Really, College Isn't For Everyone

Via Joanne Jacobs I came across the article, "5 Myths of Remedial Ed", a suggestion that colleges should provide remedial education programs to students they don't believe are qualified to enroll in regular classes. I agree to a point, as I do think that students who are capable of getting up to speed but who were left underprepared by their high schools, weren't particularly motivated in high school, or have been out of school for long enough that some of their basic skills are rusty, should be able to get back on track for a degree or certification program. I become more skeptical of remedial programs at four year colleges, as it seems to me that students who aren't ready for the academic rigors of a four year degree would likely be better served by enrolling in a community college and determining if they truly want to complete a four year program. Given how few remedial students actually complete a degree or certification program, that approach should also save a lot of students a considerable amount of money.

The first myth offered is that "Remedial Education is K-12’s problem". The author's complaint is that, as there's no uniform standard for admission into a college, there's no uniform standard that high schools could set in order to guarantee that a student would not need remedial classes.

Because colleges have not clearly articulated the skills that students must possess to be college-ready, students are blindsided when they are placed into remedial courses, and high schools don’t have a clear benchmark for preparing students for success. Higher education can no longer kick the can down the road to K-12. The two must share accountability for student results.

I disagree. What it takes to be qualified for college is no big mystery. Nor is it a big mystery that some colleges are more rigorous, and thus more restrictive of which students they will admit and the academic backgrounds of those students, than others. A high school student who wants to enroll in a specific college or program should be able to get a pretty good idea of their qualification by talking to a counselor at their high school. Further, unless somebody has invented a time machine, when a college says "You're not prepared for the program in which you want to enroll," it's not "kick[ing] the can down the road to K-12" - that's what happens when the K-12 school says, "You should be able to admit that student, get him up to speed, and have him complete any program you offer without regard to what we did when he was enrolled here", which is what the author appears to advocate.

By the same token, if a student entering a college is surprised to learn that she lacks basic math or writing skills and thus must take a remedial course, that cannot be said to be the fault of the college. The author makes it sound like we're talking about calculus, when in fact we're talking about the basics. You can go to pretty much any college in the nation and pick up a first year text for composition and algebra, and you'll see similar content and expectation for what a student will be able to do. A commenter notes that "that the National Council of Teachers of English has published two volumes entitled What Is College-Level Writing". The expectations for what it means to perform at college level are anything but a secret.

The second myth described is that "Remedial Education is a Short-Term Problem", apparently based upon the notion that "new common core high school standards will" end the need for remedial programs. I have not heard anybody suggest that to be a likely outcome of reforms, so this seems like something of a hollow man. The author seems to be proposing that remedial education be expanded to provide additional support and alternative means of completing classes throughout college, rather than being designed to bring students up to speed then have them participate in regular classes:

Institutions should provide a wide range of options for students based on their competency, recognizing that many don’t have time for semesterlong courses. Self-study options that use courseware, low-cost refresher sessions, tailored curriculum and simply mainstreaming students who are just below the cut score into college-level courses are just a few of the options that will work well with the full range of students in remedial education.

I would support colleges bringing such flexibility and support to all students, but to the extent that the idea is to create a two-track system where we hand-hold unqualified students through the process until they obtain a degree, without regard to how their educational attainment compares to other graduates, we're not solving a problem - we're repeating the problem that has kids graduating from high school and expecting to attend college without basic skills.

The third myth, "Colleges Effectively Determine College Readiness", is interesting. The author criticizes placement tests as being a "general predictor of success in college-level courses" as opposed to "identify[ing] which skills students are lacking". The author suggests that this could result in a student being placed in a remedial class that "may or may not be addressing their specific skill deficiencies", and that some students placed in remedial classes "are perfectly capable of succeeding in college-level work without remediation". The author proposes considering the student's high school GPA along with placement tests, with GPA serving as "a good proxy for student motivation and academic skills." But doesn't that take us back to the first "myth"? The reason you need to have students with high GPA's take placement tests in the first place is because you don't trust that their high schools gave grades that reasonably assessed their performance. A student who received an "A" in algebra should not have to take remedial math. To the extent that he does, his GPA is not an indicator of his academic skills in the subject of math. That also raises the question of what it means to be motivated. There is something to be said for students being motivated to perform at a particular level - "A" students tend to put in the work necessary to achieve A's, and will tend to step up their effort for a more difficult class. But you can also create an atmosphere of entitlement and coasting when you hand out A's to students who attend classes and turn in assignments, but who don't achieve mastery of even the basics.

It's also not the case that every student who enrolls in college takes a battery of tests to determine whether or not they can perform at the freshman level. If a student is required to take placement tests and performs at a level that has the college assigning her to remedial classes, but has a level of motivation and actual academic achievement that should make remedial classes unnecessary, perhaps there's a mismatch between the student and her college. Frankly, if a student is placed in a remedial class but has ample skill to complete regular coursework, that should be obvious within days.

The fourth myth, "Remedial Education is Bankrupting the System", is also interesting, in that the author comes close to suggesting that remedial education is a profit center.

Remedial education is actually inexpensive for the colleges – because institutions don’t use regular faculty for the courses, and the technology required is cheap.

This raises the question, if remedial education is so cheap and easy why are we "kicking the can down the road" to colleges, rather than assuring that college-bound high school graduates have the basic skill set that will satisfy 99% of the nation's colleges. Again, while colleges do have different admissions standards, the basic skills we're discussing are no mystery. Also, this seems like a good reason to keep remedial classes in colleges that can serve students at the lowest cost to the student. When you pay four-year college tuition, you should expect to get a calibre of class and instruction commensurate with the tuition you're paying. To the extent that colleges are able to churn remedial students through their cheapest courses, watching few succeed, that's something I would rather see them end than expand. Although the author suggests the same, she proposes that we "remove incentives for institutions to use [remediation] as a cash cow, and fund institutions both on the number of students needing remediation and their rates of success" - but provides no description of how that might be accomplished.

The last myth is no myth: "Maybe Some Students are Just Not College Material". For better or worse, some students aren't college material. Some lack the aptitude, some lack the motivation, some could complete a degree program but would be far better served by being encouraged to pursue other areas of aptitude. The actual myth is the one advanced by the author: That all students are "college material", can perform at the college level and would be well-served by being encouraged to pursue a college degree or certification. The author turns reality on its head:

After all, as this myth goes, students who are not college-ready may not possess the motivation, interest and wherewithal to succeed. These students should just learn a trade and move on. This ignores the reality that some postsecondary education is the ticket to the middle class, and that many students go to college to get the knowledge and skills needed to move into a trade. They need to have the basic skills in reading, math and writing to do that, even if they don’t want to go on to get a four-year degree.

Note the false dichotomy (the only alternative to pursuing a college degree is learning a trade) and the continued effort to shift responsibility for teaching basic skills from high schools onto colleges. Yes, our society is sufficiently complex that you're not likely to do well without at least basic skills in reading, writing and math, but it's difficult to see how encouraging students to enroll in college, take some remedial classes then drop out to pursue their trades, is the best or most cost-effective means of developing basic skills. There's also no small amount of elitism in the implicit notion that you're somehow not living up to your potential if you forego college in favor of learning a trade. If a high school graduate learns a trade and excels, the student has no need for a college degree. If a high school graduate learns a trade and struggles, she may find a greater incentive to identify and work hard in a certification or degree program that could provide for a more secure future.

The author suggests that college makes students more valuable as employees:

Moreover, new research... shows that college has benefits for employers who hire people like cashiers and construction workers, plumbers and police officers. These workers make more money than their non-college educated peers, and contribute more to their organizations by innovating and solving problems. So the benefit goes to the organization and to the individual.

We should not be surprised that, on the whole, students who have the aptitude to complete a college education will be better at innovating and problem solving than those who do not. If a police department has sufficient funding to require that its recruits possess a college degree, they are apt to attract a significantly different candidate pool than a department that offers lower pay and does not require a degree. Given the study and testing that is often associated with promotion within a police department, it should also be no surprise that police officers who have completed college end up earning more money. It is no surprise that workers in various fields of skilled labor will fare better, gaining better earning specialized skills, supervisory authority or ultimately starting their own businesses, if they have the aptitude to complete college. But let's not confuse cause and effect. Although there are benefits to a college degree, if you have worked in a field such as food service you will find that some employees innovate and solve problems even while enrolled in high school, and many others who are years out of high school lack similar aptitude. It's more likely that the former group aspires to go to college, or includes college students who are working part-time. So the question is, does completing a college degree make these workers significantly better at innovation and problem-solving, or is it that people who are innovative and good at problem solving are both more apt to enroll in college and to complete their degree programs?

