Tolerance, Intolerance and Politics

In response to David Hoffman's argument, "a national conversation about guns and violence, facilitated and sped up by the internet, reduces our ability to try out different versions of the good life, and thus diminishes our capacity live together in peace", Jonathan Adler states:

I think he has a point. I also suspect this problem is magnified due to a decline in the understanding and appreciation of tolerance as a virtue. Not tolerance as acceptance or approval, but true tolerance. Tolerance as in there is something unpleasant, objectionable, or distasteful that one nonetheless tolerates. And this is brings us back to the problem of cocooning. If we have little interaction with those of truly different viewpoints — those whose entire worldview and starting premises are different than ours — we have a harder time recognizing the goodwill and fundamental humanity of those with whom we disagree. And that means we have a more difficult time discussing divisive political issues and trying to find common ground. So instead we demonize and attempt to marginalize our opponents — undertakings that may make us feel good, but do nothing to improve the situation.

I am reminded of the various "remember the good old days" essays, speaking of the 1950's and early 1960's as an idyll. Never mind the tensions, the racial discrimination and segregation, behind the scenes. Never mind the mentally handicapped child who is never allowed outside of the house or is institutionalized, lest his parents be embarrassed by the neighbors finding out about him. Never mind the ostracism of homosexuals and the criminalization of homosexuality. "We were all so much more tolerant when we were all the same. Why can't we get back to that sort of embrace of tolerance as a virtue?"

I don't want to be unfair to Adler. I'm just having a difficult time thinking of a period of human history in which the "true tolerance" he describes was lived as a virtue. Not discussed or advocated, but an actual part of the culture. I see instead a history in which differences in politics, religion and lifestyle have frequently been magnified, often with horrendous consequences for a targeted population.

Thanks to the Internet it's actually easier than ever to find and interact "with those of truly different viewpoints" - if you choose to do so. It's also very easy to cocoon. But to the extent that this represents a change, it's that people have a greater opportunity to seek out alternative viewpoints, not so much that people are largely staying within the confines of a like-minded community.

Adler argues that "It seems increasingly rare in political discourse for either side to consider that the other may be arguing in good faith", something he attributes in part to cocooning. I think a big part of the problem, though, is that many people who are leading the political discourse are not arguing in good faith. I've heard many politicians argue that they and their peers often take different positions behind closed doors than the ones that they take in public for their constituents. I've never heard a politician deny doing so. Behind the scenes we have a massive apparatus attempting to influence, manipulate and corrupt the debate.

If we're talking about people in general, it's reasonable to say that they're likely taking their positions in good faith, even if you're certain they're wrong. But when you look to the institutions that are advancing a particular narrative, those involved in the debate who are profiting from the stance they take, and those engaged in demagoguery, it's fair to both question their motives and to suggest that they're part of the problem Adler describes. When John Boehner distributed checks from tobacco lobbyists to his Repubican peers on the floor of the House, he branded himself as somebody whose motives are always in question. Does he believe the positions he takes? It's like the old joke, "Now we're just haggling over the price" - once you establish that you're for sale, your actual beliefs no longer matter.

At another level, if somebody is sincere in his support for a political position, but cannot explain why, cannot support or defend the position with facts, and cannot support or defend his position with logic, he makes himself irrelevant to the debate. We can engage in the type of tolerance encapsulated by the notion of agreeing to disagree, but you're not going to have a productive discussion if "tolerance" requires continuing to include that person in the debate or is contingent upon changing his mind.

It's not merely cocooning that leads academics to at times express puzzlement about how "someone of reasonable intelligence, good will, and good faith could reach diametrically opposing conclusions" - sometimes it's a product of the academic's having thought about the issue, while the person on the other side of the debate has given the issue little to no thought, or lacks sufficient information to properly analyze the issue. If you're actually interested in having a discussion, it doesn't take long to figure out if you're talking to somebody who is locked into a position, never to be moved, or if you can have a genuine discussion. I am approaching this from Adler's perspective of "an academic vs. everybody else", but if you want a meaningful discussion it's best to approach good faith debate without presupposing that you have an intellectual or informational advantage. You don't need to assume that the other person's position is informed, well-considered or offered in good faith, but you can attempt to provide an honest audience. If you're lucky, you might even learn something.

It would be interesting if Adler gave a position of an example of issue for which an identifiable population held an "entire worldview and starting premises [that] are different than" his own. My own international travels suggest that people around the world have a lot more in common than Adler's comment suggests. I suspect that he's speaking less about an individual or culture that disagrees on pretty much everything, across the board, and more about disagreement on some number of core or fundamental issues. Religion provides a context for how two people or cultures can be locked into a set of beliefs that exclude the possibility of the other's being correct. Religion provides an excellent context for the position that we would benefit from "true tolerance". Yet, alas, it also provides a context in which we have seen an exceptional level of intolerance over the whole of human history. (Even when one or both of the religions teaches "true tolerance" as a virtue.)

