Archives: 02/2014

About Those “Creeping Sharia” Fears

If you’ve wondered about charges of “creeping sharia” in American law, you really should read this week’s series of blog posts by Eugene Volokh based on an Oklahoma Law Review article. (Oklahoma is the state whose legislators passed a law banning the use of Islamic sharia and other religious law in courts, struck down by the Tenth Circuit as unconstitutional because of its specific proscription of the law of one religion as against others.) Included are installments on the courts’ enforcement of contracts, wills, and similar instruments that would call on courts to interpret Islamic law or that are motivated by desire to conform to such law; instances where American courts use foreign law that itself incorporates religious law; instances where devout Muslims claim broadly available religious exemptions from generally applicable laws or work rules; and provision in government services of accommodations that benefit devoutly Muslim customers, employees, students, or clients. Summary passage, footnotes omitted:

In many of the instances that critics see as improper “creeping sharia,” I will argue, it is longstanding American law that calls for recognizing or implementing an individual’s religious principles, including Islamic principles. American law provides for freedom of contract and disposition of property at death. Muslims (like Christians, Jews, and the irreligious) can therefore write contracts and wills to implement their understanding of their religious obligations. American law provides for arbitration with parties’ consent. Muslims can use this to route their disputes to Muslim tribunals, just like Christians, Jews and the irreligious often route their disputes to private arbitrators of their choice.

American law provides for religious exemptions from generally applicable laws and from employer regulations. Muslims, as well as Christians, Jews, and others, may claim such exemptions. American law provides for the use of foreign law in certain cases stemming from foreign occurrences (marriages, divorces, injuries and the like). Sometimes this calls for the use of foreign religious law, whether Islamic law, Jewish law, or the decisions of Christian tribunals.

Of course, American law also imposes limiting principles on these doctrines. Some contracts and foreign judgments are unenforceable. Many religious exemption requests are denied. But these limiting principles, I argue below, already adequately prevent improper recognition of Islamic law and allow recognition of such law when recognition is proper. There is no need for new law here.

…[My approach] urges courts to continue following well-established American legal traditions rather than distorting those traditions either in favor of Islam or against.

Last month, Prof. Volokh published a series of posts, likewise based on a law review article, on the closely related issue of the reception of foreign law generally in American courts.

Friedman and Hanke on Bitcoin

In 2008, Bitcoin was mysteriously introduced to the world in an obscure, technical paper written under the pseudonym Satoshi Nakamoto. By late 2013, the financial press was filled with reportage on Bitcoin and its dramatic price increase.

Well ahead of Satoshi Nakamoto, Nobelist Milton Friedman, champion of free market economics and noted expert on money and banking, anticipated the coming of digital currencies, and foresaw the potential impacts that they would have on finance and economics.

In a 1999 interview, Prof. Friedman concluded:

I think that the Internet is going to be one of the major forces for reducing the role of government. The one thing that’s missing, but that will soon be developed, is a reliable e-cash, a method whereby on the Internet you can transfer funds from A to B without A knowing B or B knowing A. The way I can take a $20 bill hand it over to you and then there’s no record of where it came from.

You may get that without knowing who I am. That kind of thing will develop on the Internet and that will make it even easier for people using the Internet. Of course, it has its negative side. It means the gangsters, the people who are engaged in illegal transactions, will also have an easier way to carry on their business.

Prof. Friedman’s anticipation of Bitcoin is truly remarkable. He even understood the concept well enough to anticipate something like the Silk Road scandal involving illegal Bitcoin transactions.

In April 2013, Nathaniel Popper of The New York Times reported on Bitcoin in an article titled “Digital Money is Gaining Champions in the Real World”. In his reportage, Popper asked me if I thought Bitcoin had the makings of a speculative mania like the 17th century Dutch tulip bulb frenzy. My response was clear and unambiguous: “To say highly speculative would be the understatement of the century.”

Subsequently, the price action in Bitcoin confirms my diagnosis (see the following chart). In January 2013, one could buy a Bitcoin for about $13. By late November, one Bitcoin would have set a buyer back over $1100. And what about Bitcoin’s price volatility? As shown in the chart, Bitcoin’s volatility is truly fantastic.

While the price currently fluctuates around $600, Bitcoin remains far from secure. Serious discrepancies in price exist even between exchanges. For example, the price of a Bitcoin on the Mt. Gox exchange has fallen by over 50% in the past week, while the price of the exact same Bitcoin on the BitStamp exchange has fallen by only 3% in the same time period.

CBO’s Minimum Wage Report

In a new report, the Congressional Budget Office estimates that raising the federal minimum wage from its current level of $7.25 an hour would raise the incomes of low-wage workers who remain employed while lowering the incomes of low-wage workers who lose their jobs. CBO’s “middle” estimate is that a $10.10 minimum wage would reduce total employment by about 500,000.