When I talk to college instructors and professors I hear a number of complaints about the current generation of students, notably including that the "culture of dumb" has crept up from high schools into college classes - it's not "cool" to look too smart, so some students sit on their hands in class rather than participating in discussions or activity that would reveal their intelligence - and that students expect to work less than in the past but also have an increased expectation that they should get good grades. Recent studies suggest that college students study significantly less than they did a decade or two ago. Colleges are concerned about their budgets, which plays a role in grade inflation - many colleges don't want students to "flunk out" because then they won't be paying tuition. The net effect of this has not been lost on employers. Two generations ago you could start a promising career path based upon a college degree, even one that was arguably irrelevant to your chosen profession. A generation ago you could apply for jobs within your field of study and have a good shot of finding an employer willing to hire you. Today you are much more likely, even at the entry level, to have to go through a series of interviews for any job you wish to obtain, and are much more likely to be tested (be it an actual test or through carefully designed interview questions) as part of that process. The notion that a college degree is an automatic ticket to the middle class is not aging well. To an extent the problem is driven by a larger pool of qualified candidates - you can impose higher academic expectations in order to narrow the candidate pool while still having ample candidates to consider for pretty much any job. But it's also driven by the fact that as you diminish what it means to complete a degree program, employers must apply other measures to assess whether a candidate possesses knowledge and skills that might once have been presumed.

Meanwhile the most significant job growth is in lower-paying fields that do not require college degrees. The author is advancing another myth, that good jobs are waiting for most or all college graduates, even those near the bottom of their classes. I wish that were the case, but it is not. What does the author propose for the students she would like to see hand-held all the way through an undergraduate program, if they cannot find jobs when they finish? Graduate school?

In sorting through the comments to the article, I find some well-meaning souls, but... from a professor who has taught remedial classes:

I have developed a remidiation [sic] program in English that Rigoress [sic], Relevent [sic] and Relational 4 years ago.

I'm reminded of a story an English professor shared with me, about how a student had complained to him that she had received A's in high school, had received A's on all of her compositions while in community college, but was struggling to pass her English classes at his college and couldn't understand why. He asked that she bring in some of her work from community college and found that, although they were poorly composed and full of errors, not one had been marked with anything but the grade (consistently an "A") - no comments or corrections. His inference was that the community college instructor hadn't even bothered to read the papers before assigning the grades. But perhaps at some colleges even the instructors lack basic skills.

At the end of this, it seems reasonable to question the four year degree in and of itself. Is an undergraduate degree itself becoming an anachronism. With the evolution of student bodies and the rise of distance learning, should we still be looking at a four year residential degree as the gold standard? Even when the decreasing number of students who live on campus are apt to take at least one Internet-based course each semester from their dorm rooms? Perhaps the solution is less one trying to hammer square pegs through round holes, and more of trying to find ways to make meaningful, affordable, and suitable educational opportunities available to those who want to advance their knowledge and skills, even if that means moving away from the four-year model or away from the traditional concept of a college campus.

A New Version of Rick-Rolling

Dan Savage's latest jab at Rick Santorum - redefining "Rick".

I would say that the threat is tongue-in-cheek, but given the subject matter that might be misconstrued....

John Boehner is an Incompetent Speaker of the House

Even if we leave the best interest of the country aside, a guy who cannot convince his party to vote in its own overwhelming best interest, at least by policy standards that held through 2010, simply isn't up to the job.

I'll grant, perhaps the Republican party is now so packed with fools that nobody is up to the task.

Playground Safety Isn't a Bad Thing

John Tierney appears to have no love for internal consistency. In complaining that modern playgrounds are too safe he argues,

While some psychologists — and many parents — have worried that a child who suffered a bad fall would develop a fear of heights, studies have shown the opposite pattern: A child who’s hurt in a fall before the age of 9 is less likely as a teenager to have a fear of heights.

What does this mean in relation to modern, "safe" playgrounds?

“There is no clear evidence that playground safety measures have lowered the average risk on playgrounds,” said David Ball, a professor of risk management at Middlesex University in London. He noted that the risk of some injuries, like long fractures of the arm, actually increased after the introduction of softer surfaces on playgrounds in Britain and Australia.

The problem, then, is that safe playgrounds are making children less fearful of heights? While it's easy to believe that minor bumps, scrapes and bruises can help a child recognize that certain activities that look scary are reasonably safe, there's no reason to believe that the same holds true for serious injuries. Tierney chooses not to identify or link to any of the "studies" that support his assertions, but I doubt it's as binary an issue as he would have us believe. As kids are still getting injured, albeit in many cases less seriously, they should still be building a tolerance for heights.

“I think safety surfaces are a godsend,” [Adrian Benepe, NYC parks commissioner] said. “I suspect that parents who have to deal with concussions and broken arms wouldn’t agree that playgrounds have become too safe.”

Tierney blames the move for safer playground equipment and safety surfaces on lawyers, purporting that "Fear of litigation led New York City officials to remove seesaws, merry-go-rounds and the ropes that young Tarzans used to swing from one platform to another", linking to this article:

Monkey bars are disappearing in all parts of America, as safety guidelines, guarantees of accessibility for the handicapped and the play industry's self-policing have coalesced to force them out.

"The biggest reason is that this old playground equipment is not safe," said Dan Wagner, vice president of Landscape Structures Inc., a major manufacturer of new-style equipment based in Delano, Minn. "It's going on everywhere in the country."...

Many doctors agree that monkey bars are dangerous. "Of all the equipment in parks, it seems like the jungle gyms are worst in terms of injuries," said Ann DiMaio, director of pediatric emergency room services at New York Hospital/Cornell University Medical Center.

The article does mention fear of litigation, but does not suggest that those fears as opposed to the changes being principally motivated by improved safety and compliance with updated safety guidelines. The most serious injury mentioned in the article was a broken collarbone, with no indication that anybody even hinted at suing.

Here's the deal: Yes, safety standards change over time. Yes, as a result a lot of things that used to be less safe and more fun are now more safe and, in some case, less fun. Yes, that means if you ignore modern safety standards and regulations, you open yourself up to potential litigation when somebody is injured as a result of your bad choices. But Tierney's own source makes plain that the principal reason for making playgrounds safer is nothing more than that - diminishing the frequency and severity of injuries. That's a bad thing?

Also, while Tierney suggests that modern playground equipment is less fun than historic playground equipment, he misses a number of important issues. The first is highlighted in the article he references:

Dr. Harold Koplewicz, chief of child and adolescent psychiatry at the Schneider Children's Hospital of Long Island Jewish Medical Center, said the important thing is to give children of all ages as great a sense of freedom as possible. If a parent is screaming at a child to be careful on the monkey bars, it defeats this goal.

"We all had glorious times on the jungle gym when we were kids," Dr. Koplewicz said. "But for today's child, there is no loss. It is better for him not to be watched all the time."

The second is that children engage in a great deal of play that does not involve playgrounds and play structures. Tierney confuses novelty with sustained interest:

Still, sometimes there’s nothing quite like being 10 feet off the ground, as a new generation was discovering the other afternoon at Fort Tryon Park. A soft rubber surface carpeted the pavement, but the jungle gym of Mr. Stern’s youth was still there. It was the prime destination for many children, including those who’d never seen one before, like Nayelis Serrano, a 10-year-old from the South Bronx who was visiting her cousin.

There are monkey bars in a school playground near where I used to live, along with a couple of modern play structures, an older wood structure, swings, basketball hoops, and other amusements. The monkey bars, most often, are abandoned. As were the monkey bars at my childhood elementary school.

For all of Tierney's concern about a loss of opportunity for "risky play" on playgrounds, I'm left wondering how much time he has actually spent watching kids play. I took my daughter to a playground a couple of years ago, and while she was enjoying the structure, slides, tunnels, and was practicing jumping or dropping to the ground from what to a four-year-old was still a considerable height, a couple of tweens were also playing on the structure. And I do mean on - canopies and covered slides may be intended to keep the elements out and kids contained, but for older kids they can be just another platform to climb on. As for the concern,

“Older children are discouraged from taking healthy exercise on playgrounds because they have been designed with the safety of the very young in mind,” Dr. Ball said. “Therefore, they may play in more dangerous places, or not at all.”

At my childhood elementary school, the play structure was for "the little kids". Older kids were simply expected to find other ways to play, and the older kids did exactly that. Further, the idea that a school can provide a play structure of sufficient size and with sufficient variety to keep kids interested in sustained play, day after day, year after year, is absurd. If they're occasional amusements, fretting that they won't be the principal source of a child's exercise, moreso an older child's exercise, is similarly absurd.

