Practical Advice: How to Circumvent the Wall Street Journal's Paywall

In a change of pace—Dalhia Lithwick hasn't written anything recently, has she?—here is a piece of practical advice for those of us who don't want to go through our work computers (or other sites which have a permanent subscription) to read the Wall Street Journal's pay-walled articles:

Most Wall Street Journal articles are hidden by a pay wall. Unless you are accessing the site from a computer that is recognized as paid-for by the Journal’s web servers, all you will receive for most of these articles is a “stub” of a paragraph or two. This is annoying if you are trying to access the Journal from your home computer and you do not have a personal subscription.

Fortunately, this block is easily circumvented. Google, in order to completely index a website—something the Journal and other newspapers places great value on—must have the entire content of the site available to it. Google in turn requires operators to return the same version of the website to browsers who click on a Google search link as they do when Google itself follows the link. So to get all of the Journal, one just needs to pretend that one found the article with a Google search.

This only takes a second. When you run across a “stub article” just copy the beginning of the stub (typically about thirty words, but usually picking the first paragraph does the trick). Then paste the stub into a Google search box and hit search. Usually the first article that comes up in the search is the full copy of the Journal article. If it is not, it usually will be a copy of the Journal article on another website. If necessary, one can ensure that one gets the official version by adding the string “site:online.wsj.com” to the Google search box before hitting search.

Update: The WSJ has apparently become wise to this workaround and will at some point only display stubs, even after Google searches described above. Their method is cookie-based, so it is easily circumvented. Just continue reading WSJ articles on another computer, on another browser on the same computer, or delete your wsj.com (and subdomain) cookies from your current browser for a fresh start.

Update 2: With at least the current version 12 of Google Chrome it is possible to block wsj.com (and subdomain) cookies using Options/Under the Hood/Content Settings/Cookies/Manage Exceptions..., thereby permanently solving the problem. This may make commenting on WSJ articles impossible, but you can always use a separate browser (or separate Google Chrome Profile) for that.

Dahlia Lithwick Is Not Very Principled, Either

As part of the ongoing series of posts demonstrating the dubious value of Ms. Lithwick's commentary to anybody in search of intelligent argument, here is another example.

As recently as last year, in the course of belittling Ms. O'Donnell's Senate candidacy, Ms. Lithwick—informedly, a law school graduate—deemed it advised to mock as "weird" the candidates views:

I have been fascinated by Christine O'Donnell's constitutional worldview since her debate with her opponent Chris Coons last week. O'Donnell explained that "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional? And isn't that sort of provided for in, well, the Constitution?

Decoding Christine O'Donnell, Slate (Sept. 22, 2010).

Setting aside the question of whether a bill's constitutionality should be the sole basis for a legislator's vote—surely there must be constitutional yet inadvisable bills: let's say incorporating Mickey Mouse into the flag of the United States?—it hardly seems remarkable that a legislator, who has sworn an oath to uphold the Constitution, should at least give some thought to the issue before voting.

But then Ms. Lithwick deemed any such legislative cogitation to be no less than in violation of the Constitution itself. Now, however, Ms. Lithwick informs us of the opposite conclusion, bewailing the fact that:

Gone are the days in which legislatures at least attempted to ensure state regulations conformed to the broadest interpretation of the Roe constraints.

The Death of Roe v. Wade, Slate (April 19, 2011).

So it appears to be Ms. Lithwick's position that it is weird and unconstitutional for legislators to consider whether the bills they are voting on are in violation of the Constitution itself, but a necessity for law makers to only advance bills which are in full conformance of recent and controversial Supreme Court interpretations of the Constitution.

If there is any rational basis for Ms. Lithwick's position other than a complete and unprincipled disregard for the Constitution except when useful as a stick to beat upon political opponents, it escapes this author.

Barack Obama's Advice to Investors: Buy High, Sell Low!

Well, that is not exactly what the President said, but it is its logical equivalent:

Obama blames speculators for high gasoline prices

ANNANDALE, Virginia — US President Barack Obama blamed oil "speculators" on Tuesday for soaring gasoline prices that risk weighing down the US recovery and could dampen his 2012 election hopes. "It is true that a lot of what's driving oil prices up right now is not the lack of supply. There's enough supply. There's enough oil out there for world demand," Obama said at a campaign-style event not far from Washington.

Commodity speculation is the purchase (or sale) of a commodity, not because you plan to use it (or you produced it and need to dispose of it), but because you expect that you'll be able to sell (or re-purchase) it at a later time for a higher (or lower) price. And—contrary to the instinctive reaction of a vast majority of the population of the United States and even an alleged sophisticate like the President—it is a social good.

A good speculator must accurately predict price movements (or, to be more precise, their probability distribution). To make a profit, they must buy when prices are low and sell when prices are high. But adding speculative demand when prices are low will tend to increase prices and adding speculative supply when prices are high will tend to decrease prices. In other words, successful speculation tends to even out price spikes and troughs, not cause them.

Successful speculation also helps market prices reflect longer-term trends and risks and indirectly causes physical storage (if possible) and investment decisions to be made which reflect and compensate for these factors rather than merely immediate demand.

Indeed, at some level, the Pres. Obama appears to understand this:

"The problem is, is that oil is sold on these world markets, and speculators and people make various bets, and they say, 'you know what, we think that maybe there's a 20 percent chance that something might happen in the Middle East that might disrupt oil supply,'" he said.

"'So we're going to bet that oil is going to go up real high.' And that spikes up prices significantly," said the president, who recently launched his reelection campaign.

That could conceivably be true. But it can only be a sensible investment strategy if these hypothetical speculators sincerely believe (and back with their own money) that in the 80 percent chance that nothing bad happens in the Middle East—these are the President's odds, but they seem a tad optimistic—the price of oil will fall by less than one quarter than the amount from the allegedly speculation-induced price that it will rise above that price if something bad does happen.

But in that case speculators have bought positive expected value insurance for oil prices and helped smooth them out (on average), rather than caused an irrational price spike for their selfish, greedy gain. The President (and the general population) should be thanking, not condemning, them.

The alternative hypothesis is that these alleged speculators are just not very smart and are messing with the market by making incorrect predictions about the risks of future price movements. But such bad speculators are also a social good. While they may cause market volatility, they effectively give away their money to other market participants by selling low and buying high. And eventually they go out of business as they run out of capital.

When Pres. Obama accuses the speculation of malefactors of great wealth of responsibility for high oil prices, he must assume that they are all bad ones. That leaves the question of why he does not believe that the "problem" will solve itself.

Not that the opposition is much better:

Obama's Republicans foes have pounded him over the rise in fuel prices, accusing him of putting on hold new oil drilling that could eventually lead to lower prices.

Increasing U.S. oil production may or may not be a good idea. To blame the unavailability of the relatively small amounts still to tapped domestically for day-to-day or even year-to-year movements in the global oil markets is inane.

Macaulay—What a man! (Second Try)

As promised, please find quoted below, translated into HTML, and with some of the most obvious typographer's mistakes corrected (for the remainder the typographer and I shall accept joint and several liability), the McLuhan essay on Macaulay mentioned in yesterday's post.

Macaulay—What a man!

By Marshall J. McLuhan

It will be recalled that Arnold once said, "Posterity alarmed at the way in which its literary baggage grown upon it, always seeks to leave behind it as much as it can, as much as it dares." In late years Macaulay has lost favor with Posterity, his capricious palladium, and indeed it is rumored that due to the recent acquisition of a huge mass of "baggage," Macaulay must go. This is not "a consummation devoutly to be wished."

The perpetuation of Macaulay's place depends upon his younger readers. His life and writings are preeminently qualified to attract, fascinate and instruct the impressionable adolescent. As a scholar, conversationalist, orator, statesman, essayist and historian, he has few peers. The enthusiasm, profound good sense, learning, and mental power that he brought to bear upon every situation make him an inspiration to anyone that has a spark of verve in him.

Let us briefly regard his life. Very few lives indeed can equal for industry, usefulness, purity or interest that of Macaulay. In his biographer he was extremely fortunate. Trevelyan has produced a book that, after Boswell 's, stands in the very first rank. There is a natural curiosity on the part of everyone to observe renound and eminent men in their intimate relations with their fellows. Excluding Boswell and Pepys I know of no book that satisfies this curiosity in a more profitable, healthy, or less Stracheyfied manner. Few ages in any history offer greater interest from political, literary or social standpoints than the reign of Victoria. These three aspects are unfolded before us in a delightfully intimate fashion. We are taken behind the scenes during the intense and critical days that preceded the passing of the great reform bill. The fall of governments, ministeries in the making, and bitter debates are often described by Macaulay's own pen. Nearly every important literary man of that fertile era is either presented to us in person or is directly alluded to. And we see the relations and understandings which existed between several great journalists and their editors. Perhaps the social side is most interesting of all. It was an age when the cultivation of wit and brilliant conversation reached its peak; and when breakfast parties, levees, great dinners, musicales, and fancy balls, occurred in endless sequence. Many of these affairs are described in faithful detail by Macaulay in his correspondence. During his first burst of popularity Macaulay took advantage of his many invitations and was for several years the brilliant ornament of a brilliant society. His taste for these affairs slackened, but not so his popularity.

