Tag Archives: The American Scene

An Apple A Day, Yadda, Yadda, Yadda

Ezra Klein:

File this one under “health care doesn’t work nearly as well as we’d like to believe.” A group of researchers followed almost 15,000 initially healthy Canadians for more than 10 years to see whether universal access to health care meant that the rich and the poor were equally likely to stay healthy. The answer? Not even close.

The researchers ran the data two ways: High-income patients vs. low-income patients, and highly educated patients vs. less educated patients. Over the course of the study, the high-income patients were only 35 percent as likely to die as the low-income patients, and the highly educated patients only 26 percent as likely to die as the low-income patients. And the problem wasn’t that the low-income and low-education patients were hanging back from the health-care system. Because they were getting sick while their richer and better educated counterparts weren’t, they actually used considerable more in health-care services.

The problem, the researchers say, is that the medical system just isn’t that good at keeping people from dying. “Health care services use by itself had little explanatory effect on the income-mortality association (4.3 percent) and no explanatory effect on the education-mortality association,” they conclude.

You don’t want to over-interpret this data. It’s possible that in the absence of insurance, the gap would be much wider. Indeed, there’s good evidence suggesting that’s true. Nevertheless, this should make us very skeptical about a world in which we’re spending almost one out of every five dollars on health-care services. Universal insurance is crucial both for certain forms of health care and for economic security. But as I’ve argued before, it’s probably not the best way to make people healthier. Rather, the best way to make people healthier would be to get health-care costs under control so there’s more money in the budget for things like early-childhood education and efforts to strip lead out of walls, both of which seem to have very large impacts on health even though we don’t think of them as health-care expenditures.

Arnold Kling:

And that is from a study in Canada.3. The Washington Post reports,

A 2006 study by the U.S. Department of Education found that 36 percent of adults have only basic or below-basic skills for dealing with health material. This means that 90 million Americans can understand discharge instructions written only at a fifth-grade level or lower.

My guess is that if you want to improve health outcomes in the United States, ignore health insurance and focus on literacy. Even if it has nothing to do with whether or not they can follow a doctor’s written instructions, my guess is that better literacy has a positive impact on health outcomes. The question is whether educators know enough about how to improve literacy to be able to do so effectively. I hope that is the case.

Tim Carney at The Examiner:

During debate over the health-care debate, liberal blogger Ezra Klein wrote that blocking the legislation would “cause the deaths of hundreds of thousands of people.” The liberals were relying on a study from the Urban Institute saying 20,000 people die a year because they are uninsured. Free-market blogger Megan McArdle read the study and concluded:

when you probe that claim, its accuracy is open to question. Even a rough approximation of how many people die because of lack of health insurance is hard to reach. Quite possibly, lack of health insurance has no more impact on your health than lack of flood insurance.

Klein came back with this:

I don’t want to be too harsh, and I don’t want to imply that anyone is sitting around twirling their mustache thinking up ways to hurt poor people. But opposition to health-care reform (which is different than opposition to the people who would be helped by health-care reform) is leading to some very strange arguments about the worth of health-care insurance — arguments that don’t fit with previous opinions, revealed preferences, or even the evidence the skeptics are citing.

But today, with the fight over ObamaCare behind us, and the President dealing with expectations over what his bill can deliver, Klein has a blog post that goes much farther than McArdle ever did. Klein’s headline:

Health care doesn’t keep people healthy — even in Canada

The main thrust of Klein’s blog post:

The problem, the researchers say, is that the medical system just isn’t that good at keeping people from dying. “Health care services use by itself had little explanatory effect on the income-mortality association (4.3 percent) and no explanatory effect on the education-mortality association,” they conclude.

I don’t want to be too harsh, and I’ve got nothing against what Klein used to call “arguments that don’t fit with previous opinions,” so I’ll just recommend you spend more time reading Megan McArdle.

The same is true, I’ll bet, for folks like Tim Carney who like to argue that medical care is ineffective as a way to argue against subsidizing health insurance for poor people. But for the record, the best evidence we have suggests that health-care coverage does much more for the health of poorer people than it does for the health of well-compensated, highly educated people like Carney. That folks like Carney use that evidence to continue a status quo in which they have health insurance and the poor don’t is, I think, proof of how seriously they take their arguments on this score, and of what this discussion is really about — and the answer isn’t “improving the health of the population.”

