The Asteroid Can Hit If It Means We No Longer Have To Listen To Bad Aerosmith Songs

Mark Kleiman:

When I saw that Rand Paul (R-Comedy Central) had voted against a bill outlawing the use of lasers to blind airline pilots on the grounds that “the states ought to take care of it,” I was reminded of this week’s best Onion story imagining an effort by Republicans to repeal a law providing for the destruction of an asteroid coming at the Earth.

The Onion story didn’t mention lawsuits seeking to have asteroid-destruction declared unconstitutional as a violation of the limited, delegated powers of the Federal government. But I’d be grateful if one of our libertarian-leaning readers could point me to the specific provision of the Constitution under which the Federal government could spend money on asteroid destruction. It’s not, properly speaking, defense, unless the asteroid was deliberately launched at us by the Klingons. The asteroid isn’t “in commerce” at all, so it can’t be covered by the Commerce Clause.

No doubt some socialists would assert that the reference to “the General Welfare” in the first sentence of Art. 1, Sec. 8, plus the Necessary and Proper clause at the end of that section, would cover asteroid destruction. And I might agree with them. But of course from the libertarian perspective that proves way, way too much.

So I offer this as a challenge: If you think that the doctrine of limited powers forbids much of what the federal government currently does, please explain why that same argument wouldn’t forbid spending money to shoot down an asteroid.

Footnote If your objections to “big government” are based on economics rather than constitutional law, please explain why the public-goods argument that justifies shooting down the asteroid doesn’t apply to the programs you don’t like.

Pejman Yousefzadeh:

As a libertarian-conservative, I am glad to help resolve this question. Of course, it should be noted from the outset that the framing of these kinds of questions is a common Kleimanian tactic; he tosses out an appealing public policy approach, and then dares readers to conclude that the approach may not be constitutional. I certainly agree with Kleiman that asteroid defense cannot be covered by the Commerce Clause (thank goodness that there are some limits recognized by the Left on the reach and scope of the Clause), but I don’t see why he is so quick to dismiss asteroid destruction as a defense measure merely because the asteroid was not “deliberately launched at us by the Klingons.”Original public meaning jurisprudence assists us in showing how asteroid destruction can be justified by Art. I, Sec. 8 of the Constitution as being “for the common Defence.” I am indebted to Professor Larry Solum for his excellent and comprehensive definition of original public meaning jurisprudence, which is excerpted below:

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”  and also is called “Original Meaning Originalism.”   Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role.  As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.”   The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson  with Steven Calabresi as another “early adopter.”   The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett  and Keith Whittington  have played prominent roles in the development of the “New Originalism.”  Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways.  For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason).  This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.”   With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.

Once originalists had acknowledged that vague constitutional provisions required construction, the door was opened for a reconciliation between originalism and living constitutionalism.  The key figure in that reconciliation has been Jack Balkin, whose influential 2006 and 2007 essays Abortion and Original Meaning and Original Meaning and Constitutional Redemption have argued for a reconciliation of original meaning originalism with living constitutionalism in the form of a theory that might be called “the method of text and principle.”  Balkin has called his position on the relationship between originalism and living constitutionalism “comptibilism,” but it is important to understand that this means that an originalist approach to interpretation is consistent with a living constitutionalist approach to construction.

Per Professor Solum’s definition, we have to ask how “the common Defence” would “have been understood by an ordinary adult citizen at the time it was adopted.” Specifically, we have to demonstrate that the notion of “Defence” against a threat does not depend upon that threat being initiated by a sentient being, or group of beings. This entails showing Kleiman that the non-presence of Klingons or any other sentient beings in a scenario which features an asteroid threatening life on Earth does not prevent the necessary countermeasures from being considered constitutional as acts of “Defence.”

In order to proceed along this line of inquiry, a definition of “defence” or “defense” (however one wishes to spell it) is needed. I can think of no better lexicographical authority than Samuel Johnson’s A Dictionary of the English Language. Consider especially the following bit of information: In his book Dr Johnson’s Dictionary: The Extraordinary Story of the Book that Defined the World, the writer Henry Hitchings quoted Joseph Emerson Worcester as saying that “[Johnson’s] Dictionary has also played its part in the law, especially in the United States. Legislators are much occuped with ascertaining ‘first meanings,’ with trying to secure the literal sense of their predecessors’ legislation . . . Often it is a matter of historicizing language: to understand a law, you need to understand what its terminology meant to its original architects . . . as long as the American Constitution remains intact, Johnson’s Dictionary will have a role to play in American law.”

So, Johnson’s Dictionary was/is quite useful when it comes to analyzing bodies of American law. Now, we have to ask what Johnson wrote about the definition of the word “defence.” Well, it just so happens that we can look. Feel free to examine the definitions of “defence,” “defenceless,” “to defend,” and “defendable.” One will find that none of the definitions in question make it necessary for a threat to have been launched by some form of sentient being, or group of beings, before one can be said to organize and implement some kind of “defense/defence” against that threat via preventive measures. Absent any competing definitions of similar or greater influence, one may reasonably conclude that “an ordinary adult citizen” would not have understood “defence” to mean a countermeasure against a threat set into motion by a sentient being, or group of beings–like Klingons, for example. A “defence” can therefore be mounted against a threat that appeared or emerged sua sponte, without any sentient beings or higher intelligence having brought that threat into being, and/or having directed that threat against us.

Indeed, if Kleiman wanted to get a libertarian legal analysis regarding this issue, he might have done well to ask Glenn Reynolds, whose blog is full of posts regarding the need for asteroid defense. I recognize that Kleiman loathes Reynolds, and has nothing but contempt for him, but it perhaps would not have been a bad idea for Kleiman to put his loathing aside and consider that Reynolds’s example might indicate that there are plenty of libertarians who (a) are concerned about defending the Earth against extinction-causing asteroids, and (b) might be able to justify it (as I have) constitutionally. As a general matter, it might be best for Kleiman to consult actual lawyers regarding constitutional or statutory interpretation, before trying to navigate legal thickets on his own. I mean, it’s his blog, and he can do what he wants, but it is worth noting that past Kleimanian efforts to play lawyer have ended quite poorly.

Jonathan Adler:

This post by Mark Kleiman is a good example, in that it puts forward a laughable caricature of libertarian and originalist constitutional thought that would have been discredited with but a moment’s investigation into the question (as I noted here, and Pejman Yousefzadeh discussed here).  To Prof. Kleiman’s credit, he backed off (a little) when other took the time to respond, but that a prominent, thoughtful academic would post something like this as an ostensibly thoughtful critique of right-leaning ideas says quite a bit about the state of much academic discourse.

Sasha Volokh:

I agree with Jonathan below that the Constitution (through the spending power) allows Congress to spend tax money to protect the Earth from an asteroid.

On the other hand — and at the risk of confirming Mark Kleiman in his belief that libertarians are loopy — I don’t speak for all libertarians, but I think there’s a good case to be made that taxing people to protect the Earth from an asteroid, while within Congress’s powers, is an illegitimate function of government from a moral perspective. I think it’s O.K. to violate people’s rights (e.g. through taxation) if the result is that you protect people’s rights to some greater extent (e.g. through police, courts, the military). But it’s not obvious to me that the Earth being hit by an asteroid (or, say, someone being hit by lightning or a falling tree) violates anyone’s rights; if that’s so, then I’m not sure I can justify preventing it through taxation.

Bryan Caplan once suggested the asteroid hypo to me as a reductio ad absurdum against my view. But a reductio ad absurdum doesn’t work against someone who’s willing to be absurd, and I may be willing to bite the bullet on this one.

On the other hand, if you could show that, once the impending asteroid impact became known, all hell would break loose and lots of rights be violated by looters et al. during the ensuing anarchy, I could justify the taxation as a way of preventing those rights violations; but this wouldn’t apply if, say, the asteroid impact were unknown to the public.

This does make me uncomfortable, much like my view that patents are highly useful but morally unjustifiable, so I’m open to persuasion

Matthew Yglesias:

I think this is a mistake about how a reductio works. The mere fact that Volokh is willing to bite this bullet has no real bearing on the fact that the conclusion is clearly false, and so the argument is either logically invalid or else proceeds from false premises. I’d say “false premises.” The best liberal thinking—classical, modern, whatever—proceeds from broadly consequentialist ideas about making human beings better off.

Brad DeLong:

So not only does Sasha Volokh claim that it is immoral to tax people to blow up an asteroid (or install lightning rods, or mandate lightning rods, or pay for a tree-trimming crew on the public roads), but it is immoral to tell people of an approaching asteroid so they can scramble to safety because it will cause violations of rights through looting.

Wow.

Ilya Somin:

That said, I don’t think that Sasha’s view is necessarily ridiculous or “insane.” Any theory based on absolute respect for certain rights necessarily carries the risk that it will lead to catastrophe in some instances. Let’s say you believe that torture is always wrong. Then you would not resort to it even in a case where relatively mild torture of a terrorist is the only way to prevent a nuclear attack that kills millions. What if you think that it’s always wrong to knowingly kill innocent civilians? Then you would oppose strategic bombing even if it were the only way to defeat Nazi Germany in World War II. How about absolute rights to freedom of political speech? If you are committed to them, that means you oppose censorship even if it’s the only way to prevent Nazi or communist totalitarians from coming to power and slaughtering millions.

Many such scenarios are improbable. But over the long sweep of human history, improbable events can and do happen. Had Kerensky suppressed the Bolsheviks in 1917 (as he easily could have that summer) or had the Weimar Republic done the same with the Nazis, the world would be a vastly better place, even though most political censorship (even of evil ideologies) causes far more harm than good. A civilization-destroying asteroid attack during the next few hundred years is also a low-probability event.

Thus, the potential flaw in Sasha’s view is one that it shares with all absolutist rights theories. Scenarios like the above are one of the main reasons why I’m not a rights-absolutist myself. But I don’t believe that all the great moral theorists who endorse such views from Kant to the present are either ridiculous or “insane.”

It’s also worth noting that Sasha’s approach would in fact justify asteroid defense in virtually any plausible real world scenario. As he puts it, “if you could show that, once the impending asteroid impact became known, all hell would break loose and lots of rights be violated by looters et al. during the ensuing anarchy, I could justify the taxation as a way of preventing those rights violations; but this wouldn’t apply if, say, the asteroid impact were unknown to the public.” It’s highly unlikely that news of an impending asteroid impact whose onset was known to the government could be prevented from leaking to the general public. Even if it could, “all hell” would surely break loose after the asteroid impact, resulting in numerous violations of libertarian rights by looters, bandits, people stealing food out of desperation, and so on. Either way, Sasha’s analysis ends up justifying asteroid defense.

