Harvard Lawyers Soon to Know Even Less

I’m fond of my law school (which wasn’t Harvard) and proud of having gotten a legal education, but I am keenly aware of what they didn’t tell me in school. My training was noticably light on constitutional doctrines like separation of powers and federalism — protections of liberty as important as the Bill of Rights. (I had to go and learn them myself. Got a little help from an outfit called the Cato Institute and papers like this one.)

Indeed, I recall a college pre-law class where I was taught the “swirl cake” theory of federalism. ”Sure, there are layers of government, but they mix and overlap in mysterious ways.” Utter claptrap. ”Swirl cake” federalism obscures the workings of government from the people, allows politicians to avoid accountability, and fertilizes the growth of over-large government at every level.

Now comes news (via the Volokh Conspiracy) that Harvard is going to “overhaul” the education first-year law students get. Rather than basics like contracts, torts, property, civil procedure, and criminal law, they’ll learn such things as policy and international law.

In other words, Harvard-trained lawyers will know more about politics and less about law. A step backward for the legal profession and probably for many Harvard lawyers themselves. 

As a law review editor-in-chief, I was aware that many top journals had wandered away from doctrinal work that actually advances law. Maybe the whole legal academy is following suit.

Is Someone Trying to Buy Your Vote with Low Gasoline Prices?

For the few weeks now, I’ve received an increasing number of calls from reporters and TV & radio producers to discuss the latest of a never-ending spate of conspiracy theories regarding “Big Oil.” This one has it that somebody — oil companies, the Saudis, and/or Goldman Sachs — is manipulating the gasoline market downward in order to reduce public anger over pump prices. Lower prices = less angry voters, and the less angry voters are, the less likely they are to throw Republicans out of office. Or so the theory goes.

I’ve been content to dismiss this stuff as not worth my time, but lo and behold, the Washington Post thinks the story so significant that it warrants a spot on the front of today’s Business section. 

To be fair, Post reporter Steven Mufson does a nice job gently deflating this nonsense, but the fact that these claims need to be addressed is depressing. You know a market-conspiracy theory is really and truly whacked when even Tyson Slocum over at Public Citizen isn’t buying it.

While Mufson’s piece is fine, an even sharper rejoinder was made the other day by Professor James Hamilton, a noted economist who engages in energy economics (among other things) over at the University of California at San Diego. While Hamilton concentrates most of his fire on the Goldman Sachs variation of the conspiracy, he makes a nice point about these sorts of claims in general. To whit, no evidence is ever provided. To believe things without evidence is to be the world’s all-purpose dupe. 

Unfortunately, this particular conspiracy theory will probably continue to gain traction because I suspect gasoline prices will continue to drop at least until the Thanksgiving holiday. That’s because (i) gasoline prices have historically behaved in exactly this fashion for reasons that are utterly unmysterious to energy watchers, and (ii) the drop in crude oil prices has not yet been fully reflected in the drop in gasoline prices (and if you want to know why that probably is, check this out). Accordingly, pump prices may well continue to decline even if oil prices stabilize at current levels.

That ought to really drive the Dems around the bend. Expect a spate of “Big Oil Robbed Us!” stories if the Democrats fail to seize the Congress in November. 

Crisis of Abundance in the New York Times

A number of reports purport to show that the U.S. health care sector lags behind those of other nations. I’d be the last to argue that our health care sector should be a model for the rest of the world. But those supposedly objective reports are often based on subjective value judgments about which people will differ. They also tend to overlook objective strengths of the U.S. health care sector.

For example, New York Times columnist Tyler Cowen writes today about how the United States leads the world in medical innovation. We spend far more on medical research than other nations, which increases our level of health expenditures. But the benefits of all that spending are not confined to our borders; they help keep the “ferriners” alive longer, too.

Cowen also draws a lesson from Arnold Kling’s book Crisis of Abundance:

The American system also produces benefits that are hard to find in the numbers. The economist Arnold Kling in his “Crisis of Abundance: Rethinking How We Pay for Health Care” (Cato Institute, 2006) argues that the expected life span need increase by only about half a year for the extra American health care spending to be cost-effective over a 20-year period. Given that many Americans walk less and eat less healthy food than most Europeans, the longevity boost from health care in the United States may be real but swamped by the results of poor lifestyle choices. In the meantime, the extra money Americans spend to treat allergy symptoms, pain, depression and discomfort contributes to personal happiness.

