Google and Apple vs. the Patent Trolls

With Apple and Google settling their patent disputes, some have noted that the two companies are now teaming up to urge legal reforms directed at patent trolls. In simple terms, a patent troll is a company that does not produce anything, but instead builds a library of patents that it uses to make demands for compensation or to launch lawsuits, often strategically timed to coerce a quick settlement, against companies that they allege are violating their patents. Many start-ups end up having to choose between settlement or burning through hundreds of thousands of dollars in legal fees, often significantly more than the patent troll demands to settle the claim, instead of investing that money in their business. The patent troll may wait to file a lawsuit until a company is in merger or acquisition talks or announces an IPO, knowing that in those contexts companies will often want to quickly settle any litigation.

At the same time, large companies are notorious for being unwilling to license outside technology and, upon learning of an innovation, of trying to find a way to replicate its best features without running afoul of the existing patent. Also, absent a huge bankroll, it is a rare private inventor who can afford to litigate even an egregious patent violation. Although I am not claiming it to be at all typical, or at all common, it's not difficult to see why an inventor who lacks the resources to directly capitalize on a patent, who can't find a manufacturer willing to license or buy the patent, and who sees what appear to be violations of his patent by existing companies, might choose to license or sell a patent to a company that could reasonably be described as a "patent troll".

One reform that is sometimes proposed as a way to greatly reduce patent trolling is to eliminate software patents. However, we're now in an era in which traditionally patentable devices covered with switches, buttons and knobs can be replicated on a touch screen, purely through software. We're in an era in which the patentable elements of a breakthrough computer innovation may be entirely software-based, and where product development could involve the investment of millions, even tens or hundreds of millions of dollars, but where replication of the idea is comparatively cheap and easy. That's the context of the Samsung-Apple litigation, with Apple having spent $150 billion or more developing the iPhone and Samsung, displeased with its own efforts, choosing the much easier path of imitation.

If you deprive the innovator of any patent protection, it's highly unlikely that they're going to make the necessary investment to produce that type of innovative product as they would be concerned that immediate imitators would prevent them from obtaining a return on their investment -- or might turn that investment into a gargantuan loss. Also, given the $billions that major companies have spent building their patent portfolios, even if it would make sense in the long-term to narrow the protection available through software patents, it's difficult to imagine that those companies will support reforms that would significantly reduce the value of their patents. At the same time, it should be possible to get broad support to narrow eligibility for software patents, and perhaps even to significantly shorten their duration, reforms that would help keep dubious patents from being used coercively against manufacturers and service providers, and allow companies to recover their investments while limiting the amount of time in which competitors are reluctant to build upon a patent holder's breakthrough or essential technology.

Another reform that is often suggested, and which seems quite reasonable, is to provide that a patent holder can only obtain injunctive relief is if it actually manufactures a product covered by its patent. A reform along that line seems reasonable, although I think it would be appropriate to provide for injunctions if the patent holder can demonstrate that it is in the process of developing products or that the alleged violation is intentional. Otherwise, the coercive impact of an injunction could cause a company to settle a frivolous claim in order to keep a key product on the market or to reassure investors or its distribution network.

I've also seen it suggested that, if sued, a company should be permitted to ask a court to declare that the patent holder is a patent troll and, if the court agrees, that the company should be required to post a bond to cover the alleged violator's legal fees if its patent litigation is not successful. While the most noteworthy example I've seen, the proposed Shield Act, attempts to define "patent troll", its definitions remain problematic. For example, the requirement that a company seeking to protect an acquired patent "provide documentation to the court of substantial investment made by such party in the exploitation of the patent through production or sale of an item covered by the patent" would put a significant hurdle in front of a patent holder trying to sell a patent that is already being infringed, or in front of a company that acquires a patent that is infringed prior to its commencement of production and sale of a covered product.

The bond requirement imposed on a company determined to fall under the act would be oppressive to a company bringing a legitimate patent claim, but there's no reciprocal requirement -- either for a bond requirement or for an award of legal fees against a defendant company that loses its defense of a patent case -- that would discourage a company from defending a patent that it believes is, or probably is, valid. While there's something to be said for reducing a patent troll's ability to coerce a settlement from a company that might prevail if the case were litigated, the Shield Act seems to substitute one problem for another -- now a willful infringer can create a litigation environment in which a company that has acquired a valid patent could come under intense financial pressure to settle for far less than the claim is worth.

A more modest reform bill is pending in Congress, and it does include a reciprocal attorney fee provision, but it is not widely viewed as having a large chance of passing. The bill includes some interesting elements that attempt to limit the ability of a patent holder to coerce another company based upon nebulous claims of patent infringement, and potentially create a cause of action against a patent holder who violates those provisions.

Google and Apple are in a powerful position to push for meaningful patent reform. Let's hope that they push for balanced reforms, even at risk of devaluing their patent portfolios, and that more tech companies join their effort.

I Don't Remember President Rumsfeld

In a column that reminds me of David Brooks' efforts to put a nominally independent spin on right-wing talking points, Ross Douthat criticizes President Obama's second term foreign policy record. All sixteen months of it. Douthat isn't going to cut Obama any slack:

His foreign policy looked modestly successful when he was running for re-election. Now it stinks of failure....

But the absence of an Iraq-scale fiasco is not identical to success, and history shouldn’t grade this president on a curve set by Donald Rumsfeld.

Why should this President be graded "on a curve set by Donald Rumsfeld", as opposed to on a curve set by George W. Bush? The buck stops at the White House, unless you're a Republican in which case it stops with the Secretary of Defense?

Douthat's principal conceit is that, "balked by domestic opposition, turn to the world stage to secure their legacy". By "usually", he apparently means "recently", as his examples are Jimmy Carter ("the Camp David accords"), George W. Bush ("his AIDS-in-Africa initiative"), Bill Clinton ("chasing Middle Eastern peace") and Richard Nixon (opening doors to China) and... one-term President George H.W. Bush with something that's not really a foreign policy initiative as it is a matter of watching events unfold ("closing out the cold war"), although I suspect Douthat means to attribute that to Reagan. To the extent that you want to credit Reagan's foreign policy with helping to end the cold war, it's difficult to see how his second term policy was materially different from his first term policy. I can't help but notice, also, that Douthat makes no mention of the Clinton Administration's success facilitating the peace process in Northern Ireland, instead implying that Clinton is among those presidents who has no clear victory. He also makes no mention of Ronald Reagan's decision to intervene in Lebanon, or his rapid withdrawal after the barracks bombing, or of George W. Bush's inabilty to prevent Russia's invasion of Georgia, and its subsequent actions in South Ossetia and Abkhazia.

One big problem with Douthat's conceit is that he looks only at what he sees as the "big accomplishment", even if it relative terms it's a small one or a failure, while ignoring the lists of horribles that can be found in the choices of pretty much every president on his implied list. There's no reason to believe that, a decade or so from now, a pundit as generous as Douthat is toward Republican presidents won't be able to find a second term accomplishment by President Obama that's at least as impressive as Bush's AIDS initiative. Further, why is it a good thing that presidents, frustrated by their inability to achieve their domestic agenda, shift their focus to the international scene? If it's possible to attend to both the domestic and the international, go for it. But if it's not, or if focus on domestic issues is "too hard", a President should nonetheless buckle down and do his primary job before trying to build a legacy on foreign policy issues.

In listing what he describes as Obama's foreign policy failures, it's no surprise that Douthat wants to limit our consideration of G.W.'s fingerprints. Even granting that Douthat recites, "His predecessor’s invasion of Iraq still looms as the largest American blunder of the post-Vietnam era", and concedes that "many current problems can be traced back to errors made in 2003", to put it mildly that's a remarkable understatement.

• Libya - Douthat implies that the so-called Benghazi scandal is a Republican confabulation, but complains, "The consuming Republican focus on Benghazi has tended to obscure the fact that post-Qaddafi Libya is generally a disaster area". That's not an unfair assessment, but the question becomes, "What should we do about it". The chaos is not considered a sufficient threat to U.S. or European foreign policy interests that any western nation is interested in intervening. Is Douthat arguing that Obama should have left Qaddafi in power, better to keep the humanitarian disaster we know than to risk one we don't know? He does not seem to be arguing that the U.S. should send enough troops to occupy and pacify the region, for however many years that would take. What's left? Also, how does Obama's Libya record and its fallout compare to that of Ronald Reagan, who unsuccessfully tried to kill Qaddafi, or George W. Bush, who along with Tony Blair spent years promoting Qaddafi as a poster child for the success of the "War on Terror"?

• Syria - Douthat complains, again not without justification, that the Obama Administration has not kept its implied promise to use military force to remove Assad from power, upon it being established with reasonable certainty that he used chemical weapons. Except Douthat is not endorsing the prevarication that the world does not take the U.S. seriously any more because we didn't invade Syria, and goes on to state, "I’m glad we don’t have 50,000 troops occupying Syria" -- as if we could occupy Syria with only 50,000 troops. The military estimated a short-term need for 75,000 troops just to secure Libya's weapon stockpiles.