China's Advantage Being... What, Again?

Thomas Friedman continues to fetishize China. Friedman contends that there is a sense in Europe and the Middle East, at least on the part of the ordinary people asked to bear the cost, that capitalism has failed to live up to its promise:

That is because there is a deep sense of theft in both countries, a sense that the way capitalism played out in Egypt and Greece in the last decade was in its most crony-esque, rigged and corrupt deformation, letting some people get fantastically rich simply because of their proximity to power. So there is a hunger not just for freedom, but for justice. Or, as Rothkopf puts it, “not just for accounting, but for accountability.”

Instead of arguing that we can improve or democratize the systems that have led to these failures and perceptions of failure, as you might expect, Friedman sees China as having the answers:

But there is an adult lurking. China has been buying Spanish, Portuguese and Greek bonds to help stabilize these Chinese export markets. “These are delicate times, and we take a positive role,” Yi Gang, deputy governor of the People’s Bank of China, told the British newspaper The Guardian in January.

The solution, then, is communism? To create a police state that can keep people from organizing and protesting? To save money by keeping the bulk of the population poor and uneducated, largely destined either for rural poverty or to grind out their days in low-wage factories and sweatshops, while convincing the likes of Friedman that the schools that serve the wealthy and powerful are representative of the entire nation's academic progress? To manipulate national currencies to gain an advantage in the export market? Friedman lectures,

Either we both put our nations on more sustainable growth paths — which requires cutting, taxing and investing for the future — or we’re looking at a world in which democracies are going to turn on themselves and fight over shrinking pies, with China having a growing say over how big the slices will be.

If we're looking to become China, Friedman should be lavishing praise on Cantor, not criticizing him and his ilk. A government can save money if it doesn't much care if its population at large has access to decent health care, quality schools, access to higher education, decent roads, a middle class standard of living, clean water and air.... Such things don't much matter if your primary goal is to ensure the wealth and privilege of those already at the top. That's where Eric Cantor wants to lead the country. And yes, you can make that future a reality without raising taxes. So which is it - is Eric Cantor a problem, one of a class of "reckless baby boomer politicians for whom no crisis is too serious to set aside political ambition and ideology", or is he part of the solution, bringing the realities of China home to America. Capitalism? Democracy? Hardly. Bring on the communist, totalitarian state!

The Economics of Law School

Good for law schools, good for the universities they subsidize, but... perhaps not so good for students.

For years, it made economic sense for smart, ambitious 22-year-olds to pay the escalating price for a legal diploma. Law schools have had a monopolist’s hold on the keys to corporate lawyerdom, which pays graduates six-figure salaries.

But borrowing $150,000 or more is now a vastly riskier proposition given the scarcity of Big Law jobs. Of course, that scarcity hasn’t been priced into the cost of law school. How come? In part, it’s because schools have managed to convey the impression that those jobs aren’t very scarce.

Law schools don't want students to understand the realities of the job market, because if prospective students understand that they will be borrowing well into the six figures to enter a job market in which most of them will earn salaries in a range similar to what they would have earned without the law degree, they'll consider other options. I expect that the long-term financial picture for law graduates remains better than the short-term, but if you don't get a job with a sufficient salary during your early years of practice and leave the field you'll get less, perhaps none, of that long-term benefit.

New York Law School's dean defended reporting a median graduate salary of $160,000 for 2009 alums to U.S. News and World Report,

He noted that the school takes the over-and-above step of posting more granular salary data on its Web site.

“In these materials and in our conversations with students and applicants,” he wrote, “we explicitly tell them that most graduates find work in small to medium firms at salaries between $35,000 and $75,000.”

On their website? I found this quite easily, but it suggests that the 41.5% of grads entering private practice earn "$35,000–$160,000" with an average of "$107,343", and the 26.5% entering "corporate/business" earn "$50,000–$150,000" with an average of "$86,667". If I were to extrapolate from the average salaries reported, I could reasonably infer that (including graduates entering fields such as judicial clerkships that involve a short-term sacrifice in salary in exchange for an anticipated income boost after the clerkship ends) the average graduate was earning just about $90,000 per year.

I also found this via Google, and the (not exactly front-and-center) statement:

The salary range for law graduates varies greatly. [For salary stats, visit: www.nyls.edu/employmentstats.] Large law firms offer the highest salaries, and in recent years their starting salaries were between $145,000 and $160,000. These are the highest paying entry level jobs for lawyers and, not surprisingly, the most difficult to obtain. Typically only the very highest ranked students in the class obtain these jobs....

A recent study of New York Law School alumni who graduated between two and four years ago showed their salary increases in their second and third jobs. First salaries in the $40,000 to $60,000 range were the most common (46 percent), but that shifted with the graduates’ second and third jobs to the least common (20 percent). At the same time, salaries in the $60,000 to $90,000 range grew from 22.5 percent to 35.5 percent. Salaries in the range above $90,000 grew from 26 percent to 40 percent. All of these job changes occurred within four years of graduation.

I found this article via Paul Campos, who is quoted in the article,

“I’m 100 percent convinced that Matasar believes in his reformist agenda,” says Paul F. Campos, a professor at the University of Colorado at Boulder School of Law and a Future Ed attendee. “But all reformers discover that they can’t change a system by themselves. And by trying to survive in the current structure, he has ended up participating in the perpetuation of its most indefensible elements.”

Is he talking about law schools... or Congress? Alas, he's talking about human nature. At LGM, Campos adds some thoughts:

One result of these trends [in tuition] is that the 84% of 2010 UM Law grads who borrowed money during law school graduated with an average debt of $112,133. (That class matriculated when tuition was nearly $10,000 per year lower, so the entering class of 2011 is likely to average close to $150,000 in law school debt when it graduates three years from now)....

All this has been taking place at a time when the number of jobs for law graduates whose salaries justify six-figure debt loads has dropped sharply. Meanwhile, legal academia has barely begun to grapple seriously with the issue of who (other than independently wealthy people and partners of well-paid spouses) is going to be able to afford to take public interest legal jobs, the vast majority of which pay salaries that will not allow today’s average law school graduates to service their educational debts while at the same time paying for even a modest life style. (Note that the figures on law school indebtedness do not include undergraduate or consumer debt).

Law professor salaries are, of course, higher than ever.

The Republican Balanced Budget Amendment - Another Exercise in Vapidity

Apparently the nation cannot get enough budgetary Kabuki theater, so the Republicans want to enshrine their present nonsense into the Constitution. Having reviewed the present Republican proposal for a balanced budget amendment, it would seem that the Republican Party leader gets dumber or less honest... maybe both... with each passing year.

A small dose of honesty would be nice: Congress controls the budget. If Congress wants to balance the budget, all it needs to do is pass a balanced budget. It managed to do that a few times under President Clinton, so it's not like we're dreaming the impossible dream here. The Republican Party shouldn't need to amend the Constitution to give itself sufficient inspiration to do its job.

But truly, this "balanced budget amendment" is made to be broken. It contains intentional loopholes that every Congress can and will drive a truck through. To the extent that it works, it guarantees the type of budgetary gridlock that has paralyzed California's legislature for years. But it won't work, and it will become a matter of routine for Congress to pass resolutions putting it off to the following year or impose disaster on the nation.

Section 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless two-thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific excess of outlays over receipts by a roll call vote.

So Congress must balance the budget unless it votes not to balance the budget. We're adding a supermajority requirement to the status quo.

``Section 2. Total outlays for any fiscal year shall not exceed 18 percent of the gross domestic product of the United States for the calendar year ending before the beginning of such fiscal year, unless two- thirds of the duly chosen and sworn Members of each House of Congress shall provide by law for a specific amount in excess of such 18 percent by a roll call vote.

There is no basis for imposing an arbitrary cap on spending, and it should go without saying that such a cap could paralyze the nation in a time of crisis, such as a recession (like the present one) in which the GDP drops and huge, immediate spending cuts are required, resulting in a downward economic spiral. Or Congress votes to exempt itself from the cap and finds itself locked into the pattern of having to continue to exempt itself, year after year, because the insanity of the cuts required by the cap spirals upward with each passing year. It also encourages Congress to play budgeting games. Rather than including an expenditure in the current year's budget, commit to pay for it next year - make it the problem of the next Congress. And once again, if Republicans want to commit to only voting for budgets for which total outlays do not exceed 18 percent for the fiscal year, they may do exactly that.

