exposure as a vexatious liar, if you dare. No parole, no privileges, no quarter, just a straight, cold, maximum sentence, if you really think that you want to mess everyone around.

But the thing is, most defendants are guilty and the entire concept of plea bargaining centers around a quid pro quo - the guilty defendant does benefit from pleading guilty. At risk of projecting the U.S. system onto Britain, I expect that the child murderer whose antics so offend Orr is in the same position as a child murderer in a typical U.S. court - he is looking at the same outcome whether he pleads guilty or not guilty, and thus has nothing to lose. Will you inspire him to act more ethically in his defense if you threaten him with serving "life plus ten years" in prison as opposed to simply "life"? Obviously not.

But you can rest assured that the prosecutor who is looking at a difficult case will be warning the defendant, "If you do not take this plea bargain, after you're convicted I will be asking the court to find that you lied, and to give you a sentence with 'No parole, no privileges, no quarter, just a straight, cold, maximum sentence'". Such an outcome would come pretty close to a "gimme", given that the defendant's conviction would inevitably mean that his defense was not believed.

Orr's column reflects a layperson's frustration with the rules of evidence, specifically hearsay rules, and a remarkable lack of insight into how those rules work. She describes how, many years ago, her four-year-old let a woman into their home and, when the woman was prosecuted for burglary, she was told that she could not repeat her child's statements to her on the basis that they were hearsay:

The burglar had knocked on our door, and been let in by my four-year-old son, while I was feeding and settling his three-month-old brother. I knew nothing of this until I found my son sitting on the front doorstep, with the door open. He told me that he had answered the door – which at that time had clear glass panels – to "the lady in the red coat". Where was this lady now? She had gone upstairs, "to see Dad"....

I was amazed when my burglar entered a "not guilty" plea. I was even more amazed when, a few minutes before the trial began, six months after the incident, the Crown Prosecution Service told me I could not mention anything my son had said because it was hearsay evidence. That ripped my truthful narrative to shreds. Thus restricted, I was just not able to credibly explain what had happened.

In simple terms, a hearsay statement is an out-of-court statement being offered as proof of the matter asserted. In our adversarial system each side is supposed to have the opportunity to challenge the other side's evidence and cross-examine witnesses, an ability that is lost if hearsay evidence is allowed without discrimination - but there are many exceptions and exclusions to the hearsay rule, such that hearsay statements often do end up introduced into evidence, and sometimes the statement will be admitted for reasons unrelated to its truth. I expect that most lawyers will infer that the defense brought a motion in limine asking that the child's statements be excluded as hearsay, anticipating that the child would not be presented as a witness, and that at the time the trial started the court had put limits on whether and when the hearsay statements could be introduced. Orr continues,

The defence line was that this woman had found my son in the street and had been searching for me in the house, to deliver him to safety. As a mother herself, she had been appalled to find him wandering in the road, in danger.

But her good deed had been totally misread, and had landed her in this amazingly terrible mess. Her brief went further in her summing up. Citing the James Bulger case, she contended that people such as the defendant were afraid to intervene and save children because people such as me distorted their kind motives so grossly. People such as me, she argued, were responsible for the "walk on by" society. People such as me, she spat out contemptuously, would rather see an innocent woman go to prison than admit that they only saw the bad in people.

The trial took five days, about 20 minutes of which were taken up by the jury's deliberations. Largely, I think, because I had strongly insisted on presenting the hearsay evidence, despite the consequences and against the advice of the CPS,¹ and the jury had believed me.

What nonsense. Had Orr presented testimony in violation of the court's ruling she would have been admonished by the court and, at a minimum, that portion of her testimony would have been stricken from the record with the jury admonished to give it no weight. What happened was either that under the court's pretrial ruling the defendant's use of this particular defense opened the door to the introduction of the child's statement, or that the prosecutor successfully convinced the court to reverse its prior ruling based upon the content of the defense case. This is not an instance of a witness bravely staring down the court and forcing inadmissible evidence into the record, resulting in the defendant's conviction; does Orr truly believe that's what happened?

Here's another little secret of the system: prosecution witnesses often lie in court, and rarely face a consequence for lying. Would Orr balance out her trial tax by imposing severe consequences on prosecutors and prosecution witnesses whose arguments and testimony are rejected by the jury, or are later proved to be reckless, deliberately misleading, or presented with full knowledge of their falsity? As she suggests for defendants, should willful falsity be effectively presumed by a jury's rejection of the prosecution's case?

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1. I suspect that advice was along the lines of, "If you introduce the child's statements the defense may try to call him as a witness." But ultimately that, also, wouldn't have been Orr's call.

All We Have to Do Is Change Their Minds....

I was listening to the radio yesterday and discovered, of all things, that the Israeli defense establishment employs taxi drivers:

Well, Neal, I by accident was in Israel on September 11. I was there covering the latest Israeli-Palestinian fighting. And I actually learned the most important lesson on the morning of September 12, that has really guided my thinking ever since.

That morning, I called friends of mine in the Israeli defense establishment and said you guys have dealt with suicide bombing a lot. I really want to know everything you've learned from that experience.

And they brought a group together, and we had a conversation very early on the morning of September 12, and what they said was - this is not verbatim, but the basic message was this. They said: Tom, we're really good. Our intel is really good. We can get Khalid(ph) before he blows up a pizza parlor. We can get, you know, Marwan(ph) before he blows up a disco. But you know what? Mohammed will get through.

Mohammed will get through unless the village says no. It takes a village. And that has guided my thinking ever since. Until and unless the Arab Muslim community fundamentally delegitimizes these kinds of attacks, they're not going to go away.

Okay, so the "group" assembled by Friedman's "friends ... in the Israeli defense establishment" probably wasn't comprised of taxi drivers but, as with Friedman's very long series of columns that relied upon statements attributed to taxi driver's as a source of common sense street wisdom, it's no surprise that the lesson Friedman claims to have gleaned from the group happens to be the exact argument Friedman was hoping to make. Although he dresses up his anecdote, it boils down to a truism: Intelligence is imperfect so the only way you can be sure that you'll stop terrorist acts is to convince all terrorists to refrain from committing such acts. Which is also to say, it's not gonna happen. With the best education, economic opportunity and individual freedom you'll still have people who are radicalized along the lines of Tim McVeigh, Baruch Goldstein and (with the complicating factor of mental illness) Ted Kaczynski. Those examples should highlight something else: It's not just that you can never completely educate or convince a population not to engage in terrorist acts, you should not pretend that terrorism is unique to a particular religion or culture.

If memory serves, Friedman absorbed that lesson and responded to the group with the suggestion, "Brilliant. So if you guys end your occupation of the West Bank and withdraw most of your settlements, end your collective punishments in Gaza, come to a fair solution on Jerusalem, and allow the Palestinian people a state and some semblance of human dignity, you will not only gain the international moral high ground but you'll take an important step toward educating the Muslim world that the west is fair, reasonable, and that there's far more to gain through peaceful economic development than through acts of terror." No, wait, my memory is a bit off. Having embraced the idea that the West needed to educate the Muslim world to delegitimize terrorist attacks, Friedman gave the following explanation of how that should be accomplished:

What they [the Muslim world] needed to see was American boys and girls going house to house, from Basra to Baghdad, um and basically saying, “Which part of this sentence don’t you understand?” You don’t think, you know we care about our open society, you think this bubble fantasy, we’re just gonna to let it grow? Well, Suck. On. This.

We are fortunate to have such wise men shaping our debate on Middle East policy.

Leadership vs. Leadership Styles

When I saw a Republican "analyst" on Real Time announce that President Obama is "not a leader", I couldn't help but roll my eyes. It seems like only yesterday that Republican "analysts" were lamenting that President Obama has pushed all sorts of reforms on the nation too quickly, and had transformed our nation into some form of Kenyan socialist dystopia. With the release of a new party memo, that all gets flushed down the memory hole.

Obama's style of leadership is a fair subject for comment and criticism. I think it is fair to say the following:

1. President Obama likes compromise solutions, and likes to achieve his compromise deals behind-the-scenes. That may not be an unreasonable approach to take in these hyperpartisan times, when even the most modest suggestion (e.g., eliminating a generous tax break for luxury corporate jets) results in a Republican "leader" and negotiator throwing a tantrum and storming away from the negotiating table. But it's a form of leadership that is largely invisible to the public and, when visible, is a bit unseemly - as if there's no firm line, and that there's nothing that cannot be negotiated away for the sake of the deal.

2. President Obama does not take strong stands in favor of policies that he does not believe will be passed by Congress. This is not unreasonable, given that the Democrats in Congress have repeatedly gone out of their way to hamstring the President's agenda or to extort ridiculous concessions to support him. Also, taking a strong public stance in favor of an agenda that you cannot pass can make you look weak and cripple your ability to advance other items on your agenda. What did Bush accomplish after leading his party to failure on Social Security privatization?