• The Holy Land - Douthat complains that John Kerry's Israel/Palestine peace initiative has failed. I'm not sure that many people other than John Kerry expected the initiative to be a success. Douthat himself deems the failure "predictable" and... it was. George W. Bush had a number of peace initiatives directed at the Middle East that were far more ambitious than anything President Obama has endorsed. His father attempted a more coercive approach to advancing a peace accord. Clinton spent years hosting superficial peace talks before his last-minute effort to achieve agreement on the big issues helped contribute to a complete collapse of the peace process. But the fundamental problem is with the leaders of that region, and the last leader who seemed courageous enough to press for a bona fide peace deal was assassinated in 1995.

• Iraq - Douthat complains that "the caldron is boiling and Iranian influence is growing", as if this is a new thing. Who would have thought, after all, that replacing a largely secular Sunni regime with a much more religious Shiite regime would lead Iraq to become friendlier with Iran... except for anybody who knows anything about the Middle East? The failure Douthat attributes to Obama? a suggestion that the "White House’s indecision undercut negotiations that might have left a small but stabilizing U.S. force in place." That's not actually what the article linked by Douthat states. The author indicates that U.S. officials did not receive guidance from the Obama Administration about how many troops they wanted to leave behind, but that's attributed to ambivalence, not indecision. The article also suggests that the Obama Administration was not in fact ambivalent, but that "The American attitude was: Let’s get out of here as quickly as possible". Iraqi Prime Minister Maliki, on the other hand, who was negotiating over troop levels, is explicitly described as indecisive. Douthat admits, "I sympathized with the decision to slip free of Iraq entirely", and he attempts no argument that the Middle East would be better off had the U.S. maintained a troop presence in Iraq.

• Afghanistan - Douthat complains that "", never mind that he's speaking of a first term decision by the President, or that if he's followed the Iraq and Afghanistan wars at all he should know that there are enormous differences between the two nations and the nature and purpose of the respective "surges". Douthat seems to have little understanding of Afghanistan, complaining, "even with an American presence the Taliban are barely being held at bay". Let's imagine that the U.S. took a few holds barred approach to occupation and modernization of Afghanistan, as the Russians did during their years of occupation. Did that make the Taliban go away? And if we're bringing first term decisions into the discussion, here's a doozy. For that matter, was Ronald Reagan's effort to get the Soviet Union out of Afghanistan a foreign policy success, in that the USSR withdrew, or should we look at what subsequently happened in both Afghanistan and Pakistan and contemplate whether it was one of the biggest foreign policy blunders of all time?

• Russia - Douthat complains that "the 'reset' with Russia — has ended in the shambles of the Ukraine crisis, as if there was something that the U.S. could reasonably have done to prevent Russia from invading Crimea. This is the same Putin who, as previously mentioned, invaded Georgia under G.W.'s watch. Expressing a willingness to start afresh with Putin is not something that can be achieved unilaterally.

• Iran - Although Douthat suggests that the Obama Administration could still achieve a "paradigm-altering achievement" with Iran, he simultaneously complains that those efforts could "unsettle[] America’s existing alliances in the region to very little gain". So it's the same situation G.W. Bush failed to resolve, but with the added caveat that any promising effort, and perhaps even a breakthrough agreement, could simultaneously be a failure. Perhaps that's not such a bad perspective on significant foreign policy issues, as blowback from even well-intentioned efforts can be harsh, but it seems like an absurd standard to impose on the President, particularly in light of Douthat's failure to acknowledge that the presidents whose second term accomplishments he finds to be most impressive all made foreign policy decisions that resulted in severe, negative consequences for the country.

Douthat goes on to qualify the Obama Administration's successful operation that resulted in the killing of Osama bin Laden by asserting that the success of the mission "has to be qualified by Islamist terrorism’s resurgence". It's the sort of footnoting he's not willing to do for any other President, some of who can be credited with foreign policy failures that had much more profound and direct negative consequences for U.S. foreign policy interests. More than that, does Douthat believe that it's the killing of bin Laden that resulted in the "Islamist terrorism's resurgence"? That the Obama Administration shouldn't have pursued that mission? And, wait a minute, the blog post linked to support Douthat's allegation of the claimed "resurgence" doesn't even support his position, instead pointing out how difficult it is to hunt for terrorists and has resulted in U.S. security difficulties for government personnel in Yemen, that the U.S. issues regional security alerts when there is an "uptick in the fight against Al Qaeda in Yemen", and questioning the value of drone attacks.

From my reading, all Douthat's equivocation does is reaffirm that his goal is not to analyze Obama's foreign policy records, but to put a slightly centrist spin right-wing talking points. To be a "reasonable voice" by alluding to G.W. Bush's disastrous Iraq policy and distancing himself from the most ludicrous right-wing allegations directed at the President, and then to explain why none of that distance matters while hoping that his readers don't recognize his overt partisanship. If any lesson can be drawn from Douthat's analysis, it's that six years from now, no matter what larger consensus is drawn from the Obama Administration's foreign policy record, we can anticipate that some number of partisan pundits will offer tear-downs of the foreign policy records of the incumbent President and, if the President is a Republican, that they're apt to try to pick even the smallest of cherries from President Obama's record to try to paper over his acknowledged failures. Meanwhile, I would rather a second term President keep his eye on the domestic situation as even a small but significant foreign policy success does not overcome the rank incompetence of an administration that ignores or inflates an economic bubble that, upon bursting, almost takes down the world's economy.

The WSJ Editorial Page Embarrasses Itself Again

It amazes me that newspapers like the Wall Street Journal remain wedded to the Peter Principle, insisting upon promoting the weakest of thinkers to manage their editorial pages. It's not that the board is full of complete idiots -- they're smart enough to recognize that when you write an editorial this stupid you publish it as an unsigned editorial so your name is only indirectly associated with your assertions. But still, they wrote it and they published it.

Readers may recall the original Buffett Rule that President Obama offered as part of his re-election campaign that essentially posited a minimum tax rate for the rich of about 30%. Mr. Buffett heartily endorsed the idea and Mr. Obama hauled out St. Warren as a soak-the-rich cudgel to beat up Mitt Romney in countless speeches.

So it was fascinating to hear Mr. Buffett explain that his real tax rule is to pay as little as possible, both personally and at the corporate level. "I will not pay a dime more of individual taxes than I owe, and I won't pay a dime more of corporate taxes than we owe.

If it needs to be explained, there is nothing wrong and nothing hypocritical about following current tax law, even as you advocate changes that would increase your tax burden. This type of silly accusation is made with some regularity, and in a variety of contexts, but never by a strong thinker.

George Will's False Constitutional Dichotomy

George Will offered a recent lecture on the U.S. Constitution in an editorial that falls victim to one of Will's trademark logical fallacies, the hollow man. Will suggests that he borrowed his argument from a book by Timothy Sandefur, who Will characterizes as conservative but who is more commonly and accurately described as libertarian,

The argument is between conservatives who say U.S. politics is basically about a condition, liberty, and progressives who say it is about a process, democracy. Progressives, who consider democracy the source of liberty, reverse the Founders’ premise, which was: Liberty preexists governments, which, the Declaration says, are legitimate when "instituted" to "secure" natural rights.

The hollow man argument is one in which you ascribe to those who don't share your view a position that few to none of them hold, but that is easily batted down. Such a demonstration is usually followed by vigorously patting oneself on the back. Will departs from his traditional hollow man arguments, in that rather than simply making up a position he ascribes to liberals or progressives, here he has borrowed Sandefur's. Nonetheless, I think he would be hard pressed to find an appreciable number of progressives who blurt out, "Democracy!" when asked to identify the purpose of the Constitution, let alone the constrained concept of Democracy that Will presently deplores.

Further, to the extent that some of the political left might blurt out "Democracy!", so might some on the political right. Consider, for example, this guy:

After half a century of misconstruction, the First Amendment cannot be helped by a piddling-fiddling amendment about the flag. It needs serious thought about why the Amendment's framers, who used words more carefully than the court does, used the word "speech" rather than "expression." The answer is that speech, meaning the use of words, is the sine qua non of reasoning and persuasion, and hence of democratic government. Democracy is, after all, the point of the Constitution, to which the Amendment is appended.

The person who wrote that essay was also not so keen on the elevation of individual rights over those of the community,

[Both flag burning and abortion] involve a particularly American tension between the values of individualism and community. Actually, the rights of communities are so attenuated that there is not nearly enough tension....

The fundamental problem is a social atmosphere saturated with a philosophy of extreme individualism. In many manifestations this philosophy is anti-democratic because it overrides the right of the community to speak and act. This philosophy has been absorbed by many judges, including some so-called conservatives, who have supported the assault on the rights of the community.

In short, a younger George Will thought it absurd that the constitution might be construed to protect symbolic speech, as opposed to words that flow from your mouth (or from the printed page), and was contemptuous of giving constitutional protection to reproductive freedom. He saw the core of the Constitution as being about democracy, and was disdainful of the elevation of individual rights over constraints that the larger community wished to impose. He openly questioned the conservative bona fides of those who advanced individualism over community. It's possible that Will changed his mind, although his writings do not suggest an actual evolution of thought. It seems more likely that he forgot his past words, written in what he likely believed to be a time of conservative ascendency, and that his present position is inspired by his fear that the Republican Party is on a downward trajectory. After all, democracy is more fun when you're winning.

