Thoughts from
San Diego on Law, Politics, and Culture

 
A Modest Tax Proposal
By Tom Smith

This is probably an old idea, but why can't we have tax cuts and just start cutting at the bottom and work our way up? Don't get me wrong, I am in favor of any kind of tax cuts. Make consumption deductible; it would be fine with me. But since the complaint about tax cuts is always that the rich get more than their share, why not just take the amount of revenue expected to be lost from a given tax cut, and set an income level below which one would pay no federal income tax, that would give you an equivalent result? As it is, an amazing percentage, apparently something like 45% of total revenues from the federal personal income tax comes from people who make $200K a year or more. People making less than $40K don't contribute much. If the law were, say, if you make less than $30K per year, you just pay NO taxes, the politics of tax cuts would be very different. And undoing those tax cuts would not be so easy, either. Furthermore, if the idea is to stimulate the economy, wouldn't the effect be stronger? Rich people invest, true, but in a global economy that investment is spread out over the entire world. People with incomes under $30K get tax cuts and buy big screen TVs and ATV's right here at home (at least that's what we do in San Diego). While these items are manufactured in Japan, there is a lot of work done in the US distributing them to US consumers. I would think the stimulative effect would be greater if the tax cuts were directed at lower income individuals. (I do not mean to sound Keynesian here; I'm talking about local consumption versus global investment.) And while we're at it, let's pass a bill of attainder making Ariana Huffington pay oh, say, 20% of her past two years income to the federal fisc, (instead of the only $771 she did pay) unless, of course, she agrees to shut up for one full year. I leave the constitutional issues this may raise to wiser heads than I.
posted by thomas at 9/30/2003 07:53:00 PM

 
Will Clark have new vision for NASA?
By Tom Smith

General Clark and I may like some of the same books (sci fi) but I know it's fiction. The general apparently thinks faster than light travel will be possible some day. I wonder what he thinks of missile defense?
posted by thomas at 9/30/2003 02:25:00 PM

 
One More Thing to Consider in the Recall Election
By Gail Heriot

Karl Marx isn't one of my favorites, but he nailed one thing: History repeats itself--first as tragedy and then as farce. The continuing battles over affirmative action and California's Proposition 209 are a case in point.

The original tragedy occurred when the Civil Rights Act of 1964, which offered so much hope for racial reconciliation, was transformed in part into an instrument for discrimination. All too quickly after it became law, its clear ban on race discrimination was interpreted to apply only to members of certain races. The country was forced to be satisfied with only half a measure. Discrimination against whites and Asians was fine, even encouraged.

It took almost three decades for Californians to draw the line, but they finally did. Crystal clear language was drafted: No race discrimination may be practiced by the State of California or its subdivisions, not against any person, no matter what his or her race, not even for superficially well-meaning reasons. With the passage of Proposition 209 in 1996, voters put a stop to preferential treatment based on race (or sex or ethnicity).

Or at least they thought they did. Members of California's Legislature have frequently voiced dissatisfaction with Proposition 209's requirement of race neutrality. And recently with Gray Davis's blessing, they took action. They passed a statute that purports to interpret, but that in reality twists, Proposition 209 into somethings more to their liking. If the courts accept this new law as an authoritative interpretation of Proposition 209, it will "interpret" the initiative right into oblivion.

A.B. 703--taken from the U.N.'s International Convention on the Elimination of All Forms of Racial Discrimination--exempts from the definition of race discrimination "measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups." In other words, it exempts precisely the kind of case voters were thinking of when they passed Proposition 209 in the first place. Proposition 209's opponents could not ask for a more complete and dramatic back-from-the-grave victory.

Fortunately for the strong majority of voters who cast their ballots for Proposition 209, the whole enterprise is a fool's errand. California's comically out-of-control legislature has no power to bind the courts to an interpretation of a voter initiative, particularly when, as here, the interpretation is so obviously contrary to the voter's understanding of the initiative.

No one can argue that Proposition 209 was a stealth initiative. It was debated in newspapers and magazines, on radio and television, in churches and meeting halls and over breakfast room tables all over California. Its basic purpose was well known. If Proposition 209 doesn't apply to the kind of affirmative action measures described in the new law, then the Migratory Birds Act doesn't apply to creatures with feathers. The courts are unlikely to view this legislative escapade as anything more than another reason to be embarrassed for their state government--though I suppose anything is possible.

