Eugene Volokh's Blog, page 2737
August 2, 2011
The Debt Deal and Divided Government
The debt deal passed today does not go as far in cutting spending as I would like. But it does nonetheless enact substantial cuts without any tax increases, with a significant likelihood of more cuts in the future. If the bipartisan commission created by the new legislation fails to come up with a spending cut plan or Congress fails to enact the plan, there will be additional automatic cuts in both civilian and military spending.
If nothing else, the deal provides additional evidence in support of the proposition that divided government reduces the growth of the state, and makes deregulation and spending cuts more likely. Certainly, it is inconceivable that any such deal would have been made had the Democrats retained control of Congress in 2010. One can argue that the Republicans would have enacted bigger cuts had they controlled the Senate and the White House as well as the House of Representatives. But it should not be forgotten that the GOP presided over massive increases in spending and regulation when they controlled all three under George W. Bush. The government-restraining effects of divided government are demonstrated not only by the last decade, but by previous historical experience.
The evidence on the effects of divided government undercuts Democrats' claims that they can be trusted to get spending under control on their own. But it should also give pause to conservatives who believe that our fiscal problems will be solved if only the GOP can make a clean sweep in 2012.
Comedy of Errors at Univ. of Colorado not very funny
Among the offerings at this summer's Colorado Shakespeare Festival, at the University of Colorado at Boulder, is the Comedy of Errors. The show is clearly a crowd-pleaser, provoking many laughs from most of the audience. The people with whom I saw the show, who generally have pretty good taste in theater, thought it was hilarious. So statistically speaking, if you see the show before it concludes its run in mid-August, you will probably have a great time. That said, I couldn't stand it, and thought it was one of the stupidest things I've ever seen on stage.
Comedy may be Shakespeare's first play, and it has many of the elements that appear in his later comedies. A pair men are identical twins, separately shortly after birth. Each man has a servant, and servants are also identical twins. Each twin pair not only looks alike, they have the same name. The twins from Syracuse (modern Italy) show up in Ephesus (modern Turkey) and much confusion ensues from mistaken identity. There are some small fights, then a big one, and in the last scene, everything is straightened out, and everyone lives happily ever after.
While modern scholars credit Comedy with more social and political complexity than did some earlier scholars, and there's plenty of witty dialogue, it's fair to saw that Shakepeare's comedy-writing skills improved after this early effort.
Among the virtues of the CSF's production this season is an excellent set, which nearly rises to the level of being a character. Impressively, the same set is also used for CSF's parallel production of Romeo & Juliet. The entire cast is hard-working and energetic; the two actors who play the servants (Dromio 1 and Dromio 2) have vivacious comic energy. All the costumes are very good, and help the audience remember who's what.
However, the CSF's version of Comedy of Errors appears to have made its artistic decisions based on the recommendations of Eric Cartman, the puerile 4th-grade boy from the South Park cartoon:
"OK, most people can't understand Shakespeare, because it has too many words. So you need to crank up the visual humor. First, put in a lot of farts and fart jokes. In fact, put in a really long fart that is so powerful that everyone on stage passes out. The audience will love it." (They did.)
"Then, do a lot of pointless stuff that has almost nothing to do with the play. After intermission, have one of the characters throw bags of goldfish crackers to the audience."
"Every good play has lots of dick humor. So one of the characters should stick a fish doll in pants, and have it hanging down for most of the show. Also, if another character says something about sex, he should grab his thing while he says it."
"You know that scene where the wife has an argument with the prostitute that her husband has been visiting? They should pretend that they're sumo wrestlers. Because everyone knows that sumo wrestlers are almost the funniest thing in the world. Except for farts."
"Speech impediments are funny too. Whenever the Duke of Ephesus speaks, he should add an extra syllable for any word ending with 's'. So he says 'Ephesus' as 'Ephesus-es'. That will be just as hilarious in Act 5 as it is in Act 1."
"Finally, the style for most of the play should be Three Stooges. Except these days, people actually hitting each other would upset the audience. So just use a lot of fake punches, and have somebody clack two boards together at the moment of impact."
Early in the play, one character marvels, "This is the fairyland." Yet the CSF's production of Comedy works relentlessly to dispel theatrical enchantment, to constantly break through the fourth wall, and to remind the audience at every opportunity that they are watching Shakespeare-for-people-who-thought–Shakespeare-for-Dummies–was-too-hard-to-read. Compared to this Saturnalia of moronic vulgarity, Blazing Saddles seems like, well, a Shakespeare play.
Montesquieu on Climate
From Montesquieu's Spirit of the Laws, Book XIV:
Cold air constringes the extremities of the external fibres of the body; this increases their elasticity, and favours the return of the blood from the extreme parts to the heart. It contracts those very fibres; consequently it increases also their force. On the contrary, warm air relaxes and lengthens the extremes of the fibres; of course it diminishes their force and elasticity.