If I understand Sasha correctly, he’s only partially a rights absolutist. He doesn’t believe that you can ever sacrifice rights for utilitarian benefits, even truly enormous ones. But he does think that you can justify small rights violations as a way of forestalling bigger ones. Sasha is an absolutist when it comes to trading off libertarian rights for other considerations, but a maximizer when it comes to trading off rights for greater protection of those same rights in the future. Effective defense against a massive asteroid impact easily passes Sasha’s rights-maximizing test.

Obviously, I welcome correction from Sasha if I have misinterpreted his views.

Mark Kleiman:

I’m glad that Adler agrees with me – and disagrees with many Tea Party lunatics, including some recently elected to the Senate and the House – that there’s no actual Constitutional question about funding the Department of Education or National Public Radio. That, of course, was my point.

I’m also glad that Sasha is standing by his guns, thus demonstrating that my argument was not directed at a mere straw man, though his objection to spending is philosophical rather than Constitutional.

Sasha worries that his honest and forthright response might confirm me in my belief that “libertarians are loopy.” That’s certainly a reasonable concern. But I would have thought that a bigger concern would be that the conclusion is, in fact, obviously loopy, and – like any good reductio ad absurdum argument, ought to lead to a re-examination of the premises that would lead to such a loopy conclusion.

Ilya Somin is right to point out that any theory that puts an absolute constraint on action runs into problems when inaction has catastrophic consequences. But if he really can’t see the difference between torture and income taxation – can’t understand why absolute opposition to torture is not analogous to absolute opposition to public spending on public goods – then “loopy” is entirely too weak a word.

Eugene Volokh:

I leave it to others to debate the constitutional and moral merits of government spending on asteroid defense (my view is that such spending is both constitutionally permissible and morally proper, but I have nothing original to add on the subject). I just wanted to add that one side of the debate is an unusually near-literal application of the saying, “Let justice be done, though the heavens fall.”

Noah Millman at The American Scene:

An impending catastrophe – asteroid strike – threatens to kill everyone in the society. That doesn’t violate anyone’s “rights” because you don’t have a “right to life” but rather a right not to have your life taken away by somebody else against your will. Therefore, the government has no right to tax you to protect you – and everybody else – from the asteroid.

So how is the asteroid to be stopped?

Presumably, everyone in society would agree voluntarily to cooperate to stop the asteroid. That is to say: we could still have collective action, but it would have to be voluntary, not coerced.

But would everyone participate?

The government goes around, passing the hat for contributions to stop the asteroid. A certain percentage of people, though, don’t believe in asteroids. Another percentage believe that the asteroid will bring the Rapture and so must not be stopped. These people are crazy, though, and crazy people are not interesting to talk about. Let’s hope there aren’t too many and ignore them.

Some people, though, notice that there are wealthier people than them in the society, and figure those other people should shoulder the burden of saving society. These are the “free-riders.”

Now, so long as this group is relatively small, no problem. Enough people will still put up enough money to stop the collective catastrophe. But so long as that is the case, free-riding is the economically rational thing to do. Indeed, in any large enough society, free-riding is always the rational thing to do: in a society with enough people putting up enough money voluntarily to stop the asteroid, free-riding is costless; in a society without enough such people, contributing is pointless.

The salvation of this ultra-libertarian society, then, depends upon the existence of a sufficient number of irrationally self-sacrificing people, people who ignore their rational self-interest in order to procure a social good for the group, without regard for the amount of “free riding” going on around them.

On the assumption – which I don’t think is pushing it at all – that there are a whole lot of communal problems that require collective action to address, libertarianism is only practical in highly communitarian societies.

I don’t know that that’s a knock-down argument against libertarianism. Wikipedia is a highly communitarian activity that grew up in a highly libertarian environment (the Internet), and most of the world is free-riding.

But it’s worth stressing nonetheless, because libertarians tend to talk as if rationality will lead to the necessary level of cooperation. But it won’t. In any case of communal threat where attempted free-riders cannot independently exposed to the threat, while contributors are protected, the rational thing to do is free-ride.

Try And Find Your Way Around Our Afghanistan Maze!

Dexter Filkins and Mark Mazzetti at NYT:

The aide to President Hamid Karzai of Afghanistan at the center of a politically sensitive corruption investigation is being paid by the Central Intelligence Agency, according to Afghan and American officials.

Mohammed Zia Salehi, the chief of administration for the National Security Council, appears to have been on the payroll for many years, according to officials in Kabul and Washington. It is unclear exactly what Mr. Salehi does in exchange for his money, whether providing information to the spy agency, advancing American views inside the presidential palace, or both.

Mr. Salehi’s relationship with the C.I.A. underscores deep contradictions at the heart of the Obama administration’s policy in Afghanistan, with American officials simultaneously demanding that Mr. Karzai root out the corruption that pervades his government while sometimes subsidizing the very people suspected of perpetrating it.

Josh Duboff at New York Magazine:

Salehi was arrested in July after investigators wiretapped him soliciting a bribe in exchange for “impeding an American-backed investigation into a company suspected of shipping billions of dollars out of the country for Afghan officials, drug smugglers and insurgents.” He was promptly released after Karzai stepped in, however, which officials said may have been due to the fear he knew about “corrupt dealings” within Karzai’s administration. Both the CIA and Karazi declined to comment in response to inquires from the Times.

Tom Diemer at Politics Daily:

A CIA spokesman declined comment on Salehi but told the Times that “reckless allegations from anonymous sources” don’t change the fact that the agency “works hard to advance the full range of U.S. policy objectives in Afghanistan.” Another U.S. official said, “If we decide as a country that we’ll never deal with anyone in Afghanistan who might down the road — and certainly not at our behest — put his hand in the till, we can all come home right now. If you want intelligence in a war zone, you’re not going to get it from Mother Teresa or Mary Poppins.”

But others in the administration think the U.S. must maintain pressure in the battle against corruption in Kabul or risk seeing ordinary Afghans turn to the Taliban when they lose faith in the government.

Max Boot at Commentary:

Everyone knows that corruption is a huge, crippling, corrosive problem in Afghanistan and that reducing it won’t be easy. But aside from the obvious obstacles we face — namely an entrenched political class in Afghanistan that has gotten rich from foreign lucre — there is a not-so-obvious obstacle as well: the interest that many in the U.S. government have in lubricating relationships with lots of greenbacks. In this connection the New York Times’s Dexter Filkins and Mark Mazzetti have a great scoop today about how the CIA has been paying off Mohammed Zia Salehi, the aide to President Karzai who has been charged with corruption. As the Times account notes, “Other prominent Afghans who American officials have said were on the C.I.A.’s payroll include the president’s half brother, Ahmed Wali Karzai, suspected by investigators of playing a role in Afghanistan’s booming opium trade.”

The list is actually considerably longer, and from the CIA’s narrow standpoint, the investments are well justified. The Times quotes an anonymous “American official” as follows: “If we decide as a country that we’ll never deal with anyone in Afghanistan who might down the road — and certainly not at our behest — put his hand in the till, we can all come home right now. If you want intelligence in a war zone, you’re not going to get it from Mother Teresa or Mary Poppins.” True, and the CIA has been paying off rogues for information ever since its inception. Such activity is to be expected from any competent intelligence service, but in Afghanistan, this has had parlous consequences.

The funding that the CIA has provided — along with largesse from the U.S. military, USAID, the State Department, and other agencies — has turbo-charged the problem of corruption. It has led to the emergence of a class of malign actors, fabulously wealthy Afghans who have connections not only to the U.S. government but also to the Taliban and the drug cartels. They are widely seen as the real center of power in Afghanistan, and it is this perception, more than anything else, that fuels support for the insurgency. The problem begins at the top with Hamid Karzai who, shamefully, intervened to get Salehi sprung from jail shortly after his arrest.

Some in the U.S. government believe that there is nothing to be done about such corruption and that fighting it is counterproductive because it will damage our “relationships” with key Afghans. As one “Obama administration official” tells Filkins and Mazzetti:  “Fighting corruption is the very definition of mission creep.” Wrong. Fighting corruption is the only way to achieve our mission.

Mark Kleiman:

Once you start intervening in the politics of corrupt countries, you can’t live without the crooks, and you can’t live with them. I never thought I’d say it, but Michael Moore was completely right about Karzai. The problem with this sort of foreign-policy “realism”is how unrealistic it is in imagining that the victims of the crappy little tyrannies we support won’t come to hate our guts.

“This Bud’s For You”

Mark Kleiman at Ta-Nehisi’s place:

Two items on my list of drug-policy reforms drew the most flak in comments:  the abolition of the minimum legal  drinking age and the non-commercial legalization of cannabis.

Note that the drinking-age idea was paired with a tenfold increase in alcohol taxes to about a dollar a drink, roughly doubling the retail price of alcohol. That, plus a zero-tolerance policy on drinking and driving for teenagers, would get you most of the benefits of the current 21-year-old MLDA (and lots of benefits the MLDA can’t provide) without making tens of millions of teenagers into scofflaws.  It’s a good general principle that a law that’s widely broken is a bad law, and 90% of American 18-year-olds have sampled alcohol, despite the laws against it.

On the cannabis front, my plea is for a “grow-your-own” policy: consumers would be allowed to cultivate pot for their own use, to give it away, or to join small consumer-owned co-ops to produce the stuff for them. No commercial sales.

“Why not?” demanded several outraged commenters. Why allow use but not sale?

Two words provide the gist of the answer:  marketing and lobbying. A legal cannabis industry, like the legal beer industry, the legal tobacco industry, the legal fast-food and junk-food industries, and the legal gambling industry, would do everything in its power to expand its sales, including taking political action to weaken whatever regulations and minimize whatever taxes were imposed.

Reihan Salam:

In Kleiman’s view, commercial sales would create a powerful marketing and lobbying machine that would encourage cannabis consumption. On paternalistic grounds, Kleiman is concerned about the public health consequences of a dramatic expansion of cannabis consumption. Given that decriminalization would already lower the effective price of cannabis, this strikes me as a legitimate concern:

To the consumer, developing a bad habit is bad news. To the marketing executive, it’s the whole point of the exercise. For any potentially addictive commodity or activity, the minority that gets stuck with a bad habit consumes the majority of the product. So the entire marketing effort is devoted to cultivating and maintaining the people whose use is a problem to them and a gold mine to the industry.Take alcohol, for example. Divide the population into deciles by annual drinking volume. The top decile starts at four drinks a day, averaged year-round. That group consumes half of all the alcohol sold. The next decile does from two to four drinks a day. Those folks sop up the next thirty percent. Casual drinkers – people who have two drinks a day or less – take up only 20% of the total volume. The booze companies cannot afford to have their customers “drink in moderation.”