Karl Smith at Modeled Behavior:

I suspect we have two things going on.First, education confers status and status is related to health outcomes. For example Oscar winners live longer than those simply nominated. How this link occurs is not totally clear. It seems that the hormones associated with stress and disappointment – cortisol for example – reduce long run health. However, this may not be the mechanism. No one really knows at this point.

Second, for a long list of reasons there is correlation between education and physical attractiveness. Physical attractiveness is by evolutionary design a proxy for health. Which to say, healthier folks are more likely to become well educated.

This makes me doubt that power of health improvements from increasing education.

In general it is just damn hard to improve health outcomes. Our bodies are the product of about 4 billion years of evolution. Just making sense of how they work is hard enough. Making them work better is a herculean task.

Jim Manzi at The American Scene:

There is a debate going on in the blogosphere between Ezra Klein, Arnold Kling, Karl Smith, Tim Carney and others about, to put it crudely, whether health care really affects health that much. This is, in part, a proxy debate for whether it is worth it for the U.S. government to provide generous universal health care financing for all of its citizens (or, I suppose, residents).

Either position can be caricatured. On one hand, no sane person would want to be without the advances of modern medicine. Recently, a little girl I know had scarlet fever. A century ago, this would very possibly have meant burying a small corpse; today, it implies a 10-day cycle of swallowing medicine at breakfast and dinner. There are few people on Earth who have as much reason to be proud of how they spend their work week as pharmaceutical researchers.

On the other hand, the link from alternative methods of health care finance, through the actual differences in provision of medical care these imply in the contemporary U.S., to the actual differences in health outcomes these treatment differences would cause, isn’t nearly so obvious. The net health effect of providing universal health care coverage versus some alternative financing system is an empirical question, not a philosophy debate.

I’ve written a lot about why randomized experiments are so critical to understanding cause-and-effect relationships in social policy. In the case of health care financing, the reason is that what system of health care financing you have (high-quality “go to any doctor” plan; good HMO; catastrophic-only plan; VA; go to an emergency room because you are uninsured, etc.) is bound up with a myriad of other factors that influence health. A randomized experiment allows us to isolate the impact of the system of health care financing.

To my knowledge, the only large-scale randomized experiment in the U.S. that has tested the actual effects on health of providing various kinds of healthcare financing was the RAND Health Insurance Experiment (HIE). In this experiment, thousands of families were randomly assigned to one of five different health insurance plans that ranged from something like a plan that provides free health care, to something like a pure catastrophic-only plan in which consumers pay out-of-pocket for day-to-day healthcare. The study tracked what exact health care services each group used, and how their health varied over a period of 3 – 5 years.

Ezra Klein describes this experiment as “the best evidence we have,” and writes that it “suggests that health-care coverage does much more for the health of poorer people than it does for the health of well-compensated, highly educated people.” His statement is correct, but as a summary of the results of this experiment, seems to me to be radically incomplete. In fact, the experimenters wrote of the findings that “cost sharing reduced the use of nearly all health services,” but “the reduction in services induced by cost sharing had no adverse effect on participants’ health.” Think about that. Providing people coverage of their medical costs caused no average improvement in health.

Klein is correct that there appeared to be a net health benefit for the poorest participants, but this was for a tiny proportion of the population, and for a small subset of medical conditions. According to the study, “The poorest and sickest 6 percent of the sample at the start of the experiment had better outcomes under the free plan for 4 of the 30 conditions measured.” There are technical reasons why conclusions from such a experiment are not reliable for post hoc subgroups in the way that they are for average comparison of a test group versus a control group; but even if we were to accept this finding as valid, it’s not obvious to me that we would want to devise a health care financing system for the United States around helping 6% of the population partially ameliorate about 10% of their potential health problems, as opposed to developing some specific supplementary programs for these issues, if they could be addressed feasibly.