3. President Obama rarely uses his access to the media to attempt to shape the public debate, and when he does take a public stand it is usually very late in the game when he's simply trying to round up the last few votes. I understand the argument that the belief that even the President can reshape public opinion is an embrace of mythology, and I also understand how the modern media will often take a clear statement and use it (or allow partisan 'guests' to use it) to cloud the debate while "objectively" failing to state the facts, but I do think that the President could do a much better job explaining both his agenda and the necessity of some of the compromises he makes.

Despite the fumbles and compromises, I am having a difficult time thinking of a President who, in my lifetime, accomplished more in his first year than Obama. If we are to think of G.W. as a "leader", let's recall that he spent his first 100 days arguing that it was unfair to expect a President to accomplish anything in his first 100 days, and was doing little more than running his approval rating into the ground before he scored his "trifecta". How much credit should I give him for ramming through tax cuts for the rich via reconciliation? If you can't get sixty U.S. Senators to vote for tax cuts for the rich, you're probably doing something wrong.

As is his wont, David Brooks is advancing the Republican line in more measured tones. He initially suggests that it is a mistake for a President to "live up to th[e] grandiose image" defined by John F. Kennedy in an "Inaugural Address that did enormous damage to the country". Brooks lectures, that Kennedy's "speech gave a generation an unrealistic, immature vision of the power of the presidency." He then pays Obama a back-handed compliment, that he has "renounced that approach" and "Far from being a heroic quasi Napoleon who runs the country from the Oval Office, Obama has been a delegator and a convener". Putting in the hat of the rank amateur armchair psychoanalyst, Brooks potificates,

All his life, Obama has worked in nonhierarchical institutions — community groups, universities, legislatures — so maybe it is natural that he has a nonhierarchical style. He tends to see issues from several vantage points at once, so maybe it is natural that he favors a process that involves negotiating and fudging between different points of view.

Still, I would never have predicted he would be this sort of leader. I thought he would get into trouble via excessive self-confidence. Obama’s actual governing style emphasizes delegation and occasional passivity. Being led by Barack Obama is like being trumpeted into battle by Miles Davis. He makes you want to sit down and discern.

You might think that, in light of his comments about Kennedy and his scorn for Presidents who tend toward grandiosity, Brooks would see that as a good thing. But when it comes to this type of column, Brooks has never been one to strive for internal consistency. Brooks expresses,

But this is who Obama is, and he’s not going to change, no matter how many liberals plead for him to start acting like Howard Dean.

When the Democrats had the opportunity to pick a leader who acted like Howard Dean, and by that I mean the opportunity to nominate Howard Dean, they picked Al Gore. I'm not sure what Brooks would take as a repudiation of his notion that the Democratic Party is yearning for somebody who acts like Howard Dean, but you might think that would be sufficient.

Brooks echoes some familiar complaints about the President:

He has not educated the country about the debt challenge. He has not laid out a plan, aside from one vague, hyperpoliticized speech. He has ceded the initiative to the Republicans, who have dominated the debate by establishing facts on the ground.

Here I have some sympathy for those who argue that the President has little ability to shape the debate. Any number of prominent Republicans have made statements about the national debt and deficit that range from misleading to outright false. They have muddied up the debate on the debt ceiling, something that is already confusing to many Americans, such that almost two thirds of Americans believe that raising the debt ceiling involves new spending. And the media, including David Brooks, has been content to let that happen. What happens when the President attempts to push back? David Brooks takes time out from whining that the President has not been pushing back to whine that the President is "hyperpartisan". There are hyperpartisans in the picture and they, like Brooks, are intent upon finding fault with everything the President does, even when it's exactly what they've asked. Take it from Brooks:

If [Obama] can overcome his aloofness and work intimately with Republicans, he may be able to avert a catastrophe and establish a model for a more realistic, collegial presidency.

Which, as we've already discussed, involves working things out in back room deals, or perhaps on the golf course with John Boehner, which is what the President is already doing.

In pretty much the same category as Brooks, we have David Frum - the man who was crying bitter tears that Republican obstructionism over healthcare reform was the party's Waterloo, until Joe Lieberman saved the day for the Republicans by insisting that Medicare expansion be removed from the final bill. Back then, he was among those crying that the President was changing too much too quickly. Now? He wants to erase that history, and reinvent Obama as a wimp:

Yet Brooks has laid out the most useful and effective critique of Barack Obama for Republicans in 2012: The job has overwhelmed the man. He’s not an alien, he’s not a radical. He’s just not the person the country needs. He’s not tough enough, he’s not imaginative enough, and he’s not determined enough.

Frum argues with some validity that the President has not put enough weight behind some of his nominations, but his criticism reflects either a lack of knowledge of U.S. history and Senate rules, or a deliberate effort to mislead his readers into believing that the only thing that has changed since FDR threatened to stack the Supreme Court is the name of the man in the White House. Frum states, again with some validity,

With unemployment at 10% and interest rates at 1%, the president got persuaded that it was debt and interest that trumped growth and jobs as Public Issue #1.

I think the picture is more complicated than Frum suggests, in that although Obama clearly underestimated what it would take to bring about a strong economic recovery, assuming the federal government had the capacity to do so, he pushed through about as strong a stimulus bill as he could muster and assumed that we would have a V-shaped recovery. Yes, between the Blue Dog faction of his own party, Republican demagoguery, and a complacent media, we are dealing with a government that's intent on cutting spending when we arguably would fare much better with another enormous stimulus bill. But I'll note that, even in criticizing the President for not getting behind such a bill, Frum conspicuously avoids admitting that to be the policy he's endorsing. Well, sort-of endorsing, because I'm pretty sure that if the President were to do as Frum suggests, Frum would instead be criticizing the President for falling back on a failed idea.

Frum's historic revisionism continues,

Back in 2008, Obama made two big promises: a tax cut for everybody earning less than $250,000 and an Afghan surge. I think it’s safe to say that Obama believed in neither of them. I’d argue that neither was important to electing him. Both were adopted for defensive reasons, to shield himself from conservative critique. In the very different circumstances of 2009, both promises rapidly showed themselves to be counter-productive. The “tax cut” promise caused Obama to direct almost one-third of his big stimulus into an individual tax rebate that no economist would have regarded as effective, for reasons explained by Milton Friedman more than 40 years ago. The Afghan surge promise was regretted by Obama himself as soon as he came into office, and he spent 9 months looking for ways to evade it.

The evidence that President Obama didn't believe that a middle class tax cut would be a good idea is what, David? Nothing? And the evidence that President Obama didn't believe in a surge in Afghanistan is that it took nine months for him to implement the surge, he's stood squarely behind it for going on two years, and based upon similar principles of humanitarian intervention recently involved the U.S. in a similar venture in Libya? Who are you going to believe, David Frum or your lying eyes.

If we were to look for the truth, we might observe that the tax cut portion of the stimulus bill was included as part of an effort to gain Republican votes. In retrospect, that was a mistake, but at the time it didn't seem obvious that the Republican Party would work so overtly to harm the nation's recovery in order to advance themselves politically, or that such an approach would work. As the 2010 elections demonstrate, it did work, and the Republicans have, if anything, since doubled down on their tactics. It's "wimpy" for the President to propose that tax cuts could help an economic recovery, to express concern about the size of the deficit and national debt, and to engage in a surge and now a slow withdrawal from Afghanistan? Then few of the Republican contenders can be described as anything but uber-wimps.

The Media's Morbid Obsessions... and Race

I agree with Kiri Blakeley's criticism that the media forms a morbid obsession with certain murder cases and gives them far more coverage than they deserve, and that the Casey Anthony trial falls into that category. But of all the reasons not to pay attention to the trial, I find this one to be weak:

But, most of all, I just find it—put it politely— selective. Virtually every month in New York City a young child is murdered either by his or her mother or the mother’s boyfriend or the adult responsible for the child—and hardly any of them ever gets the kind of national round-the-clock media coverage that Caylee Anthony’s death is receiving.

Look, I'm not going to argue that the media will find newsworthy a story from a wealthy suburb that might pass with little or no mention in an impoverished neighborhood. And yes, that often (but not always) means that the media lavishes on crimes against white families while giving scant coverage to similar crimes against minority families. But, as the very high-profile coverage of the Menendez brothers' murder trial helps illustrate, the issue there is more complicated than just race. Crimes against high-income individuals in low-crime areas are less common, tend to get more aggressive police investigation, and tend to involve defendants who for one reason or another are better able to defend against the charges. (Even if the defendant is poor, their defense team is apt to receive more funding and more access to investigators and experts by virtue of the associated publicity.)

