Eugene Volokh's Blog, page 2672

The New Physiocrats, or, Is There Value in the Humanities?

(Kenneth Anderson)

(Bumped to this post of its own from the ending to my last post on returns to non-STEM college majors, because I think is worth thinking about separately.)

In general, I agree entirely with the many commentators who have argued that the United States needs to produce more STEM graduates.  But I also take note of the many people who have written to me to argue that the only truly employable STEM fields at the moment are engineering and computer science, and only certain disciplines within those.  (I.e., I take the point made by many commenters that STEM graduates are not doing all that well in this economy either — when we say STEM = employment, so commenters point out, we don't mean scientists or mathematicians as such, we mean particular fields of engineering and computer science.  I can't vouch for that but do accept it.)

It's also worth keeping in mind that the United States could easily produce an excess of engineers — yes, even engineers.  The labor market of a complicated, division-of-labor society means many, many specializations, and most of them are not STEM.  We need lawyers, human resources staff, janitors, communications specialists, and many things that too-reductionist a view might lead one to believe are purely frivolous intermediary occupations.  Maybe they are parasitical, and maybe they will get squeezed out of existence over time.  But there is a sometimes incorrect tendency these days to believe that since innovation is the heart of all increases in productivity and hence in long run growth and wealth, STEM must be responsible for it and that because STEM is the root of innovation, only STEM jobs are truly value added.  I exaggerate for effect, but you see the point.

That's a little bit like the error of the ancient Physiocrats, who believed that agricultural work was uniquely special because it was the root source of all wealth, since everyone had to eat.  (I simplify.)  But in a complex, specialized, highly intermediated economy, that's not how it works.  Of course everyone needs to eat — but if we want to have things available to nearly everyone, consumption more than just eating, we have to accept a highly specialized economy with many diverse intermediaries — not all of whose functions will seem obvious to those assuming that only STEM innovators count.

Added: Several of the commenters in my last several posts on higher education have essentially argued that the liberal arts and traditional non-STEM humanities disciplines do not add value in today's world and should be seen as (expensive) consumption choices or at best civic education for citizenship in the Republic; I paraphrase.  Another commenter from the last thread goes still further:

If I need a new knowledge base to keep myself employed, it's only a deep Google and Wikipedia search away, plus online courses. But it's asymmetric: a STEM can pick up a traditionally liberal arts skill quickly, but the non-STEM cannot nearly as fast (!) acquire an engineering or science knowledge base deep enough to be useful.

I don't think I would agree with important parts of those assertions.  However, I will wait until I have more time to post on the value of the humanities — and as being far more than mere personal fulfillment or education-as-consumption, but a means of gaining genuine cognitive skills not easily available otherwise.  Meanwhile ... open for reasoned debate:

This House Agrees That the Humanities Do Not Add Productive Value to Society and, Moreover, That STEM Graduates Are Better Able to Acquire Traditional Liberal Arts Skills Quickly Should They Ever Need Them.  Or Not.

I invite polite discussion on this issue (Civile Discourses, as Adam Smith might put it, being one of the Skills of the traditional Humanities, after all).  Please be polite, no rants and no craziness.  I will post my own views on the value of the humanities another day; I invite your views. (Also, while I'm thinking of it, if you refer to your own life experience in your comment, please give some idea what years you refer to, as economic conditions are not static.)

Occupy Tucson's Request for an Emergency Restraining Order Rejected on (Mostly) Procedural Grounds

(Eugene Volokh)

Occupy Tucson v. City of Tucson (D. Ariz. Nov. 8, just posted on Westlaw today) rejects Occupy Tucson's request for an emergency order blocking the City's enforcement of its park use ordinances. The plaintiffs, the court holds, haven't shown a sufficient emergency warranting expedited proceedings (which would have denied the city an opportunity to take the time needed to properly respond), given that the plaintiffs didn't come to court until weeks after the protest began and the city started enforcing the ordinances. The court also seemed to suggest that the plaintiffs' case might be a loser on the merits ("Plaintiffs['] filings ... fail to demonstrate a clear showing of likely success on the merits"), though the court didn't confront the merits in detail because of the procedural obstacle to the issuance of the temporary restraining order.

