Saturday, November 29, 2003

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.)

Monday, November 24, 2003


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.

Saturday, November 22, 2003

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.

Thursday, November 20, 2003

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.


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.

Tuesday, November 18, 2003

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?

Monday, November 17, 2003

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?


Federal Communications Law Journal, Forthcoming

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


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

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.

Sunday, November 16, 2003

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.

Saturday, November 15, 2003

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.

Thursday, November 13, 2003

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.

Wednesday, November 12, 2003

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.

Saturday, November 08, 2003

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.

Wednesday, November 05, 2003

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. Fourth, the position remained open.

Estrada's case would also be vastly strengthened by the fact that the Senate (including Senate Democrats) overwhelmingly approved the nomination of John Roberts to the D.C. Circuit. Roberts' qualifications are strikingly similar to Estrada's -- a degree from Harvard Law School, a Supreme Court clerkship, a period of time at the Solicitor General's office, and extensive experience in private practice as a Supreme Court practitioner. This sort of evidence is used all the time in employment discrimination cases. If a black person wasn't hired but a white person with identical qualifications was hired, the case for discrimination is that much stronger.

Thus, Estrada could handily make out a prima facie case of employment discrimination.

* * *

But that's not the end of the matter. After a plaintiff demonstrates a prima facie case, the employer has the opportunity "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802. If there was such a legitimate reason, then the plaintiff loses. But if the employer's reason is shown to be a "pretext," McDonnell-Douglas, 411 U.S. at 804, then the court may find that discrimination has occurred.

So what are the "legitimate" and "non-discriminatory reasons" offered by the Senate Democrats? The reason most often put forward by Democrats was that Estrada failed to turn over confidential memoes that he wrote when he worked for the Solicitor General's office under the Clinton administration. (See Pat Leahy's press releases from March 18 and May 5, Kennedy's floor statement from March 4, and Daschle's press release of February 5.) But Democrats did not demand the identical memoes that John Roberts wrote when he worked for the Solicitor General's office. So that reason appears to be utterly pretextual.

Another reason offered by some Democrats was that Estrada was opposed by various Hispanic groups. For example, this September 16 press release from Leahy mentioned that the Puerto Rican Legal Defense and Education Fund opposed Estrada because "he has not had a demonstrated interest in or any involvement with the organized Hispanic community or Hispanic activities of any kind." Needless to say, if a nominee is going to be blocked because he has not demonstrated enough interest in "Hispanic activities," it becomes more difficult to claim that ethnic considerations had nothing to do with the opposition. And no analogous ethnic demands were made regarding John Roberts.

Another reason offered by some Democrats was that Estrada wasn't forthcoming enough in answering questions from Senators during his confirmation hearing. (This claim was made by Leahy in his press releases on February 22, March 6, and September 15; by Kennedy in his floor statement from March 4, and by Daschle in his press releases of February 5 and May 13.) Estrada's answers to certain questions were somewhat evasive, but on the other hand, Estrada offered to answer more questions from Senators, and few Democratic Senators took him up on the offer. Given their refusal to ask further questions, their claim that he wasn't forthcoming enough seems to be pretextual.

One final reason was that Estrada didn't have the relevant legal experience. In a press release on February 5, Leahy said:
Given the importance of the D.C. Circuit and the effect of their decisions on the rights of all Americans, we must take special care in evaluating nominees to this court. It is noteworthy that it does not appear that Mr. Estrada has had any experience as a practicing attorney since 1989 handling cases within the special jurisdiction of the D.C. Circuit, such as cases involving the National Labor Relations Board, the Occupational Safety and Health Administration, the Federal Communications Commission, the Americans with Disability Act, the Federal Energy Regulatory Commission, the Federal Election Commission, the Endangered Species Act, the Environmental Protection Agency (such as the following environmental statutes: the Resource Conservation and Recovery Act, 42 U.S.C. § 6976; Superfund, 42 U.S.C. § 9613; the Clean Water Act, 42 U.S.C. § 300j; and Clean Air Act, 42 U.S.C. § 7607) or the cases involving alien terrorists or challenges to the 1996 amendments to the Immigration and Nationality Act.

