201312

December 19, 2013 8:46AM

The Economic Impact of NSA Spying

At some point, I hope someone does a thorough, empirical study of the impact of NSA spying on U.S. companies.  But for now, all we have is anecdotal evidence, like this:

Today Brazil’s government announced it won’t buy $4.5 billion worth of US fighter jets in a move attributed to anger over controversial US intelligence-gathering that targeted Brazilian citizens and officials, including president Dilma Rousseff.

The Brazilian government’s official statements pointed to performance and cost issues as the reason to pick Sweden’s Saab AB to develop 36 fighters, though many observers had believed Boeing had the upper hand while bidding to expand Brazil’s air force.

Calling the decision “disappointing” in a statement, Boeing says it isn’t done trying to sell to Brazil, a major client for the company’s commercial air business, noting that ”over the next several weeks, we will work with the Brazilian Air Force to better understand its decision.”

One way to understand it: “The NSA problem ruined it for the Americans,” a Brazilian government official told Reuters. Public opinion turned against the US, and Brazil is leading the charge for a United Nations resolution that would limit electronic surveillance. Edward Snowden, the former National Security Agency contractor whose leaks revealed the US surveillance, obliquely requested asylum in Brazil earlier this week, but it looks the country isn’t interested in hosting the whistleblower.

Today, a White House panel charged with assessing American electronic snooping released a report urging new limits on US intelligence agencies. One of its recommendations is to more carefully assess the costs of surveilling foreign leaders like Brazil’s Rousseff. On this front, Brazil’s decision on the fighter planes is a costly object lesson for the US government.

December 18, 2013 4:43PM

Low Job Satisfaction in the Federal Bureaucracy

Other than providing generous pay and fat pensions, many federal agencies are not great places to work, according to federal employees themselves on a new survey.

A Washington Post story summarized the OPM results:

 “The average government worker comes in 13 points below the average private-sector employee in terms of job satisfaction, according to the ‘Best Places to Work in the Federal Government’ report.

‘This is an ongoing train crash,’ said Max Stier, president of the Partnership for Public Service.

Hay Group, which collaborated on the data, found that job satisfaction in the private sector was not only higher than in the public sector, it even climbed since last year — from 70.0 to 70.7 points out of 100 — all while the government numbers fell.

Of the 10 questions that both public and private employees answered, government scored higher on only question: Do you like the kind of work you do?

On every other question, including how well colleagues cooperate and how well management keeps employees informed, private-sector workers gave their organizations higher marks.”

During the Bush years, government failures were explained away by liberal pundits as being the result of a Republican administration that (supposedly) did not believe in government. But the government-loving Obama administration has now been in office five years and federal employees are more dissatisfied than they have been in at least a decade.

Many liberal experts—such as these folks—will admit that the government bungles a lot of its activities. They usually call for reforms like more coordination, reduced overlap, and better leadership to solve the government’s mismanagement problems.

However, the government will never operate as effectively as private enterprise for many reasons. One is that government workplaces will always be buried under piles of rules and regulations that frustrate workers and stifle initiative. Another is that the government has rigid pay structures that don’t differentiate between the slackers and the hard workers. Ludwig von Mises discussed some of the fundamental differences between private enterprises and government bureaus in his book Bureaucracy seven decades ago. Little has changed since then, despite repeated efforts to “reinvent government.”

One reason why our federal government is a particularly poor performer is that it has become so large, complex, and immune to oversight. If Americans want Washington to work better, they should insist that it be downsized as much as possible. Some agencies should be abolished, such as the lowest scoring agency on the new survey, the Economic Development Administration, which is an unneeded pork barrel machine. Other agencies should be privatized, such as the low-scoring Transportation Security Administration.

Less would be more when it comes to government and its performance.

December 18, 2013 4:35PM

Justice Delayed Is Justice Denied

Four years is too long to wait for a ruling on a constitutional claim. Not for the ultimate vindication of a right that's been summarily denied, mind you, but a mere ruling in a case asserting this right that has long ago been briefed and argued.

