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Clips of Jon Stewart shows
Viacom/Comedy Central retreats from some legal rumblings on behalf of a show itself known for its clever use of video clips from other sources. [Levy, CL&P]
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Truck-driver father runs over own daughter; guess who is to blame?
In 2004, truck driver Simon Loza Mejia violated company regulations, and took his eight-year-old Diana Yuleidy Loza-Jimenez along on a long-haul trip from Oregon to Bakersfield. That November 27, he was pulling away in the truck, but apparently didn’t bother to check where his daughter was, and ran over her. This was, argued her attorneys, the fault of her father’s employer—and a Sacramento County judge agreed with the argument that it was legally irrelevant that her father was the one who ran her over. Unsurprisingly, a jury ignorant of the facts awarded Diana, whose lower body was crushed, a jackpot verdict of $24.3 million, over $20 million of which was noneconomic damages. (Andy Furillo, “Sacramento jury awards record $24.3 million to girl run over by dad’s truck”, Sacramento Bee, Mar. 9 (h/t @BobDorigoJones)).
Tags: California, jackpot justice, noneconomic damages, pedestrian, personal responsibilityRelated posts
Democracy and the Appeal of Socialism
Economist Bryan Caplan wonders why socialism ever developed any broad appeal, given the weaknesses of the idea of the “New Socialist Man”:
The classic argument against socialism is that it gives people bad incentives. What’s the point of working, conserving, saving, quality control, and/or taking out the garbage if they don’t pay? The classic socialist reply is that capitalism creates the selfishness it purports to benevolently channel. Socialism will give birth to a “New Socialist Man” who loves his neighbor as himself....
I’ve always considered the New Socialist Man position to be not just weak, but absurd. Ever heard of Darwin? People are selfish because of billions of years of evolution, not capitalism. End of story...
I take hindsight bias seriously. Many mistakes really are hard to see until you actually make them. But socialism wasn’t one of them.
If the possibility of radically altering human nature were the only rationale for socialism, Bryan’s point would be compelling. As he notes, early critics of socialism quickly pointed out many of the perverse incentives it would create. You don’t have to be a sophisticated economist to realize that most people are self-interested most of the time, and that they are unlikely to work hard if there is no reward for doing so. However, the theory of the “new socialist man” was never the only version of socialism, and not always the most influential.
Democratic socialism was a crucial alternative rationale for state ownership of the economy. Even if people remain selfish, bringing the economy under the control of a democratic government could still greatly improve the lot of the common people. Unlike capitalists who pursue only their own profit, democratically elected politicians have to serve the interests of the majority of voters — even if the politicos are power-hungry weasels who only care about about their self-interest. If they don’t serve the needs of the people, the people will vote them out. And elected leaders can in turn create good incentives for the bureaucrats, workers, and lower-ranking officials who actually run government-owned industries. Again, if they fail to do this, the people will throw the bums out.
There are many, many problems with the theory of democratic socialism. But notice that it doesn’t assume any reduction in human selfishness. To the contrary, it holds that selfish voters vote for policies that benefit them, and selfish politicians will have to do their bidding. Something like this idea was espoused by mainstream socialist parties in early 20th century Britain, Germany, and elsewhere (though they also occasionally claimed that socialism would reduce selfishness as well). Even totalitarian communist regimes paid some lip service to the theory, which is why they all constantly claimed to be “democratic” and held ritualistic elections where only government-approved candidates could run.
I’m not going to give a detailed critique of democratic socialism here. Suffice to say that it is vulnerable to the sorts of criticisms that I outlined in this post: voters have incentives to be rationally ignorant about policy; even a democratic government won’t be able to acquire the information it needs to efficiently run large parts of the economy; interest groups can easily “capture” the government and use its power to benefit themselves at the expense of the general public. There are other compelling objections to it as well.
The key point for present purposes is that most of these objections are relatively nonobvious, especially to the vast majority of voters who haven’t studied basic economics. Even many otherwise sophisticated intellectuals have a weak understanding of economics as well, and that was probably even more true during the heyday of socialism’s popularity than today.
It’s easy to assume that the debate over democratic socialism is of only historical interest. Even on the political left, very few people still claim that the democratic socialist argument justifies government control of the entire economy. I see that as genuine progress, even though the debate over socialism is not completely over.
But we still have a long way to go. While few today use the democratic socialist argument as a justification for full-blown socialism, many on both the left and the right use very similar arguments to justify central planning of large parts the economy and society, include vast sectors such as education and health care. Every politically aware person has probably heard something like it used as a justification for all sorts of government interventions.
If the democratic socialist argument is a poor rationale for government control over 80 to 90% of the economy, we should consider the possibility that it’s an almost equally weak justification for government control of the 35–60% of GDP that the state spends in most democratic societies today.
