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Yes, Supreme Court Justices Vote Strategically, And No, There’s Nothing Wrong With That

[ 102 ] March 19, 2014 |

This thread had a discussion of the the Supreme Court damaging the Medicaid funding mechanism in Sebelius,leaving to the inevitable argument that it was a 7-2 vote and hence Both Sides Do It and so on. My position continues to be that had Breyer or Kagan been the median vote on the Supreme Court there’s a roughly 100% chance that the Medicaid expansion would have been untouched. Equally inevitably, this leads to people expressing shock at the very idea that a Supreme Court justice’s vote could ever represent something other than their sincere, optimal preference. It’s sort of like the argument that if Obama puts Chained CPI in his budget with conditions that make it unpassable or a Republican proposes health care reform that will vanish the second a Republican takes the White House, we have no choice but to assume that this reflects their sincere preferences. Only in the case of elected politicians, this argument is virtually always being made in bad faith; nobody really believes it (almost everybody who assumed that Chained CPI in his budget reflected Obama’s passionate commitment to killing Social Security also assumes that Obama spent most of his first term secretly stopping Congress from adopting legislation he publicly supported.) When it comes to the Supreme Court, though, I think many people really do have a weirdly naive belief that justices rarely do and never should vote strategically. So let’s explain again why this assumption is transparently wrong empirically and unpersuasive normatively.

The political science literature is unambiguous in demonstrating the ubiquity of strategic voting. Epstein and Knight is a superb primer, although nonspecialists may want to start with Walter Murphy’s Elements of Judicial Strategy; the future bestselling novelist wrote very well and it’s an extremely smart and elegantly argued text. In addition to the examples in the first link, there’s an excellent recent example: Northwest Austin. John Roberts’s faux outrage notwithstanding, it should have been obvious what was going on in Northwest Austin at the time: Ginsburg, Breyer, Souter and Stevens joined the Court’s opinion not because they were persuaded by Roberts’s bare assertion that the Constitution protects an extratextual Equal Sovereign Dignitude of the states, but because they preferred an epically specious opinion upholding the Voting Rights Act to an epically specious opinion that went ahead and gutted it, and if they didn’t provide Roberts with the appearance of consensus they substantially risked the latter in 2009. Unless you think that Ginsburg and Breyer radically revised their views in the intervening four years, the former’s dissent in Shelby County settles the question. But Ginsburg and Breyer weren’t lying or acting in bad faith in Northwest Austin (although their strategic judgment might have been wrong); voting for the viable position closest to your own is a perfectly ordinary and defensible practice.  What matters is that the Voting Rights Act survives, perhaps until there can be a different median vote on the Court.  Getting the satisfaction of having spoken your mind isn’t much consolation to everyone whose vote would be suppressed.

Indeed, you don’t really need a lot of legal scholars digging through old conference votes and memos or using fancy game theory to see that strategic voting is inevitable in any court where five votes are necessary to get a majority. Just compare, say, a typical Thomas solo dissent with a typical Thomas majority opinion; the latter will be as a rule much blander and less idiosyncratic, because they have to represent what’s minimally acceptable to every member of the majority coalition. We know Brennan wrote an opinion subjecting gender classifications to intermediate scrutiny (which could command a majority) although his preferred position was strict scrutiny (which couldn’t) because we have the relevant memos, but it should be obvious that this kind of thing is going to happen all the time.

Which brings us back to Sebelius. On the Medicaid expansion, there were three options on the table:

  • (ArtI) The Spending Clause in Article I means what it says.  There is no precedent for striking down an exercise of conditional federal grants given to states, and this modification to Medicaid is no less constitutional than any of the previous 50 or so.
  • (.5NeoCon) The half-neoconfederate: Congress cannot make Medicaid funding contingent on the accepting the new expansion, even though it would be unquestionably constitutional for Congress to create the new Medicaid from scratch on one hand or to repeal it entirely on the other, because…look, John Calhoun!  Equal Sovereign Dignitude! The Cornhusker Kickback!  Congress, however, can offer the new money as long as it doesn’t threaten to withhold the old money.
  • (NeoCon) The full neoconfederate: All of the illogical states’ “rights” gibberish of .5NeoCon, only the expansion is struck down entirely.