It would not be profitable in so brief a sketch to expatiate upon Macaulay's precocity. His bon mots, the fact that he wrote a Compendium of Universal History when he was seven, and that he had a remarkable memory, these are impressions held by many Who know little else concerning him. Listen to an extract from a letter written to an anxious parent. Macaulay was fourteen and in attendance at Mr. Preston's school.

"I am sorry to hear that some nameless friend of Papa's denounced my voice as remarkably loud. I have accordingly resolved to speak in a moderate key except on the undermentioned occasions. Imprimis, when I am speaking at the same time with three others. Secondly, when I am praising the Christian Observer (his father's paper.) Thirdly, when I am praising Mr. Preston or his sisters I may be allowed to speak in my loudest voice, that they may hear me."

When he entered university he became intensely interested in politics. This interest attracted him on one occasion to a violent demonstration, staged by a body of disappointed electors. "His ardour was cooled by receiving a dead cat full in the face. The man who was responsible for the animal came up and apologized very civilly, assuring him that there was no town and gown feeling in the matter and that the cat had been meant for Mr. Adeane. 'I wish,' replied Macaulay, 'that you had meant it for me, and hit Mr. Adeane.' Despite this severe set-back, Macaulay's love of politics grew steadily stronger, and we know with what brilliant results."

Another of many amusing incidents occurred on an occasion when he had sprained his wrist. Macaulay usually shaved himself but this made it necessary to call in a barber. When the man had finished with him, Macaulay said to him, "How much do I owe you ?" "Oh, give me whatever you usually give the man that shaves you." "In that case," Macaulay laughingly replied, "I should give you a great gash on either cheek."

A corroborating circumstance is that after his voyage to India there were found in his cabin dozens of broken razors, and strops cut and slashed beyond cognizance. This is in part accounted for when it is remembered that, dressing, shaving, eating, or walking, he was never without a book before him.

Few men have attained such eminent distinction so early in life. Fewer still have augmented it so consistently to the very last day of their lives, as did Macaulay. We doubt whether any man may be pointed out who handled such weighty affairs, who took so many important steps, or who was subjected to a more scrutinizing criticism, and of whom it may be said, as it may of Macaulay, that he never made a mistake. His judgment and wisdom in both personal and public affairs was uncanny. No one ever guided the course of his life more consciously than Macaulay.

There is no space in which to cite any instances of his magnanimity, save this one. It is, however, characteristic of the man. When in India he undeservingly incurred the enmity of the press for his advocacy of a very necessary reform. While he was being reviled and covered with obloquy, in terms so violent that they could never stand reprinting, Macaulay was earnestly supporting a motion whereby these very newspapers might be granted further liberty of expression. He left more than a reputation for magnanimity in India. The Indian Penal Code, which was the product of three years' hard work, would alone entitle him to a high place in the regard of posterity.

For many years after Macaulay left India, there lingered a tradition which inseparably associated him with Richardson's great novel, Clarissa Harlowe. The occasion of its origin is rather interesting. A number of officials, of whom Macaulay was one, were isolated up in the hills during the rainy season. For a month on end they were unable to venture outside. As there were no books save those Macaulay had with him, even his resources were severely tried; while "his companions were ready to hang themselves for very dullness." Most fortunately among his books was Clarissa Harlowe. He soon talked his favorite romance into general favor. Thackeray, who describes the story as he had it from Macaulay, says, "As soon as they began to read the whole station was in a passion of excitement about Miss Harlowe and her misfortunes, and her scoundrelly Lovelace. The Governor's wife seized the book, the Secretary waited for it, the Chief Justice could not read it for tears." A hardened old Scotch doctor cried over the last volume until he was too ill to appear at dinner; while "Sir William Mcnaughten, the hero and victim of the darkest episode in our Indian history, declared that reading this copy of Clarissa under the inspiration of the owner's enthusiasm was nothing less than an epoch in his life."

After his return from India he again sat in parliament and made it evident that if he were willing to devote himself to politics, no one was more fit for the part of prime minister than he. The thought of his History, however, had already become dear to him. He could not help but be aware that many were capable of guiding the government of the country, but that he alone was fitted to produce the great work that he ultimately left us.

The essay, as we know it, well nigh owes its origin to Macaulay. His power to clothe apparently barren subjects in attractive form, greatly widens the scope of the average reader's horizon. To quote Thackeray again: "Take at hazard any three pages of the Essays or History; and glimmering below the stream of the narrative, you, an average reader, see one, two, three, a half a score of allusions to other historic facts, characters, literature, poetry, with which you are acquainted. Your neighbor who has his reading and his little stock of literature stowed away in his mind shall detect more points, allusions, happy touches, indicating not only the prodigious memory and vast learning of this master, but the wonderful industry, the honest humble previous toil of this great scholar. He reads twenty books to write a sentence; he travels a hundred miles to make a line of description." When one considers the conditions under which he wrote half of his essays, the moments thriftily snatched before breakfast from a day so busy that even a modern American businessman would stare and gasp, when one considers this, it is difficult to speak temperately. Anyone who is willing to read a dozen pages for hearty laugh, would do well to scan the "Willingtoniad" and "Scenes from the Athenian Revels," both written for the university magazine. Of his later and best essays at least, it may be said that he wrote almost entirely for pleasure. He desired no more money, his fame needed no augmentation; and as he regarded these works as purely ephemeral he cannot be accused of writing them for posterity. His pleasure in writing was exceeded only by that of the readers who perused his articles. It is by this ability to impart enthusiasm through his pen that Macaulay has made his most valuable contribution to society. No other man possesses the same power to send the young reader to dip into Herodotus, Pepys, Swift, St. Simon, Addison, Johnson, Boswell, or any of a host of writers. In this particular posterity owes Macaulay a debt that is not susceptible of measurement, but certainly one that is of great and constantly increasing magnitude.

For the task of an historian Macaulay was qualified as few men ever were. "His was the combination of literary power, historical learning, and practical familiarity with the conduct of great affairs."

The result of this rare combination of gifts was a work that satisfied the tyrannical expectation of knowledge and the indefinite expectation of ignorance. Macaulay once half humorously said, "I shall not be satisfied unless I produce something that will for a few days supersede the last fashionable novel on the tables of young ladies." He accomplished this truly prodigious feat. Today the tendency in history is to get away from the "drowsy spell of narrative." A descendent of Macaulay's, himself a prominent historian, has aptly remarked that they have broken away from the "spell" at least. The fact that he was able to produce but a fragment of his design and that the reign of Anne, his favorite portion of history, was left untouched is more to be lamented than the discontinuance of Pepys' diary.

I have have to omit allusion to Macaulay's poetry and many other interesting features in his life; but to omit a reference to Macaulay as an orator would be to overlook one of the most considerable aspects of his life and work. Macaulay was a born orator. His style, a spontaneous self-expression, is admirably adapted to declamation. His first speech was almost as successful as his last. His was the true Demosthenic wish, the despair of reporters, the terror of his opponents and the pride of his party. Many of the old members in the House, who had heard both Burke and Macaulay, felt that the latter could well sustain a comparison with the former. An idea very current in his day was that Macaulay's speeches were laborously prepared and memorized. The newspaper reports often contain the phrase "he never forgot a word." The truth is that he never committed to writing anything intended to be spoken. Trevelyan says, "His speeches on Copyright, on the Government of India and on the Dissenters' Chapels Bill turned votes by the score and in some cases, hundred. A respected statesman who makes a specialty of the Factory Laws and of popular Education, used to declare that everything worth saying about the principles of those two great questions might be found in Macaulay's republished speeches." And indeed the host of apt historical and literary allusions make these speeches in no way less readable than the Essays. I thought the following excerpt from a newspaper of the day quite worthy of insertion.

"It was pleasanter talking on Wednesday when the position of Mr. Macaulay in Great Britain was measured in a great way. The talk was not interesting—on a Wednesday it seldom is—and you were loitering along the committee lobby upstairs, wondering which of the rooms you should take next, when as you paused uncertain you were bumped against by somebody. He begged your pardon and rushed on—a Member; a stout Member; a man you couldn't conceive in a run and yet he is running like mad. You are still staring at him when two more men trot past you, one on each side, and they are Members too. The door close to you, marked 'Members Entrance,' is flung open and five Members dash from it, and plunge furiously down the lobby. More doors open; more Members rush out; Members are tearing past you from all points, but in one direction. Then wigs and gown appear. Their owners tell you with happy faces that their Committees have adjourned; and then come a third class, the gentlemen of the Press, hilarious. Why, what's the matter? Matter? Macaulay is up. It was an announcement that one had not heard for years and it had emptied the committee rooms as of old, it emptied clubs." As Dr. Glover would have said, "What a man!"

(H/T still: McLUHAN on MAUI blog)

Marshall McLuhan: Macaulay—What a Man!

Update: Google Docs has made a right mess of the document and I do not recommend anybody trying to read it in its current form. I've posted a PDF version above.

Please find a link to an essay (link to useless PDF removed) by a young Marshall McLuhan on my idol Thomas Macaulay which I happened to run across.

(H/T: McLUHAN on MAUI blog).

Dahlia Lithwick Is Not Very Bright

As part of an ongoing series belaboring the same obvious point, let me repeat that for an alleged legal professional who gets paid by a nationally read publication to explain the law and Constitutional issues, Ms. Lithwick really does not appear to be awfully familiar with either.

