On being a REAL Libertarian

There's an old joke about Libertarians and their desire for purity.

Conservative guy is berating Libertarian:  "Why, if you had your way, there would be six-year-old kids working as prostitutes and shooting up heroin in public parks!"

Libertarian, instead of objecting that that's stupid, says, "Hey!  HEY!  What the $%^&*! do you MEAN, 'public' parks?"

I have a piece in the most recent print version of FREEMAN (the article).  The piece contains the following paragraph:

We are for a libertarian society, where a couple wakes up, in their own home, on land that they control, on property that they can defend with the help of their neighbors. This couple formed a bond, by mutual consent, without needing the license or endorsement of any outside agency. They send their children to schools that they have chosen, whose curriculum they endorse. When they go out to their car, they don’t take an I.D. It’s no one’s business who they are, or where they are, so long as they initiate no violence and break no laws. They work in jobs they have trained for, and they enjoy the full fruits of that labor. They contribute to charities or work for causes they believe, and are not forced at gunpoint to support causes they loathe. (emphasis added; you'll see why)

To be fair, several people have said they like this sentiment, and agree with it.

But. this morning (and I am absolutely NOT making this up), I got an outraged email that called me names and said, "Hey!  HEY!  What the $%^&*! do you MEAN, 'laws'?"

Sir, people like you are the reason that the Libertarian Party flounders when it tries to participate in politics.  If you don't concede that some sort of state--necessary or not--is going to be with us for the foreseeable future, why are you attending meetings of a political party whose avowed goal is to elect people to public office?  

Timur Kuran on Sharia Law

My friend and Duke colleague Timur Kuran on Sharia law.  Interesting, and clear.

The link.

Pimps are Sex Offenders?

Holy simoly.  An amazing piece of legislation.  The NC General Assembly is considering a bill to make pimpin' an offense that would require registration as a (wait for it) Sex Offender!  People convicted of "sex trafficking" would be required to have their names added to the sex offender registry.  It appears that Dan Blue is the only guy in the legislature with any sense.


A state Senate committee Thursday approved a local senator's bill that would require those convicted of human trafficking, or pimps, to register as sex offenders. 

But approval came after considerable debate over the scope of the sex offender registry. Several senators expressed concern about adding the crime to the registry because it places offenders not convicted of sex crimes on the list. 

"Sex offenses are unique," said Sen. Dan Blue, D-Wake. "We need to keep them separate as much as possible.

 Sen. Thom Goolsby, R-New Hanover, filed his Sex Trafficking/Sex Offender Registration bill last week. Goolsby said he understood Blue's concern, and he was open to creating a separate registry but wasn't sure if that was possible. 

Sen. Dan Soucek, R-Watauga, was concerned that creating a separate registry might be more problematic. "We don't want to create a loophole that is an exception," Soucek said. Goolsby argued during Thursday's committee meeting said he'd rather err on the side of victims. 

"This is the only registry we have," Goolsby said. "If someone enslaves another human being, we still want those people registered."

More after the jump...

A Woman's Place

When Are Women More Effective Lawmakers Than Men?

Craig Volden, Alan Wiseman & Dana Wittmer
American Journal of Political Science, forthcoming

Abstract:
Previous scholarship has demonstrated that female lawmakers differ from their male counterparts by engaging more fully in consensus-building activities. We argue that this behavioral difference does not serve women equally well in all institutional settings. Contentious and partisan activities of male lawmakers may help them outperform women when in a polarized majority party. However, in the minority party, while men may choose to obstruct and delay, women continue to strive to build coalitions and bring about new policies. We find strong evidence that minority party women in the U.S. House of Representatives are better able to keep their sponsored bills alive through later stages of the legislative process than are minority party men, across the 93rd–110th Congresses (1973–2008). The opposite is true for majority party women, however, who counterbalance this lack of later success by introducing more legislation. Moreover, while the legislative style of minority party women has served them well consistently across the past four decades, majority party women have become less effective as Congress has become more polarized.