Everything about Breyer’s history suggests that his ideal preference ordering is ArtI>.5NeoCon>NeoCon.  If you can name one Supreme Court justice in history with a broader conception of federal authority, that’s one more than me.  With Kagan, we have less history to go on, but she’s a typical Democratic nominee and that means that any preference ordering but ArtI>.5NeoCon>NeoCon would be enormously unusual.  (Members of team Democrat potentially disagree about many issues, but national power isn’t one of them in 2014.)  The oral arguments confirmed this, with both Breyer and Kagan expressing notable hostility to the neoconfederate spending power arguments (not surprisingly, since they were an afterthought even to most people who took the argument that the mandate was unconstitutional seriously.)  Taken literally, however, their votes would indicate a preference ordering of .5NeoCon>ArtI>NecCon.  Did Breyer radically revise his views? Was Kagan a disastrous pick after all?

Almost certainly not.  The only two relevant options — the only positions with a chance of getting 5 votes — were .5NeoCon and NeoCon.  Particularly in a context in which Roberts initially voted to strike down the ACA in its entirety, by far the most plausible explanation is that Breyer (who, you’ll remember, was part of a doomed effort to salvage the Florida recounts by trying to form a consensus on 14th Amendment violations with an actual remedy) and Kagan wanted to add their superfluous votes to ensure Roberts wouldn’t move from the .5NeoCon to the NeoCon camp.   Can I prove to an absolute certainty that Breyer hasn’t radically changed the views he’s consistently held for decades and won’t suddenly start casting votes placing arbitrary limits on the congressional spending power?  No, but the overwhelming likelihood is that his vote was anomalous.  And, certainly, the only thing we can safely infer from the Breyer and Kagan votes is that they preferred .5NeoCon to NeoCon.

The Underemployed Generation

[ 92 ] March 19, 2014 |

Andrew Sum, et al have a powerful report on the underemployed generation that is today’s youth. Here’s the whole report in PDF form.

For young people with low levels of education, the employment situation is bad indeed and they have little hope of significant improvement going forward. It’s not that they can find no work necessarily, but it is a generation of underemployed people working low-wage jobs:

This report shows that America’s youth have faced a much more difficult time finding jobs throughout the 2000’s than official unemployment rates have indicated. In 2011, 43 percent of teens and 30 percent of young adults were struggling to find their place in the labor market, while the official unemployment rates were much lower at 25 percent and 15 percent respectively for these groups.

Here’s their fact sheet:

Employment rates showed a ‘Great Age Twist’ between 2000 and 2011. Individuals under age 54 were less likely to be working in 2011 than in 2000, while those 55 and over were more likely be working in 2011.

Employment rates among teens declined dramatically, from 44 percent in 2000 to 24 percent in 2011, but showed variation by educational attainment and household income.

‘Labor force underutilization’ reveals a bigger problem among teens than reflected in the official unemployment rate, and varies by race/ethnicity and educational attainment.

The share of teens with any paid employment throughout the year dropped from 55 percent in 2000 to 28 percent in 2011.

Teens with more work experience in the previous year are much more likely to find employment in the current year.

Teen employment rates vary widely among metropolitan areas.

The employment rate among young adults ages 20-24, fell from 72 percent in 2000 to 60 percent in 2011.

As with teens, labor force underutilization rates are much higher than the official unemployment rate, and vary by race/ethnicity and educational attainment.

The share of young adults with any paid employment in a given year dropped from 82 percent in 2000 to 69 percent in 2011.

Young adults with work experience in the previous year and higher levels of education are much more likely find employment.

Young adult employment rates vary widely among metropolitan areas, although not as much as teen employment rates.

As always, you should read the whole thing, etc.