``Section 3. Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which--
``(1) total outlays do not exceed total receipts; and
``(2) total outlays do not exceed 18 percent of the gross domestic product of the United States for the calendar year ending before the beginning of such fiscal year.

Why? Congress, the body charged with passing the budget, is so incompetent that it cannot propose a budget within these parameters? No, really, this is about Kabuki theater and the avoidance of responsibility. The Republicans want to be able to blame the President for unpopular cuts. "We only did what was in his budget.

If they cannot reasonably meet this requirement, Presidents, not being stupid, will take one of the many obvious paths around this requirement. One way would be to submit two budgets to Congress, one that complies with this requirement and the other that it the actual spending proposal.Another might be to simply include a line, "If Congress finds that this proposal exceeds the limits set forth in 'Section 3' of the balanced budget amendment, Congress shall determine the percentage by which this budget proposal exceeds the limits and reduce all items by that percentage." Another would simply be to propose a budget based upon unrealistic revenue projections.

Section 4. Any bill that imposes a new tax or increases the statutory rate of any tax or the aggregate amount of revenue may pass only by a two-thirds majority of the duly chosen and sworn Members of each House of Congress by a roll call vote. For the purpose of determining any increase in revenue under this section, there shall be excluded any increase resulting from the lowering of the statutory rate of any tax.

Because this approach works so well in California?

Seriously, Republicans have proved themselves capable of blocking tax increases, the closing of even absurd tax loopholes, or even the scheduled expiration of tax cuts, while in the minority. I will grant that this type of provision gives the likes of Grover Norquist wet dreams, but why is it actually necessary, let alone desirable, if you're concerned less with your trust fund and more with the welfare of the nation?

Section 5. The limit on the debt of the United States shall not be increased, unless three-fifths of the duly chosen and sworn Members of each House of Congress shall provide for such an increase by a roll call vote.

So we'll have additional rounds of the childish Kabuki theater we're presently "enjoying", but with a supermajority requirement such that a minority of Congress can hold the nation hostage, potentially destroy the nation's credit rating, and potentially trigger a national or global recession or depression. By refusing to authorize the government to borrow money to cover the financial obligations Congress has already authorized? Brilliant. Here's an idea: If Congress doesn't want the money spent, it should refrain from including the expenditure in the budget.

This type of provision makes you wonder if the Republicans want to be taken seriously. There is no constitutional requirement that there even be a debt ceiling. It's entirely a legislative creation. Congress could render this language a nullity simply by repealing the law setting a debt ceiling.

``Section 6. The Congress may waive the provisions of sections 1, 2, 3, and 5 of this article for any fiscal year in which a declaration of war against a nation-state is in effect and in which a majority of the duly chosen and sworn Members of each House of Congress shall provide for a specific excess by a roll call vote.

This gives the President cause to seek a declaration of war against a nation state, or to continue to declare that hostilities remain open in relation to a previous declaration of war. This could pretty much guarantee that the U.S. is always in a declared war against a nation state. We might have declared wars in Iraq and Afghanistan. Heck - had this requirement been in the Constitution back when Reagan was running up the deficit, we might still be in a declared state of war against Grenada. What brilliant foreign policy the Republicans would create by giving Presidents even more incentive to take military action against foreign nations, and drag out those wars and occupations rather than bringing them to the fastest possible resolution.

Note that the one thing a war would not do is allow for a tax increase based upon a majority vote of Congress. It's better, after all, to risk sending ill-equipped, ill-supported troops into battle than to risk that a majority of Congress might raise taxes in order to properly fund the war effort.

Section 7. The Congress may waive the provisions of sections 1, 2, 3, and 5 of this article in any fiscal year in which the United States is engaged in a military conflict that causes an imminent and serious military threat to national security and is so declared by three-fifths of the duly chosen and sworn Members of each House of Congress by a roll call vote. Such suspension must identify and be limited to the specific excess of outlays for that fiscal year made necessary by the identified military conflict.

So if a President declares something along the lines of a Global War on Terror, we can expect Congress to authorize hundreds of billions of dollars in new debt without concern for if or when it might be repaid. And we raise the serious risk that a minority of the members of a new Congress might decline to continue war spending authorized by a prior Congress, or might demand ridiculous concessions if we want to avoid walking away from a military commitment or leaving troops in the field without adequate support. Small chance, you say? Some wars should be defunded? Even accepting that, this language creates an unnecessary potential national security risk.

Note also the lack of consideration for other contingencies. Massive natural disasters? Huge regional power grid failures? Another financial industry collapse? A recession that could turn into a depression? Domestic emergencies, it seems, are of little import - which I guess is consistent with the Republican Party's actions and the Bush Administration's record - but aren't they supposed to occasionally pretend that they care about responsibly governing this country?

Section 8. No court of the United States or of any State shall order any increase in revenue to enforce this article.

To enforce which provision? This seems gratuitous, but appears to have been thrown in to satisfy certain right-wing think tanks who criticized prior balanced budget amendments for leaving open the possibility of enforcement through the courts.

I suspect that at the heart of this provision is a recognition by the Republicans that, should this pass, at times they'll want to fake it and run up a deficit based on revenue projections they know to be false, or they fear that a recession will turn their projected balanced budget into a deficit-generating budget, and that somebody might try to go to the courts to compel that the budget actually be balanced. Nobody, but nobody, is going to tell a Republican Congress how to do its job, particularly when it is failing in that job.

``Section 9. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except those for repayment of debt principal.

This language, of course, targets the Social Security trust fund. The Republicans are proposing to steal it, fair and square.

``Section 10. The Congress shall have power to enforce and implement this article by appropriate legislation, which may rely on estimates of outlays, receipts, and gross domestic product.

Well, duh?

Section 11. This article shall take effect beginning with the fifth fiscal year beginning after its ratification.

Typical legislative cowardice. "We don't want this to hurt us in the coming election... or the one after that. We don't want this to harm our next presidential candidate. But after five years many of us will be retired and rewarded with cushy sinecures."

I don't believe that the Republicans actually want this nonsense to become part of the Constitution, with the caveat that a significant faction of the Republican caucus is willing to take any number of reckless and stupid risks they know could harm the country if they believe their actions could also harm the Democrats. If they muck up the country and the Constitution in the process, so be it - this is about money and power. The balanced budget proposal is a ploy for the next election, so they can claim to have been seriously trying to force themselves to act responsibly, but that those darn Democrats keep making them run up the deficit.

I'll repeat myself: If the Republicans truly want to balance the budget, all they need to do is pass a balanced budget.

The President and Structural Unemployment

Paul Krugman writes,

I’m not alone in marveling at the extent to which Obama has thrown his rhetorical weight behind anti-Keynesian economics; Ryan Avent is equally amazed, as are many others. And now he’s endorsing the structural unemployment story too.

Here's the thing: if the President says, "The unemployment issue isn't structural," he has to explain why he's not doing more to address the issue, arguably putting his weight behind the idea that the President has enormous personal power to influence the employment rate, and that if you believe unemployment is too high you should vote for somebody else in the next election. By suggesting that it's structural, the President is taking a position that distances the White House and its policies from the high unemployment rate. So it may not be good economics, but it may well be good politics.

Building an Economy of Bubbles

Thomas Friedman offers some good general ideas on the future of the job market and information economy, but at the same time he appears to be a poor student of history:

Look at the news these days from the most dynamic sector of the U.S. economy — Silicon Valley. Facebook is now valued near $100 billion, Twitter at $8 billion, Groupon at $30 billion, Zynga at $20 billion and LinkedIn at $8 billion. These are the fastest-growing Internet/social networking companies in the world, and here’s what’s scary: You could easily fit all their employees together into the 20,000 seats in Madison Square Garden, and still have room for grandma. They just don’t employ a lot of people, relative to their valuations, and while they’re all hiring today, they are largely looking for talented engineers.

Friedman could have written the same column back in the 1990's, and he would have been talking about Yahoo!, HotWire, AltaVista, Inktomi, Lycos, AskJeeves.... Or he might have focused on shopping, and lectured us about how Amazon, Pets.com, Boo, Webvan, Kozmo and eToys were going to transform retail - but would have completely missed the boat if he had focused on the market valuation of those companies. Valuation can also be remarkably subjective and unstable. "LinkedIn at $8 billion" - that was "so five minutes ago" - this week it's $10 billlion. In a few months... $20 billion? $2 billion? Time will tell.

