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"Heh. He Said Beaver."

[ 0 ] March 5, 2009 |

In re: MoDo, what Chait and Yglesias and Benen said. In criticizing Dowd for focusing almost entirely on inane personal trivia larded with her bizarre gender obsessions, I might have implied that she should write more about politics and policy. This, however, would be misleading. This would be a bad idea, because of course she doesn’t know anything about politics and policy, so it’s not as if the few columns she writes that are nominally about these things are any less vacuous. Rather, the question is why the Times has chosen to use Dowd to fill a position that should be occupied by someone who has some idea what they’re talking about about something.

Icelandic sagas

[ 0 ] March 5, 2009 |

Michael Lewis has a fascinating and horrifying piece in the current Vanity Fair on how Iceland went bankrupt.

A handful of guys in Iceland, who had no experience of finance, were taking out tens of billions of dollars in short-term loans from abroad. They were then re-lending this money to themselves and their friends to buy assets—the banks, soccer teams, etc. Since the entire world’s assets were rising—thanks in part to people like these Icelandic lunatics paying crazy prices for them—they appeared to be making money. Yet another hedge-fund manager explained Icelandic banking to me this way: You have a dog, and I have a cat. We agree that they are each worth a billion dollars. You sell me the dog for a billion, and I sell you the cat for a billion. Now we are no longer pet owners, but Icelandic banks, with a billion dollars in new assets.

Naturally they learned these techniques from American investment bankers.

The Curious Letter to Medvedev

[ 0 ] March 4, 2009 |

I have an op-ed up at Comment is Free:

Were Obama serious about exchanging missile defence for Russia’s assistance to Iran, he wouldn’t have been hinting at the elimination of the programme for the last several months. Rather, he’d be trying to convince the Russians that he actually valued missile defence.

Pleasant Surprises

[ 1 ] March 4, 2009 |

Diana Levine, a professional musician, developed gangrene after taking Phenergan through a direct injection and had her arm amputated below the elbow. A jury in Vermont held that the drug’s manufacturer had failed to provide sufficient warning about the risks inherent in injecting the drug. The company appealed, arguing that because the drug and label were FDA-approved, the suit was “pre-empted” by federal law. I fully expected the Supreme Court to side with the manufacturer.

Happily, I was mistaken. The Court today held 6-3 that no federal law pre-empted the Vermont civil verdict. Stevens’s majority opinion didn’t deny that the federal government could pre-empt such suits, but held that there was not, in fact, any federal pre-emption:

In short, Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling. Congress has repeatedly declined to pre-empt state law, and the FDA’s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight. Although we recognize that some state-law claims might well frustrate the achievement of congressional objectives, this is not such a case.

Chamber of Commerce favorite Stephen Breyer concurred to express his disdain for torts but agreed that there was no pre-emption in this case. The surprise vote in favor of Levine came from the Court’s most principled conservative, Clarence Thomas, who argued for a revision of federal pre-emption doctrine that would narrow federal power. Inevitable vote for the business interest Sam Alito wrote the dissent, joined by Roberts and Scalia.

Poles Flexible on Missile Defense

[ 0 ] March 4, 2009 |

Part of the Bush administration’s strategy for “locking in” missile defense in case of a Democratic presidential victory was to conclude agreements with Poland and the Czech Republic that would be difficult for the Democratic victor to break. The thinking went that while Obama might be skeptical of missile defense, he probably wouldn’t jeopardize the US relationship with Poland in order to kill it. This, along with the War over South Ossetia, was why negotiations over missile defense seemed so frantic over the last six months of Bush’s term.

Part of Bush’s problem, however, was that Poland and the Czech Republic are, by and large, utterly indifferent to the threat of Iranian missiles. This indifference is part of the altogether sensible European belief that the Iran isn’t crazy enough to launch missiles at Europe. What Poland and the Czech Republic really wanted, especially in the wake of the South Ossetia War, was a concrete indication that the US is committed to their security. The Poles have some concern that NATO, dependent as it is on the West Europeans, will not suffice to protect them from Russian belligerence. A separate bilateral commitment from the US, in the form of missile defense installations, was a goal of Polish foreign policy, and the desire for such a commitment in some sense guided the Polish decision to deploy troops to Iraq.

