Eugene Volokh's Blog, page 2739
July 30, 2011
A Partisan Pattern on Debt Ceiling Votes
Byron York has an interesting column documenting the partisan pattern of debt ceiling votes by Senate leaders. One thing York does not discuss, however, is that most of these votes were symbolic, as there was little doubt that the debt ceiling increase would pass. This time around, however, partisan voting won't get the job done.
July 29, 2011
Failing to Save the Spotted Owl
James L. Huffman, former Dean of the Lewis & Clark Law School, examines the federal government's flagging efforts to save the endangered spotted owl in the Pacific Northwest.
Despite a 90% cutback in harvesting on federal lands (which constitute 46% of Oregon and Washington combined), the population of spotted owls continues to decline, as do rural communities that once prospered across the Northwest. In some areas, spotted owls are vanishing at a rate of 9% per year, while on average the rate is 3%. . . .
The final Revised Recovery Plan, issued on June 30, calls for expanding protections for owls beyond the nearly six million acres currently set aside. Ironically, it also calls for the "removal"—i.e., shooting—of hundreds of barred owls, a larger and more adaptable rival of the spotted owl that competes for prey and nesting sites, and sometimes breeds with the spotted owl.
How much will it cost to implement this plan? The Fish and Wildlife Service says the species could be rejuvenated over the next 30 years at a cost of about $127 million. But that money will do little if anything to rejuvenate the depressed rural communities of the Northwest where still more timber land will be off limits to harvesting.
The key point is that the species could be rejuvenated, but that does not mean it will be. The owl's continued decline has confounded many experts and there's really bery little reason to think the new plans will outperform the old.
This is a pattern we see all too often with the Endangered Species Act — regulatory measures are imposed with uncertain if any ecological benefit. The ESA has sometimes kept species from falling over the brink of extinction, but has done precious little to achieve its stated goal of species recovery. Residents of depressed timber communities may want ESA reform because of the Act's tremendous costs, but there's also ample reason to want ESA reform because of its environmental ineffectiveness.
For some of my ideas about ESA reform, see here.
Asians as "White"
Commenter Pine_Tree on the Nikki Haley thread wrote,
[A]llow a white Southerner to point out something about casual use of the word "white": sometimes it just means "not black". Meaning, believe it or not, that in common usage, a school (or gathering, or club, or church, or whatever) in the South that includes no black people is "all-white". This is true even when there are, for instance, people of Korean or Indian ancestry in said group. Whether this is anthropologically correct, or PC, or even nice is beside the point. It's just one of the common, casual usages.
I can't speak to Southern white practices, but I can speak to what I've seen quite a bit out here in California in discussions of race: Asians being called white, usually by people who are criticizing institutions for not having enough blacks and Hispanics, and often in the course of arguing in favor of race preferences for blacks and Hispanics. I'm not just talking about Asians and whites being classified together for racial classification purposes — I'm talking about Asians being actually labeled "white." For a 2008 post that offers a related example, see here; for a 2002 post on the related example of Asian and white women being implicitly placed in the category of "male" (I kid you not), see op-ed of mine from 1998 on the subject:
Asians are now white.
Don't believe me? A recent MSNBC news headline announced a "Plunge in Minority University Enrollment" at the University of California, with UC Berkeley reporting that "minority admissions had declined 61 percent." Actually, the total percentage of racial minority students at Berkeley, Asians included, fell from 57% to 49%. If you exclude the burgeoning group of people who decline to state their race, the minority percentage fell only three percentage points, from 61% to 58%.
The drop was exclusively among blacks, Hispanics, and American Indians. Asians, who make up less than 10% of the California population, apparently aren't a "minority."
Or listen to former California Chief Justice Rose Bird. Last year, she wrote a commentary saying that, without race preferences, the UC system would be "nothing more than a group of elitist, 'lily white´ institutions." A coorganizer of Jesse Jackson's recent march in favor of race preferences called UC Berkeley's law school, whose entering class last year was 20% minority, including 14% Asian, "lily-white." Asians aren't just white: They are lily-white.