UPDATE: Commenter “JR” perceptively points out that my criticisms of democratic socialism “sound more like critiques of democratic theory in general than democratic socialism in particular.” He’s right. The democratic socialist argument is an extension of the more general standard argument for democracy, which is part of its appeal. The main rationale for democracy is that it gives government strong incentives serve the interests of the people. The democratic socialist argument is that the economy should be controlled by a democratic government, because that will ensure that it will be structured to benefit the majority of voters rather than a small class of capitalists. Thus, the main shortcomings of democratic socialism are likely to be especially severe forms of the flaws of democracy as such. However, for reasons I discussed here, these problems are much more severe if the size and scope of government is large.
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Better late than never dept.
Billions in costs and who knows how many discontinued businesses and products later, the Consumer Product Safety Commission agrees it would be a good idea to do an economic impact analysis of CPSIA. [Commissioner Anne Northup]
Tags: CPSIARelated posts
The State of the Union Clause
It does read, “He [the President] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient” (emphasis added). So it’s actually unconstitutional for the Justices to show up. Shame on them! They should go back to Article III, where they belong. Or, wait, maybe it’s the President who’s at fault for giving the information to unauthorized persons?
Of course that’s actually a vast overstatement: That the President shall give the Congress information about the state of the union doesn’t mean that he can’t give it to others at the same time. The matter here (such as it is) is of tradition, not of constitutional text. Still, if the Justices want a reason to stay away, the Congress Provision of the State of the Union Clause should serve as an adequate excuse.
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A Federal Receivership for a State?
Query to readers. Over at Slate Explainer, Christopher Beam explains that although municipalities and cities and such can go bankrupt under the Federal bankruptcy code, states are not included under Chapter 9. Right, got it. He then adds something I don’t doubt is true, but wonder if readers can point me to the relevant legal authority — the ability of the Federal government to take a state into “receivership” — something, he adds, that has never happened.
What is the legal authority for this process of Federal receivership of a state of the United States?:
Say the state can’t make its debt payments, and no one will lend it any more money. In that case, the federal government can step in and put the state into receivership. This would involve the assignment of an accountant to manage the state’s debt, overseen by a judge. It would be a lot like bankruptcy, except instead of following a structured set of steps—informing creditors, appointing creditors’ committees, a 120-day window to file a plan, etc.—a receiver has the authority to force creditors to renegotiate loans in a speedy fashion. However, the accountant in charge would not have the power to make decisions about the state’s budget, such as which programs needed to be cut and which taxes had to be raised. (No state has ever gone into receivership.)
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Two Views of Credit Default Swaps
Two items in today’s Wall Street Journal (Tuesday, March 9, 2010) capture two different views of regulatory reform of credit default swaps. The first is the emerging European view:
European leaders pushed for a ban on speculative bets against government debt following recent financial turmoil in Greece ... German Chancellor Angela Merkel said Tuesday that her government is backing an initiative to curb the credit-default swaps market, together with France, Greece and Luxembourg, and she suggested Europe would forge ahead on its own even if the U.S. didn’t go along.
José Manuel Barroso, president of the European Commission, the European Union’s executive arm, said the commission would examine closely the possibility of banning outright “purely speculative” trading of the swaps ...
The ban now being discussed in Europe would allow investors to use the contracts to hedge against possible defaults by government borrowers, but prevent them from taking purely speculative positions. “It’s hard to justify why market players should purchase insurance against risks to which they are not themselves exposed,” Mr. Barroso said.
There are a number of responses one could make to the EU’s Barroso (below the fold, I put what appears to be the implied Obama administration view). Contrast this, however, with the March 9, 2010 speech by CFTC Chair Gary Gensler on CDS regulatory reform. Gensler did not suggest attempting to ban “speculative” trading in CDS, but did endorse three general reforms to the CDS (and more generally the OTC derivatives) market:
The 2008 financial crisis demonstrated how over-the-counter derivatives – initially developed to help manage and lower risk – can actually concentrate and heighten risk in the economy.
A comprehensive regulatory framework governing over-the-counter derivatives should apply to all dealers and all derivatives, no matter where traded or marketed. It should include interest rate swaps, currency swaps, foreign exchange swaps, commodity swaps, equity swaps, credit default swaps and any new product that might be developed in the future. Effective reform of the marketplace requires three critical components:
First, we must explicitly regulate derivatives dealers. They should be required to have sufficient capital and to post collateral on transactions to protect the public from bearing the costs if dealers fail. Dealers should be required to meet robust standards to protect market integrity and lower risk and should be subject to stringent record-keeping requirements.
Second, to promote public transparency, standard over-the-counter derivatives should be traded on exchanges or other trading platforms. The more transparent a marketplace, the more liquid it is, the more competitive it is and the lower the costs for companies that use derivatives to hedge risk. Transparency brings better pricing and lowers risk for all parties to a derivatives transaction. During the financial crisis, Wall Street and the Federal Government had no price reference for particular assets – assets that we began to call “toxic.” Financial reform will be incomplete if we do not achieve public market transparency.