A Temporary Restraining Order ("TRO") is unwarranted in this case. Although the record reflects that Plaintiffs' counsel spoke with Defendant Michael Rankin about the plan to file the Complaint in this matter, it is devoid of any reasons why Defendants should not be given notice and an opportunity to respond to the allegations at issue. Plaintiffs['] activities began October 15, 2011.... Tucson Police Department ("TPD") officers have cited protesters for violations of the Tucson City Code since Plaintiffs' occupation commenced. The ongoing activities of Plaintiffs and TPD's response has remained unchanged. Plaintiffs['] filings with this Court fail to demonstrate a clear showing of likely success on the merits and likely irreparable injury. See Winter, 555 U.S. at 20, 129 S.Ct. at 374; Mazurek, 520 U.S. at 972, 117 S.Ct. at 1867; Am. Trucking Ass'n v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009); Warsoldier, 418 F.3d at 993–94; Pratt, 65 F.3d at 805 (9th Cir.1995); Fed.R.Civ.P. 65. Plaintiffs' counsel failed to certify in his affidavit why notice should not be given to Defendants or why it should not be required. Accordingly, Plaintiffs' request for a TRO is DENIED.

5.5 Hours of Oral Argument

(Orin Kerr)

Everyone knew the Court would grant cert in the health care cases; the surprising part is that the Court is allowing a whopping 5.5 hours of oral argument for the various issues. Lyle Denniston explains:

The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled.

The Court's decision to give these cases so much oral argument time should be welcomed by the challengers to the statute, and should make the Justice Department a bit nervous. From its inception, the challenge to the mandate has been a request for the Justices to do something extraordinary; I believe Randy Barnett initially analogized the prospects of the Court striking down the statute as akin to seeking another Bush v. Gore. The Court's decision to give these issue so much oral argument time suggests to me that at least some of the Justices see these cases as extraordinary, likely a necessary step if the Court is to decide the cases in an extraordinary way. I still think it's quite unlikely that the Court will strike down the statute, but the award of so much oral argument time should be a hopeful sign for the challengers.

My Congressional Testimony on the Need to Narrow the Computer Fraud and Abuse Act

(Orin Kerr)

Tomorrow morning at 10am, I will be testifying before the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security about the need to narrow the Computer Fraud and Abuse Act. I have submitted my written testimony, and it is available here. It begins:

The current version of the Computer Fraud and Abuse Act (CFAA) poses a threat to the civil liberties of the millions of Americans who use computers and the Internet. As interpreted by the Justice Department, many if not most computer users violate the CFAA on a regular basis. Any of them could face arrest and criminal prosecution.

In the Justice Department's view, the CFAA criminalizes conduct as innocuous as using a fake name on Facebook or lying about your weight in an online dating profile. That situation is intolerable. Routine computer use should not be a crime. Any cybersecurity legislation that this Congress passes should reject the extraordinarily broad interpretations endorsed by the United States Department of Justice.

In my testimony, I want to explain why the CFAA presents a significant threat to civil liberties. I want to then offer two narrow and simple ways to amend the CFAA to respond to these problems. I will conclude by responding to arguments I anticipate the Justice Department officials might make in defense of the current statute.

The three other witnesses appearing at the hearing will be James Baker, the Associate Deputy Attorney General; my old friend and colleague Richard Downing, a Deputy Chief of the Computer Crime and Intellectual Property Section at DOJ; and Michael Chertoff, the former Secretary of Homeland Security. For those interested in attending, the hearing will be at 10 am in Room 2141 of the Rayburn House Office Building.

BREAKING — High Court to Hear Health Care Challenges

(Jonathan H. Adler)

The Supreme Court has granted certiorari in several of the health care cases, granting the Florida's, NFIB's and the federal government's petitions, including consideration of the Tax Injunction Act issue, and granting extended argument time.  I suspect SCOTUSBlog will have a full report shortly.

NOTE: Here is SCOTUSBlog's health care litigation page, and here is the ACA Litigation blog which is also a useful resource on the litigation.

Explaining the Diminishing Returns to Non-STEM Higher Education

(Kenneth Anderson)

As Generation Jobless tries to figure out where its job possibilities went, we might consider possible relationships between higher education and return on investment.  I want to limit these possibilities to graduates of four year institutions in non-STEM subjects, rather than the important but separate issue of college non-completion rates.  Consider the following, noting that they are not incompatible with each other as explanations of the relationship between liberal arts college degrees and return on educational investment.