Those interested can purchase Crisis of Abundance here, or click here to watch the Cato book forum featuring the author, Sebastian Mallaby of The Washington Post, and Jason Furman of NYU.

The Weaknesses of Watch-Listing

“Watch-listing” — the practice of putting bad people’s names on a list and treating them differently at places like airports — is fraught with difficulty. 

As to sophisticated threats, it’s a Maginot line. Easy to evade, it provides no protection against people who haven’t yet done anything wrong, who haven’t come to the attention of security officials, or who have adopted an alias. Terrorist planners are nothing more than inconvenienced by having to use people with “clean” records.

Paying to inconvenience any such terrorists are (taxpayers, of course, and) all the people wrongly treated as suspects because they have the same or similar names as listed people. 

On its website, CBS News is previewing its upcoming 60 Minutes story on watch-listing, and they’ve assembled a large group of Robert Johnsons to attest to their experience with watch-listing. They share the same name as a Robert Johnson that someone deemed appropriate to put on a list.

Watch-listing has a deeper flaw, though.  It does not fit with our system of law enforcement.

In the U.S., people who have done something wrong are supposed to be arrested, taken to court and charged, then permitted to contest the accusation. If they are found guilty, they pay money or serve time in jail. 

Watch-listing follows no similarly familiar pattern. Law enforcement or national security personnel place a person on a list and then, wherever that list is used, treat the person (and other people with the same name) differently, stopping them, interrogating them, searching them, or whatever the case may be. This unilateral process is alien to our legal system.

Rather than watch-listing, people who are genuinely suspected of being criminals or terrorists should be sought, captured, charged, tried, and, if convicted, sentenced.  Watch-listing allows law enforcement to be very active and intrusive without actually doing what it takes to protect against crime and terrorist acts.  In Identity Crisis, I wrote that ”watch listing and identification checking [are] like posting a most-wanted list at a post office and then waiting for criminals to come to the post office.”

At the national border, watch-listing must be used — deftly — because we cannot reach wrongdoers worldwide. Those watch-lists allow us to be vigilant against bad people who may arrive on our shores. Domestically, though — in our free country — the practice should end.

Extremism in Defense of Liberty

Michael Cannon, Mike Tanner, and other libertarian health care gurus may appreciate this.  I recently came across an intriguing quote by Founding Father Benjamin Rush, surgeon general of the Continental Army and signer of the Declaration of Independence.  So I did what everyone does these days and went to Wikipedia.  There I learned that:

Rush believed that Americans should enshrine the right to medical freedom in their Constitution, much as the right to freedom of religion is expressly guaranteed in that document.

Rush is reported to have argued that “Unless we put Medical Freedom into the Constitution, the time will come when medicine will organize into an undercover dictatorship … to restrict the art of healing to one class of men, and deny equal privilege to others, will be to constitute the Bastille of Medical Science. All such laws are un-American and despotic and have no place in a Republic … The Constitution of this Republic should make special privilege for Medical Freedom as well as Religious Freedom.”

(Of course, if you read a little further, you learn that some of his medical theories were not so hot). 

Rush was also a rabid antimilitarist who proposed in 1792 that two captions be painted “over the portals of the Department of War”: “An office for butchering the human species” and “A Widow and Orphan making office”–though that’s an idea that would probably be even less popular today.    

Another Warning That Will Go Unheeded

In a speech to the Economic Club of Washington yesterday, Federal Reserve Chairman Ben Bernanke became the latest top policymaker to warn that we will face an economic crisis if Social Security and Medicare are not reformed. Unfortunately, Bernanke’s warning is unlikely to become part of the political debate. So far this election season, Democrats have been demagoguing the issue, while Republicans run away from it. Meanwhile, because Congress failed to act last year, Social Security’s unfunded liabilities increased by another $550 billion.

