Eugene Volokh's Blog, page 2719

Happy Labor Day

(Kenneth Anderson)

I was a Teamster for a couple of years before I went to UCLA.  I didn't think much about the union, it was just what you had to do to work loading and unloading trucks for Roadway Express.  Well paid, by blue collar unskilled standards, especially overtime, for that I was happy with the union.  The downtown truck facility was slated to close; partly because it didn't make sense even by the late 1970s to have a major truck depot in the heart of the downtown and so it was moving out to Barstow, partly because Roadway Express was such a badly run company, and partly because of the disastrously bad Carter-era economy.  I'm not a big fan of unions these days, although my biggest irritation is with public employee unions, not the private kind. But

But I want to pay tribute today, on Labor Day, to an older guy on the dock — he'd been there forever, long enough to have the seniority to drive a tow-motor and haul pallets around for the trucks.  He was a Teamsters local official of some kind, not high up, just some kind of union rep on the floor.  He told me that the facility would be closing and told me that I needed to get myself off to college.  I would have gone to school anyway — I was so f-cking bored out of my mind loading and unloading trucks all night long.   Sometimes I would get off work in the middle of the night and, drive out to Santa Monica beach and plunge in the water and swim in the white foam and dark water in the early morning darkness (this is not a good idea, btw). He asked what I was going to do, and I said, maybe enroll at UCLA.  I worked the loading dock for a couple of years after my Mormon mission, but I was raised in college-town Claremont, had pretty good grades, and in those days entrance to UCLA wasn't so difficult.

He said, good for you, I wish my kids were going to UCLA.  He added, I've been there, and it's like a beautiful park, it's like the most beautiful place I've ever seen, but my kids won't be going there.  It bothered him that the working class had built this unbelievably beautiful place for kids better off than his; my father was a chemistry professor at the land grant state college where his kids, if they were lucky, might go, and even then I thought higher education in California at all levels was the best thing the state — and he and his kids — had going for them.  I thought about him when I did go there, the following fall term — I sat by the fountain near the physics building, the round modern one, and thought, wow.

It wasn't that college was a big deal to me, son of a professor, or that it was so beautiful — I grew up next to Pomona College and in high school worked in the dining hall under the Jose Clemente Orozco mural of Prometheus bringing the fire down from heaven. It was that I didn't have to work a day (night) job and my job consisted of studying whatever I felt like — and what I felt like was the most unworldly philosophical subjects. Not sure that would be such a good idea today. Every term after my last final exam, I would go lie in the grass in the sculpture garden and read a Colette novel from the library.

So, in his honor, this version of Working Class Hero, a live performance by Marianne Faithfull. Even though he wouldn't have thought much of it, just a poseur song. I like it anyway.

Juan Cole, 2010, on the Mavi Marmara

(David Bernstein)

For those of you who still take Juan Cole's views on Israel seriously, a reminder:

"There are two possible reasons for the violence. One is that the Israeli troops boarding the vessels met some sort of resistance and over-reacted. Aid volunteers are unlikely, however, to have posed much real challenge to trained special forces operatives." Or, more likely, "the deaths and woundings may have been a brutally frank warning to any future Gaza aid activists."

Palmer Report: Israeli forces "faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara requiring them to use force for their own protection. Three soldiers were captured, mistreated, and placed at risk by those passengers. Several others were wounded."

As I pointed out at the time, Israel relied on faulty intelligence, and should have recalled its forces and started from square one when it became clear that they weren't facing peaceful "aid volunteers," but organized, violent fanatics itching for a fight.

The Palmer Report suggests that Israelis forces may have used excessive force, and that wouldn't be surprising–that's the sort of thing that happens when a bunch of scared, heavily-armed but woefully ill-prepared nineteen-year-olds suddenly find themselves in close combat with armed militants who have captured their friends and are threatening their lives. That's very different, however, from the completely unsubstantiated claim, pushed by Cole then and others still today, that the level of violence was premeditated on the part of the Israeli government.

And if you're in a mood for a grim laugh, check out Roger Cohen's new column, in which he writes that Israel, because of its actions, is "losing one of its best friends in the Muslim world, Turkey." Cohen appears to be completely innocent of the obvious fact that Turkey's Islamist government is using hostility to Israel to play to its base, and had done so for some time before the Mavi Marmara. Israel's remaining friends in the Turkish establishment were primarily in the military–but the Turkish government has locked up many of its top generals on trumped up charges, and many of the rest resigned in protest.