World Cup Labor Standards

[ 29 ] March 19, 2014 |

We hardly need to cover the incredible corruption of FIFA. It’s only a matter of finding out how much money the Qatar sheiks and Russian oligarchs put in the pockets of FIFA executives to get the World Cup placed in those two nations. I love that Qatar said that “oh sure we’ll use space age cooling techniques in the stadiums so we can totally hold it in the summer” until the moment got the cup and now it’s going to have to be played in the winter. But perhaps the greatest scandal is the lack of labor standards in international sporting events. Despite the involvement of so many nations in a sporting event like this, the actual construction of the stadiums is left entirely up to the home country. If thousands of people die, who cares:

A report from the International Trade Union Confederation says 1,200 migrant workers from India and Nepal have died in Qatar since the country was awarded the 2022 World Cup.

The ITUC estimates that 4,000 migrant workers will die by the time the first game is played in 2022.

Workers at the Lusail City construction site told the Guardian that their bosses have withheld pay, forced them to work in 122-degree heat with no rest for food, and confiscated their passports to make sure they don’t leave the country.

Combine those complaints with squalid living conditions, and some are calling the situation in Qatar “modern day slavery.”

I’m sure FIFA is very, very concerned about this….

Blaming men for failing to acquire imaginary jobs

[ 182 ] March 19, 2014 |

Updated below

I have a piece in The Week about one aspect of Paul Ryan’s “culture of work” remarks that hasn’t gotten much attention:

Ryan’s inner city men, who have never “learned the value and the culture of work,” are therefore not merely failing, but failing specifically as men, by failing to provide for their families.

The problem with this neat little morality tale is captured by what ought to be some startling statistics. Note that another unstated assumption behind comments such as Ryan’s is that the American economy actually produces enough decent-paying jobs to allow a reasonable number of Americans to have such jobs, as long as they embrace “the culture of work.”

To say this isn’t the case is an understatement. What is a “good” job, financially speaking? One which pays $50,000 per year? $40,000? $30,000? The latter figure, which represents take-home pay of less than $2000 per month, and which is only twice the minimum wage (which itself has declined sharply in real terms since the 1960s), is an extremely generous definition of what constitutes a decent-paying job.

But let’s use it anyway, to determine how many Americans of working age have such jobs. If we make a couple more unrealistically optimistic assumptions — that nobody under 18 or over 69 is working, and that no one has more than one job — the answer is: three out of 10.

Nearly 70 percent of American working-age adults do not have jobs that pay at least $30,000 per year, because there are only three such jobs for every 10 American adults between the ages of 18 and 69. In other words, the vast majority of working age Americans cannot possibly acquire decent-paying jobs, even if one defines a decent-paying job extremely broadly, because there aren’t nearly enough such jobs, not because people fail to embrace “the culture of work.”

Update: Some correspondence included for its potential sociological interest:

19 March 2014

Prof Paul F. Campos
University of Colorado
School of Law

Dear Prof. Campos,

Your criticism of Rep. Paul Ryan was a bit harsh to say the least. He does have a point regardless of you voluminous statistical presentation. Permit me to reflect upon certain demographic of the Black population. Why is it that, since the lack of jobs seems to be an equalizer and issue for everyone, Blacks have a far higher unemployment rate then non-Blacks? Why do Blacks have an astronomically higher crime/illegitimacy rate then non-Blacks? Why is it that Blacks are far more prone to create slums then non-Blacks? Why is it that Haiti, which has been under Black rule for over 200 years,is the economic basket case of the Western Hemisphere? Why is it that Black Africa is the most economically backward region of the world? Despite the false media hype of Blacks, why is it that rarely does one see Blacks in elite military units? The Special Ops unit that killed Bin Ladin did not have one single Black in it and most don’t. We’ve had decades of multi-$trillion minority programs and all sorts of preferential accommodations for Blacks and I might add Hispanics and the results are, to say the least, dismal! It is quite obvious that Blacks are not up to the job of constructively participating in a civilized society without a plethora of costly assistance programs;that American society can do without! The Black population, over the decades, has sufficiently demonstrated that it is more of a burden then an asset and clearly of no redeeming value! None! It is time to admit reality,as Rep. Ryan has done,and stop pretending!


