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A Sunday Morning Quiz

[ 103 ] August 3, 2014 |

From the Ladies Home Journal, May 1957:

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After taking this quiz, act appropriately. Whatever that may be.

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“Not One Will Be Alive When a Hundred Years Are Gone By”

[ 18 ] August 3, 2014 |

Reading about the guns of August puts me in the mood for Herodotus:

And now, as he looked and saw the whole Hellespont covered with the vessels of his fleet, and all the shore and every plain about Abydos as full as possible of men, Xerxes congratulated himself on his good fortune; but after a little while he wept.

Then Artabanus, the king’s uncle (the same who at the first so freely spake his mind to the king, and advised him not to lead his army against Greece), when he heard that Xerxes was in tears, went to him, and said:-

“How different, sire, is what thou art now doing, from what thou didst a little while ago! Then thou didst congratulate thyself; and now, behold! thou weepest.”

“There came upon me,” replied he, “a sudden pity, when I thought of the shortness of man’s life, and considered that of all this host, so numerous as it is, not one will be alive when a hundred years are gone by.”

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Today in Republican Minority Outreach

[ 65 ] August 3, 2014 |

Steve King threatens that if Obama delays deporting undocumented immigrants, Republicans will impeach him.

Oh please Rep. King, don’t do that. Combining impeachment with your war on brown people surely will destroy the Democratic Party, what with the rapidly shrinking percentage of white voters in this country. I am so, so scared.

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Find a Way to Hurt Them

[ 4 ] August 3, 2014 |

My latest listical for National Interest takes a look at five potential areas of arms collaboration between Russia and China:

The continued deterioration of relations between Russia and NATO may not yet have resulted in a new Cold War, but it’s undoubtedly produce an environment in which Russia has independent reasons to try to hurt the United States.

While the arms trade between China and Russia exploded after the fall of the Soviet Union, shipments of major systems slowed in the early part of last decade.  Part of the reason was demand; China felt that it no longer needed to pay top dollar for Russian systems that it could build itself.  Another reason, however, involved Russian intellectual property concerns stemming from Chinese copying, and potential export, of Russian military systems.  This made Russia reluctant to export its most sophisticated weapons.

 

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LGM is Social! We’re Really Very Friendly!

[ 97 ] August 2, 2014 |

In light of recent lineup additions, never a bad time to remind of our social media connections:

LGM twitter: @lefarkins
Spencer: @vacuumslayer
Farley: @drfarls
Lemieux: @LemieuxLGM
Watkins: @djw172
Brockington: @dbrock27
Kaufman: @scottekaufman
Loomis: @ErikLoomis
Attewell: @StevenAttewell

And here’s the entire list, if you’re into that sort of thing.

We’re also available on Facebook, and on Google+ (whatever that is).

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Lawyers and entrepreneurs

[ 19 ] August 2, 2014 |

The Times has a story on attempts by law schools to address the crisis in legal hiring via curricular reform:

On a spring afternoon at Michigan State University, 15 law students are presenting start-up proposals to a panel of legal scholars and entrepreneurs and an audience of fellow students. The end-of-semester event is one part seminar and one part “Shark Tank” reality show.

The companies the students are describing would be very different from the mega-firms that many law students have traditionally aspired to work for, and to grow wealthy from. . .

A few of them talk of outsourced services for larger law firms. Karen Francis-McWhite pitches one to help homesteaders claim properties for their own. Another would help immigrants file their taxes, an essential but frightening step to gaining citizenship. The tagline, delivered by its advocate, Giavanna Reeves: “Filing taxes should not make you feel blue when you’ve got a green card in line.”

The Entrepreneurial Lawyering Startup Competition, a showcase of the university’s Reinvent Law Laboratory, is not an activity many practicing lawyers would recognize. But it might be the kind of broadened curriculum many of today’s students need.

This kind of program at least recognizes implicitly that it doesn’t make any sense for MSU’s law school to be based on a model in which its graduates go on to work for high-paying large law firms, since almost none of them do (14 of 301 graduates in last year’s graduating class got big law jobs. It’s too bad MSU’s tuition structure doesn’t acknowledge this reality).

It also signals that some law faculty now realize that a lot of their graduates won’t have traditional legal careers at all, high-paying or otherwise. That (the recognition) is a good thing, but curricular reforms of this type can play at best only a very minor role in ameliorating the problems our graduates face.