From her latest wail:

Say what you want about how Congress forced Obama's hand today by making it all but impossible to try the 9/11 conspirators in regular Article II courts.

Cato...? Anybody...? Would you please send Dahlia a copy of the actual Constitution? She talks a great deal about it, but she might be surprised to learn what is in Article II. Or Article III.

Bonus Lithwick Inanity: We shall not even inquire for a justification of her statement that Citizens United created special laws for corporations. Regardless of the merits of the decision, which are considerable, it indisputably only permits corporations (and unions) to do what everybody else is constitutionally entitled to do—spend money to criticize or praise candidates or policies.

Lawyers Live Forever

With the gloom and doom besetting the legal profession, one bright spot is perhaps worth noting. According to a '99 paper,The Impact of Specific Occupation on Mortality in the U.S> National Longitudinal Mortality Study, quoted by Robin Hanson, being a lawyer seems to be just about the healthiest profession you could have.

If I interpret the graph in Hanson's post correctly, being a lawyer is associated with about a 30% decrease in death rate, compared with the population average. This appears to be the case with or without adjusting for age, gender, race, income, and education. Other healthy jobs include MathSciLib (math/science librarians?), RelgSocSv (religious social service providers?), OffManNEC (?), MedEqMchn (medical equipment mechanics?), and farmers, but—perhaps surprisingly—not physicians.

Equally surprising are some of the high death risk jobs. Why do office workers have a 120% (unadjusted)/60% (adjusted) increase in death risk? Why do food service workers suffer a 160%(unadjusted)/55% (adjusted) increase? While fire fighters and police only have their risk increased by 40%(unadjusted)/10% (adjusted)?

Dahlia Lithwick Can't Do Math

The demonstrated intellectual limitations of Slate's legal correspondent Dahlia Lithwick are a subject of frequent amusement in the blogosphere these days, so—before anybody else jumps in—let me offer an example from her most recent column "Lady Killer." In it she laments the cultural and institutionalized sexism which so often condemns innocent women to death for offenses as trivial as murdering one or more family members:

While women are sentenced to death far less frequently than men, often the offenses for which they are sentenced are also rooted in antiquated gender stereotypes. When women are sentenced to die, say experts, it tends to be for the most sexist reasons. Often, their crimes involve the murder of a spouse or a child, which comes with the assumption that they are bad mothers or unnatural wives. Experts say that men on death row, by comparison, have more often than not killed a stranger and done so in the commission of another crime. Why the double standard? Maybe it's because, from the days of the Puritans, Americans have thrilled to stories of fiendish and beastly women who killed their loved ones. The culture expected white women to be "kindly, passive, virtuous caretakers," writes Phyllis Goldfarb, a professor of law at George Washington University. When they committed murder instead, she writes, "execution seemed utterly appropriate."

Spot the basic statistics error? The high-profile "legal correspondent" didn't!

To obtain probabilistic evidence of gender bias in death sentences for murders of family members, look at the fraction of those charged with (or convicted of) family murders who receive the death sentences. If courts and juries really have sexist biases, then the fraction of women convicted of family murders that receive a death sentence should be higher than the fraction of men similarly convicted that receive a death sentence.

But that is not the measure that Lithwick looks at. She looks at the fraction of men on death row for family murders compared to the fraction of women on death row for family murders. The women's fraction being higher she cries "SEXISM!" But that is no evidence at all. In fact it is entirely expected if men—as is universally conceded—commit more stranger (or more generally, outside-the-family) murders.

To see that, consider a simple stylized example. 100 men commit family murders. Every single one of them receives a death sentence. 100 women commit family murders. Half of them receive a death sentence. In addition, 900 men receive death sentences for other murders. Hence, only 10% of men on death row are there for family murders, while 100% of women on death row are there for family murders. Do we conclude that the "system" judges women particularly harshly for family murder? Not at all. To the contrary, in this example, women are much more likely to receive leniency for family murder than men are.

Bonus Lithwick Math blunder:

Lithwick originally wrote:

Hard to imagine even the staunchest feminist insisting that if women commit 10 percent of the murders, they should die 10 percent of the time for it.

I can take no credit for spotting this one. It was apparently reported by a sentient reader or editor after publication of the article and corrected to:

Hard to imagine even the staunchest feminist insisting that if women commit 10 percent of the murders, they should compose 10 percent of those executed for it.

Postscript: Ms. Lithwick reportedly received a law degree from Stanford University in 1996. Wasn't a reasonable LSAT score required to attend a highly selective law school back then or did it not have logical and quantitative sections? If so, it is difficult to conceive how she was admitted.

Ground Zero Mosque and Fred Phelps

One wonders where all the new Free Speech, Freedom of Religion and Property Rights absolutists—and, by the way, come right in and welcome to the party!—who have turned up to defend the Ground Zero Mosque and heap contempt on its opponents were when Fred Phelps and his Westboro Baptist Church were not only criticized, but criminally prosecuted for demonstrating against U.S. policies contrary to their deeply held religious beliefs.

Or... what is that? Wrong religion to have? Wrong opinions to express? Wrong policies to criticize? Ah, clearly the First Amendment has no application there.

Why Kelo Was Rightly Decided II

An interesting, albeit anonymous, comment on the recent post criticizing the attempts to breathe some sort of independent life argues that the "'public use' prong is well accounted for in the Constitution already" under a "needfulness" requirement derived from certain clauses of the Article I Section 8 and other parts of the original Constitution, in particular the grant of "Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." Hence, the federal government could only own "needful" buildings, which means the same as property for "public use," and with Incorporation, the same requirement applies to the States.

But that theory hardly accounts for a "public use" prong of the Fifth Amendment:

First, the principal source of the alleged needfulness requirement is Article I, Section 8. But the eighteen clauses of that Section are conjunctive, not disjunctive. That one clause may grant Congress authority over certain "needful Buildings," hardly precludes that other clauses may authorize the federal government to own other non-needful buildings. Even to somebody repelled the currently accepted cancerous interpretation of clause 3, it barely even suggests that this is a limitation on all authority of the federal government.

In fact, I am entirely unfamiliar with any modern case in which a court has denied the federal government the power to own any property because it was not "needful." Case law being what it is, it is conceivable that such exists, but it surely cannot be a common type of claim.

But the factual circumstances for such a case seem difficult to imagine. The federal government, directly or indirectly, owns vast amounts of real estate most of which is devoted to nothing at all except wilderness, which may be nice but surely must be the opposite of "needful."

And what happens if the federal government decides to develop an area and lease the land to a property developer? Is the use needful or is it not? If it is, how would it not be in a federal parallel to Kelo? If it is not, what is the remedy? Is the federal government forced to sell the property to the developer? But is that not what happened in Kelo? Give it back to the original owners, even if the cannot be determined? Or must all federal land be barred from development forever because of the needfulness requirement?

Second, strange as these legal consequences are, things truly get bizarre when one tries to incorporate the "needfulness" requirement against the States. A needfulness requirement arising out of a Constitutional grant of power to Congress is the sort of logical incoherence which makes reverse incorporation appear the model of sound legal reasoning by comparison.

If this part of the original Constitution is incorporated against the States, what other parts can or should be? The requirement for bicameralism? Has anybody told Nebraska? Each state needs its own president? Are state legislatures denied all authority within their borders which Article I Section 8 denies Congress within the United States? If not, why just this one?Or does incorporation of the Article I Section 8 power of Congress give each state all the power of the federal legislature? Incorporating a grant of power, rather than restrictions on power like the Bill of Rights, inevitably leads to such absurd hypotheticals.

Finally, none of this in any way resolves the different problems of deeming the Takings Clause to have a "public use" prong. If a governmental act is a taking for public use, it is permitted with just compensation. If a governmental act is not a taking for public use, the Fifth Amendment (incorporated or not) is entirely silent on the issue and cannot be prohibited by it. Tertii exclusi. One cannot meld together entirely two separate legal theories—public-use prong and needfulness requirement—each of which has unsurmountable logical and textual problems and then pretend that some amalgam of the two is defensible because each part lacks some of the flaws of the other.

Environmental Liberaltarianism, Perhaps Not

Recently I had a novel experience: Actual hope that liberaltarianism might have positive future. Even more uncharacteristic than the emotion was its trigger, a perfectly sensible New York Times(!) article praising the success of the 1990 cap-and-trade acid rain program as a model for successful market-based environmentalism:

Most famously, a 1990 bill signed by the first President Bush forced coal plants to buy permits if they were going to emit the sulfur dioxide that caused acid rain. With the price of emissions suddenly higher, the plants looked for innovative ways to reduce pollution — and succeeded more rapidly and cheaply than experts had predicted.

This history is the basic argument for putting a price on carbon today, and the next several weeks are likely to determine whether that happens. The chances of Congress’s passing a permit — or cap-and-trade — system that applies to the whole economy are low. But it could still create a version that covered power plants, if not factories and transportation. That would be no small thing.

David Leonhardt, Saving Energy, and Its Cost, N.Y. Times (June 15, 2010). But the best part of the article was the following quote:

"Instead of leaving it up to the government to identify the solution and tell people what to do, you are leaving that decision to the people who know best," says Nathaniel Keohane of the Environmental Defense Fund. "A bureaucrat would never have enough information to do as good a job."