I first noticed this effect 10 years ago, at a party where a friend of mine commented that the guests were all white. I responded by mentioning about a dozen Asians; oh, she said, that's right, but you know what I mean. At a recent UCLA conference I attended, two speakers complained that everyone on the panel was white, without even realizing that one of the speakers was ethnically Chinese, and another was an Asian Indian with skin darker than that of many American blacks.
To some extent, this sort of mistake is funny and even a bit heartwarming. The racial divisions between white and Asian, once so stark and to many almost unbridgeable, are quickly fading away. Marriages between Asians and whites are increasingly common; while anti-Asian bigotry exists, it is (at least among whites) much rarer than it was only one or two generations ago. As with the experience of the American Irish, Italians, Jews, and many other groups, the Asian experience shows that racial divisions and hostilities can subside over time.
But there's a sinister aspect to this as well. To begin with, calling Asians "non-minorities" or even "white" is an error, and is a denial of their heritage. Asians have succeeded even though they are a racial minority — this fact deserves to be acknowledged. It redounds to the credit of the many Asians who worked terribly hard against often overwhelming odds. And it's evidence of the essential fairness of the American capitalist system, which has rewarded this hard work even though many people, including many government officials, tried to penalize it.
Calling Asians white also creates new lines, possibly very dangerous ones. "White" has stopped meaning Caucasian, imprecise as this term has always been, and has started to mean "those racial groups that have made it." "Minority" has started to mean "those racial groups that have not yet made it." (A recent San Francisco Chronicle story even excludes non-Mexican-American Latinos from the "minority" category.) This new division is as likely as the old to create nasty, corrosive, sometimes fatal battles over which racial groups get the spoils. So long as we think in terms of "white" and "minority," we risk disaster, no matter which races are put in which box.
And, finally, calling Asians white is often a tool for misleading the public. Falsely calling a school "lily-white" gets a strong reaction from readers. Accurately saying "There are relatively few blacks and Hispanics at the school, but there are many Asians, perhaps more than there are whites" leads to a much more complex (as well as more well-informed) response. Falsely talking about plummeting "minority" admissions makes more political hay than accurately describing decreases among some racial groups and increases among others.
Ultimately, the only way to solve any of our problems, including our racial ones, is to tell the truth. We should celebrate the fact that Asians have succeeded. We should do things to make sure that all people, regardless of their race, have a chance to succeed. But in our fight for this success, we should be scrupulously honest about what's really going on.
Following Up Eugene's Post on Nikki Haley's Race: A Picture
To follow up on Eugene's post on Governor Nikki Haley's voter registration, here is Haley's picture from Wikipedia:
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Nikki Haley (Wikipedia)
Following Up Eugene's Post on Niki Haley's Race: A Picture
To follow up on Eugene's post on Governor Niki Haley's voter registration, here is Haley's picture from Wikipedia:
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Niki Haley (Wikipedia)
Charles Krauthammer on the Debt Ceiling Debate
I've tended to side with the more hawkish Tea Party Republicans in the debt ceiling debate just because I always side with those who want to cut spending the most. But I found Charles Krauthammer's column today very thought-provoking and to give me pause. In particular, he focuses on the debate within the framework of the structural Constitution rather than just a matter of political strategy. I also like his point that what we are really dealing with is two visions that are fundamentally in competition. Worth a read:
We're in the midst of a great four-year national debate on the size and reach of government, the future of the welfare state, indeed, the nature of the social contract between citizen and state. The distinctive visions of the two parties — social-democratic vs. limited-government — have underlain every debate on every issue since Barack Obama's inauguration: the stimulus, the auto bailouts, health-care reform, financial regulation, deficit spending. Everything. The debt ceiling is but the latest focus of this fundamental divide.
The sausage-making may be unsightly, but the problem is not that Washington is broken, that ridiculous ubiquitous cliche. The problem is that these two visions are in competition, and the definitive popular verdict has not yet been rendered.
We're only at the midpoint. Obama won a great victory in 2008 that he took as a mandate to transform America toward European-style social democracy. The subsequent counterrevolution delivered to that project a staggering rebuke in November 2010. Under our incremental system, however, a rebuke delivered is not a mandate conferred. That awaits definitive resolution, the rubber match of November 2012....
