Category: Current Events

1

An Olympic Conspiracy Theory

The media has been full of stories about the Turin Olympic’s failure to grab hold of the American domestic television market. Explanations seem to range widely, from athletes failing to win sufficient numbers of golds, to the sports being outside of the experience of most American viewers, to dissapointments in ice skating, to the delayed coverage.

I wonder if nervousness among advertisers has changed the bargaining position of the American olympic federation? Today’s Philadelphia Daily News has a story with an interesting theory about the reason that superstar Allen Iverson wasn’t invited to try out for the 2006 world championships.

With USA Basketball and Nike announcing yesterday that they have reached a multiyear agreement to make the footwear company a marketing partner and exclusive apparel outfitter of the national team, it’s beginning to make a bit more sense as to why Allen Iverson will not be one of the 22 players invited to try out for the team that will compete at the 2006 world championships.

I don’t want to claim conspiracy theory, but it’s mighty interesting that as soon as Nike partners with USA Basketball for the first time ever, Iverson – who just happens be the No. 1 endorser for archrival Reebok – is booted out of the U.S. Olympic loop. Nike will provide uniforms, warmups and practice gear for the team.

Pretty wild stuff.

3

Becker, Posner and the Purpose of the University

Richard Posner and Gary Becker, over at their eponymous blog, have been blogging about the Summers resignation. They both come out for Summers, and against tenure. The discussion is worth checking out in full.

I wanted to focus in on what seemed to me to be an underlying issue that neither Becker nor Posner really nails down: what good is the university supposed to maximize? Or, clearer put, what is the purpose of a university? Posner argues that faculty and university incentives and capabilities are misaligned:

The faculty are interested primarily in their own careers, and what is good for their careers and what is good for Harvard are only tenuously connected . . . What is more, [a replacement president] might be more inclined to kow-tow to faculty, enhancing their careers at the expense of the long-run health of the institution.

But this does not tell us what success or “long-run health” means. Both eminent economists turn quickly to market measures of value. Posner claims that “our universities are the best in the world” [Ed.: Now is the time to remind the reader that such puffing claims are not to be trusted, and to suggest that they look for this paper on that very topic.] Becker is more explicit:

Still, I believe the only satisfactory way to evaluate how universities (or businesses) are run is by their success or lack of it in the long run. Although there is no simple way, like profitability, to judge universities, there is an effective way to judge a university system. The American college and university system is widely accepted as the strongest in the world. This is why American universities are filled with students from abroad, including those from rich nations with a long history of higher education, like Germany and France.

I conclude from this that the American university system must be doing many things right, at least relative to the other systems. And what is right about this system is rather obvious: several thousand public and private colleges and universities compete hard for faculty, students, and funds. That the American system of higher education is the most competitive anywhere is the crucial ingredient in its success.

This argument confuses me. Is the claim that because our universities attract foreign students at higher rates than foreign graduates attract U.S. students our universities are “successful” and should do more of what they are already doing? That claim would seem tough to swallow given that our universities allow entry into our economy and (through marriage to fellow-students) citizenship, and thus attending Harvard isn’t necessary a proxy for endorsing its governance structure. Or is the claim that our success is a product of competition itself? In that event, who cares what internal governance looks like as long as we have established a market for private education?

More generally, it seems to me that without a good account of what the university should be doing (and not what the market is rewarding it for doing) arguments about proper governance structure are founded on quicksand. After all, there are a significant number of more autocratic colleges than Harvard extant. Almost all such schools are traditionally seen as less successful in many ways. Should we chalk Harvard’s success up to path-dependence? The distorting effects of tenure and labor unions? Does this internal market not matter to our evaluation of Harvard’s success? Because if it does, how can we say that the faculty governance model that Harvard has long followed is inversely related to “long term health” of that institution?

(Hat Tip: Todd Z.)

0

Good News from Weare, N.H.

You may remember some time ago after the Supreme Court announced its unsurprising ruling in Kelo v. New London, that a group of protestors, led by Logan Darrow Clements, began a publicity campaign to seize Justice Souter’s home in Weare in retaliation for his vote as a part of the five-justice majority in the case. Law Professor Glenn Reynolds encouraged the effort, although Randy Barnett and others were more circumspect. I took the whole thing pretty seriously, and earned a counter-post from Eugene Volokh, who thought that the Clements campaign was protected by the First Amendment even if he was attempting to retaliate against a Justice for acts in his official capacity.