These effects are exactly what textbook economics predicts; the question is then how policy should regard this combination of good news for some, bad news for others. On that score, the answer is obvious.

A policy that alleges to help low-wage workers, yet forces half a million to lose their jobs, is hard to reconcile with any sensible view of redistribution. People with the lowest incomes are more appropriate targets of redistribution than people with higher incomes, yet the minimum wage forces more people to have zero incomes. A minimum wage is therefore loony from the get-go, even if one believes in a government safety net.

Worse, the minimum wage is poorly targeted toward low-wage workers in poverty, even amongst those who retain their jobs. According to CBO:

The increased earnings for low-wage workers resulting from the [$10.10] … minimum wage would total $31 billion … However, those earnings would not go only to low-income families, because many low-wage workers are not members of low-income families. Just 19 percent of the $31 billion would accrue to families with earnings below the poverty threshold, whereas 29 percent would accrue to families earning more than three times the poverty threshold.

Thus, the minimum wage, in part, transfers income from people in poverty to people in middle- and upper-income households!

And the minimum wage’s negative effects do not stop at its perverse impact on the distribution of income. The minimum wage forces employers to substitute higher-wage workers or capital for low-wage labor, raising costs and therefore prices. The minimum wage perpetuates the notion that evil employers, rather than low skill, explain low wages. And the minimum wage pretends to fix a problem without imposing any costs, except that the costs are merely hidden, not avoided.

The right minimum wage is not $10.10, or $7.25. It is zero.

It’s Time to Break up the NSA

says security guru Bruce Schneier on CNN.com.

His brief, readable piece articulates the three distinct – and conflicting – missions the NSA now has, and how they should be handled. It’s no hit piece: Schneier calls NSA’s Tailored Access Operations group “the best of the NSA and … exactly what we want it to do.”

The generals who have built NSA into a fiefdom will fight tooth and nail against true reforms like these, of course, but they’re the kind of reforms we need. The most prominent measures under discussion are mere nibbles around the edges of the problem, or worse.

Jared Bernstein’s “Tax Reform” Assault on Pensions, IRAs and 401(k)s

The bad habit of defining “tax reform” in terms of fairness or “closing loopholes” sidesteps the most essential task of effective tax policy – namely, to collect taxes in ways that do the least possible damage to incentives for productive effort, investment and entrepreneurship.

The Joint Committee on Taxation list of “tax expenditures” is arbitrary accounting, not economics, and tax expenditures are not necessarily “loopholes.” These estimates do not take taxpayer behavior into account and therefore do not estimate revenues that could be raised by closing the so-called loopholes (e.g., a higher tax on capital gains would shrink asset sales and revenues). Policies that make sense in terms of economic incentives can therefore be portrayed as useless tax subsidies in the purely static accounting of “tax expenditures.”

For example, a recent New York Times article by former vice presidential adviser Jared Bernstein complains that tax deferral for retirement savings is unfair because, “most savings subsidies go to households that would surely save anyway, while almost nothing goes to the households that need help to save.” 

These “subsidies” for high-bracket taxpayers mainly consist of deferring rather than avoiding taxes, which only partly offsets the way savings are double-taxed. Even if higher-income households would actually save the same without 401(k) accounts (which contradicts research), they would still end up with much smaller retirement savings. Dividends and capital gains would then be repeatedly taxed, year after year, rather than being continually reinvested within a tax-deferred pension, IRA or 401(k) account. 

Estimated “subsidies” from tax deferral are deceptive: Instead of having recent dividends and capital gains taxed at a 15-20 percent rate in recent years, distributions from tax-deferred accounts will later be taxed at rates up to 39.6 percent. It’s a subsidy only if you don’t live much past 70.

Bernstein presents a graph showing the top 20 percent getting a 66 percent share of these “subsidies” for pensions and defined-contribution plans while the middle fifth gets only nine percent and the poorest 20 percent just two percent. What these figures actually demonstrate is that (1) people who work full-time for many years have more income to save than those who don’t, and that (2) people who pay no income tax cannot benefit from any policy that reduces taxable income, even temporarily.

There are five times as many workers in the top 20 percent than there are in the bottom 20 percent. To exclude young singles and old retirees, Gerald Mayer examined the work experience of households headed by someone between the working ages of 22 and 62. Average work hours among the poorest 20 percent still amounted to just 1,415 hours a year in 2010, while those in the middle fifth worked 2,771 hours, and the top 20 percent worked 4060 hours.

If Bernstein’s “subsidies” were properly expressed as shares of income, rather than as shares of foregone tax revenue, the differences nearly vanish. The Congressional Budget Office (the undisclosed source of his estimates) shows tax benefits for retirement savings worth only about twice as much to the top 20 percent (2 percent of net income) as to the middle 20 percent (0.9 percent of income). Retirement savings incentives appear to be worth only 0.4 percent of income to the poorest 20 percent, since they rarely owe taxes, yet annual benefits are a poor guide to lifetime benefits. Those in low income groups while they are young commonly move up to higher tax brackets by the time they start saving for retirement.