Turning part of the law school curriculum into a quasi-MBA program doesn’t do anything about the central problem, which is that law schools charge way too much and graduate way too many people. And trying to train law graduates to be entrepreneurs is a classically American response to the structural challenges to traditional ways of life created by changing economic conditions.

The difficulties with this response are that the whole point of law school has always been to qualify — if not actually to train — people to be a very specific sort of entrepreneur, that is, someone who runs a business that sells legal services. And the fundamental problem remains that demand for that kind of business is flat or declining, and/or is being met more and more by low-cost alternatives to traditional legal services, as Bill Henderson points out in the Times article itself (I’m using “demand” here in the sense of people being willing and able to pay for such services, rather than in the sense that many law professors use the word, which features a concept of demand that doesn’t take into account the “able” part of the definition).

People generally don’t go to law school because they’re “entrepreneurial” in some more general sense: indeed, it would be more accurate to say that they go because they’re not entrepreneurial in a more general way. And it would be even more accurate to say that just about the least entrepreneurial class of people this side of trust fund babies are law professors themselves, since the job selects for personality types that make Dilbert look like Steve Jobs.

How a bunch of mostly old people who have spent their lives polishing apples and coloring inside the lines are supposed to turn the kind of mostly young people who go to law school today into disruptive innovators, sending gusts of creative destruction across the legal economic landscape, remains more than a little mysterious.

. . . In comments, Fortunado points toward an even more fundamental difficulty, which is that the vast majority of entrepreneurial ventures fail even in good economic times. Of course the whole point of getting a law degree, from a strictly economic perspective, is that it allows one to acquire a license, that is, a serious barrier to entry, that is supposed to put one at a competitive advantage relative to “mere” entrepreneurs.

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High Broderite Halbig Trooferism

[ 88 ] August 2, 2014 |

I didn’t know this until Josh Marshall tweeted it while linking to his site’s devastating rebuttal to Halbig trooferism, but Johnathan Turley is one of the troofers.  He presents us with a particularly irritating variant, which one might call “High Broderite Schoolmarm trooferism.”  He thinks that millions of people (but not him!) should be kicked off their health insurance and the market for non-employer based health insurance be made to collapse to teach Congress a stupid lesson about statutory construction, but the most important is that we should discuss this question civilly and never, ever question the motives of hack Republican judges.  Let’s start with the outright dissembling:

While I agree with the merits of the change ordered by the Administration, I am highly uncomfortable with treating language in a statute as a “typo” or some oversight. Indeed, as we recently discussed, even key players who are now calling the D.C. Circuit interpretation “nutty” previously appeared to subscribe to that interpretation. For that reason, I favor the D.C. Circuit opinion out of concern over limiting the role of the courts and reinforcing the separation of powers.

Turley uses the phrase “key players,” suggesting that there are multiple people involved in the crafting of the legislation who thought that the tax credits would not be available on the federally established exchanges. But he in fact cites exactly one, Jonathan Gruber, and in that cite fails to note that Gruber repudiated this position not merely after the fact but before the fact. And the idea that Gruber’s extemporaneous and ambiguous remarks are sufficient to establish a genuine controversy when his interpretation is rejected by everyone else involved is farcical.

Note also that he joins the Fourth D.C. Circuit in asserting that willfully misreading a statute with devastating consequences to the health and financial security of millions of people represents judicial restraint. I assume that to restate this argument is to refute it. And there’s plenty more where this came from, alas. He is, for obvious reasons, not particularly interested in defending his position, but he is very interested in asserting that those who take his position should be exempt from criticism:

The Halbig and King decisions had little to do with health care or contemporary politics. The courts rendered decisions on an arcane area called legisprudence, the study and interpretation of legislation. For legisprudence geeks like me, the decisions were the World Cup of statutory interpretation theory. The D.C. Circuit followed a long-standing approach that closely tracks the text to avoid large alterations in federal law through judicial decision-making. The Fourth Circuit followed an equally well recognized approach that resolves conflicts in laws according to more “holistic” readings of the law.

I view the D.C. Circuit as correct in its interpretation. However, I find it deeply offensive to see people attack the democratically appointed judges in the Fourth Circuit as ideologues. (The author of the opinion, Judge Roger Gregory, is actually a hybrid — having been given a recess appointment by President Clinton but permanently put on the bench under President George W. Bush.)

The King decision is well-reasoned and, more important, consistent with a common, if not dominant, view of statutory interpretation that looks to the overall intent of a law from both the text and legislative history to resolve conflicts.