Third, to lower risk further, standard OTC derivatives should be brought to clearinghouses. Clearinghouses act as middlemen between two parties to a transaction and guarantee the obligations of both parties. With their use, transactions with counterparties can be moved off the books of financial institutions that may have become both “too big to fail” and “too interconnected to fail.” Centralized clearing has helped to lower risk in futures markets for more than a century.
Gensler’s speech is serious, plain-spoken and, even if one disagrees with particular policy prescriptions, a useful, well-organized walk through the issues. I think that most participants in the regulatory reform process would accept these proposals as commonsense, at least in the US; going beyond them to the kinds of proposals being made in Europe currently is a different matter. (There has been a lively debate going on in the Financial Times in the past few days over CDS and liquidity.) (My own view is close to Gensler’s, FWIW, and where it differs, it certainly does not head down the EU path outlined above.)
Regarding the insurable interest question and “speculative” trading in CDSs, here is Gensler on both speculative trading and the “empty creditor” problem (it’s a lengthy quote from the speech, which I include for completeness):
Market Manipulation
The CFTC and the SEC should have clear authority to police the over-the-counter derivatives markets for fraud, manipulation and other abuses. It is important that these markets serve to help people hedge risk as well as provide for efficient and transparent price discovery markets.
At the height of the crisis in the fall of 2008, stock prices, particularly of financial companies, were in a free fall. Some observers believe that CDS figured into that decline. They contend that, as buyers of credit default swaps had an incentive to see a company fail, they may have engaged in market activity to help undermine an underlying company’s prospects. This analysis has led some observers to suggest that credit default swap trading should be restricted or even prohibited when the protection buyer does not have an underlying interest.
Though credit default swaps have existed for only a relatively short period of time, the debate they evoke has parallels to debates as far back as 18th Century England over insurance and the role of speculators. English insurance underwriters in the 1700s often sold insurance on ships to individuals who did not own the vessels or their cargo. The practice was said to create an incentive to buy protection and then seek to destroy the insured property. It should come as no surprise that seaworthy ships began sinking. In 1746, the English Parliament enacted the Statute of George II, which recognized that “a mischievous kind of gaming or wagering” had caused “great numbers of ships, with their cargoes, [to] have . . . been fraudulently lost and destroyed.” The statute established that protection for shipping risks not supported by an interest in the underlying vessel would be “null and void to all intents and purposes.”
For a time, however, it remained legal to buy insurance on another person’s life in England. It took another 28 years and a new king, King George III, before Parliament banned insuring a life without an insurable interest.
The debate over the role of speculators in markets did not end in the 18th century. That debate continued as the CFTC’s predecessor and the SEC were set up following an earlier crisis and that debate continues on to this day. In the case of futures, Congress determined that speculators should be able to meet hedgers in a centralized marketplace. In the oil market, for example, a speculator that will neither produce nor purchase oil is able to buy or sell oil futures. But Congress did require that all such futures trading be regulated, that markets be protected against fraud and manipulation and that regulators be authorized to limit the size of the position that a speculator can take.
The Administration has recommended – and the House financial regulatory reform bill that passed in December includes – critical steps to address the use of CDS to manipulate markets or possibly commit other abuses. With regard to single-issuer CDS or narrow-based CDS, the SEC should have consistent authority over all financial instruments subject to its jurisdiction. The SEC should have the same general anti-fraud and anti-manipulation rulemaking authority with respect to credit default swaps under its jurisdiction as it has with regard to all securities and securities derivatives under its jurisdiction. In addition, the SEC should have authority to set position limits in single-issuer and narrow-based CDS markets as it now has for other single-issuer or narrow-based securities derivatives. The House bill allows the SEC to aggregate and limit positions with respect to an underlying entity across markets, including options, equity securities, debt and single-stock futures markets.
Bankruptcy
Credit default swaps also can play a significant role once a company has defaulted or gone into bankruptcy. Bondholders and creditors who have CDS protection that exceeds their actual credit exposure may thus benefit more from the underlying company’s bankruptcy than if the underlying company succeeds. These parties, sometimes called “empty creditors,” might have an incentive to force a company into default or bankruptcy. These so-called empty creditors also have different economic interests once a company defaults than other creditors who are not CDS holders.
These incentives result from the separation of economic risk from beneficial ownership. In the capital markets, assuming economic risk usually comes with some type of governance right. Shareholders place their investment at risk, which brings the right to vote and to inspect books and records. Debtholders may extend credit or buy bonds along with rights as outlined in various debt covenants and indentures, as well as having rights in bankruptcy court.