Were he to look at that history, Friedman might also notice some serious clustering - companies that are in some senses stepping on each other's toes, copying each other's information, and fighting not necessarily to be the best on the market but to become sufficiently popular that the market consolidates behind them. Facebook has been trying to eat Twitter's lunch ever since the latter service became popular. Google is trying to eat everybody's lunch - and is in the process of rolling out serious competition to Facebook, LinkedIn and Groupon. It's quite possible that a few years from now Google will be the last man standing, and (as with Bing) it's biggest competition in those markets will be from a company that has not yet even entered the market.

Here's another dirty secret: A big part of what these companies is emulation, not innovation - copying the features of their competitors or buying smaller competitors or innovators. Twitter has been on an acquisition spree, consolidating under its roof any number of services that used to be available only as third party add-ons. Facebook was far from the first social network. Like Google with other search engines, they were the late arrival that took down the pioneers, SixDegrees, Friendster, MySpace, Google's own Orkut.... The tech side can actually lag. Facebook would benefit in a serious way from migrating off of MySQL, but they grew so large, so quickly that the technical hurdles to a smooth migration are enormous, so they keep putting it off.

I was joking with a Google employee that they've hired all of the good programmers. I have had nothing but bad luck hiring programmers who prove less than competent, or less than honest about their abilities, in relation to my own web properties, despite paying out quite a lot of money. Those at the top of their game who don't want to work for a company like Google can often make a ton of money developing their own projects, and thus see little need to freelance. Yes, all tech companies are looking for talented engineers, and some of the salary wars between Google and Facebook could make anybody jealous, but part of the issue is that there are relatively few engineers who can compete at that level. They, perhaps more than any other group, do need to stay on top of their fields lest they find themselves able to support only yesterdays' technology, but they're far from a majority of the 20,000 employees that Friedman attributes to his short list of websites. Groupon, for one, employs a great many copywriters and salespeople.

Something else that is interesting about Friedman's list is that the companies he lists are principally about connections - connecting people to people, or helping businesses reach and market to consumers. Friedman later writes that employers want employees who can "adapt with all the change, so my company can adapt and export more into the fastest-growing global markets" - but none of the companies he lists actually produces a tangible product. Ironically, in this "great recession", businesses that actually produce goods often have excess capacity and are thus not hiring or expanding, and depressed consumer demand reduces the export markets. So you have a lot of wealthy people and institutions who have no place to put their money in a conventional economy - so they either sit on their money waiting for the economy to improve, or they help drive up the value of companies like the ones Friedman lists in the hope that the latest group of Internet "rising stars" will fare better than their historic predecessors. History tells us that five years from now there will be two or three social networks, one of which will likely have at least 60% of the market, and one of which will likely be desperately trying to reinvent itself in order to remain relevant. Facebook may be the one on top, or it may look more like MySpace, or it may look more like SixDegrees. When you look at a $100 million valuation, you need to at least consider the following thoughts: "high stakes gambling" and "Pets.com".

At the end of the day, there's a reason that Friedman is only able to identify a small number of highly valued companies with small numbers of employees: even in a bubble the economy can only sustain so many companies that are trying to sell us social games, social networks or social marketing. Were Friedman to expand his list to include established companies with proven revenue streams, or high tech companies that produce and export tangible goods, he would need a much larger stadium. You don't build a sustainable economy by pointing to a bubble and saying, "Everybody should do that," or by pointing to a small industry that employs only 20,000 people (probably no more than 20% of whom are the type of innovator Friedman describes) and arguing that everybody should try to develop the skills necessary to compete for those jobs.

Staying Competitive in a Modern Employment Market

Thomas Friedman has noticed something that is incredibly new, unless you happened to be paying attention to the of the job market over the past four decades:

Whatever you may be thinking when you apply for a job today, you can be sure the employer is asking this: Can this person add value every hour, every day — more than a worker in India, a robot or a computer? Can he or she help my company adapt by not only doing the job today but also reinventing the job for tomorrow? And can he or she adapt with all the change, so my company can adapt and export more into the fastest-growing global markets? In today’s hyperconnected world, more and more companies cannot and will not hire people who don’t fulfill those criteria.

It's important to note up front that a lot of the work that has to be done, day in and day out, in a typical work place is mundane. Yes, in many industries more mundane jobs (including white collar jobs) are increasingly outsourced to other companies or nations, but few people can claim that they get paid principally or mostly to think and innovate.

I accept the thesis that workers need to be more entrepreneurial, more able to create their own jobs and justify their own compensation, both in the present job market and in the foreseeable future. But the days of finding a job with an employer, then staying with that employer (and perhaps remaining in that job) for an entire career, are long over. I recall hearing in the 1990's that my fellow graduates were likely to change jobs six or more times during a career, and that people were changing jobs roughly every three years. Yes, if we could, many of us would choose Friedman's path, find a sinecure with the New York Times and over a course of decades pontificate about how others need to innovate and change. (Oh - and let's not forget marrying a wealthy heiress.) But for most modern college graduates that has never been more than a dream.

Also, let's face it, not everybody is cut out to be an entrepreneur, or to continually identify and augment their most valuable job skills. People tend not to go the extra mile unless they see clear consequences arising from their failure to do so. I expect that Friedman knows the importance of his employer's website, and that a great deal of energy is put into the technical side. But do I think he's mastered modern technology, above and beyond the word processor? Let's just say, I haven't seen any reason to believe so. I am skeptical that Friedman knows anything about the New York Times' web servers or their management, their CMS or its management or development, or that he plays any significant role in the company's innovations. I'm not accusing Friedman of being a hypocrite, although I am accusing him (if that's the word) of being an extremely lucky man. I'm simply pointing out how even somebody who sees how dramatically the world is changing, and how easily he could be left behind, might nonetheless assume that change is something that only happens to other people, or still not perceive a sufficient incentive to reinvent and expand his own skills.

Job Reviews Should Be Continuous, Not Scheduled

Thomas Friedman has described what he sees as an innovation in the supervision of employees:

Today’s college grads need to be aware that the rising trend in Silicon Valley is to evaluate employees every quarter, not annually. Because the merger of globalization and the I.T. revolution means new products are being phased in and out so fast that companies cannot afford to wait until the end of the year to figure out whether a team leader is doing a good job.

Performance review is an important part of supervision, but in my experience it's largely a bureaucratic wasted effort. Supervisors "do their job" by interviewing their employees once per year, checking a few boxes on a form, perhaps typing up a few paragraphs of commentary, and calling it a day. When performance falls within the acceptable range, and sometimes when it falls below the acceptable, all too often the content of a review is driven more by personality than performance. It's not unusual to hear an employee complain, "I had fantastic reviews every year, but my new supervisor hates me and gave me a bad review" - but the real issue may be that the former supervisor didn't want to hurt their feelings or didn't have the courage to give an honest review of the employee's mediocre work.

To be effective, review needs to be ongoing. You'll do much better for your employee and company if you identify a problem in its early stages and start mentoring (or, if necessary, disciplining) the employee at that time. If you have a problem with an employee that has been brewing for a year, you are seriously derelict in your supervision of that employee if the first time he hears about it is during his annual review.

Moving reviews to a quarterly basis may help overcome the "annual review" effect, because issues are more likely to be addressed close to the time they arise. The quality of the review process, and whether the supervisor sees it as part of mentoring employees or as paperwork that will go, unread by anybody else, into a personnel file, still matters. But if done correctly there is an increased opportunity to reward competence and correct problems, and a structure that may help identify issues that might fall beneath the notice of a supervisor if no formal review plan were in place. Done wrong, it will simply waste more of everybody's time.

Friedman is speaking about something else, the need for employees to stay at the top of their fields. In association with that, he overstates the product cycle for a typical company - it's a rare high tech or Internet firm that rolls out new products by the quarter instead of the year, and it's a rare product that will be developed inside of one to two quarters. He also misunderstands that many to most workers, even in high tech fields, are not actively developing products. The supervision of support personnel can provide a better environment for the innovators, and can help ensure quality customer service, improved cash flow and the like, but in most industries a relatively small percentage of the employees are charged with innovation or spearheading the most important new products. For many employees, even in tech firms, it will be personality issues, core competence and work ethic that are the principal considerations in their performance review, not whether they've mastered the latest programming tools and techniques.

Justices Breyer and Bork - Separated at Birth?