Klein clearly has a very sophisticated take on the issue, and wrote in 2009 that health care reform is not primarily about improving health, but in reducing how much we spend on it. As he put it, “The purpose of health reform, in other words, is to pay for health care — not to improve the health of the population.” Fair enough. But the real debate, then, would be about whether market forces or bureaucratic control would be better at reducing costs, not about which would be better at promoting health for the “poorest and sickest” or anybody else. It wouldn’t be about getting better health outcomes.

A single experiment like the RAND HIE is not definitive. Among other things: it finished in 1982, and we live in a different world; any such experiment requires replication; it might be that the important health effects take much longer than 5 years to materialize, and so on. But as an observer of the health care debates, it always struck me as fascinating that the fact that the “best evidence we have” showed that providing health care coverage doesn’t actually improve average health wasn’t treated as more central.

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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.

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

Mark Kleiman:

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

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

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

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

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

Pejman Yousefzadeh:

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

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

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

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

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

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

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

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

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

Jonathan Adler:

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

Sasha Volokh:

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

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

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

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

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

Matthew Yglesias:

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

Brad DeLong:

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

Wow.

Ilya Somin:

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

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

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

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

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

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

Mark Kleiman:

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

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

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

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

Eugene Volokh:

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

Noah Millman at The American Scene:

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

So how is the asteroid to be stopped?

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

But would everyone participate?

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

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

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

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

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

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

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

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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.

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RT: Subpoena #wikileaks

Kim Zetter at Wired:

The U.S. Justice Department has served Twitter with a subpoena seeking information on an Icelandic lawmaker who has worked with WikiLeaks and its founder Julian Assange, the lawmaker told Threat Level on Friday.

“I got the letter from Twitter a couple of hours ago, saying I got 10 days to stop it,” wrote Birgitta Jonsdottir, a member of Iceland’s parliament, in an e-mail. “Looking for legal ways to do it. Will be talking to lawyers from EFF tonight.”

EFF refers to the Electronic Frontier Foundation, a non-profit civil liberties group in the United States.

On her Twitter feed, Jonsdottir said the government is seeking an archive of tweets she sent out since Nov. 1, 2009 as well as “personal information” for her account. (See update below)

Josdottir told Threat Level that the request was filed under seal by the Justice Department on December 14 in U.S. District Court in Alexandria, Virginia. This is the same jurisdiction where, according to previous press reports, a federal grand jury is investigating possible charges against Assange, with whom Jonsdottir has worked closely.

Glenn Greenwald:

It’s worth recalling — and I hope journalists writing about this story remind themselves — that all of this extraordinary probing and “criminal” investigating is stemming from WikiLeaks’ doing nothing more than publishing classified information showing what the U.S. Government is doing:  something investigative journalists, by definition, do all the time.

And the key question now is this:  did other Internet and social network companies (Google, Facebook, etc.) receive similar Orders and then quietly comply?  It’s difficult to imagine why the DOJ would want information only from Twitter; if anything, given the limited information it has about users, Twitter would seem one of the least fruitful avenues to pursue.  But if other companies did receive and quietly comply with these orders, it will be a long time before we know, if we ever do, given the prohibition in these orders on disclosing even its existence to anyone.

Jacob Palmer at GizmoCrunch:

If you’re wondering whether Twitter will fold or fight (with lawyers to back them up) after receiving the subpoena, the following clause from Twitter’s “spy guide” policy will tell you:

“In accordance with our Privacy Policy and Terms of Service, non-public information about Twitter users is not released unless we have received a subpoena, court order or other legal process document.” Such requests would only be valid if sent by law enforcement.”

So yes, they would most likely fold faster than Superman on laundry day. More on this as it develops.

Ryan Singel at Wired:

To Twitter’s credit, the company didn’t just open up its database, find the information the feds were seeking (such as the IP and e-mail addresses used by the targets) and quietly continue on with building new features. Instead the company successfully challenged the gag order in court, and then told the targets their data was being requested, giving them time to try and quash the order themselves.

Twitter and other companies, notably Google, have a policy of notifying a user before responding to a subpoena, or a similar request for records. That gives the user a fair chance to go to court and try and quash the subpoena. That’s a great policy. But it has one fatal flaw. If the records request comes with a gag order, the company can’t notify anyone. And it’s quite routine for law enforcement to staple a gag order to a records request.