So, sure, let's aspire for "true tolerance" - but even if the tolerance we generally experience in the 21st century western world is a pale imitation of the ideal, it nonetheless stands as a remarkable achievement.

Public Policy vs. Illusions and Delusions

Dave Hoffman suggests that we are "forced by the Internet to nationalize problems", and as a result it is "harder for local communities to experiment with localized solutions to threats to the moral order". I would be more impressed with the argument if the imposition of national solutions on moral issues were a new phenomenon, or if it weren't the "don't tread on me" types who weren't often attempting to impose their own moral conventions upon the rest of us. But certainly, the national media, the 24 hour news cycle, and the Internet have changed the manner and speed at which local issues can become national news.

In fact, we have not been "forced" to "nationalize problems". We live in a society in which some problems that were once treated more uniformly on a national basis have been transitioned back to local mores. For example, obscenity is judged by community standards, and states are free to impose restrictions on access to abortion that were once considered forbidden under Roe v Wade. The Hatch Act and its creation of "right to work" states started the downhill slide of organized labor. We weren't "forced" to nationalize the problem of alcohol consumption during the prohibition era, nor was prohibition a product of the Internet. The anti-kidnapping laws that followed the Lindbergh kidnapping were not driven by the Internet. Behind the determination of what is "best" handled at the state vs. federal level lies a great deal of political gamesmanship that sometimes gets in the way of the formation of good policy.

Josh Marshall argued that suggesting that school shootings might not occur or might be less lethal if small children were trained to mob a gunman, or if schools were not a "feminized setting … in which helpless passivity is the norm" represents the discussion "quickly veering from the merely stupid [Megan McArdle's "mob the gunman" suggestion] to a pretty ugly kind of victim-blaming [Charlotte Allen's 'feminized settings' argument]". McArdle's suggestion is at best impractical and unrealistic, but to be fair to her she was comparing her own bad idea to ideas that she deemed worse - she admitted that her idea might not work, but had a better chance at preventing school shootings than the ideas she was criticizing. Marshall's criticism of Allen's comment is fair. Let's also throw in Mike Huckabee's blaming the shooting on a lack of prayer in schools.¹ That is blaming the victim, and it is ugly.

Hoffman appears to project his own discomfort with firearms onto people like Marshall,

I didn’t grow up with guns in the house, and the idea of allowing a child of mine into a school where the teachers are armed is horrifying. Worse, I think, is the concept that we ought to militarize children – to teach them that they are all on their own, and the state is powerless before the forces of chaos in society.

Marshall did speak of the growing militarization of our society. His comment is a bit cryptic, but he appears to be suggesting that fear of violent crime is resulting in people "seriously or [like McArdle] half in jest - pushing for a use of force race to the bottom".

Marshall's point is valid - even as violent crime has plummeted, fear of violent crime and terrorism has led to an expanded police and military presence in spaces that were far less secure during times when crime rates were significantly higher. I think part of the issue is that the more rare an event becomes, the more attention becomes focused on its increasingly rare occurrence. Marshall is making a public policy argument, that we should take a step back and try to figure out if the militarization is good for society, a good use of manpower and resources, or if it's likely to be effective before we expand it into new areas of society, such as public schools. Hoffman isn't actually addressing militarization - "teach[ing children] that they are all on their own, and the state is powerless before the forces of chaos in society" is not militarization - but more importantly he's not even arguing about how public policy should be formed.

My intervention here is to just to point out that the problem we actually have here is one of discourse – we are forced by the Internet to nationalize problems. This makes it much, much harder for local communities to experiment with localized solutions to threats to the moral order. If a community in, say, Connecticut wanted to ban assault weapon clips (because it made them feel safer – [(]let’s put to one side data on efficacy!), Glenn Reynolds would lead a charge against the liberal fascists. Indeed. Heh. Yes. If a community in Tennessee wants to arm its teachers (because it makes them feel safer – let’s put to one side data on efficacy!) Josh Marshall and Andrew Sullivan would call them out as conservative fascists. Or loonies. Or winners of the Moore award. And we’d all get to pat ourselves on the back, but no one would actually get the benefit that law is supposed to provide, which is the helpful illusion that we’re more civilized than we actually are, and that we’re actually doing something to push back against the tide.

The thing is, people like Marshall don't "put to one side data on efficacy" because they are interested in facts. They are interested in what works. Hoffman takes several potshots at Marshall,² but all the while misses that the McArdle "rush the shooter" comment was neither a serious policy proposal nor reasonably characterized as a proposal "offered by gun proponents". McArdle was in fact pointing out that some of the proposals being advanced in response to the school shooting, such as banning certain types of firearm or magazines of a certain capacity, would not have prevented the shooting. McArdle tends to get ridiculed in some corners because she has a history of making arguments that are not well-thought out, but her essential approach here is the same as Marshall's. She's not interested in making people feel safe. She's pointing out that your feelings have little to do with what actually does or does not make you safer.