Contrary to Will, I don't believe that if you asked random liberal and conservative voters, "What is the purpose of the Constitution", you would get a majority of liberals arguing "to protect democracy" or a majority of conservatives aruing, "to protect individual rights". I also think that, whatever the initial response, both groups would acknowledge that the Constitution does, in fact, protect both democracy and individual rights. I think he would find vanishingly few people in either faction who would articulate the conception that democracy is a "process" and that individual liberty is a "condition".

The essential argument advanced by Will, paraphrasing Sandefur, is unconvincing:

Progressives consider, for example, the rights to property and free speech as, in Sandefur’s formulation, "spaces of privacy" that government chooses "to carve out and protect" to the extent that these rights serve democracy. Conservatives believe that liberty, understood as a general absence of interference, and individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified. Merely invoking the right of a majority to have its way is an insufficient justification.

Sandefur works for an organization that actively opposes eminent domain, and that appears to color and perhaps dominate his perception of this divide. After all, the most notable cases of eminent domain have occurred in urban areas in the name of urban renewal, and it follows that a lot of the governments advancing that renewal are Democratic.

There is a problem within that sphere, in that many Democrats are not comfortable with the government taking private property for a public purpose, particularly a nominally "pubic purpose" that involves handing seized land over to private developers. But more than that, when you move outside of that narrow sphere, the conceit collapses. When it comes to protecting the rights of marginalized and disenfranchised groups, progressives have consistently taken the lead. When the left embraced the civil rights movement, the Republican Party embraced the Southern Strategy. In the present push for equal rights for gay Americans, leadership comes almost exclusively from the left and resistance almost exclusively from the right. When it comes to reproductive freedom, it has not been the Republican Party that has taken the position that "individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified". Quite the opposite.

Will embraces an odd argument, advanced by Sandefur, that you should derive your beliefs about the Constitution's purpose not from the Constitution itself, but from the Declaration of Independence,

The Constitution is the nation’s fundamental law but is not the first law. The Declaration is, appearing on Page 1 of Volume 1 of the U.S. Statutes at Large, and the Congress has placed it at the head of the United States Code, under the caption, “The Organic Laws of the United States of America.” Hence the Declaration “sets the framework” for reading the Constitution not as “basically about” democratic government — majorities — granting rights but about natural rights defining the limits of even democratic government.

Alright, then, let's take a look:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Is it actually possible to read the Declaration of Independence and miss its emphasis on democracy and the consent of the governed?

I do have some sympathy for some of Sandefur's arguments, as stated by Will. In Will's formulation, which I am accepting as accurate, Sandefur deplores the manner in which the Privileges and Immunities Clause of the Fourteenth Amendment was effectively written out of the Constitution by the Supreme Court. I also appreciate Will's argument that the purpose of the constitution is not to leave the rights of the individual to the mercy of the strong, although I again have to note that, outside of certain narrow spheres, the protection and advancement of individual rights has been largely a concern of the political left. I'm impressed that Will has moved away from his past narrow textualism, now arguing that an "individual’s natural rights... include — indeed, are mostly — unenumerated rights whose existence and importance are affirmed by the Ninth Amendment", and I would be pleasantly surprised if Will revisited some of his past positions in light of his new understanding of the Constitution.

I'm not sure what to make of Will's embrace of judicial activism,

Many conservatives should be discomfited by Sandefur’s analysis, which entails this conclusion: Their indiscriminate denunciations of “judicial activism” inadvertently serve progressivism. The protection of rights, those constitutionally enumerated and others, requires a judiciary actively engaged in enforcing what the Constitution is “basically about,” which is making majority power respect individuals’ rights.

Is Will acknowledging the obvious: that much of what has occurred in recent decades in advancement of conservative causes has involved rampant judicial activism by Republican-appointed judges? Is he embracing the notion of a "living constitution", one that should not be interpreted by its actual language but should instead be interpreted consistent with a contemporary view of individual rights? By what measure are courts to decide cases, in the process upholding and defending the Constitution, if not the language of the Constitution? Perhaps Will is arguing that he sees a great need for conservative judicial activism as a counter to democracy, not so much to protect individual rights as to protect his conception of conservatism from voters who keep electing Democrats.

In Your Face, Tomasky

While commenting on Paul Krugman's academic salary, which is lower than one might expect, Michael Tomasky uses the salaries at the University of Michigan Law School to make a point about Krugman's compensation:

While researching something else, I took a glance at the salaries given to faculty at the University of Michigan Law School. Nearly three-dozen faculty members there make more than Krugman’s $225,000. Fourteen are north of $500,000. Well, that’s law school, you might argue, they have to pay more. Maybe. But I can promise you you’ve never heard of them (except maybe Catharine MacKinnon, at $297,000).

I've actually heard of quite a few of them. (Is it cheating that, a couple of decades ago, I attended UM Law School?)

The funny thing is, the lesson I draw from the UM salary figures is that both salary bloat and the Peter Principle are alive and well. For some of the names on the list, compensation figures seem low -- but, like Krugman, the professors who seem underpaid have other, often substantial income streams from their publications and consulting work. Some of the numbers seem... wrong. As much as I respect the man, by way of example, I find it very difficult to believe that Judge Timothy Connors pulls in over $600K per year as an adjunct lecturer. David Lat publishes a different set of figures here, the top paid UM professors from 2012 to 2013, and although lecturers aren't technically professors... I just don't see it. If anybody can shed light on the peculiar figures (e.g., Judge Rhodes, a brilliant bankruptcy jurist, listed as receiving a salary of $566,666.68 as a "LEO Intermittent Lecturer") I would love to hear the explanation -- and to get tips on how to get that sort of compensation while moonlighting as a lecturer.

I have personal experience with some of the professors who are unquestionably paid a greater salary than Krugman. One is a brilliant man who, regrettably, could make a fortune if only he could bottle his lectures and sell them as an insomnia cure. Two are among the worst professors I've ever endured, one having demonstrated little interest in preparing for class and making casual, absurd statements during her lectures, and another being both intellectually lazy, and prone to narcissistic outbursts when corrected in class. (The lesson is: Don't correct him. You will pay.) One is among the hardest working, exacting people I've ever encountered in any sphere of my life. Another is brilliant within his field, with an encyclopedic grasp of his subject and an amazing ability to make it accessible to his students. One is probably the nicest people I've encountered in academia, with a dedication to teaching that seems too often absent from the classrooms of an elite law school. One, who I know only by reputation, was remarkable in her ability to draw her students into her philosophy of law. There are a few others who I know by reputation.

I know a few of the names of people who earn less than Krugman, as well. It's interesting to see how the compensation for certain clinical professors has risen -- I expect that comes from the increased emphasis on clinical law programs over the past twenty years, with an associated increase in demand for professors skilled enough to lead an effective, attractive law clinic. Some of the clinical professors date back to when I was at UM, and I worked with a couple of others when I was at ICLE. One of them graduated from UM a year before me, and I also remember him from classes (where he was obviously brilliant). A person from what is sort of my law school class (being a "summer starter", I fall between two years of regular graduates) is doing quite well as an administrator. A couple of others, I can count on meeting at my child's school events, as they're the parents of one of her classmates.

At the end of my review of those names and numbers, I was left with the feeling that the salaries of law school faculty reflect less of a meritocracy than would likely be achieved on a more open market. Part of that results from the absurd increases in law school tuition, funding lavish facilities (and boy, has UM Law upgraded its facilities from back in my day, when they already seemed pretty darn nice) and increased salaries. But for the better members of the faculty, I don't begrudge them their salaries. They are people who could earn as much or more (and sometimes already do earn as much or more) outside of academia. Where I find myself a bit annoyed is with the number of professors who I doubt have any greater interest in teaching than when I suffered through their lectures, and who I know haven't gotten any smarter, who seem to have floated through the years with ever-increasing salaries, praise be to tenure.

I suppose for those unfamiliar with Krugman, save for by reputation as a left-wing bogeyman, there might be a similar feeling. They might not be expressing, "That's too much money", in the sense of it's being too much to pay a high profile economist to teach at an elite university, but in the sense of, "I don't like Krugman, so he shouldn't make that type of money." As I understand it, Krugman's ability as a columnist parallels his ability as a professor, and he's capable of communicating difficult, abstract, complex topics in a way that his audiences (be they the readers of his columns or those who sit through his lectures) can understand. I think UM would do well to trade a few of its highly-paid but dubious talents to Princeton or CUNY, in exchange for Krugman as a professor for its law and business schools. But then, if Krugman were primarily focused on chasing the dollar in his academic career, it's difficult to believe he hasn't had offers on the table significantly in excess of his starting salary at CUNY.

Healthcare.gov and Human Nature

It's an unfair generalization, but when I look at the traffic that took down a defective healthcare.gov website on its first day, and the traffic that came close to doing the same on the last day of open enrollment, I can't help but wonder if there's a component of human nature that silently instructs us, "If you can't do something at the very first opportunity, you might as well put it off until the very last minute."

