Some interesting bedtime posts

I think the story says it all. Central Pacific Bank disaster.

Wal-Mart and employer mandates in health care reform.

The world as I know it has officially gone insane. And the Sox blew a 9 run lead, losing to Baltimore 10-11.

Disappointment on Taxes

So many people ask me what is the biggest disappointment about the administration. Is it health reform? No. I am not thrilled with what Senate Finance is moving, because the exchanges may be too weak, but I still have hope. Gay rights? No. I still think the country is against it overall, though changing. Time may not be ripe. National Security? No. I am not thrilled, but I also am moderate here.

No, the issue that gets me riled up is taxation. Both Ezra Klein and Matthew Yglesias have excellent posts on the matter. And today, former Deputy Treasury Secretary Roger Altman wrote an Op-Ed in the Wall Street Journal regarding this matter.

Yglesias makes the key point. Obama played into the notion that we need to reduce taxes, or playing the games of "Don't tax you; don't tax me; tax the man behind the tree (or corporations across the sea regarding the new corporate tax matter)." The promise not to raise taxes on the middle class is ludicrous. Even if we kept things the way as it is, or even eliminated earmarks, you would need more revenue just to service the debt and handle growing entitlements. Anyone who thinks Medicare is something fun to tamper with, well, needs to look at the health reform debate and throw in angry old people, who incidentally, vote, as well as baby boomers who are near retirement and still a large part of the population.

We must raise taxes. We need to fix the mess that is the code. In 2005 President Bush convened a panel to create a report along those lines. Nothing happened. The report was circular filed. The panel created a very thoughtful and politically worthwhile report. Of course, there were problems, but it tried something and failed.

Others have tax reform proposals. Some are disingenuous. Anyone who thinks we can replace the federal income tax with a sales tax at 15% is smoking something illegal, because that produces even less revenue than now. Michael Graetz has a worthwhile proposal that is somewhat savvy and administrable in his most recent book 100 Million Unnecessary Returns where we shift to a less progressive VAT/consumption tax base, but put a much steeper income tax at the top. That said, people still would need a tax increase.

Part of the problem is that we risk moving ever closer to the pre-1986 tax code. Once upon a time, the top marginal rate was pushing 90%. You thought tax arbitrage is bad now, I shudder to think of what returning to that situation would be like. The corporate tax increase proposed comes with nothing for corporations too like lowering rates. Lowering rates is tough.

Also trying to determine economic efficiency, while worthwhile, is utterly debatable. We can bring in experts to no end on that regard on both sides. When you do something like change tax treatment of things, some results you can see. But many results are unintended and manifest only later.

Regardless of what you think, we must move beyond this idea of the middle classes also wanting to skirt taxes. Once upon a time, it may surprise you, before the insane top marginal rates of 90% in the late 60s and 70s, people saw the tax code as a relatively good thing. We have lost that partly because of the mess the code made. However, I also posit that part of it is our distrust of government and a growing individualization of American culture. It is much harder to tell someone focused on me to think of a larger societal goods (and I am not just talking about welfare and health care, but education and roads too).

Ultimately, make no mistake, this is one issue that the conservatives are winning. As Graetz writes in another book, co-authored by Ian Shapiro, Death by a Thousand Cuts: The Fight Over Taxing Inherited Wealth, the estate tax is merely the opening salvo in a fight to undo our tax system and reduce it to a regressive tax that fails to fund anything. "Their goal is simple. It is death by a thousand cuts. What is the proposal for the other side?"

60 Vote Senate. Great! Right?

Well, perhaps not. People have spilled a lot of ink, or bits, on this matter. The ever amazing (and clearly more professional) blogger, Ezra Klein, has a good political take. However, I love the Senate, sort of, and I particularly love the rules and traditions of the Senate. So, I will take the opportunity to show 60 votes does not mean anything will get done.

Most people have this view that 60 votes means that a filibuster can be broken. That is absolutely correct. However, this does not mean that the Senate will move any faster.

The Senate rarely uses its own rules. Usually what happens is that they call up bills under complex unanimous consent agreements. These agreements specify how long debate lasts on a bill, and what amendments are in order. The analogous item in the House is the Special Order of Business Resolution/Special Rule. However, there is a significant difference. A Special Rule comes out of the Rules Committee, which the majority party controls under a 2x + 1 manner (where x is the number of minority party members). The Special Rule can pass with only an hour of debate, because you can close with a Previous Question Motion, which in the House is not a debatable motion and if approved by a simple majority ends debate and forces a vote on the Special Rule. The Rule then can pass by a simple majority.

As the name implies though, the Senate operates on unanimous consent. Should any one Senator object to the terms of considering the bill she can just whisk to the floor when a special phone, called the Hotline, rings and say, "I object." So how then can the world's most deliberative body consider a bill? Well with lots of deliberation.

In order for a bill then to move, the leader must then move to consider a bill. However, that motion is debatable. That means it can be subjected to a filibuster. As such, what will happen then is that cloture, where you need the 60 votes has to occur. However, you cannot just invoke cloture. The process is far more complicated.

For the Senate to invoke cloture, 16 Senators must sign a petition. The rules state that the vote cannot occur until two days later. That means if cloture is filed on a Monday, it does not ripen until Wednesday. Then a vote occurs. 3/5 of those Senators duly chosen and sworn (i.e. 60 Senators) then vote on the question, "Is it the sense of the Senate that debate shall be drawn to a close?"