That's the situation faced by my colleague Tom Palmer and his fellow plaintiffs in a lawsuit challenging the District of Columbia's complete ban on carrying guns for self-defense outside the home. Palmer v. District of Columbia was one of many suits filed in the wake of the Supreme Court's 2008 ruling in District of Columbia v. Heller, which found that the Second Amendment protects an individual right to keep and bear arms. (Recall that two years ago the Seventh Circuit struck down a similar ban in Chicago, the only other place in the country where there is no legal way to exercise the right to carry -- forget places like New York, New Jersey, and Maryland, where it's possible in theory even if local law enforcement can, and always do, deny requests in practice.)

This case has now been pending for more than four years without a resolution of cross-motions for summary judgment -- both parties agreed that the case can be decided by the judge on the law, without fact-finding or a trial. The docket (see pages 37-42 of this document) is one of the weirdest I've ever seen for a federal case: Palmer was filed in August 2009 and a hearing was held in January 2010, at which point Judge Henry Kennedy took the case under advisement. In July 2011, Chief Justice John Roberts (!) reassigned the case from Judge Kennedy to Judge Frederick J. Scullin, Jr. of the Northern District of New York. (In other words, Judge Kennedy sat on the case for 18 months and then retired.) There was a status conference soon after, then a motion hearing scheduled for August 2012 (more than a year later), which was rescheduled for October 2012, after which Judge Scullin took the case under advisement, and then... nothing. Plaintiffs' counsel Alan Gura (my friend and sometime co-author) filed a motion to expedite in August 2013, and then a petition for a writ of mandamus -- a request that a higher court command a government official to do something -- with the U.S. Court of Appeals for the D.C. Circuit in October 2013.



This past Monday, the D.C. Circuit denied the petition in a one-paragraph order, saying, "Petitioners have not shown that the district court’s delay in ruling on the pending cross-motions for summary judgment is so egregious or unreasonable as to warrant the extraordinary remedy of mandamus at this time. [citations omitted] We are confident that the district court will act on the motions as promptly as its docket permits."

Not "unreasonable"?! This case has now been pending for than two years before the current judge -- after spending two years before a different judge -- who's had the full briefing papers from the beginning and held a hearing 14 months ago. In the time since this lawsuit was filed, several other similar cases have produced circuit court (appellate) rulings in Second Amendment-related cases, and the Supreme Court has considered cert petitions in many of those. And yet, here a district court has not ruled at all as to whether there's any right to bear arms at all.

I'm sorry to say that I'm much less confident than is the D.C. Circuit that Judge Scullin will act promptly. He's had plenty of time (as did Judge Kennedy before him) but apparently has no desire to rule on what would obviously be another high-profile case involving that inconvenient, "embarrassing" Second Amendment.

But the implications of this delay go well beyond the Second Amendment. What does the inability to reach a ruling in Palmer v. District of Columbia mean for the right to access the courts? If the government prosecutes someone for violating a challenged law, they don't wait four years in incarcerating you. What are civil rights lawyers supposed to tell their client? That federal courts don't think that certain claims are important enough to even bother ruling on?

This is a significant constitutional issue involving an outright ban of an enumerated right. If Judge Scullin wants to write some cute opinion that says that D.C.'s ban is just a time-place-manner regulation -- e.g., you don't have absolute freedom of speech, everywhere, all the time -- the place being Washington and the time being always, let him do that. Alan Gura will then get on with his appeal.

In the meantime, this is a black eye on the judiciary. Judges dismiss meritless lawsuits all the time, so the only conclusion we can draw here is that the district court knows that there's no way to square D.C.'s law with the Constitution but doesn't want to say so.

H/t Josh Blackman

December 18, 2013 4:31PM

Clay Conrad on Jury Nullification

A few weeks ago, the Drug Policy Alliance had its annual convention in Denver.  I was on a panel that addressed jury nullification.  The other panelists were Clay Conrad (author, Jury Nullification: The Evolution of a Doctrine), Kirsten Tynan (Fully Informed Jury Association), and Steve Silverman (Flex Your Rights).  Steve Silverman transcribed the discussion.  Here is an excerpt:

Clay Conrad

[caption align="right"]Clay Conrad: Jury NullificationToday judges tell jurors to commit injustice in the name of the law, and we call that progress  –Clay Conrad[/caption]

Clay Conrad is currently a lawyer in private practice.  He discusses the history and background of jury nullification. (Jump video of Clay’s talk.)