Roderick Spode*

*Name changed to protect the guilty

Suppose They Gave a Hate Rally and Nobody Came?

[ 144 ] March 19, 2014 |

A few links for your Wednesday morning…

  • I have no doubt that this tumblr blog, cataloging an “impressive” record collection, is cute and amusing. So why did I cringe when I read about it? Oh, right. It’s because I’ve been a serious music lover since I was six. I won’t even get into the whole ” you must have an encyclopaedic knowledge of music to really be a music lover” chestnut. (Will be blogging more about this soon.)
  • I want to find this funny, but knowing that fartfaces like this still exist is actually pretty depressing. More depressing? None of these asshats know what the word “genocide” means. Being porked out of existence is not genocide.
  • Joan Walsh calls out Paul Ryan. Angry Joan Walsh? I like it. It’s a good look on her.
  • This is just insane.
  • Reason had a similar article about the Koch brothers awhile back, but with  more leather jacket and South Park. Shorter Charles CCH Pounder C. W. Cooke: “Ha ha!! Libs are so stupid–they don’t know that the Kochs are actually awesome liberals, even though later in this article I’ll admit they donate millions to defeat Democratic candidates and causes. Ha ha!! Suck it!”

My laptop–on which I did most of my blogging–went kaput. I’m waiting for my new one to come in so I can bring you more stories of derp unicorns and people who fart through their mouths. And, no, not every entry will be about Charles C. W. Cooke. Stop being a smartass.

Living on $10 or Less

[ 6 ] March 19, 2014 |

Ben Casselman usefully tries to figure out just how many people are trying to survive and support themselves on less than President Obama’s proposed $10.10 minimum wage. While solid numbers are hard to nail down, it’s certainly not a bunch of teenagers working part time jobs here. Especially when you get to the $9 and $10 range, there are a lot of people trying to support themselves or even families, which is insane.

So this is useful stuff. However, I will say that if the foxes at 538 provide this much methodology in every post, it’s going to get more tiresome than those cultural anthropology methodology chapters about the author’s positionality as an observer in the community really really fast.

Too Simple?

[ 100 ] March 18, 2014 |

Jeff Wise argues that theory on Flight 370 Paul discussed earlier today is probably wrong:

Goodfellow’s account is emotionally compelling, and it is based on some of the most important facts that have been established so far. And it is simple—to a fault. Take other major findings of the investigation into account, and Goodfellow’s theory falls apart. For one thing, while it’s true that MH370 did turn toward Langkawi and wound up overflying it, whoever was at the controls continued to maneuver after that point as well, turning sharply right at VAMPI waypoint, then left again at GIVAL. Such vigorous navigating would have been impossible for unconscious men.

Goodfellow’s theory fails further when one remembers the electronic ping detected by the Inmarsat satellite at 8:11 on the morning of March 8. According to analysis provided by the Malaysian and United States governments, the pings narrowed the location of MH370 at that moment to one of two arcs, one in Central Asia and the other in the southern Indian Ocean. As MH370 flew from its original course toward Langkawi, it was headed toward neither. Without human intervention—which would go against Goodfellow’s theory—it simply could not have reached the position we know it attained at 8:11 a.m.

To make a good theory, Einstein is said to have asserted, “everything should be kept as simple as possible, but no simpler.” Unfortunately, Christopher Goodfellow’s wildly popular theory errs on the side of too much elegance.

I don’t know enough to judge, but I’m still kind of hoping that Goodfellow’s theory turns out to be right if only because against immense odds it would mean something useful came out of Google Plus. Fallows sees the Goodfellow theory as plausible.