Demand for liberal arts graduates has dried up, because of structural changes in the broader economy that have reduced the need for these job categories.  The structural reasons range from greater automation of production in lower-professional white collar positions; secular shifts downward in the economy overall and a lower long-term growth rate.  The overall point is shifting demand in the overall labor market.Labor markets seek liberal arts graduates with skills in the traditional subject matters of analytic skills in verbal and basic quantitative areas, but higher education fails to teach those skills.  The problem in this case is not demand as such — assuming away the short and medium term scarcity of jobs — but instead that the workers supplied lack the necessary skills.  The problem lies with what the university teaches or, more exactly, fails to teach.  Within non-STEM areas, colleges are not teaching generalist analytic skills.  The traditional promise of the quality humanities or liberal arts major — not a technical skill set, but generalist analytic skills in reading, writing, basic maths, and strong communications skills — has somehow eroded and colleges fail to convey those skills.Colleges continue to supply liberal arts graduates with the traditional skill set, and labor markets continue to seek them — but the cost of college has simply gone far above the wages that these skills and the associated jobs can bear.  It's not the skills and it's not the jobs, it's the cost of education — priced as though everyone would become a Wall Street banker or lawyer.Specialization in the university has reached the point where colleges cannot produce the true generalists needed in the economy — traditional liberal arts skills in analytic reading, writing, and communication, but combined with generalist technical knowledge in areas of the modern economy — STEM plus economics.  STEM departments are not interested in educating generalists, and traditional liberal arts departments assumes that the purpose is to go on to graduate or professional school, hence the exclusive focus on GPA, and grade inflation to try and maintain enrollments.Society is trying to put people through the higher education, four year college system, who intellectually have no business being there.  Their future lies in blue collar work, not white collar work.  This is a popular meme at this moment, but it has two distinct flavors.  One is that there is significant population that, just because of its bell curve placement, will never successfully become "knowledge workers."  This would be so in good times or in bad, but is masked during good times.  This is to say that it would always be inefficient and suboptimal to educate this group to white collar knowledge worker jobs for which they are ill-suited.A second version of the "too many people go to college" is that the economy is permanently downshifted.  This low growth economy, which has come about because of the consequences of an aging population without replacement workers combined with the profligacy of the last few years that have deprived future generations of investment capital toward new innovations to create growth.  Or whatever explanation for it one cares to give; the point is long term lower growth.  In that lower growth economy, the returns to higher education are long term lower as spread across some larger than otherwise population cohort.  It makes less sense to educate people for a knowledge economy that, while once within our reach, is not achievable any longer.  They could have found a place in it, but we're now too poor to create it, even though it would produce greater social wealth.  Which is to say, in the world that might have been absent poor social investment decisions in earlier years, the failure to send these kids to college would be inefficient and a misallocation of resources — but in the actual low growth world of today, there's no positive return to doing so, considered against the substantial costs (which are also a legacy of earlier poor social choices).

Note that there is a group of people with a vested interest in pushing the agenda that too many people go to college, especially borrowing money for it — rich people's children who don't need loans for university. Reducing the competition is a dandy idea from their view.  And even if they don't think that way — the fact of reducing the number of kids in higher education is almost certainly a recipe for creating not just greater income inequality, but increasing the harsh qualitative fact of class division, particularly between sectors of white collar workers, the lower and upper elites of the New Class that I discussed several weeks ago in another post.  What else would one call the loss of upward mobility as a possibility?  "The rich really are different from you and me — they went to college."  In our world, that sounds so 19th century Britain, people of great intelligence, drive and possibility, stuck "below the stairs" because of class rigidity.  We thought we had been doing away with that starting with the rise of the post-war Baby Boom; its return upon its children and grand children is a dismaying thought.

In general, I agree entirely with the many commentators who have argued that the United States needs to produce more STEM graduates.  But I also take note of the many people who have written to me to argue that the only truly employable STEM fields at the moment are engineering and computer science, and only certain disciplines within those.