[U]nder our constitutional system, you cannot govern from one house alone. Today's resurgent conservatism, with its fidelity to constitutionalism, should be particularly attuned to this constraint, imposed as it is by a system of deliberately separated — and mutually limiting — powers.
Given this reality, trying to force the issue — turn a blocking minority into a governing authority — is not just counter-constitutional in spirit but self-destructive in practice.
Debating Repeal of the 17th Amendment
The Federalist Society has published an exchange between co-blogger Todd Zywicki and myself on the question of whether the 17th Amendment should be repealed. Todd argues that repeal would help reestablish necessary limits on federal power. I contend that it would have little effect, and especially would not lead to a net reduction in federal spending and regulation.
The debate is timely because some conservatives, libertarians, and Tea Party leaders have advocated repeal of the amendment over the last year. For my previous posts criticizing such arguments, see here and here.
UPDATE: It's perhaps worth noting that this is the first-ever debate over the 17th Amendment between participants who are both Volokh Conspiracy bloggers, George Mason professors, editors of the Supreme Court Economic Review, and former clerks of Fifth Circuit Judge Jerry E. Smith.
"Democrats Criticize [Gov.] Haley's Checking of 'White' on Voter Registration Application"
So reports the Charleston Post & Courier:
The South Carolina Democratic Party tried Thursday to make Haley out as a liar for checking "white" as her race on her 2001 Lexington County voter registration application.
But the application had no specific option for "Indian." Her options were "white, black/African-American, Asian, Hispanic, Native American or other." ...
Dick Harpootlian, the Democratic Party chairman, said whether Haley listed her race as white or not doesn't matter to him. The point is, he said, that the governor has a pattern of twisting the truth.
"Haley has been appearing on television interviews where she calls herself a minority — when it suits her," Harpootlian said. "When she registers to vote, she says she is white. She has developed a pattern of saying whatever is beneficial to her at the moment." ...
The commission doesn't attempt to verify a person's race, but that data is used by U.S. Department of Justice to enforce fair voting practices. Collecting the information is a requirement of state law, Whitmire said. If a person checks "other," he or she is asked to specify....
This strikes me as a pretty ridiculous criticism. Racial and ethnic categories are notoriously mushy on the boundaries, and South Asia is one of those boundaries. "Asian" has often been understood to mean what was once called "Mongoloid" and then later "Oriental" (though "Oriental" was itself ambiguous) — basically having the appearance features characteristic of East Asians, such as the Chinese. "White" has often been understood to mean what was once generally called "Caucasian," and is still often called that; to quote the Random House, " of, pertaining to, or characteristic of one of the traditional racial divisions of humankind, marked by fair to dark skin, straight to tightly curled hair, and light to very dark eyes, and originally inhabiting Europe, parts of North Africa, western Asia, and India" (emphasis added).
So if you're a relatively dark-skinned Indian, do you call yourself "white," because you see that as basically Caucasian, and because your facial features are pretty close — other than with regard to skin color — to European facial features? Or do you call yourself "Asian," because this term focuses more on the continent of Asia (even though you're aware that your Asian near-neighbors to the west, such as Iranians, would pretty surely not call themselves Asian)? Or do you label yourself "other," on the grounds that you see "white" as different enough from "Caucasian" that the skin color difference suffices to put you in a separate group? I should think that this is a pretty quintessentially personal decision.
Nor is it a decision that's inconsistent with labeling yourself a "minority," a term that means different things depending on the context but that in many instances is entirely consistent with being "white" — for an obvious example, see, for instance, Jews or Arabs, who are white and minorities. The Post & Courier asserts that "Haley, the daughter of Indian immigrants, has never emphasized herself as South Carolina's first female and minority governor and the country's second Indian-American governor, but it has earned enormous national notoriety." But even if she had referred herself to as South Carolina's first minority governor, I don't see any inconsistency between that and her box-checking on the voter registration form.
Moreover, checking the "white" box on that form actually was not "beneficial to her at the moment," just as checking Asian or other would not have been beneficial. A voter in modern South Carolina gets no tangible benefit at all from lying about her race on a voter registration application. It's not like a job application for an employer that gives some people (whether white, black, East Asian, or what have you) a preference based on race, where there's at least some suspicion that a person may be fudging her racial designation for financial gain. This casts further doubt on the theory that she was somehow deliberately "twisting the truth," as opposed to just interpreting the boxes the way she sincerely thought was most sensible under the circumstances.