I once watched part of a trial in which a mother was convicted of starving her child - in that case not to death, but otherwise similar in many ways to the case of Marchella Brett-Pierce. The author complains, "Katie Couric did a small piece on it for CBS News, but there was no national outcry along the lines of what Caylee Anthony is getting". But in the case I saw, Katie Couric didn't show up. And I doubt that she would have showed up even had the child died, even though the child was white. Very few child abuse cases, even those involving horrific circumstances, get media attention, and that largely extends to cases that result in death.

What the Caylee Anthony case has that the cases Blakeley describes is that it started with a missing child and, although you have to stretch the presumption of innocence pretty close to the breaking point, something of a murder mystery. A similar case that received significant media attention was that of D'Wan Sims, who disappeared in 1994. His mother, Dwanna Harris, told the police that her child had disappeared from a Michigan shopping mall. There was a search, and a review of videotape from mall entrances, with the video showing no sign of either mother or child. The case again received attention in 1999 when a tip about when the police investigated a tip about where the child's body might be found, and again in 2003 when a DNA comparison was conducted to determine if an unidentified child's body, found in Georgia, might be D'wan. It was not.

The decision was made not to prosecute the mother for such charges as child neglect, or for what appear to be some pretty atrocious lies to the police, so as not to risk foreclosing a prosecution to the fullest extent of the law if the child's body is ever located. But I have little doubt that the media will be all over the case if the mother is eventually charged with the child's murder.

When Blakeley complains that murders that involve no missing child, and no ambiguity about who committed a homicide, receive less attention than those involving both of those factors, the proper response is, "No kidding." Whether or not the story deserves to be front and center on the national news, the fact is that stories about missing children, lying parents and mysterious deaths will inevitably capture the public's attention in a manner in which an open-and-shut homicide case will not.

Ignoring the Debt Ceiling

Economix asks, "Could Obama Just Ignore the Debt Ceiling?" I would answer "yes" and that, constitutionally, that he would be on a more solid constitutional basis than he is in ignoring (or, if Boehner's analysis still holds, technically complying with) the War Powers Resolution.

The Republicans want to play a dangerous game of chicken with the economy - I expect that there are a few at the margins who argue otherwise, but the consensus of economists on the issue is that a default triggered by the failure to raise the debt ceiling would result at best in severe harm to the economy and at worst in a return to worldwide recession. Republican demands are in part likely the same old game - get promises of future cuts that will never come to fruition in order to pound their chests at Tea Party rallies, even if they will later vote for budgets that don't include their own cuts. But, as Mitch McConnell has expressed, the larger goal appears to be to make President Obama a one-term President even if it means harming the economy and worsening the lot of working people.

Arguably President Obama has a greater duty to uphold the Fourteenth Amendment's mandate than he does to respect the debt ceiling - a limit that is being surpassed because the same Republicans who don't want to raise the limit previously approved spending in excess of that limit. If he does ignore it, I suppose some Republicans could attempt to sue him to force the treasury to default. But if I were the President I would be telling the Republicans who are endangering our nation's economic recovery and standing that I would be upholding the Constitution, as I am sworn to do, even if that means ignoring the debt ceiling. Then see who swerves off of the road.

Update: I think this article does a decent job of laying out the constitutional hurdles to ignoring the debt ceiling. Quoting Steve Bradbury:

I don't believe that the Executive Branch would be empowered by this provision in the Fourteenth Amendment to issue new debt in order to meet current interest payment obligations on previously issued debt, where the issuance of the new debt would cause the United States to exceed a statutory debt ceiling set by Congress, and I also don't think it would empower the Executive Branch to expend funds out of the Treasury on interest payments not covered by current appropriations of Congress.

I think the argument here is that the President is not unilaterally issuing new debt, but is executing a budget passed by Congress that compels borrowing above the existing debt ceiling. If it comes down to ignoring the debt ceiling I suspect the issue is non-justiciable, so if Congress doesn't like the President's saving the nation's economy from its irresponsible, childish actions, its remedy would appear to be impeachment.

Lawyer Shortages and Salaries

According to Economix, there are three regions of the nation that suffer from a shortage of lawyers:

As noted above, not every state is overproducing lawyers. Nebraska and Wisconsin actually have small deficits of lawyers. The place with the biggest shortage is the District of Columbia, which is projected to have 618 new jobs opening annually for lawyers for the next few years, but had only 273 bar-passers in 2009.

Given this shortage, it is perhaps unsurprising that the District of Columbia has the highest median wage for lawyers in the country: $70.96 an hour.

I suspect that by "$70.96 an hour" they mean that if you multiply $70.96 by 2,000 (a forty hour week with two weeks of vacation) you end up in the neighborhood of $140,000 per year. But... alas, lawyers in that pay range don't have the luxury of a forty hour week. I think an accurate figure is probably more along the lines of $40 per hour. (Or, if you were to compare the compensation to a job that pays overtime, perhaps a bit over $30.)

The Limits of Yelling "Hypocrite!"

One of the easiest accusations to throw at a political figure is that of hypocrisy, because... they so often are hypocritical. But our acceptance of hypocrisy in the context of politics also makes it easy to make unfair accusations of hypocrisy, for example, "Back in the 80's the liberals in Congress did this, now they say they oppose the same thing." Never mind that the term "liberal" is subjective, we're talking about two completely different groups of people, and even if the issue truly is the same it's possible for somebody over the space of thirty years to find cause to change his mind. Sometimes the accusations are absurd, such as "Ayn Rand collected Social Security even though she opposed it," or "President Obama wants to raise taxes on the rich even though he isn't voluntarily paying taxes beyond the present tax rate." Its not hypocrisy to advance change while following the present laws, or accepting the quid pro quo benefit of paying your Social Security taxes even if you believe its implementation was a mistake.

One of the forms of hypocrisy that a politician's political opponents tend to see as a particular point of vulnerability, or find particularly annoying, is when a candidate lives his life in a manner that seems partially, largely, or completely at odds with the political positions he holds (or, in some cases, pretends to hold). So when Newt Gingrich argues that gay marriage will harm the traditional institution of marriage, it's pointed out that he has a long personal history of infidelity and is presently in his third marriage. And when Al Gore argues that strong action is needed to limit the effects of climate change, it's pointed out that he lives an incredibly wasteful lifestyle.

These accusations are not entirely unfair. Gingrich has no explanation for how gay marriage will supposedly undermine traditional marriage, and it's reasonable to point out that he has no personal problem with weakening the institution of marriage or ignoring his vows to his spouse, and yet the institution of marriage survives. The wasteful, self-indulgent lifestyles of people like Thomas Friedman and Al Gore arguably represent the tragedy of the commons - it's true that individual action, even at the scale of an individual whose carbon footprint approaches that of a typical neighborhood or small town, is not going to have any measurable impact on climate change. But that doesn't make it any more pleasant to hear such a person lecture you, Friedman-style, that if only gas were more expensive and ordinary people (like you) could not afford to drive as much, we would all be better off. It may be true, but why is it that the proposed changes seem to affect only the lifestyles of others? It's also reasonable to point out that you can build yourself a lavish mansion and live in the highest of styles while taking steps to minimize your carbon footprint, perhaps you should do so before lecturing others about waste.

Walter Russell Mead has attempted to explain the differences between acceptable hypocrisy and unacceptable hypocrisy. First he distinguishes character flaws from hypocrisy:

Not all character flaws are inconsistent with positions of great dignity. General Grant’s fondness for whiskey did not make him unfit for command. Other statesmen have combined great public achievement with failure in their personal lives. Franklin Roosevelt was neither a good father nor a good husband; Edward VII was a better monarch than man.

Given that everybody has character flaws, it should go without saying that it's possible to be a great leader in one field while being deeply flawed in another. Shifting back to the topic of actual hypocrisy, Mead tells us,

A television preacher ... cannot indulge in drug fueled trysts with male prostitutes while preaching conservative Christian doctrine. The head of Mothers Against Drunk Driving cannot be convicted of driving while under the influence. The head of the IRS cannot be a tax cheat. The most visible leader of the world’s green movement cannot live a life of conspicuous consumption, spewing far more carbon into the atmosphere than almost all of those he castigates for their wasteful ways. Mr. Top Green can’t also be a carbon pig.

I should first point out, "Yes, they can." The television minister will do just fine until his actions become public. The head of MADD could come back with some appropriate mea culpas and perhaps even improve the message of her organization. (I know Mead has a specific case in mind, but he's arguing a general rule - one anecdote does not prove a rule.) And yes, though it's annoying, it is very possible for somebody to be the biggest "carbon pig" in the world and still argue forcefully and accurately about the need for collective action on climate change.