The vote then happens. Things are done, right? Well, not exactly. There is still 30 more hours of debate in place. Usually after the Senate invokes cloture, a unanimous consent agreement waives this. However, if not, then you debate whether you want to proceed to consideration of a bill for 30 hours. Then you take the vote on the motion to proceed. At this point about a week has gone by just considering whether the Senate will consider the bill.

Now you consider the bill. But, the bill itself is debatable. That means you can filibuster by bill. You can filibuster by amendment too, as each motion to amend is debatable (one day I will speak of one of my favorite charts ever). The majority leader can avoid this amendment matter by various means. However, there are plenty of opportunities to gum the matter up. That said too, a major bill, like health reform, is far more subject to just having more general debate.

Of course the Senate could avoid this with a unanimous consent agreement, but why do that when you can gum things up and make the majority take hard votes, and you can pummel them for being unable to do anything in an effective matter.

So you will spend another week invoking cloture on the underlying bill. If that passes, there is still 30 hours of debate (cloture procedure stays the same). Now, though all debate and new or pending amendments must be germane (rare for the Senate).

So what does all of this mean? Essentially it means 60 votes is not as great as it seems from a procedural standpoint. Furthermore, the Senate, unlike the House, is much harder to keep together, because of the ability to object to unanimous consent. The majority leader then could find his own party causing obstructions too, because if one of them does not agree cloture is that much more likely to fail.

One way to get around that is to create more omnibus pieces of legislation to move through with various disparate issues. However, that weakens the committee process and makes things generally more messy. It gets especially weird in conference sometimes with the House. Transparency people hate that too. And often large bills come with drafting errors that courts obsess over in the future (just ask anyone litigating a Superfund case).

Perhaps good will come of this situation. However, as a procedure person, I shudder over a 60 Vote Senate and what people on both sides seem to think. It could just create a different type of mess. Then again, all aspects of the government was designed to move at a glacial pace.

For more cloture information, consult Riddick's Senate Procedure.

More Ricci, More SCOTUS

First, Dana Milbank has a cute and sappy article in the Post this morning about Souter's retirement and the letters. You can find the letters at SCOTUSBlog.

I have one more point to make about Ricci and the ever complicated issue of race. The court somehow managed to create the worst of all possible worlds. The opinion calls into question a very weird test that I doubt most non-lawyers do not understand, the disparate impact test, but upholds it where there is vague "substantial evidence."

I think everyone will be angry with this result. Employers will still tread carefully, fearing lawsuit and conservatives will get annoyed. Liberals will rightly fear that there is a roll back of an important aspect of civil rights.

Furthermore, I think it is important to see what the test gets at, and I am writing this more for my friends who are not lawyers and who may even disagree with me on the issue. However, the disparate impact test was, until yesterday, fairly well enshrined. It said that even if a test appears neutral, you have to look a little further to see if it does have a disparate impact based on race. Why should that care? Because racism in some sense is less open than it used to be. Instead, you need to look beyond the matter and see if you can find some evidence to deduce these motives through some sort of impact.

Now there are defenses. The person in question must show that there is either no other way to achieve the goals that does not cause such an impact. It essentially requires a showing that other means were exhausted. This is not some crazy idea, especially if we move into a world of hidden racism.

And, like I said yesterday, most maddening is that the Court calls this into question without producing a new test.

Linda Greenhouse addresses the issue quite nicely in an Op-Ed today.

As for a broader look of the term, read Tom Goldstein's summary at SCOTUSBlog.

End of the Term for SCOTUS

Today the Court had its final day before it recesses for the summer. It was also Justice Souter's last day on the Court.

As expected the Court ruled in Ricci v. DeStefano, and overturned the Second Circuit. Two great analyses as always comes from both Lyle Denniston and Tom Goldstein.

Again, I do not have a whole lot more to add to the professionals. One of the problems as Denniston points out in his analysis is that future litigation is needed to sort out the many questions left open. Many see this as either a great defeat or a great win (depending on which side of the fence you are on), but the opinion is narrow and without much guidance. While I am a minimalist myself, I am aware of the problems of such a philosophy.

On the confirmation fight, already the right has shouted that this shows that Sotomayor is not fit to serve on the Court. The opinion, as Goldstein points, carefully avoids doing anything of the like. The Justices have decided not to create a possibly most awkward situation ever in conference should the Senate confirm Sotomayor.

More importantly though, as many have pointed in the fact, Sotomayor actually has fewer reversals than Samuel Alito did as an Appeals Court judge. Rather than analyze the number of opinions overturned, perhaps the process should focus instead on her opinions and her judicial philosophy. There is a great deal of data there.

However, given the world of sound-bite politics, I do not expect much in this regard, sadly. As a result, the American people will not really get a chance to examine Sotomayor carefully. Instead we will just have yet another silly distraction, much like the comments earlier were.

And Maybe we Do Learn

However, perhaps we do learn some other lessons. Stories, which helped torpedo the estate tax, may help boost health reform.

Somewhat Situational views on Health Reform

Ezra Klein, as always has two fascinating posts. The first involves health insurance exchanges, something that I think he is right to focus on. Without them we do not really have a market. Read his post, as I think he explains it much better, and there is little point to reinvent the wheel here as an amateur.

