The Faculty Lounge

Ryan at Miami University of Ohio

As I'm sitting here working a little on a piece with Stacey Gahagan on Obama's 1994 race and law syllabus, I have suddenly become very interested in Paul Ryan's early work.  The Cincinnati Enquirer has a not wildly searching story about Representative Ryan's time in college at Miami University of Ohio.  Rich Hart, one of his economics professors, recalls that favorite books included The Road to Serfdom (available in cartoon -- yes, cartoon -- version here) and Atlas Shrugged.  Did Ryan write a senior thesis?  I'm not seeing any evidence of it.  Also, when I heard that Ryan had been a student at Miami University I immediately wondered if he had been a student of the extraordinary Cambridge intellectual historian Michael O'Brien, who taught at Miami back in the day.  O'Brien, you may recall, wrote a sweeping two volume history of conservative ideas in the old South.  Would be most cool to know if those two people ever met and if so, what that conversation was like.

If it turns out that Ryan did write a thesis, I'll add it to my list of the early writings of the now famous.

Two other thoughts on this -- first, you may recall that I've written a little bit about George Junkin, who was briefly president at Miami (before he was pushed out for his proslavery ideas).  Also, you might enjoy Representative Ryan's self-deprecating graduation speech at Miami in 2009.  Ryan gave a shout-out to Rich Hart in the speech as well.  

Update: Completely understandably, Dr. William Richard Hart is saying nice things about his star student -- and Representative Ryan has returned the favor.  Thus, I'm interested in learning a little more about Dr. Hart's work.  His Washington University Ph.D. dissertation is titled, "The Financing Constraint and Macroeconomic Analysis."  I can't find either an abstract or the dissertation on-line.  And he signed a letter (using the name William R. Hart) with a number of other economists asking for the repeal of the ACA in January 2011.  He also signed a January 2009 letter prepared by the Cato Institute (using the name Richard Hart) opposing stimulus spending.  It reads in part:

Notwithstanding reports that all economists are now Keynesians and that we all support a big increase in the burden of government, we do not believe that more government spending is a way to improve economic performance. More government spending by Hoover and Roosevelt did not pull the United States economy out of the Great Depression in the 1930s. More government spending did not solve Japan's "lost decade" in the 1990s. As such, it is a triumph of hope over experience to believe that more government spending will help the U.S. today. To improve the economy, policy makers should focus on reforms that remove impediments to work, saving, investment and production. Lower tax rates and a reduction in the burden of government are the best ways of using fiscal policy to boost growth.

Here is a link to a 20 minute podcast of Dr. Hart speaking with Detroit talkshow host "Doc Thompson" back in June 2011.  Hart speculates just before minute 2 that Ryan would like to go further but political considerations constrain him.

Most importantly, Dr. Hart has a sense of humor -- a trait so rarely found these days.  Hart's linkedin profile notes that in addition to a past job working for "North Pole at Santa Claus Inc," he is now retired.  "I sit at home and lounge around reading, writing a little, and watching races on TV. Then, every month someone sends me a big check. Ahhh, for the first time in my life I know what it is like to be a Democrat!"  His current occupation (for 3 years and 9 months is "nObama.")  I love good senses of humor and I wish I'd had the chance to serve on a faculty with Dr. Hart, because (though we'd disagree on a few things), I think we would have had a good time together.

"You Didn't Build" Your Business

Critics have jumped on President Obama's statement that entrepreneurs don't achieve their successes on their own; rather, they benefit from the support of a social structure and infrastructure that make business-building possible. But consider how the critics would respond to a somewhat different phrasing that probably has been expressed by other elected officials and perhaps Obama as well.

Suppose a candidate said that entrepreneurs don't achieve their successes on their own but benefit from the good grace of God. Would business owners be offended by the suggestion that their achievements are the result of more than their own inventiveness, resourcefulness and hard work? I've always appreciated the fact that a Sabbath day of rest reminds us that the world goes on even when we are not working, that we are not responsible for all the good that comes to us.

To be sure, there are two parts to the critique of Obama. On one hand, it is said, he doesn't give sufficient credit to creators of companies. On the other hand, he gives too much credit to government. My alternative phrasing gives credit to God rather than government, and many business owners may feel that they get more help from God than they do from government. Indeed, they may see government as more of a hindrance than a helper. But it's worth remembering that God can put us through tribulations too, as America's farmers are finding this year.