In any event, the citizens of Weare, N.H., rejected Clements’ campaign over the weekend. By a vote of 94-59, they inserted a “not” in Clements’ proposal, making it a dead-letter. Then, apparently, they passed a ballot measure (to be voted on next month) that will petition the state government to make land seizure more rare.

Clements, of course, isn’t done with his publicity campaign.

Clements says altering the article to essentially negate its purpose is unethical and unconstitutional. He says the selectmen misled the voters at the meeting by saying the article was illegal and could spark a lawsuit . . . Clements said he was considering filing a lawsuit.

And so this terrific use of taxpayer time will continue.

8

The Consequences of Misleading the Judiciary Committee

Edward Lazarus’s column on Findlaw this week discusses the constraints Chief Justice Roberts and Judge Alito have placed on their behavior on the Supreme Court by their Judiciary Committee testimony. Specifically, Lazarus argues that should Roberts and Alito turn out to be more doctrinaire than the moderate conservatism displayed in the hearings, the consequences would be “longstanding and grave.” (Lazarus does not elaborate on the nature of those consequences, which could range from possible impeachment, to restrictions on the Court’s power by legislation, to a loss of confidence among members of the public, to demands for even more specific promises from future nominees, etc.)

I am not confident that Lazarus is correct as a general matter, though he may be as to his principal example — voting to overturn what is left of Roe v. Wade. I see little evidence, for example, that Justice Ginsburg is suffering any ill effects from Congress though she has done little on the Court to justify her image in 1993 as a “moderate liberal.” Similarly, though all nominees routinely profess to understand that the law is more than their personal policy preferences, once on the Court they routinely break that promise. (As Justice Scalia said in a related context, campaign promises are, by long democratic tradition, the least binding form of human commitment. See Republican Party v. White, 536 U.S. 765 (2002).)

If I am correct, there could be at least three reasons there are few repurcussions thus far for reneging on Judiciary Committee commitments. First, Republicans may lack the guts to use ideology in the way that Senate Democrats do. We’ll see whether this is true the next time a Democratic President nominates a potential Justice, but the Republicans’ acceptance of Ginsburg indicates it might be true. Second, a determined minority can prevent Congress from taking just about any official action, so even opposition to a Court decision can be expected to result in no action so long as at least one committee in one house supports the Court’s decision. And of course impeachment is practically impossible. Third is the most obvious: Because the statements nominees make are so general, no behavior could constitute breaking that “promise.”

0

What’s in a name?

From the Chicago Sun-Times (link via my friend Fook King Steve):

Fuk King Kwok was waiting for his driver’s license to be printed when his name was called and a chuckling Illinois secretary of state employee offered some advice.

“She [said] this is a dangerous name,” the Chinese immigrant recalled. “She [said] the name translated is not so good, maybe I should change [it]. The word I hear is not so good.”

Mr. Kwok successfully changed his name to Andy. One wonders what hurdles he would have faced had he continued to go through life as Fuk King. Would he have been denied employment due to his name? (Can you imagine that name tag on your restaurant waiter?) Prosecuted for obscenity when he filled out a credit card application? Or would the fallout have been limited to snickers behind his back and inexplicable troubles finding a Friday night date?

I guess we’ll never find out. Welcome to a slightly more normal life, Andy.

2

The Market Tells Us What To Think About Alito’s Hearings

Reading conflicting accounts of the Senate’s hearings on Judge Alito, I thought it might make sense to turn to the InTrade electronic futures market. This graph of the predicted likelihood of Alito’s confirmation is somewhat illuminating:

alitolastweek.png

The trading history indicates a small run before the hearings began, but once the questioning started, Alito made a dramatic comeback. The last price I saw quoted was 97 (i.e., the traders think he has a 97% likelihood to be confirmed).

But that isn’t particularly surprising. I data mined dug a bit deeper and found two other interesting results.

Read More

1

Sitting by Designation on the Supreme Court

This article from the ABA’s online journal discusses the possibility of designating Circuit Judges for service on the Supreme Court when a recusal raises the possibility of a case being affirmed by an equally divided Court.