Gray Davis was never a friend to Proposition 209. But at least in the past he could be counted upon to veto the more ridiculous excesses of the Legislature. These days, however, Davis evidently thinks he cannot afford to antagonize any Democratic constituency. The result has been a feast of special interest legislation of which A.B. 703, which Davis signed into law, is just one one example. For some Californians unsure of how to vote on the recall, it may be one example too many.

posted by Gail at 9/29/2003 10:09:00 AM

 
Ammunition in Your Next Debate Against Cultural Relativism
By Tom Smith

Those darn African witch doctors. But hey, they're just doing their culturally relative thing.
posted by thomas at 9/28/2003 06:11:00 PM

 
Field Conservatives
By Tom Smith

Boy this blogosphere stuff moves fast. Steve Bainbridge has replied to my provocative house/field conservative distinction with a choice quote of Brooks-- conservatives preach prudence without being able to exercise it. Touchay. It's only too true. Just ask soon to be governor Bustamante.
On the Brian Leiter point, I have just one more thing to add. Brian should know (and probably does) that you can't judge the intelligence of any position by numbers. Brian noted in the Green Bag that only some small percentage of members of the National Academy of Science believe in God. They probably think if there were a God, he would already be a member of the NAS. Also, if God wanted scientists to worship Him, he would give grants.
When I'm grouchy, I know it's time for me to go to the gym. When my wife tells me I need to go to the gym, I know I am really grouchy. My wife has just told me I need to go to the gym.
posted by thomas at 9/28/2003 02:09:00 PM

 
The House Conservative
By Tom Smith

My fellow Right Coaster Mike Rappaport told me about a famous speech by Malcolm X (I think) in which he distinguished "house [slaves]" and "field [slaves]". (For "slaves" X used an offensive word.) House slaves loved their masters. They were smooth, polished and careful never to upset their masters. Not field slaves. They were rough, dirty and hated their masters. Malcolm X said he had always been a field [slave].
Brooks is a house conservative. He is careful never to say anything that would overly upset liberals. He is oh so nice on the Leher News Hour. For this reason, he is less interesting than Mark Shields, who really is knee-jerk liberal, but at least he's a two fisted one. I read about half of BoBos in Paradise. I stopped with the impression that here was I guy who spent far too much time thinking about what other people thought about people who spent a lot of time thinking about what other people thought of them. That is, a guy really hung up on making the right impression.

It's not a harmless vice. It leads Brooks to say ridiculous things like, the bias against conservatives in the academy is unconscious. Please! If Brooks really believes this, he hasn't done his research. If he doesn't, then he shouldn't write as though he does.

I prefer field conservatives, like Charles Krauthammer.
posted by thomas at 9/28/2003 08:24:00 AM

 
Naturalistic Ethics
By Tom Smith

I just finished reading one of the most interesting philosophy essays I've read in years. It was John McDowell's "Two Kinds of Naturalism," which is anthologized in this very useful book. The article resists summary, but you could say that McDowell is trying to recover Aristotle's naturalistic ethics by dispelling an illusion created by the 'shallow metaphysics' of 'neo-Humean' empiricism. The essay is rather hard going, but it also gives you the rewarding feeling that this is what philosophy is supposed to be. It is soaringly ambitious--it's trying to say, here's how Hume and Kant and our reaction to both has led us astray, and here's how to be Aristotelian in a world that's been 'disenchanted' by Hume and Kant. But the thing is, he almost seems to pull it off. Larry Solum turned me on to McDowell. One thing gives me pause about the essay. There is a rather nasty footnote in it attacking my old philosophy major advisor at Cornell, Terry Irwin, and his magisterial book Aristotle's First Principles. McDowell dismisses Irwin's reading of Aristotle on dialectic as anachronistic. Having witnessed Irwin's immersion in Greek sources and his obsessivley careful reading of texts, and his mastery of Greek history as well as philosophy, I just find it on its face implausible that Irwin would be far off. The next thing to read is McDowell's Mind and World, another Larry Solum recommendation. The question is, when? Oh well, got to drive kids to karate practice. Hi yahhhh!

posted by thomas at 9/27/2003 09:35:00 AM

 
Senate Filibusters
By Gail Heriot

When I look back over the notes of a talk I gave to Case Western Reserve law students early last November, I feel a little foolish. The talk was supposed to be on the judicial confirmation crisis. But the day after Election Day, when the voters had just restored the GOP majority in the Senate, it appeared to be a dog of a topic. Whatever one thought about whether a "crisis" had existed the day before, it seemed very unlikely that the contentious delays that had characterized the process in 2002 would continue once the new Senate convened.

As the plane landed at Cleveland International Airport, I was busy reconfiguring my notes to emphasize the long-term picture--how the confirmation process was becoming increasingly hard-fought (even nasty) whenever the White House and the Senate are held by different parties. I didn't worry about being wrong when I predicted that the problem was going to recede temporarily with the new GOP majority. Instead, I was worried that I would put the students to sleep.

We all know now that I was wrong–at least partly. Under Orrin Hatch, the Committee on the Judiciary did indeed speed up the process. But Bush's opponents proved themselves willing to play a serious game of hardball when, much to my surprise, they filibustered some of his appellate nominees. This strategy has caused serious setbacks to the Bush's efforts to staff the judiciary--notably Miguel Estrada's recent withdrawal as a nominee for the U.S. Court of Appeals for the D.C. Circuit. Estrada had a majority of Senators behind his nomination, but opponents of the nomination successfully prevented the issue from coming up for a vote.