It's also worth keeping in mind that the United States could easily produce an excess of engineers — yes, even engineers.  The labor market of a complicated, division-of-labor society means many, many specializations, and most of them are not STEM.  We need lawyers, human resources staff, janitors, communications specialists, and many things that too-reductionist a view might lead one to believe are purely frivolous intermediary occupations.  Maybe they are parasitical, and maybe they will get squeezed out of existence over time.  But there is a sometimes incorrect tendency these days to believe that since innovation is the heart of all increases in productivity and hence in long run growth and wealth, STEM must be responsible for it and that because STEM is the root of innovation, only STEM jobs are truly value added.  I exaggerate for effect, but you see the point.

That's a little bit like the error of the ancient Physiocrats, who believed that agricultural work was uniquely special because it was the root source of all wealth, since everyone had to eat.  (I simplify.)  But in a complex, specialized, highly intermediated economy, that's not how it works.  Of course everyone needs to eat — but if we want to have things available to nearly everyone, consumption more than just eating, we have to accept a highly specialized economy with many diverse intermediaries — not all of whose functions will seem obvious to those assuming that only STEM innovators count.

I invite you to suggest other possible explanations for the declining returns to higher education I might have missed.  Please be civil and on-topic and no rants. Ideally, I'd like to see the range of possible reasons, and then one can assess how much various ones contribute overall.  They do not seem mutually exclusive by any means.

Court Rejects Occupy Sacramento's Challenge to Ordinance Barring Park Use Between 11 pm and 5 am

(Eugene Volokh)

The case is Occupy Sacramento v. City of Sacramento (E.D. Cal. Nov. 4, 2011) (just posted a few days ago on Westlaw); technically, the decision holds that Occupy Sacramento hasn't shown a likelihood of success on the merits — the standard used when plaintiffs seek a temporary restraining order — but the court's reasoning suggests that the judge considered the merits and concluded that Occupy Sacramento's claims were unsound. The decision seems generally quite right to me, given Clark v. Community for Creative Non-Violence (1984), which upheld a similarly content-neutral ordinance banning sleeping in the park.

The city ordinance does leave government officials some discretion in extending the hours if "(1) such extension of hours is consistent with sound use of park resources, (2) the extension will enhance recreational activities in the city, and (3) the extension will not be detrimental to the public safety or welfare." (The plaintiffs had not asked for an extension as of the time they went to court.) But, as the court pointed out,
Thomas v. Chicago Park Dist. (2002), held (among other things) that a content-neutral demonstration permit ordinance was constitutional even if it left government officials with similarly limited discretion. If there was evidence that the officials exercised their discretion in a content-discriminatory way, that would be unconstitutional, but absent such evidence the limited discretion to waive the ordinance requirements doesn't render the ordinance unconstitutional.

Undemocratic?

(David Bernstein)

It turns out that various politically active, generally far left-wing Israeli NGOs, some of which deny the very legitimacy of the Israeli government, get funding from various European governments (see, e.g., this detailed NGO Monitor Report, which focuses only on funding through the EU itself; member states provide substantial additional funding). Some of these organizations, for example, support the international "Boycott, Divestment, and Sanctions" efforts against Israel. (Exactly why European governments fund NGOs whose views diametrically oppose the governments' official policies vis a vis Israel is an interesting question that we'll leave to another time).

These NGOs are often given special legitimacy in the international media because they are purportedly Israeli NGOs. NGO Monitor's investigations show that many of them are, in fact, organizations with little if any domestic base within Israel and instead represent the views of the international far left with a fig leaf of Israeli leadership drawn from its domestic far left.

Israelis, tired of this rather subtle form of ideological warfare emanating from their purported friends among governments in Europe, are now considering a measure that would ban foreign government funding of political NGOs above a certain low level. Whether this particular measure is workable, and whether it's the best way to deal with the situation, I'll again leave for another time.

What's striking, however, is the EU's reaction:

The EU's ambassador to Israel, Andrew Standley, contacted the prime minister's national security adviser, Yaakov Amidror, on Thursday and warned him that passage of the legislation could harm Israel's standing in the West as a democratic country.

So the idea here, obviously is that a "democratic" country must allow foreign governments, who represent foreign citizens and not Israelis, to interfere in its domestic politics by supporting organizations that range from the fringe left to beyond the fringe left.