Because distillers are dependent on “problem drinkers,” they deploy an effective, well-funded lobby to stymie efforts to reduce alcohol consumption and indeed to permit the emergence of potential substitutes or complements to traditional wines and spirits, hence the ban on breathable alcohol. Though cannabis consumption is less dangerous than binge drinking, the impact of full-blown legalization is unpredictable:

The rate of problem use among cannabis users is lower than the rate of problem drinking among drinkers (lifetime risk of about 10% v. lifetime risk of at least 15%) but that’s under conditions of illegality and high price. The risks of chronic heavy cannabis use aren’t as dramatic as the risks of chronic heavy drinking – the stuff doesn’t kill neurons or rot your liver, and generates less crazy behavior than beer – but that doesn’t make those risks negligible. Ask any parent whose fifteen-year-old has decided that cannabis is more fun than geometry. Of the 10% of cannabis smokers who become heavy daily smokers for a while, the median duration of the first spell of heavy use (not counting the risks of relapse) is 44 months. That’s not a small chunk to take out a lifetime, especially a young lifetime.

Kleiman is a frank paternalist, and his arguments are potentially discomfiting for those of us of a libertarian bent. But as a prudential first step, I think he’s right to prefer non-commercial legalization.

E.D. Kain:

Kleiman is wrong on many fronts, but mainly he’s wrong because most people who want to smoke pot don’t want to grow it. They want to buy it. And all these people spending money to grow their own aren’t going to give it away to everyone for free, which leaves us with a demand to fill but not nearly the level of supply needed to fill it. The only thing standing between that demand and the supply shortage would be the government. Which, naturally, leads to black markets, drug dealers, confiscation of property by police departments, drug raids, shooting deaths and so forth. Not too far a cry from where we’re at now.

So we have a choice: create a legal market or a new black market.

One of these two markets will exist no matter what we do, because people are going to smoke pot one way or another. The laws we have now don’t prevent this. Allowing home growing but not commercial sales won’t either. Nothing will. This is one vice that isn’t going anywhere and doesn’t really need “America’s marketing geniuses” in order to peddle.

Kleiman thinks all the companies selling marijuana will be like the Big Tobacco companies, with a fierce lobbying arm and a huge monopoly over the market, preying mercilessly on helpless consumers. But that’s not going to happen if we just legalize marijuana and don’t set up regulations which grant these big companies de facto monopolies to begin with. Small growers, like small brewers, will do just fine. And no, we won’t have a bunch of crazed cannabis users at the mercy of Marijuana Inc. Some people will smoke too much pot, but plenty of people already do and many of them quit before their lives are ruined.

A better idea would be to simply not regulate out home growers from the market – which is a legitimate concern. Setting up laws which prevent home growing will crowd out home growers and make big corporations much more powerful. Simply opening up the market to both will create a much more level playing field. I think it will actually be extremely difficult for big corporations to compete with local growers – economies of scale be damned, pot smokers enjoy the quality of their product too much – but at least that competition will exist.

Kleiman in the comments to Kain’s post:

It’s really tiresome to be criticized for view you don’t hold. Here’s what I wrote (emphasis added for the hard-of-reading):

On the cannabis front, my plea is for a “grow-your-own” policy: consumers would be allowed to cultivate pot for their own use, to give it away, or to join small consumer-owned co-ops to produce the stuff for them. No commercial sales.

So no, I don’t propose making everyone who wants to smoke pot grow his own garden; you could always join a co-op, or get yours from a friend who either belongs to one or grows the stuff. Given the high costs of running an illegal business, the black market just couldn’t compete with the legal co-ops.

Now, if someone wants to criticize that proposal, go ahead. But all the “anti-prohibitionists” seem to prefer pounding on a straw man.

Kain responds:

There are several things wrong with this.

First, it creates at best a gray market. You can grow it, smoke it, and join a co-op to help produce it, but you can’t sell it to whoever you want or buy it from whoever you want. This is very fuzzy. Can you think of any other product like this? I can’t, and I don’t think Americans would take to the idea very well (what, I can’t buy bread at the store, I have to make it myself? What the hell is a co-op?) or that our regulatory apparatus would be up to enforcing it (not to mention the potential for regulatory capture at the local and state level). Furthermore, this strikes me as little more than Kleiman’s own preferred version of Capitalism Lite – a sort of throwback to distributism – Chestertonian in its romanticism, but not terribly practical.

Second, no matter how you spin this, consumers of marijuana under Kleiman’s rules would also have to be producers of marijuana – if not directly, then indirectly through a co-operative. Rather than casually purchasing pot whenever they wanted, they would have to make a commitment to either A) grow the stuff, or B) become involved with a group of people growing the stuff. If anything, this works against Kleiman’s paternalist instincts. Where Kleiman seeks to protect the consumer from the big marijuana corporations, he ends up making consumers more financially vested in the product, and thus more bound to its success, use, and so forth. Probably not the best idea when you’re attempting to keep use of the product to a minimum. This would be like forcing drinkers to have a financial stake in whatever alcohol they were consuming. And a lot of people just don’t want that. They want the freedom to choose to simply buy the stuff at a store or, if there’s no co-op nearby and nobody growing, then from a dealer.

Which brings us to point number three. I don’t think co-ops would actually spell the end of the illicit marijuana trade unless the co-ops were allowed to scale up to the point where basically they were operating as commercial businesses. So either you lose the idyllic co-operative-only market or you sustain the demand for the black market.

And last, there is simply nothing in this argument that makes it necessary. The problem with pot is that it’s illegal, not anything inherent with the drug – at least no more so than alcohol (and probably a lot less). If pot becomes legal I hope we don’t regulate out home growers or local co-operatives. That would be a disaster and a travesty. Imagine doing to the wine industry what was done to the beer industry for so long. Imagine the Budweiser of bud – and that all legal marijuana was so lifeless. But preventing commercial sale of anything that has a high consumer demand is just asking for trouble, even if you provide avenues for that demand to be met. Those avenues are simply unnecessary when an open market could exist instead. If we really want to curtail marijuana usage, legalize it and then tax the hell out of it. At least people will be able to buy it and consume it safely.

Adam Serwer at The American Prospect:

I think Kain is missing at least part of Kleiman’s point. The whole idea behind decriminalizing marijuana possession is to eliminate the “black market cycle of violence”; since people wouldn’t necessarily be dependent on dealers, dealers would have a hard time plying a lucrative trade, and paramilitary SWAT teams wouldn’t be shooting dogs and old ladies trying to get at the hidden cannabis stash of a 72 year-old with cataracts.

Second, while I’m not quite sure where I stand on the choice between legalization and criminalization, I do think that marijuana abuse is a relatively minor problem. I’d like to preserve that status quo while eliminating the draconian penalties and absurd amount of law-enforcement resources devoted to preventing people from toking. But I think Kain is being a bit to dismissive in arguing that there would be no adverse consequences from the mass marketing of marijuana. It seems entirely possible to me that commercializing the drug could create a problem where none really exists — businesses have to make a profit; someone growing their own doesn’t. A world where a smaller, less profitable illicit market that continues to exist looks a lot like our own without the outsize penalties and adverse consequences of over-enforcement. I’m not sure what a world with a fully commercialized marijuana industry that profits from turning people into potheads looks like, but it makes me nervous.

Ezra Klein

Patrick Appel at Sully’s place:

Kleiman has been beating this drum for a long time. I don’t have a problem with “grow your own” in theory but worry that prohibiting commercial cannabis will sustain the black-market. What are the other unintended consequences?

All The President’s Libraries

Adam Nagourney at NYT:

The sign at the entrance to the largest exhibition room devoted to a single subject at the Nixon Presidential Library and Museum reads “Watergate.” But on Friday, the exhibit was nearly empty, dominated by a 30-foot blank slate of a wall that is testimony to a new battle set off by this still-polarizing former president: how to mark the scandal that forced him from office 36 years ago.

Officials at the National Archives have curated a searing recollection of the Watergate scandal, based on videotaped interviews with 150 associates of Richard M. Nixon, an interactive exhibition that was supposed to have opened on July 1. But the Nixon Foundation — a group of Nixon loyalists who controlled this museum until the National Archives took it over three years ago — described it as unfair and distorted, and requested that the archives not approve the exhibition until its objections are addressed.

The foundation went so far as to invoke Presidents John F. Kennedy and Lyndon B. Johnson, noting that those presidents surreptitiously taped White House conversations before Nixon stepped on the scene.

Bob Bostock, a former Nixon aide who designed the original Watergate exhibit and has been enlisted by the foundation to challenge the installation, filed a 132-page letter of objection to the archives last week, claiming that the exhibit lacked the context needed to help young visitors learning about Watergate to understand exactly what Nixon did.

“Taping and wiretapping go back as far as F.D.R.,” Mr. Bostock said. “It lacks the context it needs: that Nixon was not the first president to do some of these things and that some of these things had been going on with many of his predecessors, in some cases, much more than he did.”

The Nixon Foundation does not have veto power and by law serves in an advisory role. The final ruling will be made by officials of the National Archives within the next few weeks.

Jeff Neumann at Gawker:

Uh, sure! It’s pretty hard to argue with someone like that. The Times also interviewed the director of the museum, Timothy Naftali, who offered this:

Think about it,” he said. “I am not a Nixon loyalist. I am not even a Republican. I am gay. I am from Canada. I was 12 years old when Richard Nixon resigned. I have no skin in the game.”

Mr. Naftali spoke in his basement office, where – with no apparent appreciation of the irony – he flinched when a reporter took out a tape recorder for an interview, saying that he would not agree to taping of an interview in his office in the Nixon museum.

For years the National Archives has been trying to add the Nixon Library to the presidential library system. But the Nixon Foundation, apparently unwilling to accept facts, has held the process up with protests like this latest one involving the Watergate exhibit. Bostock adds:

Definitely the president did things that were wrong. He said so himself. The real question always comes to, ‘Did the actions that he took that were wrong, did they merit impeachment and removal from my office?’ My view is that they did not reach the level of offenses for which he could be impeached and convicted.”

Yeah, seriously. Watergate wasn’t that big of a deal. But getting blow jobs and ruining perfectly good cigars in the Oval Office, well…

Also, looking for a picturesque, meaningful setting for your wedding? Try the Nixon Library in Yorba Linda, California! They can offer you and your guests “an unparalleled experience.”

Matthew Yglesias:

I was invited to do a book talk at the Nixon Presidential Library a couple of years ago, and while out there I naturally saw the museum itself. It was at the time a fascinating project in a state of transition from being run by an organization of Nixon loyalists to one being run by real historians from the National Archives. Adam Nagourney has a really interesting piece in the NYT about the latest battles playing out as the new management unveils their version of the exhibit on Watergate.