Don’t Embarrass the State

Here are the ”core values” of the Federal Bureau of Investigation, which is a division of the Department of Justice:

• Rigorous obedience to the Constitution of the United States;
• Respect for the dignity of all those we protect;
• Compassion;
• Fairness;
• Uncompromising personal integrity and institutional integrity;
• Accountability by accepting responsibility for our actions and decisions and the consequences of our actions and decisions; and
• Leadership, both personal and professional.

Good stuff. 

So what happens when a man comes forward and claims that the bureau violated his constitutional rights and subjected him to abuse?  Does a friendly FBI lawyer rush into court and say, “We checked this out and we really messed up.  We apologize and we hope you will accept monetary compensation?” 

Not exactly.

In fact, according to a report in today’s New York Times, the legal representatives of the federal government are of the view that even if all of the factual allegations are true, FBI officials are immune from legal liability.  Here is how the Times describes what happened in court:

In sharp questioning, a three-judge panel yesterday challenged arguments by federal officials seeking dismissal of a Pakistani man’s suit charging that because of his religion, race or national origin, he, like others, was held for months after 9/11 in abusive solitary confinement before being cleared of links to terrorism and deported.

In the mahogany and marble splendor of the Second Circuit Court of Appeals in Lower Manhattan, lawyers for former Attorney General John Ashcroft and other government officials argued that the officials were entitled to immunity from the lawsuit filed by the man, Javaid Iqbal, who had been known as “the cable guy” to his Long Island customers before he was swept into a federal detention center in Brooklyn as were hundreds of other Muslim immigrants in the New York area.

From the start of yesterday’s two-hour hearing, one of the judges, Jon O. Newman, showed particular impatience with the narrow legal defenses offered by the defendants in the case, which lawyers for Mr. Iqbal say seeks accountability for what they call serious constitutional violations by the nation’s highest law enforcement officials. It is the first case of its kind to reach the appellate level.

Judge Newman was especially scathing in questioning the lawyer for Dennis Hasty, formerly the warden of the Metropolitan Detention Center, where Mr. Iqbal and 184 others designated by the Federal Bureau of Investigation as “of high interest” were confined in a special unit where a 2003 Justice Department Inspector General’s report found widespread abuse.

Mr. Hasty’s lawyer, Michael L. Martinez, had argued in his brief that even if everything alleged in the lawsuit were true — as the appellate judges must assume at this stage of the litigation — Mr. Iqbal’s treatment “never approached the level of a due process violation.”

“Beatings?” Judge Newman asked. “Exposure to air-conditioning after standing in the rain? Needless strip-searches? Never approached a due process violation? If I thought your client really believed that, I’ve got to tell you, I’d be really troubled.”

Judge Robert D. Sack was equally acerbic in commenting on a defense assertion that the complaint failed to link Mr. Hasty personally to what was going on at the detention center.

“He is the warden,” Judge Sack said. “If he didn’t know what was going on — I’m boggled twice in one argument.”

Read the whole article.

Remember this: The federal government spends trillions every year, but it tells people like Mr. Iqbal to go jump in a lake.  This is our Department of Justice.  And don’t be fooled into thinking that it’s only an “isolated incident.”  Lawyers for the government are constantly seeking to further the “interests” of the government.  And those “interests” are not the same thing as justice.

IMHO, America could use more programming that cuts through the pretensions of officialdom.  Memo to Saturday Night Live: Do a skit where President Bush is giving his State of the Union address.  Here’s the scene: After promising more great-sounding programs, Bush points to the gallery where guys like Mr. Iqbal and Mr. Steven Howards are seated between FBI Director Robert Mueller and Attorney General Alberto Gonzales.  Bush declares that “These citizens have been whining about their rights … but by golly we’re at war!  And while I don’t question their patriotism, they did have the temerity to drag my people into court.  If there’s one thing I can’t stand, it’s complaining.  Mr. Speaker, Honored guests, my message to you tonite is simple: Anyone who disagrees with the policies of my administration is soft on murdering terrorists!  “Remove those guys from this hallowed building,” Bush yells.  Iqbal and Howards are then escorted from the Capitol building to the thundering applause of the Congress.

Would such a skit be too harsh?  Or not harsh enough?