That’s what makes Twitter’s move so important. It briefly carried the torch for its users during that crucial period when, because of the gag order, its users couldn’t carry it themselves. The company’s action in asking for the gag order to be overturned sets a new precedent that we can only hope that other companies begin to follow.

The decision would be laudable in almost any situation, and may even be unprecendented by a massive tech firm. The only other gag orders I can think of that were challenged in court were those served on the Internet Archive, on a small library and on Nicholas Merrill, the president of the small New York City ISP Calyx Internet Access, who spent years resisting a National Security Letter order seeking information about one of his clients.

Even more remarkable, Twitter’s move comes as a litany of companies, including PayPal, Mastercard, VISA and Bank of America, follow the political winds away from the First Amendment, banning donations to WikiLeaks. And Amazon.com voluntarily threw the site off its hosting platform, even though there’s nothing illegal in publishing classified documents.

By standing up for its users, Twitter showed guts and principles. Much of it is likely attributable to Twitter’s general counsel Alexander Macgillivray. As security and privacy blogger Christopher Soghoian notes, Macgillivray was one of the first law students at Harvards’ Berkman internet law center and at in his previous job at Google “played a major role in getting the company to contribute takedown requests to chillingeffects.org.”

Alexis Madrigal at The Atlantic

E.B. Boyd at Fast Company:

Twitter’s general counsel comes out of Harvard’s prestigious Berkman Center for Internet and Society, the cyber law powerhouse that has churned out some of the leading Internet legal thinkers. The center was founded a little over a decade ago by none other than Charles Nesson, the famous defender of Pentagon Papers leaker Daniel Ellsberg. While at Harvard, Macgillivray helped teach a course on the law of cyberspace, along with Wendy Seltzer, a fellow at Princeton’s Center for Information Technology Policy. Today Seltzer leads the Chilling Effects clearinghouse, a collaboration between several law schools and the Electronic Frontier Foundation, which tracks legal challenges to lawful online activity.

After Harvard, Macgillivray worked as a litigator for Silicon Valley super-firm Wilson Sonsini Goodrich & Rosati before moving to Google, where he first spearheaded legal issues for products like Search and Gmail. He soon found himself enmeshed in the fractious Google Books lawsuit. Observers credit Macgillivray’s agile mind and creative thinking with architecting with the Google Books Settlement–a solution that both enabled Google to lawfully scan the contents of university libraries and to create a mechanism for authors and publishers to get their out-of-print books back into circulation.

Twitter wooed Macgillivray away from Google in the summer of 2009, and he now heads a 25-person legal team. Throughout his career, he has remained an avid student of Internet and intellectual property law, and calls himself a tinkerer of sorts–his personal website is called “bricoleur,” a French term he says refers to one who “[tries] things out until they figure out how to do something.”

Macgillivray also curates a Twitter list of the primary thinkers tangling with cyber issues, and he has occasionally returned to Berkman to guest lecture or speak on topics of the day. Coincidentally, a week before the DOJ subpoena, Macgillivray was tweeting about a government analysis looking at which criminal statutes might apply to the WikiLeaks-style publication of leaked classified documents.

Twitter has declined to comment on the original subpoena and the company’s fight to get it unsealed. What we do know is that the original order was faxed to Twitter on December 14. On January 5, the same magistrate who signed the first order, signed a new one, ordering the first to be unsealed. And on January 7, Twitter sent notifications to at least several of the holders of the accounts listed on the subpoena, telling them the company would respond to the order in 10 days, unless “we receive notice from you that a motion to quash the legal process has been filed or that this matter has been otherwise resolved.”

It’s reasonable to assume that Macgillivray is the person who either led or played a significant role in the thinking that resulted in the decision to challenge the secrecy aspect of the order. If so, it’s a smart move.

Vadim Lavrusik at Mashable:

The journalist cannot adequately promise anonymity on social sites like Twitter or others, but that won’t stop whistle-blowers from contacting journalists on those sites. Whistle-blowers will still reach out to journalists on those platforms because that’s where they are often most accessible. Therefore, it ultimately starts with protection from the platform.

Journalists may be able to offer some protection in knowing that the platform will not disclose source information. But this would take a serious restructuring of the current culture of companies that do not stand up for their users. Twitter’s move to notify its users is a step in the right direction.