Now that is chutzpah! Imagine if Israel was funneling millions of Euros annually to Basque separatists in Spain, Flemish nationalists in Belgium, or to one of numerous neo-fascist fronts in Norway and France. I have a very strong feeling that the EU's views of what "democratic" countries must tolerate from foreign governments would change rather quickly.

UPDATE: Among other laws, in the U.S. the NGOs in question would be subject to the Foreign Agent Registration Act which, according to the official website, "requires persons acting as agents of foreign principals in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities. Disclosure of the required information facilitates evaluation by the government and the American people of the statements and activities of such persons in light of their function as foreign agents." Last I heard, Israel had no such requirements, but perhaps the EU thinks that the U.S. is "undemocratic" as well.

The Wages of Cowardice

(Jonathan H. Adler)

David French on the Penn State child molestation scandal.

It was cowardly for a 6′4″ graduate assistant to witness the rape of a child by an older man and not only take no action to stop it but also not even call the police. It is a symbol of extended adolescence — no, extended infancy — that instead of doing anything to help a child in distress, he called his father . . . acting not like a man but like a child in distress himself.

It was cowardly for a college football legend to do the absolute bare minimum required by law (if he even did that) in response to contemporaneous reports that a child had been abused in the coach's own facility. I'm sorry Coach Paterno, but the call to your Athletic Director did nothing to defend the defenseless, and when you saw that nothing happened as a result of that call, it was your absolute moral obligation to take action.

It was cowardly for an athletic director to hear reports of abuse and do . . . nothing. The way of the coward is to seek self-preservation and the preservation of your friends and cronies. The coward keeps the gravy train rolling and revels in the accolades even as he knows terrible truths — truths he will never, ever have the courage to reveal.

The cowardice of some was no doubt motivated by a sincere desire to protect the reputation of the university and its football program; to preserve the house that JoePa built. And yet, as I noted yesterday, the failure to take immediate action has, in fact, done more to tarnish the PSU football program and Paterno's legacy than would have a determined effort to protect children from the predator in their midst. It may even hit the university's credit rating. Placing the welfare of the football program ahead of the Sandusky's victims protected neither.

Moral courage is often it's own reward. As C.S.Lewis commented, "Courage is not simply one of the virtues, but the form of every virtue at its testing point." That should be enough. But in case it is not, these sad and tragic events are a lesson in the wages of cowardice. In failing to protect the interests of Sandusky's victims, these men also failed to protect their own.

Book review, "Election 2012: The Battle Begins"

(David Kopel)

Back in the olden days, readers interested in the history of a presidential race would have to wait until the year after the election to read a book about it. Theodore White created the genre of presidential campaign books with The Making of the President 1960. It was published in 1961. White wrote three more books in the series, and they are still great reading for people interested in the history of American politics. Although be forewarned, the 1964 and 1968 books are enormous.

There was once a time when it was considered unseemly for even the most ambitious candidates to announce before the calendar year of the election. That's one reason that John F. Kennedy waited until Jan. 2, 1960, to formally announce. George McGovern broke the mold by formally announcing on Jan. 18, 1971, which turned out to be the right strategy for a long-shot who needed plenty of time to organize. Jimmy Carter studied the McGovern campaign assiduously, and used its tactics, including the very early announcement, to win his own long-shot race in 1976.

So now, with almost everyone practicing McGovernism, the presidential campaign has been going hard for much of the pre-election year. If you want to know the history thus far, the just-published Election 2012: The Battle Begins is a strong choice. It's written by Tom Bevan and Carl Cannon, and published by RealClearPolitics.com, the world's best political website. Election 2012 is e-book only, and costs just $2.99. The ideal reader might be someone lives abroad, is very interested in American politics, and only gets the limited coverage available from the International Herald Tribune, or foreign papers. In the United States, readers who are so fascinated with politics as to want to read a history of the election the year before the election will probably already know most of what's in the narrative. Yet even those readers will find interesting details about the behind-the-scenes strategizing and the battles within the campaign staffs, especially for Gingrich, Bachmann, and Pawlenty. And the story of how Huckabee looked very seriously at a run, and then backed away. Readers will also learn about the inside of the Romney campaign, but not about behind-the-scenes turmoil, because this time around Mitt's campaign is as smooth and unflappable as is Mitt himself while on a debate stage.