At a basic level Hoffman is correct about a culture clash, although it's not s binary as he suggests. He's correct that a measure that to one person or community might serve as a "helpful illusion that we’re more civilized than we actually are" might differ from, or even be the opposite of, what another person or community would deem a "helpful illusion." If Hoffman wants to argue that communities should be able to create their own "helpful illusions", let's assume within reasonable constraints, he's only going to run into issues where those illusions start to impinge upon the rights of others. There already are schools that allow any teacher with a CCW permit to bring a gun to school.

The problem is that Hoffman is trying to impose his standard for "helpful illusions" onto a policy debate - an attempt to determine what may or may not actually work to prevent (in this instance) school shootings, and the extent to which arguments for measures that offer only illusory benefits are worth implementing, particularly when other civil, social and legal issues are implicated. The policy discussion does not "reduce[] our ability to try out different versions of the good life, and thus diminish[] our capacity live together in peace". In fact, if properly conducted, the policy discussion avoids imposing "helpful illusions" on a nationwide basis, instead implementing only those policies that can be reasonably expected to work, while leaving localities to form their own "helpful illusions" within the aforementioned parameters.
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1. There is a natural human tendency to try to explain away tragedy - to find a way to believe that a horror that happened to somebody else could not happen to you. Huckabee put himself into the same column as the TV ministers who blame local and national tragedies on homosexuality, feminism and the like - and they know exactly what they are doing when they exploit tragedies in that manner.

2. I found Hoffman's essay through a link provided by Jonathan Adler, a call for tolerance that, in context, is rendered odd by his hollow man arguments about mythic "liberal bloggers" who are having a "fevered reaction" and are in "a frenzy" about Megan McArdle's "what if kids mobbed the gunman" column. Adler's a law professor, so I assume he has enough familiarity with the Socratic method to understand that scorn, derision and ridicule, as unpleasant as they can be, do not constitute a frenzied or fevered reaction.

NFIB v Sebelius - A Tempest in a Tea Party?

Jonathan Adler appears to have come to recognize that despite the two years of hand-wringing, bell-ringing, and "The End is Nigh" announcements about "Obamacare", and the vitriol directed at Justice Roberts, the upholding of the ACA isn't actually a big deal.

What Is Judicial Activism, Anyway?

Yesterday I argued that an assessment of an appellate court's activism is significantly more complex than setting an arbitrary standard, even if it's one that's relatively easy to measure, determining the total number of times the court's decisions implicate that standard, and presenting the sum as a score of its activism. Specifically, I rejected as a measure of activism a simple sum of the number of times that the U.S. Supreme Court overturns precedents and invalidates federal laws.

In his resort to that standard, I'm not certain that Jonathan Adler was endorsing it, so much as making an argument of convenience in defense of the Roberts Court. I understand the temptation to try to create an objective measure of a court's activism. But as I suggested yesterday, a court can be extremely activist while avoiding issuing decisions that are counted as activist, or through a small number of decisions that have a profound impact on society.

Today, Adler's co-blogger, David Bernstein, inadverently supports my argument:

Has there been a single pundit from the liberal left who has proactively denounced the Supreme Court for undue “activism” if it invalidates the individual mandate who has also denounced the Supreme Court for activism for invalidating most of Arizona’s immigration-enforcement statute? I understand there are all sorts of distinctions one can draw between the two cases (and I heard Jeff Rosen cleverly drawing them on the Diane Rehm Show yesterday), but a presence or lack of “activism” isn’t one of them.

If we apply the definition previously shared by Adler, the invalidation of most of Arizona's immigration law cannot be regarded as activist as it neither reverses precedent nor invalidates a federal law. Conversely, applying that same definition, upholding the entire Arizona immigration law would have upset long-standing precedents on federal preemption and would thus have been an activist decision - the opposite of what Bernstein implies. It's possible that Bernstein would argue that the decision was activist no matter which side prevailed, but that would go beyond highlighting the difficulty in defining activism - it would deprive the concept of any meaning.

Bernstein basically admits that he is comparing apples to oranges. Certainly, just as apples and oranges are both fruit, two very different decisions¹ can both be activist. But in order to support that contention the proponent of the comparison should provide structure to his argument in the form of a definition of judicial activism. What distinctions between cases does Bernstein believe would help us differentiate activist from non-activist opinions? If no distinction is relevant, then isn't every opinion activist?