Paul Ryan's Buget Appeal to the April Fools

I see Paul Ryan picked an approropriate day to release his (and by "his" I mean something created by others then handed to him as the pitchman) plan to balance the budget in ten years.

Ryan's budget, called the "Path to Prosperity," has almost no chance of passing the Democratic-controlled Senate but is expected to serve as a campaign manifesto for Republicans in November's congressional elections.

It's a predictably Republican plan. The rich get their path to greater riches, and guess who picks up the tab? April fools!

It proposes to kill President Barack Obama's 2010 healthcare reforms and revives cuts in social programs such as the popular Medicare entitlement for the elderly that Ryan, who chairs the House Budget Committee, has proposed in other recent budgets.

Let me think for a moment... didn't we have a Republican claim that he was going to balance the budget in ten years, roughly fourteen or so years ago? How did that work out for us, again?

Let me remind you why ten year plans to balance the budgets are the refuge of liars and cowards:

1. Congress cannot bind future sessions of Congress. The only budget that matters is the one they pass this year.
   
   If you believe that the Republicans, given the opportunity, won't embrace deficit spending like kids in a candy store, you've missed the entire modern history of the party.

2. Unexpected events happen.
   
   If you have been asleep for the past decade or two, you may have missed a couple of wars, a global economic meltdown, and the like, but believe it or not they affect the budget.

3. Budget projections rely upon assumptions that may be reasonable in the short-term, but are unreliable in the longer term.
   
   A few years ago, for example, healthcare inflation was assumed to remain out-of-control for decades to come, yet suddenly it appears to be in check. (Ryan's response, of course, is to propose eliminating the Obama-era legislation that has played a role in that change).

4. Budget deficits aren't the real issue. The issue is whether government spending is responsible, not whether the budget is balanced every year.
   
   When the economy is in a downward spiral, it makes sense to try to stimulate growth. When the economy is booming, it makes sense not just to balance the budget but to pay down the national debt. The Republican Party takes the opposite approach, with irresponsible tax cuts and over-the-top spending during boom times, then embracing austerity during recessionary periods... if a Democrat is in the White House. The responsible approach is to keep the growth of the nation's debt under control over the long-term while maintaining flexibility for times of recession and crisis.

5. "Ten years" means no one has to be responsible.
   
   This is a typical coward's refuge. Promise to deliver something over such a long time frame that nobody has to take responsibility. If a "ten year plan" were to pass for the coming fiscal year, not only will President Obama be out of office when it comes time to deliver, but his successor will be out of office (or at the very tail end of his term). And I guarantee that his successor would have many excuses for why the plan failed, and how it's somebody else's fault, assuming anybody even remembers it.

And all of that assumes that the budget is put together with honest numbers. When dishonest politicians use distorted figures, the projection is worthless from day one.

If this weren't another childish stunt for the April fools, Ryan would offer a meaningful budget for the coming fiscal year, no hocus pocus, wishful thinking, or outright mendacity about "ten years from now". And he would be honest, "I want to cut social benefits for ordinary, working people right now, so that I can afford to continue the tax levels and spending programs that best serve the special interests that favor my political party. If my budget plan fails, the result will be that ordinary people pay a significant price, but those special interests remain on the Path to Prosperity. I will never vote to restore a penny of social spending cut in the name of this program, even if not one of the projections I'm making prove true, because the entire point of this exercise is to cut those programs."

Marc Thiessen, as Usual, Gets Things Completely Wrong

I suspect Marc Thiessen's intelligence is no worse than average, but he's certainly not afraid to look stupid:

Politicians and commentators on the left have been publicly flogging Rep. Paul Ryan (R-Wis.) for daring to talk about poverty in America’s inner cities. The charges have been so vicious and scurrilous (accusing him of using racial “dog-whistles” and language “deliberately crafted to appeal to white racists”) that their only purpose can be to send a message to Ryan and any other Republican who would dare follow his lead: Keep your hands off our issue. Poverty belongs to us. Stay away or we will brand you a racist.

(Insert obligatory Jay Smooth video here.)

Ryan’s attackers worry that if Republicans follow his lead, it will expose the failure of the left’s approach to poverty. For decades, Republicans gave Democrats a near-monopoly in the fight against poverty. And like most monopolies shielded from competition, the Democrat-led war on poverty failed. We have spent trillions of dollars on anti-poverty programs, and today the number of Americans living at or near poverty is higher than it was in 1964.

Yeah.... Ryan's critics are terrified that his war on poverty, and by that I mean policy proposals that would make it even harder to be poor, is going to win him votes from... um... I guess it would be nobody?

Ryan’s attackers are also worried that if Republicans make helping the poor and vulnerable a priority, Democrats can no longer win elections by waging class warfare and painting the GOP as uncaring champions of the wealthy. They want the Republicans to follow the example of Mitt Romney, who declared in 2012, “I’m not concerned about the very poor. . . . We will hear from the Democrat Party [on] the plight of the poor. . . . But my campaign is focused on middle-income Americans.”

I cannot recall the last time a Democrat had to "wage class warfare" or "paint the GOP as uncaring about the poor". The GOP hangs that brand on itself. But for somebody as (willfully?) obtuse as Thiessen, perhaps that's a difficult distinction to draw.

Ryan understands that if Republicans abandon the poor to the Democrats, they will hurt the poor — because Democrats have all the wrong answers for the problems of poverty. But they will also hurt themselves. Because no one — in the middle class or any class — wants to support a party that does not care for the most vulnerable among us.

Stuff and nonsense on both fronts. First, however flawed anti-poverty efforts of the past have been, the reason Thiessen can hang most of the responsibility for those programs on the Democrats is that the Republican approach to poverty (including Ryan's approach) hinges on cutting benefits for the poor. For example, the Republican Party is in a tizzy, right now, because their food stamp cuts aren't going to be as deep as they had hoped. Maybe in Thiessen's alternate universe, nothing says "We love the poor" like food stamp cuts.

Second, the Republicans have made something of an art form of distinguishing the "deserving poor" (i.e., poor people who, on the whole, vote for Republicans) from the "undeserving poor" (i.e., poor people who, on the whole, tend to vote for Democrats). A smarter man than Thiessen would admit that Ryan's foul-up was in making too explicit that many of those his party deems "undeserving" fall within a particular demographic,

We have got this tailspin of culture, in our inner cities in particular, of men not working and just generations of men not even thinking about working or learning the value and the culture of work, and so there is a real culture problem here that has to be dealt with.

If Thiessen wants the Republican Party to keep making statements like that, let's just say, if his thesis about voter concerns is correct he'll do nothing but harm to his party.

Robert Samuelson Fudges More Numbers

Robert Samuelson is expressing skepticism about the success of the stimulus:

There’s the puzzle: monster stimulus, midget recovery.

How to explain the contrasting stories?

If Samuelson, an economics commentator, actually followed his subject, he would be aware that the stimulus was not so big in relation to the gap it needed to cover. Dean Baker has been addressing this issue for years.

The arithmetic on this is straightforward. With the collapse of the bubble, we suddenly had a huge glut of unsold homes. As a result, housing construction plunged from record highs to 50-year lows. The loss in annual construction demand was more than $600 billion. Similarly, the loss of $8 trillion in housing equity sent consumption plunging. People no longer had equity in their homes against which to borrow, and even the people who did would face considerably tougher lending conditions. The drop in annual consumption was on the order of $500 billion.

The collapse of the bubble in nonresidential real estate cost the economy another $150 billion in annual demand, as did the cutbacks in state and local government spending as a result of lost tax revenue. This brings the loss in annual demand as a result of the collapse of the bubble to $1.4 trillion.

Compared with this loss of private sector demand, the stimulus was about $700 billion, excluding some technical tax fixes that are done every year and have nothing to do with stimulus. Roughly $300 billion of this was for 2009 and another $300 billion for 2010, with the rest of the spending spread over later years.

In other words, we were trying offset a loss of $1.4 trillion in annual demand with a stimulus package of $300 billion a year. Surprise! This was not enough.

It's not as if Dean Baker is alone in his opinion. Paul Krugman seems prescient in describing Samuelson's form of analysis:

So why does everyone — or, to be more accurate, everyone except those who have seriously studied the issue — believe that the stimulus was a failure? Because the U.S. economy continued to perform poorly — not disastrously, but poorly — after the stimulus went into effect.

There’s no mystery about why: America was coping with the legacy of a giant housing bubble. Even now, housing has only partly recovered, while consumers are still held back by the huge debts they ran up during the bubble years. And the stimulus was both too small and too short-lived to overcome that dire legacy.

This is not, by the way, a case of making excuses after the fact. Regular readers know that I was more or less tearing my hair out in early 2009, warning that the Recovery Act was inadequate — and that by falling short, the act would end up discrediting the very idea of stimulus. And so it proved.