People are therefore more vigorous in cold climates. Here the action of the heart and the reaction of the extremities of the fibres are better performed, the temperature of the humours is greater, the blood moves more freely towards the heart, and reciprocally the heart has more power. This superiority of strength must produce various effects; for instance, a greater boldness, that is, more courage; a greater sense of superiority, that is, less desire of revenge; a greater opinion of security, that is, more frankness, less suspicion, policy, and cunning. In short, this must be productive of very different tempers. Put a man into a close, warm place, and for the reasons above given he will feel a great faintness. If under this circumstance you propose a bold enterprise to him, I believe you will find him very little disposed towards it; his present weakness will throw him into despondency; he will be afraid of everything, being in a state of total incapacity.
(Hat tip: David Touby)
Considering the Costs of Climate Adaptation
Yesterday afternoon I attended a lecture by Michael Greenstone, the 3M Professor of Environmental Economics and former chief economist of the Council of Economic Advisers during the first year of the Obama Administration, addressing the question, "Will Adaptation Save Us from Climate Change?" This lecture was the keynote address at a PERC workshop on "Human Adaptation to Climate Change" I've been attending this week.
Greenstone set the stage by observing that there are three possible approaches to the threat of climate change: 1) mitigation — reducing emissions of greenhouse gases; 2) adaptation — responding to climate change by seeking to ameliorate its negative effects, and 3) geoengineering — attempting to modify the climate in some way to offset the effects of increased greenhouse gas concentrations. The first of these is unlikely to happen in the near term, as the United States and other nations have shown themselves to be quite resistant to adopting meaningful mitigation measures. The third, whether or not it is viable or desirable, is generally not considered an acceptable approach geo-politically. As a consequence, he suggested, in all likelihood we will have to engage in some degree of adaptation to climate change.
In Greenstone's view, the question is not whether or not human civilization will survive. It almost certainly will. Nonetheless, climate change could have substantial negative conseuqences. Rather, the relevant questions are how adaptation will occur over various time frames, the cost of such adaptation, and how effective adaptive responses will be. There is some research that has investigated the costs and potential of near-term response to some degree of climate change, but not nearly enough on longer term responses to climate change and its consequent environmental effects. Insights can be drawn, however, from other research that documents individual responses to changes in environmental conditions. For example, Greenstone co-authored a paper showing that some individuals respond to local air pollution levels by, among other things, purchasing medications that relieve some of the respiratory effects of higher pollution levels. Such adaptation may reduce the negative effects of pollution, but it still comes at a cost.
Adaptation takes many forms. Some adaptation to climate change would involve changes in infrastructure and the like, but much adaptation is likely to occur at the individual level. To take a simple example Greenstone used in his talk (based on this paper): on hotter days, people use more air conditioning. This matters because high temperatures tend to correlate with increased mortality. Therefore, were it not for air conditioning (and other means of adaptation), an increase in temperature would cause a greater increase in mortality. With air conditioning, the mortality increase is less, though energy use is greater. This illustrates how individuals can alter their behavior to compensate for some of the consequences of higher temperatures, albeit at some cost.
In poorer, less-developed nations, such as India, on the other hand, the results are somewhat different. As Greenstone explained, compared to the United States, India has less adaptive capacity, so the mortality effects of warming would be greater – far greater. There is a lot of adaptive capacity in wealthy, industrialized nations, but not so much in poorer, less-developed nations. Moreover, the United States' adaptive capacity has improved dramatically over the course of the past century. That is, the relationship between high temperatures and increased mortality in the United States has weakened over time as the nation has become wealthier and more technologically advanced, making it easier for individuals to adapt to temperature changes.
One possible response to Greenstone's analysis is that if wealthier nations can adapt to climatic changes more readily than poorer nations, as much attention should be paid to making poorer nations wealthier – and improving their adaptive capacity – as to figuring out how to reduce global greenhouse gas emissions so as to mitigate the threat of climate change. From an economic standpoint, the costs of mitigation could be compared to the costs of adaptation, and if the costs of mitigation are greater, this would provide an economic justification for focusing on adaptation instead of mitigation – and some would certainly endorse this view. Indeed, many in developing nations embrace this view. In any event, even if mitigation policies are eventually adopted, there will need to be some degree of adaptation, some of which will be undertaken at the individual level.
Tooth Fairy Economics and the Unrealized Dream of a Baby Teeth Necklace and Matching Baby Teeth Earrings
Well, this is just sad. Tooth Fairy payouts are down. Presumably number of proffered teeth remains roughly constant.
A recent survey found that the national going rate has seen a 40-cent decline this year: From $3 to $2.60. What's worse? A full 10% of kids are reaching under their pillows ... and coming up empty. Compare that to last year when just 6% of kids found no reason to flash that toothless grin.
When Our Kid (shortly about to decamp to Rice, and, for those who asked, Baker College) first started losing her teeth, we kept them in mason jar out of sight. I suggested to Beloved Wife that we save them until they had all fallen out, have them mounted in an Impressive and Timelessly Stylish necklace (along with two made into matching earrings), and then give it to The Kid for high school graduation. Beloved Wife did not react well, and I have never seen the teeth since, although my dentist told me it would not have worked anyway, because the amount of moisture or something in the baby teeth would cause them to dissolve over time. She added that about once every two or three years, some father — never mother — asked her that.
