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“First you didn’t want me to get the pony. Now you want me to take it back. Make up your mind!”

[ 4 ] May 27, 2015 |

This attempted Politico hit job on Elizabeth Warren really is something. It would be dumb to attack Warren for participating in a NAFTA tribunal in general; you can be a critic of a system while still participating in it while it exists. (You may some recognize this silly “hypocrisy” charge from such classics as “how can you criticize Citizens United while still trying to raise money?”) But to suggest there’s some kind of hypocrisy for Warren participating in a NAFTA tribunal in order to advance her substantive position that these arbitrators should have less power? Please.

At Least He’s Well-Positioned to Get a Job at Jukt Micronics

[ 52 ] May 26, 2015 |


More than one person in the academic world told me that the “Original Data & Grants” section of LaCour’s curriculum vitae — basically just a longer, academic version of a résumé — is wildly unrealistic. For various institutional reasons, it’s simply difficult for graduate students in political science to rack up all that much grant funding. And yet LaCour lists $793,000 worth of grants received from various foundations, including the Haas and Ford foundations, on the strength of his persuasion research. (LaCour appears to have pulled the CV down from his website sometime over the last few days, but I downloaded a copy before he did.)


The largest of these is a $160,000 grant in 2014 from the Jay and Rose Phillips Family Foundation of Minnesota. But Patrick J. Troska, executive director of the foundation, which is focused on projects that combat discrimination, wrote in an email to Science of Us, “The Foundation did not provide a grant of any size to Mr. LaCour for this research. We did not make a grant of $160,000 to him.”

A political science professor at a large research university told me that the numbers on the CV should have stood out to the many older, more experienced researchers LaCour interacted and worked with during his time as a Ph.D. student.

It does seem odd, in particular, that nobody at UCLA noticed that $800K in grants was resulting in little or no money being spent.

Republicans and Latino Voters

[ 86 ] May 26, 2015 |


Bored journalists desperate to create horse-race stories for the 2016 elections can pretend that Republicans could woo Latinos in sizable numbers. We see stories like this pretty much every cycle (the 2012 Latino vote was a total wild card! OK!!!) And maybe they could except that the primaries are going to be a clown show of nativism and hate, with Republicans who say they support a path to citizenship attacked from the racist right that is the party’s base. Maybe if Rubio or Jeb win the primary, that can be swept under the rug, but the number of extremist quotes coming out of the Republican primaries on immigration are going to be astounding and will provide a lot of fodder for Democrats on both the national and state level.

Of course, if Republicans get their way, treating Latinos as non-persons in politics will be a lot easier, mitigating this problem a bit.

Listicles of Late…

[ 18 ] May 26, 2015 |

Screenshot 2015-05-26 12.05.48I’ve been slow on posting some recent listicles.  Five big procurement decisions the US needs to make within the next decade:

These decisions go beyond questions of military necessity; they require a level of national deliberation that has become sorely lacking. The post-Cold War glow, followed by the desperate efforts to piece together victory in Iraq and Afghanistan, have made long-range procurement planning difficult, and have put off big decisions that need to happen as part of a national conversation, rather than a technocratic debate between the Pentagon and the services.

Here are five of the biggest decisions that the Pentagon, and by extension the nation, faces over the course of the next decade.

See also Five Deadliest Israeli Weapons, and Five Deadliest Russian Air Force weapons.

An (Almost) Accurate History of the ACA

[ 51 ] May 26, 2015 |

Jonathan_Gruber_at_US_House_Oversight_Cmte_in_2014Above: Father, Architect, and Sole Creator of the ACA


A very useful account of the statutory language that launched the lawsuit that is as dangerous as it is silly:

“I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies,” said Olympia J. Snowe, a former Republican senator from Maine who helped write the Finance Committee version of the bill.


The words were written by professional drafters — skilled nonpartisan lawyers — from the office of the Senate legislative counsel, then James W. Fransen. It appears that the four words now being challenged were based on the initial premise and were carelessly left in place as the legislation evolved.

The language of the Finance Committee bill was written largely by Mr. Fransen and a tax expert, Mark J. Mathiesen, while much of the health committee version was written by William R. Baird, a public health expert. The two committees worked on separate tracks.