----------------------

Successful Female Leaders Empower Women's Behavior in Leadership Tasks

Ioana Latu et al.
Journal of Experimental Social Psychology, forthcoming

Abstract:
Women are less likely than men to be associated with leadership, and the awareness of this stereotype may undermine women's performance in leadership tasks. One way to circumvent this stereotype threat is to expose women to highly successful female role models. Although such exposures are known to decrease women's leadership aspirations and self-evaluations, it is currently unknown what the effects of role models are on actual behavior during a challenging leadership task. We investigated whether highly successful female role models empower women's behavior in a leadership task. In a virtual reality environment, 149 male and female students gave a public speech, while being subtly exposed to either a picture of Hillary Clinton, Angela Merkel, Bill Clinton, or no picture. We recorded the length of speeches as an objective measure of empowered behavior in a stressful leadership task. Perceived speech quality was also coded by independent raters. Women spoke less than men when a Bill Clinton picture or no picture was presented. This gender difference disappeared when a picture of Hillary Clinton or Angela Merkel was presented, with women showing a significant increase when exposed to a female role model compared to a male role model or no role models. Longer speaking times also translated into higher perceived speech quality for female participants. Empowered behavior also mediated the effects of female role models on women's self-evaluated performance. In sum, subtle exposures to highly successful female leaders inspired women's behavior and self-evaluations in stressful leadership tasks.

Nod to Kevin Lewis

Stand Your Ground

Okay, here's the thing: I'm a big fan of rights to gun ownership, and concealed carry laws. I have myself qualified for a concealed carry permit in NC. Those laws should be "shall issue," and not up to the discretion of local authorities. Full stop. But..."stand your ground" laws, as they may be applied (NOTE: EDITED) in Florida, are nuts. If you are carrying a gun, you have it only to use as a last resort, and you are required, both morally and as a matter of law, to forebear from doing certain things you might otherwise do. If you are carrying a gun with CC permit, you cannot:

1. Drink alcohol. At all, not any.
2. Intentionally put yourself in a situation where you need to use the gun.
3. Get into a fight.

If for some reason you do get into a fight, you have to walk away. If walking away does not work, you have to run.

Only if you have made a serious reasonable effort to escape, or are prevented by circumstances from doing so (eg, other person has a deadly weapon) can you use your weapon, or for that matter any other kind of deadly force, in response. Someone pulls a knife on you, you don't have to run. Someone talks bad about your mama, walk away.

Now, a test case. Consider the following: "Citing the Florida [stand-your-ground] law, a judge dismissed a murder charge against Greyston Garcia, who had chased and stabbed to death a suspected burglar who had stolen his car radio. The judge ruled that a bag of radios swung by the suspect, Pedro Roteta, at Mr. Garcia amounted to a lethal threat." [WSJ story]

So, a quiz: Did Mr. Garcia satisfy the conditions for using a concealed weapon? (Assume the knife was large and concealed.) No. Not even close. You cannot use deadly force to defend property, unless there is also a threat to YOU. The robber (assume he was in fact *A* robber, who stole stuff, and *THE* robber, who stole in particular Mr. Garcia's stuff. He might not be, and it's not for Mr. Garcia to decide. But suppose). The robber ran away. You can run after him, but if you do you forfeit the right to use deadly force. Now, you might still use deadly force if your life was threatened (a bag of radios? really?). But if you do, you are guilty of manslaughter, just like anytime A kills B in a fight A started.

Now, the actual point. Re the Trayvon Martin / George Zimmerman thing. The question is, did Zimmerman try to walk away/run away? He did not. Mr. Zimmerman, in fact, followed Mr. Martin. That means Mr. Zimmerman cannot use his weapon. If he does, and kills Mr. Martin, then Mr. Zimmerman is guilty of manslaughter, even if the only account of events we credit is that given by Mr. Zimmerman. ZIMMERMAN FOLLOWED MARTIN. (Plus, the police definitely told him not to, just in case Zimmerman was confused). If after that Zimmerman shot Martin, even if it was self-defense in the particular circumstances of that moment, Zimmerman is guilty of manslaughter. A kills B in a fight A started. A following B is starting a fight, seeking out a fight. It's not walking away.