Allow me to say a few words on the subject of filibusters–things I would have said to the Case Western students if I had only had a bit more foresight.

The word "filibuster" comes from the Spanish word "filibustero" meaning pirate. The Spanish word can be traced back to the Dutch "vrijbuiter," which also means pirate. The filibusteros of the nineteenth century had a nasty habit of taking over the governments of small Latin American and Carribean countries, just as Senators essentially take over the Senate when they filibuster in the familiar manner. In our own time, we might have called them "hijackers," since they hijack Senate operations for their own purposes.

The "modern" filibuster, of course, differs from what many of us recall from Jimmy Stewart's performance in Mr. Smith Goes to Washington. In Stewart's time, a would-be filibusterer had to talk, talk, talk and talk sometimes around the clock. No Senator could conduct an effective filibuster by himself, since he would eventually collapse. But two or more could operate as a tag team and bottle up Senate operations indefinitely, sometimes sleeping on cots in the Senate cloakroom. The United States government could be broght to its knees.

After the notorious filibusters by Southern Democrats during the Civil Rights Era, Senate rules were changed to make the process less disruptive. A member of the Senate can now put a matter on hold. But sixty Senators can vote to cut off debate. And in the meantime, other Senate business can be conducted without hindrance. It's thus relatively painless for all concerned. There are no marathon sessions, no readings from the Cleveland telephone book, and no Jimmy Stewarts.

It seems to me there are two possible reasons to support the concept of a filibuster. Neither reason, however, would support the use of the filibuster against the Estrada nomination.

First, there are occasions in which debate has been called off prematurely by a majority that mistakenly believes that it has heard it all. Allowing a minority to force the majority to hear more can be a good thing. But if the issue is whether the Senate has fully debated the issue, there ought to be limits to how long Senate action can be delayed. A week? A month? Two months? Surely at some point it becomes obvious that the point is not the need for further debate but rather the desire to thwart the will of the majority. The current method by which the Senate rules attempt to limit abuse is the ability of sixty Senators to cut off debate. That method is ineffective when the Senate is split 59 to 41. It mustn't be overlooked that a majority of 59 is still a very large majority and at some point its will ordinarily ought to be respected.

That leads me to the second reason that someone might favor the filibuster. Now and then an issue comes along about which the minority feels passionately and the majority does not. Deference to the will of the minority may sometimes be appropriate in those cases. The traditional filibuster is one way that the minority is able to register that passion.

The problem is that the modern "painless" filibuster is an ineffective way to separate passion from pique (or even mild disagreement). No one imagines that Ted Kennedy or Barbara Boxer would have been willing to bring the United States government to its knees–shut down the appropriations process, allow Social Security checks to bounce and freeze all federal activity--just to keep Miguel Estrada off the D.C. Circuit. Indeed, it is difficult to believe they would have been willing to stay up past bedtime for that purpose. The modern filibuster makes opposition easy and painless. Rather than allowing a small group of Senators can stop action they passionately oppose, small group to get its way on everything while paying little or no political price.

It seems to me that this is as good a time as any to re-think Senate rules in some way that would draw a distinction between these two very different purposes for the filibuster.


posted by Gail at 9/26/2003 04:16:00 PM

 
Bush Bottoming Out?
By Tom Smith

For poll numbers, I always check Zogby first. He's a Democrat, so I don't have to worry about being told what I want to hear. He was one of the few who predicted an extremely close 2000 Presidential election. Most polls had Gore trailing slightly. This latest may be the bottom of Bush's well. I hope so.
posted by thomas at 9/26/2003 09:21:00 AM

 
Why Efficient Markets are Random
By Tom Smith

Thanks to Steve Bainbridge for alerting me to an article in Nature that takes a swipe at the Efficient Capital Markets Hypothesis. I explain this to at least one of my classes every year, and from glancing at the summary of the article by the geniuses at the Santa Fe Institute, it looks like they may not understand the connection between a randomly walking market and efficiency any better than my most innocent students. Granted, I have just glanced at the article, so I'm jumping to this conclusion--but look: The reason why random stock market movements are evidence of efficiency is because stock market price changes are based on new information. If we could predict it, if it wasn't a surprise, then it would not be news. As I tell my students, that's why it's called news. The more random the movement, the more prices are reacting only to new information, rather than to information that is already (partially) reflected in past prices. So the folks at Santa Fe Institute have noticed there is more than one way to produce a random series. Well, duh. Non-randomness would not be an indication that traders are intelligent; it would just be evidence that the market is not processing information efficiently, that old news was still influencing current prices. Perhaps this example will help: suppose corn futures prices depend only on weather variables in the midwest, which I postulate fluctuate randomly. The movement of corn futures prices should be just as random as the weather movements, or else they are not responding only to new information. If there is anything not random about the movements, such as gradual seasonal warming, then that already known information should already be incorporated into current prices, and only unpredictable movements in weather variables should cause price changes.
posted by thomas at 9/25/2003 04:48:00 PM