This is mostly accurate.  However, let me re-write that to clear up some minor errors:

“I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies,” said Jonathan H. Gruber, a former Republican senator from Maine, Senate Majority Leader, Speaker of the House, President, Secretary of Health and Human Services, and 211-game winner who helped write the Finance Committee version of the bill.


The words were written by professional drafters — skilled nonpartisan lawyers — from the office of the Senate legislative counsel, then Jonathan Gruber. It appears that the four words now being challenged were based on the initial premise and were carelessly left in place as the legislation evolved.

The language of the Finance Committee bill was written largely by Mr. Gruber and a tax expert, Jonathan H. Gruber, while much of the health committee version was written by Jonathan H. Gruber, a public health expert. The two committees worked on separate tracks.

These minor corrections aside, I think you can see what the report is driving at.

Oh, and what about the assertion that nobody ever considered the possibility that a state would not set up a health iusurance exchange? Well, funny thing:

But senators and staff lawyers came to believe that some states — “five or 10 at the most” — would choose not to set up exchanges, said Christopher E. Condeluci, who was a staff lawyer for Republicans on the Finance Committee.

Did many members of Congress underestimate the number of states that would establish exchanges? Absolutely! Did they assume that every state would do so? Of course not! It’s unfortunate that Pear once assumed that, but I’m glad that he’s cleared this up. And to state the obvious, Congress did not set up a federal backstop that was designed to fail.


And so we are left with a lawsuit that is likely to gain at least three, and possibly as many as five, votes on the Supreme Court despite the fact that it rests on a history that is almost literally insane. Even those of us who have a low estimation of the intellectual standards of the conservative movement have been astounded by its ability to persuade itself of a historical theory so clearly at odds with reality.

The Separation of Church and State: America and the American Military (Guest Post)

[ 214 ] May 26, 2015 |


DB: In honor of Memorial Day, I offer the observations of my cousin.
The scary part for me, on this Memorial Day, is how separate from the military most Americans are. With such a small percentage of the population serving in the military, people’s every day lives are not impacted. This is not a bad thing; it takes a bit away from someone to see the real horrors of war.

CNN and Fox News do a good job putting out their respective party’$ message. As an adult it amazes me how the same story can be told in two different ways, both of which miss the point.

A case in point would be Operation Jade Helm, a large multi-branch training event that one side thought was training the American Military how to impose martial law in America. This went so far that the governor of Texas activated the Texas National Guard to monitor the exercise to ensure the rights of Texans were not being violated.

Let me just say that again: the Texas National Guard was activated to monitor the entire United States Military. I am sure that the Texas National Guard is well funded. However, imagine a yippee dog fighting Mike Tyson: he might get bitten and despised by the media, but the fight would be brief. Yet, one news organization is reporting that the motivations of Jade Helm are nefarious. The real motivation for having American troops “training on American soil” is clearly either the imposition of martial law, or taking away Texans’ guns. (ed: because Waco, obviously).

I ask you where are we (who are also Americans that signed a blank check to the government payable up to and including our lives) supposed to train? If we go outside of the United States it looks a little bit like we are invading, which doesn’t play well in the news. Meanwhile, the other news source (ed: CNN) is portraying veterans as ticking time bombs just waiting for their PTSD to push them over the edge, or highlighting the mistakes that have been made in a very complex environment.

The American public has become so disconnected with a military that has been going to and coming back from a war zone for over 13 years that they don’t understand why it is not okay to ask if you killed anyone over there. Or even how good it is in America because a third world war zone is no place for anyone. That you have people thanking the troops for their service while at the same time telling them that they don’t support the war. Wonderful, I am glad that I am not being spit on and being called a baby killer like the Vietnam Veterans when they came home. If you don’t support the war you have the power to change it. Tell your Congressional Representative what you need from them, then you have to follow through and not vote for them if they continue to do things you don’t support. Don’t tell the person that probably just got back from a bad place that you don’t think that they were doing any good over there. Because on this MEMORIAL day weekend they are thinking about the friends that they lost, most of them right before their very eyes. You are telling us that those young men died for no purpose. The civilian says thank you for your service and shakes your hand feeling good about themselves. The Soldier, Sailor, Airman, or Marine awkwardly mumbles something along the lines of thank you while returning a hand shake.