"Stand your ground" laws are fine inside your home. Someone breaks into your home, empty the clip at them, no questions asked. But invoking "Stand your ground" when YOU chased THEM? That's just an excuse to commit murder and get away with it.

UPDATE: Jake Syma sends this link to a HuffPo piece by JM Granholm. Nice piece.

UPDATE II: It may be that the FLA SYG law will NOT apply in this case. That is certainly the view of the law's primary author, as here. If SYG is disallowed as a defense here, then I stand corrected and SYG is okay as written. If not, I've got beef. And I still find the application in the Garcia case above to be incomprehensible.

(Nod to Kevin Lewis and Jake Syma for links)

Prisoners' Dilemma

The problem, as I often tell my students, is that the fact that the PD has a dominant strategy is more determinative than they think.

The reason is that it does NOT depend on guilt or innocence. Think about it: knowing that I go free if I rat you out, but that I get the death penalty if you rat me out, has NOTHING to do with who did what, if in fact either of us did anything. Barring a joint defense, it's tough to resist.

The problem is that prosecutors don't care. A conviction means they win, and can get reelected. And then, to get parole, the guy has to admit guilt yet again, even if he is innocent.

Downside? Our prisons have a lot of innocent people in them, particularly the ones who can't afford real representation. A new book....

(Nod to Angry Alex)

Mugshot of the Day

Sheriff Joe Arpaio has a "mugshot of the day" website.

I would say that this violates the 8th Amendment. Not because the pix are humiliating, but because these people have NOT been convicted of any crime.

Having said that: I vote for either Mallory or Angelica. Mallory is pretty darned pissed, and Angelica is a bit too happy.
(Click on the photo for a more humiliating image)
I do think that "Richard Joe" deserves some love.

(Nod to Kevin Lewis)

Republicans Should be Embarrassed....

I am a "plain meaning" fan, for the Constitution. Sure, the words have to be interpreted, and there is a large body of midrash to go with the Constitutional Torah.

But this is a problem with any contract, and judges are good at interpreting contracts when there is a dispute over meaning. That is ALL Constitutional law should be about: the meaning of the contract. And you can only change the contract with unanimous consent. As Rousseau put it:

There is but one law which, from its nature, needs unanimous consent. This is the social compact; for civil association is the most voluntary of all acts. Every man being born free and his own master, no one, under any pretext whatsoever, can make any man subject without his consent. To decide that the son of a slave is born a slave is to decide that he is not born a man.

Unanimous consent in a large nation is awfully tough. And so we have a process for deciding how to change the Constitution. Unless you change it, though, you are stuck with the original language, to which you have to attach meaning.

So, on the 2nd Amendment: These words clearly establish an individual right to bear arms. They also allow that aspects of this right can be regulated. Gun rights are subject to a lot more legitimate government regulation than speech rights. "Congress shall make no law" is much more forceful than "well-regulated." We have to argue about just how these two things interact. But the two clauses have plain meaning.

My friend Sandy Levinson wrote a great piece on the 2nd Amendment, calling it embarrassing. What he meant by "embarrassing" is that lefties try to ignore its plain meaning. If you don't like the 2nd Amd, you have to change it, pumpkin! (Sandy is no conservative, mind you. He is just honest and careful. A plain meaning guy, in other words.)

The "originalist" interpretation seems similar to plain meaning, but it is different. The orginalists want to argue that the Constitution implies not what the words say but what the Founders MEANT. From this distance, and with the problem of anachronism, it seems to me that originalism is impractical and bordering on absurd.