But, you know, Samuelson found an economist you've probably never heard of before, and the guy has a position at a brand name university and a blog, so why research any more deeply into the subject? Samuelson's primary argument is that we should live in fear of dire consequences that never materialized, and thus that the government should do nothing more to stimulate the economy. Fortunately for him, the Republican Party is on his side so we're apt to see the painfully slow recovery continue to inch along. If another recession hits soon, Samuelson may discover out that the phrase, "an economy in eclipse," has more significance than as a parting shot taken at those who actually understand the subject.

Robert Samuelson's Fudgy Numbers

You can count on two things from Robert Samuelson: Arguments that any amount of social spending is too much, and arguments that any amount of military spending is too low. I say that while accepting that there may be some social spending programs that Samuelson would maintain at present levels, or perhaps even expand, and some military programs that he might cut, but he's not interested in writing about those issues. In a big picture sense, he dislikes social spending, while depicting military and war spending as easily afforded pocket change.

It thus comes as no surprise that Samuelson is adamantly opposed to the proposed cuts to the Pentagon budget and the size and scope of the U.S. military. Predictably, his outrage is expressed largely in the abstract, and he chooses to completely ignore the issues of waste or of out-dated or redundant weapons programs. Instead he presents dubious arguments and fudges the numbers. It's difficult to believe that he could hold a straight face while writing his opening paragraph:

The crisis in Ukraine reminds us that the future is unpredictable, that wars routinely involve miscalculation and that brute force — boots on the ground, bombs in the air — counts. None of these obvious lessons seems to have made much impression in Washington, where the Obama administration and Congress continue their policy of defunding defense and reducing the United States’ military power.

I would love for Samuelson to explain to his readers how much additional U.S. military spending it would take to deter Russia from acting in what it perceives to be its best interest, and exactly how that spending would have an impact on Putin's decision-making. The issue is not that we can't counter Russia in a conventional war. The issue is that Russia is a nuclear power, and even if a war to liberate Crimea were somehow (magically) contained to that region and did not involve nuclear weapons, the human cost of such a war would be massive. Samuelson is more than smart enough to know that a $400 trillion U.S. military budget would not have deterred Russia. What does it tell us that his opening position suggests otherwise?

Next up, Samuelson whines that as military spending drops, Social Security spending increases. First, as should be obvious to anybody who claims to be a writer on economic issues, the two are not related. It is possible to have both high Social Security spending and high military spending. Second, the funding mechanisms are different. Social Security is designed to be self-funding. But for Republican obstructionism, as cheered on by the "Burn it down" position taken by Beltway pundits such as Samuelson, we would almost certainly have seen a reform bill pass early in Obama's tenure that would have reduced the measure of inflation for future Social Security benefits and balanced the books into the very distant future. Third, if Samuelson can do math, he knows that Social Security and Medicare spending are closely tied to the number of elderly people in our society, and he should have no trouble figuring out that the problem is not so much that the spending is "out of control" as it is that Baby Boomers are reaching retirement age. Fourth, the reasons to maintain Social Security and Medicare have absolutely nothing to do with the reasons our nation might have to modify its defense budget.

Samuelson next claims that there are two reasons why the U.S. has a military: to deter conflicts and to defend national interests. On the issue of deterrence, Samuelson argues that any large military budget cuts "symbolically undermines deterrence." What a wonderfully convenient argument for him: We can never make more than token cuts to the military, as to do so would send the message to the world that they can engage in military conflicts. Perhaps Samuelson is still clinging to the false hope that the end of the Cold War somehow meant an end to war, as it's difficult to find a region in the world where nations seem particularly disinclined to engage in warfare when they believe it's in their best interest. One wonders, what military conflict does Samuelson believe the U.S. is presently deterring (perhaps a Chinese invasion of Taiwan, or a North Korean invasion of South Korea?) and why does he imagine that the military cuts will even slightly affect deterrence.

The best examples Samuelson can muster are of China and Iran:

The United States’ military retrenchment won’t make China’s leaders less ambitious globally. (China plans a 12 percent increase in military spending for 2014; at that pace, spending would double in six years.) Nor will it dampen Iran’s aggressiveness and promote a negotiated settlement over its nuclear program. Probably the reverse. Diplomacy often fails unless backed by a credible threat of force.

If the best examples Samuelson can muster are that, if military spending is cut, China may go on an invasion spree and Iran will... do whatever it is that Samuelson imagines that they would do differently... you can see the weakness of his position. When you describe the current military actions taken by China, how can you suggest that those actions would be deterred if only we didn't reduce military spending from current levels? As for the notion that the U.S. would lack credibility to pose a military threat to Iran, post-cuts, that's absurd on its face. It's another assertion that Samuelson can't possibly believe.

Samuelson mentions that China is increasing its military spending by 12%, to support a ridiculous projection that at that rate they could double military spending in six years. His source tells us what such a theoretical doubling would mean:

Although the rise in the defense budget in the past three years has surpassed GDP growth, the share of military spending in China's GDP stood at less than 1.5 percent last year, well below the world average of 3 percent, Yin said, citing statistics.

A report released by London's International Institute for Strategic Studies showed the United States remained the world's biggest defense spender in 2013, with a budget of 600.4 billion U.S. dollars.

Robert Samuelson has been beating the military spending drum for a very long time. Back in 1997, he was complaining that 1996 military spending was a mere 3.6% of GDP. In 2012, by the CIA's measure, military spending was at 4.35% of GDP. While that number may decrease to 2.7% by 2017, a target that was included in the 2013 bipartisan budget deal, U.S. military spending would continue to massively exceed China's expenditure.

Samuelson's drum beating about China also belies his suggestion that military strength is inexorably tied to the percentage of GDP a nation devotes to military spending. He's depicting a nation that spends a mere 1.5% of its GDP on its military as the leading threat to the world military dominance of the United States. That should suggest a few things to Samuelson, including the possibility that the fact that the size of a nation's economy factors complicates the question of how military spending should be measured and that, even in relation to his beloved military spending, the law of diminishing returns comes into play.

Samuelson also glosses over the fact that nations enjoy a carry-over from past military spending. It's not the present level of investment that frees Russia to support Syria, or act military in nations like Georgia, Czechoslovakia and Chechnya. It's the legacy of its superpower status and its nuclear arsenal. Russia may not have the power it once held to project its might into the far reaches of the globe, but it has made clear that it can and will act to defend its perceived interests no matter what the rest of the world may believe. In other words, despite Samuelson's ominous warnings, there's no reason to believe that the proposed budget cuts would devastate the status of the U.S. military as the world's leading military power, or the status of the U.S. as the world's only remaining superpower.

Russia’s aggression in Ukraine raises the prospect that a sizable number of U.S. troops might be stationed in the Baltic nations or Poland. All belong to NATO; all must now feel more threatened by Russia.

While noting that this is fear-mongering of the worst kind, and that Russia understands the difference between acting against a NATO member state and a non-aligned state, once again if that threat is being felt the feeling is occurring at the end of a long run-up in military spending. If current spending levels aren't sufficient to keep nations from being afraid of Russia, then there's really nothing that we can do to make that fear go away.

A question Samuelson doesn't ask, let alone address, is whether it's even our nation's proper role to try to ensure that nations that are not our treaty partners are not in fear of military action by a neighboring nation. Samuelson seems to love the idea of the U.S. as a global policeman, no matter what the price, but I see little sign on whether he's reflected on whether that's an appropriate role for the U.S., or whether other nations should take a greater role in paying for and providing their own regional security. If it's crucial to Europe that the Baltic States never fear Russia, no matter how remote the possibility of actual military action, why should it be the U.S. that foots most or all of the bill for chasing away the bogeyman? And if Samuelson believes the statement he endorses at the end of his column, "the world has gotten no less dangerous, turbulent or in need of American leadership. There is no obvious peace dividend as was the case at the end of the Cold War", why does he imagine that the bogeyman will vanish even if we continue to spend at today's inflated levels?

It should also be noted that Samuelson plays the game that any cuts in military spending must be permanent. He disregards the fact that every time this nation has felt a need to increase military spending, those increases have occurred. The only budget or spending bill that really matters is the one passed by the current Congress, as the next Congress will remain free to institute its own spending priorities. Samuelson, I suspect, is aware of that fact, but he chooses not to acknowledge it because, as with his other omissions, he understands that once people realize that his rending of clothes over future military spending is a performance, and that if the circumstances require Congress will do what it has always done to maintain the military strength of the United States -- increase military spending.

The Senate Embarrasses Itself

Ruth Marcus has this right:

For Republicans to block one of President Obama’s nominees is dog-bites-man non-news. For members of the president’s party to defect is more notable. And for Democrats to worry more about their political hides than a nominee’s fitness for service — as happened in the Senate this week — is simply revolting.

In a sense her claim that the President "fail[ed] to adequately anticipate and defuse the problem" is a truism, but she doesn't suggest what he might have done differently. The Republicans who voted against Debo Adegbile did so because they find it to be politically advantageous to oppose the president, because they prefer a neutered civil rights division, because they are stupid, or some combination thereof, so the President wasn't going to win their votes. The Democrats who joined them did so because they are cowards. They knew the facts, but feared facing a political consequence if they voted based on the facts instead of pandering to factions they feared would vote against them in coming elections. What argument would change that?

