Park Slope and The Rats of NIMBY

Elisabeth Rosenthal at NYT:

Park Slope, Brooklyn. Cape Cod, Mass. Berkeley, Calif. Three famously progressive places, right? The yin to the Tea Party yang. But just try putting a bike lane or some wind turbines in their lines of sight. And the karma can get very different.

Last week, two groups of New Yorkers who live “on or near” Prospect Park West, a prestigious address in Park Slope, filed a suit against the administration of Mayor Michael R. Bloomberg to remove a nine-month-old bike lane that has commandeered a lane previously used by cars.

In Massachusetts, the formidable opponents of Cape Wind, a proposed offshore wind farm in Nantucket Sound, include members of the Kennedy family, whose compound looks out over the body of water. In Berkeley last year, the objections of store owners and residents forced the city to shelve plans for a full bus rapid transit system (B.R.T.), a form of green mass transit in which lanes that formerly served cars are blocked off and usurped by high-capacity buses that resemble above-ground subways.

Critics in New York contend the new Prospect Park bike lane is badly designed, endangering pedestrians and snarling traffic. Cape Wind opponents argue the turbines will defile a pristine body of water. And in Berkeley, store owners worried that reduced traffic flow and parking could hurt their business.

But some supporters of high-profile green projects like these say the problem is just plain old Nimbyism — the opposition by residents to a local development of the sort that they otherwise tend to support.

Ryan Avent:

The Times piece delves into the psychology of this kind of neighborhood opposition, but what it doesn’t say is that as annoying as this is, it has a far smaller impact on net emissions than the far more common anti-development strain of NIMBYism. Bike lanes make New York City a teeny bit greener. But New York is already much, much greener than most American cities, thanks to its dense development pattern and extensive transit network. Net emissions fall a lot more when someone from Houston moves to New York than when someone from New York starts biking.

Happily, lots of people would LOVE to move to New York. This is one huge benefit we don’t need to subsidize to realize. Unhappily, the benefit is nonetheless out of reach because of the huge obstacles to new, dense construction in New York. New York can’t accommodate more people unless it builds more homes, and it can’t build more homes, for the most part, without building taller buildings. And New Yorkers fight new, tall buildings tooth and nail. They fight them on aesthetic grounds, and because they’re worried about parking and traffic, and because they’re worried about their view, and because they just think there’s enough building in New York already, thank you. And many do this while heaping massive scorn on oil executives and the Republican Party over their backward and destructive views on global warming.

Of course, the obstruction of development is offensive for lots of reasons: it makes housing and access to employment unaffordable, it reduces urban job and revenue growth, it tramples on private property rights, and so on. But the environmental hypocrisy is galling, and it’s not limited to New York. My old neighborhood, Brookland, voted overwhelmingly for Obama (about 90-10, as I recall). Many of the locals are vocally supportive of broad, lefty environmental goals. And yet, when a local businessman wants to redevelop his transit-adjacent land into a denser, mixed-use structure, the negative response is overwhelming, and residents fall over themselves to abuse local rules in order to prevent the redevelopment from happening.

This project would bring new retail with it, which would enable more local residents to walk to a retail destination. It would bring new residents, and those residents would be vastly more likely to walk or take transit to destinations than those living farther from Metro. Forget the economic benefits to the city, the people occupying the new housing units would have carbon footprints dramatically below the national average. But this basically does not matter to the NIMBYs however much they profess to care about the environment.

To the extent that public opinion matters and can be shaped, I think it would be a huge boon for humanity for attitudes toward NIMBYism to turn decidedly negative. People should be ashamed of this behavior, which is both selfish and extravagantly dismissive of property rights.

Kevin Drum:

Earlier today, I linked to a Ryan Avent post complaining that although dense cities like New York are much greener than towns and suburbs, his lefty, environmentally-aware neighbors fight against new high-density developments in the city anyway. A little later, I had an email exchange with HW, a lefty, environmentally-aware New Yorker who thinks Ryan has it all wrong. Here’s the exchange:

HW: It is true that people living in NY have much much lower carbon footprints than those who live in lower density areas. It’s also true that it is a highly desirable place to live. So wouldn’t the way to accomplish more people living in high density areas like NY be to replicate it elsewhere? Or should we insist on cramming more people into NY against NYers’ will and make it a less desirable place to live?

Wouldn’t it be better for 8 million people to live in NY and have it serve as a beacon for a great, lower carbon footprint lifestyle? If you cram an extra million people in, sure, you lower their carbon footprints, but you may also make high density urban living far less attractive and less likely to be replicated around the country.

Avent mentions problems with parking and traffic as a throw-away, but I can tell you, the 4-5-6 running up from midtown to the Upper East Side is quite literally crammed wall-to-wall with people every morning. Parking is unlikely to be an option for anyone unwilling to spend several hundred dollars a month. And yes, another ten skyscrapers will result in the city becoming a darker and more depressing place. Not to mention the fact that the last ten high rises that went up on the Upper East Side were creatures of the housing bubble, resulting in massive losses and lots of empty units.

So would it be so terrible if we built up the downtown areas of Jersey City, White Plains and Stamford instead?

My reply: Well, that’s the funny thing. Building new high-density areas is the obvious answer here, but no one ever does it. Why? I assume it’s because it’s next to impossible to get people to move to new high-density developments. You get all the bad aspects of density without any of the good aspects of living in a big, well-established city.

It’s a conundrum. We could use more well established cities, but no one wants to live in the intermediate stages that it takes to build one. And of course, in well-established smaller towns and cities, the residents fight like crazed weasels to prevent the kind of development that they associate with crime and gangs.

I don’t really know what the answer is.

HW again: I’m not sure that’s entirely true. What about all the downtown redevelopment projects that have happened around the country? Or the urban centers that sprout up around the core of big cities like NY. Next time you are in NY, look across the East River and take a gander at Long Island City. It’s as close to midtown as the Upper East Side, easy to build there, far less expensive, and just as dense. And every single one of those luxury high rises went up in the past 12 years; it’s literally a skyline that didn’t exist 12 years ago. Jersey City is a similar story, both for residential and financial (every big bank has moved their IT back office out there). Or look at the gentrification of Brooklyn!

So why obsess on cramming a couple hundred thousand more people on the island of Manhattan, which will push it past the bursting point? It’s just not a smart premise. In fact, I’ll go further: it bears no relationship to reality. No one would stop a luxury high rise in any of the other four boroughs or right across the river in NJ and it’s just as dense and low-carbon to live in those spots. It’s just that Ryan Avent doesn’t WANT to live in those spots. He wants to live in a cheaper high rise in Manhattan (which, by the way, has seen tons of them go up already in the past decade — in the Financial District, Hell’s Kitchen, the Upper East Side). Avent should ride the 4/5/6 at 8 am every morning for a week, come back, and tell us if his article makes any sense. As a 4th generation NYer, I don’t think it even begins to.

I don’t really have a dog in this fight since I’ve lived in the leafy suburbs of Orange County all my life. But I thought this was an instructive response that was worth sharing. Back to you, Ryan.

Avent responds to the e-mail exchange:

I’m just pointing out the obvious here — many more people would like to live in Manhattan, it would be good economically and environmentally if they did, and it’s bad that local neighborhood groups are preventing them from doing so because they’re worried about their view. Further, my guess is that even without a relaxation in development rules Manhattan will cram in a couple hundred thousand more people, and demand will continue to rise; somehow, Manhattan will manage not to burst. Though it might eventually be swamped, if city-dwelling NIMBYs continue to make Houston exurbs ever more affordable relative to walkable density.

The transportation problem can be solved, in part, by better transportation policy. It is a crime that the subways are crammed while drivers use the streets of Manhattan for free, but that’s a policy failure, not a density failure. It’s also worth noting that heights fall off sharply as one moves away from the central business districts of Lower and Midtown Manhattan. If developers could build taller in surrounding neighborhoods and add residential capacity there, then more Manhattan workers could live within easy walking distance of their offices, and fewer would need to commute in by train.

Finally, let me point out that this is not about what I want. I’m not planning a move to New York, and I’m not remotely suggesting that the government should somehow mandate or encourage high-density construction. I’m simply saying that it should be easier for builders to meet market demand. It should be easier for builders to meet market demand in Manhattan, and Brooklyn, and Nassau County, and Washington, and downtown Denver, and so on. People clearly want to live in these places, and it would be really good for our economy and our environment if they were able to do so. And I find it very unfortunate that residents deriving great benefits from the amenities of their dense, urban neighborhoods are determined to deny those benefits to others.

Matthew Yglesias:

I don’t want to say too much about the debate over increased density in Manhattan because, again, ebook proposal. But one reality check on this whole subject is to note that the population of Manhattan 100 years ago at 2,331,542 people. It then hit a low of 1,428,285 in 1980 and has since then risen back up to 1,629,054.

Back in 1910 there were only 92,228,496 people in the United States. Since that time, the population of the country has more than tripled to 308,745,538. And if you look at Manhattan real estate prices, it’s hardly as if population decline in Manhattan has been driven by a lack of demand for Manhattan housing. Back around 1981 when I was born, things were different. The population of the island was shrinking and large swathes of Manhattan were cheap places to live thanks to the large existing housing stock and the high crime.

Karl Smith at Modeled Behavior:

Many years ago I gave a talk entitled, Green Manhattan, where I made the case that Metropolis was the greenest place in America.

Naturally, I got a lot of funny looks but the line that seemed to win a few converts was this: the best way to protect the environment is by keeping people out of it.

I admit I took a few liberties in the talk, not discussing how agriculture would be performed and supported, for example. Nonetheless, I think this framing breaks the intuition that green is about living with nature rather than letting nature live on its on.

Megan McArdle:

New York hasn’t actually been growing steadily; it’s been rebounding to the population of roughly 8 million that it enjoyed in 1950-70 before the population plunged in the 1970s.  It’s really only in the last ten years that the population has grown much beyond where it was in the 1970.

This matters because I think you can argue pretty plausibly that New York’s infrastructure has put some limits on the city’s growth–that by 1970 the city had about grown up to those limits, and that we can push beyond them only slowly.  The rail and bus lines that sustain the business district are pretty much saturated, and the roads and bridges can’t really carry many more cars at peak times.  Adding busses could conceivably help you handle some of the overflow, but unless those busses actually replace cars, they’ll also make traffic slower.

Unless you plan to fill the city entirely with retirees who don’t need to go to work, there’s actually not that much more room to build up New York–you could put the people there, but they wouldn’t be able to move.  And even the retirees would require goods and services that choke already very congested entry and exit points.  There has been peripatetic talk about switching all deliveries to night, but that would disturb the sleep of low-floor apartment dwellers, and be fantastically expensive, forcing every business to add a night shift.

At the very least, the current city dwellers are right that adding more people would add a lot more costs to them–crammed train cars, more expensive goods.  In New York, much more than in other places, the competition for scarce resources like commuting space is extremely stark.

That doesn’t mean it is impossible to add a lot more people to New York.  But doing so requires not just changing zoning rules–as far as I know, there’s already quite a lot of real estate in the outer boroughs that could accommodate more people, but it’s not close to transportation, so it’s not economically viable.  If you want to add a lot more housing units, you also need to add considerable complimentary infrastructure, starting with upgrading the rest of the subway’s Depression-era switching systems (complicated and VERY expensive because unlike other systems, New York’s trains run 24/7).  And ultimately, it’s going to mean adding more subway lines, because short of building double-decker streets, there’s no other way for enough people to move.

Those lines don’t have to go to the central business district; there’s already been some success developing alternate hubs in Queens and Brooklyn.  But they do have to go from residential neighborhoods to somewhere that people work, and they have to add actual extra carrying capacity to the system–line extensions do no good if the trains are already packed to bursting over the high-traffic areas of the route.

The Continued Case Of Bradley Manning

Charlie Savage at NYT:

The Army announced 22 additional charges on Wednesday against Pfc. Bradley Manning, the military intelligence analyst who is accused of leaking a trove of government files to WikiLeaks a year ago.

The new charges included “aiding the enemy”; wrongfully causing intelligence to be published on the Internet, knowing that it was accessible to the enemy; multiple counts of theft of public records, transmitting defense information and computer fraud. If he is convicted, Private Manning could be sentenced to life in prison.

“The new charges more accurately reflect the broad scope of the crimes that Private First Class Manning is accused of committing,” said Capt. John Haberland, an Army spokesman.

The charges provide new details about when prosecutors believe that Private Manning downloaded copies of particular files from a classified computer system in Iraq. For example, the charges say he copied a database of more than 250,000 diplomatic cables between March 28 and May 4, 2010.

Glenn Greenwald:

Most of the charges add little to the ones already filed, but the most serious new charge is for “aiding the enemy,” a capital offense under Article 104 of the Uniform Code of Military Justice. Although military prosecutors stated that they intend to seek life imprisonment rather than the death penalty for this alleged crime, the military tribunal is still empowered to sentence Manning to death if convicted.

Article 104 — which, like all provisions of the UCMJ, applies only to members of the military — is incredibly broad. Under 104(b) — almost certainly the provision to be applied — a person is guilty if he “gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly” (emphasis added), and, if convicted, “shall suffer death or such other punishment as a court-martial or military commission may direct.” The charge sheet filed by the Army is quite vague and neither indicates what specifically Manning did to violate this provision nor the identity of the “enemy” to whom he is alleged to have given intelligence. There are, as international law professor Kevin Jon Heller notes, only two possibilities, and both are disturbing in their own way.

In light of the implicit allegation that Manning transmitted this material to WikiLeaks, it is quite possible that WikiLeaks is the “enemy” referenced by Article 104, i.e., that the U.S. military now openly decrees (as opposed to secretly declaring) that the whistle-blowing group is an “enemy” of the U.S. More likely, the Army will contend that by transmitting classified documents to WikiLeaks for intended publication, Manning “indirectly” furnished those documents to Al Qaeda and the Taliban by enabling those groups to learn their contents. That would mean that it is a capital offense not only to furnish intelligence specifically and intentionally to actual enemies — the way that, say, Aldrich Ames and Robert Hanssen were convicted of passing intelligence to the Soviet Union — but also to act as a whistle-blower by leaking classified information to a newspaper with the intent that it be published to the world. Logically, if one can “aid the enemy” even by leaking to WikiLeaks, then one can also be guilty of this crime by leaking to The New York Times.

