So... this may be an extremely taboo question to ask in pro-Israel United States, but... in what way are Israel's recent attacks on Gaza 'self-defense'? Sure, there's been rocket fire aimed by Hamas (and others) at Israel, but I'm not sure I comprehend the allegation that Israel constantly has to fear for its own existence.
It seems to me that Israel fears for its own existence as much as the U.S. fears for its existence vis-a-vis terrorism. I.e. It doesn't really. (Though this Russian professor would argue the U.S. should be fearing for its own existence.)
I'm not saying Israel is wrong to go hammering on Hamas in retaliation for attacks on its citizens. I'm saying it's weird to frame the whole Israel issue as self-defense.
[XY comment]: I agree that you can't really label this action as self-defense. If a bully punches you in the arm, and you take a bat to his head - is that self-defense? This isn't to say that I'm against Israel's actions just that the rhetoric about it being self-defense is more spin than fact.
Tuesday, December 30, 2008
Monday, December 22, 2008
Ponzis Galore
The Medicare Ponzi Scheme - This blogger compares the Madoff ponzi scheme to Medicare's huge ($85 trillion) unfunded liability.
[more thoughts to come later...]
[XY comment]: While there is some similarities between the Madoff scheme and healthcare (you could also throw in social security), there is one huge difference: the government. The government is backing these programs, and the government obviously has powers that no institution or individual has. When a company has an unfunded pension plan, that is a serious problem that can bankrupt the company. The government has much deeper pockets and has the power of taxation to raise substantial funds over time. Despite huge obligations to healthcare and social security, there is no reason to think the government cannot raise the funds through taxation although there is always a chance of government default as well (lowering the promised benefits or simply not paying back debt). On the other hand, Madoff can't tax anyone so his default is automatic.
[more thoughts to come later...]
[XY comment]: While there is some similarities between the Madoff scheme and healthcare (you could also throw in social security), there is one huge difference: the government. The government is backing these programs, and the government obviously has powers that no institution or individual has. When a company has an unfunded pension plan, that is a serious problem that can bankrupt the company. The government has much deeper pockets and has the power of taxation to raise substantial funds over time. Despite huge obligations to healthcare and social security, there is no reason to think the government cannot raise the funds through taxation although there is always a chance of government default as well (lowering the promised benefits or simply not paying back debt). On the other hand, Madoff can't tax anyone so his default is automatic.
Thursday, December 18, 2008
How much are you worth?
How much is U2's or Madonna's work worth? - I didn't know about this deal, but apparently Live Nation has bought the revenues from these artists' work (including concerts and some merchandising). This is a really cool and interesting deal that deserves discussion. Additionally this brings up an interesting philosophical and economic question: How much are you worth?
I've always wondered how much I'm worth. This music deal is a bit different because it is valuing the work of these artists and not their perceived values of their lives etc. This issue comes up in Law frequently when assessing damages etc. How do you quantify the damages of an accident or injury? Starting with the value of the individual's current and future stream of income seems like a good place ot start, but additionally you have to consider how much a person values her own life etc. In economics, this has proved to be a vexing problem: how much a person values her own life can be hard to measure from observed behavior. If you try and ask someone, their answer will depend on how you ask them! I'll let XX add more thoughts on the legal implications of this type of question.
Back to the article, my understanding is that Live Nation swapped equity for the revenue streams from these artists. But the deal sounds more like a convertible bond - the artists were guaranteed a certain amount of money (like a bond) but retained upside if the stock price rises (hence a convertible option). In other words their equity is protected and cannot fall below a certain value.
Is this a good business model? Granting these artists equity makes a lot of sense. By having equity in Live Nation, these artists diversify their income with the incomes of other artists employed by the company. While they might have slightly weaker incentives, I doubt that would affect their musical efforts.
Additionally there's a lot less risk with the guaranteed minimum value (25mn) to U2and Madonna. However, only SOME of these artists had these minimum value guarantees. This represented a risk transfer among the artists. Jay-Z, Nickelback, Shakira and other artists without the guarantee took on extra risk while Madonna and U2 had their risk covered. I sort of doubt how much they thought about that when they signed on with Live Nation. How big of a risk transfer? A year ago, the company was worth well over 1 billion, and it was unlikely that the guarantees to U2 and Madonna would ever kick in since the equity was worth more than the guaranteed amount.
Now? The guarantees amount to an additional 38 million total to U2 and Madonna (They were guaranteed 50 million the market value of the equity is only 12 million). Live Nation has a current market cap of 305 million. That's big in both absolute and relative terms. It's fair to say that it may be difficult for Live Nation to come up with the cash in this environment. The other Live Nation artists are losing not only because their equity is down, but because of this additional payout to their rivals (well I guess they don't really compete for the same listeners). A really interesting transfer of risk and wealth thanks to the stock market.
I've always wondered how much I'm worth. This music deal is a bit different because it is valuing the work of these artists and not their perceived values of their lives etc. This issue comes up in Law frequently when assessing damages etc. How do you quantify the damages of an accident or injury? Starting with the value of the individual's current and future stream of income seems like a good place ot start, but additionally you have to consider how much a person values her own life etc. In economics, this has proved to be a vexing problem: how much a person values her own life can be hard to measure from observed behavior. If you try and ask someone, their answer will depend on how you ask them! I'll let XX add more thoughts on the legal implications of this type of question.
Back to the article, my understanding is that Live Nation swapped equity for the revenue streams from these artists. But the deal sounds more like a convertible bond - the artists were guaranteed a certain amount of money (like a bond) but retained upside if the stock price rises (hence a convertible option). In other words their equity is protected and cannot fall below a certain value.
Is this a good business model? Granting these artists equity makes a lot of sense. By having equity in Live Nation, these artists diversify their income with the incomes of other artists employed by the company. While they might have slightly weaker incentives, I doubt that would affect their musical efforts.
Additionally there's a lot less risk with the guaranteed minimum value (25mn) to U2and Madonna. However, only SOME of these artists had these minimum value guarantees. This represented a risk transfer among the artists. Jay-Z, Nickelback, Shakira and other artists without the guarantee took on extra risk while Madonna and U2 had their risk covered. I sort of doubt how much they thought about that when they signed on with Live Nation. How big of a risk transfer? A year ago, the company was worth well over 1 billion, and it was unlikely that the guarantees to U2 and Madonna would ever kick in since the equity was worth more than the guaranteed amount.
Now? The guarantees amount to an additional 38 million total to U2 and Madonna (They were guaranteed 50 million the market value of the equity is only 12 million). Live Nation has a current market cap of 305 million. That's big in both absolute and relative terms. It's fair to say that it may be difficult for Live Nation to come up with the cash in this environment. The other Live Nation artists are losing not only because their equity is down, but because of this additional payout to their rivals (well I guess they don't really compete for the same listeners). A really interesting transfer of risk and wealth thanks to the stock market.
Monday, December 15, 2008
Thursday, December 11, 2008
Religious Medicine
Hypothetical: An 8-year-old girl is injured in a car accident by a negligent driver. She and her mother are devout Christian Scientists. Mother takes daughter to the hospital. Daughter gets superficial medical attention. Mother withdraws daughter from the hospital early, before surgeons have a chance to operate, and completely against medical advice. As a result, the daughter's injuries are aggravated.
Should the driver/hospital/doctors be liable for the girl's aggravated injuries and for the mother's added medical expenses because the injuries were aggravated?
