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The strange career of Elena Kagan

[ 7 ] May 2, 2010 |

In stark contrast to other current and former law professors whose names have been floated recently as SCOTUS candidates, such as Pam Karlan, Harold Koh, and Diane Wood, Elena Kagan has written almost nothing, and what she’s written is both unimpressive on its own terms, and tells us very little about what sort of justice she would be.

As a sociological matter, comparing Kagan and Harriet Miers is, of course, outrageous. After all, Kagan is one of the most brilliant legal minds of her generation. How do we know this? Just ask her friends!

There’s nothing wrong with putting a non-judge on the SCOTUS, but given that such candidates can’t be evaluated on the basis of their work as judges, it’s all the more imperative that their views on both substantive legal issues and general jurisprudential questions need to be a matter of public record. That it’s necessary to even say such a thing is a sign of how bizarre Kagan’s nomination to the Court would be.

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John Calipari asks: Why do all these street agents keep paying my players?

[ 7 ] April 27, 2010 |

As Rob can attest, the poor guy has really bad luck with that stuff.

Now he has to deal with this.

More on America’s flat tax structure

[ 13 ] April 16, 2010 |

Citizens for Tax Justice has a breakdown of the effective tax rate paid by various income groups, taking all federal and state taxes into account. Some highlights:

(1) Outside the poorest 20% (average cash income $12,400) every other subgroup in the survey pays essentially a flat tax. For instance, those averaging 66K a year pay 28.5% of their income in taxes, while those averaging $1.3 million a year pay 30.8%

(2) This means, of course, that the percentage of taxes collected very closely reflects the percentage of income received by each group. For instance the fourth 20% of income earners (60th-79th percentile of income) received 18.9% of the total income of the U.S. population, and paid 18.9% of the total taxes.

(3) The bottom 99% of income earners paid an effective tax rate of 28.2%, in comparison to an overall national tax rate of 28.6%.

(4) If the data had been broken down into smaller increments, we would see that the super-rich actually pay considerably less than the national average effective tax rate. The 400 richest taxpayers in America in 2007 paid 16.7% in federal taxes, as compared to 18.0% for all taxpayers in 2009. In other words at the very top end the system is actually regressive.

Death, Taxes and GOP rhetoric

[ 6 ] April 15, 2010 |

This Arthur Brooks WSJ article illustrates most of the classic tropes of Republican anti-tax rhetoric:

(1) Talk only about federal income taxes, which — subject to a few marginal exceptions such as the currently non-existent estate tax — are the closest thing we have to a progressive tax. The vast majority of taxes people pay are either flat (state, sales, capital gains) or regressive (social security).

(2) Focus on marginal rates rather effective rates. I’m semi-rich, i.e., what the GOP considers “middle class,” and this year my effective tax rate (the actual percentage of my total income I paid in federal income tax) was less than one-third of my marginal rate (the percentage of my income I paid on the last dollar I earned).

(3) Treat taxes as an artificial intrusion on “the market,” which is conceptualized as some kind of natural fact along the lines of the laws of thermodynamics. “If you think spreading money around by force seems like an odd definition of fairness, you’re not alone,” Brooks writes. Taxes, you see, are imposed by the government via the threat of state violence, and are therefore at least implicitly of questionable legitimacy. Meanwhile, employment contracts which pay CEOs salaries equal to the combined income of 500 of their employees are apparently wholly voluntary social arrangements, rather than mechanisms that deploy the threat of state violence, aka “the rule of law,” to avoid not spreading money around “by force.”

This kind of selective blindness allows for statistics such as the claim that “60% of Americans consume more in government services than they pay in taxes.” Such statistics are based on the idea that Bill Gates and a single mother living below the poverty line are consuming precisely the same amount of government services in the form of the existence of courts of law, legislation, police protection, and indeed the entire structure of the contemporary regulatory state. So since Gates isn’t eligible for food stamps, that means he’s consuming less in government services than someone living below the poverty line.

In 2007 — the latest year for which the relevant numbers are available — the 400 richest American taxpayers paid an effective federal income tax rate of 16.6%. Consider that the working poor pay an effective federal tax rate in social security taxes alone nearly equal to that (when the employer contribution is factored in). Really rich people, of course, don’t pay social security taxes in any meaningful economic sense.

Thoughts on Stevens

[ 1 ] April 9, 2010 |

Here.

Security Theater: Denver Edition

[ 3 ] April 8, 2010 |

I’m really looking forward to flying out of Denver later this morning, after last night’s latest outbreak of rampant hysteria and stupidity.