Id. If hard-core environmentalists at EDF can understand and unashamedly say this, there could be hope for cooperation and sensible policy. However, this week we are informed that:

The original U.S. cap-and-trade market, which succeeded in slashing the power-plant emissions that cause acid rain, is in disarray following the issuance of new federal pollution rules.

The collapse in the pioneering market where power producers trade permits that allow them to emit sulfur dioxide and other pollutants that cause acid rain comes as policy makers seek to establish a similar market to curb the emissions of carbon, a cause of climate change.

The acid-rain market has struggled for the past two years as utilities, states and investors waited for the Environmental Protection Agency to issue new rules. The rules, released last week, put tougher limits on emissions by power plants but rely less on trading. As a result, the allowances that utilities now trade to allow them to emit sulfur dioxide are expected to become worthless.

Mark Peters, Changes Choke Cap-and-Trade Market, Wall St. J. (July 12, 2010). (h/t Greg Mankiw). Apparently they were just kidding about seeking market-based solutions.

If thanks in part to the good-faith support of environmentally inclined libertarians—a small but not entirely uninfluential group— any form of carbon cap-and-trade or Pigouvian carbon tax is enacted, expect to see a Bobby-Bird style command-and-control regime to be imposed on every activity generating CO₂, one of the most common substances on earth, within 15 years.

A Bad Argument Against Terrorist Profiling

In an unfortunately over-elaborate comment on another fine blog, I responded to an argument against using racial, gender, religious, and age profiling against terrorism (such as, for example, in airport screening). Namely, that if such profiling was undertaken terrorist organizations would just switch to using agents which don't fit the profile and we'd all be worse off. I've been repeatedly surprised that this argument arises not only in idle blog comments, but is also made by otherwise more sensible people (e.g., Bruce Schneier) in far more elevated forums. As I'd hate to deprive my devoted readership of several individuals of any pearl of wisdom, let me explain in revised form why that argument makes very little sense.

Before dealing with the argument, let's aside a silly straw man often combined with it: That our only choices are (1) complete disregard for evident surface characteristics or (2) that we rely on stereotypical characteristics of terrorists to the exclusion of all other evidence. Option 2 means performing cavity searches on every young man with a tan and allowing grannies to carry bazookas over their shoulders onto airplanes as long as they also wear a cross, so it follows that Option 1 is the only sensible.

That is—of course—nonsense. Nobody advocates ignoring other indicators of suspiciousness or that any individual, regardless of appearance should be given an automatic pass. The question is whether stereotypical appearance factors should never be given any weight in making any discretionary investigatory decision or that sometimes they should be given some weight—i.e., to use a racial/ethnic/religious/age/gender profile.

To start with what we know: The vast majority of operatives of terrorist organizations seeking to murder Americans (and others) identified from past attempts are young Arab Muslim men. And most of the rest are at least three of the four.

From this it follows that persons of this description must be among the most plentiful, available, and easy to use resources available for such organizations. In other words, this demographic has the highest ratio of reward (in terms of dead or terrorized infidels) to organizational effort (in terms of money, time, and other resources). If another demographic had a better ratio, the terrorist organization would already have switched to them and costlessly increased their effectiveness.

That does not mean that there aren't blond-haired blue-eyed Norwegian grannies who converted to Islam and are now all hot to kill for Allah—surely there must be. What it does mean is that they must be much rarer, harder to use, and generally more expensive means of murdering infidels. If Osama Bin Laden had a granny brigade at his disposal he would already have unleashed it, rather than relying on such a non-diverse and identifiable set of operatives.

So what happens if we institute profiling? Young Arab Muslim men become much more likely to get caught and hence less useful tools. At the same time grannies, given the same amount of total enforcement effort and hassle, become at least a little less likely to get caught and hence more useful tools.

These two effects, while in opposite directions, are not of equal magnitude: The terrorist organization is much more hurt by the declining effectiveness of its chief type of asset than it is helped by the increased effectiveness of a type of recruit it already hardly used because of other reasons. So while there is presumably a shift in the terrorist organization's allocation of efforts, it will on net be worse off (and we better off) after the shift.

How much this hurts them (and helps us) depends on how much more expensive (in the above sense) grannies were for the terrorist organization than young Arab Muslim men before profiling. If currently there was only a slight advantage to using the latter, then the net harm on terrorist organizations of profiling would also be small and so would the net help for us.

While that is possible, this seems unlikely. Terrorist organizations are likely to very much prefer using their current demographic (and hence be hurt a great deal by profiling) for several reasons.

First, there is a substantial individual dispersion within each demographic. If the difference in average between recruits from the two demographics were small, the distributions would likely overlap and grannies would be underrepresented in the sample of terrorist, but still a substantial presence. Instead, we see them hardly at all. That means that the difference in average between the two demographics is likely large and shifting from one to the other would impose a large cost on the terrorist organization.

Second, the difference in inherent characteristics between the demographics as to suitability as terrorist agents are likely to be substantial. While there likely are some socially contingent factors, others are so fundamental and significant that I'd estimate them to have a large effect. Lutherans are inherently less likely to consider the majority population of Europe and the U.S. to be infidels worthy of death than Muslims are. Arabs and Muslims today have a far greater cultural acceptance and valorisation of suicide attacks and even terrorism in general. Norwegians are far less likely to feel—rightly or wrongly—profoundly racially alienated from Americans than Arabs are. And throughout history and almost all known cultures, the young and men have always shown far greater propensity—again for good or ill—for the sort of physically dangerous but potentially glorious pursuits like suicide terrorism.

Finally, and most importantly, it does not matter if my predictions—admittedly based in part on broad cultural stereotypes—for the effectiveness of racial/cultural/gender/religious profiling are correct because the practice itself will demonstrate the correct point for stopping:

At the point of maximum harm to terrorist organization efforts to kill us—and for us the optimum amount of profiling—grannies and young Arab Muslim men and everybody else will have become equally (in)effective. At that point, we would expect to observe terrorist organizations to use all demographics equally. By no means should one pursue profiling beyond that point as it would only help the terrorists.

In other words, keep profiling until the demographics of apprehended terrorists look like America. If it is good enough for the U.S. cabinet, it is good enough for Al Qaeda. And just think how pleased their diversity management consultants will be!

More seriously, I've discussed a superior way to compensate the vast majority of innocent young Arab Muslim men (and others) who are inconvenienced by profiling twice before.

Why Kelo Was Rightly Decided

In Kelo v. City of New London, 545 U.S. 469 (2005), the Supreme Court upheld the involuntary seizure of Ms. Kelo's house by the City of New London, which immediately resold it to a property developer, against a challenge that this was not a "public use" and that the seizure therefore violated the Fifth Amendment's for-public-use clause. A great number of my friends with political views I find generally congenial and with substantial legal talent have taken great exception to this decision and undertaken substantial efforts to have it overturned.

I rarely have opportunity or inclination to say so, but in this case Justice Stevens—who wrote the majority opinion in Kelo—was right, if perhaps for the wrong reasons; and my redoubtable property-rights protecting clever friends are wrong.

When discussing the proper interpretation of a legal document, even a Constitution, it is often useful to read the actual operative text—this will not settle every question of interpretation, but it will exclude many earnestly tendered misinterpretations and does not take long. So here it is:

[N]or shall private property be taken for public use, without just compensation

U.S. Const. amend. V (Takings Clause, actual).

The language could not be plainer: The Fifth Amendment is completely silent on the subject of property not taken for public use. Hence, most of the advocates of a strong for-public-use analysis are aiming their fire in the wrong direction. If they could establish a category of takings which were deemed to fall outside the "for public use" category, the Fifth Amendment would not ban such takings. To the contrary, taking deemed not "for public use" would lose all existing constitutional protection, including the just-compensation requirement. If they had prevailed, the correct legal conclusion would not have been that Ms. Kelo got to keep her house, but that City of New London would have been able to take it without even having to pay her just compensation. This could hardly be the preferred outcome for the self-styled champions of Ms. Kelo's rights.

Rather, the advocates of a strong public-use analysis seem to be basing their argument on a different (i.e., imaginary) version of the Takings Clause which reads something like this:

[N]or shall private property be taken [except] for public use [and] with[] just compensation

U.S. Const. amend. V (Takings Clause, as imagined). But, despite some unfortunate dicta in some court cases, that is not what the actual Fifth Amendment says. Judges and lawyers charged with upholding the actual legal document should take their cues from its text, rather than from what they wish it said, as if some grand act of legal make-believe could change the text.

That simple fact should be sufficient to end any legal case based on the theory that one's property was taken not for public use. But even if one examined the entirely separate question of whether the actual Takings Clause should be replaced with the imaginary one through constitutional amendment, the right answer for friends of private property should still be no—the imaginary takings clause would impose practically no constraints on the government and, in so far as it nevertheless affected government conduct, the incentives created would be harmful to the cause of liberty.

Imagine that the for-public-use clause was a separate substantial legal requirement on government takings and that transfers to other private owners would be barred by it. Very little good would come of this.

First, any determined government could trivially circumvent it. All the City of New London would need to do is take ownership of the land and keep it while renting out the land on agreeable terms to a management company (i.e., what otherwise would be the property developer). Appropriate financial arrangements can be made which achieve nearly the same outcomes as if the City of New London could just sell the property to the developer outright. Nothing in this would benefit the Ms. Kelos of this world.