Worse, the Repubs want to have it both ways. Nice piece in New Republic from back in January, by Eric Posner:

The problem with originalism is that, however useful it may be as a form of criticism, it cannot support a positive program. During the 2010 election, Americans may have expressed anxiety about the size of government, but in general Americans adore big government and do not want to see it repudiated in the name of some abstract idea. Every political challenge to the New Deal administrative state has gone down in flames, and today Americans look to the federal government to protect them from terrorists, financial scams, economic downturns, environmental degradation, educational failure, poverty and sickness in old age, natural disasters, and foreign competition. As a governing doctrine, the small-government ethos of originalism does not have a constituency. And the public may soon realize that originalism is unlikely to end the politicization of the judiciary. As the Heller case showed, originalism just displaces political disputes among judges into a different idiom. Even as discussion about the original meaning of the Constitution becomes more common on the Court, the left/right division between Supreme Court justices will be plain as ever. This is especially so because originalism unsettles precedent, permitting both liberal and conservative justices to disregard earlier decisions that rub them the wrong way. In addition, as Republicans gain more power, their commitment to originalism will look ever more inconsistent. Institutional commitments in politics don’t run very deep. Republicans already championed federal marriage legislation, even though the Constitution gives Congress no power to regulate family relations; and during the Bush administration, constitutional constraints on executive power were forgotten. This will surely happen again the next time the Republicans take control of the government, and they can only hope that their earlier blandishments about the original understanding of the Constitution will have been forgotten.

(Nod to Kevin Lewis)

No Quixotes! Munger v. Google Rejected by NC Supreme Court

Damn! Munger v. Google has such a nice ring to it. But it was rejected by the NC Supreme Court.

Sure, it was actually "Munger, et al. v. State of North Carolina." But it was Google that took all that cash and built a "server farm." (That's basically an insulated warehouse with some extra HVAC, btw)

We had brought suit, and I was lead Quixote...um... lead plaintiff. (Robert Orr did all the work, of course. I was just eye candy. Or maybe BOB was Quixote, and I was Sancho Panza. That's more like it.)

But the NC Supreme Court today smashed all my dreams. Went so far as to say that the very idea of reviewing the review of the appeals decision was "improvidently granted." Oh, that hurts. Improvidently granted? "Sorry, nothing to see here folks. Just an everyday violation of the NC Constitution. Move along, citizens, move along. Because there is NO STANDING! NO STANDING."

D. Kucinich: Poster Boy for Tort Reform

Congressman Kucinich appears to be trying to prove we need tort reform.

Unless of course this is an ironic attempt to call attention to the problem of nonsensical, frivolous suits.

I think not. But here is a pic of a nonsensical, frivolous suit, worn with a pretty bad tie.

Odd Sentences, of the Criminal Kind

Some unusual sentences. Some funny, some just.... odd.

(Nod to the LMM)

Old and retarded

I actually thought that Angus must be making up the thing about "old people should be ignored because they were retarded." After all, Arnold Kling is hardly a left-wing goober.

But the left-wing goobers are saying the same thing! Check this bon mot from the aggressively useless Ezra "History Begins With Me!" Klein:


He actually says that the reason no one should read the Constitution is that it is old, and no one can tell what it says.

To be fair, I'm sure he means that one has to read the "midrash" of Supreme Court decisions before you can know what the "torah" of the Constitution actually means. (At least, I hope he means that.)

But, consider the 2nd Amendment. Ten years ago I had lunch with a friend who teaches Con Law. I mentioned that the 2nd Amendment clearly creates a personal, individual right to have and bear arms. The only question is how much the state can regulate and limit the size and use of such weapons.

My "friend," with amazing condescension, suggested I should read some undergraduate books to learn what the Constitution really means. Clearly, given what the Court had said in Miller (for example) there is NO right to individual ownership. It doesn't really matter what I think the Constitution says, he told me in the patient tone of a parent lecturing a wayward and willfully ignorant child.

Well, my good friend Prof KM, given the recent decisions in Heller and in McDonald...HOW DO YOU LIKE ME NOW, SWEETIE! Maybe YOU should go read that old Constitution. It has some really cool parts.