Back when I was in my first year of law school one of the professors, regarded by most students as a political partisan, told the class not to worry - when grading the exam, he promised, he would not take politics into consideration. He later refused to give the book award to a student who, although from the opposite end of the political spectrum, wrote what to a casual reader might have appeared to be a parody of the professor's ideology - by virtue of blind grading he earned the highest grade in the class. To the odds that they disagreed with the professor, students who adhered to their own political viewpoints fared considerably less well. I discussed the class with an experienced professor who explained that I should not view the professor as having broken his word. He argued that, in the mind of the professor, he was not grading students down for their ideology. More likely, he was issuing lower grades to the students who gave the wrong answer, which just happened to be any answer that did not mesh with his ideology. From a student's perspective that may seem like a distinction without a difference - either way you have to comport your views to those of the professor to get a top grade.

An editorial by Professor David Bernstein of George Mason Law School and one of his former students, which I think can be reasonably described as an attempt to vilify Justice Stephen Breyer, brought that experience to mind. If Professor Bernstein believes his editorial to be an example of good reasoning, it is difficult for me to imagine how he would grade a well-reasoned exam addressing a similar issue. No, I'll correct that: I imagine that the experience would be analogous to that of students in the aforementioned law school class.

The editorial asserts that,

In the nine cases that split 5-4 along ideological lines in the court’s past term, Breyer wrote four dissenting opinions — only one fewer than Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan combined.

This is a troubling development for those, liberal or conservative, who value the Constitution’s protections of individual liberty.

Usually, law professors are a bit more nuanced in describing how the court makes its decisions. The justices, we are told, may apply different ideological approaches to constitutional interpretation, but its simplistic to reduce cases to mere ideology with the "liberals" on one side and "conservatives" on the other. Yet here we have a sample size of nine cases that split 5-4, and for which Bernstein is suggesting that the deciding factor was not law, but was a clash of liberal versus conservative ideology.

Let's leave aside for the moment whether Bernstein's selection of the nine cases was objective and assume that, despite the tiny sample size, he's not making a hasty generalization. What is it that Bernstein is suggesting that we should find disturbing? Is he suggesting that we should be disturbed that a justice dissented in four of those nine opinions, the proposed superior alternative apparently being to jump into one ideological camp or the other. Or is he suggesting that we should be disturbed by the other eight justices who, unlike Breyer who is the most likely to decline to jump into one ideological camp or the other, join opinions based on ideology as opposed to the opinion best supported by the law and facts? We can infer from the tenor of the editorial that it's the former, but there is no basis to be disturbed based on those facts alone. When Justice Scalia was best known for writing dissenting opinions was he a disturbing ideologue, whose views have since tempered, or could it be that as justices retire and are replaced it's possible to hold the same opinions while nonetheless ending up joining or dissenting in a markedly different percentage of the cases you hear?

Bernstein continues,

Contrary to American tradition going back to the Declaration of Independence, Breyer believes not in liberty against government overreaching, but in what he calls “Active Liberty” — the right of democratic majorities, guided by elite experts, to govern as they see fit.

Wouldn't it be more accurate to say that Breyer is proposing an ideology that stands in contrast to Scalia's text-based originalism, with the idea being that you need to look beyond the words and their original meaning, and examine the intended purpose of constitutional language when interpreting that language? That when reviewing legislation that fits within the broad parameters of Constitutional language, democracy has a leading role: "That space is for people to decide for themselves what they want. And [the Supreme Court is] just policing the far boundaries of that space"? Whether or not you agree with his philosophy, has Breyer ever described active liberty in a manner for which Bernstein's description is a fair summary, or even a fair parody?

Having announced in the headline to the editorial¹ that "Breyer shows progressive streak", Bernstein makes an interesting claim, that Breyer is like Robert Bork:

Like Breyer, Bork rejected modern cases protecting individual rights, instead favoring majority rule — and as a result was denied a Supreme Court seat.

That is, based upon his dissenting in four close cases, and upon Bernstein's interpretation of his philosophy of "Active Liberty", Breyer the "progressive" is difficult to distinguish from a nominee generally considered to be at the far right of the political spectrum. I guess we're not striving for internal consistency?

Bernstein argues based on Breyer's dissent in Brown v. Entertainment Merchants Association that "While Breyer claims to believe in self-government, his opinions reveal contempt for its most basic aspect: the right of individuals to run their own lives free from excessive government interference." To this end he argues that Breyer does not adhere to post-1930 cases giving an expansive interpretation of the First Amendment, and instead believes that "most laws that infringe on freedom of expression should be upheld if the government has a rational reason for interfering with free speech, an extremely forgiving and deferential standard." Given that Bernstein's principal hobby is "Rehabilitating Lochner", that is, returning to the philosophy of a 1905 case that held it impermissible for a state to regulate employees' working hours, it seems a bit odd that Bernstein is attacking Breyer for taking an approach to the First Amendment that the Lochner majority might find to be absurd and unsupportable by the Constitution. Also, although for different reasons haling back to the "founding generation’sunderstanding of parent-child relations", Clarence Thomas also dissented. That's not a rejection of 20th century First Amendment jurisprudence? Or, as with Bork, are Thomas and Breyer two peas in a pod?

Also, if we are to be bent out of shape because Breyer dissented in four of nine 5:4 decisions, why is Bernstein's only example from that same term a 7:2 decision? Should we infer that he found no support for his thesis in the opinions that supposedly best support his thesis? Also, Brown v. EMA was at its heart about protecting minors. Should it not be mentioned that the courts apply different standards in cases involving minors than in cases that involve only adults, Morse v Frederick (the "Bong Hits for Jesus" case) being a case in point? For that matter, how do Breyer's votes in cases like Gonzales v. Carhart and Lawrence v Texas support the idea that he defers to the popular will or advances a 19th century ethos at the expense of individual liberty?

Bernstein then adds to the mix another Justice who is just like Breyer (and thus, presumably, just like Bork and possibly Clarence Thomas): Oliver Wendell Holmes, Jr.

In this and other contexts, Breyer's jurisprudence harkens not to great liberal justices of the mid-to-late 20th century, such as Earl Warren and William Brennan — who whatever their flaws, had a deep and abiding belief that civil liberties must be protected from government encroachment — but to an earlier generation of judges associated with the progressive movement, such as Justice Oliver Wendell Holmes Jr.

It appears that Bernstein is following the common deception of taking two completely unrelated political movements that operate under the label, "progressive" and implying to his readers that they are the same. The first movement is the long-extinct Progressive Movement of the late 1800's to early 1900's, and the second being a population of modern liberals who, having seen that political label successfully tarred by Ronald Reagan, prefer the term "progressive" as a less politically loaded alternative. This is a common tactic employed by those who attempt to tar modern liberals with the host of discredited philosophies of the completely unrelated historical Progressive Movement. It is technically true to say that there are Justices associated with the historic Progressive Movement, but it is abject dishonesty to imply that those Justices were progressives in the modern conception of the term. Bernstein's own assertions belie his attempt to associate Justice Breyer with that historic movement:

Like Breyer, many early 20th century progressive jurists had a soft spot for protecting political speech, but they otherwise rarely met a statute they thought exceeded constitutional boundaries. These progressives advocated deference to the government for the same reasons Breyer articulates: reverence for experts, belief in majority rule, and the need to protect society from itself. As a result, progressive judges approved segregation laws, laws banning private schools, laws limiting women’s ability to participate equally in the workplace, and more.

So the question follows: Where in Breyer's seventeen years on the Supreme Court can I find support for the notion that he would vote to uphold segregation, ban private schools, exclude women from the workplace, or... support whatever it is that Bernstein summarizes as "and more"? Breyer is just like the historic progressives, except that he would explicitly reject their legal reasoning and conclusions on every issue Bernstein mentions? Also, if support for segregation and diminishment of protections against workplace discrimination are hallmarks of "progressivism", by Bernstein's measure which of the Courts conservative justices aren't markedly more "progressive" than Breyer? What of history's many conservative justices who voted for the parade of horribles mentioned by Bernstein, along with forced sterilization of people deemed mentally defective - short of an unwillingness to let the state define maximum workweek, is historic conservatism a movement that is also too deferential to state power? Perhaps he intends to reference process, not product, but it is difficult to see how we can characterize Breyer and Bork as unduly deferential to legislatures and democracy given that they so often come to opposite conclusions.

When New Deal liberals took over the Supreme Court in the late 1930s, however, they rejected the earlier progressive vision and proceeded to provide strong protection for the rights listed in the Bill of Rights.

And if it needs to be said, the philosophy of those liberal justices is at the foundation of modern liberalism, even when it's rebranded as progressivism.