How About Taking Responsibility For the Medications You Take

Ruth Marcus seems oblivious to the fact that sedating medications, including Ambien, are frequently abused.

[Kerry] Kennedy may have taken the pill by mistake, they contended, but she ought to have known she was impaired and pulled over.

Excuse me, but maybe they should have tried taking this drug before filing criminal charges. Ambien and other sleeping pills are powerful. You take Ambien, and 15 to 30 minutes later, you begin to zonk out. A toxicologist who testified at Kennedy’s trial — for the prosecution, no less — said that someone under the influence of Ambien could fail to recognize that she was having a problem, or even to remember, later, what happened.

I think we can infer from Marcus's statement that she has taken Ambien, and thus knows how sedating it is. What Marcus probably has not seen is what happens when somebody takes Ambien and deliberately stays awake. The superficial affect is one of significant alcohol intoxication. Why do some people do that? Just as with abuse of common benzodiazepines, ecause they like the way it makes them feel, and some of them use other drugs or alcohol at the same time so that they can enjoy a magnifying effect.

Ambien may be something of an extreme case, given how quickly the sleepiness can come on, but how far would Marcus extend her "Let's assume it was an accident" rationale to other sleep aids? She draws a distinction between "medications with drowsiness as a side effect, [and] the ones whose sole purpose is sedation", but why? Many people take Benadryl to sleep, and sometimes pharmacists recommend it as a non-prescription sleep aid. Many people take opiate and opioid medications for pain, but they can be highly sedating and are commonly abused.

Marcus seems to feel that nobody who drives down a road after taking Ambien should ever face a criminal charge for driving while impaired by drugs, even if they injure or kill somebody. I have no problem working from the perspective that if you are too drugged to drive you shouldn't get behind the wheel, even if you took the wrong medication by accident. When somebody is intoxicated behind the wheel, I don't mind putting the impetus on that person to convince me both that it was a mistake and that they had no reasonable opportunity to recognize the mistake so as to get off the road. Kerry Kennedy was able to convince a jury that she took Ambien by accident, and didn't recognize its effect in time to safely stop her car. Marcus thinks that's too high a price for Kennedy and other Ambien users to pay, but it's not as if either of them are unaware of the dangers of that drug. They are both certainly aware of this case:

U.S. Rep. Patrick Kennedy said Friday that he will enter a rehabilitation program after crashing his car on Capitol Hill a day earlier....

He said in a statement Thursday evening that he was apparently disoriented at the time of the crash after taking the prescribed amounts of a sleep aid and an anti-nausea drug.

"I am deeply concerned about my reaction to the medication and my lack of knowledge of the accident that evening. But I do know enough to know that I need to seek expert help," he said Friday....

In his Thursday evening statement, Kennedy said he had returned home after final votes in the House of Representatives around midnight Wednesday and taken the sleep aid Ambien and an anti-nausea drug....

In his comments Friday, Kennedy said, "The recurrence of an addiction problem can be triggered by things that happen in every day life, such as taking a common treatment for a stomach flu.

Assuming she takes Ambien, Marcus, I expect, is very careful with Ambien due to the stories she recounts, including one that put one of her own children in danger. How many stories do we need, and how close to home do they have to hit, before we can reasonably expect people to look at their pills and read their pill bottles before swallowing a sleeping pill then getting behind the wheel of a car?

I won't argue with Marcus that manufacturers could create pill colors and shapes, or package sleep aids in a different manner, and thereby all-but-eliminate the "I was confused" defense. Perhaps at that point Marcus would accept that people intoxicated by Ambien should be subject to prosecution for driving in that condition. But for now, if people have multiple, similar-looking medications, they owe it to themselves and others not to confuse their pills. If people who have serious health conditions requiring them to juggle dozens of medications can keep their pills straight, I think it's reasonable to ask that people with minor medical conditions and two or three prescriptions to do the same, more so when incidents of carelessness will pose serious risk to themselves and others.

Has Thomas Friedman Learned His Lesson?

Or at least, a lesson? That was then (if you're impatient, skip ahead to 2:24):



This is now:

Today, Obama’s critics say he must do “something” about Syria. I get it. Chaos there can come around to bite us. If there is a policy that would fix Syria, or even just stop the killing there, in a way that was self-sustaining, at a cost we could tolerate and not detract from all the things we need to do at home to secure our own future, I’m for it.

But we should have learned some lessons from our recent experience in the Middle East: First, how little we understand about the social and political complexities of the countries there; second, that we can — at considerable cost — stop bad things from happening in these countries but cannot, by ourselves, make good things happen; and third, that when we try to make good things happen we run the risk of assuming the responsibility for solving their problems, a responsibility that truly belongs to them.

Friedman is often cited as an expert on the Middle East, but were that the case it should have been pretty obvious to him that his thesis for a war as a demonstration of "suck on this"-type resolve was deeply flawed. He may be a slow learner, but given his prominence it's very good that he's learning.

Things That Never Happened

Kathleen Parker prevaricates,

When Jindal ran for governor in 2007, opponents frequently noted that his first name is Piyush. Democrats mentioned “Piyush Bobby Jindal” as often as Republicans brought up “Barack Hussein Obama” the following year.

But hey, at least she's not calling President Obama a half-blooded girlie-man, this time around.

Inadequate Funding of Defense Experts

The New York Times has taken note of a 28-year-old case in which the defense, given only $1,000 to hire an expert witness, hired an inadequate expert.

Anyone who has hired a lawyer knows $1,000 doesn’t buy you much. But when Anthony Ray Hinton was on trial for his life in Alabama, that’s the total amount his court-appointed attorney thought he could spend on a key expert witness in firearms evidence. All he could find for that price was an elderly one-eyed man with a degree in civil engineering who was laughed out of court for his inability to answer basic questions.

If you look at the Supreme Court's decision, the reason that additional proceedings have been ordered in the defendant's case is much less the amount of money that was authorized, and much more the fact that the defense lawyer did not know he could seek more money and thus made no attempt to do so:

Operating under the mistaken belief that he could pay no more than $1,000, Hinton’s attorney went looking for an expert witness. According to his postconviction testimony, he made an extensive search for a well-regarded expert, but found only one person who was willing to take the case for the pay he could offer: Andrew Payne. Hinton’s attorney “testified that Payne did not have the expertise he thought he needed and that he did not consider Payne’s testimony to be effective.”...

Hinton’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.”

This was a capital trial, and the court was not trying to be stingy, authorizing the largest amount it believed was available under state law. But when I read people who have never been involved in indigent expense scoffing at the grant of $1,000 for an expert witness, I have some amazement at the gulf of understanding between what people believe should occur in criminal cases and what typically happens. Note, the attorney fee granted for that capital trial was a mere $1,600. The only way you can represent a client in a capital case -- or any serious felony case -- for that type of compensation is by cutting a lot of corners or by accepting that you'll be investing perhaps hundreds of hours in a case for which you'll ultimately be paid significantly less than minimum wage.

I recall a case I worked in the mid-1990's, where the court granted $1,500 for expert witness fees in an arson case. I commented to another lawyer that the amount was inadequate. He responded, "That's the most I've ever heard of a judge in this county authorizing for an expert." The situation can be at least as dire for defendants who retain counsel, where they will typically have to come up with additional money out-of-pocket to retain an expert. When it comes to expert testimony, between police investigators, crime lab technicians and their own funding for private experts, prosecutors have an enormous advantage.

Fortunately for my client, I found a fire investigation firm that was both highly qualified and willing to take the case, Safety Engineering Laboratories, with testimony provided by Donald J. Hoffman and Michael Kroll, but the $1,500 didn't even cover their out-of-pocket expenses -- they did the right thing, but no expert can devote that type of time and energy into what amounts to pro bono work on a regular basis. I recall also seeing a case in which a lawyer, having been denied adequate funding for certain pretrial work, had taken his claim to the Court of Appeals which had found his claim reasonable and had ordered reimbursement -- but for the time his case and the subsequent appeal were pending, that was money out of the lawyer's own pocket.

Perhaps the environment has changed in recent years, with the increased use of scientific evidence, but given the relatively low funding available for appointed criminal defense work in much of the country I would be surprised if judges are now routinely granting adequate amounts of money for defense experts. The type of funding you see in high profile cases, covered by the media, are anything but the norm.

What Does it Mean to "Win" a War

Master Sgt. Sean Lulofs, USAF (Ret.) argues,

Our nation has not won a war since World War II. I think America is unwilling to win a war.

The United States has won battles and conflicts, but it has not truly won a war which could clearly demonstrate victory as the defeat of the Axis Powers did. The enemy leadership was removed and new types of democratic governments put in place. Their militaries were disassembled and rebuilt so as to no longer pose a threat to other nations. It was clearly defined who won, who lost, and how. Our nation has maintained a presence in those countries since 1945.

Unfortunately, that was the last time when America believed in true victory, as demonstrated by the lack of willpower in wars since.