Federal Historic Tax Credit

[ 78 ] March 18, 2014 |

I’m generally skeptical of tax credits to businesses and I’d like to see them all eliminated were the government and everyday citizens to be empowered to fill in the gaps that these credits sometimes cover when do well. But since my utopian world is far away, it’s important to separate the useful tax credits from the corporate welfare. The Federal Historic Tax Credit is one of the former, allowing redevelopment of dying downtowns and reshaping urban cores in ways that draw back residents and businesses and reducing urban sprawl. Of course Republicans don’t like those things and so it is under attack in the House. Whether it has enough political and lobbying support to survive, I don’t know. Michael Allen provides the compelling reason to keep it, using downtown Rockford as an example of its use:

Something is visibly afoot in downtown Rockford, Ill. For years in this smaller city with a 13.4 percent unemployment rate, businesses fled to the outskirts and left the downtown quiet and neglected. Yet vacant commercial buildings have sprung back to life with street-level retail and new apartments. The historic Peacock Brewery is set to serve beer once again, its imposing redbrick exterior cleaned and tuckpointed.

Downtown Rockford is changing quickly, with some $40 million in renovations underway and $15 million in the works. All of this work involves historic buildings, and all of it uses the federal historic rehabilitation tax credit, which returns 20 percent of the cost of building restoration to developers.

“Rockford would never have had a chance without it,” says local architect Gary Anderson. “The appetite of banks is not to take a risk here, and the tax credits are a motivator to get them to lend.”

“The program is so easy,” Anderson continues. “It’s the least amount of bureaucracy for the greatest gain.” When he first started working to bring economic activity back to downtown Rockford, Anderson examined many incentive programs, including New Markets Tax Credits. Few, however, put so much of their cost back into the buildings themselves, so Anderson and his partners turned to the federal historic tax credit.

The Voluntarism Fantasy

[ 154 ] March 18, 2014 |

“Helping the Poor–Gratuitous Distribution of Coal by the City–Cherry Street,” New York City, 1877

Konczal’s essay on the voluntarism fantasy of conservatives who argue that private charity used to operate as a functional charity distributor before the big bad state destroyed individualism is pretty definitive. Konczal correctly destroys this myth and spits out its remains, showing how the state has always been involved in any meaningful welfare work in this country and that the problem with the pre-New Deal welfare programs is that the state wasn’t nearly involved enough. I’d only add to this essay that federally subsidized westward expansion was also part of this welfare state, as Republicans especially explicitly saw the frontier as a social safety net that would alleviate poverty without directly giving charity to people.

Really, the Hooverism of Paul Ryan and other Republican granny starvers isn’t just wanting to destroy the federal welfare state, it’s also that they, like Hoover, hold onto myths of an individualistic past that never existed.

James Kwak has more commentary.

Flight 370 and Occam’s razor

[ 92 ] March 18, 2014 |

Given the continuing absence of any evidence for more esoteric/sinister theories 11 days after the disappearance of FL370, this account seems increasingly plausible:

The left turn is the key here. Zaharie Ahmad Shah1 was a very experienced senior captain with 18,000 hours of flight time. We old pilots were drilled to know what is the closest airport of safe harbor while in cruise. Airports behind us, airports abeam us, and airports ahead of us. They’re always in our head. Always. If something happens, you don’t want to be thinking about what are you going to do–you already know what you are going to do. When I saw that left turn with a direct heading, I instinctively knew he was heading for an airport. He was taking a direct route to Palau Langkawi, a 13,000-foot airstrip with an approach over water and no obstacles. The captain did not turn back to Kuala Lampur because he knew he had 8,000-foot ridges to cross. He knew the terrain was friendlier toward Langkawi, which also was closer.

Take a look at this airport on Google Earth. The pilot did all the right things. He was confronted by some major event onboard that made him make an immediate turn to the closest, safest airport.

For me, the loss of transponders and communications makes perfect sense in a fire. And there most likely was an electrical fire. In the case of a fire, the first response is to pull the main busses and restore circuits one by one until you have isolated the bad one. If they pulled the busses, the plane would go silent. It probably was a serious event and the flight crew was occupied with controlling the plane and trying to fight the fire. Aviate, navigate, and lastly, communicate is the mantra in such situations.