Mead carries on about how you can have any range of character flaws as an environmental activist (which, again, have nothing to do with hypocrisy), but that you can't have big houses, a personal jet, or even invest in firms that could turn a profit if their green energy technologies are adopted on a wide scale. Perhaps Mead is correct to a point, because obviously you will annoy somme listeners - even sympathetic listeners - by living a lifestyle that's so at odds with your message. And obviously people like Mead will come out of the woodwork with a tu quoque argument. And Mead's demands on Gore are plainly absurd:

Surely, skeptics reason, if the peril were as great as he says and he cares about it as much as he claims, Gore’s sense of civic duty would call him to set an example of conspicuous non-consumption. This general sleeps in a mansion, and lectures the soldiers because they want tents.

Bad example. Exactly when in history was it that generals didn't sleep in mansions while lecturing their troops to make do with far less? I don't recall G.W. pitching a pup tent in the Rose Garden, or even so much as ordering that the White House air conditioning be set to a higher temperature, when he ordered the invasion of Iraq or Afghanistan. A more apt expression might be that it's not possible to be rich and advocate for the poor - but that serves only to highlight how ridiculous Mead's argument is. If you're wealthy, have access to the media and have political influence, you can advocate very effectively for change. You won't have a bigger impact on the public debate by giving away your wealth and living in a homeless shelter.

Although the tu quoque argument is inherently about hypocrisy, Mead states that he doesn't believe Gore is a hypocrite:

I am not one of those who thinks him a hypocrite; I think rather that he shares an illusion common amongst the narcissistic glitterati of our time: that politically fashionable virtue cancels private vice. The drug addled Hollywood celeb whose personal life is a long record of broken promises and failed relationships and whose serial bouts with drug and alcohol abuse and revolving door rehab adventures are notorious can redeem all by “standing up” for some exotic, stylish cause. These moral poseurs and dilettantes of virtue are modern versions of those guilt-plagued medieval nobles who built churches and monasteries to ‘atone’ for their careers of bloodshed, oppression and scandal.

Mr. Gore is sincere, as the fur-fighting actresses are sincere, as so many ’causey’ plutocrats and moguls are sincere. It is perhaps also true that the fundraisers who absolve them of their guilt in exchange for the donations and the publicity are at least as sincere as the indulgence sellers in Martin Luther’s Germany.

I don’t judge, dear reader, and neither should you.

He doesn't judge, "dear reader" but my goodness does he patronize.

The average citizen is all too likely to conclude that if Mr. Gore can keep his lifestyle, the average American family can keep its SUV and incandescent bulbs. If Gore can take a charter flight, I don’t have to take the bus. If Gore can have many mansions, I can use the old fashioned kind of shower heads that actually clean and toilets that actually flush. Al Gore looks to the average American the way American greens look to poor people in the third world: hypocritically demanding that others accept permanently lower standards of living than those the activists propose for themselves.

In Mead's eyes the average citizen (that's you), it appears, is quite stupid. I suspect that many average people would find it annoying to be lectured by Gore that they should made lifestyle changes, when Gore himself has done so little to minimize his own sizable carbon footprint. But contrary to what Mead implies I also suspect that, if asked, the average voter would recognize the difference between an individual and a collective effect, and that it is physically impossible for the world to support close to seven billion people if the average person lived like Gore.

Is Mead attempting to argue to the contrary? That we can all live like Gore? That, on the whole, people in the developing world do not have to accept lower standards of living than are enjoyed in the developed world? (Is that even Gore's message - or is it more that if corrective action is not taken the situation in much of the developing world will grow worse?) If Mead accepts that the world's resources are limited and that it's impossible to lift the average lifestyle of every inhabitant of this planet to that of the American middle class, and if he truly believes that people in the developing world need somebody to tell them that fact, who is it that he believes would be an appropriate spokesperson? Bill Gates?

Does Mead imagine that it would be easier to hear the message from a wealthy, privileged westerner who makes no argument that he, or anybody he knows, should live a less profligate and wasteful lifestyle? Also, why does it matter how the average person in the developing world perceives Al Gore? Most don't even have the capacity to "unfriend" him on Facebook, let alone influence the policy of their governments. That may not be fair, but it's reality. (If it makes you feel better, even with our entrenched democracy and comparative wealth, the average American voter has only slightly more influence on government and policy.)

The short version of Mead's argument is that Al Gore shouldn't be taken seriously on environmental issues because he lives a lifestyle that is wasteful, and is too narcissistic to even see the conflict between what he says and what he does. What's missing? Any substantive argument. Any indication that Al Gore is wrong. That says to me that the problem is with Mead - as I stated up front, it's easy to accuse politicians of hypocrisy. But what matters is whether they're right or wrong. If Mead believes that Gore is wrong, he should make his case. If not, he should stop rambling about why Gore should not be taken seriously and start explaining why any inconsistency between Gore's lifestyle and his environmental advocacy is irrelevant - a distraction from the truth.

Actually, It's An Old Story About Parenting

I suggested recently that perhaps David Brooks was better served by sharing the thoughts of others - a paper or book he's read - penning columns that are really 800 word book reports, due to his propensity to go terribly wrong when sharing a personal analysis. Brooks took enough issue with my suggestion to write a column that demonstrates that he can go terribly wrong, even when penning one of his book reports, or in this case his reaction to a magazine article about a thirteen-year-old whose age-inappropriate online life led to a lot of problems.

People talk about the online “community,” but it’s more accurate to see the response as a guerrilla war. Ostrenga made an aggressive bid for attention. Other people made a bid for attention by savaging her. Most of the viciousness hurled her way can’t be quoted here, but the article in Rolling Stone accurately described the mob-like behavior: death threats, savage sexual appraisals. “I know where you live, and I’m gonna kill” your cat, one person flamed. “Kiki go die you ugly [expletive],” another wrote.

Call it a Scarlet Letter phenomenon, something that could not possibly have occurred in any other era... except, that is, for every other era. There's nothing new in the story except for the role of the Internet, and even in that respect you can find similar stories. Parents have been warned about predators on the Internet pretty much as long as it has existed.

What we really seem to be looking at, though, is a story about parents who did not provide proper supervision for their child, who did not take appropriate corrective action when it was obvious that serious problems were brewing, and who... well, judge for yourself:

She [at age 13] was contacted by an 18-year-old man named Danny Cespedes, who charmed Kiki and her parents and became intertwined with their household. Unbeknownst to them, Danny had tried to seduce a string of young girls, some as young as 12. After her mother discovered that he had forced himself on Kiki one night, the Ostrengas pressed charges. As he was being arrested, he jumped off the second floor of a parking garage and ended up in a coma. He died two months later.

How many parents would allow themselves to be "charmed" by a grown man who was interested in dating their thirteen or fourteen-year-old daughter? One who supposedly gained access to their home the first time he molested their daughter by claiming to be too drunk (or possibly stoned) to go home... what a charmer. Does Brooks sincerely believe that alarm bells should only start going off if they know he has a prior history of predatory behavior? Even if we assume extraordinary naivete, how was it that the man was even in a position to force himself on the child "one night"? I recognize that the PSA's, "It's ten o'clock, do you know where your child is," haven't run since Brooks and I were about the same age as the girl in the story, but again this seems to be "the same old story". It appears that the parents did know where their daughter was, which raises the question of why they allowed a context in which a grown man would have access to her bedroom at night, even if they found him to be charming.

From the original article,

Cathy and Scott suggested to Kiki that it was time to leave MySpace, but Kiki protested: "If you take me off the Internet, the bullies will win."

To which I think an appropriate parental response would be, "Nice try, young lady."

Kiki didn't tell them the other reason she didn't want to leave MySpace. She had finally made a connection that she hoped would last....

As you've guessed, the connection is the aforementioned adult "boyfriend".

Back to Brooks:

Next, she was victimized by the owner of a for-profit, teen-exploitation site called Stickydrama. The site’s owner both organized mass hate sessions against Kiki and invited her to live with him and become one of the site’s exhibitionist playthings. “If I can’t have you, I will destroy you,” he wrote in a Twitter message, according to Rolling Stone.

And her parents were where?

Her parents couldn’t seem to take the reins, even after they saw her online presence was not just a way of being creative.

Is that "couldn't seem to" or "didn't try to"?

She is an extreme case of an enormous uncontrolled experiment that is playing out across the world. Young people’s brains are developing while they are immersed in fast, multitasking technology. No one quite knows what effect this is having.

Even that isn't a new story - just an update. People said pretty much the same thing about radio and television.

The culture of childhood is being compressed. Those things that young people once knew at 18, they now know at 10 or 12. No one quite knows the effect of that either.