Second, we would have created yet another unnecessary area of indeterminacy in constitutional interpretation: How long does the City of New London have to hold the property before it is allowed to sell it? A day? A year? Forever? Nothing in this imaginary Takings clause even hints at a principled answer to this question.

Third, while a short holding period requirement would do little to even formally restrain a government bent on taking private property, a long one would be even worse. Do we really want to create a whole new class of property in this country which can only be held by the government with the government holding all residual claims? Property which can't ever be returned to private ownership? I understand that some nations have ill-advised policies which bar foreigners from buying certain types of property, like real-estate and natural resources, within their boundaries. But at least those countries usually allow their own citizens to own such property—we are proposing to bar even natives from owning certain properties. And we want to do this in order strengthen private property rights? This makes very little sense.

None of this is to suggest that the (actual) Takings Clause is not an extremely important constitutional provision. I believe strongly to the contrary. But all the real work of the Takings Clause is done by the just-compensation requirement. The for-public-use clause imposes no substantial independent requirements. Attempts to give additional meaning to the for-public-use clause are deeply misguided and true friends of property rights would do much better to direct their efforts at strengthening the just-compensation requirement—an area in which the Supreme Court has often ruled badly and could use some correction.

One criticism of this position which could be raised is that it effectively reads the for-public-use clause out of the constitution by depriving it of any independent meaning. Indeed, it is a sound principle of legal construction that every legal document should, as far as possible, be interpreted to give meaning and effect to every clause. Interpretations which fail to do so are—while not necessarily wrong—rightly disfavored.¹

But the interpretation of the Takings Clause given here does no such thing. To see that, imagine the Takings Clause without for-public-use language:

[N]or shall private property be taken … without just compensation

U.S. Const. amend. V. If one recalls that "taking" in the real property context—and most of the relevant property is real—can refer to any coming-into-possession-of without implying either involuntariness or government action, it is easy to see why public-use clause was added. Without it, the Takings Clause could easily be misinterpreted (and not necessarily, mis-!) as requiring that the price term of every private real estate deal must be approved by a court. Adding the for-public-use language to the Takings Clause is one of the simpler ways of barring such an interpretation and making clear that the clause only refers to involuntary takings by the government. That is sufficient to give the clause meaning and purpose. Trying to make it do anything more or else does violence to the language of the Takings Clause and leads to absurd or harmful consequences.

¹ This, however, is not an argument available to those—including all proper left-thinking legal scholars and practitioners and sadly the U.S. Supreme Court—who have adopted an interpretation of U.S. Const. art. 1 § 8 cl. 3 which renders the remaining 17 clauses of U.S. Const. art. 1 § 8 meaningless surplusage apparently enacted only to fight the previously unreported severe ink glut of 1787. But they are largely not the ones to which this post is addressed.

Why the Progressive Discontent with Obama?

I do not understand why so many progressives and modern-day liberals have of late come out with their discontent with the Obama administration. It is true that the wars in Iraq and Afghanistan continue and that the Guantanamo terrorist prison remains open, but these are ephemeral matters compared to Obama's enormous achievements in your cause. Obama was your promised dreamboat and, less than 2 years into his first term, he has delivered for you beyond measure.

First, there was of course the trillion dollar stimulus bill. This measure alone, achieved within weeks of his inauguration, moved about 7% of the economy out of private decision making and into your hands in the government, state and federal combined. Much of this shift moved the baselines of future spending, so it is likely to be permanent. That alone, even without any of Obama's later achievements, undid and more all the baby steps towards individual control and private choice achieved by all Republican administrations and congressional majorities since Reagan. It totally and unambiguously restored all your power over the U.S. citizens back to its peak and more.

Second, and even more momentous, he delivered your health care bill. This bill will, as intended, achieve for all practical purposes a nationalization of the health care industry. Within a few years doctors, nurses, hospitals, the pharmaceutical industry and even insurance companies—if they are permitted to continue to exist in some form—will be as totally within your control and at your mercy as all components of the education industry are today. Everybody in this entire sector, constituting about one sixth of all economic endeavors in the nation, will be your client, dependent on your largess for their prosperity or even survival, as teachers and teachers' unions are today. Realizing this, they will turn out en masse whenever you need their votes, their money, and their support to take over another sector of the economy.

Third, all of this has happened within less than two years. With any luck, you will achieve the same degree of Gleichschaltung in the financial industry. But even if you do not, it seems almost inconceivable that any effective resistance to your power will remain in this nation. Thanks to Obama and his Congress, you have achieved your long-sought goal of permanently ending this nation's tradition of liberty and limited government. From the Obama administration onward, you have achieved total power and there will be nothing which you cannot control. You will be able to impose your will and your choices on the helot citizenry on every matter.

So why the discontent? The only answer I can think of is tactical. It is likely that your party will encounter a political setback in the elections in a few months. Perhaps you do not want to be too jubilantly associated with it on that day. But this will be at most a minor setback in your project and spitting on the hand that achieved so much for you is a shabby thing.

A (Non-)Rejoinder to Prof. West on Home-Schooling

Prof. West does not hold unregulated home schooling in high regard (hat tip to Walter Olson's tweet, The Common Room's post, and Big Journalism's note):

The husbands and wives in these families feel themselves to be under a religious compulsion to have large families, a homebound and submissive wife and mother who is responsible for the schooling of the children, and only one breadwinner. These families are not living in romantic, rural, self-sufficient farmhouses; they are in trailer parks, 1,000 square foot homes, houses owned by relatives, and some, on tarps in fields or parking lots.

Robin L. West, The Harms of Homeschooling, 29 Philosophy and Public Policy Quarterly 7, 10 (2009).

As (1) an atheist (2) living with an anything-but-submissive wife (3) in a pleasant home closer to 10,000 than to 1,000 square feet we own (4) in the wealthiest large county in the U.S. (5) in small, but not completely insignificant, part thanks to once upon a time having aced Prof. West's jurisprudence class and received a letter of recommendation from her, but who (6) nevertheless intends to home school his toddlers with his wife and without regulation, I am not quite sure how to respond to this.

PS to Prof. West: Rawls's maximin principle so does too imply an extreme form of risk aversion inconsistent with observed preferences!

Against Postal Savings Accounts and Other In-Kind Benefits for the Poor

The oft-sensible, always-reasonable Reihan Salam thinks that Postal Savings Accounts for the poor might be a swell idea:

But a public option for prepaid debit might be a reasonable, cost-saving idea.

Here’s one conceptual approach: Mitch Daniels has advanced the idea that government should work to increase the net disposable income of households. That implies focusing on tax restraint, delivering value for money in public services, and seeing to it that transfer to the poor aren’t wasted. When astroturf groups pop up to oppose the expansion of Walmart and other chain retailers in urban neighborhoods, they’re not just attacking the interests of Walmart shareholders and low to moderate income households that could use the lower prices. They’re also working against the taxpayers who transfer resources to low income households to keep those households out of poverty. The dollars skimmed by higher cost retailers were meant to make it easier for poor households to channel resources towards economic advancement.

I certainly don’t have a settled view on this. But I do wonder if a “public option” on prepaid debit is preferable to a command-and-control ban on payday lending, to name just one example of an anti-usury initiative.

This proposal seems to fail in a number of ways under standard economic scrutiny.

First, by any reasonable measure the market for issuing such cards is fully competitive. In other words, there are any number of existing private financial institutions which could issue such cards with little or no barrier to entry.

So why don't they? Perhaps there is some obscure regulation that prevents it. If so, let's just repeal that regulation and be done.

Much more likely they don't because it would not be profitable. If you at the same time believe that (a) banks can do it, (b) it would be profitable, but (c) they don't do it because they are so greedy, please have the nearest professional check you for other symptoms of high-level cognitive dissonance.

Second, just because it would be unprofitable doesn't mean the federal government can't do it, heavens knows. But why should it? Why not just give the cash to the poor directly and let them decide whether they want to spend it on fees for prepaid debit cards or something else they value more highly?

Third, the only plausible response to that argument is that the poor are foolish and would spend the money on something much less valuable to them than prepaid debit card fees.

That is conceivable, but I have my doubts. Most (generally non-poor) advocates who make that argument seem to have a very difficult time distinguishing between what they think poor people should value more highly and what the advocates subjectively value.

Moreover, most of these advocates don't really seem to believe in that premise itself. If they did, they would certainly support paying for a new specific poverty program (like government subsidized debit cards) out of the budgets of existing poverty programs granting cash or cash-like benefits to poor people (like food stamps).

After all, if these advocates really believe that poor people are too foolish to spend their own cash as well as the government can do it for them, that would be a net gain and, if these advocates—as they claim—really have the interest of the poor at heart, they would favor the specific program even if the funding came out of the budget of a cash-like program.

Instead, they almost never do which, on their premises, seems unexplainable.

One plausible alternate set of beliefs for these advocates is that they do not really believe in the unequaled advantages of the specific benefit for the poor they argue for or that the poor are too foolish to recognize this advantage. They just believe in greater redistribution to the poor. That argument often being unsuccessful in the public sphere, they instead resort to elaborate arguments for various specific in-kind benefits and focus on the details on why just this benefit would be particularly wonderful. While I disclaim the power of reading men's mind, that set of beliefs is at least consistent with observed behavior.