Though reform efforts to date have yet to address the bankruptcy laws, we should seriously consider modifications to address this new development in capital markets. One possible reform would be to require CDS-protected creditors of bankrupt companies to disclose their positions. Another is to specifically authorize bankruptcy judges to restrict or limit the participation of “empty creditors” in bankruptcy proceedings.
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Jonathan Schwartz: What He Couldn't Say (on Patents, OpenOffice, and Bill Gates)
Chief Justice Roberts on Attending the SOTU
Very troubling, indeed.
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Joseph Asch ’79 For Dartmouth Trustee:
Another Dartmouth Alumni Trustee election is upon us. Voting starts tomorrow. And even though the Board of Trustees eliminated parity a few years ago, alumni still elect one-third of the non ex-officio trustees. This year there are two seats open. Journalist Morton Kondracke is running unopposed for one seat. Petition candidate Joe Asch ’79 and John Replogle ’88 are contesting the other seat. I was pleased to sign Joe’s petition to obtain access to the ballot and I will vote for him tomorrow. I hope you will too. Joe will make a superb trustee. His website is here.
The case for voting for Joe Asch is made well by current trustees T.J. Rodgers, Peter Robinson, and Stephen Smith in this letter. I heartily associate myself with their comments but would like to add some additional words.
I see three characteristics of Joe that make him ideally suited to be an alumni trustee: independence, knowledge, and judgment. I was classmates with John Replogle but I don’t really know him so my comparisons are based primarily on what I’ve read on his website.
Independence: Based on my experience on the board one personal attribute stands out above all else in serving as a trustee–independence. The Dartmouth boardroom is an extraordinarily conformity-inducing environment and it takes a strong sense of independence in order to keep from being assimilated into its group-think. Joe has shown that he is willing to support the board and administration when it is in the right but equally willing to raise questions and speak up when appropriate. Let me make this clear: if you want a rubber-stamp cheerleader trustee, then Joe Asch is not your candidate. If you want a trustee who is going to ask hard questions, reach considered judgment, and collect deep reliable information on the effects of Dartmouth policies on actual students and faculty, then Joe is your guy.
Alumni should not forget that the current budget crisis at Dartmouth is not unique–it is actually the second time in a decade that the Trustees have managed Dartmouth into a major financial hole (the first one led to the swim team debacle). Dartmouth needs trustees who are going to be willing to stand up, if necessary, to prevent this from happening again. Joe blogs at Dartblog where he offers commentary and facts on Dartmouth. As can be readily seen from reading there, Joe knows the ins and outs of the College’s budget better than anyone I know (including all but one trustee (T.J. Rodgers) with whom I served). He had repeatedly pointed out areas of waste and bloat. He also offers praise where appropriate and criticism where appropriate, including his outspoken support for President Kim’s efforts to bring the College budget back into balance. He supported the former Dean of the College Tom Crady’s efforts to reform the student services bureaucracy and to make the Dean’s office more responsive to student needs. He is a friend and supporter of Dartmouth’s coaches and athletic programs. He has been entrepreneurial in his philanthropy, including funding a well-regarded student writing program. Joe is also willing to tackle issues such as alcohol enforcement and class over subscription that are important to students and faculty but which can be controversial. This is exactly the sort of courage, creativity, and intellect that the board needs.
Knowledge: Joe would bring an incredible depth of knowledge, both qualitative and quantitative to the board. He lives in Hanover and has formed friendships with many students and alumni over the years. He has audited over 30 classes over the past several years. He routinely has students and professors over to his home (I was a frequent guest during my stint as a trustee). He understands Dartmouth mission and has the kind of on-the-ground intelligence that one can gain only through those sorts of interactions with students, faculty, and administrators. This sort of information, responsibly used, cannot help but benefit the board’s decision-making.
When I went on the board in 2005 I had a number of pre-existing friendships with faculty members that I had developed through my academic career. I found the information that I obtained through those relationships to be invaluable in understanding what was really happening at Dartmouth (and which didn’t always match the official story). For example, the petition trustees were raising questions about the financial health of Dartmouth and budgetary priorities for several years at a time when the other members of the board (and the alumni establishment) were telling us that we were wrong. Subsequent events, of course, have proven us out–especially President Kim’s acknowledgment that there is a long-term unsustainable structural budget deficit.
Joe’s depth of knowledge of Dartmouth’s inner workings, combined with his independence, would make him an incredible asset. Mr. Replogle is a CEO of a trendy division of the Chlorox Corporation and, from what I can tell, seems to believe that it is micro-managing for trustees who actually talk to students, faculty, and administrators and make up their own minds about what works and what doesn’t. It reminds me of the comment of Judge Jose Cabranes, who said of trustees at the universities where he has served on the board, “No one will be surprised to learn that business executives (who make up a large part of all university boards), for example, prefer to be the sort of trustees that they would hope to have on their own boards—namely, they prefer ‘team players’ who do not disturb the peace of the executive, who recognize the limits of their own competence (limits that are especially visible in an academic setting), and who recognize the effective limits of their authority.” I don’t know whether that is Mr. Replogle’s view, but his statements and endorsements on his website are not encouraging that he will be willing to resist the party line when necessary.