Answer: My gut instinct is to say, look, if you're going to follow your "religious" beliefs and do stupid things like go against doctor's advice, you should bear the consequences. But why should the daughter bear the loss for the idiocy of her mother?
Even so, I'm not all that unsympathetic. It's like those anti-vaccine cases. If a parent refuses to get her kid vaccinated, and then the kid comes down with Whatever Disease, not only should the parent bear the kid's medical costs and not be able to sue the doctor, but I might even go so far as to make the parent liable for any medical expenses of kids who are infected by that infected kid who didn't get vaccinated.
Hypothetical 2: A Catholic couple decides they can no longer afford to have any more children. They go to the clinic to get a sterilization procedure. The doctor malpractices the woman and misperforms the sterilization. Woman becomes pregnant. Should the woman be required to mitigate her damages by either aborting (against her beliefs) or giving the kid up for adoption?
Answer: This question troubles me a lot more than the Christian Scientist example. And I don't think it's because Catholicism is a more widely held belief system. Perhaps it's because it has to do with abortion. It doesn't seem reasonable for anyone, no matter what their religious beliefs, to get a necessary operation, but to me it does seem reasonable for a person not to want to abort her kid or give her kid up for adoption once she has it. I mean, this is motherhood we're talking about here, even though the couple originally didn't want this baby.
My friend tried to convince me that this 2nd Hypothetical is just like the 1st in that you should suffer the consequences of following your beliefs in the medical context. But... I'm not so sure. Any thoughts?
[/XY comment]: I don't see how these two hypotheticals are equivalent. In the first case, the injuries are caused by a car accident. In the second case, there is malpractice. So I think it's fair to say in the second case the hospital and doctor is liable. They performed a procedure incorrectly. Am I missing something?
[/XX edit]: I'd meant that the girl was injured by a negligent driver. So, is the driver liable for only the girl's 'original' injuries, or also for her aggravated injuries?
Should the driver/hospital/doctors be liable for the girl's aggravated injuries and for the mother's added medical expenses because the injuries were aggravated?
Answer: My gut instinct is to say, look, if you're going to follow your "religious" beliefs and do stupid things like go against doctor's advice, you should bear the consequences. But why should the daughter bear the loss for the idiocy of her mother?
Even so, I'm not all that unsympathetic. It's like those anti-vaccine cases. If a parent refuses to get her kid vaccinated, and then the kid comes down with Whatever Disease, not only should the parent bear the kid's medical costs and not be able to sue the doctor, but I might even go so far as to make the parent liable for any medical expenses of kids who are infected by that infected kid who didn't get vaccinated.
Hypothetical 2: A Catholic couple decides they can no longer afford to have any more children. They go to the clinic to get a sterilization procedure. The doctor malpractices the woman and misperforms the sterilization. Woman becomes pregnant. Should the woman be required to mitigate her damages by either aborting (against her beliefs) or giving the kid up for adoption?
Answer: This question troubles me a lot more than the Christian Scientist example. And I don't think it's because Catholicism is a more widely held belief system. Perhaps it's because it has to do with abortion. It doesn't seem reasonable for anyone, no matter what their religious beliefs, to get a necessary operation, but to me it does seem reasonable for a person not to want to abort her kid or give her kid up for adoption once she has it. I mean, this is motherhood we're talking about here, even though the couple originally didn't want this baby.
My friend tried to convince me that this 2nd Hypothetical is just like the 1st in that you should suffer the consequences of following your beliefs in the medical context. But... I'm not so sure. Any thoughts?
[/XY comment]: I don't see how these two hypotheticals are equivalent. In the first case, the injuries are caused by a car accident. In the second case, there is malpractice. So I think it's fair to say in the second case the hospital and doctor is liable. They performed a procedure incorrectly. Am I missing something?
[/XX edit]: I'd meant that the girl was injured by a negligent driver. So, is the driver liable for only the girl's 'original' injuries, or also for her aggravated injuries?
Wednesday, December 10, 2008
Corruption...
Governor soliciting bribes- A very sad day indeed for the American political system. The case does raise some interesting questions:
1) Why pull the plug on the investigation now?
2) Who are the people that offered $$ for the seat, or for other things?
3) Who stepped forward to bring allegations that began the investigation?
4) Given the absolutely wide scope of his corruption, who DIDN'T STEP forward with knowledge of the solicitation.
I guess we won't know the full details for a while, but it is clear that quite a few people had to be aware of the activities going on. You can't get bribes unless you let people know you'll take a bribe and at least some of his staff was complicit in the solicitation.
Regarding (1), it seems to me that they could have let the case go longer. When you have all the wiretaps and monitoring equipment in place, why not let the governor continue to hang himself? I don't think any appointment of a replacement for Obama was imminent. Additionally, it would allow more gathering of information about who was willing to pay for the seat and what was being offered. Given the amount of corruption in Illinois, implicating more people and finding out who was willing to play ball has to be a good thing. The obvious (and cynical) answer is that they ran with the case now to save the democrats (the people in 2) from further embarassment. The governor wasn't about to appoint a Republican to the seat, it had to be prominent democrats in the bidding. Letting the case go further would have lead to more names, and dare I say names of people who are involved with our president-elect, who has so far escaped the taint of any involvement. I do find it unbelievable that he never spoke with the governor about his replacement as he now claims, but so far nothing has linked him directly to this corruption (yeah!). The people (4) willing to pay bribes are just as culpable, and deserve to be embarassed at the minimum.
edit: After taking a peak at the affidavit, it appears that a tribune article stating that the governor was under close investigation and being recorded forced the investigators to act sooner rather than later. One wonders if it's really in the public interest to publish such an article and to tip off the person being investigated. One also wonders who leaked such information to the press. Freedom of the press has immeasurable benefits...but it has costs as well.
[/XX comment]
I'm still not convinced that the arrest was timed so as to avoid embarrassing prominent Democrats in the bidding for the spot. I mean, I certainly wouldn't be surprised if that were the case. But again, U.S. Attorney Patrick Fitzgerald was a Republican appointee.
Another rather cynical point I would make is... even if someone had pulled the plug early to save Democrats' face, would that be such a terrible thing? I mean, you have to balance (a) leaving wealthy, overly ambitious, unscrupulous characters lurking in the shadows (which they may have done anyway, in spite of any flushing out of Candidate 5s and whatnots); and (b) completely undermining public confidence in Illinois legislators - I mean, more than Blagojevich's blatant corruption has already.
And it's not clear to me that (b) is not an important enough interest to at least counterbalance the desire to flush out unsavory characters.
1) Why pull the plug on the investigation now?
2) Who are the people that offered $$ for the seat, or for other things?
3) Who stepped forward to bring allegations that began the investigation?
4) Given the absolutely wide scope of his corruption, who DIDN'T STEP forward with knowledge of the solicitation.
I guess we won't know the full details for a while, but it is clear that quite a few people had to be aware of the activities going on. You can't get bribes unless you let people know you'll take a bribe and at least some of his staff was complicit in the solicitation.