Of course, some of it is very hard to understand, I admit. Take the first Amendment, where it says, "Congress shall make no law..." Opaque language, that, as Stephen Gutowski notes. Must mean that Congress can make pretty much any law it wants, right? As long as a majority approves, like in McCain-Feingold?

(Nod to Angry Alex)

Just Legalize It

Jeffrey Miron....nicely played, sir.

(Nod to Richard S.)

My New Favorite Headline

One-legged man escapes Florida deputies on foot.

Article.

(Nod to the blonde, who sent this out after someone explained to her why it was funny)

Rent-Seeking

A classic example of rent-seeking. Because the police can "make money" by distorting their efforts to focus more than is appropriate on marijuana busts. As the Wall Street Journal reported.

In private markets you can only make money if you produce something other people value.

But in the presence of artificial rents like this drug enforcement subsidy, the link between "make money" and "produce something of value" is broken. It is an artificial rent. And the resources devoted to seeking the rent, to the extent that such resources are taken away from other useful purposes (preventing property crimes, protecting citizens) are wasted.

Rent-seeking isn't really about the rent, which is a transfer. The cost of rent-seeking is the wasted resources devoted to capturing the rent.

Here's the bizarre thing to me. You know who IS producing something of value? THE FOLKS WHO GROW AND SELL MARIJUANA! Yikes!

(Nod to Angry Alex)

Supremes Decline Hearing for RNC v. FEC

The Supreme Court decides not to hear RNC v. FEC.

Leaving us in the bizarre situation that corporations have more political speech rights than parties. Regardless of how you view Cit Untd, that is strange.

Crime Rates Fall

Violent crime fell significantly last year in cities across the U.S., according to preliminary federal statistics, challenging the widely held belief that recessions drive up crime rates. The incidence of violent crimes such as murder, rape and aggravated assault was down 5.5% from 2008, and 6.9% in big cities. It fell 2.4% in long-troubled Detroit and plunged 16.6% in Phoenix, despite a perception of rising crime that has fueled an immigration backlash. The early figures, from the Federal Bureau of Investigation, indicate a third straight year of decreases, along with a sharply accelerating rate of decline. WSJ, Evan Perez.

bu...bu...but that can't be right? We all KNOW that crime rates are rising sharply, because of all those dirty immigrants.

Right? Wait, "Evan PEREZ." He's one of them eel-eagle immy-grants, right? So the story is made up.

Whoops. Guess not. Even an Anglo like "Charlie Savage" is writing this story, for the Times.

Darn it. That whole "immigrants are dirty criminals" was such a good story, too. Until the inconvenient facts got in the way.

Judging Gender

Since we are likely soon to have a new female associate Justice on the SC....

Untangling the Causal Effects of Sex on Judging

Christina Boyd, Lee Epstein & Andrew Martin
American Journal of Political Science, April 2010, Pages 389-411

Abstract:
We explore the role of sex in judging by addressing two questions of long-standing interest to political scientists: whether and in what ways male and female judges decide cases distinctly — "individual effects" — and whether and in what ways serving with a female judge causes males to behave differently — "panel effects." While we attend to the dominant theoretical accounts of why we might expect to observe either or both effects, we do not use the predominant statistical tools to assess them. Instead, we deploy a more appropriate methodology: semiparametric matching, which follows from a formal framework for causal inference. Applying matching methods to 13 areas of law, we observe consistent gender effects in only one — sex discrimination. For these disputes, the probability of a judge deciding in favor of the party alleging discrimination decreases by about 10 percentage points when the judge is a male. Likewise, when a woman serves on a panel with men, the men are significantly more likely to rule in favor of the rights litigant. These results are consistent with an informational account of gendered judging and are inconsistent with several others.

Several questions occur.

1. "Panel effects"? That is not the way I would have talked about panel effects. What is meant here is the presence or absence of at least one woman on the "panel" deciding. Makes sense, but panel data is an established term.