Less than one percent serve, and of those most are from a military family. They are stationed in places that mostly military people retire (people stay in places that they are comfortable) so the businesses are generally military serving military. Thus, across America there there are pockets of military but again the general public doesn’t see them. I am interested to see where we as Americans go from here. I do still think that it is good to have the civilian government in control of the military. I can see that it would not be a good idea for the dogs of war to let themselves loose. But maybe not making decisions based on the party’s political agenda or the election cycle would be better.

If you are going to start something be sure that you give a clear path on how to finish it.

Brandon Nall
Former Infantry Captain with the 101st Airborne, United States Army
2 tours in Afghanistan

The collapsing economics of solo legal practice

[ 93 ] May 25, 2015 |


Benjamin Barton, a professor at the University of Tennessee Law School, has generously some shared tax data he’s collected on the earnings of lawyers in private practice. Prof. Barton’s new book, GLASS HALF FULL: THE DECLINE AND REBIRTH OF THE AMERICAN LEGAL PROFESSION will be published next month by Oxford University Press. Here’s OUP’s summary:

The hits keep coming for the American legal profession. Law schools are churning out too many graduates, depressing wages, and constricting the hiring market. Big Law firms are crumbling, as the relentless pursuit of profits corrodes their core business model. Modern technology can now handle routine legal tasks like drafting incorporation papers and wills, reducing the need to hire lawyers; tort reform and other regulations on litigation have had the same effect. As in all areas of today’s economy, there are some big winners; the rest struggle to find work, or decide to leave the field altogether, which leaves fewer options for consumers who cannot afford to pay for Big Law.

It would be easy to look at these enormous challenges and see only a bleak future, but Ben Barton instead sees cause for optimism. Taking the long view, from the legal Wild West of the mid-nineteenth century to the post-lawyer bubble society of the future, he offers a close analysis of the legal market to predict how lawyerly creativity and entrepreneurialism can save the profession. In every seemingly negative development, there is an upside. The trend towards depressed wages and computerized legal work is good for middle class consumers who have not been able to afford a lawyer for years. The surfeit of law school students will correct itself as the law becomes a less attractive and lucrative profession. As Big Law shrinks, so will the pernicious influence of billable hours, which incentivize lawyers to spend as long as possible on every task, rather than seeking efficiency and economy. Lawyers will devote their time to work that is much more challenging and meaningful. None of this will happen without serious upheaval, but all of it will ultimately restore the health of the faltering profession.

I hope to discuss Barton’s data and conclusions in more detail once I’ve had a chance to read the book. Here I’m going to focus on some striking numbers regarding the changing economics of solo legal practice.

Solo legal practice represents a particularly crucial aspect of the economics of the legal profession, because it’s by far the single most common job for lawyers to hold. 75% of all practicing lawyers are in private practice, and half of these people are solo practitioners (the other half is made up of partners and associates in law firms of all sizes, along with lawyers who work for businesses and other non-government entities). This means nearly two out of every five practicing lawyers are solos. (Given this, the fact that almost nobody in legal academia knows anything about solo practice would seem to be suboptimal, at least from the perspective of a professional training school).

Barton’s data reveal that the average (mean) compensation of solo practitioners has declined sharply over the past 25 years:

Earnings of solo practitioners

These numbers are particularly striking when juxtaposed with the change in average (mean) wages of American workers (Note that these figures are for all employees, including part-time workers. They include employer contributions to employee pension plans). This graph represents the percentage relationship between average solo practitioner earnings and the average wages of all American workers:

percent of average salary

Note that these are mean, not median, earnings. Median wages for all US workers (full-time and part-time) in 2013 were about $28,000, and I would expect a similar percentage discount between mean and median solo practitioner earnings, since the most successful solos are among the very highest earning lawyers. This suggests the median solo practitioner is making less than $35,000 per year. Which, given what has happened to the cost of law school over the past 25 years, is another problem:

Public law schoo tuitionPrivate law school tuition

How Much Would You Sacrifice to Win the Game of Thrones?