The bulk of Mr. Estrada’s experience, including his Supreme Court arguments, involves criminal appeals, but criminal appeals constitute only about 5 percent of the work of the D.C. Circuit. Similarly, Mr. Estrada’s experience in banking and HMO law also constitute a statistically insignificant percent of the work of this court. While it is true that not everyone appointed to this circuit has prior judicial experience, others have had more legal experience or legal writings than Mr. Estrada has had.
As far as I can tell, no one ever inquired (at least not on the record) into John Roberts' experience with cases involving FERC, the FCC, RCRA, CWA, or any of the other statutes or agencies listed by Leahy. Thus, whether or not this reason is pretextual, it is another example of behavior that would be prima facie evidence of discrimination in a lawsuit over private employment.

So, Estrada would probably be able to demonstrate that the Democrats' proferred reasons were either pretextual or else were examples of discriminatory treatment, particularly given that the same reasons could have been (but weren't) used to block John Roberts.

And at that point, Estrada might be able to win an employment discrimination suit, just based on the above facts alone. It wouldn't be a definite win, but current federal law does allow a verdict for the plaintiff where the employer's "legitimate" reasons are shown to be pretextual. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) ("Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.").

* * *

Thus we come to what everyone knows is the real reason that the Democrats blocked Miguel Estrada: Because they were afraid that he might be nominated to the Supreme Court. As Ted Kennedy said to his fellow Democrats, "The White House is almost telling us that they plan to nominate him to the Supreme Court. We can't repeat the mistake we made with [Supreme Court Justice] Clarence Thomas."

Now think about that for a minute. What "mistake" was that? The only thing Kennedy could have meant was the "mistake" of letting Thomas become a D.C. Circuit judge in the first place. With Thomas in that position, Bush I was able to nominate Thomas to the Supreme Court. And despite the best efforts of Anita Hill and every Democratic special interest group under the sun, several Democratic Senators found it impossible to avoid voting for Thomas simply because they didn't want to be seen voting against an African-American nominee to the Court. Their "mistake," in other words, was letting a conservative racial minority ever get to the point where he could be plausibly nominated to the Supreme Court.

The objection will be raised: Kennedy merely meant that the mistake was in letting any conservative get to the D.C. Circuit. But note that he didn't refer to the "mistake we made with Antonin Scalia," even though Scalia is equally conservative and was successfully nominated to the Supreme Court after serving on the D.C. Circuit. The fact that Kennedy referred only to Thomas, and not Scalia, is evidence that he was (even if subconsciously) referring to what he views as a bad experience with a conservative minority.

Another objection will be raised: How can anyone seriously suggest that Democrats are guilty of discriminating against minorities? Well, this is a valid objection only if "discrimination" under federal law required some showing of personal animosity. But there is no such requirement.1 In order to win an employment discrimination case, you don't have to show that the employer was personally full of hatred, bigotry, meanness, spite, or any other feeling of ill-will towards minorities (although such a showing usually helps!). All you have to show is that race or ethnicity was a "motivating factor" in the hiring or firing decision. So if an employer said, "I love black people with all my heart, but unfortunately my customers might not want another black employee here," the employer can be held guilty of racial discrimination.

More to the point, imagine a CEO who said: "I hate the idea of modernized widget production, and I don't want senior management who believe in it. I had a bad experience the last time I hired a black person who believes in modernizing widgets -- our company's HR people were so gung-ho about the diversity he brought to the company that I couldn't get away with opposing his further promotion to senior vice-president. So, I've learned my lesson. Out of two candidates for several openings at the vice-president level, both of whom believe in modernized widget production, I'll hire the white candidate but not the black one. I'll be able to block the white person's promotion, and the black guy will never even get the chance to be promoted to senior vice-president."

Clearly, there are several motives going on here. The CEO doesn't like modernized widget production, and that's the primary reason for his concerns. But there is also no question that he treated the black person differently from the white person, because of his fear that he wouldn't be able to prevent the black person from being promoted. Given the current state of federal law, I am fairly certain that the black person here would have a good claim as to employment discrimination.

You see, race/ethnicity does not have to be the sole reason for the adverse action. All the plaintiff has to show is that race or ethnicity was one motivating factor, even if the employer had many other reasons for failing to hire the plaintiff. See 42 U.S.C. 2000e-2(m): "[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." The employer can escape liability for damages only by showing that there is no way it would have hired the plaintiff no matter what the plaintiff's race -- but even then, the employer can be subject to declaratory relief, injunctive relief, and an award of attorneys' fees under 42 U.S.C. 2000e-5(g)(2)(B).

