Archives: 08/2008

Taking a Poll…and Some Salt

It’s hard to care much about polls; they’re easily gamed, the questions are usually too narrow to give any real insight, and just because a majority thinks something doesn’t make it right. That said, a new poll from Education Next deserves a bit of comment.

First, I have to repeat a beef I had with last year’s Education Next survey: Why load the No Child Left Behind questions? While the pollsters attempted “survey experiments”—tinkering with question wording to see how it affected results—they just replaced “No Child Left Behind Act” with “federal legislation” in the experimental version of this question:

As you may know, the No Child Left Behind Act requires states to set standards in math and reading and to test students each year to determine whether schools are making adequate progress, and to intervene when they are not. This year, Congress is deciding whether to renew the No Child Left Behind Act. What do you think Congress should do?

The results are pretty damning for NCLB. When it’s identified by name, 50 percent of respondents think the law should either undergo “major changes” or not be renewed at all, versus 42 percent thinking the same way about semi-anonymous “federal legislation.” Worse, last year’s results were significantly more positive about the law; the percent of respondents with favorable views of NCLB has dropped by seven percentage points.

Of course, none of this gets to the public’s true opinion about the law because neither version of the question gets rid of the description of NCLB as, essentially, Clarence the angel in It’s A Wonderful Life, intervening to make all schools do well!

So how would the law have fared were people asked what they thought just of NCLB, not “NCLB: The Standardsmaker”? Since I registered this same complaint last year I haven’t seen any polls that have asked about NCLB straight-up. But suppose the same changes in NCLB support found by Education Next were applied to the Educational Testing Service poll I mentioned last year, a poll that asked about NCLB unadorned (slide 11 in the link). In 2007, ETS found that only 41 percent of respondents had a “very” or “somewhat favorable” attitude about the law. Drop 7 percentage points from that, and you’re down to a measly 34 percent.

And to think, some people think it’s “foolish” to even consider that NCLB should be scrapped!

Unfortunately, assuming the order of questions in their write-up is the same as was presented to respondents, the Education Next folks chose to ask about national standards right after greasing the skids with their encouraging description of NCLB. Not surprisingly, they found that large majorities favored having the feds establish standards and tests for the whole country.

Here we encounter almost all of polling’s shortcomings. For one thing, it’s hard to pin down the effect of the question order, but it certainly seems reasonable to conclude that describing the federal roll as demanding high standards would lead people to conclude that the feds ought to set the standards. But what if the pollsters had described NCLB as a law “that requires states to set standards while safeguarding local control”—which President Bush would tell you it does—or something like that? And what if the national-standards issue were explored in some depth, with questions about how the standards would actually be set and what they would be? Suddenly, different thinking would probably kick in. Of course, even with all that it’s possible that a majority of Americans would still support federal standards. Which brings us to the polling problem that majority support doesn’t necessarily mean good policy….

On school choice, the poll offers mixed news: Vouchers keep on struggling, but tax credits seem to have a very bright future. Nationally, only about 40 percent of people support vouchers, versus 54 percent who support tax credits. This is not to say that vouchers are dead—there’s only 40 percent opposition to them as well, meaning you’ve got two evenly-matched armies and 20 percent unclaimed territory—but compared to tax credits, vouchers have a long slog ahead. And tax credits fare even better when opposition as well as support is considered; only 28 percent of respondents opposed tax credits.

Of course, wording could have a lot to do with these results as well (for instance, the term “voucher” never actually appears in a question, but the almost as emotionally freighted “government funds” does), and all the other caveats about polls still apply. Even with that, though, the tax credit news, if nothing else in this poll, has to be a little encouraging.

Juror Becomes Fly in the Ointment

It was supposed to be just another federal drug prosecution.  The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade.  The defense attorney said the government agents entrapped his client.  And then the twelve citizen-jurors retired to deliberate the outcome of the case.

But then something unusual happened.  The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?” 

That’s a fair question.  It is a point that has been made in Cato’s publications ( go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas [pdf], among many others.  Federal District Court Judge William Young was startled.  He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law.  Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively.  When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.”  Once discovered, that juror was replaced with an alternate–over the objections of defense counsel.  Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations.  So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf).  I happen to know and respect Judge Young.  I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin.  I will briefly respond to his substantive arguments below.

1.  Court precedents say jurors have no right to nullify.  Well, yes, that is undeniable.   But that’s like someone saying in 1950 that court precedents tell us that  ”separate, but equal” is the law of the land–go read Plessy v. Ferguson. The real question is whether those court rulings are truly consistent with the Constitution.  I would also point out that even though many modern court rulings express hostility toward jury nullification, no court has yet dared try to reverse a not guilty verdict or attempt to punish any juror who cast a not guilty vote in a jury room where the result was deadlock (not an untoward outcome, by the way).  Judges do remove jurors from time to time, but there is no punishment.  At least not yet.