Bernstein continues with an argument that reinforces a point I made yesterday - that it's possible for a Court to issue a profoundly activist decision that reinterprets, narrows, or finds an exception to prior case law such that it is not technically reversing a precedent when issuing its decision:

The closest I’ve heard to a plausible distinction is that the Arizona cases weren’t “activist” because they followed precedent, but invalidating the individual mandate would be because that would involve rejecting precedent. But I’m quite confident that if the Court does invalidate the individual mandate, the majority will express agreement with the consensus of lower courts that the mandate is itself unprecedented, which naturally means that there is no prior case directly on point.

That is, after all, what the proponents of the "action" vs. "inaction" distinction have been aiming for since they invented the distinction less than two years ago, after the legislation had passed. By Adler's definition the reversal would remain activist, as it would undermine federal legislation, but Bernstein's observation highlights how reversal of precedent is meaningless as a test - how a court can be exceptionally activist yet technically uphold precedent?

The closest thing that Bernstein offers to a definition of activism is,

Either one believes in a “restrained” judiciary, or one does not.

That is, he offers a truism that does nothing to help clarify what judicial conduct is or is not activist.² Further, if the measure of activism is whether or not the court shows "restraint", wouldn't any party who calls upon the Supreme Court reverse part or all of a precedent, or overturn part or all of a federal statute, be demanding judicial activism? If so, once again the concept loses any significance.

Bernstein proceeds by proclaiming that people on the "liberal-left" don't care about judicial restraint, something belied by decades of liberal hand wringing over the manner in which the Supreme Court has chipped away at Roe v. Wade.

It’s really not much of a surprise that the vast majority of those on the liberal-left who support the constitutionality of the mandate don’t believe in a restrained judiciary. They rather simply don’t think that federalism concerns are constitutionally significant (or, if they are, that the importance of health care reform far outweighs their significance).

The latter part of Bernstein's missive about liberals is more interesting. Bernstein clarifies that it's not that the "liberal-left" doesn't care about judicial restraint, but that the "liberal-left" is not concerned about the brand of libertarianism that the Court endorsed in Bernstein's favorite case, Lochner vs. New York, but which was repudiated by the Supreme Court in the New Deal era in favor of an expansive interpretation of the Commerce Clause.

Leaving aside for the moment the fact that the Arizona immigration case deals with federal preemption, the Supremacy clause as opposed to the Commerce Clause, it is fair to say that the "liberal-left", and likely pretty much everybody who is not on the libertarian right, shows a lack of concern for federalism that Bernstein might find troubling. But if Bernstein means to suggest a measure of "judicial activism" by which "judicial restraint" can be measured by "federalism concerns", and not by how the court approaches legislation, precedent, or the text of the constitution, he's effectively defining as "activist" any decision that is not consistent with a specific aspect of his personal political beliefs. But if we allow an individual's personal political belief to be the measure of judicial activism, once again the concept loses any significance.

On other hand, they think that protecting the rights of illegal immigrants from overzealous states (or ensuring the right to abortion, or the right of gays to marry, or the protection of “War on Terror” prisoners) is exactly the sorts of things that the Court should be “activist” about.

Wow, those crazies on the liberal-left, worrying about such trivialities as "overzealous" state action that threatens the rights of the weak and powerless, government adherence to the Fifth and Sixth Amendments, and keeping the government's prying eyes out of the bedrooms and family planning decisions of consenting adults. Why, oh why, can't they focus upon more important things, like getting the Supreme Court to disregard the Supremacy Clause and reverse the New Deal?

It seems a bit odd that a champion of Lochner is concerned about the extent to which others support judicial activism. It is not unreasonable to argue that the Constitution does not expressly include a right to privacy, such that it's activist to call upon the Supreme Court to define and expand a constitutionally protected right to privacy, but by the same token there is nothing in the language of the constitution that supports or privileges the views of the Lochner court. Lochner turned on the right and liberty of the individual to contract,

The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.

but you won't actually find that right enumerated in the Constitution, nor will you find textual support for the Lochner court's position that a state has no right to regulate the length of the workweek.³ Neither the language of the 14th Amendment in general nor of its Due Process clause support the type of substantive analysis applied in Lochner - and in other contexts the conservative model is to dismiss the notion that "substantive due process" is a proper matter for judicial review. Perhaps that - the embrace of substantive due process as a proper matter for federal judicial review - is a point where Professor Bernstein and the "liberal-left" can join hands and push for... I'm not sure if Bernstein would have us call it activism, but it certainly wouldn't be restraint. Perhaps it's simply what, at some level, we all know: Sometimes judicial activism is a good thing, even if we loudly and vehemently disagree over a particular activist decision. As an illustration, I'll again point to the once controversial and now broadly accepted holding of Brown v. Board of Education. On the other hand, some activist cases such as the atrocious Slaughterhouse Cases will never look good.