So if the employer takes race into account at all, even with no feelings of ill-will towards the racial minority, he can be held guilty of employment discrimination. Likewise, if the Democrats took Estrada's race into account in deciding that they should oppose him and not Roberts, then they are guilty of the sort of conduct that might be held to violate Title VII, even if their main motive was to take preemptive action against conservative potential nominees to the Supreme Court.

1As the 11th Circuit recently said, "ill will, enmity, or hostility are not prerequisites of intentional discrimination." Ferrill v. Parker Group, Inc., 168 F.3d 468, 473 n. 7 (11th Cir.1999). The Supreme Court reached a similar conclusion in Goodman v. Lukens Steel Co., 482 U.S. 656 (1987), holding that there could be liability for discrimination even though "there was no suggestion [ ] that the [defendant] held any racial animus against or denigrated blacks generally," id. at 668.

Tuesday, November 04, 2003

Ruse on Dawkins

I enjoyed Michael Ruse's review of the latest book from Richard Dawkins. A quote:
I would like to see Dawkins take Christianity as seriously as he undoubtedly expects Christianity to take Darwinism. I would also like to see him spell out fully the arguments as to the incompatibility of science (Darwinism especially) and religion (Christianity especially). So long as his understanding of Christianity remains at the sophomoric level, Dawkins does not deserve full attention. It is all very well to sneer at Catholic beliefs about the Virgin Mary, but what reply does Dawkins have to the many theologians (like Jonathan Edwards) who have devoted huge amounts of effort to distinguishing between false beliefs and true ones? What reply does Dawkins have to the contemporary philosopher Alvin Plantinga, who argues that the belief that there are other minds and that others are not just unthinking robots requires a leap of faith akin to the Christian belief in the Deity? Edwards and Plantinga may be wrong, but Dawkins owes them some reply before he gives his cocky negative conclusions.

* * * I do wish that he and other science writers would cease assuming that philosophical issues can be solved by talking in a brisk, confident voice.

* * *

Some of the fundamental problems of philosophy are no closer to being solved today than they were at the time of the Greeks: Why is there something rather than nothing? Why is this something not something else? What is mind, and are we unique? Perhaps one agrees that traditional religions—Christianity specifically—do not offer the full answers. But what is to stop a nonbeliever like myself from saying that the Christians are asking important questions and that they are right to have a little humility before the unknown? As Saint Paul said: "Now we see through a glass, darkly." That apparently includes Richard Dawkins.
(Via Arts and Letters Daily.)

Saturday, November 01, 2003

Law Review Articles

Two new law review articles that look interesting:

Order Without Law? Property Rights During the California Gold Rush

Carnegie Mellon University - H. John Heinz III School of Public Policy and Management
Stanford University - Department of Economics
The paper reconsiders the nature of mining districts and property rights during the California gold rush. According to a widely accepted view advanced by Umbeck (1977, 1981), in the absence of effective legal authority, district codes established secure property rights in mining claims. Drawing on a data set of mining district codes and a simple theoretical model, we argue that the main historical features of mining districts may best be understood by viewing them not as enforcers of private property rights, but as institutions for managing access to a nonrenewable resource, in what was fundamentally an open-access context.
Did Unilateral Divorce Laws Raise Divorce Rates? A Reconciliation and New Results

Stanford University - Graduate School of Business; National Bureau of Economic Research (NBER)
Application of the Coase Theorem to marital bargaining suggests that shifting from a consent divorce regime to no-fault unilateral divorce laws should not affect divorce rates. Each iteration of the empirical literature examining the evolution of divorce rates across U.S. states has yielded different conclusions about the effects of divorce law liberalization. I show that these results reflect a failure to jointly consider both the political endogeneity of these divorce laws and the dynamic response of divorce rates to a shock to the political regime. Taking explicit account of the dynamic response of divorce rates to the policy shock, I find that liberalized divorce laws caused a discernible rise in divorce rates for about a decade, but this increase was substantially reversed over the next decade. That said, this increase explains very little of the rise in the divorce rate over the past half century. Both administrative data on the flow of new divorces, and measures of the stock of divorcees from the census support this conclusion. These results are suggestive of spouses bargaining within marriage, with an eye to their partner's divorce threat.