The dangers of such a theory are obvious. Indeed, even the military itself recognizes those dangers, as the Military Judges’ Handbook specifically requires that if this theory is used — that one has “aided the enemy” through “indirect” transmission via leaks to a newspaper — then it must be proven that the “communication was intended to reach the enemy.” None of the other ways of violating this provision contain an intent element; recognizing how extreme it is to prosecute someone for “aiding the enemy” who does nothing more than leak to a media outlet, this is the only means of violating Article 104 that imposes an intent requirement.

But does anyone actually believe that Manning’s intent was to ensure receipt of this material by the Taliban, as opposed to exposing for the public what he believed to be serious American wrongdoing and to trigger reforms?

Jazz Shaw:

The “aiding the enemy” charge should come as no surprise to anyone, and in fact we had predicted it would come down to treason last winter. Despite the poo-pooing and endless protestations of some of Manning’s most vocal and frequently comical defenders, there is one object lesson here which can not be repeated often enough: the U.S. Military has zero sense of humor when it comes to things like this.

Assuming for the moment that this winds up in a conviction – and the Army is certainly acting like they’re playing a pretty solid hand at this point – the situation only becomes more explosive and holds the potential to be a huge thorn in the side of the Obama administration for months or years to come. Aiding the enemy during a time of war is generally considered one of the surest paths to a firing squad for obvious reasons, but it will leave the President in a sticky position.

If the military decides to drag Manning out back and shoot him – a distinct possibility – a significant portion of Barack Obama’s base will be in an uproar. They tend to be opposed to the death penalty in general, for starters. But Manning has also become something of a folk hero on the Left, allegedly helping – albeit indirectly – Julian Assange to “stick it to the man” and expose the various perceived evils of the American government. Allowing him to be executed would be a huge black eye for Obama with his base.

But if he steps in and commutes the sentence – assuming there is a legal mechanism for him to do so – then he will be seen as undercutting his own military establishment and substituting his judgment for their established practices and discipline. (Not to mention earning the tag of “going soft on traitors,” always a sure winner in an election year.)

Of course, the Army could let Obama off the hook and simply send Manning to Leavenworth for the rest of his natural life, but that’s not a great option either in terms of the political optics. Manning’s cheerleaders are already complaining about the “horrific” conditions he’s being held under and it’s only going to get worse after his conviction. (He might even lose his cable TV, library and newspaper privileges and private exercise yard.)

If convicted on the Big Count, Manning will never, ever be able to be transferred into the general military prison population and will, in all likelihood, spend the rest of his life in solitary confinement. Of all the scoundrels in legal history, traitors are probably the most unpopular with the enlisted rank and file. Dumped into a large crowd, Manning’s safety would be virtually impossible to assure. And that would leave the President with a “folk hero” of the Left locked up under the same – or worse – conditions than he’s in now for the rest of his time in office. This would be a burr under Obama’s saddle which would never go away.

It’s been a long and winding road, but it looks like we may be coming to the end of it. The Army moves at their own pace, as they should, but if they’ve filed charges now they probably feel like their case is just about ripe for presentation. Look for a court martial date to be announced in the coming weeks or months.

Emptywheel at Firedoglake:

While we can’t be sure, I suspect the reference in Charge II, Specification 3 is to this information about the surveillance of Assange.

If I’m right about that, then it means the government is charging Manning with providing WikiLeaks with information about the surveillance being conducted, in real time, on WikiLeaks. And it would make it easy to prove both that “the enemy” got the information and that Manning intended the “enemy” to get it.

So if the government maintains that, by virtue of being an intelligence target, WikLeaks qualifies as an “enemy,” then they can also argue that Manning intentionally gave WikiLeaks information about how the government was targeting the organization. Which would make their aiding the enemy charge easy to prove.

But I also think that opens up the government to charges that it is criminalizing democracy.

As I noted above, the government’s own report on WikiLeaks describes its purpose to be increasing the accountability of democratic or corrupt governments. The government, by its own acknowledgment, knows that WikiLeaks’ intent is to support democracy. Furthermore, while the intelligence report reviews the debate about whether WikiLeaks constitutes protected free speech or criminal behavior (without taking a side in that debate), in a discussion of WikiLeaks’ efforts to verify an NGIC report on the battle of Fallujah, the report acknowledges that WikiLeaks did the kind of thing journalists do.

Wikileaks.org and some other news organizations did attempt to contact the NGIC personnel by e-mail or telephone to verify the information.

[snip]

Given the high visibility and publicity associated with publishing this classified report by Wikileaks.org, however, attempts to verify the information were prudent and show journalist responsibility to the newsworthiness or fair use of the classified document if they are investigated or challenged in court.

So while the military, according to its own report, describes WikiLeaks as a threat to the armed forces, it also acknowledges that WikiLeaks has behaved, at times, as a journalistic organization.

Mind you, all of this is simply a wildarsed guess about what the government may mean with its invocation of the “enemy.” But if I’m right, it would mean the government was threatening Manning with life in prison because he leaked information about the government’s surveillance of what it admits is an entity that engages in journalistic behavior.

Doug Mataconis:

Personally, though, I don’t think it would be that difficult a position for the President. The number of people complaining about Manning’s treatment can basically be whittled down to the Glenn Greenwald segment of the President’s progressive base, and many of them don’t seem to understand that Manning’s rights as a military prisoner being prosecuted under the Uniform Code Of Military Justice are distinctly different from the rights he would be entitled to as a civilian defendant in a civilian court. Additionally, many of them don’t seem to think that he did anything wrong even if the charges against him are true. I dare to say that they do not represent a majority of the Democratic Party, and certainly not a majority of the country. If Bradley Manning is convicted of aiding the enemy, then I doubt many Americans are going to care what happens to him.

There’s one fact buried in the new charges that I’ve only seen reported in the MSNBC story on them, though:

Pentagon and military officials also report that investigators have made no direct link between Manning and WikiLeaks founder Julian Assange.

This has been the case for months, despite digging by federal investigators in all directions, and it makes the probability that any charges will ever be sustained against Wikileaks, Julian Assange, or any related individuals, seem very remote indeed.

Jane Hamsher at Firedoglake:

Bradley Manning’s attorney, David Coombs, writes about the true reason Bradley Manning is being stripped each night and forced to report naked each morning in the same way prisoners were tortured at Abu Graib:

On Wednesday March 2, 2011, PFC Manning was told that his Article 138 complaint requesting that he be removed from Maximum custody and Prevention of Injury (POI) Watch had been denied by the Quantico commander, Colonel Daniel J. Choike.  Understandably frustrated by this decision after enduring over seven months of unduly harsh confinement conditions, PFC Manning inquired of the Brig operations officer what he needed to do in order to be downgraded from Maximum custody and POI.  As even Pentagon Press Secretary Geoff Morrell has stated, PFC Manning has been nothing short of “exemplary” as a detainee.  Additionally, Brig forensic psychiatrists have consistently maintained that there is no mental health justification for the POI Watch imposed on PFC Manning.  In response to PFC Manning’s question, he was told that there was nothing he could do to downgrade his detainee status and that the Brig simply considered him a risk of self-harm.  PFC Manning then remarked that the POI restrictions were “absurd” and sarcastically stated that if he wanted to harm himself, he could conceivably do so with the elastic waistband of his underwear or with his flip-flops.

Without consulting any Brig mental health provider, Chief Warrant Officer Denise Barnes used PFC’s Manning’s sarcastic quip as justification to increase the restrictions imposed upon him under the guise of being concerned that PFC Manning was a suicide risk.  PFC Manning was not, however, placed under the designation of Suicide Risk Watch.  This is because Suicide Risk Watch would have required a Brig mental health provider’s recommendation, which the Brig commander did not have.  In response to this specific incident, the Brig psychiatrist assessed PFC Manning as “low risk and requiring only routine outpatient followup [with] no need for … closer clinical observation.”  In particular, he indicated that PFC Manning’s statement about the waist band of his underwear was in no way prompted by “a psychiatric condition.”

While the commander needed the Brig psychiatrist’s recommendation to place PFC Manning on Suicide Risk Watch, no such recommendation was needed in order to increase his restrictions under POI Watch.  The conditions of POI Watch require only psychiatric input, but ultimately remain the decision of the commander.

Given these circumstances, the decision to strip PFC Manning of his clothing every night for an indefinite period of time is clearly punitive in nature.  There is no mental health justification for the decision. There is no basis in logic for this decision.  PFC Manning is under 24 hour surveillance, with guards never being more than a few feet away from his cell.  PFC Manning is permitted to have his underwear and clothing during the day, with no apparent concern that he will harm himself during this time period.  Moreover, if Brig officials were genuinely concerned about PFC Manning using either his underwear or flip-flops to harm himself (despite the recommendation of the Brig’s psychiatrist) they could undoubtedly provide him with clothing that would not, in their view, present a risk of self-harm.  Indeed, Brig officials have provided him other items such as tear-resistant blankets and a mattress with a built-in pillow due to their purported concerns.

This is just vile.  The former brig commander, James Averhart, violated military rules by putting Manning on suicide watch as punishment, and was subsequently replaced by Denise Barnes.  Now she’s stripping him naked to punish him for a sarcastic quip. Who is she, Nurse Ratched? Abusing someone’s mental health classification in order to subject them to torture “for their own good” is sick and sadistic, reminiscent of Soviet gulags.

Maybe she wants to become his “god.”

Alana Goodman at Commentary:

First, Lt. Brian Villiard, a Marine spokesman, confirmed that Manning’s clothes were taken from him, though he didn’t give many details of the incident, except to say that it wasn’t done for punitive reasons.

“It would be inappropriate for me to explain it,” Villiard told the New York Times. “I can confirm that it did happen, but I can’t explain it to you without violating the detainee’s privacy.”

This isn’t the first time that Manning’s lawyer has asserted that the private suffered abuse in prison, and it likely won’t be the last. It’s typical of attorneys to claim that their clients are mistreated in prison, and in a case like Manning’s, these types of allegations will be eaten up by his supporters.

But based on Villiard’s statement, and the timeline of the incident, it sounds like Manning’s clothes may have been taken from him owing to suicide concerns. The Army private was previously put on suicide watch in prison. His reaction to the new charges against him could have military officials apprehensive about his mental state.

Doug Mataconis:

As Glenn Greenwald notes, there really only seems to be one purpose behind what Manning is being subjected to:

Let’s review Manning’s detention over the last nine straight months: 23-hour/day solitary confinement; barred even from exercising in his cell; one hour total outside his cell per day where he’s allowed to walk around in circles in a room alone while shackled, and is returned to his cell the minute he stops walking; forced to respond to guards’ inquiries literally every 5 minutes, all day, everyday; and awakened at night each time he is curled up in the corner of his bed or otherwise outside the guards’ full view.  Is there anyone who doubts that these measures — and especially this prolonged forced nudity — are punitive and designed to further erode his mental health, physical health and will?  As The Guardian reported last year, forced nudity is almost certainly a breach of the Geneva Conventions; the Conventions do not technically apply to Manning, as he is not a prisoner of war, but they certainly establish the minimal protections to which all detainees — let alone citizens convicted of nothing — are entitled.

Moreover, Greenwald points out, correctly I think, the media seems to be giving the Obama Administration a pass here:

I’ll say this again:  just fathom the contrived, shrieking uproar from opportunistic Democratic politicians and their loyalists if it had been George Bush and Dick Cheney — on U.S. soil — subjecting a whistle-blowing member of the U.S. military to these repressive conditions without being convicted of anything, charging him with a capital offense that statutorily carries the death penalty, and then forcing him to remain nude every night and stand naked for inspection outside his cell.  Feigning concern over detainee abuse for partisan gain is only slightly less repellent than the treatment to which Manning is being subjected.

Indeed. It’s understandable, to be honest, why the right wouldn’t care all that much about how Private Manning is being treated. If this were happening under a Republican, though, the left would be united in outrage. Now, their silence is telling

Make no mistake about it. I do not consider Bradley Manning a hero in any sense of the word. Even if it were the case that much of the material that Manning stole from military computers should not have been classified, or really wasn’t all that important (and much of it wasn’t in the end), that isn’t a decision that a Private in the Army has a right to make. If the charges against him are true, he violated orders, accessed systems he had no right to access, and stole information that he had no right to take off base. If he’s convicted of these charges, he deserves to be punished to the fullest extent of the law. While he’s awaiting trial, though, and even after he’s convicted, he still must be treated humanely and, at present, Manning is receiving worse treatment than a Prisoner Of War would, and the only purpose behind it seems to be to break him psychologically. That’s simply unacceptable.

Jazz Shaw:

But can this treatment really be justified? There are two points to address on this front.

First and most simply put, Manning made the comment about being able to kill himself with his underwear, sarcastic or not. Can you imagine what would be said if the brig commander did nothing and then he actually did turn up dead in his cell by his own waistband? It would be a movable feast for the media and several careers would come to an abrupt end. How does the commander ignore something like that?

The second point is a bit more complicated and far less clear, and one that we’ve touched on here in the past. It boils down to some of the fundamental differences between civilian society and the military community. Just as civilians, used to all their freedoms of free speech, etc. don’t understand the restrictions on military personnel, those familiar with the civilian justice system are frequently shocked by many of the “unofficial” aspects of the U.C.M.J. Lots of things like this go on all the time in the military, or at least they used to back in the day. But normally you don’t have the civilian press watching and reporting on it.

Does that make it right? I leave that to the judgment of the reader.

Also, life in the military in general is just a bit more physical and harsh than in the civilian world. A lot of things happen which would probably shock many of you who have never served. In the Navy, for example, there is an old tradition of an initiation rite of passage the first time a sailor crosses the equator on a war ship. It is the time when you graduate from being a “pollywog” (or just “wog” for short) to being a “shellback.” Trust me, it’s an ordeal, usually lasting 24 hours or more.