Again, if alumni prefer a trustee who is simply a blank slate who will be content just to fly in four times a year and take as their sole source of information the official line of the administration and the board majority, then Joe Asch is not your man. If you are looking for someone who is going to collect information from a variety of sources, including personal experience, then Joe is the sort of engaged trustee that I think Dartmouth needs.
Judgment: Finally, Joe has excellent judgment in deciding what is right for Dartmouth’s future. Again, this flows from independence, intellect, and knowledge.
First, Joe supports the continuation of parity between elected and appointed trustees as provided in the 1891 Agreement. Mr. Replogle has waffled on this issue and now come up with some sort of scheme of appointing young alumni to the board. The bottom line here is clear: the traditional balance of parity served Dartmouth exceedingly well for over a century. There is nothing wrong with traditional parity and I’m afraid that Mr. Replogle’s effort to conjure up an alternative seems to be nothing more than a transparent cheap political ploy to straddle the issue by trying to appear to be in favor of parity while at the same being afraid to endorse traditional parity, which would put him at odds with the incumbent board majority. That sort of political fence-sitting does not bode well for an ability to resist the pressures of the board majority to toe the party line. Indeed, this political calculation is exactly the opposite of the transparency and accountability that Dartmouth needs more of from its leadership.
Parity makes use of the full wisdom of the alumni and through the petition process promotes the election of independent trustees. Joe is right on this crucial issue–and as Dartmouth’s financial catastrophe has pointed out, the need for independent trustees of colleges and universities is more important now than ever.
Second, Joe understands that promoting dual excellence in teaching and research among Dartmouth’s faculty is both crucial and attainable. Because Joe has actually been taking classes and has befriended students and faculty over the years, he knows who are the excellent teachers and he knows who are the leading scholars. He has the trust of many students, faculty, and coaches. He has been a relentless advocate for promoting the excellence of Dartmouth’s faculty and prioritizing the investments necessary to bring that about. He has been critical at the departure of some of Dartmouth’s star faculty members, such as Mike Gazzaniga or Walter Sinnott-Armstrong. Most striking to me (as a professional academic) is that Joe actually knows who are the stars on the faculty and their areas of scholarly expertise. I was always stunned at how little the non-petition trustees actually knew about the Dartmouth faculty, the work they were doing, and what they needed to succeed.
Joe, by contrast, by being in their classes and interacting with faculty on an ongoing basis is exceedingly knowledgeable about the unique challenges and opportunities of being the most undergraduate-oriented institution in the Ivy League and how to promote dual excellence in teaching and research. He understands which departments realize this and what they have done in order to prosper. And he realizes that maintaining this requires a razor-sharp focus on Dartmouth’s financial and intellectual priorities.
For those three reasons–independence, knowledge, and judgment–I am voting for Joe Asch for trustee. Alumni really do have a choice here between an establishment CEO-type candidate who seems to define his mission as being a good “team player” (in Judge Cabranes’s words) or an independent, courageous, well-informed candidate who supports traditional parity for alumni-elected trustees.
Note: Do to a technical error with accessing the blog today an earlier version of this post was inadvertently published earlier.
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Day 2 of the SCO v. Novell Trial - Opening argument - Updated Repeatedly - 1st Witness, Frankenberg
MSS2 has just sent me his first report of day 2 of the jury trial in SCO v. Novell, with more to come. Today was opening arguments by both sides. And we have lots more goodies for you from two eyewitnesses, MSS2 and Tilendor. We begin with SCO's opening argument by Stuart Singer. All I can say after reading it is maybe you needed to be there. Or SCO must be a slow learner or Mr. Singer never reads Groklaw, or ... well, see what you think.
Pennsylvania State Police Raid Bars Looking for Unregistered Beers
Rise up, beer drinkers of Pennsylvania: The State Police want to confiscate your Pliny the Younger. Thanks to Instapundit for the link.
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Lindsey Lohan sues E-trade over baby commercial
On Super Bowl Sunday, E-Trade ran one of their annoying talking-baby commercials; this one featured a blond baby named “Lindsay” (the 380th most popular baby-girl name in 2008) that another baby calls a “milk-aholic.” This, says 23-year-old Lindsay Lohan, was a violation of the rights to her “name and characterization”; she’s sued in Nassau County, New York state court, and is asking for $100 million. The advertising agency says Baby Lindsay was named after someone on the ad team. [lawsuit via TMZ; NY Post; Reuters]
Commenter Richard Nieporent reminds us of the similar Spike Lee vs. Spike TV silliness.