But notification is not enough to provide protection to journalists whose information is being subpoenaed by a federal court. In the U.S., 36 states and Washington, D.C. have journalist shield laws — legislation that provides reporters a privilege to refuse to disclose any information or sources obtained during their reporting. The rest of the states either provide some protection or none at all. But because there is no federal statutory reporter’s shield law, Jane Kirtley, who teaches media ethics and law at the University of Minnesota, says that in all likelihood, there would be no protection for a journalist being subpoenaed on a federal level.

Kirtley notes there are federal attorney general guidelines, which discourage the use of subpoenas against the press, but nothing to outright prohibit them as long as the attorney general approves it.

The case with Twitter and other tech companies is that these are not considered to be subpoenas for journalists’ records, so even if there is a privilege, it is unlikely to apply to these records, Kirtley said. This is a loophole that gives journalists little protection or right to protect themselves in their reporting while using such sites.

If a journalist refuses to disclose information to a government entity requesting it in an investigation, the court can simply go to the platform of communication to get the records. With many social media sites playing a vital role in news distribution and watchdog journalism, this requires a stand from those sites against disclosing such information in a broken system that once recognized the value of protecting journalistic integrity.

But ultimately, the privilege of shield laws should also extend to the social platforms hosting the information that is shared between whistle-blowers and journalists. And until there is a federal shield law for reporters, protection for such newsgathering will be nonexistent. This is the only way to fix the broken system. Platforms can only protect their users to a certain extent. It then becomes a legislative issue around the protection of journalists and the Fourth Estate.

Walker Frost at The American Scene:

Let’s rewind to November 2007. Yahoo had just complied with the Chinese government’s request for the IP information and e-mail records of Wang Xiaoning and Shi Tao, two Chinese dissidents who China accused of “illegally providing state secrets to foreign entities.” Michael Callahan, the Yahoo’s executive VP and general counsel, was in Congress getting reamed by the late Tom Lantos (D-CA), Chairman of the House Foreign Affairs Committee, for the company’s gross moral failure: “Yahoo claims that this is just one big misunderstanding. Let me be clear—this was no misunderstanding. This was inexcusably negligent behavior at best, and deliberately deceptive behavior at worst.”

Yahoo’s response: “Like other global organizations we must abide by the laws, regulations and norms of each country in which we operate.”

“Why do you insist on using the phrase, ‘lawful orders?’” Lantos challenged. “These are the demands of a police state.”

Lantos even brought Shi Tao’s mother to the hearing, seated her in the front of the room, and told Yahoo CEO Jerry Yang: “I would urge you to beg the forgiveness of the mother whose son is languishing behind bars thanks to Yahoo’s actions.”

How the tables have turned.

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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.

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Some Television Coverage Of Their Own?

Eddie North-Hager at the University of Southern California:

Even the ESPN Ticker gives women short shrift – 96.4 percent of the information scrolling along the bottom of the screen was dedicated to men’s sports.

The finding is part of a 20-year study of sports coverage released by USC sociologist Mike Messner and Purdue University sociologist Cheryl Cooky. Though it was not surprising to discover that men’s sports gets more coverage, it was eye-opening when researchers found that women’s sports accounted for less than 2 percent of network news and ESPN’s SportsCenter.

“There’s a message that sports is still for, by and about men,” Messner said. “When will the news catch up?”

Just as surprising is that as more women than ever participate in all levels of sports, coverage of their gender is drastically declining. In 2004, network affiliates dedicated 6.3 percent to women’s sports. Last year it dropped to 1.6 percent.

“News programs are supposed to be a window to the world and there is a journalistic responsibility to reflect that,” said Messner, an expert in the sociology of sports.

In 1971, 294,000 high school girls played interscholastic sports. Today 3.1 million play, much closer to the 4.4 million boys who play high school sports.

Yet network affiliates ran 60 stories on NCAA men’s basketball in March 2009. There were no stories about women.

It’s not that ample coverage of men’s sports leaves no time for women. The researchers found that newscasts routinely air light sports features, such as a story about a hamburger with 5,000 calories and 300 grams of fat sold at a minor league baseball park in Michigan.