The third time I made the passage, two enlisted men wound up in sick bay with broken arms. Everyone got to experience the joys of crawling through plastic chutes filled with garbage, rotting food and bilge water, all the while being “herded” by shellbacks wielding foot long lengths of fire hose, loving called, “shillelaghs.” (During my own initiation it took more than a week before the bruises finally faded.) And this is all for your friends who have done nothing wrong.

I’ll leave it for one of the veteran submarine sailors to tell you about the grand old tradition of having your dolphins “tacked on” if they wish to do so in comments.

So I suppose our final question is, does any of this make it acceptable for Manning to be treated in this fashion, either to cover the brig commander’s butt or for the sake of teaching a lesson to somebody mouthing off to their superiors? I really don’t know. Maybe we do need to shine a light on this and review military procedures, both official and “under the covers.” But I do know that life in the military community is a lot different than in the civilian world, and having lived it for a number of years myself, this story honestly didn’t shock me at all.

Andrew Sullivan:

There is only one word to describe the treatment of this model prisoner: sadism. Glenn Greenwald has been following the case closely and has two disturbing must-reads here and here. We all hoped that under Obama, brutal treatment of military prisoners and lies about it would end. In this case, they haven’t.

Megan McArdle:

I understand that Bradley Manning has probably done something very wrong, for which, if guilty, he deserves a hefty jail sentence and the contempt of his fellow citizens.  But this is not what a decent country does to its citizens.

All Your Best Blog Posts On That Economic Policy Institute’s Study

Ezra Klein:

“Republicans say that public-sector employees have become a privileged class that overburdened taxpayers,” write Karen Tumulty and Brady Dennis. The question, of course, is whether it’s true. Consider this analysis the Economic Policy Institute conducted comparing total compensation — that is to say, wages and health-care benefits and pensions — among public and private workers in Wisconsin. To get an apples-to-apples comparison, the study’s author controlled for experience, organizational size, gender, race, ethnicity, citizenship and disability, and then sorted the results by education

[…]

If you prefer it in non-graph form: “Wisconsin public-sector workers face an annual compensation penalty of 11%. Adjusting for the slightly fewer hours worked per week on average, these public workers still face a compensation penalty of 5% for choosing to work in the public sector.”

Jim Manzi at The American Scene:

Klein links to an executive summary to support his claim, but reading the actual paper by Jeffrey H. Keefe is instructive. Keefe took a representative sample of Wisconsin workers, and built a regression model that relates “fundamental personal characteristics and labor market skills” to compensation, and then compared public to private sector employees, after “controlling” for these factors. As far as I can see, the factors adjusted for were: years of education; years of experience; gender; race; ethnicity; disability; size of organization where the employee works; and, hours worked per year. Stripped of jargon, what Keefe asserts is that, on average, any two individuals with identical scores on each of these listed characteristics “should” be paid the same amount.

But consider Bob and Joe, two hypothetical non-disabled white males, each of whom went to work at Kohl’s Wisconsin headquarters in the summer of 2000, immediately after graduating from the University of Wisconsin. They have both remained there ever since, and each works about 50 hours per week. Bob makes $65,000 per year, and Joe makes $62,000 per year. Could you conclude that Joe is undercompensated versus Bob? Do you have enough information to know the “fundamental personal characteristics and labor market skills” of each to that degree of precision? Suppose I told you that Bob is an accountant, and Joe is a merchandise buyer.

Even if Bob and Joe are illustrative stand-ins for large groups of employees for whom idiosyncratic differences should average out, if there are systematic differences in the market realities of the skills, talents, work orientation and the like demanded by accountants as compared to buyers, then I can’t assert that either group is underpaid or overpaid because the average salary is 5% different between these two groups.

And this hypothetical example considers people with a degree from the same school working in the same industry at the same company in the same town, just in different job classifications. Keefe is considering almost any full-time employee in Wisconsin with the identical years of education, race, gender, etc. as providing labor of equivalent market value, whether they are theoretical physicists, police officers, retail store managers, accountants, salespeople, or anything else. Whether they work in Milwaukee, Madison, or a small town with a much lower cost of living. Whether their job is high-stress or low-stress. Whether they face a constant, realistic risk of being laid off any given year, or close to lifetime employment. Whether their years of education for the job are in molecular biology, or the sociology of dance. Whether they do unpredictable shift work in a factory, or 9 – 5 desk work in an office with the option to telecommute one day per week.

Keefe claims – without adjusting for an all-but infinite number of such relevant potential differences between the weight-average public sector worker and the weight-average private sector worker – that his analysis is precise enough to ascribe a 5% difference in compensation to a public sector compensation “penalty.”

And his use of the statistical tests that he claims show that the total public-private compensation gap is “statistically significant” are worse than useless; they are misleading. The whole question – as is obvious even to untrained observers – is whether or not there are material systematic differences between the public and private employee that are not captured by the list of coefficients in his regression model. His statistical tests simply assume that there are not.

I don’t know if Wisconsin’s public employees are underpaid, overpaid, or paid just right. But this study sure doesn’t answer the question.

Jason Richwine at Heritage:

Manzi is referring to “the human capital model,” which holds that workers are paid according to their skills and personal characteristics, like education and experience. Most scholars—including Andrew, myself, and Heritage’s James Sherk—use it to compare the wages of the public and private sectors. If the public sector still earns more than the private after controlling for a variety of factors, then it is said to be “overpaid” in wages. But because we cannot control for everything, Manzi is saying, the technique is not very useful.

His critique is reasonable enough, but overwrought. The human capital model has been around for three decades, and it is unlikely that economists have failed to uncover important variables that would drastically change its results. Nevertheless, there are other techniques that address most of Manzi’s concerns. An upcoming Heritage Foundation report uses a “fixed effects” approach, which follows the same people over time as they switch between the private and federal sectors. By looking at how the same person’s wage changes when he moves between sectors, a lot of unobservable traits—intelligence, extroversion, etc.—are accounted for.

In order to capture fringe benefits as well as wages, economists have also used quit rates and job queues. If public workers quit less often than private workers, we can infer (with some qualifications, of course) that there are not better options available to them. Similarly, if many more applicants apply for government jobs than there are positions—creating a “queue”—then we know that government jobs are highly desirable. Of course no methodology is perfect, but the scholarly literature can tell us a lot about pay comparisons. Andrew and I discussed this work in detail in a recent Weekly Standard article.

John Sides:

From one perspective, sure, I agree that a statistical analysis of the sort described above based on observational data can never be a true direct comparison. (Not to mention the difficulty of classifying people like me who work in the quasi-public sector.) But if you take things from the other direction, this sort of study can be valuable.

What do I mean by “the other direction,” you might ask? I mean, suppose you start, as people do, with raw numbers: Salary plus benefits = X% of the state budget. The state has Y number of employees. Average income of all Wisconsinites is Z. Then you start adjusting for hours worked, ages of the employees, etc etc, and . . . you end up with Keefe’s analysis.

My point is, people are going to make some comparisons. Comparisons aren’t so dumb as long as you realize their limitations. And once you start to compare, it makes sense to try to compare comparable cases. Taking Manzi’s criticism too strongly would leave us in the position of allowing raw numbers, and allowing pure unblemished randomized experiments, but nothing in between.

In summary:

1. Manzi’s right to emphasize that a simplistic interpretation of regression results can be misleading.

2. Regressions of observational data can be a good way of going beyond raw comparisons and averages.

Some of this discussion reminds me of the literature on the wage premium for risk, where people run regressions on salaries for comparable jobs in order to estimate how much people need to be paid to risk death or injury.. Based on my reading is that these studies can’t be trusted: if you’re not careful, you can easily estimate the value of life to be negative–after all, the riskiest jobs (lumberjack, etc.) tend to pay poorly, while the best-paying jobs (being Bill Gates, etc.) are pretty safe gigs. With care, you can get those regressions to give reasonable coefficients in the range of $1 million per life, but I don’t really see these numbers as meaning anything at all; they’re just the results of fiddling with the models until something reasonable comes out. I’m not saying that the people who do these analyses are cheating, just that they want reasonable results but the models seem too open-ended to be a good measure of risk premiums.

Jonathan Cohn at TNR:

Am I certain Keefe is right? No. Having spent some time reporting on public and private sector compensation before, I can tell you that there is a lot of disagreement over the proper way to adjust the raw compensation figures to account for variables like age, education, and so on. (The debate is as much philosophical as methodological: Some conservatives argue that public employers put an artificial premium on graduate education, effectively paying more for degrees that don’t make workers better qualified.) I haven’t seen a specific refutation of Keefe’s report on Wisconsin, but if you want to read an analysis that suggests public workers, in general, are over-compensated, Andrew Biggs of the American Enterprise Institute has done work along those lines–and has a new article in the Weekly Standard summarizing his views.

But I wonder if this whole debate misses the point. Suppose public workers really do make more than private sector workers. Who’s to say that the problem is public workers making too much, rather than private sector workers making too little?

Andrew Biggs at AEI:

While we’ll have a longer piece out on Wisconsin pay soon, I figured that in response to Cohn’s post I’d raise a couple issues regarding EPI’s report.

First, we’ve found a lower salary penalty for Wisconsin public employees than EPI did (around -5 percent versus -11 percent in EPI’s study). It’s not clear what’s driving the difference, since we’re using the same data, but that’s something to track down. It’s also worth noting that both our calculations and EPI’s control for firm size; this means that essentially we’re comparing Wisconsin public employees not to all private workers, but to employees at the very largest Wisconsin firms, who tend to pay more generous salaries and benefits. Whether to control for firm size is an open question, since if a given public employee didn’t work for the government there’s a good chance he wouldn’t work at a large private firm. But readers at least should be aware of the issue.

Second, the benefits shown in the EPI report aren’t actually for Wisconsin alone. They’re an average for the “East North Central Census Division,” which comprises Illinois, Indiana, Michigan, Ohio, and Wisconsin. Because the Bureau of Labor Statistics doesn’t publish compensation data at the state level (due to small sample sizes) regional figures are the best we’ve got. The problem is, if Wisconsin government workers get relatively better benefits than public employees in other states—which seems to be part of the argument that Governor Walker is making—then these figures will understate true compensation. For instance, in practice Wisconsin public employees make essentially no contribution toward their pensions (formally they must contribute around 5 percent of pay, but their employers almost always cover it). Nationally, public employees contribute an average of around 5.7 percent of pay to their pensions.

Third, the benefit measures in the EPI study are based on what employers pay, not what employees actually receive. This matters for public-sector defined-benefit pensions, which use much more optimistic investment return assumptions than private pensions (a 7.8 percent assumed return in the Wisconsin Retirement System, versus around a 4 percent riskless return in U.S. Treasury securities) and fund their benefits accordingly. Most economists think public pensions are wrong to make these assumptions, but what matters is that employees effectively receive those higher returns whether the investments pan out or not. Adjusting for the differences in implicit returns to pensions would increase total Wisconsin compensation by around 4 percent.

Fourth, and related, is that the EPI study omits the value of retiree health benefits, which most public workers receive but most private employees don’t. (Some very large firms still offer retiree health benefits, but they’re increasingly rare and increasingly stingy.) The value of retiree healthcare can vary significantly. For instance, most run-of-the-mill Wisconsin state retirees are offered the right to buy into the employee plan. This provides an implicit subsidy, since they’re buying at rates calculated for the working-age population rather than their own health risk. The value of this is equal to a percent or so of extra pay every year. Other employees, such as Milwaukee teachers, have almost all their premiums paid for them. Actuarial reports list these protections as costing over 17 percent of salaries, meaning that for these workers EPI’s approach would miss a lot of benefit income. In addition, even these actuarial studies value retiree health coverage at employer cost, not the benefit to the employee. A retired 60-year-old purchasing coverage in the individual market would pay significantly more than the reported cost of his public-sector retiree health plan, because individual coverage costs more than group coverage. Some studies place the cost differential at around 25 percent; the Congressional Budget Office’s health insurance model appears to assume something larger: they say that “once differences in the characteristics of nongroup versus ESI [employer sponsored insurance] policyholders are considered and different loading costs are considered, a typical nongroup policy has roughly 60 percent of the relative plan value of an average ESI policy. That finding is supported by a recent survey of nongroup and ESI premiums and relative plan values in California.” So we know something is being missed and we have good reason to believe that even when we find actuarial reports calculating the cost of retiree health coverage, it’s still an underestimate. Unfortunately, there’s no central data source for retiree health benefits, meaning there’s a lot of digging to get a correct answer.

Fifth, the EPI report doesn’t calculate the value of public-sector job security. In a given year, a state/local worker has less than one-third the chance of being fired or laid off as a private worker. There’s a long history in economics (back to Adam Smith, actually) of thinking in terms of “compensating wage differentials,” although it’s only in the last 20 years or so that there’s been much progress in measuring them. We took a somewhat different approach, of using financial tools to calculate the price of an insurance policy that would protect against job loss and counting the value of that insurance toward public-sector pay. In theory each should produce the same answer, but as always things are messy. There may be a way of using CPS data to get on top of this, though.

At the end of the day, I just don’t think we can make any final conclusions on state/local pay because so much of the data, particularly on the benefits end, is still too loosey-goosey. There’s just more work to be done. (At the federal level, though, the measured overpayment is so large that I’m willing to say I’m convinced.)

Ezra Klein, responding to Manzi:

Jim Manzi has posted a critique of the Economic Policy Institute’s study (PDF) suggesting that Wisconsin’s public-sector workers are underpaid relative to their private-sector counterparts. It basically boils down to the argument that this sort of thing is hard to measure. The study controls for most every observable worker characteristic that we can imagine controlling for. But there are, Manzi says, an “all-but-infinite” number of differences beyond that. Perhaps going into the public sector says something about a person’s level of ambition, or ability to take risks and tolerate stress, or tendency to innovate — something that, in turn, makes the private-sector worker worth more or less to the economy.