Now that President Obama is actively considering dumping missile defense (possibly as part of a larger agreement with Russia), the Poles are making their interests clear:

Poland is looking beyond a missile- defense system that President Barack Obama might scrap and is focused on other elements of a security deal with the U.S. while mending ties with Russia, the top Polish diplomat said.

Foreign Minister Radoslaw Sikorskisaid his country is most interested in U.S. pledges in the agreement he signed last year in the face of Russian opposition, including an American garrison with Patriot interceptor missiles. The two sides also agreed to act jointly on military and non-military threats.

In other words, the Bush administration’s strategy, which was largely based on the idea that our European allies would desert us if we displayed weakness in front of the Russians (an oldie but a goody) has essentially failed; Poland knows what it wants, and will probably get what it wants even if the US forgoes the missile defense system. Whether or not Russia decides to play ball on Iran, I consider this last eventuality extremely likely.

H/t Josh Keating.

Cross-posted to TAPPED.

Again With the Standing Dodge

[ 0 ] March 4, 2009 |

It probably would not shock you to know that under the Bush administration the Forest Service sold timber for logging without the legally required notice, comment and appeal provisions because of a recent regulations declining to apply these requirements to smaller parcels of land. The government settled a suit brought by several environmental organizations, but seeing that these regulations could be re-applied in the future, the Ninth Circuit held that these regulations were illegal.

This being an environmental case, however, on Tuesday a 5-4 majority on the Supreme Court overruled the 9CA, holding that the groups did not have standing to challenge the legality of the regulations. Given the apparent long-standing “principle” of the Court’s conservatives that in marginal cases standing will be determined by whether or not granting standing will lead to results on the merits that the court’s conservatives will like, this outcome cannot be considered surprising. As Breyer argues in dissent, however, it’s difficult to defend:

These allegations and affidavits more than adequately show a “realistic threat” of injury to plaintiffs brought about by reoccurrence of the challenged conduct—conduct that the Forest Service thinks lawful and admits will reoccur. Many years ago the Ninth Circuit warned that a court should not “be blind to what must be necessarily known to every intelligent person.” Applying that standard, I would find standing here.

Hopefully, the Obama administration will address the immediate problem by acting to repeal the illegal regulation.

[X-Posted at TAPPED.]

The Two Myths of Marbury

[ 4 ] March 4, 2009 |

This interesting-looking (well, to me) Slate book club reminds me that I just read another recent book about Marbury that attempts to at least partially debunk the decision that Sloan apparently puts on a pedestal. I think at this point it’s worth distinguishing between two branches of of Marbury revisionism. The first attempts to attack the legal underpinnings of the decision (Marshall’s craftsmanship, ethics in taking the case, etc.) For reasons that I will become evident, I’m not really interested in this question.

The second branch of revisionism holds that the effects of Marbury have been greatly overstated, and that it did not “establish” judicial review in any meaningful sense. This branch of revisionism — advanced by scholars such as Mark Graber and Sandy Levinson — I agree with 100%. Marbury was a case of minor significance. Marshall made some unoriginal arguments in favor of judicial review, held that a relatively trivial clause in a federal statute was unconstitutional, and completely capitulated to Jefferson in resolving the case (as he would do consistently throughout his tenure.) To put it in Graber’s terms, judicial review of any political consequence requires a number of elements: judges, jurisdiction, litigants, authority, capacity, independence, and compliance. Some of these were established by the Constitution, more were established (or sometimes given) by elected officials. None were established by Marbury. Moreover, Marbury was rarely cited by the Court until judicial review was already well-established, and for the remainder of Marshall’s tenure he never issued an important ruling whose outcome was inconsistent with the preferences of ruling political elites, even if he had to make implausible legal arguments to do so.