In other words, Israel didn't have Turkey's friendship (or at least the friendship of this particular Turkish government) to lose. Does anyone with half a brain really believe that the Turkish government, which occupies Northern Cyprus, blockades Armenia, and suppresses Kurds (including by using cross-border force against Kurdish militants based in Iraq), has been oozing hostility to Israel for years now because it opposes occupation, blockades, and what is perceives as suppression of minorities? The Israeli government, hoping not to permanently damage Turkish relations (perhaps the Islamists will be thrown out of power in due course) can't be so blunt. But there's no need for the rest of us to confuse matters.

Who wants to provoke a constitutional crisis over abortion?

(David Kopel)

Today South Carolina Republican Senator Jim Demint hosted a forum at which five Republican presidential candidates spoke. The transcript is here.  Each candidate appeared one at a time, and the format allowed for in-depth questions and answers. Among the questioners was Princeton University's Robert George. Prof. George asked each candidate if he or she would support congressional legislation, under section 5 of the 14th Amendment, to ban abortion. To state the obvious, such legislation would be contrary not only to Roe v. Wade and Penn. v. Casey (abortion rights are protected by section 1 of the 14th Amendment), but also to Boerne v. Flores (Congress cannot use section 5 to protect a right in defiance of direct Supreme Court holding about the particular aspect of the right).  The question explicitly presumed that Roe v. Wade had not been overturned, and that a Human Life Amendment to the Constitution had not been adopted.

The candidates' answers were as follows:

Bachmann: Yes.

Cain: Yes.

Gingrich: Yes. Cooper v. Aaron's assertion of judicial supremacy was wrong. Following the precedent of the first Jefferson administration, I would abolish some federal judgeships. But I am not as bold as Jefferson. "I would do no more than eliminate Judge Barry in San Antonio and the ninth circuit. That's the most I would go for. (LAUGHTER) (APPLAUSE). But let me say this. That's part of the national debate. That's not a rhetorical comment. I believe the legislative and executive branches have an obligation to defend the constitution against judges who are tyrannical and who seek to impose un-American values on the people of the United States."

Paul: No. Violence and murder should be dealt with by the states. The federal police are already too numerous. I support a bill to deprive lower federal courts of jurisdiction over abortion cases, so that state restrictions on abortion would be immune from judicial review.

Romney: No. I would focus on appointing judges who would return abortion regulation to the states. The George proposal "would create obviously a constitutional crisis. Could that happen in this country? Could there be circumstances where that might occur? I think it's reasonable that something of that nature might happen someday. That's not something I would precipitate."

Personally, I agree with the Romney approach. Moreover, the next President is going to have to address a fiscal crisis that will devastate the United States economy soon if it is not solved. Dealing with the fiscal crisis is going to be quite difficult politically, in part because there are many millions of people who benefit from the current, and unsustainable, levels of federal spending. The tax consumers may be very highly resistant to any reduction in the amount of money that flows to them. So there will be no shortage of national division and acrimony. Thus, 2013 would be an especially bad time to precipitate a constitutional crisis over a social issue. The answers of Romney and Paul displayed prudence, which I think is a very important characteristic for a President, and the answers of Bachmann, Cain, and Gingrich did not.

As for the Ninth Circuit, Gingrich has been saying the same thing since March, according to Politico. I have not found anywhere where he has provided details on this plan, but perhaps it would involve merging the 9th circuit states into the 8th and 10th circuits, since they border the 9th. The Politico article is not entirely clear, but it appears that Gingrich has claimed that he could get rid of the 9th circuit by signing an executive order. This would be plainly unconstitutional, a usurpation of power worthy of impeachment. Article III gives Congress, not the President, the power to "ordain and establish" the inferior federal courts. During the Jefferson administration, the Judiciary Act of 1802 repealed the Judiciary Act of 1801, in which the lame duck Federalist Congress had created many new federal judgeships, to which President John Adams had appointed Federalists in the waning days of his administration. As President Jefferson recognized, the choice to eliminate federal judgeships belongs to Congress, not the President acting by himself. [Update: a commenter says the video (for which a link was not provided) shows that Gingrich was not claiming that he could abolish the 9th Cir. by executive order. I looked on the Internet, and did not find a video of the March 25 Iowa speech by Gingrich. There's a video of a speech earlier that month in Iowa, in which he criticizes the 9th cir. but does not call for its abolition.]