And, unfortunately, the trick sometimes works to sprinkle fairy-dust even in the eyes of well-meaning, reasonable conservatives like Reihan Salam who sometimes are overeager to display their reasonableness to the other side.

PS: He is of course right on Walmart. That is one reason I said that he is reasonable and well-meaning.

Paul Krugman May Be Biased

I realize that this will come to some of my readers as a revelation on the order of the statement that all other things being equal, on average and in the long run, evidence seems to indicate that water is wet. This post is principally for the benefit of those of my gentle, educated and clever friends and—I hope, at least occasional—readers who take the opposite view that this claim is a vile slander on the integrity of our recent and most honest recipient of the Swedish Riksbank's Alfred Nobel Memorial Prize in Economics, crying out as a lone voice of reason and sense on the campus of a clown college small community school and in one of the last bastions of unbiased reporting, albeit it a provincial circular.

The latter should read the most recent issue of Econ Journal Watch and in particular the article When the White House changes party, do economists change their tune on budget deficits?

Economists differ on the risks and benefits of budget deficits on fundamental grounds and even when there is fundamental agreement economists may reasonably change their opinion on the issue depending on economic circumstances. Given that much leeway, much of the variability in the urgency and frequency of counsel for or against deficit yields only limited evidence of political bias. The most glaring exception appears to be our dear Herr Doktor Professor Paul Krugman whose views on the issue appear to follow changes in the party currently in control of the White House with almost acrobatic alacrity. Those who still take his popular writings as a reliable source of economic intelligence may just want to bypass the middle man and just read the DNC's press releases on the subject straight.

But the principal reason for this blog post is that it gives me an opportunity to quote the article's opening epigraph:

A true party-man hates and despises candour; and, in reality, there is no vice which could so effectually disqualify him for the trade of a party-man as that single virtue. The real, revered, and impartial spectator, therefore, is, upon no occasion, at a greater distance than amidst the violence and rage of contending parties. To them, it may be said, that such a spectator scarce exists any where in the universe. Even to the great Judge of the universe, they impute all their own prejudices, and often view that Divine Being as animated by all their own vindictive and implacable passions. Of all the corruptors of moral sentiments, therefore, faction and fanaticism have always been by far the greatest.

—Adam Smith, The Theory of Moral Sentiments (1759)

Racial Profiling Done Right: An Addendum and Response to Comments

The other day, I suggested a method by which law enforcement could use valid statistical inferences from subjects' surface characteristics (like age, gender, race, and so on) to focus their investigative attention without victimizing those who merely shared those surface characteristics, but were individually quite innocent: offer just compensation for those subjected to additional scrutiny and delay.

If that surface characteristic is apparent racial or ethnic background, the position of two main political tendencies in the U.S. is clear: The Left considers it an intolerable intrusion on the innocent which should be banned regardless of statistical validity. Most of the Right basically says "Though cookies if you happen to be (or look like) a member of any group disproportionately involved in criminal activity."

Neither of these positions seems morally or economically tenable. While race enjoys a different status in U.S. law than other surface characteristics,¹ the non-legal arguments for and against racial profiling are equally applicable to most other surface characteristics.

If your description resembles that of a recently reported bank robber, you are more likely to be questioned by the police, even though you are entirely innocent. Similar consequences await you if you drive a car resembling the getaway vehicle. And if your identical twin makes the FBI Ten Most Wanted list, you can look forward to years of police interference, even if you are the most law-abiding citizen.

The logical consequence of the Left position is that using any less-than-definite surface characteristic to focus investigative attention on specific subjects is wrong. In short, a law enforcement offer must have proof of specific law-breaking before even questioning anybody, lest an innocent be inconvenienced. Carried to this logical conclusion, the Left position would make police investigation of many or most crimes virtually impossible.

The logical consequence of the Right position is hardly better. If you happen to look like a particular criminal, or even look like you are a member of a group disproportionately involved in crime, you'll just have resign yourself to be hassled by the police more than others for the remainder of your days, even if you have never violated any laws yourself. In fact, you should not even be upset that you (and, depending on characteristic, your equally innocent family and many friends) must bear the cost of the enforcement of laws the benefit (assuming it is a sound law) of which is enjoyed by many others who have to make no similar sacrifices.

In short, the only solution which even remotely approaches fairness, efficiency, and logical consistency is something like the one proposed here.

Let me also respond to two anonymous comments criticizing the anti-tickets.

First, it was suggested that making law enforcement pay for the time they take from private citizens would lead to under-enforcement. That seems unlikely. Remember, the anti-ticket is not a social cost, but purely a transfer. The cost is created by stopping and hassling private persons. The question is whether this cost is better borne by whomever the police choose to stop or by the public. As the benefits of good law enforcement investigation accrues to the public (mostly, local) and the decisions whether and how many stops to make are made by public officials (again, mostly local) answerable to the same public, the incentives will only be properly aligned if that same public also bears the cost. If that public decides that the crime reduction caused by certain types of police stops just isn't worth the cost, they should stop. To say that they should continue, but the cost should just be sloughed off by the public onto whomever the police care to stop is perverse.

Second, and this may only be of interest to the legally inclined, it was suggested that the elimination of qualified immunity—a legal doctrine under which individual public employees are not liable for damages caused by their violation of the Constitution, unless it was or should have been extremely clear to them that their course of action was unconstitutional—would be a better solution than the anti-ticket. While elimination of qualified immunity may indeed be a good idea (the author is inclined to think so), it would hardly solve the racial profiling issue for a whole host of reasons:

1. Racial profiling, that is making law enforcement decisions in part on the basis of ethnic appearance, is—contrary to carefully stoked public perception—not unconstitutional (or even generally illegal). See, e.g., U.S. v. Vite-Espinoza, 342 F.3d 462 (6th Cir. 2003) (and cases cited therein).
2. Even if racial profiling was unconstitutional, it shouldn't be. Ethnicity is a bit of available and statistically valid evidence in many circumstances faced by law enforcement officers. To discard it would cause either more innocent people to be hassled, more genuine criminals to go unpunished, or most likely a combination of both. And anybody who argues that it is nevertheless so morally distasteful that it should never be engaged in should also offer an explanation why the same does not hold for the at least equally ubiquitous law enforcement practices of gender and age profiling.
3. Even if racial profiling was unconstitutional, enforcing that right via law suit against individual police officers is almost certainly useless. Very, very few people have time that is so valuable that it would be worth the enormous legal costs of bringing a suit for a lost quarter hour. And in that rare case that the damages would be so large as to justify the legal fees, the individual law enforcement officer (that is, the person against whom a suit would be made more winnable by the elimination of qualified immunity) would be nearly judgment proof.
4. Even if racial profiling was unconstitutional and there were no legal fees, any case would have to rest on proof that the individual law enforcement officer considered race, among other factors, in making the stop or arrest. Without a confession or other extraordinary stupidity, that is going to be nearly impossible to prove in any given case.
5. Finally, even if racial profiling was unconstitutional, there were no legal fees, and the plaintiff has bullet-proof statistical evidence of racial discrimination, any case would still likely be lost. Assume that the plaintiff could prove using a vast statistical study (financed somehow and with the data collected without cooperation of a likely hostile police department) that all else being equal members his or her ethnic group were stopped 50% more often than others behaving in an identical manner. Such a plaintiff would (and should!) still lose. Even if there is a 50% increase in stops due to racial profiling, two-thirds of those stopped would have been stopped regardless. Hence, it is more likely than not that any individual plaintiff would have been stopped anyway and hence suffered no damages due to racial profiling.

Some of the problems of statistical proof and legal financing could be solved by a class action suit. But what would be the remedy in such a case? If you believe that racial profiling is or should be per se unlawful, there could be an injunction. Even in that case, it is hard to see how that injunction could be enforced without a racial quota system for stops and arrests, a measure which even most opponents of racial profiling would blanch at. And if you believe that there should just be money damages for stops, why not skip the whole rigmarole of a law suit and achieve the same end more simply through the anti-ticket?

¹ Among the surface characteristics frequently used by police, gender comes the closest to race in legal status. Under the U.S. Supreme Court's interpretation of the Constitution, gender discrimination is nearly as difficult to justify as racial discrimination (i.e., nearly impossible) and all progressive legal scholars I've ever discussed the subject with support closing whatever gap there may yet exist. That leaves the issue, alluded to before, of why racial profiling is a cause célèbre to the Left, but the at-least equally prevalent gender profiling is a non-issue.

Racial Profiling Done Right

After our most recent excursions into areas of policy where even clear thought fails to readily yield an optimal solution, let's instead wade into a current controversy for which there is a simple solution which ought to be acceptable to all concerned but which never seems to be propounded: racial profiling. That is the practice, often statistically justified, of law enforcement to make discretionary decisions (such as whom to stop, question, or search) in part on the basis of apparent ethnic origin of the subject.