Again, this is supposed to be a new phenomenon? I guess Brooks has never heard, for example, of the 70's?

Most important, some young people seem to be growing up without learning the distinction between respectability and attention. I doubt adults can really shelter young people from the things they will find online, but adults can provide the norms and values that will help them put that world in perspective, so it seems like trashy or amusing make-believe and not anything any decent person would want to be part of themselves.

That's the most important lesson from this supposedly new phenomenon - that people, and quite notably young people, can't always differentiate between respectability and attention? And that grown-ups can help kids develop good values?

So it's the age-old story that parenting is hard, setting appropriate boundaries for your kids is hard, adolescents will push their limits, and if appropriate boundaries are not enforced bad things can happen.

Brooks offers the softest of conclusions to his editorial, that the story "is not only about what can happen online, but what doesn’t happen off of it". But in that sense, he's offering the story as a parable. Although Brooks minimizes the role of parenting and speaks of adults, generally, either way this is an extreme case. No meaningful lesson can be drawn from the specifics - if another teen tried to imitate the young girl in Brooks' story, even in the most slavish of fashions, odds are she would remain obscure. Perhaps his conclusion is, in a sense, like the "do you know where your children are" PSA's - both oversimplifying what it means to be a good parent and implying dire consequences if you don't meet a relatively arbitrary test. But no matter how I look at it, Brooks seems to be attempting to present as somehow new an age-old story about which he has no particular insight.

Pull The Other One

Would you believe this if you were a juror?

"I searched for chloroform," said Cindy Anthony, as jurors leaned forward, riveted, in the Orlando courtroom.

"I was searching for 'chlorophyll' because I was worried that it might affect my dogs," Cindy said. "I was worried about them eating bamboo."

I guess it's more plausible than attributing the search on a two-year-old, but really. I guess the thought process is, "My dogs were eating bamboo, I realized that bamboo contains chlorophyll, I wanted to know if chlorophyll is harmful to dogs, so I searched for 'chlorophyll' - but I didn't know how it was spelled so I ended up searching for 'chloroform'."

I suspect that most people searching for information on the possible consequences to their dogs from eating grass search for such terms as "dogs eating bamboo", and that most people who are looking for the effect of chlorophyll on dogs would search for something like "chlorophyll dogs", perhaps ending up with a twisted search term that would be of concern to PETA but not of much relevance in a criminal trial.

Would You Buy a Domain on a New TLD

If you purchase a new TLD (top-level domain) from ICANN, you have the potential to make a lot of money. You also have the potential to lose a lot of money.

Speaking of fees, if you want one of the new domain suffixes and are not a wealthy individual or company, get ready to put a major dent in your bank balance. The Icann application alone will be $185,000, with an annual fee of $25,000. Who sets this fee? Why, Icann, of course. Is it reasonable? Icann says it is. Why is it reasonable? Because Icann says, based on evidence that is less than persuasive, that it needs the money for things like legal costs.

So if you're not able to buy example.com, would you buy example.example? Domain owners have on occasion experienced difficulties when existing registrars have gone out of business, but they've largely been able to get past the problem by virtue of the fact that the TLD's are not owned by the registrar. If you pay somebody $6 for your example.example domain, though, and they decide they're not making enough money to justify the continued registration of the TLD, your domain name vanishes - and even if it's worth it to you to try to acquire the TLD I'm expecting that ICANN wouldn't only want you to increase your annual registration cost by $25,000 to keep your domain going, it would want a new application fee - and would reserve the right to reject your application.

Particularly during the early years of the Internet there were a number of efforts to create alternatives to domain names, usually by allowing people to buy keywords and key phrases that would cause people using the sponsor's service, or perhaps a browser plugin, to navigate to the registrant's (ostensibly relevant) website. None ever acquired the volume of users necessary to succeed.

A partial bypass already exists for end users. It's called Google – though this also applies to Bing and other search engines. Internet users are learning that it's easier, almost always with better results, to type the name of the enterprise they're searching for into the browser's search bar than to guess at a domain name and type that guess into the address bar. Google isn't the DNS, but its method suggests new approaches. To that end, some technologists have suggested creating a DNS overlay, operated in a peer-to-peer way that incorporates modern search techniques and other tools. Making this workable and secure would be far from trivial, but it's worth the effort

If you can come up with a viable, superior alternative to the URL and get a sufficient volume of users to adopt to your system, you will become very rich.

Using ICANN's New Domains to Take on Facebook

Commenting on the new ICANN rules, Nina Gregory comments,¹

What that means is that big brands see big opportunities. He gives an example of what a company like Canon could do. It could acquire dot-Canon, and even the generic dot-camera, and could create photo-sharing Web sites grouped within those domains.

"So not only is Canon now going to be dot-Canon," he says, "but Canon can now issue secondary domains to every one of its camera owners, and what they might very well do is embed a chip in their cameras that link that camera owner to their ID so that as they're taking photos they could just be automatically uploading photos to a photo-sharing site. I mean, that's just one possibility."

I'm inspired. I'm going to obtain a top level domain and create a competitor for Facebook. What do you think - does .pod work, or does the concept of "pod people" need too much explaining. Perhaps .borg?
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1. The article highlights a great quote:

"If I had $185,000, I'd spend it on something else."

- Esther Dyson, former chair, ICANN

Because Laywers Are All Delicate Flowers....

Apparently some lawyers are traumatized by the f-word. My, how impolite the practice of law has become.

I'm reminded of an anecdote about a lawyer who retired long before I started to practice. Back in the 1950's and 60's, when everybody was polite as can be and the practice of law was genteel and collegial, he found that many of the polite letters he received from lawyers merited the same polite response, so he had a rubber stamp made to facilitate his prompt reply. Afterward, when he received a letter proposing something he found disagreeable, he would apply the stamp and promptly return the letter to its sender: "F--- You, Detailed Letter to Follow".

Ah, the good old days.

A Does It Make Sense to be Outraged by Presidents' "Illegal Wars"

The Constitution states, "The Congress shall have Power... To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water...." As everybody reading this is aware, the United States has not entered a declared war since WWII. We didn't declare war in Korea, Vietnam, Grenada, Iraq (either time), Afghanistan, Panama.... it's simply no longer done. Congress doesn't want that responsibility, so it finds ways to grant broad war-making powers that a President can use to justify starting a war (even if Congress later protests that it didn't intend to authorize an actual war), or chooses to sit on its hands when the President acts unilaterally. The War Powers Resolution is not an impressive piece of legislation - it's an attempt to formalize the delegation of Congress's war-making power to the President, while keeping the President at least modestly accountable. It says something that Congress has never attempted to enforce that law against a President, and has not amended the law in response to past abuses.

So the President involves the U.S. in a war in Libya and comes up with a tortured rationale for why he doesn't have to go before Congress under the War Powers Resolution if he wishes to continue that war? Par for the course (and you know how presidents like golf). The Democrats seem content to let the President take the heat if things go wrong, and fear looking weak if they oppose war, while the Republicans seem to fear looking weak and fearful if things go right. The Republican majority in the House would love to hurt or embarrass the President over a violation of the War Powers Resolution, but... not if it means being depicted as weak on terrorism, pro-dictator, anti-democracy, or any of the other accusations they so recently hurled at anybody who dared question the wisdom of the wars in Iran and Afghanistan.

A worst case scenario for the Republicans is to successfully end the war in Libya and have Gadafi remain in power. Meanwhile the Democrats want to be able to ride Obama's coattails in the event of a victory, but don't want to be accountable if they approve military action and it does not succeed. It looks like I could count on my fingers, perhaps on one hand, the number of Members of Congress who would vote on this war without first checking how the various outcomes might affect their reelection bids. So as it stands neither side will take any meaningful action.

I suspect that when Robert Gates was angrily complaining that Europe wasn't able to do its part in the war in Libya, it was in no small part due to the fact that the war isn't over. I expect that President Obama entered the conflict with the assurance that France and Britain were up to the task, and that the bombing campaign would succeed within a month, two at the outside. Now he has to explain why he's not going before Congress - a Congress that could take action on its own, and which by all appearances doesn't want the President to seek approval for the war - for a war that's supposed to already be over.

Do you expect that Congress will act? That it will defund the war in Libya? That it will amend the War Powers Resolution to impose real consequences if a President ignores its terms - such as automatically defunding the dubious military action? If not, do you truly perceive the war in Libya as inconsistent with the intent and wishes of Congress? Not so much in terms of, "Congress would have voted for the war," but "Congress doesn't want this, or any, responsibility for war"? If you want to be angry at somebody over an "illegal war", it seems that the most suitable target for that anger is Congress.