Turning back to the issue at hand, although it's easy for the Supreme Court to reinterpret or narrow precedents to render them all-but-meaningless without technically reversing them, they do not enjoy the same luxury in relation to statutes. Perhaps that's where Bernstein's notion of restraint can be applied as a measure of activism. Almost two centuries ago, in writing the decision in McCullough v. Maryland, Justice Marshall observed,

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the decree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a power.

Given the admission of most advocates of the "action/inaction" distinction that, in the words of Professor Bernstein,

Congress can certainly pass a new law that does everything the ACA does, but this time do it as a "tax".

How would the reversal of the individual mandate on the grounds of semantics - of Congress passing a law that "is not prohibited" and "is really calculated to effect any of the objects intrusted to the Government" - not constitute an extraordinary repudiation of the judicial restraint and modesty Justice Marshall described? It's one thing to examine a law in light of the powers granted by the Constitution and hold that the legislature overstepped its bounds, as the Supreme Court did with Arizona's immigration law. It's quite another to reverse a law that the Court accepts as falling within the enumerated powers of the legislature on the premise that, although substantively proper and passed for the advancement of legitimate and compelling government interests, there are problems with its form.
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1. As previously noted, Bernstein admits, "there are all sorts of distinctions one can draw between the two cases".

2. The judiciary should be restrained by what? Deference to precedent? Deference to legisatures, state and federal? Deference to the Constitution - and, if so, pursuant to what model of interpretation? How extreme should the deference be? If deferance to a state legislature requires modifying or reversing precedent, should the court defer to the legislature or to precedent? If a court offers a disingenuous declaration that its decision is unprecedented, is it no longer required to show restraint to a legislature or to precedent?

3. My understanding is that Professor Bernstein tries to have it both ways - arguing that Lochner represents good law and policy, but declining to opine on whether the Supreme Court was correct in rejecting a maximum workweek. That seems tantamount to arguing that the Supreme Court was correct to identify a right to privacy in Roe v. Wade, but that the rest of the decision is irrelevant to your endorsement of constitutionally protected privacy rights - it appears to be an attempt to embrace the concept while ducking the controversy. In supporting a legal principle it's not unreasonable to argue that slippery slope arguments - what the Court might do if it takes the principle to its extreme - are overstated, but its something else entirely to ignore what the court has already done. And if the argument is, "I ignore both the reasoning and outcome of Lochner while endorsing the principle of its holding," your attempt to "rehabilitate" the case becomes one of politics, not of law.

Judicial Activism Can't Be Tallied Like a Baseball Score

Jonathan Adler has suggested that judicial activism can be measured simply by examining how often the court overturns precedents and invalidates federal laws. To put it mildly, that's not an adequate measure.

Were Roe v. Wade and Miranda v. Arizona activist decisions? How about Griswold v. Connecticut? Gideon v. Wainwright? Bowers v. Hardwick? Bush v. Gore? Cases that establish or curtail rights, impose prophylactic rules, or expand or narrow constitutional principles based on the interpretation of state or local laws or policies can have an impact that is more profound than the reversal of a federal law or Supreme Court precedent.

While a court that shows little restraint when it comes to reversing its own precedents can be deemed activist, there is a significant difference between a court that chooses to clarify and reconcile its past decisions and one that targets long-standing precedents for ideological reasons. Further, it's possible for the Court to interpret or narrow a past case so as to severely restrict or even eliminate its legal significance, without technically reversing the case. Similarly a Court can choose to reach radically different outcomes in two different cases by asserting a factual distinction.

The reversal of a long-standing precedent, broadly accepted and followed as the law of the land, can also be deemed more "activist" than the reversal of an obscure or recent decision upon which few rely. Brown v. Board of Education reversed Plessy v. Ferguson, ending the notion that "separate but equal" was a constitutionally acceptable treatment of racial groups. You can argue that both fireworks and nuclear bombs are explosives, but the cumulative effect of five firecrackers isn't going to approach the impact of a single nuclear blast.

Further, a court may be activist in the manner in which it approaches lower court decisions. Although more of an issue with state courts, if a supreme court develops a pattern of identifying appellate decisions it does not like, then "depublishing them" to eliminate their presidential value or summarily vacating them without hearing, it's hard not to view the court as activist. But that type of action won't show up in Adler's proposed tally.

What if a case comes before a Court, and the Chief Justice finds that the issues as briefed and argued aren't what he had hoped - so rather than deciding the case he schedules an argument in the next term of court and orders the parties to submit new briefs, raising the issue he hoped to address. Even if the case reaches only one statute or precedent, the manner in which the Court engineers the outcome is reasonably deemed more activist than a reversal without that type of machination. What if the Court chooses to ignore its own rules, and to include in its decision a holding on an issue that was neither argued nor briefed? Is that not more activist than issuing the same decision at a later date, when the issue is properly before the court?