Regarding (1), it seems to me that they could have let the case go longer. When you have all the wiretaps and monitoring equipment in place, why not let the governor continue to hang himself? I don't think any appointment of a replacement for Obama was imminent. Additionally, it would allow more gathering of information about who was willing to pay for the seat and what was being offered. Given the amount of corruption in Illinois, implicating more people and finding out who was willing to play ball has to be a good thing. The obvious (and cynical) answer is that they ran with the case now to save the democrats (the people in 2) from further embarassment. The governor wasn't about to appoint a Republican to the seat, it had to be prominent democrats in the bidding. Letting the case go further would have lead to more names, and dare I say names of people who are involved with our president-elect, who has so far escaped the taint of any involvement. I do find it unbelievable that he never spoke with the governor about his replacement as he now claims, but so far nothing has linked him directly to this corruption (yeah!). The people (4) willing to pay bribes are just as culpable, and deserve to be embarassed at the minimum.
edit: After taking a peak at the affidavit, it appears that a tribune article stating that the governor was under close investigation and being recorded forced the investigators to act sooner rather than later. One wonders if it's really in the public interest to publish such an article and to tip off the person being investigated. One also wonders who leaked such information to the press. Freedom of the press has immeasurable benefits...but it has costs as well.
[/XX comment]
I'm still not convinced that the arrest was timed so as to avoid embarrassing prominent Democrats in the bidding for the spot. I mean, I certainly wouldn't be surprised if that were the case. But again, U.S. Attorney Patrick Fitzgerald was a Republican appointee.
Another rather cynical point I would make is... even if someone had pulled the plug early to save Democrats' face, would that be such a terrible thing? I mean, you have to balance (a) leaving wealthy, overly ambitious, unscrupulous characters lurking in the shadows (which they may have done anyway, in spite of any flushing out of Candidate 5s and whatnots); and (b) completely undermining public confidence in Illinois legislators - I mean, more than Blagojevich's blatant corruption has already.
And it's not clear to me that (b) is not an important enough interest to at least counterbalance the desire to flush out unsavory characters.
Friday, December 5, 2008
Campaign financing
Money matters - This might suggest I'm wee bit more than a little right of center, but I agree with Karl Rove's evaluation of current campaign financing. I don't think the restrictions prevent huge donations from individuals. I feel the focus should be on transparency so that we know where all the money is coming from. Some very rich donors bankrolled a lot of Obama's campaign - nothing is wrong with that, but I do feel the public should have the right to know where all the money is coming from and the identity of donators.
[/XX comment]:
Campaign financing is not a topic I'm particularly interested in. And perhaps my position on it reflects a naivete or plumb ignorance (or that I'm less left of center than *I* would like to think), but ... I'm not sure I have a problem with either boatloads of money being spent on politics, or with inequality of resources between candidates.
I mean, I can't think of any other situations where we try to limit the money that people have to spend, if they have the money and they want to spend it. The O.J. Simpsons of the world can spend millions of dollars on getting the best lawyers, but Average Joe Criminal is stuck with the overburdened public defender. Rich people have advantages in all walks of life, not just getting into elected office. I'm not sure why all this hoopla/uproar is limited to campaigns. Especially since... a person doesn't have a constitutional right to be elected to office. You wouldn't argue that government has the obligation to help a person [financially] get elected. So I don't see why you would argue that a person shouldn't use all the resources he may get to help himself get elected.
That being said, I totally agree that the focus should be on transparency. You're never going to truly balance out resources - because there are non-monetary resources as well. And even if you set strict campaign spending caps, other interested parties will spend on behalf of the campaign, and from a practical standpoint, those expenditures are impossible to police. And I'm not sure that I value equality of resources enough to spend more resources trying to police the amount of resources spent.
I agree with XY's - and Rove's - suggestion of transparency by publishing and reporting donations. This solution (a) seems the most practical and (b) would at least partly address the problems of legitimacy and appearance of corruption that campaign finance reform is intended to cure.
Oh, and as an aside, Republicans used to like to argue that because money = speech (i.e. contributing to a campaign is political expression), the First Amendment prohibits restrictions on campaign donations. Rove mentioned this briefly in his article, with the caveat that Democrats in the Obama Age might have to concede the point to protect their bankroll. I think the whole thing is kind of bogus. Money is money. I mean, I still come out the same as Rove, but this whole money is protected by the First Amendment concept is just unconvincing...
[/XY comment]:
I see no reason that campaign contributions should be protected by the constitution, but in general I don't like government interference. I just want to add that people can spend money however they want and it's none of my business. Here I only care because who the future president is getting money from speaks to his future associations and people who will have influence. I think that's more important than his past reverend etc.
[/XX comment]:
Campaign financing is not a topic I'm particularly interested in. And perhaps my position on it reflects a naivete or plumb ignorance (or that I'm less left of center than *I* would like to think), but ... I'm not sure I have a problem with either boatloads of money being spent on politics, or with inequality of resources between candidates.
I mean, I can't think of any other situations where we try to limit the money that people have to spend, if they have the money and they want to spend it. The O.J. Simpsons of the world can spend millions of dollars on getting the best lawyers, but Average Joe Criminal is stuck with the overburdened public defender. Rich people have advantages in all walks of life, not just getting into elected office. I'm not sure why all this hoopla/uproar is limited to campaigns. Especially since... a person doesn't have a constitutional right to be elected to office. You wouldn't argue that government has the obligation to help a person [financially] get elected. So I don't see why you would argue that a person shouldn't use all the resources he may get to help himself get elected.
That being said, I totally agree that the focus should be on transparency. You're never going to truly balance out resources - because there are non-monetary resources as well. And even if you set strict campaign spending caps, other interested parties will spend on behalf of the campaign, and from a practical standpoint, those expenditures are impossible to police. And I'm not sure that I value equality of resources enough to spend more resources trying to police the amount of resources spent.
I agree with XY's - and Rove's - suggestion of transparency by publishing and reporting donations. This solution (a) seems the most practical and (b) would at least partly address the problems of legitimacy and appearance of corruption that campaign finance reform is intended to cure.
Oh, and as an aside, Republicans used to like to argue that because money = speech (i.e. contributing to a campaign is political expression), the First Amendment prohibits restrictions on campaign donations. Rove mentioned this briefly in his article, with the caveat that Democrats in the Obama Age might have to concede the point to protect their bankroll. I think the whole thing is kind of bogus. Money is money. I mean, I still come out the same as Rove, but this whole money is protected by the First Amendment concept is just unconvincing...
[/XY comment]:
I see no reason that campaign contributions should be protected by the constitution, but in general I don't like government interference. I just want to add that people can spend money however they want and it's none of my business. Here I only care because who the future president is getting money from speaks to his future associations and people who will have influence. I think that's more important than his past reverend etc.
Hit my weight-lifting goal
Typical XY activity for a non-typical XY: max weight-lifting
We had checked our max bench press at the start of the semester (mine=165). I was able to lift 185 today, so increased my max 20 pounds in ~10 weeks. Pretty much everyone hit their goals, so we all made quite a bit of progress. It was anti-climactic but fun to actually attain my goal...now back to the dissertation!
[/XX comment]:
Awesome!
We had checked our max bench press at the start of the semester (mine=165). I was able to lift 185 today, so increased my max 20 pounds in ~10 weeks. Pretty much everyone hit their goals, so we all made quite a bit of progress. It was anti-climactic but fun to actually attain my goal...now back to the dissertation!
[/XX comment]:
Awesome!
Thursday, December 4, 2008
Spitzer on the Status Quo
Too Big Not to Fail - Former NY Governor Eliot Spitzer, Harvard Law School alum, and recently famous client of a high-end prostitution ring, has some intelligent words about bailouts, business models, and the "fatally flawed status quo."