Thanks to InstaPundit for the pointer.
Whom Should the Treasury Department Pay First?
As time grows short and it looks more and more likely that the government will not increase the debt limit by August 2, the question of whom the Treasury Department should pay if it has to make due with current revenues becomes more interesting. There have been a fair number of off-handed comments about this issue in the press, but I have yet to see much written on how to think about the problem conceptually.
One approach is to approach the problem like a business or individual that has a serious cash flow problem but isn't insolvent. This would suggest ordering payments based on how much the government is likely to need particular creditors on an ongoing basis going forward. If an individual can't pay all the bills, he is likely to first pay the mortgage (or at least this was true before mortgage defaults became so common that lenders lack the capability to foreclose quickly) and the utilities. If the bank takes your house or the power company refuses to provide heat next month, you have a serious problem. You can stiff the phone company and the cable company because it is less of a problem if they refuse to continue doing business with you. The plumber who already repaired your leaky faucet is even easier to stiff because you don't need him in the future at all. (Yes, you might have another plumbing problem but unless the plumber gossip network is extremely efficient you will be able to find another one).
This view implicitly underlies the common assumption that bondholders will be paid first. It isn't that they have some superior moral claim to be paid compared to, say, social security recipients or federal employees. The problem is that, if we don't pay our bondholders, they (and others like them) are likely to refuse to loan us more money in the future, or at least demand more compensation to do so. (The bondholder gossip network is extremely efficient thanks to the news media and rating agencies).
Based on the principle of paying the people whose cooperation the government most needs in the future, who comes after the bondholders? If the government thinks like a business, it should be contractors who provide the most essential services and who are most likely to refuse to continue to work if they aren't paid. Social security recipients and soldiers would come last. Social security recipients are done paying into the system and current workers don't have a choice, so it is of relatively little concern if people don't fully trust the government's promise to make social security payments in the future. Soldiers aren't allowed to walk off the battlefield. Federal employees are also relatively easy to stiff. In the long run they might look for new jobs, but the transaction costs are too high for most to do so if the cash-flow crunch is relatively short lived.
If government officials think in terms of which creditors are most important to them personally rather than to the government as an entity (think managers who serve their own interests rather than those of the corporation's shareholders), the calculus changes drastically, and the question is not how keep the loyalty of the nation's most important business partners but how to keep the loyalty of the greatest number of voters. This perspective points toward making sure that the social security checks go out. There are a lot of social security recipients, and they vote.
A very different approach would be to allocate incoming revenues based on the principle of equality. Rather than paying some in full and others not at all, this approach would counsel toward paying everyone to whom the government has a moral obligation — as a result of contract, promise, or reasonable reliance on the expectation of payment — the same amount. This approach would lead the government to pay bondholders, social security recipients, Medicare and Medicaid providers, etc. etc. 60% of what they have been promised (they get an IOU for the rest).
A third approach is to pay in order of the recipients' need. Those who want to pay social security recipients first are implicitly adopting the need principle, based on the terrible thought of old people being evicted and eating dog food. The need principle has a lot of appeal, and especially so if we assume everyone will ultimately be paid and the only issue is timing, but it would be very tricky to implement given that decisions would have to be made on a class-by-class basis, not individual-by-individual. Many seniors could make do without social security better than many government contractors or federal employees could live without their checks. And while it might be tempting to think that doctors who care for Medicaid patients are better positioned to wait for their reimbursement than poorer creditors, if those doctors stop caring for Medicaid patients, some of the most vulnerable in the country will suffer substantially as a result.
Yet another approach is to try to pay those with the strongest moral claim to receive money from Uncle Sam first. One might argue that this principle would dictate that soldiers serving in Afghanistan or Iraq get paid first, since they are risking their lives to protect the rest of us. This would be even more difficult to implement than the need principle, however, because it arguably requires the government to try to figure out either with which of our creditors we have negotiated the best "deal" or which of our creditors provide services to the nation based in whole or in part on altruistic motives rather than due to naked self interest.