And fair enough. Maybe there is some systemic difference between Hispanic women with bachelor’s degrees and 20 years of work experience who put in 52-hour weeks in the public sector and Hispanic women with bachelor’s degrees and 20 years of work experience who put in 52-hour weeks in the private sector. If anyone has some evidence for that, I’m open to hearing it. But the EPI study is aimed at a very specific and very influential claim: that Wisconsin’s state and local employees are clearly overpaid. It blows that claim up. Even in Manzi’s critique, there’s nothing left of it. So at this point, the burden of proof is on those who say Wisconsin’s public employees make too much money.

Reihan Salam on Klein’s response:

I was struck by this sentence: “Even in Manzi’s critique, there’s nothing left of it.” I’ve known Jim for many years and I’ve read just about everything he’s written, including a few things that haven’t been published. I have never seen Jim write that Wisconsin’s state and local employees are clearly overpaid, or indeed that any employees are clearly overpaid. There are many right-wingers who’ve said that, but it’s not the way Jim has ever thought about the issue as far as I know.

I don’t want to put words in Jim’s mouth, here’s what I consider a slightly more Manzian take: the problem with public sector compensation is that there is often very little clarity in terms of whether or not taxpayers are getting a good deal. One of the big reasons right-wingers are so hot for merit pay, based on my limited experience, is that they’re generally pretty comfortable with the idea of at least some public workers making much more than they are making now, provided other workers who’d be willing to work for less because they’re not likely to attract better offers are either paid less or fired.

Let me underline this point: Some public workers, like really great federal procurement officers, might very well be “underpaid,” in that they’re always on the verge of jumping ship to better opportunities, they’re stressed about money all the time when they could be using their awesome Jedi procurement skills to save taxpayers money, and we could attract other awesome people to do this job if only we weren’t such tightwads. Others might be “overpaid,” in that there are people who really like the stability of working for a “firm” that will, short of invasion and military conquest, probably exist for at least another ten years and would be open to working for a bit less money if they had no choice in the matter. Do you think we have more of the former than the latter? That’s where analyses like Keefe’s come in, to offer a rough guide to the conversation.

I would love for conservatives to do a better job of talking about public sector compensation. The basic conflict is whether we think of creating more jobs, work effort, etc., as our goal, or if our goal is to deliver a service. If the latter is our goal, we presumably want to do it in the most cost-effective way, so that we can devote our time, money, and energy to other things we like doing more. By extension, this suggests that we really do want to pay people as little as we can to get the things that we want. Or:

Reihan Salam says:

We really do want to pay people as little as we can to get the things that we want.

What a bozo!

This relentless process of delivering services and goods for less money really does destroy jobs, but, in theory at least, it allows us to create new ones. We happen to be living in a historical moment when there’s not a lot of faith in that idea, partly because we’ve seen a steady decline in labor force participation rates due to tangle of implicit marginal tax rates, an incarceration crisis, interrelated social pathologies, and much else. I’m biased in favor of believing that we will create new job opportunities because almost everyone I’m close to works in jobs that they could not have done in the way they do them now even ten years ago. The goal is to use good public policy to bridge over transitional periods, and, by the way, a dynamic market economy is always in a transitional period.

Manzi responds to Klein:

Klein is correct to say that my post “basically boils down to the argument that this sort of thing is hard to measure.” But he then argues that the purpose of the original study was not to demonstrate that public sector workers are underpaid, but rather to rebut the claim that they are overpaid:

[T]he EPI study is aimed at a very specific and very influential claim: that Wisconsin’s state and local employees are clearly overpaid. It blows that claim up.

That may have been the author’s motivation, but here is the final conclusion of the executive summary of the report:

[P]ublic sector workers in Wisconsin earn less in annual or hourly compensation than they would earn in the private sector.

The report makes a positive claim that it has determined a compensation “penalty” for working in the public sector, and repeats it many times. My argument was that this report does not establish whether or not this claim is true.

By the same logic, it also fails to “blow up” the claim that Wisconsin’s public workers are overpaid. The methodology is inadequate to the task of establishing whether these workers are overpaid, underpaid, or paid perfectly. As the last paragraph of my post put it:

I don’t know if Wisconsin’s public employees are underpaid, overpaid, or paid just right. But this study sure doesn’t answer the question.

Statistician and political scientist Andrew Gelman has a very interesting response to my post, in which he agrees that this conclusion “sounds about right,” but cautions that the study is not “completely useless either” because this kind of adjusted comparison is better than simply comparing raw averages between public and private sector workers. I agree with that entirely. But that is, of course, a very different thing than saying that these adjustments create sufficient precision to support the bald statement, made in the report, that the author has analytically established that there is a “penalty” for working in the public sector.

Megan McArdle:

It’s obvious that this study doesn’t control for everything we can imagine, because it doesn’t even control for the matters that are of central dispute in Wisconsin: protection from being fired.  This is, as people on both sides keep noting, so extraordinarily valuable that workers are willing to give up quite a lot to get it.  And of course, a job that offers this sort of protection is likely to attract workers who especially value it.  All government jobs offer this perk, which is valuable to the workers and costly to the employers; ceteris paribus, I’d expect that other compensation would be lower to compensate.

Obviously, it also doesn’t control in any way for other job or worker characteristics that effect compensation; jobs working for state and local government are systematically different from other sorts of jobs, because so much of what the government does isn’t done by anyone else.  Though, oddly, for the teachers at the heart of this dispute, we do have a good comparison: private school teachers. And as I understand it, public school teachers have higher wages, and much better benefits, than private school teachers.

To which I expect the union’s boosters will say, “But jobs in private school are much more enjoyable–they don’t have to teach the difficult kids!”  Indeed, they’re right.  Which is exactly the point: there’s huge unobserved variable bias here.

There’s also the fact that the EPI study seems to be looking at means, which are going to be dragged upwards by a small number of highly compensated workers, particularly in the educated group.  But state and local wages are capped.  Meanwhile, some of the highest paid jobs in the private sector are in areas like commission sales, which have no counterpart in government. That means that the median worker is probably making much more than the median worker in the private sector.  This may not be true in some lucrative fields such as law and medicine–but even there, we tend to compare government lawyers to the highly paid people at white shoe firms or corporations, not the legions of struggling will-drafters and ambulance-chasers.

You can argue, of course, that this is an ideologically much more attractive income distribution.  Which highlights, I think, the core difference between the way people like Manzi and I look at this, and the way that progressives do.  I don’t think of state employment as a way to create, in miniature, my ideal labor utopia.  I think of it as a way to procure services.  I define people as being “overpaid” not if they are paid more than someone with a similar level of education, but if they are paid more than I need to entice to pay to attract adequate workers.  To analyze that, looking at medians is probably somewhat more instructive than looking at means.

Of course I agree with Manzi that this still doesn’t really tell us whether state workers are overpaid, underpaid, or just-right-paid.  I suspect that the answer is probably “both”–adjusting for worker quality, the median government worker is probably overpaid, while in skilled specialties, salaries are probably not attracting as much of the top-flight talent as we’d ideally like.  (This is why I have been advocating, futilely, that we make it possible to pay SEC employees multiples of what the President of the United States makes.)  But as Manzi, who does this stuff for a living, will undoubtedly tell you, setting compensation is a really hard problem that no one’s got a very good handle on.  So that’s just a suspicion, based on my experience of state bureaucracies, and my best guess at the incentive effects of the current structure.  I don’t have enough data to back me up.  And neither does EPI.

More Manzi:

Have I then set up a nihilistic position that we can never know anything tolerably well because I can just keep raising these points that might matter, but are not included in the model? In effect, have I put any analyst in the impossible position of proving a negative? Not really. Here’s how you measure the accuracy of a model like this without accepting its internal assumptions: use it to make predictions for future real world experiments, and then see if its predictions are right or not. The formal name for this is falsification testing. This is what’s lacking in all of the referenced arguments in support of these models.

Human capital models, fixed effects models, and other various pattern-finding analyses are useful to help build theories, but a metaphysical debate about the “worth” of various public versus private sector jobs based upon them is fundamentally unproductive. For one thing, it won’t ever end. And as Megan McArdle correctly put it, the practical question in front of us is whether we the taxpayers can procure the public work that we want at a lower cost (or more generally, though less euphoniously, whether we are at the practical optimum on the cost-quality trade-off). If you want an analytical answer to this question, here is what I would do: randomly select some jurisdictions, job classifications or other subsets of public workers, cut their compensation, and then see if we can observe a material reduction in net value of output in these areas versus the control areas. If not, cut deeper. And keep cutting deeper, until we find our indifference point.

There would be obvious limitations to this approach. First, generalizing the results of initial experiments is not straightforward. Second evaluating output is not straightforward for many areas of government. But at a minimum, and unlike the world of endlessly dueling regressions, this would at least let us see the real-world effects of various public compensation levels first-hand, and allow the public to make an informed decision about whether they prefer the net effect of a change to public sector compensation or not.

Talkin’ About Adding The Value

Grace Snodgrass at Huffington Post:

One day soon, my name and performance evaluation could be printed in your morning newspaper. It will tell you that I’m a teacher who has clear strengths and weaknesses in helping my students advance academically.

But as valuable as my so-called “Teacher Data Report” is in helping me identify these areas, it really doesn’t say much about the overall quality of my teaching. And printing the results — as an NYC judge just gave the city the right to do — will do little to make me, or any of my colleagues, better teachers. At least, not right away. What will help is the Department of Education and the teachers’ union putting aside their differences and improving these reports so that teachers like me receive good information about our performance and clear steps towards achieving our classroom goals.

As an educator, I want to be evaluated. I know that my students’ success hinges on the quality of my teaching. The Department of Education is actually on the right track with the “value-added” method it uses to calculate the impact teachers have on their students’ academic growth. Value-added compares a student’s predicted performance on standardized assessments with how he or she actually performs.

Dana Goldstein and Megan McArdle on Bloggingheads

Jim Manzi at The Corner:

Recently, Megan McArdle and Dana Goldstein had a very interesting Bloggingheads discussion that was mostly about teacher evaluations. They referenced some widely discussed attempts to evaluate teacher performance using what is called “value-added.” This is a very hot topic in education right now. Roughly speaking, it refers to evaluating teacher performance by measuring the average change in standardized test scores for the students in a given teacher’s class from the beginning of the year to the end of the year, rather than simply measuring their scores. The rationale is that this is an effective way to adjust for different teachers being confronted with students of differing abilities and environments.

This seems like a broadly sensible idea as far as it goes, but consider that the real formula for calculating such a score in a typical teacher value-added evaluation system is not “Average math + reading score at end of year – average math reading score at beginning of year,” but rather a very involved regression equation. What this reflects is real complexity, which has a number of sources. First, at the most basic level, teaching is an inherently complex activity. Second, differences between students are not unvarying across time and subject matter. How do we know that Johnny, who was 20 percent better at learning math than Betty in 3rd grade is not relatively more or less advantaged in learning reading in fourth grade? Third, an individual person-year of classroom education is executed as part of a collective enterprise with shared contributions. Teacher X had special needs assistant 1 work with her class, and teacher Y had special needs assistant 2 working with his class — how do we disentangle the effects of the teacher versus the special ed assistant? Fourth, teaching has effects that continue beyond that school year. For example, how do we know if teacher X got a great gain in scores for students in third grade by using techniques that made them less prepared for fourth grade, or vice versa for teacher Y? The argument behind complicated evaluation scoring systems is that they untangle this complexity sufficiently to measure teacher performance with imperfect but tolerable accuracy.

Any successful company that I have ever seen employs some kind of a serious system for evaluating and rewarding / punishing employee performance. But if we think of teaching in these terms — as a job like many others, rather than some sui generis activity — then I think that the hopes put forward for such a system by its advocates are somewhat overblown.

There are some job categories that have a set of characteristics that lend themselves to these kinds of quantitative “value added” evaluations. Typically, they have hundreds or thousands of employees in a common job classification operating in separated local environments without moment-to-moment supervision; the differences in these environments make simple output comparisons unfair; the job is reasonably complex; and, often the performance of any one person will have some indirect, but material, influence on the performance of others over time. Think of trying to manage an industrial sales force of 2,000 salespeople, or the store managers for a chain of 1,000 retail outlets. There is a natural tendency in such situations for analytical headquarters types to say “Look, we need some way to measure performance in each store / territory / office, so let’s build a model that adjusts for inherent differences, and then do evaluations on these adjusted scores.”

I’ve seen a number of such analytically-driven evaluation efforts up close. They usually fail. By far the most common result that I have seen is that operational managers muscle through use of this tool in the first year of evaluations, and then give up on it by year two in the face of open revolt by the evaluated employees. This revolt is based partially on veiled self-interest (no matter what they say in response to surveys, most people resist being held objectively accountable for results), but is also partially based on the inability of the system designers to meet the legitimate challenges raised by the employees.

Noah Millman at The American Scene:

I do want to add a few additional points of my own:

1. Evaluations establish the principle that there is such a thing as performance in the first place. A great deal of discussion nowadays in education revolves around the idea that what we need to “fix the schools” is great teachers. But if that’s what we need, we’ll never do it. What we need, instead, are mechanisms for getting marginally better performance, year after year, from a teaching pool that remains merely adequate.

One bit of low-hanging fruit for achieving that goal, meanwhile, is the ability to dismiss the bottom 5% of teachers in terms of performance. Not only are these teachers failing comprehensively in their own classrooms, but their mere presence has a corrosive effect on an entire organization – on the teachers, on the students, on the management of the school. But right now, firing these teachers is essentially impossible. For all the difficulty of doing a rigorous evaluation in order to improve teaching performance across the board, I suspect it is a whole lot easier to identify the worst teachers in the school. If that could be done, the pressure to be able to terminate them would be significant, and that could do a lot to improve school performance right there.

2. Value-added metrics wind up punishing perfectly good but not spectacular schools with above-average student bodies. It may be that these schools should suffer reputationally, because the staff is not actually delivering as much value as they should. But high-stakes standardized testing actually pushes these schools to destroy themselves, wiping out the programs that actually do deliver value to these high-aptitude students and instead focusing on teaching to the tests.