The other post Klein has today involves some of the hypocrisy on the Republican side. Here I think linking to another story in the news may shed some light on understanding what goes on here.

Recently, of course, we saw Mark Sanford, a very conservative Republican, admit to an affair. He is in a long line of these problematic politicians. However, perhaps there is more going on here.

The Situationist Blog has an interesting post about the matter. In it, they argue that the situation and our underlying psychological framework may serve as a better explanation for what is going on here.

So why bring up sex scandal in the world of health reform? I think in some sense the Republicans are managing to play off our own situational factors here.

While polls have stated that most Americans want to have a public option in the health debate, there is a great deal of worry that insurance companies will disappear. These companies are seen, like many corporations, as perhaps nasty, but on a deeper level giving us choice. Furthermore, the public plan, when framed correctly can cause problems. Ingrained in us is a sense of reactance, a sort of horror and recoil, toward the idea of regulation and government. Summed up simply free markets = free people, and therefore markets are good, regulation and government are bad.

Part of what the Republicans seek to do is play off of this. These hypocrisies arise too in many other areas of the corporate world. Both the food industry (a discussion in a post coming up soon) and the beauty industry often have conflicting messages, but, this hypocrisy actually is necessary for understanding the matter. See Adam Benforado, Jon Hanson, & David Yosifon, Broken Scales: Obesity and Justice in America, 53 Emory L.J. 1645, 1711-21 (2004).

While I agree with Klein as to how these people are ridiculous, I would urge those who support comprehensive reform with good exchanges and a public option, like me, to consider how the opposition seeks to manipulate the situation and speak to deeper issues here. It does not matter in the end that things conflict. What matters more is how it speaks to people.

And something completely different

I went out of town this weekend, and something is wrong with the my New Yorker delivery. I finally got the most recent issue today. Normally I would have turned to the political articles. However, what particularly thrilled me about this week was the fact that my favorite writer (not to be confused with my favorite article found here) Alex Ross wrote an article. Sadly you need to subscribe to read the article. However, a link to his blog here points you to a greater explanation and to some of the additional web features that accompany the article.

The article discusses the chamber music festival in Vermont started by Rudolf Serkin in Ross's wonderful and lyrical prose. Today Michiko Uhida and Richard Goode run the retreat. Since the article is inaccessible, there are two quotes I take out of it that I find particularly moving.

"And I reflected on the fact that even the most exalted music-making comes from an accumulation of everyday labor, inseparable from human relationships."

"In a wider sense, Marlboro represents the migration of tradition across centuries and continents: a Japanese-born woman passing along her understanding of Mozart and Schoenberg to new generations of American kids. Marlboro is an enchanting place, but in the end, there is nothing especially remarkable about it. The remarkable thing is the power of music to put down roots wherever it goes."

If you can, get your hands on the article.

The 40 year Struggle

Today is June 28, 2009. This marks the 40th Anniversary of the Stonewall Riots, which essentially created the gay rights movement. The issue has come far, but has much more to go.

However, let us also spend the day celebrating the achievements of the last generation. Today, many more children grow up in a more caring environment and do not have to hide their homosexuality. We should remember the past, while recommitting ourselves to the work that lies ahead. As it is written in Pirkei Avot about the study of Torah, "It is not incumbent upon you to complete the task. But, you are not free to desist from it." Such words have a powerful effect in almost any large endeavor, and this struggle is among them.

The Public Plan Tussle

The tussle over the public plan in the health care debate has reached, in my opinion, a point of insanity. I would love to see a public plan compete with the insurance companies. However, these companies worry about it and have drawn a line in the sand. In return though, they will give up the old risk calculation and rating systems for community-based rating. And more importantly, we can create insurance exchanges.

I am not the only one who thinks this. Both Ruth Marcus, a thoughtful and slightly left of center columnist for The Washington Post, and the more liberal, but practical blogger at The Post, Ezra Klein, both point out that the insurance exchange, and a proper implementation of a well-designed system, is where we should focus. Klein, who does support a public plan, and talks greatly about its virtues, also raises concerns about how it is designed. If designed poorly, it may not turn out so well. Marcus in her column points to political reality, Congress has not made great choices with Medicare or Medicaid, and let the plans grow out of control. The only way for a public plan to work, is to have the ability to set rates with the full-force of the State behind it. Nothing seems to come out of the plan designs, and nor could I see Congress or an Administration from tampering with it.

My personal feel is that this is an issue that can essentially go out (a change from my views a few months ago). Looking at data it is far more important to force community-based ratings, and exchanges, similar to the Massachusetts Connector, to appear rather than focus on this public plan, which is a source of political sound and fury. Creating these larger pools with strong regulatory power of the government behind it is the most important part of the reform effort.

Many will point out of course, that Massachusetts's Connector, where people pay with their own money, is not popular. However, many of those who fall in the category where they do not qualify for subsidies, often have employer sponsored insurance (ESI). Indeed, the Commonwealth, with its pay-or-play employer mandate (which may violate the Employee Retirement Income Security Act of 1974 (ERISA), Pub. L. 93-406 as amended) continues to encourage ESI. Add in the notion that having people just sign up at work is easier than making them shop (a sort situational inertia) and the tax breaks by excluding ESI from income, you result in a system that does not really encourage the use of the exchanges. People just stay with what they are familiar with, and may even choose plans that are more expensive that many not suit their needs because they get this tax subsidy, when instead the exchanges themselves may provide possibly better benefits at lower rates.