Breyer’s apparent ascendancy as doyen of the court’s liberal wing threatens to roll back decades of these pro-liberty precedents, and to destroy the consensus on the court that freedom of speech and other essential rights must not be sacrificed to the shifting whims of legislative majorities

We're again back to the prior logical error, that something has changed about Breyer that has caused him to "ascend" to some sort of pivotal role. In fact we're seeing the same phenomenon we've been witnessing for many years - as the composition of the court changes and its ideological balance shifts, a justice who used to be clearly in one political camp or the other is suddenly characterized as a "swing vote". He still has only one vote, his voting record remains consistent, but suddenly he's treated as if he is the sole decider on the court, the most important vote. Really, he still has one vote.²

If Bernstein is correct that Breyer hopes for a return to the First Amendment jurisprudence of the eighteenth and nineteenth century³ we have nothing to worry about, as the iconoclastic yearning for a return to yesteryear by the two dissenting justices, justices who don't even agree with each other, falls far short of creating a majority. Moreover, if Bernstein is professing to be concerned only with the "majoritarianism" of judges like Bork and Breyer, even if you accept his point there is obviously nothing inherent to that judicial philosophy that "threatens to roll back decades of... pro-liberty precedents" as it is clear that Breyer has largely voted in favor of their continuation. That is, even if we assume that the historical Progressive Movement, Bork and Breyer all share the same philosophy of law and constitutional interpretation, there is no consistency in their application of that philosophy. If Bernstein is right, there is an echo of Holmes. Justice Holmes was known as "The Great Dissenter". If Bernstein's prognostication proves correct, the most likely outcome is that Breyer will earn the appellation, "The Not-So-Great Dissenter".

Meanwhile, it appears that judges on the left of the court can't win. If they reject legislation they're activist. But if they instead presume constitutionality and defer to Congress, it seems that they're heirs to the historic Progressive Movement.

Update:  Bernstein has posted a follow-up,

The basic point of the op-ed is that,,, Breyer’s intellectual roots are less in the sort of modern liberalism that animated the likes of William Brennan, and more “in pre–New Deal, early twentieth century progressivism, an outlook with an animating faith in government by expert, acting as stand-ins for the (uninformed) people at large.”

This does not, of course, mean that Breyer would vote the same way in particular cases in 2011 as a Progressive would have in 1911. Breyer, like everyone else, has been influenced by the civil rights movement, the women’s movement, and other massive social changes that have taken place in the last one hundred years.

That, like Bernstein's comments to his original post, contradicts the position taken in his editorial that "Breyer’s apparent ascendancy as doyen of the court’s liberal wing threatens to roll back decades of these pro-liberty precedents, and to destroy the consensus on the court that freedom of speech and other essential rights must not be sacrificed to the shifting whims of legislative majorities." In the most technical sense that's not inconsistent, but it leaves one wondering exactly what liberties Bernstein has in mind that might be rolled back. In the specific context of Brown v. EMA, one might ask Bernstein, "What did Justice Brennan think about video games. Did he enjoy them?" As I recall, the conception of free speech of the early 20th century, while trending toward increased protection of speech rights, initially took for granted that the state could censor and ban the import of books, censor movies, put serious restrictions on commercial speech, impose the Fairness Doctrine, and broadly restrict speech in the interest of protecting women and children - positions considerably more restrictive than that proposed in Breyer's dissent. The more convincing argument was made by Bernstein's co-author in a comment, that "Breyer’s conception of constitutional law is grounded in the modern-jurisprudence that emerged during the Warren Court when he went to law school, and clerked" - but that claim was cut from the editorial for the obvious reason that it contradicts the thesis that Brennan's conception of constitutional law is grounded in the historic Progressive Era.

Having walked back from his claim that Breyer will roll back civil rights, Bernstein continues,

But it does mean that he is prone to making the same category of error pre-New Deal jurists made, in giving too strong a presumption to legislative outcomes supported by a consensus of elite experts at the expense of individual rights.

Bernstein suggested in comments to his original post that there have been many conservative justices in the 20th Century who have given similar deference to legislative outcomes, defending his selective criticism of Breyer, "Do you expect me to write a 2011 op-ed about William Rehnquist? Robert Bork? Maybe John Marshall Harlan II?" No, but not because people don't remember Rehnquist. I don't expect it because if you were to write an editorial accusing William Rehnquist of being an heir to the Progressive Movement, and lament that he would defer to Congress in contexts in which Justice Brennan would have held a law to be an unconstitutional infringement on our rights, you would create immediate cognitive dissonance on the part of the reader. "But Rehnquist was a judicial conservative who upheld the constitution rather than 'legislating form the bench' like the 'liberal' justices."

Bernstein initially suggested that Breyer might have upheld the detention of people of Japanese ancestry during WWII, "Breyer discusses Korematsu at length in a recent book, and he never does get around to saying that the Court should have deemed Fred Korematsu’s detention illegal". He then has to correct himself, grudgingly admitting, "Breyer does offhandedly state on page 191 that Murphy, dissenting, was right in the Korematsu case itself, even though his opinion was unworkable" and asserting "that Korematsu would not, under Breyer’s view, have been entitled to a speedy, individualized hearing upon detention, much less immediate release". He complains, "it’s not clear on what grounds the Court Breyer thinks the Court could have ordered Korematsu’s release while still appropriately deferring to the executive", apparently failing to consider that his own thesis may be incorrect or overstated and that Breyer might feel little to no need in a case such as Korematsu to defer to the executive.

Bernstein explains himself,

Obviously, my views are not on the modern liberal/progressive left, so I’m not going to be particularly happy with any given liberal Justice. But I much prefer left-leaning judges who have a strong sense of the importance of individual rights and the dangers of excessive government authority than ones who do not.

The funny thing is, he seems to have next to nothing to say about, by his own count, the far greater number of conservative judges and justices who have little sense of the importance of individual rights and the dangers of excessive government authority. It's horrible that Breyer will largely vote to uphold certain civil rights despite his ostensible tendency to defer to the legislature, but it's no biggie that conservative courts have spent decades actively scaling back our rights due to an identical tendency? Is the distinction truly that Justice Rehnquist is yesterdays' news, or could it be that Bernstein largely agrees with conservative judicial activism and thus his silence is driven by ideology.

At the end of all of this it appears that you could summarize Bernstein's editorial in one sentence, "Justice Breyer is more inclined than any other liberal Supreme Court justice to defer to the legislature at the expense of our civil rights, placing him within a larger camp of conservative judges who do the same thing, the key difference being that Breyer is a liberal and thus the theoretical implications of his deference are of much greater concern than the actual roll-back of many civil liberties at the hands of those conservatives."
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1. The headline to an editorial is often selected by the publication, not the author; that headline implies that the editorial page editor conflates modern liberalism (under the name of progressivism) with the historic Progressive Movement, and interpreted Bernstein's editorial as supporting that belief. Bernstein argues something else in the comments to his blog post on the subject, but the headline does appear consistent with the actual text of the editorial.

2. Bernstein adds in a comment,

[S]ince the 1950s, it’s been them, far more than the liberals, who have been the heirs to the Progressives, especially on 14th Amendment issues. Which is why it’s important to nip the Breyer thing in the bud.

So for sixty years Bernstein believes that a terrible judicial philosophy from the Progressive Movement has been championed by conservative justices, so it's important to "nip in the bud" the first instance of a left-leaning judge who ostensibly shares that approach? With "nipping in the bud" translating into "raising the subject after he's served on the court for seventeen years"?

3. Bernstein's co-author comments,

In a portion of the Op-Ed we trimmed, we wrote about how Breyer’s conception of constitutional law is grounded in the modern-jurisprudence that emerged during the Warren Court when he went to law school, and clerked.

I would not be surprised if that argument is convincing, but I thought the argument was that Breyer's conception of constitutional law reflects a pre-1930's sense of individual righs and a conception of constitutional law associated with the historic Progressive Era.

Is Cheney Mason for Real?

Although I recognize that some will assert that you can't argue with success, I commented on the defense in the Casey Anthony trial,

If Anthony's attorney believed his client to be innocent and yet deliberately promised to the jury that he would offer evidence he had no intention of introducing, victory or not, I wouldn't hire him to walk my dog.

A member of the defense team argues that she did in fact believe Anthony to be innocent, although he does not offer to clarify which of Anthony's many stories he believes.

Appearing on NBC’s “Today” show on Monday, the attorney told Savannah Guthrie, “I do believe her story. I believed it from the first time I met her which was several weeks before I was formally on the team.

He denies that the opening statement contained promises that the defense had no intention of fulfilling - their client surprised them by not testifying.

And in other unexpected turns, Casey had also decided at the last minute to not testify during the trial. Mason said that it wasn’t because she was afraid to take the stand, however. She had just chosen not to, and was the only person who would ever know why.