Ultimately, of course, the payment order will be determined based on a messy combination of some or all of these principles, but debates about (a) which principle(s) should take precedence and (b) what the order of payment should be under each of the various approaches would help to rationalize the decision making process.
July 28, 2011
Utah Trial Court Rejects "Negligent Directions" Claim Against Google
The decision is Rosenberg v. Harwood (Utah Dist. Ct. May 27, 2001); it's two months old, but I just saw it because it was just posted on Westlaw. Here's an excerpt:
Plaintiff Lauren Rosenberg alleges that Defendant Google negligently provided her with walking directions that directed her to cross State Route 224 (SR 224), a rural highway with heavy traffic and no sidewalks, where she was seriously injured after being struck by an automobile that was negligently driven by Defendant Patrick Harwood. Google now brings this motion to dismiss Rosenberg's claims against it, on the ground that the Complaint fails to state a cause of action against Google. For the reasons discussed below, I GRANT the motion to dismiss Rosenberg's claims against Google....
In the negligence context, "[a] duty ... may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." ... To determine whether a duty exists, courts analyze several factors, including "the legal relationship between the parties, the foreseeability of injury, the likelihood of injury, public policy as to which party can best bear the loss occasioned by the injury, and other general policy considerations." Normandeau v. Hanson Equipment, Inc., 2009 UT 44, ¶ 19, 215 P.3d 152. The determination that a "duty does or does not exist is an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection." ...
[1.] With respect to the first Normandeau factor, I conclude that it does not require the imposition of a duty. As a preliminary matter, I note that nothing in the Complaint indicates that there was any contractual or fiduciary relationship between Google and Rosenberg that would give rise to any contractual or fiduciary duties on Google's part. Likewise, the Complaint does not allege that Google "deprived [Rosenberg] of [her] normal opportunities for protection" or that the parties otherwise had a special relationship that would impose on Google a duty to protect Rosenberg from the negligence of a third party like Harwood....
In support of her claim that a duty exists, Rosenberg correctly states that service providers may be liable if they negligently provide services to their customers. However, "[a] relationship that is highly attenuated is less likely to be accompanied by a duty." For example, where a publisher or other information provider publishes information to the general public, courts have regularly held that they owed no duty to the public at large....
[2.] Turning next to the foreseeability of harm, that factor weighs in favor of finding a duty.... Rosenberg claims that her injury was reasonably foreseeable based on the Complaint's allegations that Google directed her to walk along SR 224, a dangerous road that lacks sidewalks and is frequently used by vehicles traveling at a high rate of speed.... These allegations do not necessarily contemplate the "specific mechanism of the harm" that occurred in Rosenberg's case, but the allegations are sufficient to establish that it was foreseeable that Rosenberg would be harmed as a result of following walking directions that led her along a dangerous road.
[3.] With respect to the third Normandeau factor, I conclude Rosenberg's injury was not likely to occur, which weighs against finding a duty on Google's part.... Rosenberg points to nothing in the Complaint that alleges that an accident is more likely along the route in question than any other route. Furthermore, as Google points out, it is unlikely that a pedestrian will be injured while crossing a road, as Rosenberg was here, unless the pedestrian breaches their own duty and disregards the risks to cross the road in front of oncoming traffic. The facts relating to any negligence on Rosenberg's part are not currently before the Court and are not considered in connection with the motion to dismiss, but it is clear that Google was not required to anticipate that a user of the Google Maps service would cross the road without looking for cars.
[4.] Turning to the final Normandeau factor, the policy considerations weigh heavily against a conclusion that Google owed Rosenberg a duty.