House Saves Grandpa From the Death Panels—And Makes Him a Guinea Pig Instead

    In all the attention given in the past couple of years (to say nothing of the past couple of months) to the individual mandate and its effect on health care access, other key features of PPACA, which address other aspects of the health care system, have received less attention than they deserve. Two remarkable things happened yesterday that highlight the importance of addressing health care quality.

    First, newly published research suggests that each year in the U.S., more than 100,000 men undergo expensive, invasive surgeries that leave many of them impotent and/or incontinent, all without increasing their chances of survival or providing other clinical benefits.

    The New England Journal of Medicine published the results of what one oncologist not involved with the study called a potentially “game-changing” experiment involving men with early-stage prostate cancer. Most new diagnoses of prostate cancer are early-stage, and about 90% of those who receive this diagnosis choose immediate treatment with surgery (or radiation). But despite the considerable financial and human costs of the surgery, it’s not clear that the surgery actually improves patients’ odds or duration of survival.

    To examine that question, investigators randomly assigned 731 men either to surgical removal of the prostate or to an observation group, where the cancer was monitored but not treated unless it showed signs of progressing. After 15 years, there was no statistical difference between the two groups in terms of either overall mortality or mortality due to prostate cancer. A secondary analysis, however, suggested that surgery may benefit men with high Prostate Specific Antigen (PSA) levels.

    The results are complex, and an accompanying editorial argues that the sample size of 731 rendered the study insufficiently powered to draw conclusions about the comparative efficacy of surgery and watchful waiting. Notably, the investigators sought 2,000 subjects, but could only recruit 731, presumably because, in the face of a cancer diagnosis, being randomized to “watchful waiting” seems risky. But it’s precisely the point of health services research — and analogous research in other areas, including legal services, see, e.g., Greiner and Pattanayak’s RCT of Harvard legal aid offers — that what seems, based often on not much more than mere intuition (and perhaps a cognitive bias that favors action over inaction), to be the most effective option is not always so in fact.

    The second remarkable thing that happened yesterday is that the House proposed to gut federal involvement in health services research, a diverse category of research of which the prostate cancer study is but one example. And this, despite the fact that, historically, health services research has received only about 1% of the budget of NIH, the largest funder of basic biomedical research. Health services research evaluates, and often compares, actual health services delivery systems and interventions (e.g., treatments, diagnostics, or screening and other preventative measures), as they are implemented in actual practice settings.

    The House Subcommittee on Labor, Health and Human Services, Education and Related Agencies passed the spending bill for fiscal year (FY) 2013; it goes to full committee next week. Among other cuts, section 227 of the bill (see pp. 90-93) eliminates, effective October 1, 2012, the uber-wonky, but critically important, Agency for Healthcare Research and Quality (AHRQ). Located within HHS, the mission of AHRQ (which had a $405 million budget in FY 2012) is to improve health care quality, safety, efficiency, and effectiveness. AHRQ is the major funder of health services research. Among many, many other studies, for instance, it helped fund the prostate cancer study discussed above. It also studies, and tries to prevent, the medical errors that kill more than 100,000 people a year. The House bill, moreover, prohibits other agencies within the subcommittee’s jurisdiction from assuming AHRQ’s duties unless they already have statutory authority to do so.

    The vote to pass the bill fell along party lines, with the exception of Rep. Jeff Flake (R-Ariz.), who sided with the Democrats in voting against the bill because he wanted even deeper cuts. And indeed, one possible explanation for the House’s decision is that cutting AHRQ is a somewhat lamentable, but ultimately wise, choice in tight economic times. After all, why spend scarce time and money studying an intervention after it has been marketed, often after having endured rigorous approval processes like those imposed by the FDA?

    This thinking is short-sighted — and dangerous. Much medical practice — like surgeries — was never subjected to rigorous study before it became the standard of care. Much of medicine, in short, isn’t evidence-based. Hence the need for an active movement towards “Evidence Based Medicine.”

Demanding Loyalty to a Fault

People who work in the executive branch understand that loyalty to the president is part of the job description. While one has the opportunity and privilege to influence national policy, one also must give strong support to the policies that ultimately are adopted. Dissent is not supposed to be shared with outsiders. For those who act otherwise in the Obama administration, retribution can be especially harsh. More executive branch employees have been prosecuted for leaking confidential information by the Obama Justice Department than by all previous Justice Departments combined. And yesterday, the New York Times reported a wide-ranging program of surveillance at the Food and Drug Administration of communications that five FDA scientists had with members of Congress, journalists and professional colleagues.  The scientists were critical of FDA procedures for approving new medical devices, claiming that patients were being exposed to excessive risk. It's difficult, even for would-be reformers, to avoid the temptations of the imperial presidency.