If I were more organized, I would put up a poll on whether it would be touching and excellent to receive your baby teeth on a necklace with matching little baby teeth earrings as a high school graduation present from your doting parents. As it is, I will open up comments for this one. Also tell me what you think the proper Tooth Fairy rate should be. You might even branch out into what we can do to stimulate the Tooth Fairy Yield Curve.
Corporate Lobbying as a Principal-Agent Problem
Do corporate lobbyists effectively represent the interests of their clients? I'm not so sure, for reasons I explain in this column on NRO.
August 1, 2011
Unfair to Justice Breyer?
A prominent constitutional law professor recently suggested to me that I was grossly unfair to Justice Breyer in the following paragraph at the end of Chapter 7 of Rehabilitating Lochner:
Nevertheless, and despite the flood of serious revisionist scholarship, Lochner is still primarily used as a symbol of one's jurisprudential opponents' perceived faults. Justice Antonin Scalia, dissenting in Lawrence v. Texas, argued that the Fourteenth Amendment no more protects the right to engage in homosexual sodomy than it protects the right to work "more than 60 hours per week in a bakery." In United States v. United Foods, Justice Stephen Breyer, dissenting, criticized the majority for finding that the First Amendment imposes limits on government-coerced commercial speech. Breyer, citing Lochner, wrote: "I do not believe the First Amendment seeks to limit the Government's economic regulatory choices in this way—any more than does the Due Process Clause." This sort of simplistic discourse about Lochner impoverishes our understanding of the Fourteenth Amendment and the influence of the liberty of contract cases on it, and brings no honor to the jurists who engage in it.
The professor in question suggested that Breyer, rather than being simplistic, was in fact making the subtle and sophisticated point that the underlying problem with the commercial speech doctrine as applied in United Foods, like the underlying problem in Lochner, was the application of a constitutional provision to ordinary economic regulation with little support in history or text. The professor (who was not Jack Balkin) noted that Jack Balkin and others have in fact made this point in very erudite law review articles.
My response was that while in theory Breyer could have been making a sophisticated jurisprudential point, there is no indication from his actual dissent that he was doing so, as opposed to simply using Lochner offhandedly "as a symbol of one's jurisprudential opponents' perceived faults." After all, the entirety of what Breyer had to say about Lochner is as follows:
At a minimum, the holding here, when contrasted with that in Wileman, creates an incentive to increase the Government's involvement in any information-based regulatory program, thereby unnecessarily increasing the degree of that program's restrictiveness. I do not believe the First Amendment seeks to limit the Government's economic regulatory choices in this way–any more than does the Due Process Clause. Cf. Lochner v. New York, 198 U.S. 45 (1905).
Nevertheless, the professor in question–who has no particular ties to Justice Breyer, near as I can tell–was quite adamant that I had wronged Breyer, and should at least edit the offending paragraph in subsequent printings of my book.
So, while I still don't see it, maybe as the author I have blinders on. So, dear readers, was I unfair to Justice Breyer? (Note that to vote accurately, you must click the circle ABOVE your choice).
Natelson on the 14th Amendment and the debt ceiling
In this iVoices.org podcast, Rob Natelson explains why unilateral presidential creation of new debt is: 1. Utterly contrary to the Constitution's structure of limiting executive power. 2. Directly contrary to the text of the 14th Amendment. President Obama, to his credit, declaimed any unilateral power to raise the debt ceiling. But many people–some of whom have taken oaths to uphold the Constitution, or who profess respect for constitutional law–have insisted that the President has unilateral debt power. And since the current deal that is being rushed through Congress may slightly delay the insolvency of the federal government, but not prevent it, understanding what the 14th Amendment says about the issue remains important. Rule of law, not an elective dictatorship.
Interesting Self-Defense Case
The case is People v. Richardson, decided by the Michigan Supreme Court Friday. The big dispute is not about the law, but about whether the instructions were clear enough; but many cases indeed turn on that very question. If you're interested in self-defense cases as they are actually litigated — especially in situations where the facts are ambiguous (was the defendant reasonably afraid of imminent death or great bodily harm, or was the threat over and the defendant attacked just because he was angry or worried about harm at some future time?), where the jury might well have been confused, and where the instructions weren't as clear as they could have been — you might check this out.
Peaceful Politics = Terrorism?
Politico reports:
Vice President Joe Biden joined House Democrats in lashing tea party Republicans Monday, accusing them of having "acted like terrorists" in the fight over raising the nation's debt limit.
Biden was agreeing with a line of argument made by Rep. Mike Doyle (D-Pa.) at a two-hour, closed-door Democratic Caucus meeting.
"We have negotiated with terrorists," an angry Doyle said, according to sources in the room. "This small group of terrorists have made it impossible to spend any money."
Biden, driven by his Democratic allies' misgivings about the debt-limit deal, responded: "They have acted like terrorists," according to several sources in the room.
Biden's office declined to comment about what the vice president said inside the closed-door session.
Thanks to InstaPundit for the pointer.
Eugene Volokh's Blog
- Eugene Volokh's profile
- 7 followers