That’s not an argument against using value-added metrics as such. It’s an argument that they need to be used intelligently, with some understanding of what “value-added” means at different points on the performance spectrum. But that, in turn, would require admitting that different standards are needed for students with different aptitude, which, in turn, is extremely difficult for our education system to admit. (And, admittedly, it’s a problem in corporate cultures that cross widely different customer bases as well. How well would Wal-Mart manage Tiffany?)

3. Nobody goes into teaching “for the money” – that is to say, teachers in aggregate make significantly less than people with their educational credentials and academic aptitude could make in other professions. So monetary rewards are useful primarily going to prove useful as signaling devices. There’s a lot of evidence coming in from high-performance charter schools suggesting that a monetary reward system tied too closely to evaluations actually degrades performance, because it gets teachers focused on the evaluations rather than on the performance. The evaluations should primarily be used as a diagnostic, to identify correctable deficiencies in teacher performance so they can be corrected through staff development, and to identify gross deficiencies in teacher performance so the teachers in question can be dismissed.

4. Similarly, across a system, what evaluations are useful is for research purposes and to drive market discipline. Evaluations of a school should be very useful to parents seeking to select a school for their child. Schools that consistently achieve high valuations (particularly for value-added metrics) should be objects of study by administrators and others looking to replicate that performance in lower-performing but still basically well-run schools. The least-important use of the evaluation is to directly “reward” or “punish” a school bureaucratically – and, indeed, if that becomes the primary use then the school is likely to start focusing overwhelmingly on the evaluation process and lose sight of actual performance. I’ve seen this happen over and over in New York City schools; it’s not a theoretical question.

Conor Friedersdorf at Sullivan’s place:

And it helps explain the inherent tension between teachers unions and the rest of us. Unions exist to protect the interests of their members. Even in the best case scenario, that means lobbying for an evaluation system that maximizes fairness to the people being evaluated. As citizens, our primary goal should be creating the best education system possible, even if doing so sometimes means (for example) that the teacher most desserving of a bonus doesn’t get one. Saying that there is a conflict between the common good and the ends of teachers unions isn’t a condemnation of the latter. It’s just a fact. And everyone seems to understand the basic concept if you talk about prison guard unions.

Reihan Salam:

Part of what makes me nervous is that productivity varies dramatically within industries. It is very common for comparable factories at the 90th percentile produce four times as much as factories at the 10th percentile. Moreover, the scorecards and shortcuts used by factories at the 90th percentile wouldn’t necessarily work for those at the 10th percentile. Managerial insights are usually embedded in a complex tangle on personalities and practices that can’t easily be replicated. This is natural, and I’d say that I’d much rather see a few firms race ahead than allow all firms to remain mired at the low end of the productivity spectrum.  Suffice it to say, this is not the ethic that governs how we generally think about public schools.

In a time when at least half of the political spectrum is deeply troubled by inequality, i.e., by the fact that some firms, individuals, and households are racing far ahead of others, what at least some education reformers are saying is that we want to unleash a few inventive, well-managed schools to start deploying the same per pupil resources to much greater effect. That is, we want to, in the short run at least, make the K-12 educational landscape more unequal, in the hope that leading schools will identify instructional methods, e.g., effective virtual instruction, that will prove scalable.

Much depends on how one interprets the fact that some firms, individuals, and households are racing ahead of the others. I take what I think of as a nuanced view. Generally speaking, some firms, individuals, and households race ahead of others due to a combination of luck, opportunity, and smart investments in organizational capital. In some cases, we see rent-seeking, tax and regulatory arbitrage, etc. But whereas Simon Johnson and many of my friends on the left see this as the dominant narrative, I see it as a significant but nevertheless relatively small part of the wage dispersion story.

Nicholas Bloom and John Van Reenen have written a neat essay in the Journal of Economic Perspectives on how effective management practices spread. I was struck by many of their observations, including some that will be familiar to those of you who see organizational capital as very important (“firms that more intensively use human capital, as measured by more educated workers, tend to have much better management practices”).

The United States has a commanding lead in terms of the quality of management in firms. This is very interesting considering our relative weakness in terms of educational attainment at the median in the prime-age cohorts. And I suspect that this feeds back into wage dispersion as well as assortative mating, family breakdown, and other sources of “stickiness” at the low end of the income distribution. For a variety of reasons, our economy is rewarding people with managerial skills, and, in a crude sense, one might be able to extrapolate the ability to manage a wide range of tasks in the workplace to the ability to maintain constructive relationships in other domains. The obvious objection is that many hard-charging executives neglect their families and personal lives, etc. But it could also be true that the that neglect of parental responsibilities is somewhat more common among those marginally attached to the labor force, due to the greater prevalence of substance abuse and other risky behaviors.

Jonathan Chait at TNR on Manzi:

That’s an interesting insight into the general problem with quantitative measures. Here are a few points in response:

1. You need some system for deciding how to compensate teachers. Merit pay may not be perfect, but tenure plus single-track longevity-based pay is really, really imperfect. Manzi doesn’t say that better systems for measuring teachers are futile, but he’s a little too fatalistic about their potential to improve upon a very badly designed status quo.

2. Manzi’s description…

evaluating teacher performance by measuring the average change in standardized test scores for the students in a given teacher’s class from the beginning of the year to the end of the year, rather than simply measuring their scores. The rationale is that this is an effective way to adjust for different teachers being confronted with students of differing abilities and environments.

..implies that quantitative measures are being used as the entire system to evaluate teachers. In fact, no state uses such measures for any more than half of the evaluation. The other half involves subjective human evaluations.

3. In general, he’s fitting this issue into his “progressives are too optimistic about the potential to rationalize policy” frame. I think that frame is useful — indeed, of all the conservative perspectives on public policy, it’s probably the one liberals should take most seriously. But when you combine the fact that the status quo system is demonstrably terrible, that nobody is trying to devise a formula to control the entire teacher evaluation process, and that nobody is promising the “silver bullet” he assures us doesn’t exist, his argument has a bit of a straw man quality.

Manzi responds to Chait:

My post wasn’t about if we should use quantitative measures of improvement in their students’ standardized test scores as an element of how we evaluate, compensate, manage and retain teachers, but rather about how to do this.

Two of the key points that I tried to make are that the metrics themselves should likely be much simpler than those currently developed by economics PhDs, and that such an evaluation system is only likely to work if embedded within a program of management reform for schools and school systems. The bulk of the post was trying to explain why I believe these assertions to be true.

An additional point that I mentioned in passing is my skepticism that such management reform will really happen in the absence of market pressures on schools. Continuous management reform, sustained over decades, that gets organizations to take difficult and unpleasant actions with employees is very hard to achieve without them. There’s nothing magic about teachers or schools. The same problems with evaluation and other management issues that plague them arise in big companies all the time. It’s only the ugly reality of market discipline that keeps them in check.

“The ‘Tribe-Moral Community’ United By ‘Sacred Values'”

John Tierney at NYT:

Some of the world’s pre-eminent experts on bias discovered an unexpected form of it at their annual meeting.

Discrimination is always high on the agenda at the Society for Personality and Social Psychology’s conference, where psychologists discuss their research on racial prejudice, homophobia, sexism, stereotype threat and unconscious bias against minorities. But the most talked-about speech at this year’s meeting, which ended Jan. 30, involved a new “outgroup.”

It was identified by Jonathan Haidt, a social psychologist at the University of Virginia who studies the intuitive foundations of morality and ideology. He polled his audience at the San Antonio Convention Center, starting by asking how many considered themselves politically liberal. A sea of hands appeared, and Dr. Haidt estimated that liberals made up 80 percent of the 1,000 psychologists in the ballroom. When he asked for centrists and libertarians, he spotted fewer than three dozen hands. And then, when he asked for conservatives, he counted a grand total of three.

“This is a statistically impossible lack of diversity,” Dr. Haidt concluded, noting polls showing that 40 percent of Americans are conservative and 20 percent are liberal. In his speech and in an interview, Dr. Haidt argued that social psychologists are a “tribal-moral community” united by “sacred values” that hinder research and damage their credibility — and blind them to the hostile climate they’ve created for non-liberals.

Instapundit

Ann Althouse:

But let’s skip into the middle of the piece and think about the mechanisms of exclusion, these “sacred values” that displace scientific thinking. Haidt notes the example of Daniel Patrick Moynihan, back in 1965, who “warned about the rise of unmarried parenthood and welfare dependency among blacks” and “was shunned by many of his colleagues at Harvard as racist.”

Similarly, Larry Summers, then president of Harvard, was ostracized in 2005 for wondering publicly whether the preponderance of male professors in some top math and science departments might be due partly to the larger variance in I.Q. scores among men (meaning there are more men at the very high and very low ends). “This was not a permissible hypothesis,” Dr. Haidt said. “It blamed the victims rather than the powerful. The outrage ultimately led to his resignation. We psychologists should have been outraged by the outrage. We should have defended his right to think freely.”

According to Tierney, Haidt’s audience of social psychologists “seemed refreshingly receptive to his argument.”

A few even endorsed his call for a new affirmative-action goal: a membership that’s 10 percent conservative by 2020.

Affirmative action? Why not just stop giving affirmative action to liberals? I think that would get you way above the 10% quota… if you could do it. Ironically, talking “affirmative action” is inherently off-putting to conservatives. It’s more of those sacred values from the tribal-moral community that ward off outsiders.

Steven Hayward at Powerline:

I have a good friend–I won’t name out him here though–who is a tenured faculty member in a premier humanities department at a leading east coast university, and he’s . . . a conservative! How did he slip by the PC police? Simple: he kept his head down in graduate school and as a junior faculty member, practicing self-censorship and publishing boring journal articles that said little or nothing. When he finally got tenure review, he told his closest friend on the faculty, sotto voce, that “Actually I’m a Republican.” His faculty friend, similarly sotto voce, said, “Really? I’m a Republican, too!”

That’s the scandalous state of things in American universities today. Here and there–Hillsdale College, George Mason Law School, Ashland University come to mind–the administration is able to hire first rate conservative scholars at below market rates because they are actively discriminated against at probably 90 percent of American colleges and universities. Other universities will tolerate a token conservative, but having a second conservative in a department is beyond the pale.

John Derbyshire at The Corner:

What’s to be done? Get ’em reading National Review!

To overcome taboos, he advised them to subscribe to National Review and to read Thomas Sowell’s A Conflict of Visions.

By a friendly little coincidence, the current issue of National Review contains a feature article on Prof. Sowell.

Some said [Haidt] overstated how liberal the field is, but many agreed it should welcome more ideological diversity. A few even endorsed his call for a new affirmative-action goal: a membership that’s 10 percent conservative by 2020.

Ten percent by 2020? Hey, let’s not go overboard here, guys.

[And never mind Queer Literary Theory: If I’d been writing a few days later I could have cited Gay Math.]

[And-and, I should qualify having said “the New York Times of all places” with a word of tribute to their excellent Science section, which routinely publishes results from the human sciences that would cause apoplexy among the newspaper’s op-ed writers, if they bothered to read them.]

Ronald Bailey at Reason:

Haidt has given me a look at a good bit of the manuscript of his new book, The Righteous Mind: Why Good People are Divided by Politics and Religion (January, 2012), and I couldn’t be more enthusiastic about it.

I earlier wrote about some of the recent research that Haidt and his colleagues have done on The Science of Libertarian Morality. If interested, see how liberal social science bias works when it comes to demonizing conservatives in my 2004 column, Pathologizing Conservatism.

One more story, I was invited to speak at a Knight Science Journalism Fellowship seminar at MIT a few years ago. After I gave my spiel, we got to talking about for whom the 12 or so journalists were planning to vote in the upcoming 2000 election. As I remember it, the vote split 9 for Gore and 3 for Nader. I joked that perhaps the Knight program should invite me to join it for reasons of diversity. The puzzled head of program blurted out, “But you’re a white male!” I gently explained that I meant ideological diversity. He (also a white male) had the grace to look chagrined.

Megan McArdle

James Joyner:

That the university professoriate, particularly at elite institutions, is radically more liberal than the society at large is undisputed. The causes for the phenomenon are hotly debated.

Presumably, Haidt’s assertion that this lack of diversity skews research findings — and even acceptable topics for research — is more controversial. But it shouldn’t be. After all, it’s widely accepted within the academy, particularly the social sciences, that the longtime domination of the field by white males had that effect.

But it’s far from clear what to do about it. Women and racial minorities were actively discriminated against while the bias against conservatives is subtle and largely unconscious. Indeed, the fact that their professors are liberals who show disdain for conservative values doubtless discourages conservatives from pursuing the academic career path.

Should there be active outreach to conservatives? Maybe, although I’m dubious. Should liberal professors undergo sensitivity training in order to learn not to offend conservative students? Probably not.

The First Lady Kills! Or Doesn’t…

Gateway Pundit:

Get Up – Get Moving – Get Hit
Officials say an increase in pedestrian deaths may be linked to Michelle Obama’s exercise program.

Mark Weaver at 630 WMAL:

The Governors Highway Safety Association says pedestrian deaths increased in the first half of 2010 and the First Lady’s program to get Americans to be more active could be partly responsible.

Governors Highway Safety Administration spokesman Jonathan Adkins told 630 WMAL that Michelle Obama is “trying to get us to walk to work and exercise a little bit more.  While that’s good, it also increases our exposure to risk.”

After four straight years of steady declines, pedestrian deaths were up during the first six months of 2010, the latest figures available to be studied.

Other factors include distracted drivers, distracted pedestrians and what Adkins calls “aggressive pedestrians.”

“People who are not crossing where they are supposed to.  They’re running in front of cars.  We’ve even had examples of pedestrians getting out on the interstate,” said Adkins.

Alcohol is also factor in increased pedestrian deaths.

“We’ve done a good job of getting people, after a night out of partying, to leave their keys behind.  But just because you are walking does not mean you are not at risk,” said Adkins.