Before addressing the specific policy considerations, I first address Google's contention that it is a "publisher," albeit an electronic one, entitled to the protections the law affords the same. [Footnote: Some courts have relied on the First Amendment in reaching that conclusion, holding that an imposition of a duty would violate the First Amendment. See, e.g., Smith v. Linn, 563 A.2d 123, 125 (Pa. Super. Ct. 1989). As stated above, I do not reach the constitutional issue here, but the potential First Amendment concerns remain a valid factor to consider in the Court's analysis of the duty issue. See generally Winter v. G.P. Putnam's Sons, 938 F.2d 1033, 1037 (9th Cir. 1991) ("Were we tempted to create this duty, the gentle tug of the First Amendment and the values embodied therein would remind us of the social costs."); Brandt v. Weather Channel, Inc., 42 F. Supp. 2d 1344, 1346 (S.D. Fl. 1999) (refusing to recognize a duty to provide accurate weather forecasts because doing so would "chill the well established first amendment rights of the broadcasters").] See, e.g., Winter v. G.P. Putnam's Sons, 938 F.2d 1033, 1037 (9th Cir. 1991) (declining to impose a duty on the publisher of a mushroom encyclopedia); First Equity Corp., 670 F. Supp. at 117 (declining to impose a duty on a publisher of corporate reports).
Rosenberg argues that Google is not a publisher because the Google Maps service "provide[s] one-on-one information about walking routes" that is not "published to the general public." To claim that Google provided the information only to one individual, and therefore is not entitled to the protections afforded publishers, ignores the realities of modem society and technology. As Google notes, the Complaint itself states that the information provided on the Google Maps service "is readily available via the internet," and any individual who enters the same starting and ending points will obtain the same walking directions that were provided to Rosenberg. While a user of the service is able to customize the results of his or her search, the exact same information provided to Rosenberg is readily available to any individual who uses the same search terms as Rosenberg, and anyone who obtains those directions is free to disseminate the search terms and directions to others. Given these facts, it is difficult to imagine that information could be disseminated more broadly to the public. Therefore, Google is clearly a publisher because it makes all of the information on the Google Maps service available to the public worldwide, and the fact that a user of the Google Maps service obtains customized search results does not remove the protections afforded to any other publisher of information to the public.
Having established that Google is a publisher, it is apparent that the same policy considerations are present here as those in other cases that have rejected imposing a duty on publishers for providing faulty information. [Footnote: Rosenberg also argues that Google is not only a publisher, but an author, who might enjoy less protection than a publisher because they created the information. However, many of the same policy considerations present in imposing liability on publishers would also be present if liability were imposed on authors, and relying on similar grounds, courts have declined to impose liability on authors as well. See, e.g., Bailey v. Huggins Diagnostic & Rehab. Ctr., Inc., 952 P.2d 768, 773 (Colo. App. 1997).] Chief among those considerations is the possibility that a publisher may be subject to liability to an unlimited number of individuals who may read or receive the information. Likewise, requiring Google to investigate its routes to ensure that every portion of the walking directions is safe would impose an onerous burden on Google. Indeed, as the United States Supreme Court has recognized, some errors are "inevitable" in the publishing business....
When these burdens are weighed against other factors, such as the high social utility of Google's information services and the accompanying First Amendment values, and the slim likelihood of injury, "courts have placed more value on the societal benefits of information availability than on the rights of private persons who claim to have been harmed." I agree that such is the case here, where Google's activities have a high social value and the burdens associated with imposing the broad duties suggested by Rosenberg would be heavy, while the actual likelihood of injury is relatively low. Therefore, under this "basic 'Hand Formula' negligence analysis," I conclude that policy considerations weigh strongly against imposing the duties articulated in the Complaint.
Such a conclusion does not conflict with the notion that, as Rosenberg states, "the public policy behind tort law is to hold tortfeasors accountable for harms occasioned by their fault," and that "between an innocent party and a negligent tortfeasor, public policy requires that any loss should be born by the tortfeasor." To impose the broad duties that Rosenberg suggests would not necessarily serve that end. To the contrary, as discussed above, Utah law already imposes certain duties on pedestrians, including to "yield the right-of-way to all vehicles" when "crossing a roadway at any point other than within a marked crosswalk," and to "maintain reasonable, proper and adequate lookout [,] and .. recurrently reobserve and reappraise the situation," To impose the duties suggested by Rosenberg would reduce, if not eliminate, the duties already imposed on pedestrians. Thus, while imposing a duty on Google would make Google responsible for its own negligent actions, it would serve to diminish the responsibility that pedestrians have for their own safety, which does not serve the goal of making individuals accountable for their own errors.
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