Update: Ilya Somin observes,

Regardless, for the foreseeable future, the main constraints on unconstitutional presidential activity must come from outside executive branch — that is, from Congress, the courts, and public opinion. These constraints are highly imperfect. But they do impose genuine costs on presidents who cross the line. Ackerman cites the Watergate scandal, Iran-Contra and the “torture memo” as examples of the sorts of abuses of executive power that need to be restricted. True enough. But it’s worth remembering that Nixon was forced to resign over Watergate, Reagan paid a high political price for Iran-Contra, and the torture memo was a public relations disaster for Bush, whose administration eventually ended up withdrawing it (thanks in large part to the efforts of Jack Goldsmith). On the other side of the ledger, Bill Clinton paid little price for waging an illegal war in Kosovo, though he avoided it in part by keeping that conflict short and limited. It remains to be seen whether President Obama will suffer any political damage over Libya.

The greatest damage President Obama could suffer in Libya would be if he were to end the conflict while leaving Gadafi in power. That's not going to happen. If Congress acts, I expect it will be to authorize the President's action (even if he doesn't ask them to do so).

Update II: Digby quotes Matt Taibi and shares some thoughts on the Repubiblican candidates' "sudden change of heart" on war.

A Domain Name Free-For-All

With ICANN announcing that, with the cost of application starting at a mere $185,000.00, you can purchase your own top-level domain (TLD), we will soon experience a dizzying array of alternatives to the traditional TLD's (principally .com, .net, .org, .gov, .edu, .mil, and country domain names). I heard an ICANN representative declaring that soon we'll have .pizza and .movie TLD's, and I suspect he's correct, but... to what end? For example, will a single pizza company acquire the .pizza TLD, or will a third party acquire it and try to convince all of the world's pizza shops that listing their store as .pizza is a business necessity? Companies that presently attempt to manage trademark and reputation issues by purchasing domain names on the most common TLD's will... realistically speaking, have to throw up their hands in despair.

ICANN is promising to police new TLD's for name confusion, and promises also to try to keep past domain squatters and typosquatters from obtaining TLD's. Beyond obvious typos, good luck with that. If I want a TLD for nefarious purposes and fear that ICANN is going to deny my application due to my identity, I'll obtain it through a proxy. Some TLD's will be worth millions from day one - abuse is inevitable.

I do suspect that the new rules will have an impact on domainers who sit on single or double keyword domain names, as I expect that the changes will accelerate the use of "OneBox"-style navigation on browsers. Unless you type in an exact domain name the text you enter will be treated as a search instead of defaulting to (keywords . com) as was once the case. But beyond that, I expect that it will improve the value of established sites on .com domain names - because with few exceptions I think that a proliferation of TLD's will serve primarily to confuse consumers and that, just as they did when .com, .net, .org, .info and the like became competitors to .com, they'll either default toward .com or defer to a search engine. (When was the last time you intentionally browsed to, or even notices that you were using, a ".info" domain? How about ".aero"? Did you even know those TLD's exist?)

Why, you ask, wouldn't it make sense for people to type in a new TLD associated with a particular business or profession? Let's say a new ".law" TLD is created - why wouldn't people looking for lawyers or legal information gravitate to that TLD? Well, what if there's also ".legal", ".lawyer", ".attorney", ".lex", ".atty", ".lawhelp", ".lawinfo", etc.? What if the owner of .law charges an exorbitant rate for registrations, to recover the six to seven figures invested in acquiring that TLD? (Similarly, I'm not sure if ICANN's rules would deem ".car" and ".cars" too similar, but what about ".auto", ".vehicle," ".suv", ".truck", ".automobile", ".wheels", ".motorcar", etc. - the "non-confusing" variations quickly become overwhelming.)

The biggest winners here, I suspect, will be ICANN and the search engines. ICANN will take in millions in fees to review applications, and each approval will make ordinary people more dependent upon search engines to guide them to valuable online information. Second, unless the OneBox solutions are implemented across the major browsers, typosquatters will likely fare well. Third, people who have not been able to get memorable domain names should be able to obtain better names, but subject to TLD confusion - they will get better domains, but may lose some traffic to the ".com" variation. (Sites that used TLD's in a clever way, such as del.icio.us, still typically found it beneficial to acquire the .com variant once funds were available to do so.)

The biggest losers, I expect, will be people who have been sitting on "high value" domain names without developing them, in anticipation that their value will only rise with time. People who rely upon generic keyword traffic based upon their domain name as opposed to their site content will likely see that traffic siphoned away by an increased number of low-content sites competing for the same keywords. And the average person hoping to make some sense of the web behind, "if the business I'm looking for is truly important it probably owns the .com".

Douthat Misrepresents Krugman on Deficits

Last night on Real Time, Bill Maher pointed out the fact that Republicans talk big about the deficit when they don't control the White House, but run up huge deficits when they do - that Republican deficit hawkery is not sincere, but is a tool they used to attack a Democratic President's agenda. Of Maher's three guests, two attempted to defend the Republican Party. Gretchen Hamel took the "who are you going to believe, me or your lying eyes approach and argued, in essence, "this time is different" - that the Republicans have learned their lesson and now sincerely want to balance the budget. Ross Douthat argued that G.W. Bush had been attacked for his deficits at the start of his Presidency, I guess to suggest that the Republican antics represent "politics as usual" and thus should be excused despite their harm to the nation?

Had Douthat stopped there, it might be appropriate to point out to him that an accusation of hypocrisy in general, let alone when you're pointing to actions taken a decade apart, does nothing to tell us which approach is correct. Even if you assume all else is equal, it could be that the Democrats learned from experience that the threat from the out-of-control deficits ushered in by Bush were overstated. That assumption, of course, would require you to be ignorant of the fact that at the time G.W. took office there was a budget surplus and an opportunity to pay down the national debt, and when he left office he had run up a gargantuan deficit and that we were in the midst of a serious financial crisis. Surely Douthat is not that ignorant.

But then, what to make of his reference to his New York Times colleague, Paul Krugman, as the sole example of left-wing hypocrisy on the issue. He alleged that at the start of the G.W. Bush presidency Krugman argued that deficits were bad, and that now that a Democrat was in office he was arguing that deficits were good. That leaves us with one of several possibilities, none of which are flattering to Douthat:

1. He has not read Krugman's columns and other writings, and is accusing Krugman of hypocrisy based upon his own ignorance of and suppositions about what Krugman has written;

2. He has read Krugman's columns and other writings, but doesn't have the intellectual capacity to understand those writings; or

3. He's lying in order to score a political point at the expense of his colleague.

It's also fair to observe that Douthat's implicit suggestion that the nation's economic situation is analogous then and now, such that the issues involved in the determination of whether the nation should have a deficit were essentially the same, is false - similarly suggesting ignorance by Douthat or his deliberate intent to deceive his audience. To assume that Douthat is both informed and sincere would require that you regard him as seeing the following two scenarios as equivalent:

1. A family spends more than it earns for a decade, such that it has six figures of debt. Due to some lucky windfalls, a small lottery win, an inheritance, a modest raise at work, the family is finally able to balance its budget - $2,000 left at the end of the year. Given the choice of applying that amount to its debt, or of spending the money, the family chooses the a third path, taking a $5,000 vacation - increasing its total debt load and making its situation less sustainable.

2. A family struggles to make ends meet, and faces significant debt. It's worried about the impact of that debt on its short-term, and especially upon its long-term, financial well-being. But catastrophe strikes, mom is diagnosed with cancer, and the family needs to spend $100,000 in uninsured medical costs to keep her alive and thus goes deeper into debt.

Is Douthat truly unable to understand the difference between choosing to spend yourself deeper into debt when your financial picture is good and you have the option of reducing your debt load, and going deeper into debt in response to catastrophe? Or of the policy choices and economic consequences involved in choosing between spending that benefits the masses and tax cuts directed at the rich? If he has read Krugman, he shouldn't be. When the Bush tax cuts were initially proposed, for example, Krugman wrote,

His argument went as follows: given its projected surpluses over the next decade, the federal government may not only pay off its debt, but actually find itself using surplus cash to buy private assets. This could cause problems, he suggested, because it would be "difficult to insulate the government's investment decisions from political pressures." So we should engage in "pre-emptive smoothing of the glide path," which turns out to mean cutting taxes enough so that the federal government never does pay off its debt, after all.

Now I would quarrel with those surplus projections. I would also point out that in declaring "it is far better . . . that the surpluses be lowered by tax reductions than by spending increases," Mr. Greenspan was out of bounds. Since when is it the Fed's business to say that we should have a tax cut rather than, say, a new prescription drug benefit -- or for that matter a missile defense system? (Neither program is factored into those surplus projections.)