Let's set aside one issue: If racial profiling is used to enforce bad laws, as will arguably be the case under the recent Arizona immigration law, the outcome will be bad. But in this case, that is because the law is bad, and any effective tactic to enforce a bad law should be deemed equally bad. Hence, the argument here is with the law, not the enforcement tactic. So instead let's focus on using racial profiling to enforce otherwise-sound laws, like those against murder, rape, theft, or terrorism.¹

Attitudes towards racial profiling generally align along political lines: Conservatives, arguing rightly that racial profiling will often be a statistically valid and efficient way of focusing police resources while minimizing the total intrusion on private persons, mostly endorse it. Modern liberals, arguing rightly that most of the intrusion will be experienced by innocent members of some ethnic groups and that state action conditioned on ethnic status is contrary to this country's stated principles², are against it.³

But here is a solution which would allow law enforcement to capture the efficiency gains of racial (and other) profiling without victimizing anybody: Just compensate anybody whose time is taken by the government, just as you would if it involved their property. In other words, every time a police officer stops and questions a person or subjects them to additional delay, at the end of the encounter the officer must write a kind of anti-ticket for $X for each minute between the stop and the time the subject is let go (or, upon the development of probable cause, arrested). The subject in turn could turn the ticket to cash at any bank.

The beauty of this approach is that it properly socializes a public good, the search for, arrest, and detention of real criminals. But rather than imposing the cost of this public good disproportionately on minorities (ethic, gender, or age) the vast majority of which, including most who are stopped, are entirely innocent, the cost will also be born by the public at large. As a matter of general principle, policies will always be more successfully planned and carefully executed if their costs and benefits are borne by the same entity who controls them. In the case of public safety and police officers, the public at large is already the beneficiary and at least the best candidate for controlling law enforcement policy. As the benefits and control already lie with the public, so should the costs.

A few objections against this policy do not hold much water:

• The first of these is that it would cost too much. But the policy only costs anything in the most narrow government accounting sense. In the economic sense, it is no cost at all: just a transfer of money from one pocket to another. And in so far as this transfer improves incentives for efficient behavior by law enforcement, there is a general gain in social welfare.

  It is true that groups who ordinarily get stopped by the police less often (whites, women, the very young and the middle-aged and older) would on average end up with less money in their pockets while those who are stopped often would end up with more. But that is just a question of cost distribution. If those who now pay for police stops find the cost excessive, then it always was—it just previously came out of somebody else's pocket. In that case, police procedure should have been adjusted all along.

• The second objection is that it would pay even those arrested and convicted, that is, usually real criminals. That is true, but less significant than it seems. Waiving the anti-ticket if there is an arrest (or allowing any other sort of waiver) would just create too big an incentive for an unethical cop who stopped an innocent to offer an implicit or express bargain: You waive the anti-ticket and I won't fabricate cause for arrest (e.g., break your tail light).

  As a practical matter, when there is a bona fide arrest and prosecution, the anti-ticket would just be offset against court fees and fines which otherwise would be waived for the typical indigent or judgment-proof defendant. So unless the detention was so long that the anti-ticket would be larger than these fees and fines, there would be no net payment to criminals. And in the rare case of an excessively long detention for a trivial fine smaller than the anti-ticket, a net payment to the "criminal" would not be wrong.

• Next, some may complain that this would just be a license for racist police officers to indulge their preference by hassling innocent minorities. Maybe so, but that seems unlikely. The innocently stopped would all be compensated, so this really amounts to no more than a license for racist police officers to hand out free money to ethic minorities—one that is unlikely to be exercised once the cop realizes that is what it amounts to and, even if it did occur, would be less than tragic for its victims.

  Moreover, the anti-ticket creates its own audit trail. The perhaps mythical, perhaps real racist cop who just likes to inconvenience innocent members of disliked groups to gratify his or her own animus, would quickly run up a large tab of anti-tickets without any record of arrests and convictions to show for it. That should serve as at least some deterrent to such behavior.

• Finally, it may be argued that while the anti-ticket could compensate for lost time, there still remains an element of uncompensated emotional or dignitary damage. I am not entirely unsympathetic to this concern. Having been stopped by the police a few times in my life, introspection suggests that given a choice between any plausible amount received for a hypothetical anti-ticket and not having been stopped in the first place, I'd still choose the latter. But then this author is reasonably well off and may be more sensitive to being subject to involuntary questioning than the average person.

  That said, it seems hard to see how the anti-ticket would not still be a, perhaps incomplete, improvement. There are few ways in which strangers can convey their apologies for having bothered you more convincingly than cold hard cash, going at least some way towards easing the dignitary insult. In addition, any other remedy for abusive police conduct, like unjustified physical assault, would remain in place. The anti-ticket would be on top of such other remedies and purely for the currently uncompensated injury of lost time.

The most serious, but hardly insurmountable problem with the anti-ticket proposal is getting the amount right: Too small and there will be no effect; too large and you encourage an industry of people deliberately acting suspiciously while not actually committing any crime in order to profit off the over-generous anti-tickets. What's more the amount cannot be tailored carefully to the situation if it is to remain administrable and enforceable. Anything more variable than a fixed amount per minute of delay would probably be too complicated.

That said, an amount on the order of $1/minute of delay seems about right. It would compensate most individuals at a rate higher than their marginal cost of time (that is, at the equivalent of a wage of $60/hour after tax), while still likely preventing most schemes to be stopped for profit from being lucrative. Perhaps, legal suits should be permitted (by either police or subject) where the plaintiff would bear the burden of proof that the compensation would either be grossly inadequate or excessive in a particular case; given the transaction costs of the legal system, these would presumably be rare.

So what do my gentle readers think?

¹ There is the argument abroad that racial profiling cannot work against terrorists. Even though some persons worthy of respect make it, I do not believe that it is a very strong position under real-world conditions. But that is an argument for another post.

² It is unclear on what principle the at-least equally common and equally justified law enforcement practices of gender profiling (i.e., focusing their attention on men, rather than women, on the basis than men disproportionately commit violent and, to a lesser degree, non-violent crime) and age profiling (i.e., focusing on subjects in the prime crime ages of 15 to 35 years or so) are not equally controversial. Discarding the requirement of principle, one could speculate.

³ It is hardly original, but worth noting that this is an 180 degree reversal from the position generally taken by these two camps when it comes to the distribution of benefits, such as university admissions or hiring. Some modern liberals will quite frankly admit that they feel that the history of this country justifies a thumb on scale for certain previously disfavored, but now favored groups. Hence color-blindness is not a principle for them but merely a convenient stick to beat up policies harming the groups they favor equally conveniently discarded when it comes to policies where it points the other way. This at least has the benefit of honesty. Most conservatives fail to offer even this much of an explanation for their reversal and one cannot help but wonder if their commitment to color-blindness is confined to cases where its absence inconveniences them and theirs.

Changes on Comment Moderation and Twitter Feed

Two small changes, one hopes improvements, to the blog:

1. Comment Moderation. It has been turned off for recent posts. I thought everybody in the world had a Google Account or other OpenID, so the previous policy was a costless way to prevent blog spam. However, I'm authoritatively informed that this was a mistaken impression. Still, users identified by Google Account or other OpenID might be safer from automatic spam moderation and enjoy other benefits under Google's blog commenting software.

2. Twitter Feed. This apparently is de rigueur for all the With-It bloggers, so there is one for this blog now. Find it at @subspecie. New posts should show up on it automatically.

Drunk Driving Licenses

Apart from the occasional self-indulgences like gloating (prematurely) or playing gotcha, I like to write about questions which I find interesting in the hopes that so will my band of readers. A question is interesting usually because it is hard; a question is hard usually because there are non-obviously-wrong arguments for both sides. One such case is whether it should be against the law to drive drunk.¹

Let's start with a few assumptions (all which are, to the best of my knowledge, undisputed facts):² The influence of alcohol degrades driving performance. There may not be any threshold beneath which there is no effect, but even if there is a threshold, it is quite low. Even under the current state of legal prohibition against drunk driving, tens of thousands of people die in the U.S. every year because of traffic accidents which would not have happened (or been fatal) if all involved drivers had been completely sober. Many of those who die (or are otherwise injured, often severely) were not themselves under the influence, or even passengers of the affected drivers who could arguably have said to assume the risk.

So, case closed; so much for that "hard" question, right? Not quite.

After all, the question for debate was not whether it should be against the law to negligently or recklessly injure or kill innocent bystanders. That is the one with the easy "yes." The question was whether driving drunk per se—i.e., regardless of whether anybody has been hurt—should be subject to legal punishment.

Answering "yes" to that question seems straightforward, but runs headlong into one of the most basic and soundest principles of good law-making: That the state should only impose legal punishment, civil or criminal, where there is a specific, involuntary victim.³ Without such a victim, the state is just meddling: The driver after all chose to drink and presumptively for good reason: enjoyment is a good reason. Without any offsetting loss somewhere else—and in cases where there was no victim there appears to be none—legal prohibition of drunk driving seems sub-optimal: In so far as it deters the driver, it makes him or her worse off by the opportunity cost of drinking. In so far it does not, it makes him worse off by the legal punishment (and the rest of us by paying the cost of imposing that punishment). So laws against drunk driving just seem to be contrary to sound principle and economically inefficient.

The obvious response to that is that while any individual act of drunk driving may be victim-less, each creates a small, but non-trivial, risk of serious harm. Therefore drunk driving should be prohibited regardless of whether any particular instance actually causes any harm.

Except that is not the way we regulate risk generally and for good reason. Generally, individuals are free to do all sorts of risky things: Hang-gliding, working as a miner or lumber jack, operating an off-shore oil-rig, performing (or having) high-risk surgery, or even just plain old driving a car completely sober. The risky behavior itself is not prohibited; only if the harm occurs is there any legal sanction: the risk taker just has to bear his own damages and, depending on circumstances and legal standards, the damages suffered by others.