I would be more impressed if Mason had argued that the defense knew that Anthony was not going to testify, although again that would cast doubt on the promises made in the opening statement, given that there was no indication that they built their defense with the expectation that she would testify, given that between her demeanor and her inability to open her mouth without lying she would have almost certainly buried herself within minutes, and given that it doesn't speak highly of either their trial preparation or client control that this was a surprise. (Really, the defense wanted to put her on the stand to explain that she kept garbage in her trunk for so long that her car smelled like it had a rotting corpse in the trunk, coincidentally at the time her child was missing, and that she abandoned her car at an airport because it ran out of gas? No freakin' way did they believe she was going to testify.)

Though nobody coached her on her mannerisms before the court, Mason did say that he and his lawyers did try to keep her emotions down, which he explained was “pretty hard to do when family [testified] against her and people [were] calling for [her] blood like a lynch mob.”

Nobody talked to the client about how to comport herself during court? For a first degree murder trial with a possibility of the death penalty? Seriously? Also, given that Anthony's mother gave testimony that, in my opinion, wasn't even close to credible about searching for "chlorophyll" and accidentally coming up with "chloroform", it seems she was trying to help Anthony. Did her parents get a bit angry with her when she tried to blame her partying after the death of her daughter on her supposedly being molested by her father? Or that her defense accused both of them of being somehow involved in the cover-up of her child's death and disappearance? I expect so - but are we to believe that, also, was a surprise to the defense team?

I accept this:

Mason continued to defend his client and stated that though there was no question she told a lot of stories to a lot of people, it was from a protective mechanism and not out of guilt of murder.

Whatever happened to the child, and whatever her role in the death, I have never sensed that Anthony has suffered even a moment of guilt. You will note that every single one of her lies was directional - minimizing her role in the disappearance and death, explaining away her inconsistent behaviors, attempting to blame others for the child's death and the dumping of the body in the woods and, if that failed, attempting to play "I was molested" as a trump card. As for "Casey’s demeanor and expressions, which were cold one second and crying the next," I didn't follow the trial but what I saw suggested that she became very upset when she started to feel sorry for herself. If sociopathy can be described as a "protective mechanism", I'll concur with Mason that Casey Anthony appears to have a "protective mechanism" in spades.

Given that Mason is claiming to believe that his client was ready and able to testify, implicitly with satisfactory explanations for her countless lies, and that she's now protected from retrial, I wonder when we can expect all of that information in some form of public statement that will make us recognize that this was all one big misunderstanding. No, actually I don't.

Divorce... So Different Than it Used to Be

The Wall Street Journal ran an editorial about divorce that brought to mind, of all things, an Air Supply song.

Growing up, my brother and I were often left to our own devices, members of the giant flock of migrant latchkey kids in the 1970s and '80s. Our suburb was littered with sad-eyed, bruised nomads, who wandered back and forth between used-record shops to the sheds behind the train station where they got high and then trudged off, back and forth from their mothers' houses during the week to their fathers' apartments every other weekend....

"Whatever happens, we're never going to get divorced." Over the course of 16 years, I said that often to my husband, especially after our children were born.

Or, as Air Supply put it,

They lived in a world that was cold and uncaring,
They swore they would change it with loving and sharing.
They'll never live like their parents have done,
Their innocence shone like the sun....

WSJ:

After nine years, my husband and I had become wretched, passive-aggressive roommates. I had given up trying to do anything in the kitchen and had not washed a dish in a year. My husband had not been able to "find time" to read the book I had written. We rarely spoke, except about logistics. We hadn't slept in the same room for at least two years, a side effect of the nighttime musical bed routine that parents of so many young children play in semiconsciousness for years on end....

But then, one evening, I found myself where I vowed I'd never be: miserable, in tears, telling my husband that we were like siblings who couldn't stand each other rather than a couple, and listening as my husband said he felt as though we had never really been a couple and regretted that we hadn't split up a decade earlier.

Air Supply:

Who are these strangers who used to be lovers,
Now they've got nothing to say to each other.
Too far apart to discuss their mistakes,
They file for divorce and it breaks their American hearts....

WSJ:

That was four years ago. Even now, I still wonder every day if there was something that I—we—could have done differently. Like many of my cohort, the circumstances of my upbringing led me to believe that I had made exactly the right choices by doing everything differently from my parents.

Air Supply:

Now that it's over they'll each go on living,
Never forgetting but somehow forgiving.

WSJ:

We may not make it in marriage, but we still want to make it as parents. In the '70s, only nine states permitted joint custody. Today, every state has adopted it.... Joint custody also reduces family strife.... Many of us have ended up inflicting pain on our children, which we did everything to avoid.

But we have not had our parents' divorces either. We can only hope that in this, we have done it differently in the right way.

Air Supply:

They'll care for their children protect them with pride,
And that's how their dream will survive in American hearts....

Here's the thing: The WSJ is claiming that it's describing something new about divorce, relevant to Gen X (born 1965 - 1980). The Air Supply song was recorded in 1980, is about a couple who married in 1969 and is thus about their parents. It may feel like there's something new to the story, but the actual differences seem to be in the details. The song (still a bit maudlin) is the same.

Let me give you a tip if you find yourself sleeping in a different bed than your spouse for two years and struggling to think of anything you could do differently to salvage your relationship. If marriage counseling seems like too big a step, you could try sharing a bed. And don't blame your lack of intimacy on the kids - yes, they get in the way, but where there's a will....

Joe Lieberman, Independent Representative for Health Insurance Companies

In case you've forgotten who Joe Lieberman works for.

Unemployment as Something That Happens to Other People

Not only is unemployment disproportionately affecting people with lower levels of education, Economix reports that it is also impacting a smaller percentage of the population at large:

Given how high unemployment is, there are surprisingly few people who have experienced unemployment in the last couple of years. This is the flip side of the historically high average length of the unemployment: joblessness is concentrated among a subset of the population, rather than affecting a larger group of people for shorter periods of time.

One set of numbers from the Bureau of Labor Statistics makes the case. In 1982, the unemployment rate averaged between 9 and 10 percent — and fully 22 percent of the labor force experienced unemployment at some point during the year. In 2009 (the most recent year of data), the unemployment rate also averaged between 9 and 10 percent, but only (or maybe “only”) 16.4 percent of the labor force experienced unemployment at some point during the year.

I'm left wondering if one of the reasons that Congress and the White House seem relatively disinterested in attacking unemployment is the result of their polling - that, as people are more concerned about what's happening to themselves and their families, the most likely donors and voters aren't significantly deterred by unemployment statistics from either voting or from supporting the party of their historic choice - and perhaps those groups have priorities that are at odds with lowering unemployment.

The Republican priority, as usual, is to lower taxes for the wealthy. High unemployment statistics seem like a win-win for them, as the public appears to believe that cutting government spending will decrease unemployment and they can happily demagogue the issue while serving the wealthy. The Democrats are almost as beholden to wealthy interests, aren't going to win over the Tea Partiers who get ginned up by Republican rhetoric and, sad to say, have a working class base that comes in no small part from areas of the country that have been experiencing 9+% unemployment rates for well over two years, and appear to be taking the path of least resistance.

The Lousy Job Market, Present and Future

I continue to disagree, to an extent, with Paul Krugman's assertions about the job market. Although I think he's technically correct, he's addressing a different issue than the one that concerns me:

Unemployment soared during the financial crisis and its aftermath. So it seems bizarre to argue that the real problem lies with the workers — that the millions of Americans who were working four years ago but aren’t working now somehow lack the skills the economy needs.

Yet that’s what you hear from many pundits these days: high unemployment is “structural,” they say, and requires long-term solutions (which means, in practice, doing nothing).

Well, if there really was a mismatch between the workers we have and the workers we need, workers who do have the right skills, and are therefore able to find jobs, should be getting big wage increases. They aren’t. In fact, average wages actually fell last month.

If you are working from the perspective that "a job is a job" and that the unemployment rate will fall probably to historically normal levels when the economy rebounds, I agree. But my problem is that I don't think "a job is a job" - I do see a structural issue with the job market, in that the number of well-paying jobs for people with less than a college education is dropping, and will continue to drop. And I believe that people who do not have a college education or whose skills have fallen out-of-date, once unemployed, are with each passing year less and less likely to achieve a similar level of income when they again find work.

Take a look at how the recession has affected unemployment rates, broken down by level of education. To the extent that Krugman is correcting those who argue that we need to get used to a 9+% unemployment rate, I agree with him - we do not. But it seems like we're going to have to get used to a shrinking middle class.