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John Doar

[ 14 ] November 14, 2014 |


I’d have to say that someone who was one of the top two people in the Civil Rights Division from 1960-7 (among countless other accomplishments being on the front lines of the integration of Ole Miss and prosecuting the lynchers of Chaney, Schwerner and Goodman) and was chief counsel of the House Judiciary Committee during the Nixon impeachment process lived a life of exceptional accomplishment on the side of the angels.

a great interview with Doar here.

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A Unicorn Industrialist Made Me Gay

[ 81 ] November 13, 2014 |

Origami Isopod wants you to look at these book titles. Not I, I find it entirely unfunny. As you know, I’m not in to this sort of thing, being as mature and dignified as I am.


* A Billionaire Dinosaur Forced me Gay
* Cyclops Forced me Gay
* Forced Gay by Aliens
* Robohound Forced me Gay
* Brachiosaurus Made me Gay
* Dark Pegasus Made me Gay
* Gay Lord of the Orcs
* Bigfoot’s Side Piece
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Listicle of Victory!

[ 41 ] November 13, 2014 |

My take on the five biggest American military victories:

 This article examines five great American victories, spanning from 1780 until 1944. We’re looking for neither technically impressive victories (although most of these are), nor predictable thrashings. With one major exception, these battles did not turn on chance or on the need for remarkable heroism (although such heroism was always present). Instead, these successes came at the end of well-conceived and executed campaigns, designed to integrate the elements of national power into a strategic victory. We’re looking at how the United States built a series of advantages that led inexorably to victory, even if the outcome sometimes remained in doubt until the final play.

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ACA Trooferism: Team Pessimism

[ 99 ] November 13, 2014 |

I regret to say that Rick Hasen, Hank Greely, and Linda Greenhouse all in some measure share my dark view of what the Supreme Court granting cert in King means.

There is simply no way to describe what the court did last Friday as a neutral act. Now that the justices have blown their own cover, I notice the hint of a slightly defensive tone creeping into the commentary of some of those who have been cheering the prospect of rendering the Affordable Care Act unworkable: that as a statutory case, without major constitutional implications, any problems for ordinary Americans that result from a ruling against the government can be fixed by Congress (where House Republicans have voted 50 times to repeal the entire law) or by the states themselves (36 of which failed to set up their own exchanges, thus requiring the federal government to step in as provided by the law).


So this case is rich in almost every possible dimension. Its arrival on the Supreme Court’s docket is also profoundly depressing. In decades of court-watching, I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.

Should the Roberts Court use this case to go even further down the road paved by Bush v. Gore and Shelby County, my suggestion is that Ginsburg, Breyer, Sotomayor and Kagan all file separate dissents quoting the relevant language of the Sebelius dissent. Or, perhaps, in addition to separate arguments a joint dissent consisting of nothing but the quotes…

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The Unbearable Stupidity of #GruberGate

[ 54 ] November 13, 2014 |

As we’ve previously discussed, conservatives have taken time from their busy schedule of constructing asinine legal theories to strip health insurance from millions of people to spend time parsing the obscure comments of President, Speaker of the House, Senate Majority Leader, Secretary of State, Chief Justice of the United States, and longtime don of the Gambino crime family Jonathan Gruber.

I could probably just note that Ron Fournier has boarded this train of derp and drop the mic, but couple of additional points. First of all, Timothy Jost’s comments on the first round of Gruber silliness remain relevant:

The greatest mystery of the media coverage of this litigation is why anyone should care what Jon Gruber might have said two years after the ACA was adopted while completely ignoring what the members of Congress who wrote the legislation have said they meant. Jon Gruber did not write the bill; he did not vote on it. He recognized before his 2012 misstatements that federal exchanges could in fact grant premium tax credits. But, for goodness sake, why should responsible journalists care? Gruber’s misstatements certainly have no more legal relevance than those of any other private citizen.

Gruber’s role in the passage of the ACA has been vastly exaggerated. He was a consultant, providing some expertise to help Congress and the White House do what they wanted to do. And — I stress that I’m not saying this to be critical of Gruber — it’s not as if his core ideas were some unique insight. As ridiculous as the comparison to the Heritage proposal and the ACA is, the mandate is the one thing they have in common. With European style health care reform off the table, and an employer-mandate model poisoned by the Clinton debacle, the ACA was going to take the same fundamental form had Jonathan Gruber never been born. And the specific details of the ACA had much more to do with the idiosyncrasies of marginal Senate votes like Nelson and Lieberman than Gruber.

But, more to the point, Gruber was paid for his (genuine) expertise on health care economics, not his expertise on politics. On the latter, he’s just a guy; his comments carry weight only to the extent that they’re true or relevant, and nothing he says is both. Brian Beutler:

First, Gruber’s actually overstating the degree to which the ACA needed to be finessed in order to pass. It’s true that the bill’s authors took steps to maximize its public appeal and minimize its vulnerabilities. Everyone writing significant legislation does this. The question is always how far you go—what lines are you willing to cross?