Likewise, the portrayal by Reid and others of Judges Thomas Griffith and Raymond Randolph as Republican robots is equally unfair. These judges came to the bench with a defined view of judicial interpretation that seeks to avoid encroachment into legislative authority.

At issue in the cases was the law’s Section 1401 that expressly links tax credits to insurance plans purchased “through an exchange established by the state.” For a textualist, that line clearly limits tax credits to states that created their own exchanges. Conversely, it means that citizens in 36 states without such state exchanges (where citizens must use “federal exchanges”) would not be able to claim such credits. For an intentionalist, however, the overall law seems to favor such tax credits, and the Fourth Circuit found that the IRS was reasonable in extending credits to people in states with only federal exchanges.

The conflict could have involved chicken subsidies, and the result would have been the same.

First of all, the idea that one should read phrases in statutes in splendid isolation from the structure of the law, which Turley treats as the dominant, common-sense position, is in fact a terrible method of statutory construction. In addition, the fact that it’s embraced almost exclusively by contemporary Republicans is not a coincidence; as we can see vividly in this case, the point is to keep government from functioning. In a parliamentary system, the courts playing schoolmarm might have less devastating consequences, because the legislature can more easily correct errors. But in the Madisonian system, it’s imperative for the courts to interpret statutory phrases in the proper context, and also that it not read them to produce absurd results. And the reading that Congress established a federal backstop but intended for it not to work is absurd.

Turley’s High Broderism is inconsistent with the relevant legal standard. Under Chevron, the courts have to defer to a reasonable executive interpretation. If the Fourth Circuit argument is even reasonable, then the IRS rule must be upheld. If Halbig is correct, then the 4th Circuit interpretation is not reasonable. Turley can’t have it both ways. And when a legal theory advancing an interpretation that nobody shared at the time is advanced after the fact as part of a war conducted by people who oppose the ACA in principle, it’s cheap partisan politics.

For another argument in the High Broderite family, see Megan McArdle. Like Turley, she does not explicitly endorse but also does not repudiate the theory that the Moops invaded Spain. Unlike Turley, she tries to cite more than one person in her attempt to sell the idea that this dispute transcends ideological divides. But this addition person is Jon Cohn, who made an inaccurate prediction but was explicitly not making a definitive claim about what was in the statute (“this is not something I’ve looked into that closely.”) So, again, were left with Jonathan Gruber in 2012 vs. everyone else involved in drafting and enacting the statute including Johnathan Gruber 2010 and 2014.

One can understand why Halbig troofers want to throw up a “teach the controversy” fog. But Halbig trooferism is strictly a Republican production. And it’s also a terrible argument on the merits, in both its “the card says “Moops!” and “the Moops invaded Spain” variants, granting that the latter is even less defensible.

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Today’s Undue Burden

[ 28 ] August 2, 2014 |

Bad news for women in Texas:

Today, Whole Woman’s Health in Austin, Texas, was forced to close because of H.B. 2, the Texas law that erected a series of barriers to providing abortion care in the state. On September 1, a provision of H.B. 2 that requires all abortions be performed in ambulatory surgical centers (ASCs) will go into effect. Whole Woman’s Health of Austin, which has been serving Texas women for more than a decade, is not an ASC, and its lease was up July 31. Its annual license, which costs $5,000, was also up for renewal. But according to Whole Woman’s Health CEO Amy Hagstrom Miller, investing $5,000 for the renewal fee and signing a yearlong lease to stay open for a month simply did not make financial sense.

 

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Everyone’s Looking Forward to the Weekend Links

[ 121 ] August 1, 2014 |
  • Yes, Bloody Andy needs to be removed from the $20.  Rosa Parks and Elizabeth Cady Stanton seem like excellent candidates to replace him.  Alas, if done by a Republican Congress presumably the new bill would have Reagan on the front and John Calhoun on the back.
  • “Reading the column is like listening to Dick Cheney mutter in his sleep.”  I particularly enjoyed the assertion that the “forgotten part” of the Chamberlain story is the “peace in our time” comment.  Similarly, what NOBODY REMEMBERS about Game 6 of the 1986 World Series is that Bill Buckner muffed a ground ball, leading to the winning run.  And now you know the rest of the story.
  • deglar watched some terrible pro-Confederate Civil War movies so you don’t have to.   (Gods and Generals, I note as a connoisseur of aesthetic Stalinism, made Michael Medved’s 10 best list.)
  • Krugman on Geithner.
  • Definitely agree that the new Jenny Lewis is a welcome return to form from one of the best songwriters in this great land of ours.
  • John Brennan really needs to resign.
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Chinese Airpower

[ 15 ] August 1, 2014 |

The next Guns N’ Roses album? No, my latest at the Diplomat:

Ankit’s recent post (building on Rebecca Grant’s  longer list at Air Force Magazine) opens the question of whether China has structured its military institutions such that they support the sophisticated development and dynamic use of military aviation.