[/XY comment]:
That's a well-articulated argument and I fundamentally agree with what he's saying. I do wonder whether it is a the boom-bust cycle of the economy and companies is fundamental to capitalism. A successful company is going to attract lots of capital. It will succeed sometimes, and it will fail sometimes. When it succeeds it becomes much larger, and may inevitably reach the `too-large to fail' point. This may be especially true for financial companies where money moves in and out rapidly and success is equally rapid and volatile.
[/XX response]:
I also fundamentally agree with Spitzer's argument, although I do think he sort of romanticizes the days of yore when businesses were smaller, more manageable, more flexible.
[/XY comment]:
That's a well-articulated argument and I fundamentally agree with what he's saying. I do wonder whether it is a the boom-bust cycle of the economy and companies is fundamental to capitalism. A successful company is going to attract lots of capital. It will succeed sometimes, and it will fail sometimes. When it succeeds it becomes much larger, and may inevitably reach the `too-large to fail' point. This may be especially true for financial companies where money moves in and out rapidly and success is equally rapid and volatile.
[/XX response]:
I also fundamentally agree with Spitzer's argument, although I do think he sort of romanticizes the days of yore when businesses were smaller, more manageable, more flexible.
Tuesday, December 2, 2008
Who is your customer?
I'm taking the chinatown bus back from NY to Boston on Sunday (trip took 6 hours...ugh) when I catch sight of a billboard advertisement.
GUNSHOW!! WE SELL GUNS!
NO ID REQUIRED. NO BACKGROUND CHECKS.
First a disclaimer. I'm pro gun-control. It seems like everyone would be safer if no one had a gun (except the police). Now what troubles me about this advertisement is the fact that they seem to be targeting a specific market. Obviously they are advertising to:
1) People who want to buy guns;
2) Additionally making it clear that they can sell to people who don't want ID checks or background checks.
It seems to me that the people who fit into 2 are:
2a) People who want guns quickly and don't want to wait for checks;
2b) People who wouldn't pass an ID check or background check.
Now it seems wrong to be selling guns to 2b, and to be advertising to them so blatantly just seems to run contrary to the good of the general citizenry. If I sell a gun to someone who I know will do something bad with it, I should be held responsible for the consequences if they are forseeable. I'm not sure you can make that argument with sales at gun shows, but the advertisement (while factually true and giving correct information) seems to appeal strongly to people we might not want to have guns and could expect to do bad things with them. I'm curious about the legal liability implied by gun sales. There was a Law and Order episode about guns that could be easily turned into automatic weapons, but I don't know any actual case law.
[/XX comment]:
Are you talking criminal liability or civil (tort) liability? (I don't know anything about criminal...)
Putting aside the 2nd Amendment issue here, I think one could make a strong argument that there should be legal liability for gun sales - at least those conducted without an ID or background check.
First off, aside from any statutory requirements there may be for background checks, the burden of taking these ID/background check precautions are miniscule. You plug the name into a database. You make the customer wait. These aren't particularly burdensome. (Though a libertarian may argue that the restriction on your freedom is, in itself, an unacceptable burden.)
The probability that harm would occur without such precautions is more debatable. This one could go either way, though I think it weighs in our favor. If, as you said, advertisements like the one you cited tend to draw group 2(b), then a reasonable person could foresee that serious harm - will result from the sale of the gun.
But there may be more debate there than either of us may want to admit. I mean, how far down the stream of foreseeability do we want to go?
If a gun dealer sells a gun to someone without an ID check, then that person's toddler son finds the gun, gives it to a friend, who shoots a valuable show dog that accidentally wandered into his backyard, do we want to hold the gun owner liable? What can we say is reasonably foreseeable? Is the gun dealer in the best position to make that call?
Taking this debate to another realm, the foreseeability argument was also used in an attempt to hold manufacturers of VHS recorders (and, more recently, Napster, KaZaa) liable because their products could foreseeably be used to break copyright laws. VHS recorders might be a different story, but if you make the argument that the only real foreseeable purpose of guns is to kill or hurt people, you might also have to concede that the only real foreseeable purpose of Bittorrent is to facilitate Internet piracy.
I'm just rambling now, ... having made no points directly addressing your interesting question. ;)
GUNSHOW!! WE SELL GUNS!
NO ID REQUIRED. NO BACKGROUND CHECKS.
First a disclaimer. I'm pro gun-control. It seems like everyone would be safer if no one had a gun (except the police). Now what troubles me about this advertisement is the fact that they seem to be targeting a specific market. Obviously they are advertising to:
1) People who want to buy guns;
2) Additionally making it clear that they can sell to people who don't want ID checks or background checks.
It seems to me that the people who fit into 2 are:
2a) People who want guns quickly and don't want to wait for checks;
2b) People who wouldn't pass an ID check or background check.
Now it seems wrong to be selling guns to 2b, and to be advertising to them so blatantly just seems to run contrary to the good of the general citizenry. If I sell a gun to someone who I know will do something bad with it, I should be held responsible for the consequences if they are forseeable. I'm not sure you can make that argument with sales at gun shows, but the advertisement (while factually true and giving correct information) seems to appeal strongly to people we might not want to have guns and could expect to do bad things with them. I'm curious about the legal liability implied by gun sales. There was a Law and Order episode about guns that could be easily turned into automatic weapons, but I don't know any actual case law.
[/XX comment]:
Are you talking criminal liability or civil (tort) liability? (I don't know anything about criminal...)
Putting aside the 2nd Amendment issue here, I think one could make a strong argument that there should be legal liability for gun sales - at least those conducted without an ID or background check.
First off, aside from any statutory requirements there may be for background checks, the burden of taking these ID/background check precautions are miniscule. You plug the name into a database. You make the customer wait. These aren't particularly burdensome. (Though a libertarian may argue that the restriction on your freedom is, in itself, an unacceptable burden.)
The probability that harm would occur without such precautions is more debatable. This one could go either way, though I think it weighs in our favor. If, as you said, advertisements like the one you cited tend to draw group 2(b), then a reasonable person could foresee that serious harm - will result from the sale of the gun.
But there may be more debate there than either of us may want to admit. I mean, how far down the stream of foreseeability do we want to go?
If a gun dealer sells a gun to someone without an ID check, then that person's toddler son finds the gun, gives it to a friend, who shoots a valuable show dog that accidentally wandered into his backyard, do we want to hold the gun owner liable? What can we say is reasonably foreseeable? Is the gun dealer in the best position to make that call?
Taking this debate to another realm, the foreseeability argument was also used in an attempt to hold manufacturers of VHS recorders (and, more recently, Napster, KaZaa) liable because their products could foreseeably be used to break copyright laws. VHS recorders might be a different story, but if you make the argument that the only real foreseeable purpose of guns is to kill or hurt people, you might also have to concede that the only real foreseeable purpose of Bittorrent is to facilitate Internet piracy.
I'm just rambling now, ... having made no points directly addressing your interesting question. ;)
Monday, December 1, 2008
Premature Coronation
The Hope for Audacity - This Atlantic article explores the differences between Obama (or should we say ... BHO?) and FDR and LBJ.
Now, I voted for Obama in the election. But it seems to me quite ridiculous all of the presidential parallels that have been and continue to be drawn between Obama and the 'great presidents' - Lincoln, FDR, LBJ, and the like.
News flash, guys. Obama isn't the president yet. He hasn't done anything, except win an election, talk about plans, and appoint some people. It all seems to me to be entirely premature. I know the comparisons are just a reflection of the people's deep hopes in the Obama presidency. And, to some extent, I shared and still share those hopes.