Part of the problem with the concept of "judicial activism" is that the term has no consensus meaning and as used often translates into little more than, "The court issued an opinion with which I disagree". But I think the strongest indicia of activism are obscured by a tally of reversals, and that activism is often better indicated by the manner and extent to which a court manipulates the process in order to create the opportunity to decide certain issues, and the extent to which the court respects the ripple effect its decision may have on society.

Let's also not lose sight of the fact that an established precedent like Plessy v. Ferguson can entrench a status quo that is unacceptable. Yes, it's reasonable to be worried that an activist court might reverse precedents that establish or protect rights you hold dear, but Brown stands as an example of where the greater harm would result from allowing the precedent to stand, and how over time a once controversial decision can be accepted as the way things should be.

Medical Malpractice Tort Reform and Federalism

Following up on some Volokh Conspiracy posts about the relationship between tort reform and federalism, Jonathan Adler quotes Walter Olson on the subject. Olson suggests that there is

a very real difference between areas like product liability and nationwide class actions—in which suits ordinarily cross state lines, and the majority of runaway verdicts are against out-of-state defendants—and more conventional kinds of tort litigation arising from car crashes, slip-and-falls, and medical misadventure, where cases are mostly filed against locally present defendants. As a rough rule of thumb, it’s worth presuming that most of the local suits do not externalize heavy costs across state lines and should accordingly be left alone by Congress unless it is itself vindicating some constitutional right or coordinating the functioning of some constitutionally authorized federal government activity.

Adler extrapolates,

Olson is anything but an opponent of tort reform generally. Indeed, he’s been one of the litigation explosion’s most prominent critics. But he recognizes that support of a particular policy goal does not require abandoning a principled commitment to the broader federalist scheme.

I'll take Olson's comments at face value, but let's recognize that not all insurance companies or medical industry lobbies want federal "tort reform". This battle has already been mostly won at the local level. It's difficult to conceive of a federal "reform" that would so heavily favor industry as to preempt state laws and caps that are less restrictive than the federal standard while allowing states to set more stringent standards and lower caps. Which is to say that states like Texas, that have all-but-eliminated medical malpractice as a viable tort, would likely see a federal reform reduce the burdens and hurdles they have placed in front of plaintiffs.

Further, part of the reason for local success is that it has become relatively cheap and easy to influence state legislatures and appellate courts, with insurance companies pouring millions into state supreme court races with the intention of electing judges favorable to their positions on such issues as tort reform. Following them Ohio Supreme Court's rejection of damages caps in malpractice case, the insurance and medical industries worked hard to change the composition of the court - not to change the law or state constitution, but to change the judges who interpreted and applied the laws and constitution - with the result that a reconstituted state supreme court found damages caps to be permissible.

If you federalize restrictions on medical malpractice cases you change that context significantly. Suddenly a single example or case can be used to propel a national public relations campaign to make the system more fair - and if you're honest about the impact of tort reform you know that's the opposite of what the insurance companies want. Reforms that increase the cost of litigation for plaintiffs but do little to nothing to improve the integrity of the system, such as requiring "certificates of merit" in association with the filing of a malpractice suit, might be challenged. Low, one-size-fits-all caps on "pain and suffering" damages might be revealed as absurdly low for certain severely injured patients - as they are. Caps would likely also be indexed to inflation, rather than remaining subject to a rigid, unchanging cap for years or decades.

In implementing tort reform, it is conceivable that Congress would do a better job than most states in creating a fair and balanced system. That isn't going to be reassuring to the insurance industry, so we can't be particularly surprised if national tort reform advocates find sudden value in federalism - you don't bite the hand that feeds you. Why, despite an express willingness to include tort reform in the Health Care Reform Act, did the issue all-but-drop off the radar in the otherwise contentious debate over the bill? In my opinion, because federalizing the issue is no longer a priority, and for the reasons I just provided may in fact be viewed as a negative, by a healthy proportion of health and insurance industry lobbyists.

Economic Growth and Corporate Responsibilities

Jonathan Adler objects to the President's statement on business,

Supporting businesses with this kind of 21st century infrastructure and cutting-edge innovation is our responsibility. But businesses have a responsibility, too. If we make America the best place to do business, businesses should make their mark in America. They should set up shop here, and hire our workers, and pay decent wages, and invest in the future of this nation. That’s their obligation. And that’s the message I’ll be bringing to American business leaders at the Chamber of Commerce on Monday – that government and businesses have mutual responsibilities; and that if we fulfill these obligations together, it benefits us all. Our workers will succeed. Our nation will prosper. And America will win the future in this century just like we did in the last.

complaining,

If the government fulfills its “obligation” to provide a favorable business climate, there’s no need to talk about “obligation,” as business will grow and hire as they pursue profit opportunities. There are arguments to be had over the extent to which businesses have responsibilities beyond their obligation to maximize shareholder value (e.g. social and environmental obligations), but the obligation to maximize shareholder value — and incentive to seek profit — is enough for economic growth.