Who Fact Checks the Fact Checkers?

Methinks the WaPo needs a new fact checker.  Andrew Sullivan has the details.  I really don't follow the news as much as I'd like. I find American media outlets to be an unbearable mix of moronic and unserious.  WaPo's Glenn Kessler seems to be a good example of this.

So... Did Mitt Romney Commit a Felony?

Romney supposedly left Bain Capital in 1999 and filled out certified paperwork affirming this to be true.  But the Boston Globe has a report out (that it stole from Mother Jones and TalkingPointsMemo.com without giving the proper credit) that claims that Romney headed Bain as late as 2002.  FactCheck.org claims that Romeny "would be guilty of a federal felony by certifying on federal financial disclosure forms that he left active management of Bain Capital in February 1999."

Is there any there there? 

Law & Morality: John Edwards' Defense Works

In closing arguments, John Edwards' attorney argued that he committed sins, not crimes.  With one not guilty verdict and a mistrial on the other five counts due to a deadlocked jury, it appears that his defense worked.  This explicit defense separating law from morality could be good fodder for Jurisprudence courses and other dicussions about the overlap between law and morality.

For an interesting read on how the National Enquirer broke the story, here's an article on Huffington Post by David Perel, then-Editor-in-Chief of the National Enquirer.  The article details the investigation and provides Perel's take on what this saga says about our presidential politics and the ability to find truth in courtrooms.  Here's an excerpt:

Edwards, Hunter and Young retained separate counsel in an attempt to stop the Enquirer's expose of the affair, the pregnancy and the money trail. None of them knew that for months a team of Enquirer reporters, living in Young's gated community, watched Hunter and Young daily and had knowledge of Hunter often dining at the Young's house. So when Andrew Young and his attorneys contended that HE was the father of Hunter's baby, incredulity was replaced by laughter from my team. Yes, we were supposed to believe that he brought his pregnant mistress home regularly for dinner with his wife and children.

I can imagine The Who's I'm Free running through Edwards' brain head right about now.

 

Dorosin for Orange County Commissioner

My friend and colleauge Mark Dorosin is on the ballot tomorrow for Orange County Commissioner.  If you live in Orange County, I hope you'll vote for him.  In case you'd like more information, here's his campaign website.  In related news, Mark argued Everett v. Pitt County, which the Fourth Circuit just today decided in favor of his clients.

Ladies of Liberty: DiFranco & DeMent

Ani DiFranco and Iris DeMent each have lyrics that expand far beyond the relatively narrow scope that politics plays in the life of a human being. They also have some inspirational and poignant songs that add to our political discourse.  Ani and Iris provide an opportunity to talk cyberlaw, ponder the move to a national popular vote and share some of their music.

“My country ‘tis of thee, To take shots at each other on primetime tv” – Ani, “‘Tis of Thee”

With election season in full swing, the flood of negative and misleading political ads (from all sides and SuperPACs) will soon drowned the airwaves . . . at least in swing states like Florida. 

When I teach Cyberlaw, I include Porter v. Bowen, a Ninth Circuit case holding that vote-swapping is protected by the First Amendment and not a violation of criminal or electoral codes.  Citizens formed a website whereby voters in safe states could swap their votes with voters in swing states. The purpose was to have the 2000 Green Party candidate, Ralph Nader, receive five percent of the national vote so that the Green Party would qualify for federal funds in future elections, without hurting Gore’s chances of winning the Electoral College. 

For example, a voter in Ohio that wanted to vote for Nader would vote for Gore, while swapping her vote with voter in say, Alabama (a safe state for Bush) or Massachusetts (a safe state for Gore), who would vote for Nader.  Shortly after this website began, at least one other website was created that allowed voters to swap votes for any third-party candidates with either Bush or Gore, thus expanding vote-swapping beyond Nader-Gore swaps.

I teach this case in Cyberlaw because, in addition to discussing how technological changes raise new legal questions, it also allows for a discussion on whether the Electoral College is something that remains desirable in our self-governing society.  After all, if there was no Electoral College, there would be no need to engage in vote-swapping.  While it’s hard not to forget that Gore won the national popular vote in 2000, it’s also worth noting that Obama’s “landslide” victory in 2008 was not so large when considering the national popular vote margin.  Obama won 67.8 % of the Electoral College (365 to 173), but only 53% of the national popular vote.  Does technology provide a reason to shift to a national popular vote?