My reaction is cautiously negative. To be sure, such a program allows for cases to be decided by the Supreme Court, providing uniformity in the interpretation of a particular portion of federal law. I wonder, however, how often circuit splits are allowed to persist because of recusals. Most times, I would imagine, a Justice recuses himself because of a conflict of interest relating to a particular party. When that same issue is raised in a later case by a different party, there is no recusal and the issue is decided.

I wonder how the Court would treat a 5-4 precedent where one of the 5 was a Circuit Judge sitting by designation. On the one hand, there would be little point in allowing the designation if the cases were not to be accorded horizontal stare decisis. The Supreme Court is not a court for the correction of errors (usually), and the Court does not normally take cases that will have no effect on the development of the law.

On the other hand, however, I would be very uncomfortable treating such a case as binding by the regular nine-Member Court in a case where there was no recusal. Imagine, for example, that in a case interpreting Statute X, Justice O’Connor is recused and the rest of the Court splits 4-4. A designated Circuit Judge breaks the tie and holds that the statutory language means A. In the next case raising the issue, Justice O’Connor does not need to recuse. Why should she be bound to A, if she and four other Justices think the correct interpretation is B?

Such a proposal is not new. It is used, as the article reports, by many state supreme courts, including the New York Court of Appeals, where I clerked. By all accounts that system works well, and I know of no instance where there was any acrimony in choosing the judges who were to sit by designation on that court. Additionally, it was proposed by Justice John Paul Stevens in 1988 for adoption by the U.S. Supreme Court itself. See Artemus Ward, Deciding to Leave: The Politics of Retirement from the United States Supreme Court 255-57 (2003).

2

Zywicki Compares Kennedy to McCarthy?

I may be misreading this post, but I think that Todd Zywicki is saying that Senator Kennedy is playing Eugene Joe McCarthy to Judge Alito’s Joseph Welch Fred Fisher when discussing the CAP issue. This seems to me a strained analogy, as the commentators to Zywicki’s post are currently thrashing out.

[UPDATE: Two really silly errors in the above post, noted by our commentators, have been corrected.]

1

Judiciary Committee to Vote on Alito by September [sic] 17, Specter Hopes

Over at How Appealing Howard links to this Newsday article, in which there is a humorous typo (one hopes) about concluding the hearings and taking a committee vote on Judge Alito’s nomination by September.

More significantly, it notes that the Republicans are expected to continue to stress Judge Alito’s qualifications and the rating the ABA has given him. This seems awfully short-sighted to me. The Republicans want to say to Democrats, “Even your shill organization likes this guy,” but in effect Republican use of the ABA ranking will legitimize the rankings — exactly the result the Republicans do not want for the long term, because of the ABA’s (at least perceived) liberal bias. The more Republicans argue that one’s qualifications should be enough to ensure confirmation, the more difficult it will be to oppose liberal but qualified nominees from Democratic presidents. Senate Republicans should be preparing for that eventuality now instead of just focusing on the present.

7

How Much Should Judges Get Paid?

Uh, oh.

In his first year-end report Chief Justice John G. Roberts, Jr. repeats the dubious claim his predecessor William H. Rehnquist made for years: the Republic will fall unless Congress immediately increases the salaries of federal judges.

Roberts says that the low current pay is a “direct threat to judicial independence” because it means judges can serve only “for a term dictated by their financial position rather than for life.” Judges will be forced to take more lucrative private jobs to support themselves in old age. Unless salaries increase substantially, Roberts claims, the federal bench will become less diverse because only the “independently wealthy” will be able to serve.

Federal district court judges make $165,200 a year. Circuit court judges make $175,100. Associate justices rake in $203,000. And the Chief Justice himself is paid $212,100.

Is it really so difficult to make ends meet on these princely sums?

Sure, lawyers in private practice can earn much more. Partners at top-flight firms make several million dollars annually. But federal judges have way more interesting jobs with all kinds of wonderful perks, including a permanent place in history.

If the “low” salary means some people don’t apply to be judges, then so be it. After all, does a lawyer who is in it for the money really have the right temperament to be a judge? Does the average American have a decent chance of receiving justice before somebody who considers a six-figure income a vow of poverty?

Chief Justice Roberts points in his report to the recent increase in the number of federal judges leaving the bench for private practice. That’s too bad. But would the judge who is scraping by on $165,000 (or more) really stick around for the 30% increase Roberts is asking Congress for?

For the record, when jurors serve in federal court they earn $40 per day plus bus fare.

By that standard, judges are paid very nicely, thank you.