When the economy was souring, Krugman didn't oppose tax cuts as a stimulus measure, but instead wrote why Bush's plan would not be effective as stimulus:

Now Mr. Bush could have tried to sell his plan in terms of the ideology that the plan actually reflects. But he has never done so. Instead, he has engaged in an elaborate disinformation campaign. Part of this effort involves an attempt to deny the plain fact that the tax cuts will mainly go to the very, very well off. But the campaign's most striking feature has been the attempt to sell the tax cut as a short-run stimulus to spending -- as the answer to an economic slowdown that Mr. Bush has done his best to play up, and which his doomsday rhetoric may have worsened.

What's ironic is that the timing of the Bush tax plan makes it just about completely useless as a short-run stimulus package. In order to keep the headline numbers down, the plan delays the really big tax cuts far into the future, putting hardly any money into the hands of consumers this year and not much next year. And recently administration officials have begun to admit that if they are really serious about doing something for the economy now, they need to add an immediate tax cut onto the plan.

But then the question arises: why not adopt the add-on and forget about the original plan? Or better yet, why not implement one of the short-run stimulus plans proposed by Democratic senators, and discuss those huge long-term tax cuts for the rich at our leisure?

Douthat should also know that, as far as Krugman is concerned, he's asking the wrong question:

How did a huge surplus turn into a huge deficit? The recession, the tax cut and terrorism -- in that order -- all played a role. Also, it now seems clear that the big surplus in 2000, almost twice as large as the surplus in the previous year, was an aberration -- that tax receipts were inflated by the technology bubble. In retrospect it's hard to believe that we locked in large, long-term tax cuts based on exactly one year in which the non-Social-Security budget was in significant surplus. (Thanks, Mr. Greenspan.)

But anyway, ''Who lost the surplus?'' is the wrong question. The right question is whether the Bush administration has any plan to return to a balanced budget, let alone to honor George W. Bush's promise to use the Social Security surplus to pay down debt. And the answer is no.

That is, it should be obvious to anybody who reads Krugman that he is not particularly concerned with any particular year's budget deficit or surplus, but is instead focused on the long-term.

And if Douthat needs to be spoon fed, well how about that - Krugman has even penned a piece in response to those who "want to know why I’m blaming Obama’s deficits on Bush, and why I think Obama deficits are good, while Bush deficits weren’t." The criticism is of debt, not deficits; deficits can result from a prior administration's policies; and when it comes to stimulus spending the "zero bound" makes an enormous difference. But Douthat knows all of this, doesn't he?

Seriously, was Douthat's attack on Krugman a confession of incompetence, of willful ignorance, or of mendacity?

Patterns of Behavior and Why Rep. Weiner Had to Go

For some who focus exclusively on the "sex scandal" aspect of Rep. Anthony Weiner's behavior, they see inconsistency between the Democratic Party's insistence that he resign and the political survival of other politicians who have engaged in dubious sexual behavior, some of which was illegal. And it is fair to argue that, when the behavior does not involve minors or non-consenting adults, scandalous behaviors are usually survivable.

One of the more absurd comparisons I've heard is to the behavior of past presidents, such as Jefferson, Roosevelt and Kennedy, whose antics weren't known to the public. That's not a distinction - before Weiner's antics were known to the public he, also, avoided any consequence. One of the least coherent comparisons is Michael Medved's factually challenged¹ rant about how unjust the world is because Weiner was pressured to resign but Clinton was not.² I've heard comparisons to Rep. David Vitter ("it's illegal to hire prostitutes but not to twitter suggestive photos to other adults", Sen. Larry Craig ("he was convicted of disorderly conduct, but was allowed to complete his term"), and others.

I've also heard a variety of theories as to why Weiner was singled out - theories that his public persona, his alleged abrasiveness with his colleagues, his status as an up-and-coming leader for the party, etc., made it somehow more critical that he be removed. I don't agree - he could have been marginalized within the party and, as a spokesperson, once the scandal becomes "old news" needs not be any less effective than Elliot Spitzer.

Here's the thing: When you have a politician who cheats on his wife with other women, you can generally expect that if you dig you will learn of other affairs. If the cheating is with men in restrooms, sure, you can expect that digging will probably reveal that's not a one-time behavior, either. If the politician likes to hire prostitutes, again, a thorough investigation will likely turn up a lot more prostitutes with whom he's consorted. None of which changes the essential nature of the story.

Do you believe that somebody who engages in narcissistic, casual exhibitionist behaviors "kept it in his pants", so to speak, before the invention of Twitter? Andrew Breitbart apparently has a small dossier of photos, including an x-rated photo "accidentally" shared with the world. Even had Weiner survived the initial scandal with his implausible denials of responsibility, his scandal is a gift that keeps on giving - with an increasing number of increasingly explicit photos, and an increasing number of women reporting his conduct. For the Republican Party, Weiner had become a gift that keeps on giving.

Am I wrong in my inferences? If I were, I somehow doubt that Weiner would have followed his mea culpa by announcing that he was checking into some form of "rehab", inpatient mental health treatment. I suspect that he could have held on at least as well as Larry Craig, and perhaps as well as Barney Frank. But instead, I think the party legitimately feared that continued investigation would reveal a history of similar conduct dating back to Weiner's youth, and that given how casual he was about his online contacts that it was only a matter of time before he was discovered to have send explicit pictures to a minor. (I understand he's already under investigation for pictures he sent to a 17-year-old, and his antics were known to a sufficient degree among right-wing muck hounds that they were actively trying to solicit pictures from him with fake online identities.)

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1. Medved writes, "Clinton abused his authority with and used government resources in sex-capades with a White House intern" - if you don't care enough about the facts to know after this much time that Lewinsky was not an intern, or if you know and choose to lie, why should you be regarded as anything but a low-wattage intellect and a partisan hack.

2. Is he complaining that Weiner should have stayed because Clinton stayed, that if you excuse behavior of one sort you must forever excuse behavior that's arguably similar, that a President and a Member of Congress are equivalent players in our political system... Nah, he's just ranting about Democrats.

Tying Student Loans to Graduates' Employment Records

Sam Petula suggests that if you explicitly tie student loans to how college graduates do in the employment market, you can put pressure on colleges to scale back or even eliminate certain academic programs:

Last week’s announcement of new rules to bear down on career colleges like the University of Phoenix, which offer degrees in programs like Health Administration and Criminal Justice Administration, weren’t designed to force those questions. These programs come under a different section in the Higher Education Act, excluding them from regulations for how much money their graduates make. But the new rules—the gainful employment rules, as they’re called—could push federal regulators to start peering under the hood of more traditional colleges majors, according to reporting by Inside Higher Ed.

I'm reminded of recent reports about the college degrees that pay the least, with the psychology major being held out as a prime example of a popular but low-paying major. I majored in psychology (although principally because I wanted to graduate - I could have graduated a semester later with a major in chemistry, general science or political science), so I can attest both that you won't find job ads seeking candidates with bachelor's degrees in psychology and that it doesn't matter, because a bachelor's degree in psychology is not designed to be a terminal degree. If you want to be a psychologist, you continue toward a Ph.D., and if you don't you get a graduate degree in whatever field you intend to pursue. The knowledge you gain from the study of psychology can be helpful in other fields, but does not qualify you to be a mental health professional.

To the extent that students entering college believe that "Chinese literature", "religious studies" or "women's studies" are terminal degrees, colleges should be educating them to the contrary. If a traditional college is being anywhere near as misleading toward people majoring in those fields as the for-profits often are in relation to the job opportunities and incomes they suggest can be achieved through their programs, those colleges deserve a similar consequence.

There's a degree of difficulty in comparing a two year certificate program from a private university, that does little to nothing for a graduate's job prospects, with a four year degree that is meant to be followed by a graduate education. The better comparison is to community colleges which typically offer similar degree or certification programs at a significantly lower cost, and without the false promises or exploitation of the federal student loans. It would have made no sense to tell me that I would not qualify for student loans based upon my major... well, first because I went to a then-inexpensive state college, worked a ridiculous number of hours, lived on a shoestring, and graduated from my undergraduate program with no student loan debt, but ignoring that for a moment... because I could have simply and very plausibly declared a different major in order to qualify for loans, and also because my plan was to continue to graduate school such that my nominal major didn't matter.

To the extent that the government's hand appears too heavy, it's not because the government is cracking down on private colleges to the extent truly necessary to correct abuses - most of the teeth have been pulled from the final regulations. I would rather the concept of colleges acquiring insurance for the student loan moneys that they distribute, such that they could do what they wanted but in the event that their graduates didn't find jobs would find the insurance coverage for their students' loans to become unavailable (or, if you prefer, increasingly expensive and, with no corrections, ultimately unaffordable). The "lack of value" in a particular non-terminal four-year degree would be mitigated by the fact that the majority of recipients would continue through graduate school, and thus should not play a significant role in a college's insurance premiums.