If the measure of victory is whether the nation you conquer subsequently bends to your will and allows your troops to remain indefinitely on its soil, the logical extension of that argument is that we lost World War I. Some people have tried to distinguish winning a war from winning the subsequent peace, and that interpretation could be applied to World War I, but if we are to apply that definition of victory then the U.S. did win the Iraq and Afghanistan wars, decisively toppling their governments, but got lost in the aftermath. Lufos also shows no understanding of the institutions of government and the predicates of democracy, and how they played a role in the establishment of democratic governments in Germany and Japan. You can't simply imagine them into existence.

The author's understanding of more recent history, unfortunately, is also weak:

The Vietnam War was lost even though we were winning it. We had pushed our enemies back and they were on the verge of defeat. However, due to lack of support for the mission (a.k.a. the troops), the national leaders fled not only the battlefield but their commitment and responsibility to our military. The communists fully took the nation and their evil spread to other countries which fertilized the killing fields due to the vacuum created by the hasty withdrawal.

In fact, Cambodia and Vietnam had centuries of conflict between them, conflict that started long before the region was colonized. The Cambodian government under Lon Nol engaged in ethnic cleansing against ethnic Vietnamese, killing thousands. Subsequent to the U.S. withdrawal from Vietnam, his government fell to the Khmer Rouge, an organization that was communist, tied to China, and spawned by the People's Army of Vietnam, but which was actively hostile toward Vietnam. The Cambodian genocide was an internal phenomenon, not something inspired by the Vietnamese government. The Khmer Rouge was toppled after they attempted to invade Vietnam and capture the Mekong Delta, a region that Cambodia claimed as its own. While Vietnamese occupation followed, the Vietnamese set out to extirpate the Khmer Rouge. The U.S. government response to the toppling of the genocidal Khmer Rouge by Vietnam, under Ronald Reagan, was to recognize the Khmer Rouge as the official government of Cambodia in exile.

One might also ask, why did communism manage to get such a strong foothold in Southeast Asia? One would then look at the history of colonialism in that region. The Vietnamese refer to the Vietnam War as the American War, not so much to identify the principal opponent, but to distinguish it from the first and second French Wars. We have a tendency to view ourselves as the "good guys" and to be perplexed when those in other nations don't share that perspective, but if you're trying to escape from France's brutal colonialism, the response of the West is perceived as taking France's side, and the only powers willing to help you are communist, guess whose money, arms and support you're going to accept, and guess what impact that has on the leadership and goals of your movement?

Let's posit an alternative end to the war, one in which the U.S. takes the military action necessary to win the war in Vietnam. I'm not sure what Master Sgt. Lulofs believes that would be, perhaps bombing the Red River dams and starving the North into surrender. Does he believe that the conflict would have ended, throughout the region, with no further conflict? Cambodia would have swiftly evolved into a stable democracy under leadership better than Lon Nol, somebody who could not have held onto power as long as he did without U.S. backing? Those who had spent a lifetime fighting for freedom against the French and then the Americans would have emerged, put down their arms, and embraced a new, national government led by Duong Van Minh? To me, it seems pie-in-the-sky. It seems more likely that skepticism of U.S. goals would have persisted, and that we would have seen a subsequent level of conflict that Lufos suggests is evidence of our lack of will to "win".

In terms of the first Gulf War,

The Gulf War was never truly won because, although Saddam Hussein was turned out of Kuwait, his army scorched the earth and left mostly intact. Iraq would remain a threat to coalition forces patrolling the skies over the northern and southern no-fly zones by repeatedly firing upon aircraft. Iraq would also remain a constant threat to its neighbors for the next 12 years through the threat of launching SCUD missiles armed with chemical and biological weapons.

The alternative to the outcome chosen for the first Gulf War, though, is the outcome of the second Gulf War. You either leave the regime intact with enough military strength to perpetuate itself and defend its borders, or you don't and you face the consequences of taking down a government led by an ethnic minority in a region rife with religious, factional and tribal conflicts. The author falls into the same trap, imagining that we can show enough will and resolve to make opposition to occupation, to subjugation, simply fade away. There's no reason to believe that to be realistic.

On Afghanistan, we get myth-making:

Initially, the United States demonstrated the will to win and win decisively. This nation, with a multinational force, exacted a swift and violent response. The enemy and all sympathizers were terrified. Terrorist-supporting nations around the region began to disarm their nuclear, chemical, and biological weapons programs because of the resolve shown to win the war and win decisively. It is a region of the world that only understands strength and force, which is what we showed them.

Okay... so initially the Taliban was terrified. So terrified that they refused to surrender and refused to turn over bin Laden. And "Terrorist-supporting nations around the region began to disarm", by which the author apparently means Libya. And boy, didn't that turn out well. And yes, there's more than a slight undercurrent of bigotry in declaring, in relation to the people of the Middle East and North Africa, "It is a region of the world that only understands strength and force".

The author really likes to blame the U.S. public, particularly those opposed to certain of its wars, as somehow being responsible for the lack of will that prevents the U.S. military from achieving the fantasy victories he believes would otherwise apparently result from every U.S.-led war. Beyond the tired myth of people spitting on military veterans returning from Vietnam, Lufos complains that just when we were on the verge of victory,

However, our country again entered into a campaign to appease the minority of loud and aggressive pacifists. The cowardice of our nation's politicians prevented them from making clearly defined rules of engagement.

I suspect Lufos believes what he is saying, but it's difficult to see how he reconciles his positions with the facts. The anti-war movement was marginalized and ridiculed during the period leading into the war, and predictably public sentiment was firmly behind the war once it began. To the extent that the problems that arose in Iraq can be attributed to the rules of engagement, it seems fair to ask Lufos to explain what new rules of engagement would have created his fantasy victory? Does he imagine an unconstrained military, so free to stack up Iraqi bodies that the opposition simply wilts? Perhaps he does, given his prior suggestion that all the people of the Middle East understand is "strength and force." But that's a recipe for a fragile peace that ends the moment the occupying power lets down its guard, which is pretty much what happened (but with less bloodshed). The author continues,

Years of weak leadership and poor tactical execution created the powder keg in Fallujah in 2004. Because the fools of politics are never students of history, it was doomed to be repeated by another hasty withdrawal of forces from the country. Again, another vacuum was created and it allowed the very same terrorists which were turned from Fallujah to return.

Wait - I thought it was the anti-war movement that caused the problems after the invasion. Now it turns out that it was "weak leadership" and "poor tactical execution"? More than that, we're back to Lufos' odd notion of what it means to win a war. Apparently it means having a host government that is happy to have the U.S. military remain on its soil in perpetuity, and a U.S. military that is willing to police and hold together that state in perpetuity, because otherwise how would it be a failure of the war effort that the Iraqi government wanted us out, and how would it be the job of the U.S. military to hold or re-conquer (and re-conquer, and re-conquer) various regions of Iraq if the Iraqi government and military was not up to the job?

More than that, if all it takes is a government that is willing to be ruthless in its military operations to cow a population into throwing down its arms and acceding to whatever puppet government the occupying power chooses to impose, why did the Soviet Union fail to permanently pacify Afghanistan? Surely Lufos isn't going to blame that, as well, on anti-war sentiments held by the people of Russia.

The author then explains that it's not so much the enemy, but is in fact himself who only respects "strength and force":

If our nation understood enemies in combat can only be defeated with violence of action, we wouldn't still be in Afghanistan and black flags wouldn't be flying over Fallujah. Our nation has fought the Taliban and al Qaeda as if they were sparring in the debate team.

This takes us back to the author's earlier confusion about what victory means in a war against a nation state, and how by his definitions the U.S. "lost" World War I. How does the author believe that we can military compel people to change their minds about what tribe or faction should run their country, about what God wants them to do, about why they should agree to being ruled by a faction that they expect to subjugate their rights and interests instead of supporting a rival faction that they intend to champion those interests? "Kill them all and let God sort them out"?

The author complains also that the people have not acted sufficiently to hold elected leaders responsible for their actions. To the contrary, a strong case can be made that the elections in 2006 and 2008 were heavily influenced by the belief of the American people that the Bush Administration had been misguided to lose track of the war in Afghanistan in order to start a war of choice in Iraq. The consequences of the Bush Administration's (to use Lufos's words) "Years of weak leadership and poor tactical execution" have served to erode the Republican Party's prior status as the party that was stronger on issues of national security. Perhaps Lufos prefers to think of that as the anti-war movement somehow cowing politicians into ending wars that he imagines could somehow be "won", but perhaps the truth is something else: That, even with loosened rules of engagement, greater commitment of resources, and a longer time for military operations, people with eyes considerably clearer than his own don't see they type of victories for which he pines as plausible outcomes.

If Americans truly did "support the troops," they would not only shake our hands as we walked through the airport, they would demand their politicians commit to a swift victory.

Or perhaps they would take the position that if politicians and officers cannot achieve what Lufos and his peers would regard as a victory, they bring them home. It's really easy to play "Woulda, coulda, shoulda" games with military history, but at the end of the day you have to be able to distinguish fantasies of flowers, candy and democracy breaking out all over with the reality that more commonly flows from military intervention. The first Gulf War might not have been the fantasy victory Lufos desires, but it in fact achieved its stated military objectives. When you can't even articulate what a victory would look like, let alone become so nebulous in your conception of a war (e.g., a "Global War on Terror") that you can't even define your enemy, how can you know when you've won?