The discrepancy is important, Messner said, as it reinforces the stereotype that sports proves men are superior to women, that the women’s product isn’t the same quality or would not have the same mass appeal. Messner points out those arguments have been used before, such as when African Americans weren’t considered good enough to compete in Major League Baseball.

Fred Bowen at The Washington Post:

So if you love women’s sports, what can you do? First, support women’s teams and go to the games. Ask your parents and friends to go to the games. Get tickets for the Washington Mystics or the Freedom soccer team. And don’t forget all the wonderful local women’s college teams.

Second, watch women’s sports on television whenever you can. Women’s teams need all the fans they can get. Television news shows and newspapers are businesses that cover the most popular sports. In Washington, TV stations, radio shows and even KidsPost talk about the Redskins because so many people watch the games and are interested in the team.

Finally, don’t give up. Recently, I read the book “When the Game Was Ours,” about basketball legends Larry Bird and Magic Johnson. Author Jackie MacMullan mentions that Game 6 of the 1980 NBA championship between the Los Angeles Lakers and the Philadelphia 76ers was not on live TV. It was on tape delay late at night.

Thirty years ago, even the men’s NBA was not a big-time sport. It took years for the NBA to become so popular. Maybe with a little help, the same can happen with women’s sports.

Christina Hoff Summers at The American Enterprise Institute:

But the heavy focus of news and highlights shows on men’s sports is not only fathomable but obvious—that is where the fans are. And that is where advertisers expect to find customers for “male” products such as beer, razors, and cars. Men’s professional sports are a fascination (obsession is more like it) to many millions of men, because they offer extreme competition, performance, and heroics. Women’s professional sports, however skilled and admirable, cannot compare in Promethean drama.

Even women prefer watching male teams. Few women follow the sports pages and ESPN, but many enjoy attending live games—featuring male athletes. According to Sports Business Daily, 31 percent of the NFL’s “avid fans” are women.

Nyad and the USC study authors demand that television cover women’s sports “fairly and equitably,” but the study never once mentions the word “attendance.” Shouldn’t fan interest in the games drive the media stories? Economist Mark Perry, my colleague at the American Enterprise Institute, looked at the numbers. For the 2009 season, the NBA got 92.3 percent of the total attendance for pro basketball (NBA plus WNBA), while the WNBA got only 7.7 percent of the total attendance (see chart below). But according to the USC study, the WNBA received 22.2 percent of the coverage. Perry’s conclusion: “So women’s pro basketball got a hugely disproportionate share of media coverage. Total attendance at NBA games was 12 times greater than attendance at the WNBA games, but media coverage was only 3.5 times greater for men than for women.”

Rod Dreher:

I’m not a sports fan, but it seems pretty clear to me that almost nobody wants to watch professional women’s sports. The question is why. I suppose the feminists would say that the market actually is there, if only the people who run TV sports would notice. Really? You think that people who really only want to make money, and don’t care how they do it, are turning their nose up at an opportunity to exploit an untapped market? Highly doubtful. The more interesting question is why, in a sports-crazy nation, people — even many women — only really care about male sports.

Conor Friedersdorf at The American Scene:

Sports journalism has changed a lot since 1989, and contrary to what the USC study implies, anyone who wants to follow women’s sports is actually a lot better off now due to niche media that both offers coverage of practically any team one would want to follow, and helps explain why mass market programs like Sports Center and network news sports shows cover teams or athletes with niche audiences less — if you’re interested in the WNBA, you can buy a package through your cable company to get all the games, follow the season on ESPN.com, join a fantasy league, etc.

As a high school athlete, and a recreational athlete still, I’m totally behind the move to give girls an equal opportunity to benefit from college athletics, and if I have daughters one day, I’ll encourage them to play sports by installing a basketball hoop on the driveway and buying them surfboards. Upon going to college, I’ll want them to have an equal opportunity at getting an athletic scholarship. But there isn’t any reason why network news and ESPN should give equal time, or anything approaching it, to women’s sports — they should follow market demand (and when they depart from it, they should televise less golf, a sport with a tiny audience of very rich consumers).

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Filed under Feminism, Sports, TV