Anyone who thinks that ESI as we have set it up is a positive policy should look to what happened this week in a state that has built its labor structure on ESI, Hawaii. The Hawaii Prepaid Healthcare Act, HRS Ch. 393, is essentially the only existing employer mandate, as Hawaii passed its law before ERISA and thus got grandfathered into the system. However, the State of Hawaii, Department of Education, and the main teacher's union, HSTA, recently had to find ways to close a budget gap. With little notice, teachers got a new plan, and many could not choose. Perhaps some may have wanted to pay more to keep something similar to the older plan, or perhaps cared about provider networks. However, with ESI, no one has that choice, and you take it or leave it (unless you work for a large employer, like the Federal Government that gives a wide array of insurance choices).

Property Tax in Paradise

The question here is undoubtedly political. However, Burris does have a fascinating idea. Real Property taxes are one of the few that are taxes on wealth (the other major ones are estate and gift taxes). Indeed, the power of property taxes are that they are direct taxes, and can go only to the state's fisk, and not the larger federal pool, under the Representation Clause of Art. I of the U.S. Constitution.

The notion of creating some sort of a graduated scale has some worthwhile effect. Burris rightly observes too that politically it is infeasible. It seems as though we are less willing to think about progressive taxation. The number of people who would have to liquidate a home, I think, is probably small if you structure the tax graduation properly. However, that is not the issue.

Finally, one cautionary note. People who believe in limiting property taxes should consider the plight of California. With the passage of Proposition 7 in the 70s, local jurisdictions could not raise money through this power, which the sovereign states often devolves to them. As a result, the state had to rely more heavily on other tax sources: namely user fees, consumption taxes, and income taxes. This lead to punitive taxation, and a far more regressive system overall. It led to budgetary problems as it essentially knocked out a major support column on a structure that frequently relies on every support needed. California should serve as a warning for those who are anti-tax. You may be able to drown the government in the bathtub, but then you may have no sovereign entity left to enforce basic laws and rights. Without the State (as in the larger sense of the government) you have no rights. You have no property. (Thank you Hobbes).

Shabbat and Developing a Jewish Connection

Often in the Jewish world there is an obsession with mitzvot, particularly mitzvot of things like kashrut and shabbat. I myself often feel the pressure. Frequently, as some friends can point out, I feel like the worst Jew ever, because I am not in the category of shomer mitzvot. I use electricity and often work on the shabbat. I refuse to relegate myself solely to the Jewish Community, although I feel strongly connected to that community, and often lead within that community as well.

In many ways, I wish I had the ability to be more observant. However, I am weak, and the opportunity costs just seem too high. Perhaps I risk the hand of an angry God striking me down, though I doubt that. As such, I struggle to make meaning in the way I best can, and in the most meaningful situation.

Thus, I participate in the community. If it were not for the hell of 1L year, I would actually do some serious Jewish study. I pretty much go to shul every week. Yet, I have found the terms to describe people like me and many others committed to Judaism, but less observnt living within these communities that have such committment and various observance as tough.

Hence, my friend used the term zocher shabbat, to counterbalance the weight of the term shomer shabbat. Shomer shabbat implies you keep the sabbath to a fairly full extent. I do not fit here. Yet, I try to do shabbat activities every week, usually attending services Saturday morning, and often doing a meal. For those like us, the term zocher shabbat is indeed a lovely play that works.

What I particularly love about this term is that it shows actually shows a level of deep understanding and Jewish commitment in the term itself. As is often said, "shamor v'zachor b'dibur echad," roughly translated that keeping (shomer) and remembering (zocher) are in one word. Often within a traditional understanding this means the sense of mitzvot splitting, shamor refers to avoiding the negative acts of transgressions (Don't use fire, do not cook) while zachor refers to positive commandments (do make kiddush, do light candles).

However, even extending beyond that, the notion is that communities, at least that I go to, can encompass all views like this. There are those who keep everything. Yet, there are those, like me, who honor and remember the sabbath in a different way. Ultimately in public practice compromises are made. However, we are all part of the same group, and hence too come from a single utterance.

Climate Change Bill Passes the House

The title is self explanatory. Here is the vote. Note, the vote is for passage of the bill itself.

The Slightly More Conservative Side

The one area where I continue to get attacks from my more liberal friends is on national security matters. Anyone who knows me personally understands that I am a very defense obsessed person, though I do not like unnecessary weapons systems. I also have a firm belief in creating a workable structure for national security in the war of terror. This means finding a balance between a civil libertarian viewpoint and a hawkish stop at nothing to get the terrorist viewpoint.

I got giddy this morning during my NPR fun. Ari Shapiro reported about Benjamin Wittes. Wittes works at Brookings, and I have actually heard him speak many a time, including about his famous book Law and the Long War, which outlines the complicated legal issues in the War on Terror. He is pragmatic, and I personally enjoy how he tries to balance between these views as well.