Ten Men, Taxes and Free Beer

Ian Cowie, "personal finance editor" of London's Telegraph newspaper, laments that the vote isn't tied to income.

Why don’t we restrict votes to people who actually pay something into the system? No, I am not suggesting a return to property-based eligibility; although that system worked quite well when Parliament administered not just Britain but most of the world. Today, income would be a much better test, setting the bar as low as possible; perhaps including everyone who pays at least £100 of income tax each year.

That minimal requirement would include everyone who gets out of bed in the morning to go to work and could easily be extended to include, on grounds of fairness, several other groups. For example, all pensioners – because of the fiscal contributions to society they are likely to have paid earlier – and mothers – because of their contribution to defusing the ‘demographic time-bomb’ of an ageing population.

The two examples are interesting. The first does not look at contribution - it looks only at age and makes assumptions about contribution. Why? Presumably because Cowie sees the elderly as having interests sufficienlty aligned with his own political goals that he doesn't mind their voting. Excusing mothers... across the board... because they had children? That's just plain odd. For a man who purports to want to improve the quality of the vote, he would hand lifetime voting privileges to unmarried mothers, including teenage drop-outs, but not to fathers - even if mom disappears before junior is even discharged from the birthing center and dad is the child's sole caregiver? And... I see that Cowie's concern is a "demographic time-bomb" - so how about giving men the vote if they have children, the more the better, without regard to whether the children are born within a stable household or marital relationship? Better to have idiocracy, after all, then to have an inadequate number of young wage earners to support an aging population.

To support what he describes as a "modest proposal",¹ Cowie quotes what he purports to be the clever words of others:

For example, it is sometimes said – and uncertainly attributed to Alexander Tytler – that: “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury.

“From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy.”

Hard to believe? The credit crisis afflicting democracies around the world demonstrates the truth of this observation. So does the fact that our less democratic competitors in the emerging markets suffer no such crisis.

So Cowie is supporting his case by arguing that bankers, having successfully persuaded governments to scale back regulations and having engaged in high-risk bets, have since successfully lobbied for and received massive bailouts courtesy of the taxpayers of the western world, should not get the vote? Consistency, it seems, isn't his strong point.

It is true, of course, that nations in the developing world didn't directly suffer from the near-collapse of the global financial industry. It's fair to observe that Canada, having maintained adequate regulation of its financial sector, also emerged largely unscathed. It also seems fair to note that the relative wealth of nations was a huge factor - the financial industry appears to have pumped up the housing bubble in every nation in which it was possible to pump up housing values. Does Cowie see Bahrain as part of the developing world or as part of the developed world?

There's also something odd about being wistful for the financial governance of dictators and kleptocrats. If Cowie would prefer to live under the enlightened financial governance of Nigeria or Zimbabwe, I am confident that he could obtain an appropriate visa to support his relocation - and that he would get a closer look at how the wealthy of those nations siphon resources away from their countries and people. That's supposed to be enviable? I understand the concept of the philosopher king, but Cowie's looking for good governance in all the wrong places.

Cowie's sense of financial fairness reminds me of the joke about G.W. Bush, a man who "was born on third base who thought he hit a homer." Or the joke about nine ordinary people and a billionaire banker going into a cafeteria, getting a pizza cut into ten equal pieces, and having the banker grab the first nine slices - then complain about having to share the tenth slice of "his pizza". About that last joke, surely you have heard the one about "how taxes work" - a simplistic, often misattributed email forward about how the rich (and only the rich) deserve the benefits of tax cuts?

Let's put tax cuts in terms everyone can understand. Suppose that every day, ten men go out for dinner. The bill for all ten comes to $100. If they paid their bill the way we pay our taxes, it would go something like this:

The first four men - the poorest — would pay nothing; the fifth would pay $1, the sixth would pay $3, the seventh $7, the eighth $12, the ninth $18, and the tenth man - the richest — would pay $59.

Well, apparently it was new to Cowie.

Suppose that once a month, ten men go out for beer² and the bill for all of them comes to £100. If they paid their bill the way we pay our taxes and claim State benefits, it would go something like this;

The first four men (the poorest) would pay nothing. The fifth would pay £1.
The sixth would pay £3.
The seventh would pay £7.
The eighth would pay £12.
The ninth would pay £18.
And the tenth man (the richest) would pay £59.

Remarkable, how a supposedly insightful joke about the U.S tax system translates, dollar for pound, into a joke about the U.K. tax system. You might have thought that the numbers were picked to exaggerate the point of the joke, or that different nations and tax systems might result in a different distribution of the tax burden, but as it turns out... no! In any event, the punch line is the same. The wealthy guy decides that he has the right to stop paying taxes, the remaining nine people want to again be served their dinner (or free beer, or whatever), and discover that "they didn’t have enough money between all of them to pay for even half the bill". Cowie lectures,

That’s how non-contributory democracy led to the credit crisis in a nutshell. Or a joke, on the basis that you don’t need to be solemn to make a serious point. It’s time to restore the link between paying something into society and voting on decisions about how it is run.

Right - the problem in our society is that the wealthy and powerful don't have enough say in how things are run.

Seriously, as an explanation for why tax cuts might disproportionately benefit the rich yet still be fair, the shared dinner or beer joke is a good starting point for discussion. It's reasonable to say that a 3% tax cut should benefit people who pay taxes, and should not also require that tax credits be increased by 3%. The obvious retort, even there, is that wealth and income are not equally distributed, and that even the flat-taxers don't propose capitation - even if everybody were to pay the same percentage of their income as taxes the rich would pay more... to a degree. Fortunately for the rich, despite all the barriers Cowie apparently perceives as existing between them and their elected representatives, they have successfully managed to achieve tax rates for capital gains that are substantially lower than taxes on wages.

Speaking of capital gains, would Cowie extend his £100 standard to the idle rich? Or would you have to actually earn enough wages to have to pay income taxes in order to vote? After all, he's apparently excluding sales taxes, payroll taxes, and the like from his equation. What if you took a year's sabbatical, paying no taxes, to rest up after years of contributing massive amounts of money to the tax rolls - you're disenfranchised that year? What if you spend thirty years helping a company build value, but are laid off following a merger or unexpected catastrophic event? No voting until you either get a new job or retire? It shouldn't need to be said, but income and taxes aren't static over a lifetime. Most people earn more over time, some earn less, many experience setbacks. Even if we exclude the income of trust fund babies who never work a day in their lives, income can be a poor measure of contribution.

Cowie's example also presupposes that although contribution to taxes is unequal, the benefits of taxes are equal across the board. Perhaps he should compare the state of his local streets and schools to those of an inner city area. Perhaps he should compare how much influence a billionaire has, seeking zoning variances to put up a mansion or some other "monument to me", as opposed to an ordinary person who wants to erect so much as a fence. Or how that billionaire does when asking for hundreds of millions of dollars to subsidize his new, private, for-profit sports arena, as compared to the residents of a poor community who want the government to do a better job maintaining playground equipment in a local park. It may be that everybody is served beer, but some get pints and some get barrels.

At the end of the joke I'm still left scratching my head - what does Cowie's attempt at humor have to do with qualification to vote? For example, while I will concede that he's qualified to head a major political party and even to be a nominee for President, and that he probably paid lots of income tax even during the times his various ventures were in bankruptcy, I am not convinced that Donald Trump is actually qualified to vote. And if Cowie's exceptions encompass pensioners - a demographic among the most apt to vote to preserve or expand their benefits without regard to the state of their nation's finances - and mothers, without regard to income, education or aptitude merely because they give birth to potential future taxpayers, Cowie defenestrates whatever association income might have with the responsible exercise of the right to vote.

In the event that there's a billionaire banker reading this and he still thinks Cowie's example is fair and that he's unduly burdened by his tax bill, I have a proposal. And it's not a harsh one - I earn a good income, and as a result have a comfortable lifestyle. I will trade you all of my income and assets for all of yours, from this point forward. I will then pay your entire income tax bill in addition to my own for the rest of your life.³ Deal?

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1. "A Modest Proposal" is a label most often given to ideas that are anything but modest, usually also by authors who are unfamiliar with Swift or unclear on the concept of satire.

2. It's a shame here that Cowie didn't use the traditional version of the joke that centered on dinner, as then the ultimate punch line for his "modest proposal" could be, "Well, we may not be able to afford a restaurant, but at least we can eat our babies."

3. This offer is also open to Darrell Issa, Sarah Palin, Mitt Romney, Rush Limbaugh, and similarly situated political leaders and television personalities.