What is Jury Nullification?

“Jury nullification is the act of a criminal trial jury in refusing to convict on conscientious grounds in spite of proof of guilt beyond a reasonable doubt, because they think the law is unjust, the law is misapplied, or the punishment is inappropriate.”

“Juries have always had [a political] role. That’s what the founders intended to protect in the 6th Amendment, and that’s what’s guaranteed in the constitutions of all 50 states.”

“The understanding of the phrase ‘judges of both fact and law’ has changed over the years because our understanding of where the law comes from has changed. Back in that period of history, people believed in natural law doctrine. That was the generally accepted view of where the law comes from. Law was considered part of natural science to be discovered.”

“Today we have a much more technocratic understanding of the law. Natural law doctrine has given way to a positive, formalistic conception of law. But under natural law doctrine when you say the jury is the finder of fact and law, it means they can determine where justice lies, because justice is what the law was. It was the understanding of what was just that was their understanding of the law.”

“Today judges tell jurors to commit injustice in the name of law, and we call that progress.”

Cato will soon be releasing an e-version of Clay Conrad's book.

December 18, 2013 3:27PM

Bali’s Lessons for Trade Negotiators

The future of multilateral trade has presented some vexing questions for policy watchers over the past few years. With the Doha Round of multilateral trade negotiations hopelessly stalled and the proliferation of regional and bilateral agreements in its stead, contemplation and debate about the fate of the World Trade Organization, its successful adjudicatory body, international trade governance, and globalization have been all the rage.


December continues to shine a particularly bright light on these issues, as U.S. and EU negotiators are in Washington this week discussing the proposed bilateral Transatlantic Trade and Investment Partnership. Last week, negotiators from the United States and 11 other nations met in Singapore in an effort to advance the regional Trans-Pacific Partnership deal. The week prior, representatives of 159 WTO members were in Bali, Indonesia for the Ninth Ministerial Conference (MC-9), where a multilateral agreement was reached on a set of issues for the first time in the WTO’s 19-year history.

The significance of the Bali deal depends on whom you ask. Those heavily vested in the current architecture of the multilateral system tend to hail Bali as proof that multilateral negotiations are back in business and that there is renewed promise for completing the long-stalled Doha Round. Frankly, taking 12 years to forge an agreement on trade facilitation (basically, reform of customs procedures, which constitutes a tiny fraction of the Doha Round’s objectives) plus some concessions to permit more subsidization of agriculture in the name of food security is not exactly convincing evidence that Doha Round negotiators have demonstrated their cost effectiveness or the utility of this approach.

The most enlightening (and liberating) conclusion from Bali is that the agreement killed the Doha Round. By peeling off the trade facilitation negotiations and reaching agreement, Bali circumvented what has been, arguably, one of the greatest obstacles to the Doha Round’s success: the commitment of negotiators to the "single undertaking," which pledges that "nothing is agreed until everything is agreed."

With Bali a direct hit on that unwieldy concept, WTO negotiators are free to take-up Doha Round issues in other, more manageable fora, thus liberating governments to pursue global trade barrier reduction in myriad new ways. Why not have a series of mini-rounds and pursue fewer issues at a time by matching negotiations on, say, agricultural and industrial liberalization? Or by matching talks on services with talks on rules, like antidumping? Yes, there need to be adequate tradeoffs in a world of reciprocity-based trade agreements, but the notion that everything needs to be on the table to accomplish those tradeoffs has been rendered quaint--if not inutile--by the changing composition and interests of the WTO membership. If particular governments are the problem, why not pursue more plurilateral deals? Why not establish a mechanism in the WTO through which demonstrably successful provisions from the universe of existing and brewing bilateral and regional agreements can be adopted as best practices by taking up these issues and voting on an annual basis? These approaches could facilitate liberalization and give the WTO new credibility.

But Bali doesn’t only offer guidance to WTO negotiators. Before U.S. and EU negotiators get too far along--where they are near certain to get stuck in the deep mud created by trying to resolve dozens of highly contentious and highly technical issues on "one tank of gas"--they should consider the alternative of taking the negotiations in smaller bites. Despite the original announced deadline of 2014, negotiators are quietly acknowledging that projection is overly ambitious. But so too are 2015, 2016, and 2017. There are simply too many issues on the table and too much suspicion that local autonomy over traditionally domestic matters is up for bargaining that the amount of time needed for public debate has been vastly underestimated. Meanwhile, it is unclear that government’s can stay committed to the TTIP agenda if it drags on for several years.

This short paper explains in greater detail the rationale for breaking the TTIP up into three, two-year negotiations that yield three successive agreements. The ideas conveyed are certainly bound to raise objections and even scorn. But by exposing the single undertaking as an obstacle to liberalization, the Bali Agreement has some lessons that TTIP negotiators would be wise to understand.

December 18, 2013 2:03PM

“Power 5” Power Play: Just Higher Ed Being What It Is

Though the NCAA still runs ads suggesting that college sports is all about students who happen to be athletes, big-time college football and basketball programs have basically given up the pretense of being about anything other than big bucks and big wins. See, for instance, the latest power play by the "BCS" football conferences.

That's fine -- better they be open about what drives them. Unfortunately, as I write in this SeeThruEdu post, the rest of higher ed is similarly self-interested. Problem is, it won't admit it, and uses the notion that it's all about the "common good" to get taxpayer money, often without producing any real benefit for the people paying the bills. 

December 18, 2013 10:28AM

Ohio Legislator: Your Kids Belong to the State

In the wake of a tragedy, there is a natural and understandable desire to prevent something similar from ever happening again. Unfortunately, legislators too often respond hastily to the passionate demands that they "do something" without thinking through the consequences of their actions. This phenomenon gave rise to the morbid truism that "dead kids make bad laws," such as "Kyleigh's Law" in New Jersey. In the wake of a fatal car accident involving a teenage driver, the state legislature passed a law requiring teens to drive vehicles with special decals to make it easier for police to enforce an 11:00pm curfew. When irate parents raised concerns that the decals put their children at risk of being followed by pedophiles, 13 legislators who had initially voted for the law filed a bill to repeal it.

The story that gave rise to "Teddy's Law" (Senate Bill 248) in Ohio is similarly heartbreaking and the legislative response has been similarly misguided. After teachers reported their suspicions about abuse to Children's Services, Teddy Foltz-Tedesco's mother pulled him out of school under the pretense that she would homeschool him. Instead, her boyfriend, Zaryl Bush, tortured and killed the 14-year-old Teddy. Bush is now serving life in prison.

Teddy's story is a tragic failure of the system to protect him after years of warning signs and reports from neighbors. However, the legislators' response goes in the wrong direction. Rather than address why social services failed to act on repeated reports of abuse, "Teddy's Law" treats all would-be homeschooler parents as child abusers until proven innocent. The legislation further assumes that all children belong to the state, as it requires families to seek permission from the government to homeschool their own children. They would have to submit to background checks and a social services investigation in which parents and children are interviewed separately. The law grants the agency the authority to deny the right to homeschool if it "determines it is not in the best interest of the child," without providing any guidelines as to how that determination should be made.

And while it unconstititionally treats all parents as possible criminals, the Home School Legal Defense Association argues that "Teddy's Law" likely would not have even saved Teddy:

Even if, as SB 248 would require, his mother had sought social service’s approval to homeschool and was denied, he still would have been at home subject to abuse after school. Regardless of where he went to school, Teddy was left by authorities in a home where they knew abuse was occurring.

Clearly, SB 248 would not have saved Teddy.

SB 248 turns fundamental American values upside down. Parents have been deemed by the United States Supreme Court in Parham v. JR to act in their children’s best interests. In Pierce v. Society of Sisters, the Court ruled that parents have a fundamental right to direct the education of their children. This law replaces parents with unqualified social workers to make educational decisions for children.

Moreover, as HSLDA notes, by treating all parents as child abusers, "Teddy's Law" diverts scarce resources away from focusing on parents actually suspected of child abuse. Instead of protecting children like Teddy, the misguided law would make it more likely that future Teddys would fall through the cracks.