2. The rap on SDO'C on the court was that she was erratic. (She wrote McConnell v. FEC, which was bizarre, for example). So the difference (and there may not be one) between men and women may be in the variance, not the means. And in spite of the anecdote about Sandra D., it may well be men who have higher variance. I have no idea. Just saying that the difference in the second moment would be an interesting thing to measure...

Commandeering the State Legislatures

A number of states are considering suing to enjoin, or otherwise block enforcement, of the health care reform bill. The basis of the legal claims are constitutional. Let me review the issues briefly.

SUITS AGAINST: All of the suits I have heard would have to be based on the 10th Amendment. Here it is (since you have probably never heard of it, unless you are a lawyer)...

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Is the power to force individuals to purchase insurance, and to have that power enforced by state police and state courts, expressly delegated to the federal government by the Constitution?

On its face, no, but not so fast. Most of the expansions of federal power have been justified by invoking the "commerce clause" and the "elastic clause" of Article I, Section 8 of the Constitution.

Congress shall have the power....

Commerce clause: To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

Elastic clause: To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

So, medical insurance is private commerce, many companies operate in multiple states...you see where this is going. The fact that the Constitution does not specifically mention health insurance means nothing, bubkes. There is plenty of commerce clause and 10th amendment jurisprudence that would make the health care reform bill seem like a slam dunk for being clearly constitutional.

But...once again, not so fast.

There is one line of cases that would suggest that some aspects of the legislation are in fact unconstitutional. And they are recent. The Rehnquist Court did a LOT of work in 10th amendment stuff, and there might be a chance here.

Sandra Day O'Connor wrote a really important decision in the case of New York v. US. ( MORE BACKGROUND, AND THE DECISION). I used to study radioactive waste disposal, and so I know more than I should about this case, and this issue. (Yes, I know, SDO? But, yes. She was clear on 10th amendment issues, with a bias toward protecting the states. She wasn't clear on much else, but on this....clear).

From the decision SDO wrote:

As an initial matter, Congress may not simply "commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program." Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981). In Hodel, the Court upheld the Surface Mining Control and Reclamation Act of 1977 precisely because it did not "commandeer" the States into regulating mining. The Court found that "the States are not compelled to enforce the steep-slope standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever. If a State does not wish to submit a proposed permanent program that complies with the Act and implementing regulations, the full regulatory burden will be borne by the Federal Government.

So, does the health care reform bill "commandeer" the state legislatures? That is the direction petitioner / plaintiffs will have to go.

DEFENSE: On its face, since the court now seems more conservative than in 1996, given the recent Heller and Citizens United decisions, won't the suits win, and won't HCR be struck down.

No.

Two things. First, Sandra Day O'Connor was against the 2nd Amendment interpretation in Heller, and against the 1st Amendment interpretation in Citizens United. Her departure made way for the new, more conservative, court. But she was VERY conservative on 10th Amendment grounds. Both Alito and Chief Roberts are NATIONALISTS, much weaker on 10th amendment issues than O'Connor. (Imagine that you had taken Patrick Henry off the court, and put on Alexander Hamilton. That's an exaggeration, but you get the idea.) The point is that this new court is actually MORE likely to side with the national government.

It may come down to whether the Alito - Roberts bloc votes its real principles or not.

Consensus, or Census-Con?

Remarkable. You can't make this stuff up....

A Georgia man accused of killing two people used an innovative legal strategy Monday in an attempt to get his murder charges dismissed. Call it the Census defense.

Floyd Wayne Williams Jr. wants the charges dropped — or at least his trial delayed — until the 2010 Census is done so that a jury more accurately reflecting the county's racial makeup can be chosen. Williams, who is black, is to be tried in the south Atlanta's Clayton County, which has seen a surge in African-American residents since the 2000 Census.

Jury pools in Clayton County, like many other jurisdictions, are drawn from voter registration lists, driver's license data and utility records. The list is then balanced by race and gender from the Census to reflect a cross-section of the population.

(nod to the LMM)