The alleged unfairness of lower-income households not getting the same dollar tax break as couples earning more than $115,100 (the top 20 percent) could be alleviated by reducing marginal tax rates on two-earner families. But Bernstein instead suggests “closing loopholes that make it easy for wealthy individuals to exceed contribution limits to tax-preferred accounts (as was found to be the case with Mitt Romney), reducing contribution limits for high-income filers, or simple limiting the value of tax breaks for the wealthiest of filers (e.g. allowing them to deduct such contributions at 28 percent instead of 39.6 percent.” None of these schemes would add a dime to the savings of low or middle-income households, of course, and they wouldn’t work.

It is not legal – and therefore not “easy”– to exceed strict contribution limits for high-income taxpayers, and Mitt Romney certainly did not do so.  What Romney did was to roll over qualified retirement plans into an IRA and then earn high compounded returns on very successful investments.  Similarly, albeit on a much smaller scale, I rolled-over a lump-sum pension into an IRA in 1990 when I changed jobs, and that IRA is now 12-times larger thanks to compound interest and bold investments.  Since I never contributed another dollar after 1990, tougher or lower contribution limits would have been entirely irrelevant.  

Bernstein’s final proposal is from the Obama budget – “allowing taxpayers to deduct contributions at 28 percent instead of 38.6 percent.” But that too is irrelevant. Any alleged “loopholes” for retirement savings have nothing to do with itemized deductions for top-bracket taxpayers, who are not allowed to deduct contributions to an IRA.  Failure to include employer contributions as taxable income is not an itemized deduction to begin with, nor is the exclusion from adjusted gross income for contributions to a Keogh retirement plan for the self-employed.  

In the process of giving “tax reform” a bad name, Jared Bernstein uses a sham fairness argument to justify arbitrary and unworkable anti-affluence policies that are irrelevant to any ill-defined problems. 

 

 

 

 

 

 

What Both Sides Miss in the Immigration Debate

That’s the title of my latest Forbes column, which begins:

As chances for immigration reform fade ahead of this year’s congressional elections, the main sticking point seems to be the “pathway to citizenship” for those who are in the country illegally.

Reform opponents don’t want to reward those who break our laws, while activists on the other side refuse to consider a deal that doesn’t naturalize this entire population. Fixing our broken immigration system thus seems to turn on the question of what to do with the estimated 11-12 million illegal aliens living in our midst. (I’m reminded of John Candy’s final movie, Canadian Bacon, where a propaganda bit ominously decries: “Canadians: They walk among us.”)

But both sides are wrong to focus on citizenship and should instead target permanent resident status—otherwise known as green cards.

Read the whole thing, which includes a bit about the naturalization process that I’m now experiencing.

The Federal Reserve’s “Foreign Banking Organization” Rule Is Unnecessary

Last November, Arthur Long and I released a policy study on the likely impact of the Federal Reserve’s 2012 “Foreign Banking Organization” proposal.

We argued – along with many others – that the proposal amounted to little more than a costly corporate reshuffling exercise. Of even greater concern, we suggested that the proposal threatened the ability of global banks to allocate capital and liquidity in an efficient manner, would increase financial instability, and dampen economic growth.

Yesterday, the Federal Reserve released a final rule that is essentially the same as the original proposal. The final rule is more lenient only in the sense that it increases the timeframe for compliance, simplifies the leverage requirements a little, and impacts fewer organizations. To that end, the fundamental criticisms still apply, as does the confusion around why such a proposal is necessary.

Governor Tarullo – a leading proponent of the rule – has argued that the Federal Reserve extended financial “support” to foreign banks at unprecedented levels during the crisis and therefore should be given greater oversight of these banks’ activities. That sounds reasonable. But upon closer review, the support he refers to was limited to liquidity provided through the Fed’s discount window. Foreign banks were not eligible to receive TARP or other forms of bailout assistance.

Fed officials have gone to great lengths to argue that providing liquidity through the discount window (which may be provided only to otherwise solvent institutions on a fully collateralized basis) is a legitimate central bank function and is NOT financial assistance constituting a bailout.

I agree (although on this point, I note that I depart quite radically from some of my contemporaries). However, this argument does undermine the central pillar supporting the Fed’s new rule. In addition, if protecting U.S. taxpayers is the fundamental aim, why implement a rule that will close-off the channels of liquidity and support that the U.S. subsidiary could receive from the foreign parent? 

The Fed’s rule may well spark retaliatory actions from foreign regulators, who are even more annoyed about it than the banks they oversee. The losers will be both local and foreign banks and, most importantly, consumers of credit. Governor Tarullo himself noted during yesterday’s open meeting that the rule “may not strike the right balance indefinitely.” The Fed had an opportunity to lead from the front. That it failed to do so is unfortunate.