Tags: advertising, celebrities, Lindsay Lohan, New York state, right of publicity, Super BowlRelated posts
“Black Barbie Sold for Less Than White Barbie at Walmart Store”
So reports ABC News:
A photo first posted to the humor Web site FunnyJunk.com and later to the Latino Web site Guanabee.com shows packages of Mattel’s Ballerina Barbie and Ballerina Theresa dolls hanging side by side at an unidentified store. The Theresa dolls, which feature brown skin and dark hair, are marked as being on sale at $3.00. The Barbies to the right of the Theresa dolls, meanwhile, retain their original price of $5.93. The dolls look identical aside from their color....
A Walmart spokeswoman, who could not verify the exact store shown in the photo, said that the price change on the Theresa doll was part of the chain’s efforts to clear shelf space for its new spring inventory....
But critics say Walmart should have been more sensitive in its pricing choice.
“The implication of the lowering of the price is that’s devaluing the black doll,” said Thelma Dye, the executive director of the Northside Center for Child Development, a Harlem, N.Y. organization founded by pioneering psychologists and segregation researchers Kenneth B. Clark and Marnie Phipps Clark.
“While it’s clear that’s not what was intended, sometimes these things have collateral damage,” Dye said.
Other experts agree. Walmart could have decided “that it’s really important that we as a company don’t send a message that we value blackness less than whiteness,” said Lisa Wade, an assistant sociology professor at Occidental College in Los Angeles and the founder of the blog Sociological Images....
Wade said that Walmart could have chosen to keep the dolls at equal prices in an effort not to “reproduce whatever ugly inequalities are out there.”
Now it’s hard to figure out the precise reason for the price cut (and I assume here, based on the implications from the article, that there was a price cut). Maybe the black doll is indeed selling less well because (as Prof. Wade is paraphrased as conjecturing) “black parents are more likely than white parents to buy their children dolls of a different race.” Or maybe black parents were as likely to buy the black doll as white parents were to buy the white doll, but the store bought more black dolls than proved justified by the demographics of the store’s customers. Or maybe black parents are on average unwilling to pay as much for Barbie dolls as white parents (perhaps because black parents are poorer, or because they aren’t as into Barbie). Or perhaps (as the article suggests) the black Barbie doll is less attractive to blacks than the white Barbie doll is to whites. Or maybe there’s some other reason.
But what puzzled me about the story is that it didn’t discuss the effects of the price cut: (1) It disproportionately saved money for black parents (assuming, as is likely, that black parents are the ones who are more likely to buy black dolls). (2) It also made it more likely that white parents would buy the black doll for their white children, which might have broadened their child’s racial horizons (a symbolic effect on the child, perhaps, but the article is all about symbolic effects).
Conversely, while surely Walmart indeed “could have absorbed whatever loss it might have suffered had it kept Ballerina Theresa’s price the same as that of Ballerina Barbie” (to quote the article’s paraphrase of a source), keeping the prices the same means some loss to black parents as well as to Walmart. And while black parents could surely absorb a $2.93 price difference, too, the question — which the article did not confront — is whether they should have to.
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Drone Warfare and the Harvard National Security Conference
I’m writing from Cambridge, where I just finished a great short conference on targeted killing and drone warfare put on by the Harvard Law School National Security Law Society and Journal. The presentations should go up as video one of these days I hope!) and I highly recommend them if you are studying this topic. Particularly for us lawyer types, the presentations by engineering professor Missy Cummings and Kennedy School professor Tad Oelstrom — both former military aviators, among many other things — was highly informative about the real world of UAVs in military use. My thanks to all the students who put the conference together — we had a lovely dinner afterwards, and I enjoyed the conversation with them a great deal. My thanks to the law school as well for funding it — times are tough, even at places like Harvard — and I appreciate the dean and the school’s willingness to continue hosting events that allow for important legal and policy discussions to go forward. (Delayed a couple of days posting this — travel and then internet problems at home.)
I tried to use my time at the conference to think through some of the questions I’ve been raising both in my first published piece on this subject, Targeted Killing in US Counterinsurgency Strategy and Law, and in the long opinion essay in last week’s Weekly Standard, Predators over Pakistan. I’m going to do a series of posts extending some of those discussions.
Probably the most important conclusion for me from discussions following my Predators over Pakistan essay is that I have not been sufficiently clear, with myself or in writing, that the appeal I am making to self-defense law does not preclude the application of the normal laws of war in those places where there is an armed conflict. Discussion of this topic seems a little bit like the blind men and the elephant — the military people responsible for a counterinsurgency ground war in Afghanistan see Predator strikes in their theatre of conflict, quite rightly, as not a big issue. It is not different, really, from the missile fired by a jet 25 or 30 miles away — it’s just another standoff platform. The legal rules of targeting are no different, and it’s just another standoff firing option.