Wittes's new plan is something worth reading. While I have not yet had the time to curl up and digest the ideas, what strikes me is the careful crafting of what is going on. It acknowledges that the major conflict involved in the matter. We do not want to undermine the rights that this country supports. However, on the other hand, he also understands clearly that we need preventative detention. Such powers are part of the laws of war, and he writes this seeks to supplement the laws of war. Of course, my own personal initial reaction is that this clarifies the laws of war. One should note, at least, that the power of the Executive and Congress is limited by the natural laws of war that all sovereigns have. See Brown v. United States, 12 U.S. 110 (1814), Story, J. dissenting (holding that Congress can restrict the powers of the Executive through statute, but implying that they cannot expand war powers beyond what natural law gives).

The policy seemingly excludes U.S. Persons from the process. It does allow for hearsay at the initial hearings after 14 days, but it does not allow for evidence obtained by torture. During the hearing a judge decides and can extend preventative detention for about 6 months. After that it happens again. This could lead to an infinite loop, however, the courts themselves have often shown that they grow tired of such loops. In some sense, Boumediene may reflect that idea.

Since I come from a somewhat left view, I will address those concerns. Many just reject outright the idea of preventative detention as wrong. They believe that a trial is necessary. However, Wittes points to the notion that intelligence gather is not the main goal. It is collateral. The goal is to disrupt terrorist networks and hold the most dangerous terrorists until these disruptions occur.

People argue that we have a system for this. It's called the Criminal Justice System, which requires trial and the high evidentiary standards of the Fed. R. Evid. However, the trial system ultimately fails. The most dangerous targets often are the very ones whose hands are clean. Low ranking people in the organization do the dirty work. They carry the bombs. They make the phone calls. The higher ups stay out of sight, and thus, evidence to convict is limited. However, releasing them may make the situation worse, because they are the very ones with dense links in these terrorist networks. Taking them out for a time disrupts the network, and the idea is that release can occur.

I remain concerned about the matters of process and rights. However, I also remain concerned about security as well. As I often warn my more liberal friends, should these terrorist networks succeed because we lacked a preventative detention system, the PATRIOT Act will look like nothing.

Voting Rights, Student Privacy, and Chemistry

Yes. It is that time again. We near the end of the merry month of June, and that least dangerous branch, the Supreme Court, heads into its long two month recess. Soon August will come around and all of Washington will fall under the silence of oppressive humidity and heat.

As is their custom, the Justices leave the zingers for the end. Monday will end the term. However, three cases this week are of particular importance. Sadly, I too do not have enough time to read every single one. And as such, I will likely mess it up with an offhanded analysis. Instead, I just offer my unformed opinions, with links to people who actually can analyze the law.

First, the case of the Voting Rights Act, Northwest Austin Municipal Utility District v. Holder. Two analyses appear on the place I turn to for SCOTUS Analysis as opinions, appear, SCOTUSBlog. The first is by Lyle Denniston, and the second is by Tom Goldstein. Both analyses are worthwhile to read, and I will not repeat them.

One of the major questions though involving §5 is how effective is it. Common wisdom has it that §5 preclearance prevents the evils that the opinion itself outlines. However, the data regarding this matter is rather limited and shaky. Indeed, Congress in its reauthorization avoided touching §5. Democrats see it as a major win; it is a landmark of their Civil Rights Legacy. Republicans avoided touching it, because they saw it as keeping them in power in the South. §5 has some significant problems. In ruling narrowly, the Court pushes the matter back to Congress, which will hopefully address these infirmities. One should note that when the VRA came up for reauthorization, §5, at least in the House, seemed not to cause as much controversy. Some Southern Members did offer an amendment to the preclearance formula that would only put Hawaii under the §5 regime. However, the real fight both in Committee and on the floor seemed to center around the big matter of ballots printed in other languages. Remember, this was also the year of major immigration problems.

So, Congress has the ball, and the clock ticks. One can only hope that legislators step-up to the plate. I sort of, shyly, applaud the decision for its minimalism, and for bolstering the dialogical model of government. I fear of course saying this has now turned me into a crazy.

The second case involves strip searches. The case is Safford United School District v. Redding. SCOTUSblog analyzes it here. The case surprised me, because of course, this was the source of the famed horrific SCOTUS locker room questioning. That said, we do have a bit more protection for our students from strip searches in public schools. It does complicate the matter, and we will have to wait to see what happens. The case is significant too for the proverbial splitting of the difference. It applies only prospectively, not retrospectively. This prevents those from strip searches in the past from bringing suit. I think this is the right way to go forward.

Finally, the opinion involving the lab came down. SCOTUSblog analyzes Melendez-Diaz v. Massachusetts under the title "Law Need Not Bow to Chemistry." Of course, the title, as a failed chemist, draws my attention. However, I will have to say as a former chemist who holds the science in high regard, I think the case will cause an administrative nightmare for the prosecution, but I think it is right. Many of these forensic labs are shoddy. The work done there is terrible. Indeed, the NSF itself pointed to the problems in these labs. Justice Scalia anchors his idea on confrontation. However, I think confronting technicians is necessary to ensure that the standards are high. Furthermore, with the CSI spawns as one of the most popular shows on TV, juries now prejudicially feel as though this stuff is infallible. However, the reality itself are that these labs are far from the CSI standard. So, overall these cases work.