Adler here completely misses the issue, which is that it's possible for most or all of that economic growth to occur outside of the United States. It's difficult to believe that this needs to be explained: It's possible for a U.S. business to focus on its overseas operations, with hiring and expansion occurring overseas, and most or all of the associated economic growth occurring overseas.

For Many Environmental Groups, Cash Is The New Green

Jonathan Adler, commenting on BP's slipshod approach to safety and environmental issues, states,

BP’s lax operations and corporate culture contributed to the series of events that caused the spill. (See, e.g., this WSJ article.) What’s ironic about this is it was not so long ago that environmentalists were lauding the oil giant for its “progressive” approach to environmental issues (and substantial financial contributions to environmental causes). One CEO even sought to rebrand BP as “Beyond Petroleum” to reflect its commitment to alternative energy sources. Yet it’s becoming increasingly clear that BP’s commitment to the environment was just window dressing.

One of the barely kept secrets of the modern environmental movement is the introduction of corporate money. What better way, after all, to get an environmental organization on your side than to lavish it with funds that could be taken away the moment it dares to criticize you.

[Jay Hair – the president of the National Wildlife Federation from 1981 to 1995] found that the big oil and gas companies were happy to give money to conservation groups. Yes, they were destroying many of the world's pristine places. Yes, by the late 1980s, it had become clear that they were dramatically destabilising the climate – the very basis of life itself. But for Hair, that didn't make them the enemy; he said they sincerely wanted to right their wrongs and pay to preserve the environment. He began to suck millions from them, and his organisation and others gave them awards for "environmental stewardship". Companies such as Shell and BP were delighted. They saw it as valuable "reputation insurance": every time they are criticised for their massive emissions of warming gases, or for events such as the massive oil spill that has just turned the Gulf of Mexico into the "Gulf of Texaco", they wheel out their shiny green awards to ward off the prospect of government regulation and to reassure the public that they Really Care.

At first, this behaviour scandalised the environmental community. Hair was vehemently condemned as a sell-out and a charlatan. But slowly, the other groups saw themselves shrink while the corporate-fattened groups swelled – so they, too, started to take the cheques. Christine MacDonald, an idealistic young environmentalist, discovered how deeply this cash had transformed these institutions when she started to work for CI in 2006. She told me: "About a week or two after I started, I went to the big planning meeting of all the organisation's media teams, and they started talking about this supposedly great new project they were running with BP. But I had read in the newspaper the day before that the EPA [Environmental Protection Agency] had condemned BP for running the most polluting plant in the whole country... But nobody in that meeting, or anywhere else in the organisation, wanted to talk about it. It was a taboo. You weren't supposed to ask if BP was really green. They were 'helping' us, and that was it."

What is the consequence of the dependence on corporate case? I expect you already know.

On its website, the Sierra Club says: "If the level stays higher than 350ppm for a prolonged period of time, it will spell disaster for humanity as we know it."

But behind closed doors, they tried to stop this becoming law. In 2009, the EPA moved to regulate greenhouse gases under the Clean Air Act, which requires the agency to ensure that the levels of pollutants in the air are "compatible with human safety" – a change the Sierra Club supported. But the Center for Biological Diversity – an independent group that doesn't take polluter cash – petitioned the EPA to take this commitment seriously and do what the climate science says really is "compatible with human safety": restore us to 350ppm. Kieran Suckling, the executive director of the centre, explains: "I was amazed to discover the Sierra Club opposed us bitterly. They said it should not be done. In fact, they said that if we filed a lawsuit to make EPA do it, they would probably intervene on EPA's side. They threw climate science out the window."

It isn't that environmental groups can't do good work while taking corporate money - it's just that they will bend to the will of their corporate masters, muting criticism of companies like BP and shifting their focus to environmental issues that their corporate sponsors don't care about - those that don't affect corporate profits - while in the worst case scenario lobbying against needed environmental reforms that might imperil the flow of corporate cash.

Arguing Outside Your Area of Expertise

I have nothing against arguing outside of your area of expertise, whether within an academic environment, a blog, debates between friends.... It can be a good way to get outside of your comfort zone, confront ideas in new ways, identify the weaknesses in your own arguments, and learn something. For many people, blogging is an exercise in confronting ideas. It's a way to work through ideas, get some feedback on what others think of your arguments, and perhaps engage with people who challenge your ideas. Although I appreciate that in rare cases the popularity of a blog can render the comments overwhelming or invite a mountain of useless snark and spam, the vast majority of blogs don't have that problem. And for those blogs, to me, a signal of whether the author seeks to engage with ideas or simply wants to lecture is whether comments have been turned off for the post or blog.