2.  Judge Young writes, “The impropriety of nullification emanates from the notion that ours is ‘a government of laws and not of men,’” and he attributes that proposition to our second president, John Adams, who also authored the Massachusetts Constitution.  The quote is accurate, but Young is mixing up legal principles and does not know Adams well enough.  Like so many of America’s early leaders, John Adams was a strong proponent of jury nullification.  Here’s Adams: “It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”  C.F. Adams, “The Works of John Adams,” 253-255 (1856)(emphasis added).

3.  Jury nullification undermines the rule of law.  This is simply another variation of objection #2 above.  There is a logical fallacy to this objection.  Jury nullification is assumed to be improper–so it undermines “the law.”  It is like saying a presidential pardon undermines the “rule of law.”  But if the president has the power to pardon, and he does, he can exercise it (though we may or may not like the result in particular cases).  This is the way in which to understand jury nullification.  The framers of the American Constitution considered it to be part and parcel of what a criminal jury trial was all about.  Some state constitutions, such as Indiana, Maryland and Oregon, explicitly provide that juries have the power to judge the law and the facts in criminal cases.  Judges are the ones that have undermined the “rule of law” by pretending those provisions mean the opposite of what they say.

Judge Young expressed alarm about the recent Time magazine article by David Simon and his The Wire colleagues that calls for jury nullification in drug cases.  But that article has revived a debate that we should all welcome.  For much more on this subject, go here, here, here, and here.

Crovitz on our Broken Patent System

It’s a little old, but I wanted to highlight an excellent column by L. Gordon Crovitz, the Wall Street Journal publisher turned technology columnist, about the damage our broken patent system is doing to innovation:

Companies as diverse as Verizon, Google, Cisco and Hewlett-Packard recently formed the Allied Security Trust to buy patents they may want to use some day and that otherwise could end up in the hands of “patent trolls.” These firms buy up old patents not to produce anything, but instead to work the system to extract settlements. A similar group formed against trolls to protect the Linux open-source operating system. A Google executive explained that helping to buy up and license patents is the “legal equivalent of taking a long, deep, relaxing breath.” Companies can rest easier, and legitimate inventors get paid for their work.

These corporate trusts seem like odd ways to protect products, but the memory is still fresh of the BlackBerry device almost being forced to shut down. Parent company Research in Motion paid more than $600 million in 2006 to settle a case. But in this and many other cases, companies can’t be sure whether or not they are complying with patent law. For example, by one estimate there are more than 4,000 patents that must be reviewed and potentially licensed by firms selling products or services online. The legal abuses arising from uncertainty are legion. More than 100 companies are being sued for alleged patent infringement by using text messaging internationally.

When our most innovative companies are spending large sums to buy protection from the patent system, you know something has gone awry. Crovitz also highlights important new research suggesting that outside of the pharmaceutical and chemical industries, the patent system as a whole actually creates a net disincentive for innovation:

New empirical research by Boston University law professors James Bessen and Michael Meurer, reported in their book, “Patent Failure,” found that the value of pharmaceutical patents outweighed the costs of pharmaceutical-patent litigation. But for all other industries combined, they estimate that since the mid-1990s, the cost of U.S. patent litigation to alleged infringers ($12 billion in legal and business costs in 1999) is greater than the global profits that companies earn from patents (less than $4 billion in 1999). Since the 1980s, patent litigation has tripled and the probability that a particular patent is litigated within four years has more than doubled. Small inventors feel the brunt of the uncertainty costs, since bigger companies only pay for rights they think the system will protect.

These are shocking findings, but they point to the solution. New drugs require great specificity to earn a patent, whereas patents are often granted to broad, thus vague, innovations in software, communications and other technologies. Ironically, the aggregate value of these technology patents is then wiped out through litigation costs.

Our patent system for most innovations has become patently absurd. It’s a disincentive at a time when we expect software and other technology companies to be the growth engine of the economy. Imagine how much more productive our information-driven economy would be if the patent system lived up to the intention of the Founders, by encouraging progress instead of suppressing it.

It’s great to see another prominent commentator throwing his support behind patent reform.

America’s Self-Destructive Corporate Tax System

A new report from the Tax Foundation notes that America’s corporate tax rate is now 50 percent higher than the average for other industrialized countries. Keep that fact in mind next time you hear a politician “blame the victim” by complaining about companies not paying enough tax or whining that businesses are moving jobs overseas:

…for the 17th consecutive year the average rate of corporate taxes in non-U.S. countries fell while the U.S. corporate tax rate stayed the same. As a result, the overall U.S. corporate tax rate is now 50 percent higher than the OECD average. …The U.S. continues to have the second-highest combined federal-state corporate tax rate among industrialized countries at 39.3 percent. Only Japan has a higher overall corporate tax rate at 39.5 percent. By contrast, the average corporate tax rate among OECD countries has fallen a full percentage point in the past year, from 27.6 percent to 26.6 percent. Ireland’s 12.5 percent corporate tax rate remains the lowest among OECD nations. The OECD data shows that nine of the 30 OECD member nations have lower corporate tax rates in 2008 than in 2007, including Canada, Germany, New Zealand, Spain, the United Kingdom, Italy, Switzerland, the Czech Republic and Iceland. Germany made the biggest change, cutting its corporate rate 8.7 percentage points from 38.9 percent to 30.18 percent. As a result, Germany fell from having the third-highest overall rate to seventh-highest. France now imposes the third-highest rate of 34.4 percent. Italy had the second-largest rate cut, lowering its rate 5.5 percentage points, from 33 percent to 27.5 percent. As a result, Italy dropped in the rankings from seventh-highest to fifteenth-highest. Canada, meanwhile, dropped from fourth- to fifth-highest after cutting its overall corporate rate from 36 percent to 33.5 percent.