Pedestrians are also increasingly distracted by iPods and smart phones.  It is not uncommon to see people crossing streets while fiddling with an electronic device and not watching where they are walking.  Hospital emergency rooms have reported an upsurge of people injured in a fall because they were distracted by electronics.

Scott McCabe at The Washington Examiner:

First lady Michelle Obama’s campaign to get people to exercise outdoors might be a factor in an increase in the number of pedestrian deaths during the first half of last year, according to the Governors Highway Safety Association.

GHSA executive director Barbara Harsha said her organization doesn’t know why there were more deaths in the first six months of 2010 than in 2009, but the increase is notable because overall traffic fatalities went down 8 percent during this period, and the increase ends four straight years of steady declines in pedestrian deaths.
But the “get moving” movement, led by Obama’s “Let’s Move” campaign to eliminate childhood obesity, could be to blame, Harsha told The Washington Examiner.

“There’s an emphasis these days to getting fit, and I think people doing that are more exposed to risk [of getting hit by a vehicle],” said Harsha, who conceded to having no scientific evidence that the Let’s Move campaign has led to an increase in walkers and runners, or deaths.

“This is all speculative,” Harsha said. “Obviously, further study is needed.”

The first lady’s office did not respond immediately Wednesday to a request for comment.

Amanda Carey at Daily Caller:

Governors Highway Safety Association Director Barbara Harsha says she was misquoted in a story alleging she blames a rise in pedestrian deaths on Michelle Obama’s anti-obesity program, according to the Atlantic.“I was misquoted, said Harsha. “We in no way oppose Ms. Obama’s program.” She said she was trying to make a broader point about pedestrian awareness and safety. If Obama’s program is getting more people to walk, “they need to be aware of their surroundings and do so in a safe manner.”

Pedestrian deaths increased sharply during the first half of 2010, according to the GHSA.

James Joyner:

Where to start?

Well, first off, there are no figures provided.  Via Dr. Google, I see “The Governors Highway Safety Association says in the report that 1,891 pedestrians were killed in the first six months of 2010, up from 1,884 in the same period in 2009 — a 0.4 percent increase. ”  Now, I don’t know the historical variation in these things, but I’d say offhand that this is a statistically insignificant swing.   Regardless, a variety of factors — alcohol, technology, and road design among them  – seem to be considered possible explanations for the slight reversal in trend.

Second, while I don’t pay much attention to the social campaigns of First Ladies, I don’t recall Mrs. Obama telling people that they should get drunk, strap on an iPod, and go wandering around the streets reading their BlackBerries.  She’s advising people to get some exercise, not to go wander around in traffic.  Yes, that’s technically a form of exercise.  There are others.

Third, anecdotally at least, I have indeed seen an increase in pedestrians distracted by electronic devices, whether it be texting while walking or grooving to whatever’s piping through their little white earbuds.  Then again, I’ve seen the same thing among people operating automobiles — and traffic deaths are down 8 percent during the same period.

Ed Morrissey:

An increase of 0.4% is, statistically speaking, noise.  It’s a random variation that occurs in smaller data sets.  Changes in weather conditions could account for the difference.

[…]

We have plenty of reasons to disagree with this administration and fight their policies.  These are not those.

Megan McArdle:

What to say about a statement by the Governor’s Highway Safety Association spokesman which seems to blame–I swear, I am not making this up--Michelle Obama’s national fitness campaign for an uptick in pedestrian deaths?

In order to make this sort of statement, I’d want some pretty ironclad evidence that, first of all, Michelle Obama’s exhortations were actually causing people to spend more time walking on our nation’s roads–a premise that this libertarian, for one, is pretty skeptical of.

I’d also want to see some evidence that they were walking on roads where, y’know, more people were dying.

This Really Annoys People. Yes it Does. Oh Yes, It Does.

Farhad Manjoo at Slate:

Last month, Gawker published a series of messages that WikiLeaks founder Julian Assange had once written to a 19-year-old girl he’d become infatuated with. Gawker called the e-mails “creepy,” “lovesick,” and “stalkery”; I’d add overwrought, self-important, and dorky. (“Our intimacy seems like the memory of a strange dream to me,” went a typical line.) Still, given all we’ve heard about Assange’s puffed-up personality, the substance of his e-mail was pretty unsurprising. What really surprised me was his typography.

Here’s a fellow who’s been using computers since at least the mid-1980s, a guy whose globetrotting tech-wizardry has come to symbolize all that’s revolutionary about the digital age. Yet when he sits down to type, Julian Assange reverts to an antiquated habit that would not have been out of place in the secretarial pools of the 1950s: He uses two spaces after every period. Which—for the record—is totally, completely, utterly, and inarguably wrong.

Oh, Assange is by no means alone. Two-spacers are everywhere, their ugly error crossing every social boundary of class, education, and taste. You’d expect, for instance, that anyone savvy enough to read Slate would know the proper rules of typing, but you’d be wrong; every third e-mail I get from readers includes the two-space error. (In editing letters for “Dear Farhad,” my occasional tech-advice column, I’ve removed enough extra spaces to fill my forthcoming volume of melancholy epic poetry, The Emptiness Within.) The public relations profession is similarly ignorant; I’ve received press releases and correspondence from the biggest companies in the world that are riddled with extra spaces. Some of my best friends are irredeemable two spacers, too, and even my wife has been known to use an unnecessary extra space every now and then (though she points out that she does so only when writing to other two-spacers, just to make them happy).

What galls me about two-spacers isn’t just their numbers. It’s their certainty that they’re right. Over Thanksgiving dinner last year, I asked people what they considered to be the “correct” number of spaces between sentences. The diners included doctors, computer programmers, and other highly accomplished professionals. Everyone—everyone!—said it was proper to use two spaces. Some people admitted to slipping sometimes and using a single space—but when writing something formal, they were always careful to use two. Others explained they mostly used a single space but felt guilty for violating the two-space “rule.” Still others said they used two spaces all the time, and they were thrilled to be so proper. When I pointed out that they were doing it wrong—that, in fact, the correct way to end a sentence is with a period followed by a single, proud, beautiful space—the table balked. “Who says two spaces is wrong?” they wanted to know.

Typographers, that’s who. The people who study and design the typewritten word decided long ago that we should use one space, not two, between sentences. That convention was not arrived at casually. James Felici, author of the The Complete Manual of Typography, points out that the early history of type is one of inconsistent spacing. Hundreds of years ago some typesetters would end sentences with a double space, others would use a single space, and a few renegades would use three or four spaces. Inconsistency reigned in all facets of written communication; there were few conventions regarding spelling, punctuation, character design, and ways to add emphasis to type. But as typesetting became more widespread, its practitioners began to adopt best practices. Felici writes that typesetters in Europe began to settle on a single space around the early 20^th century. America followed soon after.

Tom Lee:

I’m sorry, but no. It’s a lousy polemic. Here’s its structure:

1. SEO-friendly statement of controversy
2. Presentation of opinion A. Assertion that people who hold it are rubes.
3. Presentation of opinion B. Invocation of authority.
4. History lesson! Discussion of old technology; no mention of enforcement of author’s preferred orthodoxy by newer technology (e.g. HTML rendering multiple spaces as one)
5. Rumination on beauty. Grecian urns, etc.

For now let’s ignore the ignore the bullying nature of this argument (it should be obvious to anyone that those of us who believe in two spaces are a minority that’s relentlessly and mercilessly persecuted by the bloodthirsty masses, both through jeremiads like Manjoo’s and through the technological eradication of our ability to express our beliefs). Which of the points in the above argument are rhetorically meaningful?

Only point 3 really carries any weight with me. I’ll take Manjoo’s word that all typographers like a single space between sentences. I’m actually pretty sympathetic to arguments from authority, being the big-state-loving paternalist that I am. But, with apologies to friends and colleagues of mine who care passionately about this stuff, I lost my patience with the typographically-obsessed community when they started trying to get me to pay attention to which sans-serif fonts were being used anachronistically on Mad Men.

I love you guys, but you’re crazy. On questions of aesthetic preference there’s no particular reason that normal people should listen to a bunch of geeky obsessives who spend orders of magnitude more time on these issues than average. It’s like how you probably shouldn’t listen to me when I tell you not to use .doc files or that you might want to consider a digital audio player with Ogg Vorbis support. I strongly believe those things, but even I know they’re pointless and arbitrary for everyone who doesn’t consider “Save As…” an opportunity for political action.

Nor should we assume that just because typographers believe earnestly in the single space that their belief is held entirely in good faith. They’re drunk on the awesome power of their proportional fonts, and sure of the cosmic import of the minuscule kerning decisions that it is their lonely duty to make. Of course they don’t want lowly typists exercising their opinions about letter spacing. Those people aren’t qualified to have opinions!

Shani O. Hilton:

I thought Manjoo’s argument was weak, for many of the reasons Tom mentions, but that doesn’t change facts. Here’s a little-known law of graphic design:

The number of people wishing to fit a document onto the same or fewer number of pages as a previous edition of said document, despite the new draft being longer than the previous edition, is directly proportional to the number of people who turn in said document to their graphic designer with double spaces after every period.

Okay, maybe I made that up. But real talk: Double spaces are bad.

Megan McArdle:

Let me just add: if you’re spending time worrying over whether my emails contain one or two spaces, you need to ask them to let you out of the asylum more often so you can pursue a more interesting hobby.  I double space after sentences because I learned to type on a manual typewriter, and it’s not worth the effort to retrain myself.  Even if typographers groan every time they open one of my missives.

Nicholas Jackson at The Atlantic

Paul Waldman at Tapped:

As Manjoo explains, there are still teachers out there infecting students’ minds with the idea that they should put two spaces after a period. Why? Because that’s the way they learned. And I did too, when I took a typing class in 1985. But now we have computers, and fonts that use proportional spacing, which makes two spaces after a period look wrong. Wrong, wrong, wrong.

We’re never going to maintain our global dominance if people keep doing this. You think that 10-year-old kid in Shanghai is being taught to put two spaces after a period? No way.

More NYC Snow Posts, More Use Of Simpsons Songs To Explain NYC Snow Problems

Sally Goldenberg, Larry Celona and Josh Margolin in NY Post:

These garbage men really stink.

Selfish Sanitation Department bosses from the snow-slammed outer boroughs ordered their drivers to snarl the blizzard cleanup to protest budget cuts — a disastrous move that turned streets into a minefield for emergency-services vehicles, The Post has learned.

Miles of roads stretching from as north as Whitestone, Queens, to the south shore of Staten Island still remained treacherously unplowed last night because of the shameless job action, several sources and a city lawmaker said, which was over a raft of demotions, attrition and budget cuts.

“They sent a message to the rest of the city that these particular labor issues are more important,” said City Councilman Dan Halloran (R-Queens), who was visited yesterday by a group of guilt-ridden sanitation workers who confessed the shameless plot.

Halloran said he met with three plow workers from the Sanitation Department — and two Department of Transportation supervisors who were on loan — at his office after he was flooded with irate calls from constituents.

J.P. Freire at Washington Examiner:

I reported yesterday how well compensated these people are:

…[T]he top salary of $66,672 is only the tip of the iceberg for active sanitation worker compensation because it excludes other things like overtime and extra pay for certain assignments. For example, one worker in 2009 had a salary of $55,639 but actually earned $79,937 for the year.

Sanitation workers don’t pay a dime for premiums on their cadillac health care plan, which includes prescription drug coverage along with dental and eye care for the whole family. Many continue to receive the full benefit upon retiring after only 10 years. And then there’s the matter of their pension:

…Nearly 180 retired [sanitation workers] make over $66,000 year — in other words, over and above the maximum salary of currently working employees. In fact, 20 retirees make upwards of $90,000 in retirement, up to $132,360.

Keep that in mind when reading lines like this:

…[M]ultiple Sanitation Department sources told The Post yesterday that angry plow drivers have only been clearing streets assigned to them even if that means they have to drive through snowed-in roads with their plows raised.

And they are keeping their plow blades unusually high, making it necessary for them to have to run extra passes, adding time and extra pay.

One mechanic said some drivers are purposely smashing plows and salt spreaders to further stall the cleanup effort.

Sure, Mayor Bloomberg planned poorly and should have announced a snow emergency. But this story makes it clear that even if he did, it wouldn’t have made a difference. The question is whether Bloomberg will do anything about it.

Jim Hoft at Gateway Pundit:

Among the victims of this crime: A newborn baby died after waiting nine hours for paramedics to arrive.

Doug Mataconis:

Assuming this is true it’s likely to provide much more ammunition to the arguments of those on the right who have started speaking out against the very idea of a public employees being allowed to unionize. Personally, I don’t think it would be appropriate to ban people from voluntarily associating just because they’re public employees. However, situations like this do raise the legitimate question of whether public employees in certain positions should be legally permitted to engage in some of the tactics that unions in the private sector engage during work disputes. When you’re a position where your job is one that is essential to the operation of the city — like a policeman, fireman, or sanitation worker — I think it’s highly questionable to concede that you should the right to go on strike. Essentially what happens in that situation is that the Union has a huge negotiating advantage over the city because leaders would not want to deal with the backlash that would result from the fact that garbage hasn’t been picked up in a week.

Ronald Reagan set the precedent for this in 1980 when he fired every air traffic controller in the country for going on a strike that they were not legally permitted to call. Of course, no American city would be able to do the same thing with it’s police force for fire department, which is why forbidding essential public employees from going on strike seems to me to be an entirely reasonable idea.

Megan McArdle:

On the face of it, it’s not implausible–it wouldn’t be the first time that New York City unions chose the worst possible time to show their displeasure with working conditions.  (Two of the last three transit strikes, for example, have taken place during the holiday season.)

Nonetheless, the charges are serious, and I’d like to see some better backup than a politician claiming he has secret union informants.  If it is true that the trucks were driving around with their plows up, refusing to plow any but the streets they were specifically directed to plow, presumably there will be witnesses who saw this.  Similarly, I assume that people noticed if their streets were plowed with the plows set too high, requiring a second pass.