I hold people who are paid to write articles and columns to a higher standard. That is, if they are holding themselves out as having certain expertise, or if they're taking stances that suggest to their readers that they hold expertise that they in fact lack, they should be held accountable. As their employers will rarely do that, letters to their editor have been the traditional means for response. Today, we have blogging - and we are frequently reminded that people who aren't used to having their feet publicly held to the fire dislike bloggers.

This phenomenon also rears its ugly head in universities, and in my experience tends to become more pronounced among certain faculty of elite universities. In class you're king, the students are voids to be filled with your wisdom, and you have incredible, unilateral power to force students to adhere to your preferred dogma. Let's take a hypothetical constitutional law professor whose leanings are strongly to the political left. Put Larry Tribe in his class and Larry will almost certainly get an "A". Put Robert Bork in his class and, if he truly has a good mind, Bork will also get an A for what I expect would be a brilliant exam answer that just happened to depart dramatically from the professor's own beliefs. But there's another type of professor - one who might even tell class, "I will grade you on the quality of your ideas, not your ideology," and who might sincerely believe it, who would almost assuredly give Bork a poor grade. The subconscious rationalization would be, "I'm not punishing you for your ideology or for disagreeing with me, but because I'm right and thus you're wrong." Students who uniformly get good grades from professors with divergent ideologies have very often mastered the art of echoing back what the professor wants to hear. Not a great way to learn, but potentially very helpful if you want "straight A's".

Many years ago, I watched a commencement address once by a law professor who was respected within his field of study. But he didn't speak from within his field. He instead tackled an entirely different discipline, and presented a pedantic but poorly constructed speech. My father, a Ph.D. in the subject discipline, was present, so after the speech was over I gave him a "WTF?" look. He responded that it's not at all unusual for people who excel in one field to assume that they're equally competent in all fields. They underestimate the work involved in achieving mastery of a field, and rattle off the facile as if it's profound, and confidently make claims and draw conclusions that would be more at home in an undergraduate's essay than in a speech to the newly degreed. He pointed out that it's extremely rare for a scholar to be proficient, published and respected in more than one field, pointing to J.B. White as one of those rare individuals.

I was reminded of this by Jonathan Adler's post linking to a hubristic, attempted take-down of Paul Krugman by Richard Epstein. Epstein is certainly a capable law professor, but his response to Krugman splashes about in an intellectual wading pool. On healthcare reform he favors the status quo, in which the government pays for more than 50% of health care expenditures, because he doesn't understand the proposals, he believes that compelling more people to buy private insurance reflects "open disdain of market principles", and he doesn't know how things will turn out. On the other hand, he's all in favor of eliminating the estate tax (because dead people represent the "most productive portions of the population"... or does he mean their heirs, who don't yet even have the money), and replacing income taxes with a "general flat consumption tax", because, you know, you don't have to drink any Kool-Aid to see that as a perfect market-based solution that doesn't involve any unknowns. Some of the commenters at Volokh have a lot of fun poking holes in Epstein's various arguments.

My point is not that Krugman's argument is infallible, or that other qualified people (and, as suggested earlier in this post, people who are simply interested in wrestling with ideas) can't find fault in them, disagree, or challenge Krugman's assumptions and conclusions. I see this more of an example of how people who really should know better can be blind to their own inadequacies, both in terms of their knowledge of the subject matter and their ability to think through the issues. (I'm reminded again of the Dunning-Kruger effect.) And also how mainstream media publications will invite contributions that have little or no merit on the basis that they relate to issues that are under debate or are otherwise provocative, even though a responsible editor would send them back with a suggestion that the arguments should be predicated on fact and logic.

No, What He Said Was....

Over at the Volokh Conspiracy, the host is relentless in his flyspecking of Slate's Bushisms. (I have no real interest in reading the Bushisms themselves, let alone Prof. Volokh's dissections.) Perhaps, though, Prof. Volokh should stop worrying about what is happening in other online publications, and start looking at his own. As Prof. Volokh often notes, the Bushisms are meant as humor. This post by the relentlessly partisan Jonathan Adler was not:

How should one interpret Gore's statement that it is "appropriate to have an over-representation of factual presentations on how dangerous it is." Is this a call for environmental activists to exaggerate or stretch the truth? Or merely an argument for emphasizing certain facts? I'd be curious what readers think.

How about the possibility that he meant exactly what he said - that it is appropriate to keep hammering the facts because the issue is so important?

Adler defends his motives,

UPDATE: Some commenters below speculate about my motives for this post. Contrary to the suggestion of Kieran and some of the others, this was not an effort to ridicule or disparage Gore — various selections from his book or earlier interviews would have better served that purpose. I was pointed to the quote by someone who thought that it was quite damning. Unconvinced, I was curious to see what readers of this blog made of the quote when presented in context.

That's the sort of defense that, in my opinion, should be annotated with "[Bats eyes innocently]". (Crediting mythago for her many amusing uses of that particular annotation.)