For an additional analysis of the last two cases, Nina Tottenberg has a great story on NPR. For an interesting take on how racism may have led to the limited decision on the Voting Rights Act, see this story.

The Compact of Free Association

So, I listen to NPR like many latte sipping, Prius driving, public transportation taking, arugala eating liberals. This past Sunday I heard this story involving the Marshall Islands.

One thing people do not know about is that the State of Hawaii is one of the first places Marshallese came and settled after the treaty that allows them to come to the U.S. to live and work entered into force in 1986, and saw major revisions in 2003.

One of the major problems with the renewal of the Compact arose from the fact that these people could enter the U.S. but could not qualify for federal aid. Instead the state had to pay for their eduction and other social services entirely without any aid from the federal government, and they are excluded from the direct spending programs like Medicaid. Instead, we created Compact Impact Payments, a sort of lump sum grant distributed to the states based on the impact. The result though is that the State of Hawaii, parts of the West Coast, and parts of Arkansas must bear almost the entire burden for these people's social services. While they do pay state and federal taxes, they get very little of the federal share back.

Sadly, this is one of these issues people know little about. We did not enter into the COFA out of kindness because we bombed them, but we did get certain other rights too. And as these islands sink into the sea because of global warming, Hawaii and these areas will have a disparate impact. We should welcome them, but we need to figure out a way to help these states and local governments as well.

Jazz and the Year 1959

1959 is a banner year in jazz, but I had forgotten that. Then I heard this story on NPR. I remember the first time I heard Dave Brubeck's "Take Five" was not even in the recording, but in a orchestra class, where we added strings. It is weird. That album Time Out, became one of the first jazz albums I owned. Time Out, of course, is a play on time signatures. Many of them are written in the 5/4 signature, an odd one. There are few well known pieces with that signature. One that comes to mind is one of the middle movements of the Tchaikovsky Pathetique Symphony. Anyhow, Time Out turned 50 this month.

That said, there are others that came out, many of which I also fell in love with. The other biggie for me was Miles Davis's Kind of Blue. Someone I once knew actually gave me the CD again to listen to.

So, 1959 is that year in jazz. I hope we celebrate!

Legislation, Regulation, and the Courts

Ezra Klein and others point to something interesting. They talk about how the Big Bang Theory of legislation, which I believe is pass the big bill and its over, is not how we do things. Indeed, the legislative process itself, as a procedure dork, is not supposed to end with the passage of major legislation. Rather it is only the beginning.

Indeed, Article I of the Constitution as well as the interpretation of it gives Congress broad oversight powers. There is the inherent contempt power much discussed in the past. However, the reason for all of these oversight powers is to examine what happens once legislation passes as well as looking for new ideas for new major bills.

Furthermore, with our system of separation of powers, there is a dialogue between many branches. Congress passes a law. The Executive Branch, and their agencies create rules and implement the policy. Congress uses appropriations and investigations to turn up the heat if they are unhappy as well as looking at new legislation. Of course INS v. Chadha, 499 U.S. 919 (1989) does limit this matter. Beyond that there is judicial review of statutes and executive action. See, e.g., Chevron v. NRDC, 467 U.S. (1984). So we create a dialogue. Finally, many statutes have reauthorization requirements. Often programs will continue beyond that, particularly if they are not direct spending programs (i.e. Medicare). In the ideal though, it allows for retooling of these ideas (for better or for worse, See e.g. No Child Left Behind Act, Pub. L. 107-110 (reauthorizing and making major changes to the Elementary and Secondary Education Act of 1965, Pub. L. 89-10).

The theory thus is an old one in the rarefied academy of Administrative Law, Constitutional Law, and Political Science. It is also well known amongst procedure dorks. However, it is wonderful to see others, less weird than me, popularizing it.

Doctors and the AMA

So I really do health care policy and tax policy in my spare time. Likely this makes me a weirdo, and it makes me highly unpopular and boring.

Nicholas Kristof wrote about the American Medical Association (AMA) today in his column. In it, he rightly points out that the AMA is losing members, and indeed many doctors in the AMA are using the trust that we give them. See e.g. Kaiser Family Foundation, NPR, and Harvard School of Public Health Poll and associated NPR stories. However, as Kristof points out many are tired of the AMA's rhetoric too.

I remain concerned though that we tend to put a lot of trust in our doctors. And that is not just because I do law as well. I think that we fail to understand how fallible they really are, and how there is just too much information to digest. Perhaps if we had something like the British NICE that uses research and cost analysis to determine reimbursement policy, doctors would have less of a problem because a certain level of decisions are made already. If we had EMR, we could have greater collaboration, and we should create other policies to aid in that regard, because there is just too much to know, and we must leverage everyone's knowledge.

Additionally, beyond incentives, we must look at situational factors. In some sense my favorite health care article in the last year because it says what I have wanted to say only so much better, points to the idea of culture. There is a lot of situational factors in play with the notion of culture pointed to by Gawande.

Finally, one notion on malpractice. A lot of the problems lie not in the notions of judgments and punitive damages, but the transaction costs. First, we could likely fix some of the problems if these Medical Review Boards were less back-scratching. Second, perhaps we could create some sort of strict liability system to prevent the large costs of finding negligence, but reduce the rewards paid out, and perhaps have every patient fund the system like an insurance and like worker's compensation. I do not know the solution, but one should carefully look at Texas's tort reform, which essentially has closed the courts for people who have actually suffered loss (the old system pre-tort reform was ridiculously pro-plaintiff though).

