201109

September 5, 2011 3:38PM

Jury Rights Day

Today's date, Sept. 5, marks an important historical event in the development of the right to trial by jury. On this day in 1670, William Penn and William Mead were prosecuted in England for "unlawful assembly," "disturbing the peace," and "riot." These "crimes" arose from Penn having preached near Grace Church to a meeting of several hundred Quakers. 

It was a peculiar trial in many respects. The court, for example, denied Penn's request to simply read the indictment. But the trial was most notable for the way in which the court tried to bully the jury. When the jury did not come back with guilty verdicts, but a verdict that simply said "guilty of speaking to an assembly," the court refused to accept that outcome and ordered the jury to return to their deliberations. When the jury returned with a verdict that acquitted Mead of all charges, the court ordered the jury to prison! Next, the jurors filed a writ of habeas corpus challenging the legality of their imprisonment. 

Soon after, an important legal precedent was set for jury independence: jurors cannot be punished for voting their conscience. That's the story behind "Jury Rights Day."

Alas, the jury trial has been in a steady decline here in the United States. 

We started out strong. Our Constitution says, "the Trial of all Crimes, except in Cases of Impeachment; shall by by Jury."  And our second president, John Adams, said, "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." 

But these days, the government pressures many defendants to enter into plea bargains so fewer and fewer cases go to trial. And the government no longer wants jurors to vote their conscience. Indeed, it goes so far as to arrest people for distributing pamphlets that discuss these matters. 

We need policies that will once again honor the role that juries play in securing justice.

For a good article, go here.  For a good book, go here.

September 2, 2011 3:37PM

The Curious Case of Lloyd Chapman

Last week, I flayed the American Small Business League’s Lloyd Chapman for his absurd claim that legislation introduced by Sen. Richard Burr (R-NC) would close the Small Business Administration (see here). As I expected, Chapman's response is equally absurd.

In an ASBL press release, Chapman actually threatens to take me to court over my calling him a “conspiracy theorist”:

The next time you call me a conspiracy theorist, be ready to back it up with facts. You just might find yourself in court.

Good luck with that, Lloyd. In the meantime, let’s allow the court of public opinion to decide if the following claim you recently made is the stuff of a conspiracy theorist:

Clearly Republicans like Senator Burr, his supporters and groups such as the CATO Institute are directed like puppets by the defense and aerospace industry.

I can’t speak for Sen. Burr, but Chapman’s assertion that the Cato Institute is being “directed like puppets by the defense and aerospace industry” is ridiculous. Cato’s Downsizing Government website, which I co-edit, lays out the case for cutting the Department of Defense.

My Cato colleagues past and present have consistently advocated for a limited U.S. presence abroad:

Cato's foreign policy vision is guided by the idea of our national defense and security strategy being appropriate for a constitutional republic, not an empire. Cato's foreign policy scholars question the presumption that an interventionist foreign policy enhances the security of Americans in the post-Cold War world, and maintain instead that interventionism has consequences, including the formation of countervailing alliances, the proliferation of weapons of mass destruction, and even terrorism. The use of U.S. military force should be limited to those occasions when the territorial integrity, national sovereignty, or liberty of the United States is at risk.

Does that strike the reader as anything the defense and aerospace industry would direct Cato to advocate? Clearly, Chapman is hopelessly lost in a fantasy world of his own creation.

Perhaps realizing that he embarrassed himself by threatening me with legal action, Chapman now says that he wants to take a different approach:

I am sure that Tad DeHaven and the staff at the CATO Institute have seen my press release in response to their attack on my credibility. I'd like to take this opportunity to try a different approach and appeal to their sense of patriotism, logic and reason.

He then proceeds to talk about all of the jobs that small businesses create and the fact that federal contracts set aside for small businesses sometimes end up instead benefiting large businesses. Uh, Lloyd, in my “attack” on you, I never said otherwise. I even noted that “Chapman is correct that government contracting is fraught with fraud and abuse.” In my testimony on the SBA before the Senate Small Business Committee, I discussed examples of fraud and abuse in government contracting, including federal contracts set aside for small businesses that ended up benefiting large companies like General Electric and Lockheed Martin.

As I noted in my “attack,” Chapman is focused on the contracting issue whereas I’m primarily focused on the SBA’s loan guarantee programs. I frankly don’t care what firms receive federal contracts so long as work is performed at the lowest cost to taxpayers. I’m more concerned with reducing the size and scope of government, which would mean lower taxes and fewer burdensome regulations for small businesses. Moreover, does Chapman not understand that those government contracts are paid for, in part, by other small businesses through taxes? I would argue that the strength of the small business community should be measured by the goods and services produced for private consumption, not government consumption.

Finally, if Chapman is so pro-small business/anti-big business, why isn’t he concerned with the SBA’s loan guarantee programs? I challenged Chapman on this issue:

I’m all for a serious discussion and debate on the SBA. The SBA’s loan guarantee programs benefit a relatively tiny number of small businesses at the expense of the vast majority of small businesses that do not receive government support. Moreover, the biggest winners from these loan guarantees are big banks who reap the profits but get to kick the bulk of any losses to the government. One would think a pro-small business/anti-big business guy like Chapman would be concerned by this. Instead, Chapman consistently resorts to wild exaggerations and conspiracy theories. As a result, I can’t take him seriously. It’s too bad policymakers do.

The silence from Chapman on this matter is deafening. In addition to resorting to wild exaggerations and conspiracy theories, we can now add the threat of legal action. Until Chapman dispenses with the antics, policymakers should stop taking him seriously.