New Errors in Georgia

While the wire services bounce back and forth between declaring that Russian forces are attempting to hold Gori or leaving Gori, President Bush has made a statement that promises to embed the United States more deeply in the conflict, and French President Sarkozy has brokered a cease-fire deal that gives the Russians much of what they want and will be hard to square with, for example, Senator McCain’s position.

First, the Sarko peace deal.  As described here, it offered six provisions:

  1. the sides in the conflict should abstain from using force;
  2. all military activities would be terminated;
  3. all persons in the region should have free access to humanitarian aid;
  4. Georgian forces would return to their positions of permanent location before the conflict started;
  5. Russian forces are to withdraw at their previous position but would be allowed to take additional security measures until an international peacekeeping mechanism was set in place;
  6. there was to be a start of the international discussion of the future status of Georgia’s breakaway provinces South Ossetia and Abkhazia.

However, Georgian President Saakashvili rejected the sixth provision, as discussions of “future status” implied ambiguity about the nature of the two provinces, and Russia accepted, removing reference to future status.

The interesting thing about this deal is that it gives Russia much of what it has been saying it wanted, and looks eerily similar to what happened in Kosovo.  In Kosovo, NATO won the war, established a deterrent military presence in Kosovo, and kicked the can of the hard questions down the road. 

What Russia will likely do now — again, this is subject to change as events on the ground are changing by the minute — is withdraw from territories outside South Ossetia and Abkhazia, appearing to make a “concession” by doing so, in order to press its case for leaving behind a much stronger “peacekeeping” force in the two provinces.

The Sarkozy plan doesn’t appear to offer much resistance to that model, which for obvious reasons the Georgians see as undesirable.  Recall that less than 10 years after the war in Kosovo, Kosovo had been pried from Serbia and its independence had been recognized by the United States and Western Europe.  Since before the Western powers recognized Kosovo, Russian officials warned that they saw a precedent for South Ossetia and other separatist regions in the former Soviet Union.

The Western powers, of course, did not deal with the objections from Russia, and recognized Kosovo as a newly independent country anyway earlier this year.  At that point, observers began claiming that “Russia’s bluff had been called” regarding outright recognition of the separatist provinces, but failed to address the prospect for catastrophic miscalculation by one of the relevant parties.  Which has obviously happened in Georgia.

Now, President Bush is dispatching Condoleezza Rice to Paris and then Tbilisi, and is promising a humanitarian mission will enter Georgia in the form of the U.S. military.  The relevant paragraphs from his statement:

I’ve also directed Secretary of Defense Bob Gates to begin a humanitarian mission to the people of Georgia, headed by the United States military. This mission will be vigorous and ongoing. A U.S. C-17 aircraft with humanitarian supplies is on its way. And in the days ahead we will use U.S. aircraft, as well as naval forces, to deliver humanitarian and medical supplies.

We expect Russia to honor its commitment to let in all forms of humanitarian assistance. We expect Russia to ensure that all lines of communication and transport, including seaports, airports, roads, and airspace, remain open for the delivery of humanitarian assistance and for civilian transit. We expect Russia to meet its commitment to cease all military activities in Georgia. And we expect all Russian forces that entered Georgia in recent days to withdraw from that country.

The italicized portions represent two parts of the statement that present big, dangerous issues.

Issue One: Where will U.S. troops be, what will they be doing, and how long will they be doing it?  Is the president saying that he expects the Russians to open lines of transport through South Ossetia to U.S. troops?  South Ossetia is recognized as part of Georgian territory.  But it seems awfully unlikely that the Russians are going to accept U.S. military personnel in South Ossetia alongside their peacekeepers, which, while they act in a lot of ways that have less to do with keeping peace and more to do with keeping Russian influence over the region, the Russians argue are there in accordance with the 1992 Sochi agreement.  Saakashvili, for his part, rushed to the telephone to tell the New York Times that he interpreted Bush’s statement as promising “definitely an American military presence.”  (Side question: What military assets are Western European powers or NATO powers contributing?)

Issue Two: the Bush statement seems to call for all additional Russian forces inserted into South Ossetia to be withdrawn.  But if the theory about the Kosovo model is right, the Russians will most likely want to leave behind some of those forces in South Ossetia to shore up its influence in the province as NATO left troops behind in Kosovo.  What happens if the Russians leave several thousand additional troops behind anyway?

Both these topics deserve more scrutiny from the press and the public.  The president appears to be looking at a much more direct involvement of U.S. troops and resources on Georgian territory.  His restraint heretofore has been prudent; this measure appears much more risky.