There are two types of fires. An electrical fire might not be as fast and furious, and there may or may not be incapacitating smoke. However there is the possibility, given the timeline, that there was an overheat on one of the front landing gear tires, it blew on takeoff and started slowly burning. Yes, this happens with underinflated tires. Remember: Heavy plane, hot night, sea level, long-run takeoff. There was a well known accident in Nigeria of a DC8 that had a landing gear fire on takeoff. Once going, a tire fire would produce horrific, incapacitating smoke. Yes, pilots have access to oxygen masks, but this is a no-no with fire. Most have access to a smoke hood with a filter, but this will last only a few minutes depending on the smoke level. (I used to carry one in my flight bag, and I still carry one in my briefcase when I fly.)

What I think happened is the flight crew was overcome by smoke and the plane continued on the heading, probably on George (autopilot), until it ran out of fuel or the fire destroyed the control surfaces and it crashed. You will find it along that route–looking elsewhere is pointless.

If this theory is correct, it seems unlikely that the plane and its flight data recorder will ever be found. The search for Air France 447 suggests that it’s basically impossible to find the fuselage of a plane in the deep ocean unless searchers know almost exactly where the plane went down (Flight 447 was found 6.5 miles from its last known location two years later, after three previous failed searches). Any debris spotted at this point will be hundreds of miles from the crash site. Reconstructing the path of such debris along ocean currents might confirm or dis-confirm the autopilot theory, however.

Franchising and Wage Theft in Fast Food

[ 89 ] March 18, 2014 |

Timothy Noah has a good run-down of wage theft in fast food and the role franchising plays in it:

What’s unusual here aren’t the claims of labor law violations, which are common enough, but rather, who’s being blamed. The wall that fast food workers hope to blast through with these class-action suits is the franchise system. All of the lawsuits name McDonald’s itself as a defendant, even though most of the targeted restaurants are owned not by McDonald’s but by McDonald’s franchisees.

Starting with Howard Johnson’s in the 1930s, franchising enabled fast-food companies largely to get out of the food business. Owning and operating the restaurants was mostly left to franchisees – usually mom and pop businesses that paid McDonald’s or Burger King or Dominos for the right to brandish their corporate trademark and prepare food according to their specifications. Today, most fast-food workers don’t work for McDonald’s or Burger King or Dominos; they work for franchisees licensed to sell their products.

Practically speaking, franchising makes it very difficult to hold fast-food corporations accountable for most labor violations that occur in restaurants bearing their name. Those aren’t our employees, the corporations can say; you got a problem with how burger-flippers are treated, take it up with their franchisee bosses. In franchise agreements – the contracts prospective franchisees must sign on a take-it-or-leave-it basis – franchisors explicitly disavow such responsibility. The McDonald’s contract, for instance, stipulates that “Franchisee and McDonald’s are not and do not intend to be partners, associates, or joint employers in any way.”

Like the subcontracting and outsourcing, franchising exists to increase profit for corporations while protecting them from liability. There is no reason at all why McDonald’s should not be held legally accountable for the actions of its franchisees, much as Wal-Mart and Gap and other apparel companies should be held legally accountable for the deaths at Rana Plaza in Bangladesh last year. In the recent past, judges have thrown these class-action suits out but as Noah points out, this one gathered a lot of evidence of McDonald’s direct involvement with its franchises that might suggest direct involvement in labor practices too that rip off workers.

Bouie on America’s Racist Housing Policy

[ 127 ] March 18, 2014 |

Paul Ryan, unfortunately the latest Irish-American politician to forget the roots of his people and become a right-winger, has had a very racist week. Blaming black people for inner-city conditions is another in a long history of rich people blaming the poor for their own poverty. Maybe like howthe English blamed the Irish during the potato famine as the English were forcing Ireland to grow crops for its neighbor to the east. Anyway, if you aren’t familiar with why inner-city conditions became so bad in the late 20th century, Jamelle Bouie provides an excellent run-down of America’s racist housing policy and the pernicious effects of residential segregation.

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