September 2, 2011 3:34PM

This Week in Government Failure

Over at Downsizing the Federal Government, we focused on the following issues this past week:

Follow Downsizing the Federal Government on Twitter (@DownsizeTheFeds) and connect with us on Facebook.

September 2, 2011 1:18PM

Why Congressional Budget Office Estimates and Policy Options Are Taken Much Too Seriously

Coercive redistribution and diversity in the interests of its constituent groups are essential features of the modern welfare state.  Disagreement over perceived consequences of social policy creates the demand for publicly justified “objective” evaluations. If there were no coercion, redistribution and intervention would be voluntary activities and there would be no need for public justification for voluntary trades.

James J. Heckman (winner of the 2000 Nobel Prize in Economics), “Accounting for Heterogeneity, Diversity and General Equilibrium in Evaluating Social Programs,” National Bureau of Economic Research Working Paper No. 7230, July 1999.

September 2, 2011 9:18AM

Why More Money Hasn’t, and Won’t, Fix the Nation’s Public School Buildings

Adam Schaeffer has just blogged about the massive increase in public school facilities spending of the past two decades, and about President Obama's likely call to throw even more money at the problem of decrepit schools (in his address on the economy, next week).

Adam argues that money hasn't fixed the problem, but it isn't hard to imagine that a true believer in the status quo (paging Matt Damon...) might conclude that we simply haven't increased facilities spending enough.

I addressed this counterargument a few years ago, using federal government data on the condition of U.S. public schools and data from a survey of Arizona private schools. What I found is that public schools were four times more likely than AZ private schools to have a building in "less than adequate" condition, despite the fact that public schools  spent one-and-a-half times as much per pupil. [And, yes, I'm talking total spending here, not just tuition].

So if private schools can and do maintain their buildings in far better shape than public schools, at far less cost, what exactly are public schools doing wrong? The answer comes from one of the federal government's own assessments of school facilities nationwide. According to that report,

a decisive cause of the deterioration of public school buildings was public school districts' decisions to defer maintenance and repair expenditures from year to year. However, maintenance can only be deferred for a short period of time before school facilities begin to deteriorate in noticeable ways. Without regular maintenance, equipment begins to break down, indoor air problems multiply, and buildings fall into greater disrepair... Additionally, deferred maintenance increases the cost of maintaining school facilities; it speeds up the deterioration of buildings and the need to replace equipment.

This routine deferral of necessary maintenance is not, as the spending data show, the result of a funding shortage; it is the result of mismanagement. Allowing a public school to decay has no inevitable consequences for management because public schools have a monopoly on k-12 funding. Private schools, by contrast, would lose students if their facilities crumbled, and so they make a greater (and more effective) effort to maintain them.

The solution to America's public school repair problems is not to spend more, it is to unleash the freedoms and incentives of the free enterprise system on our creaking, calcified, government school monopoly.

September 2, 2011 8:42AM

California’s Water‐​Liu

Over the last year and a half, I've blogged many times about Berkeley law professor Goodwin Liu, the controversial nominee to the Ninth Circuit, the federal appellate court with jurisdiction over the western states and territories.  Here's an op-ed I published in the wake of that nomination -- which happened to coincide with Obamacare's enactment.  And here's a taste of what I wrote when Republicans filibustered Liu, which ultimately led him to withdraw:

I’m not going to weigh in here on the issue of whether judicial nominees ought to be filibustered in general . . . but if ever there were an “extraordinary circumstance” fitting into the Gang of 14 agreement that broke the judicial logjam under President Bush, this is it.

As I blogged last year, Liu is, without exaggeration, the most radical nominee to any position that President Obama has made. He believes in constitutional positive rights — not that the welfare state and all its accompanying entitlements (and then some) are a good idea, but that they are constitutionally required

Well, today Liu finally reached the bench, being confirmed to the California Supreme Court.  This is an unfortunate development for the citizens of California, to be sure, but, as I tweeted earlier today, at least Liu's damage will be limited to that irredeemable state. 

Of course, a state supreme court justice may be an attractive choice for appointment to the U.S. Supreme Court, particularly given that we haven't had a state jurist appointed since President Reagan tapped Sandra Day O'Connor in 1981.  And Liu would be the first Asian-American on the highest court in the land, which could further tempt Barack Obama or a future Democratic president to select him.  Such are the stakes for every presidential election until the 40-year-old Liu is deemed too old for elevation.

September 1, 2011 5:18PM

K‑12 Facilities Spending Up 150 Percent in Two Decades – Apparently Not Enough for Obama

USA Today reports that part of President Obama’s much-anticipated plan for the economy, 3.0, might involve sending billions more in construction funding to our government school system:

A plan to boost construction jobs nationwide by providing federal money to repair public schools is picking up support among unions, economists and liberal advocates with direct ties to the White House.

Brilliant! Just the thing to fix our education system, economy and massive deficit . . . more lavish spending piled up high upon our already-lavishly-funded government schools.

Andrew Coulson already reviewed the dismal record of our total K-12 education “investment” over the last few decades. The short story; the cost per student has nearly tripled while test scores at the end of high school are flat.

But maybe, despite $500 million-dollar debacles like LA’s RFK high school and countless other examples of stupendously overbuilt government school facilities, just maybe we’ve neglected to spend “enough” on school buildings overall.

Here is the truth, in all of its depressing visual simplicity: