Money Laundering

Jane Galt wrote that money laundering laws punish activity that is far removed from any social harm. Mark Kleiman writes in response:

While Jane is right that it would technically be a crime to "structure" transactions to avoid currency reporting even if the purpose of the transactions were entirely licit, the reports themselves are not matters of public record. Therefore there's no actual reason for someone to conceal the cash he spends on his yacht or stamp collection from the IRS, unless he's doing so to conceal the fact that either he, or the recipient of the funds, evaded or intends to evade taxation.

It's not just "technically" a crime to "structure" transactions. It's a crime as real as any other. If you make two cash deposits of $6,000 each within a relatively short time period, and do so with the intent to avoid reporting an over-$10,000 transaction, you could be sentenced to up to five years in jail under 31 U.S.C. 5324. (Make that up to ten years if your cash deposits total more than $100,000 in a one-year period as part of another illegal activity.) So there are some stiff penalties here.

I'm also puzzled by Kleiman's assertion that there is "no actual reason for someone to conceal the cash he spends on his yacht or stamp collection from the IRS." No actual reason? How about privacy? Is it somehow invalid to think that innocent people shouldn't have to report every last detail of their lives to the government merely so that the government can more conveniently identify the few who are criminals? As I've pointed out before, civil libertarians would be up in arms if the Patriot Act were half as intrusive as the law already is with regard to the IRS.

The money laundering law, after all, applies to every instance in which someone structures a transaction so as to avoid reporting; there is absolutely no need to show that there was any other illicit activity (i.e., avoiding taxes, laundering drug money, etc.) unless the prosecutor wants to double the penalty. So if your only purpose was to protect your own privacy, you could in theory face a 5 year jail term (not to mention forfeiture). (Realistically, most prosecutors might use their discretion not to prosecute such a case, but that doesn't change the fact that the statutory penalty is still there.)

More on Franks

Brian Leiter added an update responding to my post on General Franks.

I dislike updating to respond to every moronic comment in Cyberspace--these inter-blog disputes are basically just tiresome--but someone who pontificates as loudly as Stuart Buck about careful reading ought to read a lot better than he actually does. The article that Michigan Professor Cole actually cited begins as follows:

"Gen. Tommy Franks says that if the United States is hit with a weapon of mass destruction that inflicts large casualties, the Constitution will likely be discarded in favor of a military form of government."

Then, after quoting excerpts of the interview with General Franks, the article offers the wholly reasonable interpretation of what Franks said: "He is the first high-ranking official to openly speculate that the Constitution could be scrapped in favor of a military form of government."

Contrary to Buck, I did not say that the good General was "advocating" military rule. He suggested it was likely under the circumstances described, which is an utterly irresponsible thing for a military figure to say, for the reasons Professor Cole gave. On Buck's eccentric reading, the General thought military rule is the "worst thing that could happen," though what he actually said is that "'the worst thing that could happen' is if terrorists acquire and then use a biological, chemical or nuclear weapon that inflicts heavy casualties."

This is a case study in misreading through nitpicking, and a waste of my time and Mr. Buck's.

Notice that Leiter uses his all-too-typical style of utterly needless hostility. I'm not sure why Leiter so often seems to think it helpful to engage in snide personal attacks for no apparent reason other than that someone disagreed with him. (On a side note: If you're ever submitting a brief to a court, there is no quicker way to lose credibility with the judge -- other than outright lying -- than to hide your valid arguments, if any, under a fusillade of insults aimed at your opponent.)

Anyway, two quick points:

1) Leiter's original post most definitely did accuse Franks of thinking that "military rule" would be a "dandy idea." Quibbling over the word "advocating" is just blowing smoke.

2) Leiter is simply wrong in claiming that Franks said the "worst thing that could happen" is if terrorists use a weapon of mass destruction, in and of itself. The problem is that Leiter repeatedly relies on a Newsmax author's interpretation of Franks, rather than paying attention to what Franks actually said. (This is quite interesting, considering that Newsmax is a far-right-wing website that Leiter would, in any other context, deride as the equivalent of the Taliban.)

To quote Franks' own words again, he said that the "worst thing" would happen in "two steps": "The first step would be a nexus between weapons of mass destruction and terrorism. That goes to step number two," Franks continues, "which is that the western world, the free world, loses what it cherishes most, and that is freedom and liberty we've seen for a couple of hundred years in this grand experiment we call democracy." In other words, when Franks speculated about the possibility that the "population" might clamor to "militarize our country" at the expense of "freedom and liberty," he was clearly including that very possibility as part and parcel of his "worst-thing-that-could-happen" scenario.


UPDATE: Leiter has added yet another update:

AND MORE: My God, Stuart Buck has a lot of time to kill. In classic blogosphere passive-aggressive mode, he expresses surprise at my irritation, perhaps thinking that I should have thanked him for accusing me of misreading something I read accurately.

I don't expect him to thank me, but it would be nice if he could conduct a written debate without immediately letting fly with words like "moronic" at the first sign that anyone dares to disagree with his opinion on a matter where he has no knowledge beyond some Newsmax author's third-hand re-interpretation. Abandoning name-calling and invective doesn't mean that one has to fall to the opposite extreme of obsequious flattery.

Let's make this as simple as possible: the article Juan Cole cited, which I cited, I read accurately, which now even the sanctimonious Mr. Buck does not dispute (how could he?).

Leiter read the Newsmax article accurately, but I most certainly dispute the article's accuracy, as would anyone who took the time to uncover more of the context of Franks' remarks. If you take the words of the article on blind faith -- as Leiter seems determined to do -- you might think that Franks was asked, "What is the worst that could happen," and then answered, "A terrorist attack," full stop. But Franks explicitly said that the "worst thing" that could happen would be if two steps occurred: 1) A terrorist attack that caused 2) popular discontent with various constitutional protections.

And again, Franks never even mentioned "military rule" at all. Instead, his exact words were "militarize our country," and in context, he was likely referring to the possibility that people might demand more homeland security at the expense of freedom and civil liberties.

From all that I can tell, the Newsmax article was a wild extrapolation from Franks' actual words. The problem is not that Leiter misread the Newsmax article, but that he never even considered that the article might not be totally reliable in its re-interpretation of Franks' words. The problem is multiplied by Leiter's continued refusal to acknowledge even the possibility that the Newsmax article is incorrect, instead choosing to engage in spurious personal attacks on anyone who digs up additional information.

Mr. Buck produces parts of the actual interview with General Franks, claiming that the article misrepresented its meaning. Even from the excerpts produced by Mr. Buck, that is not at all clear, which someone without Mr. Buck's political agenda might have noticed.

I don't know the first thing about Franks, other than that he's a general. And I'm just as opposed to "military rule" as Franks no doubt is. I have no political agenda here, other than to clear up inaccuracies.

Most amusing, though, is that Mr. Buck thinks my line, above, about Yglesias thinking "military rule is dandy" shows that I think General Franks "advocated" military rule.

Well, yes. It's the only possible interpretation. Leiter first notes that Franks "suggested that military rule might supplant constitutional government in the wake of a devastating terrorist attack," and then added that Matthew Yglesias "also thinks that military would be a dandy idea." One doesn't use the word "also" unless one wishes to refer to something that came before. And the only person to whom that could refer is Franks.

FURTHER UPDATE: Leiter added yet another response: "(NOTE: In Mr. Buck's further "response" [sic] the alert reader will note that he conveniently omits my last line. I wonder why?)" That line would be this: "I assure you, dear reader, that law school does not destroy everyone's ability to understand ironic uses of language, and that mindless literalism is not a requirement for being a lawyer." I omitted that line because I thought it had no substantive content worth responding to; I certainly don't see any "irony" in his reference to Yglesias; smart-aleckiness, to be sure, but no irony. (I also find it interesting that Leiter consistently uses the word "sic" when he isn't quoting another source. Another sophisticated use of irony, no doubt; Leiter is obviously intending to provide a real-life demonstration of how sarcasm and snideness are no substitute for an argument.)

EVEN FURTHER UPDATE: One thing I don't get. When I construed Leiter's post as having said that Franks was "advocating" military rule, Leiter responded with high dudgeon, claiming to have neither said nor implied any such thing, and deriding me as a "mindless literalis[t]" for assuming that his posting was written with precision and that it meant what it said. But then, when I said that Franks' interview actually revealed that he is opposed to military rule (actually, to "militariz[ation]," as Franks never mentioned military rule), Leiter again responded with high dudgeon, claiming that according to the magisterial Newsmax article, Franks had merely said that a terrorist attack would be the "worst thing that could happen." Well, what's going on here? If Leiter doesn't want to be seen as having claimed that Franks advocated military rule, what inspires the obstinate refusal to acknowledge that Franks is actually opposed to any such scenario?

Tommy Franks

Some portions of the blogosphere are raising the specter of "fascism," in reaction to a recent interview that General Tommy Franks gave to Cigar Aficionado magazine. Here's what Brian Leiter has to say:

As I've remarked previously, right-thinking folks know that it's just silly to talk about fascism in connection with the current developments in the United States, but for some reason a distinguished historian at the University of Michigan is doing just that. Jeez, it's not like a former high-ranking, and still high-profile, military officer suggested that military rule might supplant constitutional government in the wake of a devastating terrorist attack, or anything. Or is it? (Maybe I better delete this post...)

UPDATE: Well, now I'm reassured, since the liberal [sic] intelligentsia [sic] also thinks military rule is a dandy idea.

On further investigation, however, it appears that Franks wasn't advocating any such thing at all. Here's a quote from a Nov. 21 segment on MSNBC (thanks to LEXIS):

OLBERMANN: The commander who led U.S. military operations in Afghanistan and Iraq has revealed that he fears that the fabric of our Constitution could "unravel" in the event of an attack on this nation with weapons of mass destruction.

Our third story on the COUNTDOWN tonight, General Tommy Franks, retired for not even four months from the leadership of CENTCOM, saying he foresees a scenario in which our population would move to "militarize our country."

His comments appear in an unlikely venue. Franks, who rarely accepts interview requests, has conducted one with an upscale men's magazine called "Cigar Aficionado."

It is in here that he defends the actions in Iraq, even if no weapons of mass destruction are ever found, by asking and answering the rhetorical question, what is the worst thing that can happen in our country. Franks telling the magazine that the worst thing comes in two steps.

"The first step would be a nexus between weapons of mass destruction and terrorism. That goes to step number two," Franks continues, "which is that the western world, the free world, loses what it cherishes most, and that is freedom and liberty we've seen for a couple of hundred years in this grand experiment we call democracy."

The general goes on. He fears a -- quoting again -- "massive casualty-producing event somewhere in the Western world -- it may be in the United States of America -- that causes our population to question our own Constitution, and to begin to militarize our country in order to avoid a repeat of another mass casualty-producing event."

General Franks concludes, "Which in fact, then begins to potentially unravel the fabric of our Constitution."

More of Franks' remarks are provided by Newsmax:

Discussing the hypothetical dangers posed to the U.S. in the wake of Sept. 11, Franks said that “the worst thing that could happen” is if terrorists acquire and then use a biological, chemical or nuclear weapon that inflicts heavy casualties.

If that happens, Franks said, “... the Western world, the free world, loses what it cherishes most, and that is freedom and liberty we’ve seen for a couple of hundred years in this grand experiment that we call democracy.”

Franks then offered “in a practical sense” what he thinks would happen in the aftermath of such an attack.

“It means the potential of a weapon of mass destruction and a terrorist, massive, casualty-producing event somewhere in the Western world – it may be in the United States of America – that causes our population to question our own Constitution and to begin to militarize our country in order to avoid a repeat of another mass, casualty-producing event. Which in fact, then begins to unravel the fabric of our Constitution. Two steps, very, very important.”

Now I haven't seen the full interview with Cigar Aficionado. But from what I can tell, three points are relevant:

1) Franks never used the term "military rule," as in the military literally ruling in the place of Congress and the President. His exact words were "militarize our country," which could mean simply a further extension of what has happened since 9/11: More security at airports, more police on the streets, etc., etc.

2) Franks wasn't saying that he or anyone else in the military would try to take over in the event of another terrorist attack. He was suggesting that he feared the population might begin to question the Constitution and "militarize our country."

3) Most importantly, it appears that Franks was responding to the question indicated in bold above: What is the worst thing that could happen to our country? Even if you give the worst possible construal to Franks' remarks -- that the population might demand fascist military rule -- he is saying that this is the "worst thing" that could happen. So Franks is in complete agreement with the people who are attacking him (not having taken the trouble to find out what he actually said).


UPDATE: Brian Leiter has added an update. I respond in a post above.

God

From OpinionJournal's Best of the Web:

Last week in Britain, a reporter asked President Bush if "Muslims worship the same Almighty" that he does. Bush replied: "I do say that freedom is the Almighty's gift to every person. I also condition it by saying freedom is not America's gift to the world. It's much greater than that, of course. And I believe we worship the same god." The Washington Post reports that the president's ecumenism prompted a kerfuffle among evangelical Christians:
* * *

Bush is right. Christianity, Islam and Judaism are all monotheistic religions, united in the belief in a single God. (Muslims often call God by the Arab name Allah, but then so do Arabic-speaking Christians and Jews.) The three religions conceive of God differently, and Muslims and Jews do not share the Christian belief in the divinity of Jesus Christ. A Christian may well believe that Islam's conception of God is wrong, but if you believe in only one God, it makes no logical sense to describe a fellow monotheist as worshipping a "different" God.

Well, I wonder. Imagine the following argument:

A: "Aristotle died in 322 B.C."

B: "I thought he died in 422 B.C."

A: "No, in 422, he hadn't been born yet."

Clearly, both A and B are talking about the same Aristotle; it's just that they disagree on the contingent details of his life. But now imagine the following argument:

A: "Aristotle was an ancient Greek philosopher who died in 322 B.C."

B: "Look, I'll grant that Aristotle was a philosopher in his spare time, but he was neither ancient nor Greek. In fact, Aristotle was a Swedish-American television repairman from South Dakota who died last year at the age of 72. My father went to high school with him."

Does it still make sense to say that A and B are talking about the same Aristotle? Isn't there some point at which A and B disagree over so many details that they might as well be talking about two different people? And where is that point?

In more technical terms, I guess what I'm asking is whether "God" is a rigid designator (see Saul Kripke's Naming and Necessity), such that in all possible worlds the name "God" refers to the same being even if the contingent facts about him are different? Or is it inherent in the concept of God that there are no contingent facts about him, and therefore no other possible worlds?

A Theory of Art

Brian Micklethwaite has a a marvelous reaction to the sorts of people who purport to think that art (no, make that "Art") should be disturbing:

As for the endlessly repeated claim that art is supposed to make you feel uncomfortable, I don't buy that. And I don't believe the people who say that they do buy it are being honest. I think that a picture which they have no problem with, but which they believe makes other people whom they disapprove of uncomfortable, makes them very comfortable indeed, and that that is the kind of discomfort (i.e. not discomfort at all, for them) which they like, and are referring to with all this discomfort propaganda. They no more like being genuinely discomforted by art than I do.

The Shire

An entertaining story from Milwaukee:

It is not quite Gandalf battling an evil fire dragon, but a Brookfield developer has found himself in a duel with residents who say a proposed subdivision with names inspired by "The Lord of the Rings" could have dire environmental effects.

Joseph Niebler, a self-professed J.R.R. Tolkien fan, wants to build The Shire, a neighborhood of 42 $500,000 homes named after the land of the Hobbits in Tolkien's epic tale. With streets named Rivendell Drive, Misty Mountain Parkway and Lorien Court, The Shire would be built on 48 acres of a Superfund site surrounding the former Brookfield Landfill.

Greatest Good for the Greatest Number

Just out of curiosity, I did two Google searches just now. Here are the results:

1. "Greatest good for the greatest number." Number of hits: 12,400.

2. Morgenstern and "Greatest good for the greatest number". Number of hits: 111.¹

This is bad. Clearly, thousands of webpages are discussing the main principle of utilitarianism, without mentioning the fact that John von Neumann and Oskar Morgenstern demonstrated that it is impossible. Here's what they say on page 11 of their Theories of Games and Economic Behavior (1943):

A particularly striking expression of the popular misunderstanding about this pseudo-maximum problem is the famous statement according to which the purpose of social effort is the "greatest possible good for the greatest possible number." A guiding principle cannot be formulated by the requirement of maximizing two (or more) functions at once.

Such a principle, taken literally, is self-contradictory. (In general one function will have no maximum where the other function has one.) It is no better than saying, e.g., that a firm should obtain maximum prices at maximum turnover, or a maximum revenue at minimum outlay. If some order of importance of these principles or some weighted average is meant, this should be stated. However, in the situation of the participants in a social economy nothing of that sort is intended, but all maxima are desired at once -- by various participants.

Imagine trying to play a basketball game where the aim was "score the most points in the least amount of time." You would never be able to determine a winner. The only way to determine a winner is to fix the amount of time (say, 40 minutes) and then see who scores the most points, or to fix the number of points (say, 11, as is common in pickup games) and see who gets there first.

¹ Both of those numbers should increase by 1 as soon as Google picks up this post, which is one of the very reasons for posting.

Unsourced Factoids

The other night, my wife and I went to an open house at a local private school, on the theory that we might (or might not) have our 4-year-old son go to kindergarten a couple of days a week next year. One of the kindergarten teachers made a comment during her speech that caused me some puzzlement. I paraphrase from memory: "Kids learn so much these days. Did you know that today a schoolchild learns more between the freshman and senior years of high school than our grandparents learned in their entire lives?" She said this as if she had read it in some authoritative source.

I wanted to raise my hand and say something like this:

That can't possibly be true. For one thing, there is no meaningful way to measure the total sum of the knowledge that our grandparents learned in their entire lives. And just think about it: Do you really think that our grandparents learned less about the world in 70 or 80 years than today's high-schooler does in 4? Have you met any current high-schoolers? Do they really seem more knowledgable than their grandparents about anything beyond computers and cell phones and Eminem?

OK, sure, maybe they know more -- for the moment -- about the particular subjects that they have recently studied. But our grandparents know (or knew) much more about many other things. I know more about law and economics and philosophy than my grandfather did. But he knew what it was like to grow up during the Depression. He knew what it was like to serve in the Navy. He knew how to run a modest-sized farm -- how to raise chickens and goats and cows and horses, how to plant and harvest corn and grapes and other crops, how to repair his tractor, how to build a barn, etc. He knew how to help deliver a neighbor's child -- which he literally did on one occasion. Later, he had a small butcher shop/grocery, which required him to know how to slaughter livestock, cut meat, and run a small business. In many, many areas of life, he knew more than I'll ever know. So where do you get off slandering our grandparents like that?

Anyway, that's what I wanted to say. But I bit my tongue.

An Historic Death

Today is the 40th anniversary of the death of . . .

C.S. Lewis.

P.S. There apparently was some other historical figure who died on this day as well, but I doubt he'll be as long remembered.

Disparity in the NBA

I never watch ESPN and seldom read the sports page, so it's likely that the NBA happenings that are news to me aren't news to some of you: the worst team in the Midwestern division has the same record as the best team in the Atlantic division. Both Utah and Philadelphia are 6-6. That's even more remarkable when you remember that teams play about 70% of games within their conference (I don't how know the ratio for either team at this stage).

I just noticed another stat, the record of Western conference teams against the Eastern conference: 45-24. With the mechanisms the NBA uses to achieve parity, a disparate record like that is unusual. What are the odds of flipping 45 heads in 69 coin tosses? Is the sample size large enough to be meaningful yet? (I don't have my college statistics text with me and don't remember how to calculate this without referencing my book). It will be interesting to see how long the nearly 2:1 ratio lasts.

More on Legal Realism

Brian Leiter briefly responded to my post on legal realism. Here's his full response:

UPDATE: Stuart Buck has "responded" in a fashion to this posting, but without it appears reading the linked essay and so without noting any of the "suitable qualifications." In particular, it is not the thesis of legal realism that "personal ideology" (as Mr. Buck puts it) determines the decision; it is the thesis that non-legal norms determine the decisions. This is obviously compatible with lots of unanimous decisions.

Leiter appears to be making some bright-line distinction between "personal ideology" and "non-legal norms." Yet his entire original post was full of references to ideology: He said that judges' decisions have "far more to do with extra-legal political and related considerations" than with legal doctrine, that judges make "moral and political judgments," and that Senators should oppose nominees on "moral and political grounds." He ended with the sweeping conclusion that Presidents have an obligation to nominate "reasonably bipartisan" judges, and Senators shouldn't confirm any nominee whose politics are different from theirs. Then there was his response to the Curmudgeonly Clerk, in which he stated plainly that the "gap is filled by appeal to (complications aside) 'political ideology.'"

If all of that isn't meant to imply that judges make decisions based on personal, political ideology, then I have no idea what Leiter could have been talking about. (Otherwise, why would he urge the Senate to vote down any nominee with conservative political views?)

In any event, my main point is that the very premise of legal realism -- that no law controls the outcome in most appellate cases -- is false. It might be tempting to believe that appellate decision-making is all politics and social norms if one is familiar only with the few appellate decisions that involve controversial issues or that break new ground. But anyone who spends a couple of years, as I have, reading everything that a given U.S. court of appeals produces -- published opinions, unpublished opinions, summary dispositions, etc. -- cannot fail to be impressed at how clear and predictable the legal outcome was in the overwhelming majority of cases.

Here's an interesting experiment that Mr. Leiter might consider: By my count, the Fifth Circuit has issued 57 published opinions and 493 unpublished opinions since October 1. Read all of these 550 opinions, and then explain which decisions aren't reasonably controlled by pre-existing law and precedent.

Dean and Regulation

Howard Dean has gotten a lot of criticism for these pro-regulation remarks:

The former Vermont governor said he would reverse the trend toward deregulation pursued by recent presidents -- including, in some respects, Bill Clinton -- to help restore faith in scandal-plagued U.S. corporations and better protect U.S. workers.

In an interview around midnight Monday on his campaign plane with a small group of reporters, Dean listed likely targets for what he dubbed as his "re-regulation" campaign: utilities, large media companies and any business that offers stock options. Dean did not rule out "re-regulating" the telecommunications industry, too.

Most of the criticism, however, seems to focus on the mere fact that Dean appeared to favor "re-regulation." One can have a reasonable debate over how much regulation is needed, what its terms should be, whether complete regulation is better than deregulating half-way, and so forth.

But Dean's comment about telecommunications isn't even comprehensible. Telecommunications is overwhelmingly regulated right now, as much as or more than any other American industry. I can't even imagine how anyone could think that there is an undersupply of regulation in that particular field. (The Telecommunications Act of 1996 has sometimes been described as "deregulation," but nothing could be further from reality.)

Put it this way: If Dean suggested that he disagreed with a proposal to privatize Social Security, various people might disagree with him, but it would at least be a debate over a meaningful subject. If, on the other hand, Dean announced that he wanted to repeal Social Security privatization and start using federal funding again, well, one wouldn't even know how to make sense of such a remark.

SSRN

I just got an email from the Social Science Research Network saying that both of my law review articles (linked below) are on the "Top Ten" list for "Young Scholars Law Abstracts All Time Hits." This is because the articles have, as of now, been downloaded 11 and 22 times, respectively. In the world of law review articles, I suppose, that's a huge readership.

Crime and Punishment

On the blog Pensate Omnia, I find these fascinating musings:

SO WHAT'S WRONG WITH BEATINGS?: Over the past few weeks, I've been thinking about the nature of violence in the following manifestations: domestic abuse (ranging from hitting a spouse to spanking a kid), corporal punishment in school, and the physical punishment of criminals (cf. putting a miscreant in the stocks, or subjecting him to the public rod).

In general, modern man finds this sort of thing reprehensible (is there anything less enlightened than a principal with a board on his wall?).

I haven't the time to fill out my thoughts, but I am struck by one unifying theme: physical harm -- as opposed to spiritual or mental -- is what we avoid, as if it were self-evidently terrible. Certainly, there are ways in which inflicting physical pain can be concomitant with spiritual and mental abuse, but is it always wrong to use physical pain as a motivator, force for reformation, or punishment? And, more importantly, what does it show us about the presuppositions of our moral code if we consider the flesh to be the most sacred (i.e. that which, by default, we should protect from harm above all else)?

I've puzzled over the same questions myself sometimes. If someone proposed that certain crimes be punished by 30 or 100 lashes with a whip, we would think it horribly uncivilized and barbaric, not to mention a Cruel and Unusual Punishment in Violation of the Constitution. But no one -- well, hardly anyone -- blinks when a man is sentenced to five years in prison merely because he possessed five grams of crack, even though he might suffer sexual abuse that is more of a physical violation than a mere beating.

By what logical principle is imprisonment acceptable but whipping is not? Because whipping causes physical pain? But prison quite often involves physical pain as well, depending on the disposition of the guards and other prisoners, and it by definition involves physical restraint. Moreover, it's question-begging; the whole question is why it would be uncivilized to cause brief and intense physical pain, but perfectly normal to cause long-lasting physical and mental distress via imprisonment.

So what's wrong with physical pain anyway? Most of us don't like it very much -- i.e., it causes us disutility -- but most people wouldn't like being trapped behind bars for years on end either. So both types of punishment cause a great deal of disutility to the person being punished. Why is one form of disutility treated as per se off-limits?

Moreover, these various forms of disutility are commensurable in some fashion: If you asked 1000 people convicted of possessing crack whether they would prefer 5 years in jail or X number of lashes with the whip, there would be some number for X at which a substantial number would choose the lashes. Why not at least allow them the choice?

What about rehabilitation and recidivism? It might well be easier for a thief or drug user to put his life back together after a brief physical punishment than after 5 corrosive years behind bars.

* * *

I'm not advocating for physical punishments here. I don't know what the answers are. I'm just raising the questions. Because the more I think about it, the more it strikes me as odd that we often think ourselves so superior to our ancestors or to Muslim countries because we don't use more intense forms of physical punishment, while at the same time we put even non-violent drug offenders in prison for lengthy terms knowing that they might be subject to prison rape. Which system of punishment is really more cruel?

And what does it say about us that we shrink in horror from inflicting momentary pain on someone's body, but don't hesitate to inflict life-long pain and demoralization on someone's soul?

20 Questions

Will Baude of Crescat Sententia has posted another one of his "20 Questions" features. The interviewee: me.

Law Review Articles

Two new law review articles of mine are available on SSRN:

TELRIC vs. Universal Service: A Takings Violation?

STUART BUCK

Federal Communications Law Journal, Forthcoming


Abstract:
Local phone companies are trapped between two utterly contradictory pricing systems. At the retail level, they are forced by federal and state law to offer universal service to all customers at relatively equal prices - and often at prices that are inversely related to the cost of service (as when residential users are charged less than business customers, even though they are more expensive to serve). But on the wholesale level, the Federal Telecommunications Act of 1996 forces local phone companies to lease their equipment and lines to their competitors at rates that are based on the cost of service.

This combination of contradictory pricing systems is unwise and potentially disastrous. It allows competitive phone companies to enter markets where customers are relatively over-charged, while leasing the local phone companies' lines at cost. Meanwhile, the local phone companies are left serving the under-charged customers (i.e., those in rural and residential areas) due to their universal service obligations. As a result, local phone companies may have a viable claim that the Takings Clause has been violated.


Salerno v. Chevron: What To Do About Statutory Challenges

STUART BUCK

Administrative Law Review, Vol. 55, No. 3, Summer 2003

Abstract:
The Chevron standard for judging agency statutory interpretations is ubiquitous in administrative law cases. But few scholars have noticed that the Supreme Court in 1993 spoke approvingly of a standard that seems to be utterly different from Chevron: the Salerno standard, from United States v. Salerno, in which the Court said that no facial challenge to a law can succeed unless the plaintiff demonstrates that there is no set of circumstances in which the law could be applied constitutionally. In Reno v. Flores, the Court said the Salerno no-set-of-circumstances test equally applies to challenges arguing that an agency regulation is inconsistent with the agency's authorizing statute.

It is extraordinarily difficult to see how the Salerno standard could be consistent with Chevron. Chevron allows the court to overturn the agency's decision if the regulation is either 1) directly contradicted by the statute or 2) unreasonable. But the Salerno standard seems to require that the agency's regulation be upheld if even one set of circumstances existed in which the regulation was consistent with the statute. The conflict between Chevron and Salerno has caused courts to struggle with the question whether to follow Reno v. Flores or not.

My purpose in this article is to reconcile the Court's approval of what I will call "statutory Salerno" with the preexisting Chevron doctrine. This reconciliation will require a substantial re-conceptualization of Salerno itself; here I rely heavily on the exemplary work of Marc Isserles. In Isserles's view, Salerno is merely descriptive, not normative. That is, the "no set of circumstances test" is not a "test" at all, in the normal use of that word. Rather, the phrase "no set of circumstances" merely describes what happens when a statute is declared facially invalid. And such a ruling is usually based, not on counting up the number of invalid applications of the statute, but on some substantive constitutional doctrine that literally looks only at the "face" of the statute.

If this view of Salerno is correct, then the analogue in the statutory context is none other than Chevron Step One. Under Step One, if a statute is clear as to a particular issue, and the agency’s regulation is contrary to the statute, then the regulation is to that extent facially invalid. As a result, the regulation must be vacated on its face and/or remanded to the agency for further consideration. In any event, a facial challenge under Step One is judged not by imagining all possible applications of the regulation, but by a direct "facial" comparison of the regulation and the authorizing statute. Here as under the modified view of Salerno, facial considerations come first, causing the invalidity of all potential applications, not the other way around.

Where do the generous people live?

I almost spent a day producing a list of states by generosity, and which candidate they supported in the 2000 presidential election. Someone saved me the trouble.. States that supported Bush are listed with a red background, states that voted Gore have a blue background. (To reduce the risk of Repetitive Stress Syndrome, be sure to address your computer according to latest ergonomic studies before attempting to scroll in search of blue states.)

It's worth noting that the two most generous states (Wyoming and Utah) were the two states with the greatest percentage of Bush votes in the country (60% in both cases).

Thanks to Andrew Sullivan for saving me several hours of work.

UPDATE: Internet penpal Kaimi Wenger takes issue with two points.

First, Kaimi argues that the rankings wrongly treat tax-deductible contributions as being synonymous with generosity. I acknowledge that it's an imprecise proxy, but there's no reason to believe that people who don't make tax-deductible contributions are more generous in non-measurable ways than are those who do make tax deductible contributions. Most likely, people who give generously with their checkbooks disproportionately donate their time and pocket change, too.

Second, Kaimi surmises that Utah's second-place ranking (first place when calculated as a percentage of income) is due to the large number of Mormons who pay tithes. He goes on to say that because Mormons are socially pressured, and can be found unworthy to enter Mormon temples if they fail to tithe, that they aren't donating out of generosity but to placate social concerns. I agree that most plausible reason Utah leads the world in charitable contributions is due to the number of tithe-paying Mormons.

But this observation doesn't lead anywhere; it overlooks the fact that people associate with voluntary organizations that reflect their beliefs, and that the Mormon church is a voluntary organization. It makes no sense, for example, to dismiss someone's commitment to conservation by noting that they're a member of the Sierra Club, and that Sierra Clubbers pressure one another to conserve, and stigmatize those who don't. People choose to associate with groups that preach conservation, like the Sierra Club, precisely because the person is sympathetic to conservation. If they weren't, they'd rub elbows elsewhere.

Denying that Utahns are generous, because too many of them voluntarily associate with people who expect them to be generous, is like denying that Oregonians are environmentally-minded because too many of them belong to the Sierra Club. People who dislike conservation are unlikely to join the Sierra Club, and people who are unwilling to donate 10% of their money to charity are unlikely to join the Mormon church.

I suspect Kaimi probably came to his conclusion because he viewed generosity as a state of mind, not an objective behavior. I don't deny that generosity entails elements of Christian love ("though I give everything to the poor, and have not love, I am nothing") that are beyond the behavior, but a more fitting analogy is James 2:17-18, "faith, if it hath not works, is dead . . . shew me thy faith without thy works, and I will shew thee my faith by my works."

While I'm on the subject, I'll again mention Al Gore, a leading figure in the Generosity is a State of Mind school. Even when he earned $197,000 a year, lived in a government mansion staffed with servants paid from public coffers, was chauffered around the world in public-financed limousines and jets, and consumed 5000 taxpayer-funded calories daily, his excuse for why he only gave $353 to charity, half of the US average for families making a fraction of his salary -- families that had to pay rent, car, insurance, and groceries on $35,000 -- was that he gives in years "when the resources were there." His charitable donations as a percentage of income: 0.0018% -- and that figure's rounded up. What a louse.