[ 19 ] May 25, 2015 |

It’s another Monday, so my usual column is up at – this time, I examine the theme of sacrifice, and how far the main contenders in Westeros are willing to go to achieve their ends.

FYI: the podcast will be a bit late this week due to the fact that I’m currently on a train and can’t talk atm, but SEK and I will be recording tomorrow.


Memorial Day Links

[ 137 ] May 25, 2015 |

The Battle for the Soul of the Labour Party

[ 55 ] May 25, 2015 |


The public narrative of the cause for 2015 and the way forward has already been framed by the right wing of the party:

It failed in small-town England but advanced in London and big cities. It continued to lose working-class votes but bolstered its middle-class support. How to weave together a winning electoral coalition out of such fragmentation is far from straightforward. But you’d never know that from the response of Labour’s leadership candidates. Taking their cue  from Blair and a string of former New Labour luminaries, all have fallen in – with more or less enthusiasm – behind a Blairite agenda.

The problem with Ed Miliband’s leadership, they intoned from the start, was that it was “anti-business”, put a “cap on aspiration”, threatened rich people with punitive taxes, and failed to accept that the last Labour government “overspent” in the runup to the crisis of 2007-08.

However, the numbers are not on the side of the “modernisers” (a misnomer, given the modernizers are refighting the battles from 1992-1994).  John Curtice (a well known political scientist in the UK) suggests the problem with 2015 was in part the loss of support on the left:

 Britain’s most respected opinion pollster has warned Labour its chances of winning a majority at the next election verge on the “improbable” and that blaming its defeat on a shift away from Blairism is “wholly inadequate”.

Setting aside his pessimistic assessment for the future as I haven’t had the opportunity to explore those numbers at all (but will not be improved by the near certainty of a boundary review during the current Parliament) I do agree with the suggestion that a shift to the right would not enhance the electability of the party. Anecdotally, campaigning on the doorstep over the past two years, I haven’t once heard somebody tell me what the Labour Party needs is more Blairism. I have heard from many former Labour supporters who lamented that the party “has abandoned people like me”. I’ve also heard a lot of anti-immigrant vile, which as an immigrant myself are always my favorite moments (said without sarcasm) because invariably they don’t include me as a target for their life’s frustrations.

While Curtice focuses solely on the debacle in Scotland, the nearly 1.2 million Green Party voters also need to be included in any assessment:

If Greens had backed Labour in Derby North, Croydon Central, Bury North, Morley and Outwood, Plymouth Sutton and Devonport, Brighton Kemptown, and Telford, it would have been enough to deny David Cameron a majority, and Ed Balls would still be in his job. That’s just 2984 votes that would have needed to change hands.

Plymouth Sutton & Devonport is my constituency.  The Labour Party candidate, Luke Pollard, lost to the incumbent Conservative MP by 523 votes.  The Green Party candidate received 3401 votes.

I’m not arguing that the 2015 loss was the fault of the Greens or the SNP.  I am arguing that the Labour Party needs to make itself a more appealing alternative for those voters, one that combines addressing progressive issues and concerns with the chance of actually forming, you know, a government.

It’s Labour’s fault that many former Labour supporters voted for what they perceived to be a more attractive alternative. Embracing 1994 all over again will not get them back.

Arizona and Higher Ed

[ 59 ] May 25, 2015 |


Terrific article. The grim conclusion about this totally proactive new paradigm:

Ultimately, Arizona shows two ways that universities can respond to government defunding. They can become country clubs, or they can become “knowledge enterprises” that rely on the Internet to deliver education to enormous, geographically diffuse student bodies. Either way, the gap between the type of education available to children from affluent families and that offered to everyone else is going to grow. There was a moment in American history, says Newfield, when “the kind of thing that the Bush family could take for granted at Yale became possible at U. Michigan for somebody whose father was a middle manager.” That moment is over.

[Erik] See also Andrew Hartman’s essay on the Republican war on the humanities.

Open Thread for HBO’s Game of Thrones, Season 5 Episode 7

[ 60 ] May 24, 2015 |

So…after last week’s rather controversial episode, let’s discuss what HBO had in store for us tonight.

As always, beware of spoilers.

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