Congress did, as Gruber says, construct the mandate as a penalty rather than a tax, to make the bill passable. (Since then the Supreme Court has done us all a favor by reminding us this is a distinction without a difference.) Likewise, the bill’s core benefits only began kicking in this year, in large part because the authors wanted to keep the 10 year cost of the bill under $1 trillion to prevent sticker shock. Gruber didn’t mention that part.

But his suggestion that the key cost-sharing tradeoffs weren’t widely discussed just isn’t true. The idea that healthy people as well as sick people needed to participate in the system was central to the moral argument for the mandate, and figured heavily in the substantive debate over how much more insurers should be able to charge the elderly than the young. The risk-rating tussle is illustrative, because it was the rule, rather than the exception to the long legislative tug-of-war over the broader ACA. Conservatives have always said the health care law wasn’t debated, that it was rammed through, nobody read it, etc, etc. But it actually stands out for how much it was debated, and, for the most part, how transparent that debate was. Which in turn explains how difficult it was to pass.

In contrast, nearly everyone who’s attacking Gruber as if he were a White House political employee or a Democratic senator is simultaneously trying to require the Congressional Budget Office to say that tax cuts pay for themselves. The people who brought you the phony arithmetic of the Bush tax cuts and Medicare Part D and the self-financing Iraq war are upset about the ACA, which is genuinely fiscally sound.

By any reasonable standard, ACA respected budgetary constraints much better than most other laws.

This is all correct. I will add one additional point: Gruber’s comments are self-refuting. It is true that most voters don’t pay a great deal of attention to the details of politics, although it is both wrong and offensive to characterize this as “stupidity.” (One of the many things the debate over the ACA showed us is that even extremely intelligent, accomplished, and well-educated people can have a very shaky grasp of basic facts about the political process.) But given widespread voter ignorance, the idea that minor differences in the rhetoric were crucial to the passage of the ACA is self-evidently false. Even if you assume the false premise that shifts in public opinion translate directly into votes by members of Congress, the majority of the public who can’t name which party controls both house of Congress or name a single Supreme Court justice is not going to change its mind about the ACA based on whether the mandate is described in some speeches as a “penalty” or a “tax,” or because a wonk somewhere explains that insurance means that the healthy pay for the sick.

There’s just nothing here. Gruber doesn’t speak for anybody, and to the extent that his assumptions have any possible relevance they aren’t accurate.

UPDATE: Welcome Patterico readers! To help out your host, who apparently saw “Gruber” and decided to comment without reading the post, allow me to highlight this passage from the OP:

Gruber’s role in the passage of the ACA has been vastly exaggerated. He was a consultant, providing some expertise to help Congress and the White House do what they wanted to do.

He was a consultant who discussed “principles” with the White House and ran some models for Congress. He didn’t draft the legislation, he didn’t draft amendments, he didn’t vote for the legislation, he didn’t implement the legislation, he doesn’t speak for the Democratic Party in any way. See? You’re welcome!

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It’s Baaaaaaack!!!

[ 155 ] November 13, 2014 |


What does Republican control of both houses of Congress mean? Many things of course. But one of them might be yet another push to open the Yucca Mountain nuclear storage facility in Nevada. And really, what could go wrong?

The key design element in question is something the Energy Department calls a “drip shield.” This is a kind of massive, corrosion-resistant titanium alloy mailbox that is supposed to sit over each of the thousands of waste canisters in Yucca Mountain’s underground tunnels. In NRC’s definition, it is designed “to prevent seepage water from directly dripping onto the waste package outer surface.”

The name drip shield itself is a giveaway that there is a water problem at Yucca Mountain. There is indeed a lot more water, and it is flowing faster, than the Energy Department imagined when it picked the site, which is why it added the drip shield to the original design. Without the titanium shields, dripping water would corrode the waste canisters placed in the repository and release radioactive waste, and the moving underground water would carry it to the nearby environment. Using the corrosion data in the Energy Department’s license application, one can calculate that this corrosion would take not the “million years” cited by Mr. Shimkus, but about 1,000 years.

Although the Energy Department has included the drip shields as part of the repository design, and NRC has accepted them for license-review purposes, the Energy Department doesn’t actually plan to install the shields until at least 100 years after the waste goes in. Presumably, this delay is based on financial considerations; installing the shields early in the project would add hugely to the repository’s cost and thus threaten its funding prospects in Congress. If you look more closely into the situation, you can’t escape the conclusion that it is highly implausible that the drip shields will ever be installed. In fact, as a practical matter, it may not even be physically possible to install them.