Man Ordered to Pay Ex-Wife 10,000 Euros for "Lack of Sex Over 21 Years of Marriage"

(Eugene Volokh)

So reports La Depeche (France) and The Telegraph (UK). I'm always quite skeptical of such news accounts of court decisions, but I thought I'd pass it along for whatever it's worth. If anyone can point me to the actual text of the court decision, or provide some legal background, I'd be much obliged. Thanks to Jose Guerrero for the pointer (and to my brother Sasha for the pointer to the French newspaper).

Jobs vs the Environment One More Time

(Jonathan H. Adler)

The New York Times tries to provide some perspective to the renewed debate over the economic effect of environmental regulation, and the effect of regulation on jobs in particular.  The story was prompted by President Obama's decision to ask Environmental Protection Agency Administrator Lisa Jackson to withdraw a proposed revision of the National Ambient Air Quality Standard for ozone.  Business groups and many local government officials cheered the move; environmentalist groups were dismayed.

Part of the problem in evaluating the costs of regulation is that there have been few systematic studies of such costs after regulations are imposed.

"Regulations are put on the books and largely stay there unexamined," said Michael Greenstone, an economist at the Massachusetts Institute of Technology. "This is part of the reason that these debates about regulations have a Groundhog's Day quality to them."

Mr. Greenstone has conducted one of the few studies that actually measure job losses related to environmental rules. In researching the amendments to the Clean Air Act that affected polluting plants from 1972 and 1987, he found that those companies lost almost 600,000 jobs compared with what would have happened without the regulations.

But Mr. Greenstone has also conducted research showing that clean air regulations have reduced infant mortality and increased housing prices, and indeed many economists argue that job losses should not be considered in isolation. They say the costs of regulations are dwarfed by the gains in lengthened lives, reduced hospitalizations and other health benefits, and by economic gains like the improvement to the real estate market.

The NYT story did not provide links to Prof. Greenstone's research, so I added them above. For those interested in the subject, a third paper by Greenstone looks at the extent to which air quality improvements can be attributed to the federal Clean Air Act. Prof. Greenstone is, among other things, the former chief economist of President Obama's Council of Economic Advisers.

The story closes with a quote from current Obama Administration "regulatory czar" Cass Sunstein, who's in leave from the Harvard Law School.

"My view is that the Republican claim that 'job-killing regulation' is a redundancy is as ridiculous as the left-wing view that 'job-killing regulation' is an oxymoron," said Cass Sunstein, head of the White House Office of Information and Regulatory Affairs. "Both are silly political claims that have no place in a serious discussion."

I agree with Professor Sunstein that the debate over whether regulation kills or creates jobs is not very productive. As a general matter, when a firm is forced to spend money complying with environmental regulations, such expenditures are likely to take the place of more productive investments.  Some of these expenditures may benefit other firms, such as those which sell products or services that assist with compliance, but are still unlikely to offset the negative effects of the initial diversion.  As a consequence, whether or not there are net economic benefits from environmental regulation will usually depend on the magnitude and nature of the other benefits the regulation provides — benefits that may or may not translate into job creation. Even if an environmental regulation generates net economic benefits, this does not necessarily translate into increased employment.  But whatever the effect of regulation on jobs, and even assuming the effect could be predicted with any accuracy, this is only one factor to be weighed when considering the desirability of regulation.

The rise and fall of the Second Amendment "collective right"

(David Kopel)

My recent article for America's 1st Freedom traces the rise and fall of the theory that the Second Amendment is not an individual right, but instead is a "collective right," which, like "collective property" in a communist country, supposedly belongs to everyone collectively, but in fact belongs to no-one. The theory was created by a federal district judge in 1935, formally named by the New Jersey Supreme Court in 1968, and became popular among lower federal courts during the next quarter-century.

Historical and textual analysis made it increasingly clear that the theory was completely implausible, and it was unanimously rejected by the U.S. Supreme Court in the 2008 case District of Columbia v. Heller. In that case, all nine justices agreed that the Second Amendment right was individual, while they disagreed about its scope.