Jonathan Bernstein:

In case you’re wondering whether Richard Nixon was a crook, imagine the following:

Suppose that Barack Obama was convinced that Marc Thiessen, John Bolton, and Paul Wolfowitz had removed important secret files from their various government offices when they left the Bush administration, files that revealed embarrassing, and perhaps illegal, actions by the administration.  Suppose further that Obama believed that Wolfowitz et al. had secured those files at AEI.

With me so far?  Now suppose that Obama repeatedly ordered Rahm Emanuel and other top White House officials to break into AEI in order to get those files back, either in order to leak them to embarrass the Republicans or, perhaps, to blackmail George W. Bush.  That is, suppose that Emanuel suggested to the president that perhaps they could blackmail Bush, and Obama responded by continuing to order the break-in.

That’s one of the things that happened in Watergate (substituting Nixon for Obama, Haldeman for Emanuel, and Brookings for AEI).  The orders, that is; as it turned out, the president’s men never quite did get around to breaking into Brookings, although they did hire and assign people to do it, and scheme and plot about it quite a bit.  The president’s men, sometimes at Nixon’s instructions, sometimes with his knowledge, and sometimes perhaps without his direct instructions or knowledge but always in keeping with his general orders to his stop staff, also planted spies in the camp of Democratic campaigns; broke into Democratic headquarters, photographed documents, and planted bugs; broke into the the office of a Daniel Ellsberg’s psychiatrist in order to learn things that could be used to destroy his image in the press; attempted to plant left-wing materials in the home of the guy who shot George Wallace; planned to (and perhaps did) selectively leak classified materials about foreign policy in order to hurt the Democrats; forged materials about foreign policy (the death of South Vietnam’s President Diem) in order to plant false stories in the press that would hurt the Democrats; wiretapped government officials; paid a private investigator to tail Ted Kennedy; performed other dirty tricks such as forged letters intended to manipulate the Democratic presidential nomination process (efforts that may indeed have been successful); and other illegal, abuse and unethical actions — this is not a comprehensive list.

Those were the original crimes.  What followed was obstruction of justice as the White House, with the active leadership of the president, lied to FBI investigators and grand juries, destroyed evidence, suborned perjury by prearranging false testimony; suborned perjury by paying off witnesses and either promising or at least hinting at the promise of presidential pardons in exchange for false testimony, and using the authority of the presidency to derail and undermine FBI investigators and prosecutors.  Again, the president was personally actively involved in all of those things.

(And that’s not counting other important abuses of power such as waging war without the authorization of Congress and illegally disrupting the legal disbursement of government funds, and also not counting the president’s purely personal possible crimes involving his taxes).

Oh, and for what it’s worth…Nagourney writes that Nixon resigned “in the face of likely impeachment.”  That’s too weak.  It was certain impeachment, and virtually certain conviction.  The House Judiciary Committee had voted in favor of impeachment while Nixon was still fighting against turning over several (additional) tapes of White House conversations; when those tapes were released, each of the Republicans on the Committee declared that he would now flip and support impeachment on the House floor.  As far as the trial, Nixon’s congressional liaison estimated that only seven Senators still supported the president.  I can’t imagine any combination of circumstances that would have prevented impeachment, and while there’s always uncertainty in human affairs, it’s very difficult to imagine how Nixon could have escaped conviction.  It’s worth mentioning too that all of that was the case even though plenty of incriminating evidence was still unknown to Congress at the time.

Richard Nixon announced his resignation on August 8, 1974, so it’s been 36 years.  The paper of record should do a better job of getting these things right.

Mark Kleiman:

If you’re a scientist offended by the right-wing war on science, please don’t take it personally. The wingnuts hate history, too.

Every form of reasoned discourse has the same liberal bias. The whole notion that there is a world of facts subject to investigation, rather than merely competing assertions, is deeply offensive to the unreality-based community.

Are there illiberal, anti-rational forces on the left? Of course there are. But they’re aberrational. Even the mainstream right now seems to have adopted Nineteen Eighty-Four as an operations manual, rather than a warning.

Anne Laurie:

The anti-Fidelistas in Little Havana, the Japanese soldiers who hid out in the New Guinea brush for forty years after their emperor surrendered, are mere hobbyists compared to the ferocious defenders of all things GOP. Although one can’t blame the surviving CREEPsters—monsters such as Henry Kissinger, Dick Cheney, Donald Rumsfeld, and Paul Wolfowitz—for strenuously resisting any exposure of the true “Nixon legacy”. A hundred years from now, I believe the decision to allow Nixon to escape a full accounting will be considered possibly the greatest political tragedy of its era.

“Don’t Trust One-Offs”

Jim Manzi in City Journal:

[…]

Another way of putting the problem is that we have no reliable way to measure counterfactuals—that is, to know what would have happened had we not executed some policy—because so many other factors influence the outcome. This seemingly narrow problem is central to our continuing inability to transform social sciences into actual sciences. Unlike physics or biology, the social sciences have not demonstrated the capacity to produce a substantial body of useful, nonobvious, and reliable predictive rules about what they study—that is, human social behavior, including the impact of proposed government programs.

The missing ingredient is controlled experimentation, which is what allows science positively to settle certain kinds of debates. How do we know that our physical theories concerning the wing are true? In the end, not because of equations on blackboards or compelling speeches by famous physicists but because airplanes stay up. Social scientists may make claims as fascinating and counterintuitive as the proposition that a heavy piece of machinery can fly, but these claims are frequently untested by experiment, which means that debates like the one in 2009 will never be settled. For decades to come, we will continue to be lectured by what are, in effect, Keynesian and non-Keynesian economists.

Over many decades, social science has groped toward the goal of applying the experimental method to evaluate its theories for social improvement. Recent developments have made this much more practical, and the experimental revolution is finally reaching social science. The most fundamental lesson that emerges from such experimentation to date is that our scientific ignorance of the human condition remains profound. Despite confidently asserted empirical analysis, persuasive rhetoric, and claims to expertise, very few social-program interventions can be shown in controlled experiments to create real improvement in outcomes of interest.

[…]

After reviewing experiments not just in criminology but also in welfare-program design, education, and other fields, I propose that three lessons emerge consistently from them.

First, few programs can be shown to work in properly randomized and replicated trials. Despite complex and impressive-sounding empirical arguments by advocates and analysts, we should be very skeptical of claims for the effectiveness of new, counterintuitive programs and policies, and we should be reluctant to trump the trial-and-error process of social evolution in matters of economics or social policy.

Second, within this universe of programs that are far more likely to fail than succeed, programs that try to change people are even more likely to fail than those that try to change incentives. A litany of program ideas designed to push welfare recipients into the workforce failed when tested in those randomized experiments of the welfare-reform era; only adding mandatory work requirements succeeded in moving people from welfare to work in a humane fashion. And mandatory work-requirement programs that emphasize just getting a job are far more effective than those that emphasize skills-building. Similarly, the list of failed attempts to change people to make them less likely to commit crimes is almost endless—prisoner counseling, transitional aid to prisoners, intensive probation, juvenile boot camps—but the only program concept that tentatively demonstrated reductions in crime rates in replicated RFTs was nuisance abatement, which changes the environment in which criminals operate. (This isn’t to say that direct behavior-improvement programs can never work; one well-known program that sends nurses to visit new or expectant mothers seems to have succeeded in improving various social outcomes in replicated independent RFTs.)

And third, there is no magic. Those rare programs that do work usually lead to improvements that are quite modest, compared with the size of the problems they are meant to address or the dreams of advocates.

Razib Khan at Discover Magazine:

A friend once observed that you can’t have engineering without science, making the whole concept of “social engineering” somewhat farcical. Jim Manzi has an article in City Journal which reviews the checkered history of scientific methods as applied to humanity, What Social Science Does—and Doesn’t—Know: Our scientific ignorance of the human condition remains profound.

The criticisms of a scientific program as applied to humanity are deep, and two pronged. As Manzi notes the “causal density” of human phenomena make teasing causation from correlation very difficult. Additionally, the large scale and humanistic nature of social phenomena make them ethically and practically impossible to apply methods of scientific experimentation. This is why social scientists look for “natural experiments,” or involve extrapolation from “WEIRD” subject pools. But as Manzi notes many of the correlations themselves are highly context sensitive and not amenable to replication.

Arnold Kling:

If David Brooks is going to give out his annual awards for most important essays, I would nominate this one.

One of the lessons that is implicit in the essay (and that I think that Manzi ought to make explicit) is, “Don’t trust one-offs.” That is, do not draw strong conclusions based on a single experiment, no matter how well constructed. Instead, wait until many experiments have been conducted, in a variety of settings and using a variety of techniques. An example of a one-off that generated a lot of recent excitement is the $320,000 kindergarten teacher study.

Mark Kleiman:

I’m sorry, but this is incoherent. What is this magical “trial-and-error process” that does what scientific inquiry can’t do? On what basis are we to determine whether a given trial led to successful or unsuccessful results? Uncontrolled before-and-after analysis, with its vulnerability to regression toward the mean? And where is the mystical “social evolution” that somehow leads fit policies to survive while killing off the unfit?

Without any social-scientific basis at all (unless you count Gary Becker’s speculations) we managed to expand incarceration by 500 percent between 1975 and the present. Is that fact – the resultant of a complicated interplay of political, bureaucratic, and professional forces – to be accepted as evidence that mass incarceration is a good policy, and the “counter-intuitive” finding that, past a given point, expanding incarceration tends, on balance, to increase crime be ignored because it’s merely social science? Should the widespread belief, implemented in policy, that only formal treatment cures substance abuse cause us to ignore the evidence to the contrary provided by both naturalistic studies and the finding of the HOPE randomized controlled trial that consistent sanctions can reliably extinguish drug-using behavior even among chronic criminally-active substance abusers?

For some reason he doesn’t specify, Manzi regards negative trial results as dispositive evidence that social innovators are silly people who don’t understand “causal density.” So he accepts – as well he should – the “counter-intuitive” result that juvenile boot camps were a bad idea. But why are those negative results so much more impressive than the finding that raising offenders’ reading scores tends to reduce their future criminality?

Surely Manzi is right to call for metholological humility and catholicism; social knowledge does not begin and end with regressions and controlled trials. But the notion that prejudices embedded in policies reflect some sort of evolutionary result, and therefore deserve our respect when they conflict with the results of careful study, really can’t be taken seriously.

Manzi responds at The American Scene:

This leads Kleiman to ask:

What is this magical “trial-and-error process” that does what scientific inquiry can’t do? On what basis are we to determine whether a given trial led to successful or unsuccessful results? Uncontrolled before-and-after analysis, with its vulnerability to regression toward the mean? And where is the mystical “social evolution” that somehow leads fit policies to survive while killing off the unfit?