That is a good rule, both from the standpoint of principle for a free society and, not coincidentally, from the standpoint of economic efficiency. If you internalize all the benefits and risks to one person and then allow that one person to make the decision whether to engage in that risky behavior,⁴ you will generally get just the right level of risk taking: Those activities which overall are beneficial will be undertaken and those which are not, will not.

The problem with applying this rule to drunk driving is that the rest of our legal system is insufficient to deal with cases in which a serious accident actually does occur. Damages to the victims are easily evaded through bankruptcy (or even the threat thereof). Even if these damages were non-dischargable, it seems doubtful in many cases that the perpetrator would ever be able to offer full financial restitution. Even criminal penalties for drunk driving causing severe injury or death to innocent bystanders (while much harsher than they once were) are still extremely lenient compared to those meted out to criminals who cause the same amount of harm intentionally.

So, when the risk actually occurs, we will not adequately deter the perpetrators and often cannot sufficiently compensate the victims of drunk driving. This under-deterrence will, by standard economics, lead to an overindulgence in the risky behavior. So we have a law which places additional deterrence against the very act of taking the risk, regardless of whether it actually occurred: the law against drunk driving. This is probably wise and creates more economically efficient incentives than a regime which permits drunk driving in combination with the limits on deterrence and compensation mentioned above.

Still, there is something about this which rankles this author's principle explained above. And perhaps the combination over-deters drunk driving too? Certainly, given physiological fact, it seems hard to believe that it does not under-deter drivers just beneath the legal limit or over-deters drivers just above it (or both). And is it not a dangerous precedent towards all sorts of slippery slopes?

So I would suggest a solution for at least a part of the problem: An optional license to drive drunk available only to those who can post sufficient bond or insurance and assume sufficient criminal indemnity that they will not be under-deterred. Note that such a license would not protect against legal liability for damage caused to others: Drivers with such a license would still face full civil and criminal sanction for that. The only difference is that the mere fact of driving under the influence would not itself be a crime for such drivers.

Needless to say this is not an entirely satisfactory solution. The collateral or bond posted would have to be large enough to cover judgment even in very severe cases (like multiple deaths of innocent bystanders) and would hence likely would be in the tens of millions—in other words, anybody who could afford a drunk driving license already can afford a chauffeured limousine, a currently available alternative. As for the insurance option, it seems likely that the adverse selection problem would be so severe that the premium would also be more expensive than currently available legal options.

So are we stuck in the current second best (at best) solution?

¹ That I consider this to be a hard case may convince some of my readers that this author is a "case" of quite another kind. But please hear me out.

² Should any of them not be, kindly correct me in comments, preferably with citations—but please avoid claiming that I made any unstated assumptions or jumped to conclusions.

³ Yes, this author is aware that there are other, indeed many, laws which violate this principle. But in these other cases, the author is against those other laws because they violate this principle (or at least that is a shorthand for the author's opposition). Whether and why laws against "drunk driving" should be any different to this author (and those similarly inclined) is what makes this question interesting.

⁴ This assumes that the risk taker is rational. And, yes, the author is aware that there is evidence that some people in some situations do not act rationally; indeed, most people most of the time do not consciously reason the way the caricature of homo economicus does. Yet, this author is willing to defend in another post the proposition that within a liberal legal system and society, most mentally competent adults make most important decisions in their lives as if they were homo economicus. In short the rationality assumption only be true by introspection for small fringes of society (including many economists and fellow travelers), but nevertheless true as a matter of positive economics. And, specifically to the subject at hand, while it may be disputable whether an inebriated individual is fully rational, the person who decided to get inebriated generally would be.

Weak Arguments Against Illegal Immigration (Part 1 of Possibly Many)

Last week, I asked Prof. Landsburg (who was so kind today as to repost my Al Gore post) to respond to some of the less silly arguments against large scale immigration, rather than just making fun of some of the sillier ones, and the good professor graciously responded in comments on his blog and while I have one or two thoughts in reply, none are urgent, earth-shattering, or sufficiently well steeped in reflection that the world could not wait for them another day.

Instead let me take the opportunity to seriously respond to one of the weaker yet popular arguments against the current wave of low-skill large-scale immigration bandied about today, to wit: That most of it is contrary to the laws of the United States. It usually takes the form of rhetorical questions like "What part of 'illegal' don't you understand?" and is frequently considered by its advocates an irrefutable argument ender.

Yet it is hardly that as a little further thought demonstrates. But first to give its advocates their due:

First, in so far as they merely stress the illegality in protest against the common media euphemism "undocumented worker"—as if any non-trivial number of these had just misplaced their legal work authorizations, rather than working and living in the United States in violation of the law, i.e., illegally—or the equally odious media practice of equating opponents of illegal immigration as "opponents of immigration"—while slyly hinting that this renders them hypocrites as immigrants or descendants of immigrants themselves—their ire at much reporting is not misdirected. But that of course is not the fault of the actual illegal immigrants and hardly settles what would be a just way of dealing with them.

Second, a strong social norm in favor of legal conduct is probably a necessary (but not sufficient) condition for the continued existence of liberal, open society—that is one, in which most people most of the time are free to do as they please for their own reasons and without governmental surveillance. As a lawyer and a blogger who just denounced two scholars for completely ignoring legality in their arguments about the propriety of strategic mortgage default, I would be a hypocrite to argue otherwise.

That said, the fact that many immigrants are illegal does not settle the questions (1) of whether they ought to be and, even if they ought to be, (2) how severe a punishment can or should be imposed on them consistent with either economic efficiency or our moral sentiments.

First, whether a particular immigrant is illegal depends on the whim of Congress; whether he or she ought to be depends on moral and economic reasoning. The faint hope that there is some sort of relationship between the two survives, but obviously it is not perfect. Some laws—imagine a law requiring people born on odd days of the month to murder and take the property of their neighbors born on even days—are so wrong that it would be profoundly wrong to obey and absolutely require breaking. Some laws—think of import restrictions and tariffs to protect special interests like steel manufacturers—are wrong to a lesser degree, so that one may obey out of prudence or, if you will, cowardice and yet would cheer their violators—as this author would any brave steel smuggler! To derive, with mathematical certainty, that certain immigrants should be illegal because they are is to commit a specialized form of the naturalistic fallacy: deriving an ought from an is.

As far as laws are concerned, the reverse is the sound policy: We ought to make illegal what is already morally wrong or economically inefficient for other reasons, rather than argue that something is morally wrong on the sole basis that it is illegal. In the case of most illegal immigrants—who commit no other crimes, work hard at less than desirable jobs, use their income to take care of their families, and aside from distributional issues on net undoubtedly improve the welfare of other residents of this country—it is very hard to argue that what they are doing is inherently morally wrong or an economic harm. One suspects that is why their opponents fall back on the illegality argument so often.¹

Second, while as conceded above, a social norm for obeying all but the most odious laws (like those requiring murder or economic tariffs) is a good thing, it hardly follows that we must punish illegal immigrants as severely for their violation as most proponents of enforcement demand. Let's be clear: the punishment for an illegal immigrant who is brought to the attention of the right federal (and many state) authorities, even if it is a first offense and there are no other allegations of criminality, is draconian: deportation. That means loss of job and home, drastic reduction in standard of living, permanent separation from friends, and in many cases family. That is a pretty harsh penalty.

Now many would respond, "but they broke the law, so they earned their punishment!" But again this is hardly a sufficient argument. Even setting aside the fact that the U.S. is at risk of drowning in useless laws whose violation is nearly as unavoidable as breathing, even generally good and wise laws are frequently broken without justifying such harsh penalties. Or at least, I've never known any adult who claimed to have never violated the speed limit by so much as one mile per hour or have jay walked. Even if one believes that these are violations of appropriate law, it seems indisputable that their universal and strict enforcement would bring the nation to a standstill. Punishing violators as harshly as violators of the immigration laws would depopulate it.

So, even if—contrary to what my opinion as argued above—laws prohibiting many immigrants from entering and working in the U.S. were proper, the punishment would hardly fit the crime. In particular, for first time offenders, the laws are massively more lenient towards car thieves, muggers, burglars, and those guilty of simple assault, even though the offenders are indisputably far more morally culpable (and their conduct economically harmful).²

So if deportation, either juridically or self- (in order to avoid the juridical alternative), is excessively harsh punishment for illegal immigrants, what is the alternative? The only one possible seems to be legalization, perhaps combined with some level of lesser punishment such as a fine or permanently ineligibility for citizenship. That may not exactly fit the legal definition of amnesty (that is, the complete forgiveness of a legal offense), but will likely be close enough to deserve that title.

¹A similar argument is often made against those who favor abolition of the current law against recreational drugs. "What part of 'illegal' don't you understand?" "If you think that will reduce crime, why not just legalize murder, that would reduce crime too, huh?" The flaw is the same: We ought to make illegal what is already wrong for extra-legal reasons. The arguments for the immorality and economic inefficiency of murder are already pretty strong without any reference to its illegality. Murder should be illegal because its wrong; it is not seriously wrong just because it is illegal. The drug prohibition and the severe restrictions on immigration in current law cannot make the same claim.

²In fact, this author might be convinced to support deportation for many of those offenders!