A 100 year delay? Well, what harm is there in that? Surely on top of everything else, the geopolitical situation will be precisely as stable as today, if not more so! Still…

According to Energy Department’s plan, after the radioactive waste canisters are placed in the repository tunnels, the site would receive minimal attention for many decades. After a hundred years or so, before the repository was permanently closed, the Energy Department would install the protective drip shields. So it says. Because of the radioactive underground environment, it would take highly specialized robotic equipment to install the shields with the required precision. None of this equipment has been designed, or even thought through.

Realistically, a century into the project, the underground tunnels would have deteriorated considerably and collapsed in part. Dust would sharply limit visibility. The tunnels would have to be cleared of rubble for a remotely operated underground rail system to transport robotic equipment and the five-ton drip shields to the waste canisters. The shields would then have to be installed end-to-end, so as to form a continuous metal cover inside the tunnels, obviously a delicate, complex, and extremely expensive operation. Is it reasonable to believe that after 100 years, with the nuclear waste in the repository long out of the public mind, that Congress would appropriate enormous sums of money for the Energy Department to go back into the tunnels to install the shields? Can we really rely on an agency that hasn’t yet cleaned up a nationwide radioactive mess that dates from World War II to keep a promise that it will do something a century into the future? Will there even be an Energy Department in 100 years?

This is one of many reasons why there is no room for nuclear energy in our future. As Alan Weisman discusses, building nuclear power plants assumes a forever of continued electrical production because if that power goes out long enough for the backup generators to run out, every single nuclear power plant in the world turns into a situation worse than Chernobyl. Then there is the storage issue that the U.S. certainly has never dealt with, as we see with the Yucca Mountain problems. Nuclear power is a bad idea.

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[ 169 ] November 13, 2014 |

Well, this is hell of a thing.

“I read it with mounting uneasiness,” Asimov wrote the next year. “I kept waiting for something to happen, and nothing ever did. All three volumes, all the nearly quarter of a million words, consisted of thoughts and of conversation. No action. No physical suspense.”

Asimov’s self-deprecating description of his own series sounds as inviting as a synopsis of Season 1 of The Leftovers. And soon, it might be available for the same subscription price: According to a report at The Wrap earlier this week, Jonathan Nolan (brother of Christopher, and cowriter ofInterstellar) is writing and producing an HBO/Warner Bros. TV series based on The Foundation Trilogy.1

I wonder if we can avoid Ben Kingsley as Hari Seldon? And let me be the first to put in a vote for Robin Lord Taylor as the Mule.

There’s nothing I’d like better than a well-executed television version of the Foundation trilogy (we’ll set aside, for the moment, the prequels and sequels).  And there’s no one more capable of doing this well than HBO.  But having read the entire trilogy a dozen times, I struggle to come up with the names of more than a handful of characters, most of whom don’t appear until the Mule cycle of stories.  It’s going to be tough.

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Racial Gerrymandering and the Courts

[ 25 ] November 13, 2014 |

I have some thoughts about yesterday’s oral arguments and the increasingly broken Democratic system.  The fact that the Democrats would have to have a 7-point edge in the popular vote to win the House is a serious problem, but the tragedy of vote suppression and dilution is that they’re a very effective self-perpetuating cycle.

Speaking of which, I would like to nominate Felix Frankfurter’s majority opinion in Colegrove v. Green for the inner circle of the specious argument hall of fame.  “We must defer to the democratic legislatures (sic) so that voters disenfranchised by malapportionment can petition their representatives for redress.”

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Further thoughts on tenure

[ 59 ] November 13, 2014 |

Yesterday I posted an interview with Kyle Graham, a Santa Clara law professor who has decided to forgo the tenure process, and instead remain on the faculty without the protections and privileges tenure affords. Graham’s reasons for doing so are interestingly idiosyncratic: basically, he thinks that there’s too much of a risk that tenure protections will cause him to become bad at his job.

I didn’t want to complicate that post with my own thoughts on his reasons, but the comments thread raised a number of noteworthy issues:

(1) Is Graham’s position undermining his colleagues, either at SCU or more broadly, by signaling to the administrative class that tenure is unnecessary? I agree, I think, with commenter Gregor Sansa’s view:

This guy’s choice can be criticized in a lot of ways. But it’s also true that we’re not him. Maybe he knows something about himself that we don’t, and he really would turn into “that guy” if he got tenure. In the end, stupid or not, it’s his choice to make, and I don’t think trying to shame him with talk of indirect solidarity is really fair.

(If he were crossing some metaphorical picket line, that would be a different story. But nobody is offering him extra salary to forgo tenure so that they can undermine the system. His choice is and will remain an aberration.)