I devoted a lot of time to this related group of questions in the forthcoming book. The shortest answer is that social evolution does not allow us to draw rational conclusions with scientific provenance about the effectiveness of various interventions, for methodological reasons including those that Kleiman cites. Social evolution merely renders (metaphorical) judgments about packages of policy decisions as embedded in actual institutions. This process is glacial, statistical and crude, and we live in the midst of an evolutionary stream that we don’t comprehend. But recognition of ignorance is superior to the unfounded assertion of scientific knowledge.

Kleiman then goes on to ask this:

Without any social-scientific basis at all (unless you count Gary Becker’s speculations) we managed to expand incarceration by 500 percent between 1975 and the present. Is that fact – the resultant of a complicated interplay of political, bureaucratic, and professional forces – to be accepted as evidence that mass incarceration is a good policy, and the “counter-intuitive” finding that, past a given point, expanding incarceration tends, on balance, to increase crime be ignored because it’s merely social science?

My answer is yes, it should be counted as evidence, but that it is not close to dispositive. We can not glibly conclude that we now live in the best of all possible worlds. I devoted several chapters to trying to lay out some principles for evaluating when, why and how we should consider, initiate and retrospectively evaluate reforms to our social institutions.

Kleiman’s last question is:

Should the widespread belief, implemented in policy, that only formal treatment cures substance abuse cause us to ignore the evidence to the contrary provided by both naturalistic studies and the finding of the HOPE RCT that consistent sanctions can reliably extinguish drug-using behavior even among chronic criminally-active substance abusers?

My answer to this is no, and a large fraction of the article (and the book) is devoted to making the case that exactly such randomized trials really are the gold standard for the kind of knowledge that is required to make reliable, non-obvious predictions that rationally outweigh settled practice and even common sense. The major caveat to the evaluation of this specific program (about which Kleiman is deeply expert) is whether or not the experiment has been replicated, as I also make the argument that replication is essential to drawing valid conclusions from such experiments – the principle that Arnold Kling called in a review of the article, “Don’t trust one-offs.”

Steven Pearlstein at WaPo

Steve Sailer:

That all sounds plausible, but I’ve been a social science stats geek since 1972, when the high school debate topic that year was education, so I’m aware that Manzi’s implications are misleading.

First, while experiments are great, correlation studies of naturally occurring data can be extremely useful. Second, a huge number of experiments have been done in the social sciences.

Third, the social sciences have come up with a vast amount of knowledge that is useful, reliable, and nonobvious, at least to our elites.

For example, a few years, Mayor Bloomberg and NYC schools supremo Joel Klein decided to fix the ramshackle admissions process to the gifted schools by imposing a standardized test on all applicants. Blogger Half Sigma immediately predicted that the percentage of Asians and whites admitted would rise at the expense of blacks and Hispanics, which would cause a sizable unexpected political problem for Bloomberg and Klein. All that has come to pass.

This inevitable outcome should have been obvious to Bloomberg and Klein from a century of social science data accumulation, but it clearly was not obvious to them.

No, the biggest problem with social science research is not methodological; it’s that we just don’t like the findings. The elites of America don’t like what the social sciences have uncovered about, say, crime, education, discrimination, immigration, and so forth.

Andrew Sullivan:

But there is a concept in this crucial conservative distinction between theoretical and practical wisdom that has been missing so far: individual judgment. A social change can never be proven in advance to be the right answer to a pressing problem. We can try to understand previous examples; we can examine large randomized trials; but in the end, we have to make a judgment about the timeliness and effectiveness of certain changes. It is the ability to sense when such a moment is ripe that we used to call statesmanship. It is that quality that no wonkery can ever replace.

It is why we elect people and not algorithms.

Will Wilkinson:

In my thinking about the contrasts between Rawlsian and Hayekian liberalism, I’ve begun to think about the former as the “liberalism of respect” and the latter as the “liberalism of discovery.” The liberalism of discovery recognizes the pervasiveness of our ignorance and the necessity of liberty for the emergence of useful knowledge. I would argue that the ideal of a social order embodying respect for persons as free and equal–the ideal of the liberalism of respect–comes to seem appealing only after a society has attained a certain level of economic development and general education, and these are largely consequences of a prior history of the relatively free play of the mechanisms of discovery celebrated by liberals like Hayek and Jim. But liberals of respect have tended to overlook the conditions under which people come to find the their favored ideal worth aspiring to, and so have tended to fail to acknowledge in their theories of justice the role of the institutions of discovery in creating and maintaining a society of mutual respect and fair reciprocity.

Via Sullivan, Kleiman responds to Manzi:

I suppose I’ll have to read Manzi’s book to find out how existing practices constitute “(metaphorical) judgments about packages of policy decisions;” I’m inclined to regard them as mostly mere resultants-of-forces, with little claim to deference. (Thinking that existing arrangements somehow embody tacit knowledge is a different matter from thinking that big changes are likely to have unexpected consequences, mostly bad, though both are arguments for caution about grand projects.)

I’m also less unimpressed than Manzi is with how much non-obvious stuff about humans living together the social sciences have already taught us. That supply and demand will, without regulation, come into equilibrium at some price was a dazzling and radical social-scientific claim when Adam Smith and his friends suggested it. So too for Ricardo’s analysis of comparative advantage, which, while it doesn’t fully support the free-trade religion that has grown up around it, at least creates a reasonable presumption that trade is welfare-increasing.

The superiority of reward to punishment in changing behavior; the importance of cognitive-dissonance and mean-regression effects in (mis)shaping individual and social judgments; the intractable problem of public-goods contributions; the importance of social capital; the problems created by asymmetric information and the signaling processes it supports; the crucial importance of focal points; the distinction between positive-feedback and negative-feedback processes; the distinction between zero-sum and variable-sum games; the pervasiveness of imperfect rationality in the treatment of risk and of time-value, and the consequent possibility that people will, indeed, damage themselves voluntarily: none of these was obvious when proposed, and all of them are now, I claim, sufficiently well-established to allow us to make policy choices based on them, with some confidence about likely results. (So, for that matter, is the Keynesian analysis of insufficient demand and what to do about it.)

But, if I read Manzi’s response correctly, my original comment allowed a merely verbal disagreement to exaggerate the extent of the underlying substantive disagreement. If indeed Manzi can offer some systematic analysis of how to look at existing institutions, figure out which ones might profitably be changed, try out a range of plausible changes, gather careful evidence about the results of those changes, and modify further in light of those results, then Manzi proposes what I would call a “scientific” approach to making public policy.

Manzi responds to Kleiman:

I think that he is reading my response correctly. While I don’t think that “all I meant” was that “you shouldn’t read some random paper in an economics or social-pysch journal” and propose X, I certainly believe that. Most important, I acknowledge enthusiastically his “sauce for the goose is sauce for the gander” point that the recognition of our ignorance should apply to things that I theorize are good ideas, as much as it does to anything else. The law of unintended consequences does not only apply to Democratic proposals.

In fact, I have argued for supporting charter schools instead of school vouchers for exactly this reason. Even if one has the theory (as I do) that we ought to have a much more deregulated market for education, I more strongly hold the view that it is extremely difficult to predict the impacts of such drastic change, and that we should go one step at a time (even if on an experimental basis we are also testing more radical reforms at very small scale). I go into this in detail for the cases of school choice and social security privatization in the book.

Megan McArdle:

I have been reading with great interest the back-and-forth between Mark Kleiman and Jim Manzi on how much more humble we ought to be about new policy changes.  I know and like both men personally, as well as having a healthy respect for two formidable intellects, so I’ve greatly enjoyed the exchange.

Naturally, this has put me in mind of just how hard it is to predict policy outcomes–how easy it is to settle on some intuitively plausible outcome, without considering some harder-to-imagine countervailing force.

Consider the supply-siders.  The thing is intuitively appealling; when we get more money from working, we ought to be willing to.  And it is a mathematical truism that revenue must maximize at some point.  Why couldn’t we be on the right-hand side of the Laffer Curve?

It was entirely possible that we were; unfortunately, it wasn’t true.  And one of the reasons that supply-siders failed was that they were captivated by that one appealing intuition.  In economics, it’s known as the “substitution effect”–as your wages go up, leisure becomes relatively more expensive relative to work, so you tend to do less of the former, more of the latter.

Unfortunately, the supply-siders missed another important effect, known as the “income effect”.  Which is to say that as you get richer, you demand more of some goods, and less of others.  And one of the goods you demand more of as you get richer–a class of goods known as “superior goods”–is leisure.

Of course, some people are so driven that they will simply work until they drop in the traces.  But most people like leisure.  So say you raise the average wage by 10%.  Suddenly people are bringing home 10% more income every hour.  Now, maybe this makes them all excited so they decide to work more.  On the other hand, maybe they decide they were happy at their old income, and now they can enjoy their old income while working 9% fewer hours.  Cutting taxes could actually reduce total output.

(We will not go into the question of how much most people can control their hours–on the one hand, most people can’t, very well, but on the other hand, those who can tend to be the high-earning types who pay most of your taxes.)

Which happens depends on which effect is stronger.  In practice, apparently neither was strong enough to thoroughly dominate, at least not when combined with employers who still demanded 40 hour weeks.  You do probably get a modest boost to GDP from tax cuts.  But you also get falling tax revenue.

Naturally, even-handedness demands that I here expose the wrong-headedness of some liberal scheme.  And as it happens, I have one all ready in the oven here:  the chimera of reducing emergency room use.  The argument that health care reform could somehow at least partially pay for itself by keeping people from using the emergency room was always dubious.  As I, and others argued, there’s not actually that much evidence that people use the emergency room because they are uninsured–rather than because they have to work during normal business hours, are poor planners, or are afraid that immigration may somehow find them at a free clinic.

Moreover, we argued, non-emergent visits to the emergency room mostly use the spare capacity of trauma doctors; the average cost may be hundreds of dollars, but the marginal cost of slotting ear infections in when you don’t happen to have a sucking chest wound, is probably pretty minimal.

But even I was not skeptical enough to predict what actually happened in Massachusetts, which is that emergency room usage went up after they implemented health care reform.

The 80s Are Over, My Friend

Christopher Weber at Politics Daily:

Congress passed a bill Wednesday that would narrow the disparity between mandatory sentences for crack and powder cocaine possession, changing a 24-year-old law that critics said unfairly subjected blacks to longer prison terms than whites.

The measure was approved by voice vote in the House and sent to President Obama, who is expected to sign it into law, The Associated Press reported. The bill made it through the Senate in March.