OpinionJournal on Estrada

OpinionJournal has several excerpts from Democratic strategy memoes written when the Democrats controlled the Senate in 2001-02. One is particularly relevant to Estrada:

"The groups singled out three--Jeffrey Sutton (6th Circuit); Priscilla Owen (5th Circuit); and Caroline [sic] Kuhl (9th Circuit)--as a potential nominee for a contentious hearing early next year, with a [sic] eye to voting him or her down in Committee. They also identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible."

Any lawyer representing a plaintiff with a Title VII discrimination claim would love to come across a memo in which management described a job applicant as "especially dangerous" because he was "Latino."

Only in Movies

An amusing list of "20 Things That Happen Only in Movies," such as this: "The ventilation system of any building is the perfect hiding place. Nobody will ever think of looking for you in there and you can travel to any other part of the building undetected."

To that list, I'd add this one: When a building explodes, the heroes will never be either 1) in the building, or 2) at some safe distance. Instead, they will be running at top speed away from the building, and at the precise instant of the explosion, they will with perfect timing make a giant leap forward, thereby just barely escaping the reach of the blast.

Legal Realism

Brian Leiter defends "legal realism" in this post:

Those who are realists about law, and more particularly, courts, think that the kinds of "legal reasons"--appeals to doctrine, precedent, statutory text, and the reasoning by analogy, by which courts bring the doctrine etc. in to contact with the facts of a case--that judges offer in their opinions largely obscure the actual grounds of decision. Legal reasons don't really explain the decisions; legal reasons are often indeterminate, and equally good legal arguments can be given for very different outcomes. What really explains the decision is the judge's commitment to non-legal norms (moral, political, economic).

* * *

Suitably qualified (for the full scale of the qualifications, see my Blackwell essay), I find it hard to fathom that anyone disputes the truth of legal realism (lawyers don't, it's strictly some academics). It should hardly be surprising that legal realism is the correct descriptive account of appellate decision-making, if only for the simple reason that the cases selected for appellate review are disproportionately the ones where the legal reasons are indeterminate, and so the necessity for political and moral judgment is inescapable.

Well, I'm a lawyer, and I do dispute the truth of legal realism, at least in the strong form that Leiter appears to defend (i.e., in which legal reasons simply "don't" explain the outcomes in most or all cases.).

One advantage of having done two clerkships on federal appeals courts -- which isn't very common -- is that I probably have as good an understanding of judicial decisionmaking at that level as anyone outside of federal appellate judges themselves. I've seen a lot of oral arguments; witnessed and participated in countless behind-the-scenes communications between judges; drafted a lot of opinions. This provides a certain real-world knowledge that might not be available to someone who never clerked at all. And I am positive that in the overwhelming majority of cases, ideology or morality or what-have-you just don't have that much to do with the decision. Instead, most judges in most cases are simply trying to give an accurate construal to what the Supreme Court said in the most relevant precedent or to what Congress wrote in the controlling statute.

Even at the circuit court level, the vast majority of cases simply don't involve hotly contested constitutional issues. Much more typical are cases, for example, construing the Sentencing Guidelines, or attempting to decipher the vast arcana of ERISA law, or deciding how to apply a provision of the Bankruptcy Reform Act of 1998, or deciding whether the district court's judgment was supported by a sufficiency of the evidence, etc., etc. The vast majority of these cases are so uncontroversial that the judges don't even bother having oral argument or publishing the opinion. For example, according to page i of this report, the Fifth Circuit produced 3721 opinions in the past year, of which only 518 were published. And according to table 15 on page 9, between 80% and 85% of all opinions are per curiam, which means that the panel is unanimous and no judge even wants to bother taking credit. I can't find the exact statistics on what percentage of appellate cases result in a published opinion that includes a dissent, but I have no doubt that the percentage is utterly miniscule.

Thus, the overwhelming majority of the time, judges of all ideologies and political persuasions agree on what the law requires. But there is no way that the federal judiciary could produce such unanimity -- if judges were really deciding cases based on personal ideology. The judiciary isn't nearly as ideologically uniform as are the vast body of decisions it produces. Ergo, there must be some basis for most decisions other than ideology. The most plausible explanation is the most obvious one: Judges are doing what they perceive themselves to be doing most of the time, viz., applying the law as best as they can.¹

Now, Leiter does say that the theory of legal realism should be "suitably qualified." I'm not sure what qualifications he has in mind. But in order for legal realism to be true, it would have to be so heavily qualified that it ended up applying only to those cases in which 1) vague and manipulable sources of law 2) have created widespread disagreement. And almost anyone would admit that where judges widely disagree over vague sources of law, their decisions probably rest on something other than a logically irrefutable construal of some definite source of law. But then legal realism becomes trivial and banal, almost nothing more than the near-tautological observation that the law is unclear in those (very few) cases where the law is unclear. If "qualified" enough to be accurate, legal realism is uninteresting. Alternatively, it is useful only to refute the straw man argument that all judges make all decisions in all cases based purely on logical reasoning, with ideology and political biases never playing any role whatsoever.



¹I'm well aware of the recent study by Sunstein et al., which finds a modest effect on panel voting when measured against the party of the President who appointed the panel members. But (as Benjamin Wittes explained at greater length) this finding is of little relevance to the vast majority of appellate decisionmaking. Sunstein et al. deliberately focused only on a narrow subset of federal cases involving published opinions and certain contentious subject matters. See pp. 9-11. They so limited their investigation in order to "test our hypotheses in the cases that most interest us," although a less sympathetic observer might suggest that the entire study is therefore an example of selection bias.