Climate Change Again

So, I have yet to post on my big issue, health care. However, climate change also appears to take the stage, so I figure why not.

We do have a political problem as both Ezra Klein and Nate Silver (in an attempt to out wonk the other, which I find incredibly amusing to no end) point out. However, the polling data reveal something I think that is missing. We do not fully understand how people are thinking of the issue, nor the psychological shortfalls we are up against. Indeed, as one of my mentors points out, perhaps we think that people are rational, and even in the behavioral economics world we still sort of hold onto this idea, that people have preferences and there is a will acting on them and they choose. Perhaps though we need to look more deeply at the situational forces at work.

Furthermore, it is really hard, even under a dispositionist model to get people to feel things in their bones. We do not assign proper discount values. Everything is fuzzy. And the time horizon is so long that we cannot conceive of that (this is also a reason why I think evolutionary theory in biology is so difficult to understand, rarely do we see new species appear before our own eyes). We are thus going against our wiring. Even I, as someone who on the side cares about the issue, finds this difficult to think about.

So, what do we do? I do not know. But, perhaps we do need to look at ways in which we can better message. Again, tell a story. Do not make this some sort of moralistic I'm better than you effort (which is something that I hate and a reason why I often say, I do not care about the issue, even though I clearly do). Try to look into how the psychologists who believe this. And perhaps work on showing people the faultiness of these complex arguments around efficiency and distrubution, and make people of all stripes (including these free-market types) that they really do want in the end some sort of paternalism, as Duncan Kennedy wrote (this is another one of those must read articles, though less easy than the now famous Atul Gawande piece on doctors and health care spending).

Soccer

So I am a day late. However, the NY Times Column says it all. I feel terrible for missing it. And as a highly patriotic (and according to my very liberal friends borderline fascist) person, I join, a bit late in screaming, "USA! USA!" While I would love them to win, this is nothing short of a miracle.

The tragedy of June 22, 2009

First, my heart goes out to the people of the Washington, DC Metropolitan Area. I called the region my home for about 3 years. I worked in the District. And I lived in each of the three jurisdictions (D.C., Md., Va.) for some period of time. The accident is a tragedy (or more correctly some sort of pathos filled event).

As a result, there are now a great deal of investigations as to why the train crash happened.

First, as a tax dork, let me start off with the weirdest. Paul Carron at the Tax Professor Blog linked to many an issue regarding tax leases and buybacks, available here. The argument goes something like this. Using a certain provision of the code, Metro rented cars, then leased it to a for profit company, which got some tax credit, and paid Metro cash, since WMATA does not pay taxes. As a result, they could not get rid of these cars. That said, the people at Greater Greater Washington have pointed out too though that there are other issues going on. Remember too these cars serve as a major part of the fleet (about 1/3) and taking them all out of service would severely disrupt service, and retrofitting does not make much sense either. However, we should not underestimate how strange the Internal Revenue Code (I.R.C.) can be.

The greater issue is the matter of funding. Greater Greater Washington points this out. So too has The Washington Post. A news article today raises the matter of funding. Doug Feaver also mentions the matter. Robert McCartney, who just started as the replacement of Marc Fisher, whom I loved on the local side of the Post, on his first week of the column also reports on this major matter. He points out that we can blame many people.

Infrastructure fixes are never sexy. The region has always had a problem with this. They are also inconvenient. Anyone who has dealt with switch fixes and single tracking on any of the lines (and I always managed to live in areas when they were scheduled for these major maintenance projects) knows the difficulty of waiting for the next train. However, the lack of funding and will to do this is the downfall of Metro, and quite frankly a lot of things.

That said too, Metro is incredibly safe, and really quite efficient. For example, while the Boston region does have the MBTA, it's trains are a mess. The red line works effectively. However, the major line is the Green Line, and it's really a light rail system for a dense area where heavy rail would work. The Orange Line does not come often. The Blue Line is just weird, and only useful to go to the Airport (or Wonderland). The Silver Line, much like the Green Line, is a glorified light system, or in this case Bus Rapid Transit. Still, it too is better than driving the streets of Boston. Another example for those nervous in DC is just look at the mess that the Beltway and other major highways in the region are. And not only that, but they are dangerous too.

Part of what this requires is for us to seriously think about transit and urban design. There are great benefits to that. While the average commute may take longer on theses systems, it often is easier than parking in many of these areas and still worth it for gas. Given global warming, they are helpful. Transit can spark new developments that could lead to better health outcomes too. Unfortunately, I fear that such an event like this will stop the conversation and return us to our dirty, and less safe, cars.

It is also important to realize what the Metro was and what it can be. Zachary Schrag in his book The Great Society Subway and his online project connected to it points to the system and its compromises. It also really does capture the ideals of the system, in my opinion. When you walk into a Metro station, it is modernist, no doubt. However, the ceilings are high. They are vaulted. The trains are clean. It is, in many sense, a wonderful monument in and of itself. It gets people moving. I also want to remind people that these powerful stories too cannot be lost amid the wreckage.

Nā Hōkū Hanohano Awards

So I missed the awards boat. However, coverage can be found here. The list of winners is here. I am particularly thrilled that Holunape won Hokus in two categories. An old acquaintance is part of the group.