The legislation would overhaul a 1986 law that mandated a person convicted of crack cocaine possession get the same mandatory prison term as someone with 100 times the same amount of cocaine in powder form. The bill passed Wednesday reduces that ratio to about 18-1, the AP said.

Cord Jefferson at The Root:

Twenty-four years ago, at the height of America’s crack epidemic, Congress enacted legislation that saw persons convicted of possessing crack receive prison sentences equal to persons possessing 100 times that amount in powder cocaine. This was problematic for many reasons, the most glaring being that African Americans possessing crack went to jail in droves while white defendants, who more often dabbled in expensive powder cocaine, escaped without prison bids. After the Senate passed the bill in March, Attorney General Eric Holder commented, “There is no law enforcement or sentencing rationale for the current disparity between crack and cocaine powder offenses.”

Unfortunately, today’s vote makes the ratio between crack and powder cocaine sentences 18-to-1—still not perfectly equal. But it’s a step, and a bipartisan one at that. Six Republicans co-sponsored the bill, including Lindsay Graham and Orrin Hatch.

Jacob Sullum at Reason:

Under current law, five grams of crack triggers the same five-year mandatory minimum sentence as 500 grams of powder; likewise, 50 grams of crack triggers the same 10-year mandatory minimum sentence as five kilograms of powder. The bill passed today, which President Obama is expected to sign soon, will reduce those 100-to-1 ratios by 82 percent. From now on, a drug offender will need only 18 times as much powder to get the same sentence he would get for crack. That’s still crazy, but substantially less so. In addition to reducing the sentencing disparity, the bill abolishes the five-year mandatory minimum sentence for simple possession of crack (as opposed to possession with intent to distribute), another way in which federal law treats smokable cocaine with unusual severity. Families Against Mandatory Minimums says this is “the first time that Congress has repealed a mandatory minimum drug sentence since the Nixon administration.”

Mark Kleiman:

This time, the bill had lots of conservative Republican support, but the ranking Republican on House Judiciary demonstrated why it’s taken more than 20 years to change the law by pulling out the usual demoagogic warnings about rampant drug abuse. The Fraternal Order of Police also weighed in on the wrong side.

Sens. Dick Durbin and Jeff Sessions and Rep. Bobby Scott all deserve congratulations, though I think an administrative fix – regulating the conditions under which the mandatory could be invoked by federal prosecutors so that only worthwhile cases could be brought – would have been cleaner and quicker.

This is one more indication that at least marginally sensible drug policy is now politically discusable.

David Dayen at Firedoglake:

I agree entirely with Adam Serwer when he says that this passage makes the crack disparity “only one fifth as racist as it used to be.” But you know what we don’t do a lot of in this country? Reduce sentences. Check out the makeup of the world’s largest prison population and you’ll see what I mean. “Law ‘n’ Order” and “Tough on Crime” remain shibboleths used by politicians to hammer away at criminal sentencing reformists. So ANY change in a positive direction takes a ridiculous amount of work and struggle. This is a small step, but it’s a step in the right direction.

The Leadership Conference on Civil Rights has a backgrounder on the law change. And the Houston Chronicle spoke out in a very good editorial today. Now, the next step is to eliminate this disparity entirely, so we actually have equal justice under the law.

Steven Taylor:

Don’t get me wrong:  I would not recommend crack cocaine usage and there were (and are) still social costs of some significance associated with its usage.  The problem with the reaction in the 1980s was that, like much of our drug laws, we overreact and make rules based on fear and the drama of the moment rather than rational consideration of the problem.  We paint each new drug as practically the end of the world and react accordingly (the current drug of fear is meth-in the past it was heroin).  Again:  all of these are substances that cause substantial harm, but we tend to lack a sense of proportion in dealing with them.

Dude, It’s Prop 19, Man…

Terry Hamburg at Technorati:

On November 2, 2010, the most populous U.S. state may make possession of one ounce of marijuana legal.

Some in government, like the progressive and cash-strapped Oakland City Council, see the passage of The California Marijuana Initiative as a billion dollar tax windfall, plus a jobs creation bill. Three members of Congress from the Bay Area enthusiastically endorse it: Reps. George Miller, Barbara Lee and Pete Stark. Law enforcement is divided: some rank and file are quietly in favor while most brass officially stand shoulder to shoulder against. The California NAACP supports the proposal as a civil rights issue because blacks are disproportionately arrested for possession.

Despite state inmates being released by court orders for overcrowding, the prison industry appears to reject anything that might reduce its clientele. Major opposition and probably funding is coming from illicit pot farmers, who fear a drop in demand and prices for their harvests. According to some reports, the liquor industry is discretely funneling money to groups pushing for a “no” vote.

R. M. Schneiderman at Newsweek:

So far, no modern country has ever legalized marijuana production—not even the Netherlands. Yet with heavy drug-related violence plaguing the U.S.-Mexican border, some analysts and policymakers now say that America should legalize weed in order to reduce the power of Mexico’s drug cartels.

Marijuana carries the least amount of overhead cost for many of the cartels and provides some of their cash flow for buying guns and influence. Estimates vary, but analysts say pot accounts for somewhere in the range of 20 to 50 percent of the cartels’ profits. But that could soon change with competition from El Norte: California has a proposition set for the November ballot—on which voters are roughly split—that would legalize the drug’s domestic production and sale. If the measure passes, says a recent analysis by the RAND Corporation, California could become a major supplier of the drug to the rest of the U.S. That, according to George W. Grayson, a professor of government at William & Mary, “would hurt the cartels badly.” RAND estimates that it could reduce the drug’s pretax price by more than 80 percent.

David Hirschman at Big Think:

Big Think spoke with Columbia University psychology professor Carl Hart who said he wasn’t particularly impressed with the California proposals, noting that similar movements had failed in the past. While he liked the idea of raising tax revenue from pot, he said that decriminalizing just marijuana would risk not addressing similar issues with other drugs.

“I don’t like the idea of separating marijuana from other drugs,” said Hart. “There’s a movement in the country to say marijuana isn’t like cocaine, isn’t like meth, isn’t like heroin.” He said that these distinctions don’t take enough into account, and that the trouble with addiction to any of these drugs is less about their pharmacological effects, and more about the social conditions under which they are consumed.

Hart suggested the U.S. should follow the lead of Portugal, which has effectively decriminalized all drugs, allowing users to face non-criminal administrative proceedings when they are caught rather than criminal charges. “It provides less of a taxing on our criminal justice resources, and allows young people to make mistakes without having a criminal record that follows them for the rest of their lives,” said Hart.

Another Big Think interviewee, former High Times magazine editor John Buffalo Mailer, told us today that he would be surprised to see the legalization efforts go through: “Given the environmental and economic benefits of hemp, not to mention the medicinal and economic value of marijuana, it seems insane to me that we still have the draconian laws in place we do for marijuana possession anywhere in this country,” Mailer said. “That is until you take into account the several large industries who benefit from marijuana’s illegal status, namely the oil, cotton, tobacco, alcohol, and prison industries. If we were to legalize the plant, they would all take a hit.  Combined, that is a tremendous amount of lobbying power. So, I would be surprised if we see legalization any time soon.”

Mark Kleiman at The Los Angeles Times:

There’s one problem with legalizing, taxing and regulating cannabis at the state level: It can’t be done. The federal Controlled Substances Act makes it a felony to grow or sell cannabis. California can repeal its own marijuana laws, leaving enforcement to the feds. But it can’t legalize a federal felony. Therefore, any grower or seller paying California taxes on marijuana sales or filing pot-related California regulatory paperwork would be confessing, in writing, to multiple federal crimes. And that won’t happen.

True, Atty. Gen. Eric H. Holder Jr. has announced that the Justice Department will not prosecute people who are selling medical marijuana in compliance with California’s law. But that’s an entirely different matter. The attorney general could cite good legal and constitutional reasons for that policy, because the regulation of medical practice is a state and not a federal responsibility. And if the medical justification for most of the pot sold through dispensaries is sketchy at best? Well, that too is a state problem. The international treaties that require their signatories, including the United States, to ban the production and sale of cannabis have an exception for medical use.

Most important, the feds can afford to take a laid-back attitude toward California’s medical marijuana trade because it’s unlikely to cause much of a trafficking problem in the rest of the country. Because dispensaries’ prices are just as high as those for black-market marijuana, there’s not much temptation to buy the “medical” sort in California and resell it out of state.

By contrast, the non-medical cannabis industry that would be allowed if Proposition 19 passed would quickly fuel a national illicit market. According to a study issued by the RAND Corp.’s Drug Policy Research Center this month, if the initiative passes, the pretax retail price of high-grade sinsemilla marijuana sold legally in California is likely to drop to under $40 per ounce, compared with current illicit-market (or dispensary) prices of $300 an ounce and more. Yes, the counties would have authority to tax the product, but even at a tax rate of $50 an ounce — more than 100% of the pretax price — the legal California product would still be a screaming bargain by national standards, at less than one-third of current black-market prices.

As a result, pot dealers nationwide — and from Canada, for that matter — would flock to California to stock up. There’s no way on earth the federal government is going to tolerate that. Instead, we’d see massive federal busts of California growers and retail dealers, no matter how legal their activity was under state law.

More Kleiman at his blog:

If you’re not keeping score at home, that’s the California marijuana-legalization initiative.  My op-ed explaining why it makes no sense is now on the LA Times webpage, and will appear in Sunday’s paper.  Bottom line:  a state can’t tax and regulate a federal felony.

I may vote for the proposition anyway, just as a protest against the current laws. Too bad the California ballot initiatives don’t permit you to vote for “a pox on both your houses.”

Kevin Drum:

Me too. Besides, there’s really no telling what the feds will do until someone forces the issue. So why not force it? At the very least it has a chance to move the public opinion needle a bit. Besides, I think it would be entertaining to watch the tea partiers twist in the wind trying to figure out which is more important: (a) making sure the hippies don’t get their dope or (b) fighting the jackbooted tyranny of federal officers interfering with the sovereign Tenth Amendment right of states to police their own borders. Or something.

In any case, my guess is that Prop 19 will fail. It probably would regardless (it’s already behind 44%-48%), but Mark is right: opponents can make a pretty scary case that it would lead to California becoming the pot capital of the United States and fueling gang/mafia/DEA wars of all stripes. The ads sort of write themselves. Unfortunately, we’re probably still a few years away from having any chance of seriously discussing a sane marijuana policy. Even in California.

Andrew Sullivan

Stephen Bainbridge:

I disagree with fellow UCLA prof Mark Kleiman about a lot of things. We’ve crossed blogosphere swords occasionally. But I still respect his vast knowledge of drug policy, so I take his analysis of California’s pot legalization ballot proposition (number 19 for those of you following along at home) seriously

Pete Guither:

Let’s start with Mark Kleiman’s new OpEd in the Los Angeles Times:

California can’t legalize marijuana

There’s one problem with legalizing, taxing and regulating cannabis at the state level: It can’t be done. The federal Controlled Substances Act makes it a felony to grow or sell cannabis. California can repeal its own marijuana laws, leaving enforcement to the feds. But it can’t legalize a federal felony.