But I have fears, too. It's a uniquely troubling time, with recession [finally] being declared and stock markets crashing, and terrorists seemingly gaining strength. (Somewhere down the line, historians are going to be studying this era.) I'm waiting with bated breath to see whether the president-elect will earn his already bestowed crown.
Now, I voted for Obama in the election. But it seems to me quite ridiculous all of the presidential parallels that have been and continue to be drawn between Obama and the 'great presidents' - Lincoln, FDR, LBJ, and the like.
News flash, guys. Obama isn't the president yet. He hasn't done anything, except win an election, talk about plans, and appoint some people. It all seems to me to be entirely premature. I know the comparisons are just a reflection of the people's deep hopes in the Obama presidency. And, to some extent, I shared and still share those hopes.
But I have fears, too. It's a uniquely troubling time, with recession [finally] being declared and stock markets crashing, and terrorists seemingly gaining strength. (Somewhere down the line, historians are going to be studying this era.) I'm waiting with bated breath to see whether the president-elect will earn his already bestowed crown.
Monday, November 24, 2008
Jury Nullification
This week in the law school life of XX, we watched a film called "Inside the Jury Room," in which a crew filmed the deliberations of 12 jurors in a criminal case involving a mentally challenged black man. The crime was possession of a handgun by a convicted felon. The defendant clearly met all 3 prongs of the legal test on point: (1) he was a convicted felon; (2) he had a gun; (3) he knew he had a gun. (NOTE: Ignorance of the law is no defense.)
The jury on screen ended up with a not guilty verdict. The professor polled the class afterwards on our views. I fell strictly in the formalist camp - for me, the jury inquiry should have ended the second they decided that the 3 prongs had been met. But for many others in my class - as with the jury on screen - the role of the jury was more than mere application of the law to a set of facts. Some saw the jury's role as doling out mercy, or adding flexibility to the law, or acting as society's conscience.
So the formalist in me was utterly flabbergasted when the professor revealed that jury nullification - when a jury finds a criminal defendant not guilty despite their belief that there is no reasonable doubt that a violation of a criminal statute has occurred - is generally acceptable in the criminal context (though less so in civil cases). Judges and attorneys don't tell juries that they have this prerogative, but they don't reverse juries or declare mistrials when juries engage in such behavior.
Pros?
Historically, the colonists valued jury nullification as a tool of resistance against the tyranny of British laws. The Framers shared this valuation of the jury system, as shown by their enshrining the right to a jury trial in both civil (7th Amendment) and criminal (6th Amendment) trials into the Constitution.
I suppose jury nullification protects minorities against majoritarian tyranny (in some cases), and allows adjustments to the letter of the law to adapt to the demands of justice in a particular case. The jury acts as society's moral conscience - doling out mercy where the community deems appropriate and allowing exemptions where justice would seem to require it.
My Views
My problem with this romantic view of juries as the arbiter of justice is that, well, I don't trust juries in this role.
I admit I am a complete elitist on the question of juries in general. I favor striking the jury system all together in favor of a more managerial / inquisitorial judging system, as in Germany. (Of course, this is completely unrealistic insofar as it would require an overhaul of the judicial appointment system -- additional training, for example, and changes to the federal rules, and the not-insignificant task of amending the Constitution to wipe away the jury trial right.)
It's not so much that I'm uncomfortable with there being exceptions and exemptions to The Rule of Law - though that certainly makes me uncomfortable as well. (I, ... like Scalia, tend to prefer bright lines, nice boxes...)
I think I'm just uncomfortable with juries. I would trust judges - with modifications, per the German system - to act in this ... role of meting out justice, much more than juries, because juries are completely unaccountable. Judges, by contrast, would write their opinions down for all of posterity. They have, at a minimum, legal training and analytical ability. They would have some knowledge of precedent. They have the same cognitive and emotional biases as jurors, but they are checked both by appellate review and the requirement of the written opinion.
Perhaps I'm guilty of over-romanticizing the capabilities of a judge, and poo-poo-ing on the abilities of the common American man/woman... but... isn't it time for America to ditch the jury system? Or at least to ditch this jury nullification doctrine, or to hold juries more accountable?
The jury on screen ended up with a not guilty verdict. The professor polled the class afterwards on our views. I fell strictly in the formalist camp - for me, the jury inquiry should have ended the second they decided that the 3 prongs had been met. But for many others in my class - as with the jury on screen - the role of the jury was more than mere application of the law to a set of facts. Some saw the jury's role as doling out mercy, or adding flexibility to the law, or acting as society's conscience.
So the formalist in me was utterly flabbergasted when the professor revealed that jury nullification - when a jury finds a criminal defendant not guilty despite their belief that there is no reasonable doubt that a violation of a criminal statute has occurred - is generally acceptable in the criminal context (though less so in civil cases). Judges and attorneys don't tell juries that they have this prerogative, but they don't reverse juries or declare mistrials when juries engage in such behavior.
Pros?
Historically, the colonists valued jury nullification as a tool of resistance against the tyranny of British laws. The Framers shared this valuation of the jury system, as shown by their enshrining the right to a jury trial in both civil (7th Amendment) and criminal (6th Amendment) trials into the Constitution.
I suppose jury nullification protects minorities against majoritarian tyranny (in some cases), and allows adjustments to the letter of the law to adapt to the demands of justice in a particular case. The jury acts as society's moral conscience - doling out mercy where the community deems appropriate and allowing exemptions where justice would seem to require it.
My Views
My problem with this romantic view of juries as the arbiter of justice is that, well, I don't trust juries in this role.
I admit I am a complete elitist on the question of juries in general. I favor striking the jury system all together in favor of a more managerial / inquisitorial judging system, as in Germany. (Of course, this is completely unrealistic insofar as it would require an overhaul of the judicial appointment system -- additional training, for example, and changes to the federal rules, and the not-insignificant task of amending the Constitution to wipe away the jury trial right.)
It's not so much that I'm uncomfortable with there being exceptions and exemptions to The Rule of Law - though that certainly makes me uncomfortable as well. (I, ... like Scalia, tend to prefer bright lines, nice boxes...)
I think I'm just uncomfortable with juries. I would trust judges - with modifications, per the German system - to act in this ... role of meting out justice, much more than juries, because juries are completely unaccountable. Judges, by contrast, would write their opinions down for all of posterity. They have, at a minimum, legal training and analytical ability. They would have some knowledge of precedent. They have the same cognitive and emotional biases as jurors, but they are checked both by appellate review and the requirement of the written opinion.
Perhaps I'm guilty of over-romanticizing the capabilities of a judge, and poo-poo-ing on the abilities of the common American man/woman... but... isn't it time for America to ditch the jury system? Or at least to ditch this jury nullification doctrine, or to hold juries more accountable?
Thursday, November 20, 2008
Planning for the worst
Consider the following facts:
1) GM is running out of money and does not have the $$ to keep the company going.
2) Capital markets are frozen up and its difficult for GM to raise private capital.
3) There's a chance (but no guarantee) to raise public funds.
Well it seems like bankruptcy is on the table and everyone is talking about it except GM is not planning for it!
Look I know that you don't want to go bankrupt, but you have to at least consider it and plan for its eventuality. This arrogance (we're too important to die) just means that bankruptcy would be much more difficult if it does occur. They are too busy flying into Washington to lobby the politicians to actually talk about possible restructuring in bankruptcy. Their argument is that talking about bankruptcy will destroy consumer confidence in their products. Hate to break it to you, but there's no confidence in your company already.