I do miss Hawaiian music quite a bit.

The Estate Tax

One last post for the start of this blog. The year 2010 is the year of the disappearance of the estate tax. That means if grandma has a lot of valuable things where even the current exemption would lead to taxing her estate upon her expiration, you should do everything in your power to keep her alive until next year and then make sure she expires then (it is ghoulish, but I am trying my best to make a point as to how crazy this is).

A recent post on Tax Vox states that some are trying to quantify the economic effects. The post correctly points to the difficult problems of determining the economic effects of the tax.

However, one part troubled me. That was the very end of the post. Anyone who says that he wants the policy to guide things fails to realize that this rhetoric led to the failure in the last round. As Michael Graetz and Ian Shapiro point out in Death by a Thousand Cuts: The Fight over Taxing Inherited Wealth stories matter more than policy arguments. The policy arguments perhaps serve as the groundwork, but you need a narrative. Indeed, many psychologists have pointed this out; tragedies seem less real without people attached to them.

Thus, it seems as though we have not learned our mistakes from the last time, and failed to make the debate about Paris Hilton. That said, I kind of want some more comprehensive reform. Instead of renewing the estate tax, I think policy makers should review Professor Batchelder's proposal for an inheritance tax. Of course the one minor fault I have with her is that she did not go further in her proposal, as I think it would likely still have political feasibility. However, I wish someone would look at this and come up with a story.

Climate Change the Politics of Waxman-Markey

So my first post is about something that I have no really credentials on, nor is it one of my big issues, and that is climate change. I grant it is highly important, and I do care. I just do not live and breath the thing.

That said, discussion has happened, particularly with the news of Chairman Peterson (D-MN) of the House Committee on Agriculture reaching a compromise with the House Committee on Energy and Commerce Chair, Henry Waxman (D-CA).

While I do not know the full details, the bill creates a cap and trade system, and there are giveaways of carbon credits in the early years. This system is probably not the most efficient way to handle that. A carbon tax levied on some of the top producers of carbon as well as the transportation sector would likely work better, but taxes are perhaps one of the most political issues ever, and thus politically that idea is infeasible. That said, Waxman-Markey may be what we can get.

There are differing views about the political viability for the matter to move forward. Some think the strategy is brilliant. Others are not so sure. Essentially, I do not know how the public thinks on the matter.

However, what I do know from my friends and a lot of science involved friends is that they think this is scientifically proven that global warming is happening now. I agree that the evidence points in that direction too. However, one of the concerns about all of these cap and trade systems and many other ideas that we create is that we forcibly try to create cost-benefit analyses of these matters. This creates problems given the long time horizon and the uncertainties of what is going on here.

Take this bill. Here the Congressional Budget Office (CBO) predicted a much lower cost and in fact a benefit for those with lower incomes. That arose only by providing highly progressive tax breaks; we will refund Social Security taxes. However, the CBO did not include the economic gains from the bill. That is too hard to predict. While CBO did mention that global warming would have pretty catastrophic effects, most are outside the U.S. and even then the damage here is many years off. That creates a problem with the discount rate in expected value (how much is the large amounts of money to deal with climate change at some uncertain point in the future worth now). We cannot even really predict these matters. Furthermore, it is unclear how much the bill will reduce emissions. Martin Feldstein stated once that unless China joins in, that could create a problem.

And yet, what all of this fails to examine is exactly how we do make decisions. We make them based on values expressed through politics. While perhaps not including China is a mistake, perhaps we need to do this bill as a signaling. The fight over the proper discount rate masks these values. It is a great dance. It is often worthwhile to hide it in these signals, but we should recognize that as we move forward with this matter.

Starting off

Blogging is not something I am used to. As an outward luddite who actually does like technology deep down, I try to avoid doing these things. I have always been wary too of these fora for the collateral effects it could have on my good name.

That said, I have essentially posted a lot of links on Facebook that many have called a de faco blog. So, I have decided to start this.

The name of this blog comes from the old statement, that in polite company you do not talk about two things: politics or religion. Anyone who has met me knows that every conversation inevitably leads to these two issues.

The goal of my blog is to link and comment on things that I find interesting in mainly these two areas. I am a political animal who is also incredibly wonky. What I lead to can have the basic political matter to full on government reports and academic articles. I hope to find pieces on religion as well and discuss some of my own thoughts on this.

I feel as though these two topics can actually lead to polite conversation if there are basic ground rules. First, we do operate in a narrow environment. As an American there are sort of basic norms and conventions that most of us ascribe to, whatever our political stripes. We all believe in some sense in liberal (NB: small "l") democratic republic that is this country. On religion, I am assuming that most following too believe in some sense of pluralism or at least the value of discussion of difference and similarity.

Thus, I want a civil discussion. Sometimes I too can get foul, but I hope that most of us try our best to do that.

I will write a few things for polite company. I do follow sports occasionally (although much to the chagrin of my New York friends I am a Red Sox fan and that leads to some of the least polite conversations ever). I also love culture, the sciences, and the arts. So there will often be posts here.

Finally, I am neither a professional blogger, nor someone with a lot of time to do this effort, but I want to try it out. It could work. It could crash and burn. Here's to a new beginning.