Well, duh. Thanks for letting us know that marijuana would still be illegal at the federal level. There’s a newsbreak.

When California passed medical marijuana, it was illegal at the federal level as well. That didn’t stop them from actually, relatively successfully (despite the challenges of federal government intrusion), implementing a licensed medical marijuana system.

But Mark helpfully explains why that could work, while recreational marijuana wouldn’t…

True, Atty. Gen. Eric H. Holder Jr. has announced that the Justice Department will not prosecute people who are selling medical marijuana in compliance with California’s law. But that’s an entirely different matter. The attorney general could cite good legal and constitutional reasons for that policy, because the regulation of medical practice is a state and not a federal responsibility. And if the medical justification for most of the pot sold through dispensaries is sketchy at best? Well, that too is a state problem.

This is just a bizarre statement. Maybe the Attorney General “could cite good legal and constitutional reasons for that policy,” but he didn’t — he merely said that prosecuting medical marijuana in compliance with state law was not a particularly good use of limited resources. How would that be different from prosecuting millions of recreational users?

And “because the regulation of medical practice is a state and not a federal responsibility”? More bizarreness. Yes, under today’s fatally strained Supreme Court interpretation of the Commerce Clause, medical “practice” is mostly a state function, but the drugs used in medical practice (including marijuana) are considered to be under federal control (re-read Raich). The implication that somehow medical drugs are constitutionally the domain of the states (don’t I wish), but recreational drugs are not is an even more unusual Constitutional notion (I’m imagining a bizarro-land Kleiman version of the 10th Amendment reading “The powers not delegated to the States, or to the people, are reserved to the United States”).

Note: it is interesting that I don’t recall Mark mentioning this point about the regulation of medical practice being the domain of the states when it came to discussions about federal health care.

The Oscar Grant Verdict: Trouble In O-Town

Joe Eskenazi at San Francisco Weekly:

Ex-BART cop Johannes Mehserle has been found guilty of involuntary manslaughter in the shooting death of unarmed BART passenger Oscar Grant.

The jury could have convicted Mehserle of either second-degree murder or voluntary manslaughter — both charges that would have required the jury to believe that Mehserle intended to kill grant. That was evidently too much for the jury, which declared its belief that the former policeman didn’t intend to kill the man he shot via its involuntary manslaughter conviction. This carries a sentence of two to four years; a potential gun enhancement could bump that to five-to-14 years .

Heather MacDonald at Secular Right before the verdict was read:

It is true that death at the hands of a representative of the state–in this case, the BART police officer–has an entirely different meaning than death at the hands of a common criminal and produces a far greater sense of injustice.  That sense of injustice is compounded for blacks by the shameful history, now largely corrected, of police abuse.   Still, this one tragically-mistaken killing—BART officer Johannes Mehserle entered a scene of chaos at Oakland’s Fruitvale station on a night in which several guns had already been found along the subway line and thought, according to his testimony, that he was firing his Taser to subdue a resisting, possibly gun-wielding Oscar Grant—stands out from the tidal wave of cold-blooded murders in Oakland by the fact that Mehserle did not intend to murder an unarmed civilian.  Like many urban areas, Oakland has been seeing a retaliatory shooting pattern around vigils for shooting victims.  On June 21, for example, a 17-year-old was shot at an Oakland bus stop; just after midnight the next day, two gunmen sauntered up to a vigil for the bus stop victim and killed a 19-year-old girl and seriously wounded five other teenagers who were attending the vigil.  None of these and the hundred or so other murders a year in Oakland provoke the spectre of riots if their perpetrators are not convicted; indeed, it is often hard to find anyone to cooperate with the authorities in bringing the killers to justice.   The thousands of black-on-black killings a year nationally are treated as a matter of course; so, too, are killings of police officers.

Let’s hope that Oakland residents heed the many calls from community leaders to accept the jury’s verdict peacefully and defeat the sad, but not irrational, expectations of Bay Area law enforcement.

J. Peter Nixon at Commonweal:

I work in downtown Oakland, where many businesses were concerned that the announcement of the verdict would bring a repeat of the civil violence that accompanied the original shooting.  Shortly before the verdict was to be announced, we were asked to evacuate our office building.  I will confess I felt a great deal of ambivalence about this, but as a manager I felt responsible for the safety of our employees.  So I encouraged people to leave.

As I walked to the BART train entrance, the sidewalks were filled with office workers essentially fleeing the city.  I began to feel a sense of shame about this.  It was “white flight” on a concentrated and graphic scale.  I got in line to pass through the BART gates and even had my card out when I just stopped and got out of line.  “I can’t do this,” I thought.

I am probably the least spontaneous person you will ever meet.  The white board in my office has a “do list” ranging across three columns.  I don’t take a vacation without a carefully planned daily itinerary.  And yet there I was, making a last minute decision to remain in downtown Oakland at a time when many (white) commentators were convinced the place was about to explode in civil unrest.

I wish I could tell you it was an act of heroic virtue.  The truth is that I was seized by something outside myself, an irresistible prompting of the Holy Spirit.  I just couldn’t muster the energy to fight against it and keep my legs moving toward that gate.  So I climbed the staircase out of the rail station and walked back down the street against the human tide.  I called my wife to tell her of my decision. She, of course, understood perfectly.

My first destination was the Cathedral, which stands next to my office building.  My hope was that others would be naturally drawn there as a place to keep prayerful vigil while awaiting the verdict.  I’m sorry to say I was disappointed.  It was deserted except for the security guards.  I prayed for a just verdict, not even sure in my own heart what a just verdict would be in this case.  I prayed for a peaceful response, whatever the outcome.  In the Cathedral, an enormous image of Christ in judgment is depicted on the window behind the altar.  I contemplated the image, and prayed that whatever the imperfections of human justice, the city would be able to trust in the ultimate judgment of Christ.

Shortly after 4pm I flipped on my Blackberry and got the news: the verdict was involuntary manslaughter.  It was the least serious offense available to the jury, although it still represents—to my knowledge—the only case to date where a police officer has been found criminally liable in a case of this nature.

I wondered whether I should go downtown and join the demonstrators, who I knew would be deeply angry about the verdict.  The truth was that my own heart was conflicted about the justice of the verdict.  But I felt strongly that the place of a Christian that night was to be present in the midst of the city, not absent from it.  In the Psalms of the Office we pray “the Lord is my light and my salvation, of whom shall I be afraid?”  Did I believe these words or not?

San Francisco Chronicle:

There was outrage, there was looting and there were skirmishes between police and protesters, but that wasn’t the whole story of how Oakland reacted to the Johannes Mehserle verdict.

The trouble Thursday boiled down to a racially diverse mob of about 200 people, many bent on destruction no matter what, confronting police after the day’s predominantly peaceful demonstrations ended.

Sporadic conflicts were quelled quickly early in the evening, but by late night at least 50 people – and maybe as many as 100 – had been arrested as small groups smashed windows, looted businesses and set trash bins on fire.

The violence was contained for much of the early evening within a one-block area near City Hall by an army of police officers in riot gear, but around 10 p.m. a knot of rioters broke loose and headed north on Broadway toward 22nd Street with police in pursuit.

They smashed windows of shops including the trendy Ozumo restaurant, and one building was spray painted with the words, “Say no to work. Say yes to looting.”

A boutique called Spoiled was spared. It had a sign outside and pictures of Oscar Grant with the words, “Do not destroy. Black owned. Black owned.”

On  the verdict, Kevin Drum:

I hardly even know what to say about this. I wasn’t in court and I wasn’t on the jury, so I didn’t hear all the evidence. But for chrissake. Look at the video. Mehserle didn’t look confused and modern tasers don’t feel much like service revolvers. And it’s not as if he was acting under extreme duress. At most there was a brief and perfunctory struggle, after which Mehserle calmly raised himself up while Grant was pinned to the ground, drew his revolver, and shot him. The only thing that even remotely makes Mehserle’s story believable is that doing what he did is just flat out insane. It doesn’t make sense even if he were a stone racist and half crazy as well.

The jury can say what it wants, but it still looks to me like Mehserle decided on the spur of the moment to shoot Grant. I don’t know why, and no explanation really makes sense. But he’s a white cop and the jury apparently concluded that Grant was just black riffraff. The whole thing is just appalling.

Mark Kleiman:

Kevin Drum is upset by the verdict, which he regards as a finding of “semi-guilty.” He joins the victim’s family, the National Lawyers Guild, and a host of the usual suspects in thinking that the officer should have been convicted of second-degree murder instead. As usual, there will be an attempt to organize riots in protest, because of course burning down the stores of black shopkeepers is an excellent way to attack the white power structure.

I haven’t followed the case closely, but when I heard the story my first reaction was “involuntary manslaughter,” which is what the jury decided on. To bring in second-degree murder, the jury would have had to be sure, beyond reasonable doubt, that an ill-trained very junior cop, operating at 2am on New Year’s, didn’t make the unforgiveable error of drawing his handgun thinking it was his taser. They would have had to be sure, beyond reasonable doubt, that instead he decided at random to murder someone he’d never met before, in front of a big crowd of people and several other police officers.

It’s good to see the people who otherwise condemn the pointlessness of harsh retributive justice making an exception in this case. Perhaps retribution is actually a legitimate function of punishment after all? And of course the silence from the usual denouncers of the criminal-coddling criminal justice system, now that the criminal being coddled is a white cop who killed a black parolee, is deafening.

UPDATE: Via Patrick Appel at Sully’s place, Radley Balko at Reason

Adam Serwer at The American Prospect

Julianne Hing at Colorlines

Memento Mori, Moratorium

Charlie Savage at the NYT:

A federal judge in New Orleans on Tuesday blocked a six-month moratorium on deep-water drilling projects that the Obama administration had imposed in response to the vast oil spill in the Gulf of Mexico.

The White House swiftly said the administration would appeal the decision.

In a 22-page ruling, Judge Martin L. C. Feldman of Federal District Court issued a preliminary injunction against the enforcement of a May 28 order halting all floating offshore drilling projects in more than 500 feet of water and preventing the government from issuing new permits for such projects.

Citing the economic harm to businesses and workers in the gulf caused by the moratorium, Judge Feldman — a 1983 appointee of President Ronald Reagan — wrote that the Obama administration had failed to justify the need for the sweeping suspension, which he characterized as “generic, indeed punitive.”