Prof. Richard Banks (Stanford), Guest-Blogging

(Eugene Volokh)

I'm delighted to report that Prof. Richard Banks will be guest-blogging about his new book, Is Marriage for White People?: How the African American Marriage Decline Affects Everyone. Prof. Banks is a professor at Stanford Law School, where he teaches family law, employment discrimination law, and race and the law; here is a brief summary of his book:

During the past half century, African Americans have become the most unmarried people in our nation. More than two out of every three black women are unmarried, and they are more than twice as likely as white women never to marry. The racial gap in marriage extends beyond the poor. Affluent and college educated African Americans are also less likely to marry or stay married than their white counterparts. That harms black children and adults, and imperils the growth and stability of the black middle class.

One reason that marriage has declined is that as black women have advanced economically and educationally, men have fallen behind. Each year two black women graduate college for every one black man. Two to one. Every year. The shortage of successful black men not only leaves black women unmarried, it renders them more likely than other women to marry less educated and lower earning men. Half of black wives who are college graduates have husbands who are not.Yet black women rarely marry men of other races. They are less than half as likely as black men, and only a third as likely as Latinos or Asian Americans, to wed across group lines. Is Marriage for White People? traces the far-reaching consequences of the African American marriage decline. It also explains why black women marry down rather than out.

As particular as this inquiry may seem, it is also universal. Americans of all races are more unmarried now than ever. And as women surpass men educationally, wives increasingly earn more than their husbands. In illuminating the lives of African Americans, Is Marriage for White People? thus probes cultural and economic trends that implicate everyone, highlighting the extent to which the experience of black women may become that of all women.

I much look forward to Prof. Banks' posts. [UPDATE: I accidentally posted this originally from Prof. Banks' account on our blog, but then corrected it. The post is written by me, not by Prof. Banks.]

Remember America's Labor Heroes

(David Kopel)

This essay, which I wrote in 2000, celebrates the brave men and women of the Colorado labor movement, who in the coal fields of southern Colorado early in the 20th century, stood up against murderous company goons and against the soldiers of the Colorado National Guard who perverted their organization. 

Labor Day is a day to remember that labor rights are human rights, and that the right of Americans to come together in voluntary organizations, including labor unions, is part of the core of American freedom. On Veterans Day or Memorial Day, we remember that the freedoms we enjoy today are the fruit of the sacrifices made by our armed forces. We remember this even if we disagree with some military actions, or even if we know that some past or present military leaders were bad people. Likewise, on Labor Day, even if we recognize the harmfulness of much of the current agenda of SEIU, NEA, and so on, we should remember the historic debt that all Americans owe to the Labor movement. One part of that debt is the essential role that labor leaders such as Walter Reuther and Lane Kirkland played in providing bipartisan support for resistance to the evil Soviet empire, an empire whose ultimate objective was to reduce all the workers of the world to slavery.

Paging Professor Bainbridge

(Kenneth Anderson)

I have taken the plunge and assigned Professor Bainbridge's new self-published Amazon e-book, Directors as Auctioneers: A Concise Guide to Revlon-land, to my Business Associations class.  I've read it and it's outstanding, but I had some trepidation about assigning a mandatory e-book to a class of 70.  However, I polled the class and asked how many people had no access to make an Amazon purchase via Kindle, I-Pad, I-phone, or computer, and the answer was zero.  Everyone seemed to have an actual Amazon account, amazingly — I asked why, and they said, to buy textbooks.

I have assigned a small chunk now, early in the course, in connection with the initial discussion of agency law, and agent-principal problems.  This is the part (if you're familiar with the book) on the conflict between the agent's authority and the agent's accountability.  One reason it is a useful discussion is that it is not merely about changes of corporate control, or even about corporate governance — it is a useful description of the basic problem of agency, in a particular way, as well as about governance.

I will keep you posted on how it goes using an e-book as a required law text.  The book is awfully good; I use Allen, Kraakman, and Subramanian as my main Business Associations textbook, and I think this helps give both a fuller and alternative explanation for Revlon-land.

24-Hour Solar Power

(Jonathan H. Adler)

James Wimberley reports on a potentially significant technological breakthrough for solar power.