Obviously management doesn't care since they wouldn't survive restructuring anyways, but everyone at the company should be outraged. If you won't consider possible contingency plans, well that sounds like poor/bad/idiotic management to me.
My opinion (and I've heard this be said of helping the banks raise capital as well so I can't claim this is an original idea): let GM go bankrupt. Make matching public funds available if GM can raise private capital in bankruptcy protection. This allows the government to be a silent partner to the private sector, prevents the government from running GM (this is a very bad outcome as well!), and makes funds available to the industry. To the extent that the problems at GM are caused by (2), there's a valid argument to helping the industry. If it's a deeper problem, then we need bigger changes and the government policy should encourage change, not provide short-term relief that will only delay the inevitable.
It is an interesting situation: normally the union and management have much different incentives. In this case, they both are lobbying heavily for the same thing.
1) GM is running out of money and does not have the $$ to keep the company going.
2) Capital markets are frozen up and its difficult for GM to raise private capital.
3) There's a chance (but no guarantee) to raise public funds.
Well it seems like bankruptcy is on the table and everyone is talking about it except GM is not planning for it!
Look I know that you don't want to go bankrupt, but you have to at least consider it and plan for its eventuality. This arrogance (we're too important to die) just means that bankruptcy would be much more difficult if it does occur. They are too busy flying into Washington to lobby the politicians to actually talk about possible restructuring in bankruptcy. Their argument is that talking about bankruptcy will destroy consumer confidence in their products. Hate to break it to you, but there's no confidence in your company already.
Obviously management doesn't care since they wouldn't survive restructuring anyways, but everyone at the company should be outraged. If you won't consider possible contingency plans, well that sounds like poor/bad/idiotic management to me.
My opinion (and I've heard this be said of helping the banks raise capital as well so I can't claim this is an original idea): let GM go bankrupt. Make matching public funds available if GM can raise private capital in bankruptcy protection. This allows the government to be a silent partner to the private sector, prevents the government from running GM (this is a very bad outcome as well!), and makes funds available to the industry. To the extent that the problems at GM are caused by (2), there's a valid argument to helping the industry. If it's a deeper problem, then we need bigger changes and the government policy should encourage change, not provide short-term relief that will only delay the inevitable.
It is an interesting situation: normally the union and management have much different incentives. In this case, they both are lobbying heavily for the same thing.
Wednesday, November 19, 2008
I Once Again Realize...
... that I am the most reactionary, least liberal person in my class - at least when it comes to politics. Yesterday, my professor took a group of us out to dinner. The subject of conversation included, among other things: why Bush should be sent to Guantanamo Bay, why Joe Lieberman deserved to be shot (I kid you not!) for campaigning for John McCain, and prosecuting the President and Vice President for War Crimes.
These people are CRAZY.
Now if I didn't have a brief due soon, I'd blog about my views on the War on Terror, but ... that may have to wait. A quick summary, though: the zealous warhawks who want to deny all process to detainees are crazy, but so are the zealous "rights"-people who want to undermine the government's well-intentioned efforts to keep our country safe. The former respect the rule of law too little - even openly flaunting in the face of the Constitution. The latter respect the necessities of war - or quasi-war - time too little.
My general view - which runs counter to all of my other views on Respecting the Rule of Law - is ... if you're going to do something illegal to protect the country, don't let anyone find out.
It's horribly unprincipled, but I value my safety just as much as any other person. Any thoughts, XY?
(XY edit): Well I can't say that I'm surprised. Your Law School is incredibly liberal and far far far left. It seems to me that these `debates' always lose sight of the fact that Bush was trying to do what he thought was right. Obviously things didn't work out as anyone would have liked, but I don't think it's right to doubt his intentions. No, he's not the devil. Yes, he thought what he was doing would make the world safer for Americans. At the same time, saying that Lieberman should be shot because he endorsed McCain...and you wonder why a lot of people just view the Dems as elitists who don't understand the concerns of average Americans and don't feel they can communicate with them.
That said, Obama does represent a great chance to bridge a lot of these problems. He needs to govern from the center and rein in the far left elements of the party (people who make statements like this). So far his appointments to his cabinet seem to be accomplishing just that. There are a lot of things that everyone agrees need to be fixed - don't polarize the reforms with borderline offensive rhetoric. It will be a very successful presidency if the far left and the far right are disappointed.
These people are CRAZY.
Now if I didn't have a brief due soon, I'd blog about my views on the War on Terror, but ... that may have to wait. A quick summary, though: the zealous warhawks who want to deny all process to detainees are crazy, but so are the zealous "rights"-people who want to undermine the government's well-intentioned efforts to keep our country safe. The former respect the rule of law too little - even openly flaunting in the face of the Constitution. The latter respect the necessities of war - or quasi-war - time too little.
My general view - which runs counter to all of my other views on Respecting the Rule of Law - is ... if you're going to do something illegal to protect the country, don't let anyone find out.
It's horribly unprincipled, but I value my safety just as much as any other person. Any thoughts, XY?
(XY edit): Well I can't say that I'm surprised. Your Law School is incredibly liberal and far far far left. It seems to me that these `debates' always lose sight of the fact that Bush was trying to do what he thought was right. Obviously things didn't work out as anyone would have liked, but I don't think it's right to doubt his intentions. No, he's not the devil. Yes, he thought what he was doing would make the world safer for Americans. At the same time, saying that Lieberman should be shot because he endorsed McCain...and you wonder why a lot of people just view the Dems as elitists who don't understand the concerns of average Americans and don't feel they can communicate with them.
That said, Obama does represent a great chance to bridge a lot of these problems. He needs to govern from the center and rein in the far left elements of the party (people who make statements like this). So far his appointments to his cabinet seem to be accomplishing just that. There are a lot of things that everyone agrees need to be fixed - don't polarize the reforms with borderline offensive rhetoric. It will be a very successful presidency if the far left and the far right are disappointed.
Saturday, November 15, 2008
Ab*rtion (gasp)!
I've been reading about the issue in my constitutional law class, and I thought I'd try to sort out some of my thoughts on this difficult subject. I'm starting to get all confused, and I'm not sure I like that.
To start with, I'd like to point out that it seems that, like much of public discourse, the great debate about Roe v. Wade rages on without anyone being particularly informed about the case, or the caselaw, or the Constitution. One recent telling example is Sarah Palin's acknowledgement in the Katie Couric interview that she thought there was a right to privacy in the Constitution, which showed that she clearly had no idea how Roe v. Wade had been decided...
Historical Background: Unenumerated Rights & the Lochner Era
In Lochner v. New York (1905), against a historical backdrop of industrialization and enamorment with laissez-faire, the Supreme Court struck down a law limiting the number of hours that bakers could work per week, on the basis that the law was an unreasonable and arbitrary governmental interference with the individual's "right to contract."
Nowhere in the Constitution is there an explicit "right to contract." The Lochner Court pretty much made up this unenumerated right by interpreting the "liberty" in the Due Process Clause to include the right to contract. (Note: Due Process Clause: "No person shall...be deprived of life, liberty, or property, without due process of law.")
The Court of that era struck down a slew of legislation aimed at economic regulation (e.g. minimum wage laws, maximum hour laws, child labor laws) on the basis of unenumerated rights. The approach was rather libertarian in that the Court basically said, you should be able to work for $0.50/hour if you're willing to!