He wrote that “the blanket moratorium, with no parameters, seems to assume that because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger.”

Roger Pilon at Cato:

A quick review of Judge Feldman’s 22-page opinion indicates that the injunction was granted, under the Administrative Procedures Act, because the plaintiffs “would likely succeed in showing that the [Interior Department’s] decision was arbitrary and capricious. An invalid agency decision to suspend drilling of wells in depths of over 500 feet simply cannot justify the immeasurable effect on the plaintiffs, the local economy, the Gulf region, and the critical present-day aspect of the availability of domestic energy in this country.”

Judge Feldman took particular note of the Interior secretary’s May 27 Report, from which its moratorium order followed: “Much to the government’s discomfort and this Court’s uneasiness, the Summary also states that ‘the recommendations contained in this report have been peer-reviewed by seven experts identified by the National Academy of Engineering.’” As has been widely reported, those “experts” never signed off on any such moratorium.

As the court went on to say, “After reviewing the Secretary’s Report, the Moratorium Memorandum, and the Notice to Lessees, the Court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium. …[T]he blanket moratorium, with no parameters, seems to assume that because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger.”

Needless to say, the Obama administration is filing an immediate appeal. But for now, its sweeping moratorium is on hold.

Kate Sheppard at Mother Jones:

A federal judge in New Orleans on Tuesday sided with the oil industry, striking down the temporary moratorium on new offshore exploration and deepwater drilling the Obama administration imposed last month. That judge, it turns out, has in recent years had interests in Transocean—the world’s largest offshore drilling company and the owner of the Deepwater Horizon rig—as well as other energy companies engaged in offshore oil extraction.

According to the most recently available financial disclosure form for District Court Judge Martin Feldman, he had holdings of up to $15,000 in Transocean in 2008. He has also recently owned stock in offshore drilling or oilfield service providers Halliburton, Prospect Energy, Hercules Offshore, Parker Drilling Co., and ATP Oil & Gas. Feldman was appointed by President Ronald Reagan in 1983.

Obama’s six-month moratorium put the brakes on the approval of new permits for deepwater drilling and suspended work at 33 exploratory wells in the Gulf. A group of oil and gas companies, with the support of the state of Louisiana, asked the court to throw out the moratorium so they can continue drilling. Feldman heard two hours of arguments Monday on whether grant an injunction to lift the moratorium before rendering his decision today. Describing the moratorium as “arbitrary and capricous,” Feldman wrote in his opinion: “If some drilling equipment parts are flawed, is it rational to say all are? Are all airplanes a danger because one was? All oil tankers like Exxon Valdez? All trains? All mines? That sort of thinking seems heavy-handed, and rather overbearing.”

Steve Benen:

It hardly inspires confidence. Indeed, Ian Millhiser recently explained, “Industry ties among federal judges are so widespread that they are beginning to endanger the courts’ ability to conduct routine business. Last month, so many members of the right-wing Fifth Circuit were forced to recuse themselves from an appeal against various energy and chemical companies that there weren’t enough untainted judges left to allow the court to hear the case.”

Mark Kleiman:

This ruling is potentially a Godsend to the Obama Administration on a level with Joe Barton’s “apology.” Any opportunity to act aggressively against oil spills ought to be gratefully grasped.

Every one of those deep-water permits was issued in response to an application that included a plan for dealing with a blow-out. The BP fiasco demonstrated that those plans weren’t worth the paper they were printed on, even before the oil execs admitted they’d just Xeroxed them all from the same worthless source. (Listing a biologist who’s been dead for several years as a key resource was sort of a give-away.)

So if the permits can be revoked en bloc, why not revoke them one-by-one? It’s certainly not arbitrary or capricious to say that the drillers shouldn’t be allowed to go ahead and run the risk of accidents they don’t know to either prevent or cure, or continue to be rewarded for filing fraudulent documents.

And unless the (petroleum-soaked) Fifth Circuit steps in right away, why not a legislative fix? I’d love to see the Senate Republicans filibustering on behalf of the oil companies.

Nicolas Loris at Heritage:

While the effects on the price of gasoline from a drilling ban would be marginal, the economic effects felt by the Gulf would dump salt into the wound of a region coping with not just the spill but the recession in general. The American Petroleum Institute forecasts that if the drilling ban continues, more than 120,000 jobs could be lost in the Gulf Coast and key resources abandoned or moved elsewhere.

In fact, the Washington Times reports that “Oil company executives told Congress last week they would have to move their rigs to other countries because they lose up to $1 million a day per idle rig, and said there are opportunities elsewhere.” And let’s not forget the president’s pro-offshore drilling announcement included new bans on access to American energy, such as in Alaska’s Bristol Bay, where some lease sales were already pending.

Those who support the ban on offshore drilling warn about the risks of another disaster, but that’s why Department of Interior Secretary Ken Salazar had his list of recommendations for the president reviewed by the seven experts from the National Academy of Engineering. Their recommendation?

“A blanket moratorium is not the answer. It will not measurably reduce risk further and it will have a lasting impact on the nation’s economy which may be greater than that of the oil spill. We do not believe punishing the innocent is the right thing to do.”

The White House promised they would appeal right away. But they shouldn’t. The moratorium is unnecessary will have significant adverse economic impacts. Why take more jobs away from a region that is already struggling to manage a crisis?

Michelle Malkin

UPDATE: Ed Morrissey

John Cole

The Past Is Not So Past, After All

Shaila Dewan at NYT:

In late April in a courthouse in Madison County, Ala., a prosecutor was asked to explain why he had struck 11 of 14 black potential jurors in a capital murder case.

The district attorney, Robert Broussard, said one had seemed “arrogant” and “pretty vocal.” In another woman, he said he “detected hostility.”

Mr. Broussard also questioned the “sophistication” of a former Army sergeant, a forklift operator with three years of college, a cafeteria manager, an assembly-line worker and a retired Department of Defense program analyst.

The analyst, he said, “did not appear to be sophisticated to us in her questionnaire, in that she spelled Wal-Mart, as one of her previous employers, as Wal-marts.”

Arguments like these were used for years to keep blacks off juries in the segregationist South, systematically denying justice to black defendants and victims. But today, the practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked.

In the Madison County case, the defendant, Jason M. Sharp, a white man, was sentenced to death after a trial by a jury of 11 whites and one black. The April hearing was the result of a challenge by defense lawyers who argued that jury selection was tainted by racial discrimination — a claim that is difficult to prove because prosecutors can claim any race-neutral reason, no matter how implausible, for dismissing a juror.

While jury makeup varies widely by jurisdiction, the organization, which studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — found areas in all of them where significant problems persist. In Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and there are counties where more than 75 percent of black jury pool members have been struck in death penalty cases.

An analysis of Jefferson Parish, La., by the Louisiana Capital Assistance Center found that from 1999 to 2007, blacks were struck from juries at more than three times the rate of whites.

Ashby Jones at Law Blog at WSJ:

In 1986, the U.S. Supreme Court ruled that if a pattern of discrimination emerged in a lawyer’s use of peremptory challenges during jury selection, a judge could require the lawyer to give a race-neutral reason for why the juror was dismissed.

But is that ruling, Batson v. Kentucky, and those that followed it, doing enough to keep racism out of the jury-selection process?

That’s the fundamental question asked in this NYT article out Wednesday, which examines the prevalence — and absence — of blacks on juries in the South.

According to the story:

[T]he practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked.

Part of the problem, reports the NYT, concerns a opinion following Batson in which the Supreme Court said that the nonracial reasons for peremptory strikes don’t have to be “persuasive, or even plausible.” Rather, it is up to the judge to decide if there was deliberate discrimination.

That is a high bar, defense lawyers say. In Tennessee and North Carolina, for instance, there has never been a successful reversal based on Batson.

“Anybody with any sense at all can think up any race-neutral reason and get away with it,” said Stephen B. Bright, a capital defense lawyer in Atlanta.

bmaz at Emptywheel

Jamelle:

It’s incredibly depressing to know that in large swaths of the country, the basic mechanisms for enforcing Jim Crow — voter disenfranchisement, targeted policing of majority-black areas, and jury stacking — are alive and well. For a huge number of African-Americans, the criminal justice system exists mainly as a blunt object of social control. Moreover, because convicts are thoroughly stigmatized in the eyes of the public, it is frustratingly hard to do anything about it.

Mark Kleiman:

Hard to say which is the more distressing aspect of the latest study on Southern prosecutors’ abuse of the peremptory-challenge process to create all-white, or nearly all-white, juries: the fact that official racial bias is still a fact of Confederate life, or the fact that prosecutors – officers of the court, sworn to uphold the Constitution – routinely cheat, lie about it, and get away not just without having convictions thrown out but without any sort of professional stigma. In some offices, junior prosecutors get explicit training in how to successfully violate the Constitution and deceive the court (which seems, too often, more than willing to be deceived.

In theory, prosecutors pursue justice within the constraints of the law; too often, in practice, they’re just looking to carve notches in their briefcases.

Matthew Yglesias:

One way of dealing with these results would be to more strictly define what a “race-neutral” reason for rejecting a juror is, especially in those jurisdictions or with those prosecutors where the juries really are especially skewed in favor of white jurors. But the system we have, where prosecutors and defense attorneys have a huge role to play in jury selection isn’t necessarily the right one, or the one that other countries use. As Kevin Drum suggests, we could just pick 12 people at random and let judges ensure that no one has a really blatant reason for not serving.

This is just another weird part of our justice system — like electing judges, widespread use of exclusionary rules, the existence of for profit bails bondsmen, our huge number of prison inmates or one-sided expert witnesses — that we take as totally normal, but are actually pretty weird in the international context. Alas, I hardly see legal reformers using “but they do it differently over there” as a successful rallying cry.

Kevin Drum:

Most racially-inspired problems are hard to solve, but in this case there’s a pretty easy solution: just eliminate the voir dire process entirely. Pick 12 people at random, let the judge interview them and eliminate anyone who’s obviously unqualified or has a conflict of interest, and that’s that. You have your jury. Not only would this eliminate the most obvious source of racial bias, but it would have plenty of other positive effects too. It would reduce the number of jurors that courts need to summon, for example. And it would speed up trials. I sat on a drunk driving case once where the jury selection process took nearly as long as the trial itself because the defense attorney was desperately trying to eliminate anyone who might not be entirely sympathetic to a middle-aged guy who got behind the wheel after he’d had a few too many and started weaving around the road. It was a waste of our time, a waste of the judge’s time, and a waste of taxpayer money. (And we convicted the guy anyway.)

This is the way jury selection works in Britain, and guess what? Justice seems to be served just fine. The only downside, I think, is that John Grisham wouldn’t have been able to write his best book. I can live with that.