In short, how does the organizational configuration of Chinese airpower matter for how China will fight, plan to fight, and procure?

There is no single optimal way to organize military forces. Different organizational constellations produce different outcomes for warfighting, procurement, and strategic thought. Reorganizations are costly, and shouldn’t be undertaken at the drop of a hat, but nevertheless provide an opportunity to better align organizational imperatives with national goals.

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Today Among the Halbig Troofers

[ 58 ] August 1, 2014 |

Sean Davis believes he has actual new evidence to support the particularly wingnutty theory that millions of people should be denied health care coverage not merely because the card says “Moops,” but because the Moops actually invaded Spain. You will be shocked that he does not.

In defense of the theory that Congress actually intended for subsidies not to be available on the federal exchanges, Davis uses many words to cite two people. The first of these we’re familiar with: Jonathan Gruber. Which gets Davis nowhere, since privileging two stray and ambiguous comments by Gruber in 2012 over absolutely everyone else on all parts of the ideological spectrum at the time (particularly when the latter group includes not only the unambiguous statements of Gruber in 2014 but Gruber’s analysis in 2010) raises hackery to a farcical level. So, what’s his second source? He cites statements made by the superb liberal health care analyst Jon Cohn:

There is some kind of opt out, and I’ll be honest. This is not something I’ve looked into that closely because I don’t think it’s going to end up in the bill. But you know, basically this I believe was part of the Ben Nelson compromise.

Basically, where a state could opt out of the exchanges, I find it hard to believe a state would actually do that. You know, it’s – if you think about the history of these sorts of things, Medicaid was set up and is, remains, an optional program for states. States can opt out of Medicaid if they want to.

Cohn explains himself here. To be clear — proving that it can happen to the best of us — Cohn’s analysis on this point, as I’m sure he would concede, was mistaken. It should have been clear that at least some states would have refused to create exchanges in 2010. It’s true that no states were turning down Medicaid funds at the time, but 1)the block of Medicaid money is a stronger incentive than “your citizens won’t get tax credits but will also be therefore exempt from the individual mandate” and 2)not all states accepted the Medicaid immediately — Arizona held out until 1982. Given the original Medicaid holdouts despite an era of less partisan polarization and its stronger incentives, the history of Medicaid in fact made it pretty evident that some states would not establish exchanges.

But, of course, Congress (of which Cohn was not in fact a member) did anticipate this problem — which is why it created a federal backstop in cases where states did not establish exchanges. And Cohn does not say otherwise — note that he starts out by saying that “this is not something I’ve looked into that closely.” So Cohn’s excessive optimism in an off-the-cuff statement is neither here nor there; Congress didn’t share it, and the troofer argument requires the belief that Congress created a federal backstop but wanted it not to work, which is a transparently absurd reading of the statute.

So, Cohn’s statements aren’t actually new evidence at all. We’re left where we started — the troofer argument is that a single cherry skin on the ground makes an apple orchard a cherry tree. There is never going to be a threat to Drum’s 10 bucks.

see this too. Oddly, the CBO never even considered the scenario that Halbig troofers consider the statute to have unambiguously established. Please revise your views of Senate Majority Leader Gruber accordingly.

…Abbe Gluck has more.

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It’s Hard Out There For the 1 Percent

[ 357 ] August 1, 2014 |

The Daily Capitalist urges us to understand the plight of the wealthy and how a visa glitch makes life so hard:

In Washington, D.C., Mira Edmonds said her au pair’s arrival from France, which was scheduled for last Sunday, has been indefinitely delayed. Ms. Edmonds, who is a lawyer, and her husband work full-time and depend on child care for their two children, ages 3 and 6. “I don’t know how we’re going to cope if she isn’t here soon,” Ms. Edmonds said.

Shed a tear, my friends, shed a tear.

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