Because this guy is a diplomat he isn’t going to be charged with some bullshit federal offense involving “interfering” with the operation of a flight. Otherwise he’d probably end up with a felony conviction and 50K in legal bills.

Note that a couple of F-16s were scrambled, 160 people were held in custody for five hours after the flight landed, and FBI agents flew in from near and far to deal with this latest assault on our Freedoms. (No doubt part of the explanation for incidents like this is that tens of thousands of federal employees are paid to sit around waiting for something to happen that basically never happens, so false alarms trigger feverish activity out of sheer boredom if nothing else).

Meanwhile in the last five days four people in the Denver area have been killed by RTD bus drivers. The lesson, clearly, is that while we are safer than we were before 9/11, we are not yet safe enough.

How beneficial is breastfeeding?

[ 16 ] April 5, 2010 |

A new study makes some audacious claims about the supposed value of breastfeeding.

Apparently, such claims are both very common and very controversial.

I’m not familiar with the relevant epidemiological literature, but I suspect that debates in this area are influenced heavily by, among other things, the economic interests of formula makers, the cultural politics of motherhood, and plenty of other non-scientific factors.

Purity of Essence

[ 19 ] March 29, 2010 |

Dr. Strangelove

This weekend Glenn Reynolds noted that a “plausible” explanation for Barack Obama’s unwillingness to give the current Israeli government 100% of what it wants (Obama has drawn the line at 98.44%) is that our dusky Muslim overlord “just hates Israel and hates Jews.”

Some rather compelling evidence for this theory can be found here.

Why, after all, would Obama hold the first Seder in White House history? The answer is all too clear to those who, by maintaining a strict regimen of rainwater and pure grain alcohol, have managed to protect the integrity of their precious bodily fluids.

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Judicial Activism, Part MMCCCXXVIII

[ 17 ] March 24, 2010 |

I have a Daily Beast article regarding the recent conversion of so many Federalist Society types to the virtues of aggressive judicial review of legislative enactments.

The HCR bill does put a lot of jurisprudential and political conservatives in a tricky position. Consider the view advocated by Orin Kerr, which is that

(a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

But with all of these caveats, I’ll stand by my prediction. I just don’t see lower courts finding these issues difficult, and I don’t see the Supreme Court likely to take the case. I recognize there’s always the theoretical possibility of the Supreme Court doing something totally unexpected — a Bush v. Gore moment, if you will — but I think the realistic possibility of that happening is less than 1%.

This strikes me as a wild underestimate of the odds, for reasons I touch on in the DB article. What’s interesting to me is whether Kerr thinks the SCOTUS should uphold the individual mandate under these circumstances, and if so why?

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Ask your doctor if moral hazard is right for you

[ 2 ] March 11, 2010 |

This illustrates one of the massive inefficiencies that gets built into our massively inefficient health care system by the invidious relationship that can develop between the interests of Big Pharma and those of advocacy groups pushing for “awareness” of their cause.

About ten years ago I attended an event hosted by a couple of medical academics. It was a concert at a pretty big auditorium in Denver, and the invitees were almost all participants in the academics’ prostate cancer research trials (I was there for other reasons). This was before I had begun to study the pharmaceutical industry’s role in the obesity panic, and I remember thinking at the time, who is paying for all this? (The event was on a scale that must have cost well into six figures). That’s not a question I would ask today.

The federal government is like Schlitz after Schlitz stopped being a good beer

[ 0 ] March 7, 2010 |

This is possibly the worst metaphor in the history of, um, . . . history.

For one thing, putative changes in the perceived legitmacy of a political regime cannot in any way be compared usefully to consumer preferences in regard to beer. For another, Schiltz always sucked. For a third — ah forget it.

OK seriously, this kind of thing is embarrassing to law professors, bloggers, non-arboreal bipeds, both late justices Harlan, and the state of Tennessee.

Ann Althouse defends Rush Limbaugh from accusations of race baiting

[ 0 ] March 6, 2010 |

As Hendrick Hertzberg points out, for people like Althouse the only significant form of racism left in America appears to be the racism of liberals who patronize black people (by electing them president apparently), while falsely accusing conservatives of racism, when they’re the real racists (Harry Reid! The 1964 Civil Rights Act, enacted over the objections of the Democrat Party etc etc).

Hertzberg also points out that he didn’t claim Limbaugh was a racist — only that he used “racist coding.” In any case, what sort of person listens to the audio clip to which Hertzberg links and feels impelled to defend Limbaugh?