In individual cases, that won’t tell you whether it was an organized plan, incompetent individual workers, or workers who were simply trying to score a little extra overtime for themselves.  But in aggregate, it should be possible to detect a pattern.  Couldn’t the Post find anyone in Queens or the Bronx who claims to have seen this misbehavior?

Hopefully, Bloomberg will appoint some sort of investigative committee–after all, it’s his political price to pay.  Of course, even if it turns out that the sanitation workers did make things worse, that won’t absolve the mayoral administration that apparently decided to ignore the storm warnings rather than pay the sanitation workers expensive overtime for working the Christmas holiday.

Don Suber

Mike Riggs at Daily Caller

Ed Morrissey:

I’m a little skeptical, but mainly because the primary source for the conspiracy theory is an elected official who can expect to be held accountable for the poor performance thus far in the Big Apple.  Also, the Twin Cities had the same level of snowfall a few weeks ago, and snow removal was a problem for us, too.  Minneapolis/St Paul and the first-ring suburbs have a large amount of infrastructure to deal with heavy snowfalls and about a fifth of the population, and we still have huge piles of snow blocking sidewalks downtown.  Heck, we can’t even get the Metrodome fixed; now, the estimate for repair and reinflation is the end of March.  I’m not sure that NYC could have done better, with its relatively smaller snow-removal infrastructure, lack of places to put the snow, and population density.

Is it possible that this was a coordinated slowdown effort by public-sector unions to make Bloomberg and city officials look incompetent?  Sure, but the simpler answers are usually closer to the truth.  The simpler answers here are that this was freakishly heavy snowfall in a city not used to such things, and, well, it has a mayor more interested in salt use in restaurants than on the roads.

 

Talking About The Clause… No, Not That Claus

Andrew Sullivan rounds up some of this.

Josh Marshall at Talking Points Memo:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to “economic activity” seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia — that the federal health care mandate is unconstitutional — is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Julian Sanchez on Marshall:

And the weird thing is, he’s right… sort of! It does seem like a surprising result, given the last century of Commerce Clause precedent, that anything plausibly describable as economic activity might be found beyond the power of Congress to micromanage. “Preposterous on its face,” even.

But isn’t it preposterous that it’s preposterous? Step back from that steady accretion of precedents and instead just ask how far a federal power to “regulate commerce…among the several states”—especially in the context of separate and parallel powers to regulate commerce with foreign nations and Indian tribes—can plausibly be stretched. Isn’t it the idea that “regulate commerce” could entail a power to require a private individual in a single state to buy health insurance that ought to seem kind of crazy? Shouldn’t we find it more intuitively preposterous that a provision designed for tariffs and shipping rules should be the thin end of the wedge for a national health care policy?

And yet it isn’t! It’s the denial of that infinitely flexible reading that now seems strange. And that’s really strange.

Megan McArdle on Sanchez:

Obviously, I agree with Julian.  I have been reading a lot of well-meaning liberals who are befuddled by the notion that conservatives are going after the mandate, when that runs the risk of bringing on single payer.  Personally, I kind of doubt that, but this is completely beside the point.  On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?

This doesn’t seem to be a question that interests progressives; they just aren’t very excited about economic liberty beyond maybe the freedom to operate a food truck.  And so they seem genuinely bewildered by a reading of the commerce clause that narrows its scope, or an attempt to overturn the mandate even though this might lead us into a single payer system.  If you view this solely as tactical maneuvering, perhaps it really is preposterous.

And of course, for some conservatives, these operations are tactical, but for a lot, it’s an actual horror at the ever-expanding assertion of government powers.  I’d like it if they’d get equally horrified about, say, the TSA and the drug laws, but there you are: neither side is as consistently supportive of liberty as I’d like.

Radley Balko:

Next, I posed this question to Chris Hayes on Twitter, so I’ll pose to those of you who read this site who are outraged by the Hudson ruling: Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

If your answer is yes, what restrictions would those be? And what test would you use to determine what the federal government can and can’t do? I’ve written this before, but after Wickard, Raich, and now, if you support it, the health insurance mandate, it’s hard to see what’s left that would be off-limits. I mean, during her confirmation hearings, Elena Kagan couldn’t even bring herself to say that it would be unconstitutional for the federal government to force us to eat vegetables every day. (She did say it would be bad policy — but that’s a hell of a lot different.)

If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place? I suppose an alternate answer might be that the Constitution does place restrictions on the federal government, but those restrictions have become anachronistic given the size of the country, the complexity of modern society, and so on. To which my follow-up question would be, do you believe there should be any restrictions on the powers of the federal government? Let’s say, again, beyond those laid out in the Bill of Rights.

I guess to get at the meat of the disagreement, I should ask one more: Do you buy into the idea that the people delegate certain, limited powers to the government through the Constitution, or do you believe that the government can do whatever it wants, save for a few restrictions outlined in the Constitution? It’s not an unimportant distinction. I’m not sure it’s consistent to believe that the government gets its power from the people, but the people have gone ahead and given the government the power to do whatever it wants.

I’m not trying to be cute. I’m genuinely interested in how people on the left answer these questions. Rep. Pete Stark, a liberal Democrat, said a few months ago that he believes there are no constitutional restrictions on what the Congress can do. To hear from a sitting Congressman was refreshingly honest. And terrifying.

Jonathan Chait at TNR:

The conservative argument, reflected in Republican judge Henry Hudson’s ruling against the individual mandate, is that purchasing health insurance is the ultimate individual decision, and that abridging this liberty would, in Hudson’s words, “invite unbridled exercise of federal police powers.” If the individual mandate is permissible, writes George Will, then “Congress can doanything – eat your broccoli, or else – and America no longer has a limited government.” Megan McArdle echoes, “On a reading of the commerce clause that allows the government to force you to buy insurance from a private company, what can’t the government force you to do?”

This is the intellectual rationale for the hysterical conservative response to the pasaage of health care reform. By this line of reasoning, the individual mandate springs from a paternalistic desire to compel individuals to engage in behavior that affects nobody but themselves.

But of course, the decision not to purchase health insurance is the very opposite. Those who forego health insurance are forcing the rest of us to cover their costs if they exercise their right to be treated in an emergency room. They are also forcing the rest of us to pay higher insurance rates, now that insurance companies can no longer exclude those with preexisting conditions. That, of course, is exactly why conservatives supported it for so long.

Conservatism’s sudden lurch from supporting (or tolerating) the individual mandate to opposing it as a dagger in the heart of freedom is a phenomenon that merits not intellectual analysis but psychoanalysis. This is simply how conservatives respond in the face of every liberal advance. At such moments the nation is always teetering on the precipice between freedom and socialism. The danger never comes to pass, yet no lesson is ever learned. We simply progress intermittently from hysterical episode to hysterical episode.

Conor Freidersdorf at The American Scene on Chait:

It’s handy to argue against the generalized hypocrisy of incoherent ideological adversaries, though I don’t think that describes Megan McArdle, Julian Sanchez, Radley Balko, or many others who see constitutional problems here, myself included. I’ll see if I can make a case without lapsing into hysteria: If the Obama Administration’s health care reform bill stands, I do not imagine that America is going to cease to be free, or that a decisive blow in the battle between capitalism and socialism will have been struck. Although I would’ve preferred different variations on health care reform, I am not even expert enough to know for sure whether they’d have been more successful.

What does worry me is the notion that the federal government is no longer an entity of enumerated powers – that a limit on its scope purposefully established by the Founders no longer exists. It used to be a check and balance. Is it now completely gone?

If Judge Hudson’s ruling is upheld, I’ll celebrate not because I fear Obamacare – I’m cynical enough to suspect that whatever came next might well make me even worse off – but because a limit on federal power that I care about generally has been re-asserted.

Should his ruling be overturned, I’ll be disappointed because the precedent troubles me: if the commerce clause can prevent me from growing marijuana in my backyard and mandate that I buy a particular kind of health insurance that covers far more than emergency room care, what Congressional action can’t it cover? You’d think from Chait’s post that liberals never approach matters of constitutional law in this way, looking past the utility in a given policy area to ask what the long term implications are for state power.

What I’ve yet to see answered to my satisfaction is Radley Balko’s question

Chait responds to Friedersdorf:

Let me try to reiterate my point.

The legal merits of Hudson’s ruling, which seem to be totally daft, are themselves piggybacked upon a policy argument which is itself highly unpersuasive at best. The political argument, endorsed by Friedersdorf, maintains that the individual mandate represents some dramatic new imposition of Congressional power. Congress’s power may have grown over the years, the argument holds, but the individual mandate represents some new frontier of intrusiveness. It is forbidding an activity (or inactivity) that is more personal and less intertwined with the economy as a whole than almost any previous regulation. It is not dramatically different than a law requiring people to eat broccoli.

But this is totally incorrect. In reality, the individual mandate is much less intrusive and paternalistic than many regulations accepted as Constitutional. The rationale isn’t to make people buy insurance because it’s good for them. If people want to accept the risk of illness on their own, that’s fine. The issue is precisely that they can’t do this without forcing the rest of us to pick up the tab when they 1) show up at the emergency room, or 2) decide to buy private insurance in a now-regulated market.

Regulations to prevent people from offloading their risks onto others are extremely common and extremely necessary. So, again, the right’s portrayal of this as a dramatic expansion of the scope of Congressional action is wildly misleading, and it owes itself not to any sober analysis of federal power but to the psychology of reaction.

Now, Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.

Freidersdorf responds to American Scene:

Actually, I am endorsing a somewhat different argument, and I apologize if I misstated my position or was less than clear about it. It isn’t that I think the individual mandate is an imposition of Congressional power more dramatic than anything seen before. It is merely one example of the longstanding Congressional tendency to justify all manner of things – gun free school zones, legislation to prevent violence against women, the ability to grow marijuana in my backyard, etc. – under the banner of the commerce clause. Where I come down on these cases has nothing to do with policy arguments: on the merits, some seem like good ideas to me, and others seem like bad ideas, but none strike me as attempts to regulate interstate commerce unless that task is so broad that it imposes no meaningful limit on the scope of federal power. (Speaking of which, I’d still like to see Chait and Kevin Drum answer Radley Balko’s question.)

Chait writes:

Friedersdorf is correct to point out that some libertarians who are not partisan Republicans have endorsed this argument as well. In my view this is a group of people who are deeply inclined to support limited government, and have latched onto an argument in favor of limited government that has gained a political foothold without subjecting the merits of the case to serious scrutiny. They think the case is about drawing a new line against the expansion of Congressional economic power, when in fact the line is far behind the old one.

I actually agree that the individual mandate doesn’t constitute an obvious high water mark when it comes to legislation passed under the umbrella of the commerce clause. But surely Chait understands how constitutional challenges work. Most people who care about the principle at stake don’t get to choose the partisan blowhards on the same side of the issue, let alone the case that someone with standing files, that winds its way through the courts, that results in a favorable ruling, and that has a chance of making it to the Supreme Court. The individual mandate may not constitute a high water mark as legislation, but if it ends up being a SCOTUS test case, the majority opinion that results might well entrench a precedent that goes farther than any before it, and determines the future of the commerce clause for generations. To me, Linda Greenhouse is right: the issue at stake is whether the Rehnquist Court’s jurisprudence is going to be killed in infancy or mature into a more expansive body of law.

Noah Millman also responded to my earlier post.

He writes:

…it is unquestionably within the power of Congress to tax, and the mandate could have been structured as a tax-plus-voucher scheme that would have had exactly identical effects. Does that mean that the law is constitutional? If not, then the reason is entirely some notion of precedent – that if this form of the law is Constitutional then other mandates that could not obviously be structured as a tax (“From this day on, the official language of San Marcos will be Swedish. Silence! In addition to that, all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check. Furthermore, all children under 16 years old are now… 16 years old!”) would also be acceptable. If that’s the argument that’s being made, then why are we arguing about the health insurance mandate as such being a threat to freedom?

First of all, the judicial precedent in this case won’t necessarily apply only to future commerce clause cases that involve mandates. Second, people are talking about the mandate as a threat to freedom for all sorts of reasons, many of them nonsensical. There are two arguments that I regard as plausible. One is that the mandate is particularly troubling because it requires payments to powerful corporations that spent millions of dollars lobbying the very people who wrote and passed health care reform. Call it the wonko-industrial complex. What if it gets out of control?! But that isn’t my position. It’s the second argument that I am making: it’s the jurisprudential precedent and the implications for the commerce clause and federalism generally that matter.

Tim Lee:

I get what Julian, Radley, and Megan are saying, and in principle I agree with them. A fair-minded reading of the constitution and the debates that surrounded its enactment makes it pretty clear that the founders’ goal was to create a federal government of far more limited powers than the one we’ve got. But I’m finding it awfully hard to get excited about the federalist boomlet sparked by Judge Hudson’s ruling that the ObamaCare insurance mandate is unconstitutional. I’m not a big fan of ObamaCare, and I wouldn’t be too sad to see portions of it struck down by the courts. But the rank opportunism of the Republican position here is so obvious that I have trouble working up much enthusiasm.

There’s nothing particularly outrageous about the health care mandate. The federal government penalizes people for doing, and not doing, any number of things. I’m currently being punished by the tax code for failing to buy a mortgage, for example. I’d love it if the courts embraced a jurisprudence that placed limits on the federal government’s ability to engage in this kind of social engineering via the tax code. But no one seriously expects that to happen. The same Republican members of Congress who are applauding Hudson’s decision have shown no qualms about using the tax code for coercive purposes.

The test case for conservative seriousness about federalism was Raich v. Gonzales, the medical marijuana case. Justices Scalia and Kennedy flubbed that opportunity, ruling that a woman growing a plant in her backyard was engaging in interstate commerce and that this activity could therefore be regulated by the federal government. If Scalia and Kennedy now vote with the majority to strike down portions of ObamaCare, it will be pretty obvious that they regard federalism as little more than a flimsy pretext for invalidating statutes they don’t like. Or, worse, for giving a president they don’t like a black eye.