Goldstone, however, is a revisionist only in the first sense; he is critical of the opinion and is skeptical about whether judicial review can be justified but seems to uncritically accept the received notion that Marshall single-handedly established the “awesome” power of judicial review. And, of course, if you don’t accept this assumption the question of whether Marshall’s reasoning is correct ceases to become very interesting, although some of Goldstone’s history is worth reading. What’s odd about Goldstone’s book is that he looks carefully at the surrounding cases, without seeming to notice how flatly they contradict the notion that Marbury “established” judicial review. Like most, he understands Marbury as essentially a capitulation to Jefferson, but he also discusses numerous other examples: most importantly, Stuart v. Laird, the case decided immediately after the alleged fountainhead of American judicial review in which the Marshall Court rolled over and accepted the repeal of the Judicary Act of 1801, which — because it abolished federal circuit courts — the justices all quite plausibly thought was unconstitutional.

Goldstone’s book is valuable to the extent that explores many underdiscussed cases in which the Marshall Court let the Jeffersonians have their way to save face. But so strong is the myth of Marbury that he never stops to consider about what these other cases say about the actual impact of this alleged landmark, or about how “awesome” a power that requires the ongoing support of the other, stronger branches to be relevant is.

The Heir to My Vast Misfortune

[ 0 ] March 4, 2009 |

Named for the grandfathers he’ll never have the good fortune to meet, John Galt Orrin Corliss Hayes Noon was born this morning at 4:06 a.m. He weighed in at 8 lb., 1 oz., and seems to be in fantastic health. Baby and father were both quite exhausted by the ordeal. The mother also appears to be strangely fatigued and uncomfortable.

So far, the child’s achievements have been mixed. He seems to have discovered an efficient means of acquiring food, yet he appears unable to comprehend simple questions from his two-year-old sister, including “Hey, what are you doing?” or “Would you pull my nose?” All of which means he’d be uniquely suited to cover the tax beat for ABC News if the opportunity presented itself for some reason.


[ 0 ] March 3, 2009 |

Tim Duy:

For Bernanke and Geithner, there are no bad assets. Only misunderstood assets.


The saddest part of policymakers who cling to the notion of intrinsic housing values is that economists long ago rejected the notion that such prices existed when they rejected the labor theory of value. Is Bernanke a monetarist, neoclassicalist, or a Marxist? Value is determined by a constellation of social conventions at some point in time. If the social convention is that financing is limited by ability to repay, then cash flow (largely income), not asset appreciation, is the appropriate metric for valuing houses.

There’s something about housing that makes people believe very, very strange things about economics.

[Via the Sultan of Shrill.]

…In fairness, as noted in comments below, the labor theory of value also seems to be making a big comeback among online conservertarians.

Working hard or hardly working?

[ 0 ] March 3, 2009 |

One of my favorite bits of right-wing nonsense is the meme being replicated on the internets by Glenn Reynolds et. al. this morning about how the problem with taxing high income earners is that they won’t “work hard” if they have to give more of their money to shiftless people who don’t “work hard” (i.e., lower income earners being supported by government handouts in the form of income tax wealth redistribution).

Dr. Sharon Poczatek, who runs her own dental practice in Boulder, Colo., said
that she too is trying to figure out ways to get out of paying the taxes
proposed in Obama’s plan.“I’ve put thought into how to get under $250,000,”
said Poczatek. “It would mean working fewer days which means having fewer employees, seeing fewer patients and taking time off.”“Generally it means being less productive,” she said.“The motivation for a lot of people like me
– dentists, entrepreneurs, lawyers – is that the more you work the more money
you make,” said Poczatek. “But if I’m going to be working just to give it back to the government — it’s de-motivating and demoralizing.”

I rarely see the logic of this argument challenged, despite its evident absurdity. The logic runs like this:

(a) “Working hard” means performing labor that is motivated solely by the need/desire to make money.

Note that in this sense of hard work, people who enjoy their work so much that they would do it anyway even if they were independently wealthy aren’t “working” at all. More generally, the only thing that counts as “hard work” are those aspects of your job that you dislike so much that you would never do them unless you were paid to. Obviously this describes at least some portion of almost everyone’s job, but the extent of that portion will vary widely, depending on the job.