At the other extreme, however, is the CIA using Predators to attack a targeted designated by the President under procedures outlined in US statutes for covert action by the CIA. Is that different, legally? US forces are in an armed conflict with Al Qaeda, and members of AQ, combatants if we find them in Afghanistan, flee to Somalia — so we chase them down there and fire at them with Predators run by the CIA. Why isn’t that just more of the “armed conflict”? Same rules apply — geography is not really an issue.
I have argued that geography matters, not for its own sake, but rather more precisely, because in establishing whether you have an armed conflict to which the laws of war apply — displacing other regimes of law — you have to meet a threshold of active, sustained, etc., etc. hostilities and fighting (I’m not looking to be strictly precise here) if, as the US has said, particularly in the SCOTUS analysis, it is a non-international armed conflict with a non-state actor. I don’t think SCOTUS got it right. Moreover, it led to the unintended consequences of result-oriented jurisprudence, the Court seeking to find a basis on which to apply the standards of CA3, and leading the Court to conclude that a provision envisioned entirely (read Pictet) about internal civil war could apply by ignoring the territoriality phrase in CA3 to focus instead solely on the non-state actor part. I think the Court should simply have said that CA3 standards apply as some universal baseline standard irrespective of armed conflict, and it should left aside how it intended to get there, but it didn’t. It was not well-briefed on the issue, and waded into deep waters about the law of armed conflict with implications for many other important parties in the world.
Viz., it appears that territoriality is an issue after all. I don’t think the Bush administration got it right by defining the conflict as the “global” war on terror — it is one matter on which I agree with the critics, whether academics such as Mary Ellen O’Connell or organizations such as the ICRC. Nor can the AQ case be assimilated to WWII and chasing combatants around wherever they go — if you take the treaty language seriously, and the customary law intended by the United States and other states when drafting CA3 to keep the threshold of a non-international armed conflict high, then, yes, it matters legally that WWII was an international armed conflict and the AQ war a non-international one with a non-state actor. It seems anomalous, because despite the non-international language, we are following them around the world, but we have legally decided to focus exclusively on the non-state actor part, in order to apply CA3. If that is the case, then the customary law threshold matters.
But okay, I’m just me, another academic. The takeaway for the administration and its legal teams is something different. This conference shows once again that the US government’s view (that the global nature of the conflict, it can go anywhere and still be called armed conflict with Al Qaeda, is quite unexceptional and what’s the big deal) ... is like ships passing in the night with a large and very influential part of the international community. Jonathan Mannes, the ACLU lawyer who drafted the FOIA request which is soon going to ripen into a law suit over the US revealing its legal rationale for targeted killing, laid it out in the FOIA itself and in short form at the conference. He is a very smart young lawyer, and said what I have just said in much more sophisticated language. Jonathan (whom I like very much and I hope will not take this amiss) and I agree on two — and probably only two — legal propositions here: First, the US government needs to step up and state its rationale. Second, in an armed conflict characterized by the US itself as a CA3 conflict, the location of hostilities at a certain level matters. Maybe there is some international law group somewhere that agrees with the US government that this is simply not an issue — I don’t know who it might be.
The US government may think this legal account of combatancy obvious. If you think the question of the territory of active hostilities is simply irrelevant, then I suppose it is. The sole issue is the people involved — are the combatants in some pre-existing conflict, whom you can chase down wherever they happen to be and with whatever force is, or is not, required. But if you think the place of hostilities and their intensity have some (even perhaps unclear) relevance, then consider the sweep of successive extensions:
• The obvious and acknowledged-on-all-hands armed conflicts in Afghanistan and Iraq;
• border regions of Pakistan into which the armed conflict might be said to have spilled;
• the rest of Pakistan;
• Yemen and Somalia;
• beyond, as circumstances require, to chase down AQ elsewhere.
My view, for what it is worth, is that there are armed conflicts in Afghanistan and Iraq, and parts of Pakistan into which the fighting has spilled. The other situations should be addressed under the law of self-defense. To which we can add two other distinctions which, again, might seem obvious to the USG but do not seem so to the critics:
• Predator-based weapons controlled by the US military in some cases; and
• controlled by the CIA in others.
And, finally, a distinction that also seems not to be discussed much:
• Security situations covered currently, at least as far as the US is concerned, by the existence of armed conflict, on whatever basis determined, under the terms of the AUMF; and
• future security situations to which a US government will conclude it must respond with force against a non-state actor in some foreign territory, but entirely unrelated to AQ, 9–11, or any of our current conditions.
So the first takeaway is that the US government might think the legal situation sufficiently plain that it needs no adumbration. And that there are many critics, not all of whom can be ignored and some of whom are intimately connected to the some of the administration’s collective legal team, that think it equally obvious that the territory matters in some way.