... And then the Great Depression rolled around, and the Court took a reverse course, abandoning the Lochner doctrine of unenumerated rights. The Court pretty much stopped striking down economic regulations. Today, Lochner and its progeny are reviled by liberals and conservatives alike, though for different reasons (anti-worker philosophy and judicial activism, respectively).
Modern Unenumerated Rights
Roe v. Wade finds that, although the Constitution does not mention any right to privacy, the Court has recognized [in the past] that such a right exists under the Constitution. The Court relies on caselaw from, among others, a string of contraception cases to find that certain of the Constitution's guarantees have a 'penumbra' that creates a 'zone of privacy.'
The Constitutional basis for this 'penumbra' in Roe is the concept of personal "liberty" in the Due Process Clause... in other words... the same place the Lochner Court had located its unenumerated right to contract. (Note: This is not the case with some of the contraception cases, which locate the penumbra under, among others, the 1st, 4th, 5th, and 9th Amendments.)
The Problem
I find the Roe decision hard to swallow, because it seems to me so ... weak. Conservatives love this, of course, because they can revile both Lochner and Roe on the same grounds - that zealous judges imposed their own personal viewpoints on society by making up rights that don't exist in the Constitution. Libertarians are all right in this, too, because they like both Lochner and Roe. But for me ... I think Lochner was wrongly decided, but I want to save Roe.
The whether-the-fetus-is-a-person / LIFE issue here is not my primary concern, as that seems to be a moral question, not a legal one. (Roe's cop-out answer, for those curious, is that (1) the word "person" as used in the Constitution only means postnatal people; and (2) the judiciary is not in a position to resolve what doctors, philosophers, and theologians have been unable to resolve (whether life begins at conception)). The moral question, of course, is what most of public discourse focuses on.
But as a pro-choice wanna-be-lawyer, my primary concern is the law. I'm having a bit of a hard time trying to articulate why - what legal basis there is for saying - the government cannot proscribe abortions. (Note: A law without an exception for the mother's health might be unconstitutional for not being narrowly tailored. But that's a different issue than the one here.)
It seems to me that there has to be a libertarian-style privacy line drawn somewhere - one that even conservatives would find intuitive. For instance, I should think that everyone would find something wrong with a law that mandated that husbands and wives were only allowed to have sex on every third Monday. Or a law that required everyone to wear only black clothes. Or a law that required all children to go to public school. Or a law that allowed each family only one child. Or a law that mandated sterilization after age 33. My intuition is that the Constitution must protect against such intrusion... somewhere.
But where...?
Solutions??
I don't like the Court's approach of drawing the line with the due process "liberty" clause.
Perhaps the line was meant to be drawn, at the federal level at least, with Article I's enumerated powers of Congress - a restriction that was essentially blown wide open by the Court's dramatic expansion of the Commerce Clause. But even with Article I restrictions, state governments would still have had the power to intrude on the personal lives of its citizens.
Perhaps the line was meant to be drawn by the privileges and immunities clause of the 14th Amendment ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."). But that clause was gutted by the Slaughterhouse Cases...
Or the 9th Amendment? ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.") I have no idea, but it seems like we'd have a slippery slope issue if we opened the 9th Amendment to all sorts of rights....... rights to privacy, rights to contract... In other words, this would have the same problem as Lochner.
My best hope is that my con law professor comes up with some brilliant way to defend the right to choose under Equal Protection, or something like that. But I'm having a hard time conceptualizing what such a defense might look like...
... and my biggest fear is that I won't be convinced that there is a viable legal justification for the right to choose.
To start with, I'd like to point out that it seems that, like much of public discourse, the great debate about Roe v. Wade rages on without anyone being particularly informed about the case, or the caselaw, or the Constitution. One recent telling example is Sarah Palin's acknowledgement in the Katie Couric interview that she thought there was a right to privacy in the Constitution, which showed that she clearly had no idea how Roe v. Wade had been decided...
Historical Background: Unenumerated Rights & the Lochner Era
In Lochner v. New York (1905), against a historical backdrop of industrialization and enamorment with laissez-faire, the Supreme Court struck down a law limiting the number of hours that bakers could work per week, on the basis that the law was an unreasonable and arbitrary governmental interference with the individual's "right to contract."
Nowhere in the Constitution is there an explicit "right to contract." The Lochner Court pretty much made up this unenumerated right by interpreting the "liberty" in the Due Process Clause to include the right to contract. (Note: Due Process Clause: "No person shall...be deprived of life, liberty, or property, without due process of law.")
The Court of that era struck down a slew of legislation aimed at economic regulation (e.g. minimum wage laws, maximum hour laws, child labor laws) on the basis of unenumerated rights. The approach was rather libertarian in that the Court basically said, you should be able to work for $0.50/hour if you're willing to!
... And then the Great Depression rolled around, and the Court took a reverse course, abandoning the Lochner doctrine of unenumerated rights. The Court pretty much stopped striking down economic regulations. Today, Lochner and its progeny are reviled by liberals and conservatives alike, though for different reasons (anti-worker philosophy and judicial activism, respectively).
Modern Unenumerated Rights
Roe v. Wade finds that, although the Constitution does not mention any right to privacy, the Court has recognized [in the past] that such a right exists under the Constitution. The Court relies on caselaw from, among others, a string of contraception cases to find that certain of the Constitution's guarantees have a 'penumbra' that creates a 'zone of privacy.'
The Constitutional basis for this 'penumbra' in Roe is the concept of personal "liberty" in the Due Process Clause... in other words... the same place the Lochner Court had located its unenumerated right to contract. (Note: This is not the case with some of the contraception cases, which locate the penumbra under, among others, the 1st, 4th, 5th, and 9th Amendments.)
The Problem
I find the Roe decision hard to swallow, because it seems to me so ... weak. Conservatives love this, of course, because they can revile both Lochner and Roe on the same grounds - that zealous judges imposed their own personal viewpoints on society by making up rights that don't exist in the Constitution. Libertarians are all right in this, too, because they like both Lochner and Roe. But for me ... I think Lochner was wrongly decided, but I want to save Roe.
The whether-the-fetus-is-a-person / LIFE issue here is not my primary concern, as that seems to be a moral question, not a legal one. (Roe's cop-out answer, for those curious, is that (1) the word "person" as used in the Constitution only means postnatal people; and (2) the judiciary is not in a position to resolve what doctors, philosophers, and theologians have been unable to resolve (whether life begins at conception)). The moral question, of course, is what most of public discourse focuses on.
But as a pro-choice wanna-be-lawyer, my primary concern is the law. I'm having a bit of a hard time trying to articulate why - what legal basis there is for saying - the government cannot proscribe abortions. (Note: A law without an exception for the mother's health might be unconstitutional for not being narrowly tailored. But that's a different issue than the one here.)
It seems to me that there has to be a libertarian-style privacy line drawn somewhere - one that even conservatives would find intuitive. For instance, I should think that everyone would find something wrong with a law that mandated that husbands and wives were only allowed to have sex on every third Monday. Or a law that required everyone to wear only black clothes. Or a law that required all children to go to public school. Or a law that allowed each family only one child. Or a law that mandated sterilization after age 33. My intuition is that the Constitution must protect against such intrusion... somewhere.
But where...?
Solutions??
I don't like the Court's approach of drawing the line with the due process "liberty" clause.