(b) Personal income levels are excellent proxies for measuring the extent to which people are “working hard” in this sense of hard work.

In other words, our society on average consists of people who “work hard” who make lots of money and people who don’t. Higher marginal taxes on high earners thus have a net effect of moving wealth from relatively hard working people to relatively lazy people.

I’m sort of tempted to ask Professor Reynolds if this seems plausible to him. Does it seem plausible to him — a law professor who is probably paid around 200K a year by the great state of Tennessee to do whatever it is he does while performing what is technically his actual job — that he is “working” five times “harder” (using Wingnuttia’s definition of “hard work”) than a guy roofing houses in San Antonio in July who makes 40K a year?

If you think about it for five seconds it’s actually totally implausible that the correlation between “hard work” in this sense and increasing income is even mildly positive. To believe it is, you have to believe that highly paid high status professionals hate their work far more than working class people who are doing dangerous, physically taxing, and/or extremely boring work for low pay.

All of which is to say that the idea that the rich are rich because they “work hard” and the poor are poor because they don’t is too idiotic for words. It is, however, perhaps the prime article of faith of contemporary GOP ideology.

Update: I think it’s important to emphasize that the meme here — people who make a lot of money work hard, and their taxes go to those who don’t — exists quite independent of sophisticated claims about the possible effects of increases in the highest marginal tax rate on productivity. Those subtle arguments have nothing to do with the cultural work that’s performed by stuff like Reynolds’ commentary and the reader responses he posts. That’s all about reinforcing extremely simplistic narratives about hard work being rewarded by “the market,” and progressive taxes being a poison that undermines social virtue. Of course it’s possible to translate the idiot dentist’s comments into something that might sort of make sense under certain circumstances, but that’s not what these arguments are about. They’re about reinforcing the narrative that the rich are virtuous, the poor aren’t, and the government is simply stealing when it engages in progressive taxation (of course the U.S. tax system as a whole is barely progressive but that’s just another detail that gets ignored in these contexts).

Going John Galt!

[ 0 ] March 3, 2009 |

Classic. I especially like the one where it entails going on Medicare. Next: “Oh, I’ll take your money, but I’m not going to plow your driveway!”

Dubious Soldiers In A Good Cause

[ 0 ] March 3, 2009 |

While as most if you know I certainly agree with David RePass’s general hostility to the filibuster, some of his specific arguments here are problematic. His conclusion — that the solution to the problem of adding yet another onerous supermajority requirement to a constitutional order that already has too many veto points is to force “real” filibusters — is one you see a lot. And maybe it’s right, although I think this is a lot less clear-cut. Filibusters have become informal because they entail real costs to the majority as well, as the Senate can’t do anything while they’re ongoing. And while such arguments simply assume that the filibustering minority would at least take the political hit for this, it ain’t necessarily so. It comes down to competing narratives, and while most of the media might blame minority obstructionism they might also blame the majority for not playing nice enough with the Wanker Caucus. Maybe it’s a strategy that’s worth trying, but it’s no panacea, and could backfire.

This argument, though, I really don’t buy:

The phantom filibuster is clearly unconstitutional. The founders required a supermajority in only five situations: veto overrides and votes on treaties, constitutional amendments, convictions of impeached officials and expulsions of members of the House or Senate. The Constitution certainly does not call for a supermajority before debate on any controversial measure can begin.

This claim is, quite frankly, nonsense, just as it was when Republicans were making it before 2006. While it’s true that the Constitution does not require a supermajority for legislation to proceed in the Senate, it alas also explicitly gives the Senate plenary power over most of its rules and procedures, which doesn’t preclude any kind of supermajority requirement to end debates (whether formal or informal.) It debases constitutional arguments to make claims about “clear” unconstitutionality that are so poorly grounded. The better approach is just to approach the filibuster head-on: it’s a bad rule that imposes real costs while providing virtually no benefits in practice, and it should be changed. But not every bad rule is unconstitutional.