(2) How much of a problem is “that guy” — the person who abuses the privileges of tenure — anyway? Surely the answer to this is inevitably going to vary enormously across institutions. It’s true that horror stories about lazy and/or incompetent professors are a favorite anecdotal device of (generally right-wing) critics of American academia — and perhaps in other countries as well — and that anecdotes aren’t data. But it’s also true that the stronger protections are against firing without just cause, the greater the costs of firing people for cause necessarily become, which in turn means that at some point some people who should be fired won’t be. In my view it’s better to acknowledge this as a cost of tenure, although one that can perhaps be minimized in various ways, rather than to deny that tenure protections have perverse effects on some people.

(3) The best defense of tenure is that it allows valuable work to be done that would otherwise not be done, or not be done as well, and that the benefits of this justify the (real) costs of the system. I’m not the person to judge the value of the academic and popular writing that I’ve done on the dysfunctions of contemporary American legal education, but I could not have done this work without the protections of tenure. While in some ways Graham’s decision to spur his future self to better performance by forgoing tenure protections seems to me admirable, in other ways it strikes me as a remarkably naive attitude toward the realities of employer-employee relations, both in the contemporary American university, and more generally.

(4) Yesterday, while reading a draft of a very interesting paper by a labor historian regarding ways in which Title VII of the Civil Rights Act may have undermined labor solidarity in the USA, I was reminded of the extent to which, in my experience, professional class people in this country don’t appreciate what at-will employment actually means, either as formal legal concept, or a practical economic and political reality. Again and again, I’ve encountered the vague belief among highly educated people that your employer can only fire you for “good reasons,” even though for the vast majority of American workers, even in the professional classes, this isn’t true. While I’m fairly sure that Graham himself isn’t laboring under this misapprehension (surely as a lawyer who has considered his formal legal options he knows what his current employment rights do and don’t entail) his apparent belief that, whatever his formal legal rights may or may not be, he won’t be fired by his employer as long as he’s doing a good job, is perhaps in its own idiosyncratic way a bit of evidence that Econ 101 models regarding “efficient behavior” by employers are taken too literally by people who should know better.

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Delinquent Coal Owners

[ 27 ] November 13, 2014 |


The coal industry has never cared about keeping workers alive. It still doesn’t. And even when the companies are fined for their horrible workplace safety, some just refuse to pay, as this excellent NPR piece shows. In 2014, the regulatory system is too weak to do anything about that. This just gives mine operators more incentives to ignore these problems and let workers die. Congress could strengthen the regulatory laws to provide real punishment for these companies. But there’s no way Republicans are going to do that. Because they don’t care about dead workers.

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Creating Safe Spaces for Straight White Men

[ 69 ] November 13, 2014 |

#GamerGate continues to attract the internet’s best and brightest. Walking colostomy bag and rapist, Roosh, has created a safe space for straight, white, male gamers. But it’s not all bad news…because “attractive” women and homosexuals are welcome to comment on articles (presumably they may not write them…because, seriously, who gives a shit what bitches and homos have to say about stuff?)

Our goal is simple: create a safe space for heterosexual males who play video games. We won’t exclude homosexuals or attractive women from commenting on our articles, and we sincerely hope they find value in what we have to say, but understand that this site will be written by male gamers for male gamers.

I think this site is destined to be the best thing on the internet if only because the screening process for admitting homosexuals and attractive women is probably gonna be really interesting and fun. 

Also, I’d just like to note the obvious: that–as someone with severe impulse control problems–I have not and imagine will not live up to my calls to ignore #GamerGate. I mean, I’m starting to wean myself off, but watching this car wreck has been as addicting as any drug.

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Against the NCAA

[ 12 ] November 13, 2014 |

Kareem is making sense:

Management argues that student-athletes receive academic scholarships and special training worth about $125,000. While that seems like generous compensation, it comes with some serious restrictions:

  • College athletes on scholarship are not allowed to earn money beyond the scholarship. Yet students on academic scholarships are allowed to earn extra money.
  • The NCAA allows the scholarship money to be applied only toward tuition, room and board, and required books. On average, this is about $3,200 short of what the student need.
  • Academic scholarships provide for school supplies, transportation, and entertainment. Athletic scholarships do not.
  • Athletic scholarships can be taken away if the player is injured and can’t contribute to the team anymore. He or she risks this possibility every game.
  • The injustice worsens when we realize that the millionaire coaches are allowed to go out and earn extra money outside their contracts. Many do, acquiring hundreds of thousands of dollars a year beyond their already enormous salaries.

In this light, not only is the compensation inadequate to the effort and risk compared to academic scholarships, but there is a real chance that players may end up without an education, yet deeply in debt. Players who are seriously injured could technically make use of the NCAA’s catastrophic injury relief. This sounds fair and compassionate, except the policy doesn’t apply unless the medical expenses exceed $90,000 — which most claims don’t. If the student’s medical bills are $80,000, they’re on the hook for it themselves.

But, really, read the whole thing.

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