The second takeaway is that the ACLU (and others) is not going to rest with “information.” The ACLU’s FOIA is an exceptionally well-drafted brief both to obtain information as the US legal position and, as much as possible, operational information. Jonathan is an extraordinarily talented young Canadian lawyer with strong knowledge of IHL. It also lays out the foundation of both a legal argument and a campaign for how to undermine the practice. In his presentation yesterday — I would urge government lawyers to watch it (hmm... hope the video goes up! ed.) — he was pretty clear about this, at least in my view. The most important point was not about “information” as such, nor was it even about the “conduct” of hostilities. On the contrary, it was a clear statement that the ACLU had decided to campaign on the issue of jus ad bellum, whether the US should be resorting to force and to what extent. The “incentives” or “disincentives” to use force if your own people are not at risk.
Jonathan said, for example, that one of the issues with Predators was that they removed the “natural barriers” that would otherwise have to be fought through in order to attack alleged terrorists. It made it (too) easy for the US to resort to violence. Well. I’ve heard it a lot, of course — it seems to be the only thing that many journalists learned from Peter Singer’s book, apart from the fact that Predators are (mostly) controlled in Nevada. But it would be hard to come up with a more direct statement that the issue for the ACLU is not the usual (at least surface) concern of human rights groups with jus in bello and the conduct of armed operations, but instead a belief that the US needs to be restrained — through direct and personal exposure to death on the part of its soldiers — in order that it have the proper incentives not to over-resort to the use of force.
What the ACLU (and everyone else who offers this, to my mind, quite stunningly callous argument, at least if you value the lives of American soldiers) seems really to be saying is that “we” — The United States? The ACLU? Angels looking down from heaven? “Neutral” referees of war? Who? — should not make it too easy for the United States to win its wars, if necessary by forcing its troops to fight their way through “natural barriers” and at the appropriate cost in American lives. Wow. Heck of a point of view, at least for an ostensibly American organization and its lawyers. Count me out.
I have difficulty understanding how this is the ACLU’s issue — but then I have great difficulty with its entire current national security frame as being its issue. The fundamental anxiety is that US fighters not sufficiently exposed to personal danger, thus making it too easy for the US to undertake violence. This basic point from Singer’s book has, I think, has been elevated into something much more than it is — more, indeed, than I suspect Singer intended. It is an academic point about incentives in the abstract. Law academics a little too in love with incentives-rationalist arguments love the point. Why not — essentially, it’s Coase for national security.
But the reality is that there is little reason to think that, however fun to think about as a “necessary” consequence of the incentivizing logic of drones, this single abstract proposition about drones drives decisions to use or not use violence by the United States. Possible. But one had better have some actual data and a really good way of eliminating other explanations or interactions with other explanations. Those writing about it — I include myself — do not even try. But, right or wrong about that, it has turned into a key driver of this issue for groups (e.g., ACLU) that, at least on the surface, are ostensibly about the lawful conduct of war and not about whether the US resorts too often to force.
(I will also add that academics and intellectuals and elite lawyers who like to talk this kind of language of ‘optimally raising the personal risk level for American forces, because Predators and UAVs reduce the US’s disincentives to use violence, so to achieve the efficient level of the resort to force’ ... you all have no idea how it sounds to the rest of us Americans — and by that how deeply offensive to the rest of us, who in our naive and no doubt inefficient way think it would be a good idea if the United States killed its enemies in a way that reduced the risks to its forces, and think UAVs are an excellent way of doing so.)
(Try that in front of a Senate hearing, and I bet the result will be that even Senators Leahy, Boxer, and Schumer will vote to condemn you. Being too cool and refined to take sides is not always a sign of moral superiority (as I argue at the end of this article on humanitarian neutrality and its limits, in this European Journal of International Law essay, and in this short review, “What the Swiss Miss.”) Suggesting, however sophisticated the language, that superior intellects understand that “we” need to have more American GIs killed, or at risked, in order to reach the efficient equilibrium of incentives and disincentives to violence is not a winning argument. I also think, however, that the folks inclined to make this kind of argument cannot restrain themselves from making it, because it lies at the heart of what they truly think, while also confirming both their morally superior position of “neutrality” and their intellectual superiority, too, and all the rest is merely a minor add-on. If I sound offended by it, I am.)
(Actually, I don’t think it is morally right, either, or all that smart, as an intellectual position. Reductivism pushed hard winds up being either sublimely elegant or else dumb in tarted up language or else true but trivial. This one falls into the ‘dumb’ box. It’s a convenient, too-quick, reductivist application of consequentialist theory, whereas a more subtle, but harder moral view is to understand that ... sides matter! The question is how, and that is something that cannot be reduced down to a reflexive consequentialist framework. It is a genuinely deep question in the moral psychology of affect and affection.)
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Debating Green Jobs
The Economist hosts an online debate on the wisdom of government efforts to promote “green jobs.” In this corner, law professor and economist Andrew Morriss. In the other corner, one-time “green jobs czzar” Van Jones. I know them both, but I’m pulling for Morriss.
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