Soldiers Dying in Vain

Commenting on the story, "Lone Survivor," Jim Gourley takes on the conventional wisdom, that it should never be suggested that a soldier died in vain:

Yes, Marcus. Your friends died in vain. They went selflessly. They fought bravely. They sacrificed nobly. They lived in the best traditions of duty, honor, and country -- hallowed words which dictate what every American can and ought to be. But they died in vain for the exact reason that they went where their country sent them and did what their country told them to do. America failed you because it failed its obligation to those principles. It gives me no pleasure to write these words, because it applies as much to the friends I lost as it does to yours. But it needs to be said, because the sooner we acknowledge it as a country, the more lives we might save....

[General George Casey] excused himself from proposing a time in the future when that might hold true. And just last year Adm. Mike Mullen expressed the idea in the most definitive of terms: "How could it be that in a democracy -- a free society -- men and women may risk their lives to defend that freedom and lose those lives in vain? It cannot be so."

That was a bastardization of the Gettysburg address. His thesis ran contrary to Lincoln's original remarks. In Lincoln's view, the fallen "consecrated [the field of battle] far above our poor power to add or detract," but the domain of their honor went no further than the burial ground. The president stated explicitly that the cause for which they died could only be made worthy by the citizens who survived them. "It is rather for us here to be dedicated to the great task remaining before us ... that these dead shall not have died in vain...."

Throughout history, our nation's greatest leaders have understood on a deeply personal level that however honorably a soldier acquits himself, he can die in vain, and that it is the responsibility of the leaders and citizenry to see to it that they don't. Our country has lost its sense of that responsibility to a horrifying extent. Our generals have lost the capability to succeed and the integrity to admit failure. Our society has lost the courage and energy to hold them accountable. Over the last decade, our top leaders have wasted the lives of our sons, daughters, and comrades with their incompetence and hubris. After each failure, our citizens have failed to hold them accountable, instead underwriting new failed strategies as quickly as their predecessors with our apathy and sense of detachment. And then we use the tired paeans of "never forget" and "honor the fallen" to distract ourselves from our guilt in the affair. When we blithely declare that they did not die in vain, we deface their honor by using it to wipe the blood from our hands.

I can't help but sympathize with Gourley's observation that politicians now employ the notion that it is a terrible thing to suggest that a soldier could die in vain as a shield against valid criticism of their own decision-making, and also of the popular outcry that enables that conduct rather than requiring accountability.

Sorry, No, Pseudo-Conscription is Still a Bad Idea

Dana Milbank has jumped onto the bandwagon of those who think that the cure for "kids these days" is some form of conscription.

As I make my rounds each day in the capital, chronicling our leaders’ plentiful foibles, failings, screw-ups, inanities, outrages and overall dysfunction, I’m often asked if there’s anything that could clean up the mess....

But one change, over time, could reverse the problems that have built up over the past few decades: We should mandate military service for all Americans, men and women alike, when they turn 18. The idea is radical, unlikely and impractical — but it just might work.

But, even if we incorrectly assumed that the military wanted universal conscription, it's not even slightly realistic to have every 18-year-old serve in the military. While Milbank refers to Switzerland, in which "sons of bankers and farmers alike do basic training for several months and then are recalled to service for brief periods", none of the proponents of conscription are suggesting a similar approach. They instead prefer a period of a year or several years in which the young person is forced to participate in some sort of nebulous national work program that may (but probably won't) involve military service.

What we would end up with, at best, is what Milbank describes later in his editorial, based on his notion that "the structure is less important than the service itself",

My former colleague Tom Ricks proposes bringing back the draft in the United States but allowing for a civilian national service option — teaching, providing day care and the like — for those who don’t want to join the military.

Ricks' proposal was bad, as well, but at least he attempted to explain how it might function. The notion is that we are going to fix the nation's problems my making people take people away from their academic studies or jobs for a year or two, and compelling them to work in daycare centers or equivalent vocations? Seriously? And note the disdain for teaching as a profession - it's presented as something a random high school graduate can do, and roughly equivalent to working in a daycare center.

Milbank agrees with my past assessment that the cost of such a program would be huge. "Staggering" might be a better word. But he insists,

But so would the benefits: overcoming growing social inequality without redistributing wealth; making future leaders, unlike today’s “chicken hawks,” disinclined to send troops into combat without good reason; putting young Americans to work and giving them job and technology skills; and, above all, giving these young Americans a shared sense of patriotism and service to the country.

There is little reason to believe that Milbank's draft would overcome growing income inequality. The type of job skills that marginal high school graduates (or drop-outs) could develop through such a program would likely leave them qualified for low-paying jobs. Even for those who serve in the military, if you consider the difficulty that many veterans presently have finding employment, why does Milbank believe that those who are conscripted and serve for less time will fare better?

Without redistributing wealth? Sorry, but a program that takes a "huge" amount of government revenue and applies it to a year or two of national service would certainly be "redistributing wealth". There's also more than money at stake. For 18-year-olds who plan to attend college, you're delaying their entry into the workforce by at least a year (assuming the program is only a year long). For 18-year-olds who are employed, you're costing them their jobs. For 17-year-olds who would otherwise have job prospects, you're ensuring that employers won't consider them for anything more than temporary positions. That is, there's a tremendous opportunity cost imposed on the young people who are conscripted into the program - perhaps not wealth redistribution in the classic sense, but nonetheless imposing a genuine financial harm on those drafted into the program.

I'm not clear on why Milbank believes that this service, even if we pretend it could all be military service, will result in fewer military mobilizations. Milbank references "chicken hawks", the term applied to people like Dick Cheney who fastidiously avoided service during their youth but had no compunction about entangling the U.S. in wars. But where's the evidence that veterans, once in office, are any less hawkish than non-veterans? Veterans got us into the Korean War and Vietnam War, the first Iraq War, and any number of lesser conflicts. John McCain is a veteran, yet he's one of the most hawkish members of the Senate.

As for "putting young Americans to work and giving them job and technology skills", how would that work? Yes, the military involves a lot of job and technology skills, but often not the sort of skills that fit well with the modern civilian workplace. It's not clear how many of Milbank's conscripts would achieve similar skill sets, as their terms of service would be shorter. Beyond that, Milbank mentions... teaching and daycare. A young adult can already work in a daycare center straight out of high school, and in some cases before they even graduate. While it might be possible to create a small, focused program that allowed high school graduates to develop cutting edge skills, the sort of blunderbuss approach Milbank favors all-but-ensures that most participants will gain very few skills that would benefit them in a subsequent job, save perhaps at the bottom end of the job market.

Oh yes, and "above all", giving "young Americans a shared sense of patriotism and service to the country". I can't help but think of my uncle who, unlike many of the chicken hawks to whom Milbank alludes, insisted upon joining the military and upon combat duty despite a physical condition that would have allowed him to either avoid service or bide his time behind a desk. If anything, his patriotism was bated by his experiences, and the schisms within his unit made it anything but the sort of happy melting pot that Milbank seems to envision. Milbank's vision seems oddly in line with what you see in Vietnam, where conscripts may find themselves in a civilian uniform, working behind the front desk of an army-owned hotel... or cleaning the rooms. But there's little reason to believe that conscripts assigned to random, menial employment would feel much of a connection with those outside of the daycare center where they work, or that those who obtained more prestigious assignments or ranks would view them as equal. And last I checked, Vietnam's government was not one I envied.

Milbank later adds, "Gun-rights groups would cheer an armed citizenry", but where does that even come from? Milbank cannot seem to maintain a consistent thesis as to whether the conscripts would be performing military service, or whether they would be working in daycare centers. Perhaps he imagines that all conscripts will go through military basic training before being shipped off to work in daycare centers? It's hard to tell what he has in mind.

Milbank notes, "an article published by the libertarian Cato Institute argued that compulsory service 'can be a pillar of freedom,'" but fails to note the inherent tension between "libertarianism" and conscription, or for that matter between freedom and conscription. A libertarian might endorse bringing real meaning to the "unorganized militia", with the government providing broad opportunity for citizens to avail themselves of military training within that context, but let's not pretend that conscription is a libertarian ideal or that a libertarian with his head screwed on correctly would confuse it with "freedom".

I'm not particularly concerned that yet another pundit has endorsed a type of service he personally eschewed as a cure for the nation's ills, although I remain amused by arguments that boil down to, "The best way for young people to develop a set of values similar to my own is by being conscripted into a type of program that I, personally, avoided." There's no chance that universal conscription will become law. However, I do think that much of the hand-wringing about kids these days, and about how to provide better opportunities for young people who have more than their fair share of obstacles to overcome, could be channeled into a voluntary service program, a "bridge year" or two in which participants could be matched with suitable peer groups, and dispatched to communities where they could perform productive work and develop genuine job and leadership skills. But I guess that sort of idea isn't as fun to kick around. Besides, while conscription is something the government would have to impose, for somebody who is positioned to actually generate the necessary money and attention, proposing a "bridge year" program might invite the response, "Great idea, what are you doing to bring it to life?"