Joshua Holland on Balko:

The question’s a straw-man — as evidence that “the left” flatly rejects all limits on the federal government, Balko offers up a statement by Rep. Pete Stark, a liberal from California, which was taken at least somewhat out of context during a town haul meeting with constituents and turned into a minor brouhaha by Andrew Breitbart’s crew a few months back.

More importantly, premising the question on us “setting aside the Bill of Rights” and amendments 11-27 just because they were ratified after the fact is disingenuous. As soon as an amendment is ratified, it becomes part of the United States Constitution, and those amendments happen to codify most of the constraints on the federal government that liberals hold to be the most important. (Balko’s a good civil libertarian who thinks they’re pretty important too.)

Essentially, he’s saying, ‘aside from preventing the government from limiting your right to speak, worship, assemble, petition government for redress, searching or seizing your stuff without due process, forcing you to incriminate yourself, enacting policies that discriminate on the basis of race and gender and guaranteeing a dozen other cherished freedoms, are there any constraints at all that you lefties find legit?’

That aside, the longer answer is that the Framers obviously didn’t create a detailed, step-by-step handbook for governing the U.S., and they didn’t try to anticipate every conflict that might come up in this new federal system they were cooking up. But they knew that conflicts would in fact arise, and they created a court to adjudicate those conflicts. It’s an enumerated power!

Now, the issue before us is what economic activities (or non-activities) the Commerce Clause empowers the feds to regulate, and the Supreme Court has used an expansive – and, yes, expanding – interpretation of that clause for close to 75 years.

Balko, like his fellow libertarians, and, less consistently, conservatives, doesn’t like that interpretation, which is his right. But it is nevertheless what’s known as a “super-precedent” – jurisprudence that’s been tested and affirmed in a not one or two, but a series of cases decided by the courts over the years.

Until maybe 20 or 30 years ago, the idea that judges should, accept in very rare cases, defer to precedent was a key tenet of judicial conservatism. That’s changed somewhat with the right’s focus on “originalism” – the idea that justices should try to glean the original intent of the Framers and put a little less emphasis on upholding precedent. (That shift is why, ironically, when one defines “judicial activism” as a willingness to overturn past rulings, conservative justices have been shown to be far more activist than liberals in recent times.)

So, a shorter answer, speaking as just one lefty, is that I accept any constraints on the government that the Supreme Court, guided, as it should be, not only by the text of the Constitution but also by past precedent– and checked by the states and the executive and legislative branches via the amendment process — holds to be legitimate.

Scott Lemieux on Balko:

Well, I don’t really see the Bill of Rights as a mere aside; these limitations are very important. But that said, to play the mild contrarian I don’t actually have any objection to U.S. v. Lopez. When a statute is not a regulation of economic activity, has no jurisdictional hook, has no necessary connection to a broader regulatory regime, and Congress can’t be bother to explain what the connection to interstate commerce is or why federal action is necessary…I don’t really have a problem with the Supreme Court ruling the statue as beyond Congress’s authority. And while I disagree with United States v. Morrison, this is primarily because I strongly reject the narrow conception of Congress’s enforcement power under Section 5 of the 14th Amendment. I have no problem saying that the commerce clause limits federal ability to intervene in purely local crime enforcement.

Now, I assume the libertarian response will be that this isn’t much, and…this is right. I don’t think in a modern industrial economy there’s any point in the Supreme Court trying to make distinctions between “local” and “national” economic regulations.

One thing I would add, though, is that saying that the Court should not strike down economic regulations under a narrow interpretation of the Commerce Clause is not to say that the power of Congress is unlimited. As many of you know, Madison did not feel that “parchment barriers” were the most important protection against excessive government. Rather, he felt that an institutional design featuring multiple veto points was the central protection. And, in fact, Madisonian institutions have been effective — from my non-libertarian perspective, often much too effective — in limiting the authority of the federal government to regulate the economy. I think these limits are (more than) sufficient, and having the courts try to apply a conception of economic powers more meaningful in an 18th-century agrarian economy doesn’t make any sense.

“Norm!”

Max Fisher at The Atlantic with the round-up

Sarah Laskow at Capitol New York:

LONGTIME VILLAGERS OFTEN TALK ABOUT the change in their neighborhood as synonymous with the rise of bars and restaurants that create street traffic and noise unlike that in any other neighborhood. Words and phrases like rowdy, circus atmosphere, zoo are used to describe the street scene at night. When bar owners and nightlife operators argue that the East Village has always been a nightlife destination, they respond: Yes, but. Something’s different now.

Academics have a word for what the neighborhood has become: a nightscape. Bars and restaurants were once peripheral to the main drag’s primary economic drivers: supermarkets, coffeehouses, boutique shops, record stores. But in post-industrial cities, nightlife has grown into an industry in its own right. As in any industry, shop owners tend to cluster. A century ago, that meant the creation of a Garment District. Now it means the creation of a Party District.

There are a few of them of course. You’ll hear similar complaints about the Meatpacking District, about areas of Fifth Avenue or Smith Street in Brooklyn, or the side streets of the Flatiron District. But the Party District below 14th street east of Third Avenue is the largest, the densest, and still growing. To hear the people who live further up near the Stuyvesant Town end of the East Village talk, the Party District is spreading largely north, and somewhere around the summer of 2009, it wholly enveloped the stretch of Avenue A between the northwest corner of Tompkins Square Park and 14th Street.

Superdive, more than any other establishment, was the sign that the area has reached some sort of tipping point. There were already more bars in the area than there had been ever before, but none like Superdive. When Superdive opened, bright young things across the city talked about it. They also talked about keg service, the bar’s primary innovation. By calling in advance, customers could secure a keg of almost any beer imaginable: PorkS.L.A.p, Chimay, Allagash White, or any one of the hundreds of German, Czech, Belgian, or British beers on the 16-page keg menu prepared by “Kegmaster Matt.” A New York Press review noted that Superdive was “the stuff of frat-boy dreams—in a good way. We think.” Urban Daddy called it “a world of crazy—an all-out raucous, beautiful disaster of a bar.” It was rumored, briefly, that customers could pour their own well drinks.

In short order, party-seekers were lined up behind the bar’s velvet rope to get in. Positive reviews came rolling in on Yelp, and private parties booked the space, night after night. Upper Avenue A had had theme bars (one of Superdive’s predecessors at the space was Korova Milk Bar, which had a Clockwork Orange leitmotif lost on many of the patrons), and the original location of the neighborhoods most notorious gay bar, The Cock. Superdive was self-conscious, though. It promised not just beer or a dance floor, but an experience directly targeted at a crowd the East Village had perhaps hoped it hadn’t overtly been catering to: Not some group of characters out of an old Lou Reed song, so much as the group of characters you’d find on Bourbon Street, or worse, North Avenue in White Plains. There was some irony in the marketing of Superdive, but not much.

Matthew Yglesias:

Street noise is a very real issue in large swathes of Manhattan and I think it’s perfectly understandable that people prefer not to have lively nightlife scenes located directly outside their windows. So when I read Sarah Laskow’s long and excellent account of liquor license battles in the East Village, I’m not-unsympathetic to the incumbent residents’ concerns. But as she observes at the end, there’s a real cost to this attitude:

At the meeting with Kao, the locals gave him the same reason for opposing him that they had given Warren, when he wanted to open a burger bar in the space: according to the current license, the only type of business that should be selling liquor at 200 Ave. A is a bookshop. With rent set at $10,000 in the East Village Party District, that’s as unlikely as it sounds.

The broader issue, as she explains, is that cities are driven by agglomeration:

Academics have a word for what the neighborhood has become: a nightscape. Bars and restaurants were once peripheral to the main drag’s primary economic drivers: supermarkets, coffeehouses, boutique shops, record stores. But in post-industrial cities, nightlife has grown into an industry in its own right. As in any industry, shop owners tend to cluster. A century ago, that meant the creation of a Garment District. Now it means the creation of a Party District.

Basically the East Village really “wants” to be full of nightlife establishments just like Qiaotou, China wants button factories. Restricting the creation of new button factories in Qiatou will help incumbent button makers (and alleviate neighborhood concerns about factory smoot) but it’s hard to call a bar scene into existence that way. Similarly, making it hard to open a new bar in the East Village isn’t going to create a button factory. It’s going to create an underutilized space. That means somewhat more unemployment in the city, somewhat less tax revenue in the city, and thus at the margin higher tax rates and fewer social services for everyone.

Meanwhile, as a policy analyst living in a different city the right way to look at the neighborhood concerns is this. Will another bar on the block make living on that block worse? I have no reason to doubt it. But it’s not like there’s some excessive quantity of affordable housing in Manhattan. If a given block becomes less desirable to live on, that just means someone else will live there. In equilibrium, we’re looking at lower housing costs and higher employment rates.

Ryan Avent:

Matt is right that “nightlife”, like a lot of other industries, often clusters. People like to have options when they go out, and they like going where there are other people around, so watering holes that cluster together often find that they do better than they might outside of a nightlife cluster, despite the impact of increased competition within the cluster. And Matt is right to say that when you limit liquor licenses in an area, you cut off the potential gains of clustering to the consumer, you cut off the potential gains of clustering to the businesses, and you cut off the potential gains of competition to the consumer, since you effectively hand existing businesses a great deal of market power.

But I’m constantly reminded of another side of this equation whenever I’m in London. London, like cities and towns across the British Isles, is filled with pubs. They vary in type, quality, and clientele. I was very lucky this time around to find a near-perfect gastropub just a five minute walk from my flat. It was quiet and well-maintained with a great menu, and while there were always people there, there was also always a free seat. Kids were welcome during the day, as were dogs. Every time I went I thought to myself how great it would be to have such a place close by back in Washington. And every time I thought that, I immediately reminded myself that such a place, back in Washington, would be perpetually packed and fairly unpleasant. In the Washington area, you can’t have a place that’s both really good and quiet in a neighborhood-y sort of way.

That’s largely because it’s very difficult to open new bars. And the result is a pernicious feedback loop. With too few bars around, most good bars are typically crowded. This crowdedness alienates neighbors, and it also has a selecting effect on the types of people who choose to go to bars — those interested in a loud, rowdy environment, who will often tend to be loud and rowdy. This alienates neighbors even more, leading to tighter restrictions still and exacerbating the problem.

Megan McArdle:

I don’t want to push this argument too far–London has a sizeable population of obnoxious drunks, many of whom decide to get into fistfights outside their local pub.  (An editor at the Economist who had recently moved to the United States was asked how he had enjoyed his first New Year’s in New York.  “It made me quite homesick,” he replied.  “All those drunks throwing up in the subway were like a breath of London.”)

But it is true that London also has more quiet pubs New York–and New York, in turn, has more of them (outside of the East Village) than DC does.  And this does make bars and cafes noticeably more unpleasant for the neighbors, as well as the customers.  Which in turn causes residents to fight like hell to keep out any business that might attract a late-night crowd.

One possible solution is upzoning–neighborhood bars aren’t so obnoxious when you’re ten floors above them. But of course, the local residents tend to fight that as well.

Matthew Steinglass at DiA at The Economist:

I think these observations are all apt, but I’m also wondering why a comparison of pub quality in these three places would focus primarily on regulatory or economic issues rather than that diffuse and confusing beast we call culture. I can think of two reasons why people tend to write disproportionately about economic and regulatory reasons for these kinds of problems. First, they’re concrete. You can investigate the regulatory issues surrounding licensing businesses in your area pretty easily, and those rules are discrete and public and clear. Then you can analyze the expected results. Second, problems with regulatory and eocnomic origins are amenable to solution. Change the regulations and you might in principle have solved the problem, even if in this case nobody can figure out quite how to do that.

But what strikes me overwhelmingly about the difference between bars/pubs in London, New York and Washington is that these three cities have completely different nightlife cultures. Those cultures are irreducible to the regulatory environment or to economic behaviour. The regulatory environment in London doesn’t do much to explain why, when you walk through Southwark on a winter’s evening at 6:30pm with the thermometer tipping 0 degrees centigrade, you see crowds of men and women in long dark coats standing on the sidewalk sipping pints of bitter. It doesn’t explain the fact that up until 1990 there basically wasn’t a decent atmospheric bar with good food in Washington, DC, or not one that would be recognised as such by someone from New York or London. It doesn’t explain the fact that even though breweries are allowed to own pubs in England, and are prevented from doing so in America, most pubs in London that are bought up by breweries or conglomerates have retained their individual characters and atmospheres, while in America they would almost certainly be swept under by company-wide branding campaigns. It doesn’t even explain why bars in Washington have gotten so much better over the past 15 years that when I go back, I barely recognise the place.

Andrew Sullivan

McArdle responds to Steinglass:

One can argue about whether our posts should reflect more on culture, but I can tell you why they do focus on regulatory issues:  we all live in DC.  And in DC, regulatory decisions are very clearly driving what the bar culture looks like.

The gentrification boom in DC has hit up against a limited supply of bars–and neighborhood commissions that are very resistant to quickly opening more of them.  The result is that no bar stays un-crowded for long; if it’s any good at all, it’s soon overwhelmed with a tidal wave of people fleeing the standing-room-only crowds at all the other bars.  The bars aren’t like this because most people in DC want to spend their Friday nights packed like cheap sardines; the bars are like this because there are so few of them in the areas where people under 35 live, that the only people who can bear to be in them are the people who will tolerate any conditions, including those of veal calves, if only they can endure them while holding a drink.

This is a new development in the areas of DC where, as it happens, Matthew Yglesias, Ryan Avent and I, all like to go out of an evening.  When I moved to DC a scant three and a half years ago, there were enough bars where you could enjoy a Thursday night seated in the company of friends. Then came January 2009, when I held a birthday get-together at a previously local place on 11th street.  Unfortunately, there wasn’t much getting together; more than half the people were turned away because of overcrowding.  Several bars had been shut down in Adams Morgan because the weren’t serving enough food to comply with their tavern licenses; the result was that Adams Morgan relocated to U Street.

Since then, this pattern has been repeated over and over; any bar that opens is pleasant for a month or so, then completely, miserably jammed.