Perhaps the line was meant to be drawn, at the federal level at least, with Article I's enumerated powers of Congress - a restriction that was essentially blown wide open by the Court's dramatic expansion of the Commerce Clause. But even with Article I restrictions, state governments would still have had the power to intrude on the personal lives of its citizens.
Perhaps the line was meant to be drawn by the privileges and immunities clause of the 14th Amendment ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."). But that clause was gutted by the Slaughterhouse Cases...
Or the 9th Amendment? ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.") I have no idea, but it seems like we'd have a slippery slope issue if we opened the 9th Amendment to all sorts of rights....... rights to privacy, rights to contract... In other words, this would have the same problem as Lochner.
My best hope is that my con law professor comes up with some brilliant way to defend the right to choose under Equal Protection, or something like that. But I'm having a hard time conceptualizing what such a defense might look like...
... and my biggest fear is that I won't be convinced that there is a viable legal justification for the right to choose.
Friday, November 14, 2008
I've Mailing You A Present!
It's a felon! See Inmate escapes German jail in box, wherein a convicted drug dealer successfully mails himself out of prison.
In other news, Charles Krauthammer rails against the auto industry bailout, and I realize my uncle works for GM...
In other news, Charles Krauthammer rails against the auto industry bailout, and I realize my uncle works for GM...
Wednesday, November 12, 2008
Notorious
The secrets of aXXo, BitTorrent's top movie pirate - The Internet's most prolific supplier of pirates is now even more famous!
(xy edit): The issue of piracy on the internet is tricky one. It would be hypocritical of me to condemn pirates but the economist in me believes that property rights must be protected. This does bring to mind one a series of science fiction novels I've read by Dan Weber. His books are readily available online and can be downloaded free of charge. The publisher and author believe that the free publicity more than offsets any loss of sales. While I can't speak for the total impact, I know that I've been taking advantage of the freedowloads and did not purchase the books. Additionally, since I try to hide my science fiction predilection, I'm not giving them any additional buzz.
Note to xx: stop telling my friends my habit of reading trashy star wars novels! The Timothy Zahn trilogy is quite good as are his other star wars novels. I made the mistake of trying a few others, and once I start a series I must finish to the end! Do I tell your embarassing hobbies/habits to others? I think I can think of a couple...:)
(xy edit): The issue of piracy on the internet is tricky one. It would be hypocritical of me to condemn pirates but the economist in me believes that property rights must be protected. This does bring to mind one a series of science fiction novels I've read by Dan Weber. His books are readily available online and can be downloaded free of charge. The publisher and author believe that the free publicity more than offsets any loss of sales. While I can't speak for the total impact, I know that I've been taking advantage of the freedowloads and did not purchase the books. Additionally, since I try to hide my science fiction predilection, I'm not giving them any additional buzz.
Note to xx: stop telling my friends my habit of reading trashy star wars novels! The Timothy Zahn trilogy is quite good as are his other star wars novels. I made the mistake of trying a few others, and once I start a series I must finish to the end! Do I tell your embarassing hobbies/habits to others? I think I can think of a couple...:)
Monday, November 10, 2008
And the Dems Roll In...
I'm slightly left of center, and not too crazy as far as lefties go (at least I don't think so!), so this WSJ headline certainly makes me unhappy: Obama Prods Bush to Aid Detroit. Just say no, Obama, just say no.
I'm no economist by any sense of the word, but to me, this just stinks of bad policy. I favored The Bailout Plan, but I think the financial industry and the auto industry are easily distinguishable, and demand different approaches. The former demanded a government intervention; the latter demands a quick death at the hands of the market, followed by complete company overhaul and a new gameplan. Oh, and possibly breaking up that nasty autoworkers union, too.
It seems to me that the U.S. auto industry meltdown started long before the subprime mortgage crisis; its causes are deeper and more problematic than its current liquidity shortage. What problems? Ohhh, say, for example, the industry's inability to make cars that people want to buy. That might present a problem.
If Obama goes down this path, then he'll confirm my fears that he would pander to nativists / protectionists by giving a government leg up to U.S. industries that cannot compete with their better run, better managed foreign counterparts.
Again, just say no, Obama. Toyota 4eva.
I'm no economist by any sense of the word, but to me, this just stinks of bad policy. I favored The Bailout Plan, but I think the financial industry and the auto industry are easily distinguishable, and demand different approaches. The former demanded a government intervention; the latter demands a quick death at the hands of the market, followed by complete company overhaul and a new gameplan. Oh, and possibly breaking up that nasty autoworkers union, too.
It seems to me that the U.S. auto industry meltdown started long before the subprime mortgage crisis; its causes are deeper and more problematic than its current liquidity shortage. What problems? Ohhh, say, for example, the industry's inability to make cars that people want to buy. That might present a problem.
If Obama goes down this path, then he'll confirm my fears that he would pander to nativists / protectionists by giving a government leg up to U.S. industries that cannot compete with their better run, better managed foreign counterparts.
Again, just say no, Obama. Toyota 4eva.
Sunday, November 9, 2008
Inaugural Entry: Stereotypes at the Pharmacy
So XY and I are heading to the pharmacy after a scrumptious sushi dinner, on a mission to find birth control. The CVS parking lot is empty, save for some garbage and a MacGyver-style Jeep. We enter the automatic doors, with only a brief glance at the security guard posted solemnly in the corner. We proceed past the premature Christmas displays to the family planning aisle...
... where the condoms are locked in a glass cabinet -- to prevent theft, no doubt. Welcome to The Ghetto. I start laughing when I realize we'll have to ask at the front desk for the keys to the condom cabinet.
Luckily, someone has beat us to it. We stand aside as the CVS salesperson opens the condom cabinet for a ginormously tall African American man wearing baggy jeans, a gold chain, a camouflage-style jacket, and one of those black bandanas over his skull.
The black guy immediately reaches for a pack of MAGNUM condoms and struts toward the register. Suppressing snickers, XY and I, ever the stereotypical Asians, quickly dive in for an Economy Pack - 36 premium latex. (What a bargain.)
[/edit] My cohort points out that they were, in fact, MAGNUM XL. My mistake, my mistake!
(xy edit): That's an unusual use of cohort. When I think of cohort, I always think of a division of a Roman Legion - but I guess it could refer to an accomplice. I think I would have preferred `better half'. And could our icon be any more stereotypical? I want to point out that people often don't even think I'm Chinese and often believe that I'm part caucasion or other asian ethnicity. Could you make my eyes less slanty?
... where the condoms are locked in a glass cabinet -- to prevent theft, no doubt. Welcome to The Ghetto. I start laughing when I realize we'll have to ask at the front desk for the keys to the condom cabinet.
Luckily, someone has beat us to it. We stand aside as the CVS salesperson opens the condom cabinet for a ginormously tall African American man wearing baggy jeans, a gold chain, a camouflage-style jacket, and one of those black bandanas over his skull.
The black guy immediately reaches for a pack of MAGNUM condoms and struts toward the register. Suppressing snickers, XY and I, ever the stereotypical Asians, quickly dive in for an Economy Pack - 36 premium latex. (What a bargain.)
[/edit] My cohort points out that they were, in fact, MAGNUM XL. My mistake, my mistake!
(xy edit): That's an unusual use of cohort. When I think of cohort, I always think of a division of a Roman Legion - but I guess it could refer to an accomplice. I think I would have preferred `better half'. And could our icon be any more stereotypical? I want to point out that people often don't even think I'm Chinese and often believe that I'm part caucasion or other asian ethnicity. Could you make my eyes less slanty?
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