Jindal and Dworkin

I just finished reading Ronald Dworkin's book Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom. I was intrigued to read the following line in the Acknowledgments section: "Bobby Jindal and Sujit Choudhry, at Oxford, supplied valuable medical and health-care information." That must be the same Bobby Jindal who was once a Rhodes Scholar and is now the Republican candidate for Louisiana governor. I didn't exactly expect to find him acknowledged in that particular book.

The Beanie Babies Guy

Turns out that the guy selling Beanie Babies on Ebay didn't get them from his ex-wife. He's happily married, and was just having a little fun sellling some stuffed animals.

Front Brake Lights

To expand on my previous post on front brake lights, I just thought of another situation in which front brake lights would be useful: You are trying to merge onto a busy highway or change lanes. In your rearview mirror, you see a car coming up quickly behind you in the lane you're trying to merge into. If that car had front brake lights that were visible in your rearview mirror, you would be able to tell whether the driver was going to let you merge or not.

Group Size and Institutions

Denis Dutton of Arts and Letters Daily has an interesting article that touches on a question I posed earlier regarding the effects of group size:

Group size. Hunter-gatherer bands in the EEA were in the range of 25 to 150 individuals: men, women, and children. These small bands would have sometimes formed larger agglomerations of up to a few thousand for the purpose of mate-seeking and defense, but this would have been unusual. The typically small size for bands meant that interactions within the group were face-to-face, with everyone knowing the name and something of the reputation and character of everyone else. Though group members would have engaged in some specializa­tion of labor beyond the normal sex distinctions (men as hunters, women as gatherers), specialization would not have been strict: all men, for example, would haft adzes, make spears, find game, kill, and dress it, and hunt in bands of ten to twenty individuals.

This group size for hunting parties remains a persistent unit of organization even in mass societies of millions of people — or, say, industrial firms or college faculties of thousands. It is in fact the default “comfortable” size for human working groups. In military life, for example, modern mass armies may contain millions of soldiers organized in strict hierarchies, with companies and regiments, but the fundamental infantry fighting unit is still the squad: typically ten to twenty men (or now women). In the U.S. Army version, the squad consists of a staff sergeant and corporal in command of ten privates. In its Pleistocene incarnation, such a hunting band was big enough to plan comprehensible strategies, numerous enough to surround game, diverse enough to exploit special talents of individuals (one man’s running speed, another’s game detection, another’s throwing accu­racy), and powerful enough to overcome large animals with spears. We can try as a thought experiment to imagine alternative default group sizes: under different conditions, it could have turned out that we evolved to be most comfortable in working groups of two hundred. In that possible world, to note one new requirement, our memory for names would presumably have evolved to be much better than it is. In our actual world, however, hunting with two hundred people would be an organizational challenge, if not a nightmare, as are most working parties of that size: that is why working groups such as company boards, university committees, and fielded soccer, football, and baseball teams tend to be hunting-band size.

Discrimination as to Judicial Nominees

Jane Galt has gotten some heat for her recent post asking whether Democrats are guilty of racial discrimination in their rejection of Miguel Estrada and Janice Rogers Brown as nominees to the D.C. Circuit. In particular, she asked, "Is this the kind of discrimination they've outlawed for private companies?"

Several critics have pointed out that Senate Democrats have approved the nominations of several other individuals who are racial minorities. The implication is that this refutes any suggestion of discrimination on the part of Senate Democrats. (Critics who made this point include Ted Barlow, Dwight Meredith, and Nathan Newman.)

But if we are talking about the requirements of federal anti-discrimination law, the critics' point would be valid only if Estrada were raising either a "disparate impact" claim or a so-called "pattern or practice" claim. In some cases, the plaintiff attempts to prove a "pattern or practice" of discrimination by showing that the employer systematically hires fewer people of one race. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747 (1976). And in others, the plaintiff attempts to prove that a purportedly neutral employment requirement (e.g., requiring a high school degree) creates a disparate impact on a certain race. See, e.g., Griggs v. Duke Power Co., 401 US 424 (1971). In either type of case, the employer might respond with statistics showing that minorities are faring well.

But disparate impact and "pattern or practice" claims aren't the only types of discrimination claims. Any individual who thinks that he or she was treated differently on account of race can sue for that individual instance of discrimination. And in such lawsuits, the employer cannot get the case dismissed simply by pointing to other racial minorities who haven't been mistreated. See, e.g., Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir. 1982); Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025, 1032 (5th Cir. 1980) ("The district court found that HCCAA did not "discriminate generally on the basis of sex" because nearly half of its supervisors were women, women were on its Board of Directors, and one of the vacant Field Representatives positions had been held by a woman. Though these statistics may be some evidence of absence of discrimination, especially in a disparate impact case, they do not constitute an adequate basis for a finding of non-discrimination in a disparate treatment case involving a particular instance of failure to promote.").

And that's as it should be. There is no rule that an employer is innocent of racial discrimination unless it fired or refused to hire every single racial minority in sight. It's enough to show that discrimination was involved in the plaintiff's individual case. Otherwise, there would be no remedy in situations where the employer discriminated against one or a few individuals but not against everyone.

* * *

Let's take a closer look at what federal law actually says, and whether Estrada might have a discrimination case (that is, if Title VII applied to judicial nominations).

The most important Supreme Court case governing employment discrimination cases under Title VII is McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). It's a four-part test:

The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

McDonnell Douglas, 411 U.S. at 802.

Miguel Estrada could easily satisfy this test. First, he belongs to a racial minority. No question about that. Second, he applied and was eminently qualified for the position of judge on the D.C. Circuit. There is no serious question about Estrada's qualifications. Third, despite his outstanding qualifications, he was rejected.