Perhaps technological developments make a national popular vote system more practical than in the late eighteenth century. Whether one is in Wyoming or Washington D.C., real-time information is available through broadband, cable and radio. Is it not better for candidates to have an incentive to campaign in all fifty states by making every citizen's vote count in the final tally?  Is it likely that voters on the losing end in a safe state might be more motivated to actually vote if they know it’s not in vain? 

As I’m sure some here know, there is an organized movement for instituting a national popular vote.  The plan involves a legislative pact among states to provide all the electoral votes of a state to the national popular vote winner.  By December 2010, the District of Columbia and five states (Illinois, Hawaii, Maryland, New Jersey and Washington) have enacted legislation to implement the plan.  Together, they make-up one quarter of the electoral votes needed to deliver an Electoral College victory. The plan will only be implemented once enough states have enacted legislation to win the Electoral College.  The Brennan Center for Justice is listed among the endorsers of this national popular vote plan.

Here’s Ani performing a version of her 1999 song, ‘Tis of Thee, at Ralph Nader’s October 2000 Madison Square Garden campaign event.  In the March 2012 issue of Relix magazine, Ani shared some of her thoughts on Obama’s performance thus far. While she may be critical of the lack of tangible changes, she makes an important, if obvious, point about how a self-governing society functions:  “If he really felt, in this arena of dragons and monsters, that he had the force of the people behind him, he’d more empowered to act in the way that we want him to act.  But we as people kicked back and said, ‘OK, fix it.’”  

Turning to Iris DeMent, her 1996 song, Wasteland of the Free is one of my favorites.  Sadly, its message has only grown more descriptive of our society as the years roll on.

Finally, in preparing this post, I stumbled across an organization called, Ladies of Liberty Alliance. The self-described mission of this organization is to “address the shortage of female leaders in the fight for liberty.”  One has to think the organization’s founders have a sense of humor and musical acumen based on their clever acronym (LOLA) and domain name, www.iamlola.org. The “Chairman” (LOLA’s word), Angela Keaton, holds a J.D. from the University of Florida.  While I have not explored the specifics of LOLA’s agenda, it certainly seems like a group of engaged citizens that will not leave any president alone in the arena of dragons and monsters.

p.s. The only endorsements in this post are for the respective music of Ani DiFranco & Iris DeMent.

"Gender and the Legal Profession's Pipeline to Power" Symposium Under Way at MSU

  The MSU Law Review Symposium on "Gender and the Legal Profession's Pipeline to Power" is in full swing of today.  I'll be live blogging and tweeting (@ProfBCrawford  #genderandlegalprof) throughout the day.  Here's the morning's line-up:

Panel 1--Gender, Race and the Judiciary

Moderator: Linda Greenhouse

Renee Newman Knake (MSU), Rethinking Gender Equality in the Legal Profession's Pipeline to Power

Keith Bybee (Syracuse), The Limits of Debate or What We Talk About When We Talk About Gender Imbalance on the Bench

Sally Kenney (Newcomb College, Tulane), Gender at Work: The First Women on State Supreme Courts

Angela Onwuachi-Willig (Iowa) and Amber Fricke (Iowa), The Inexorable Zero: Female Judges of Color [unintentionally omitted from initial post; updated 4/14/12--BJC]

Panel 2--Gender Equality: From the Boardroom to the Electorate

 Moderator: Winona Singel (MSU)

Doug Branson (Pitt), Diversity in Corporate Governance

Christine Corcos (LSU), Toward Cognatic Primogeniture: The Rise of Equal Rights of Succession in the Modern European Constitutional Monarchy

Erika Falk (Communications, John Hopkins), Unnatural, Incompetent, and Unviable: Press Portrayals of Women Candidates for President

Panel 3--The Roots of Gender Inequality in the U.S. and Abroad

Moderator: Melanie Jacobs (MSU)

Jen Mullins (American), Reactions to Lose: Investigating Lack of DiPersistent Gender Disparity in Student Note Publication

Dara Purvis (Illinois), Gendered Self-Evaluation of Female Law Students

Abigail Rury (Iowa), All Things Being Equal, Women versity Among the Recent Appointments to the Iowa Supreme Court.

More to come!

(cross-post at Legal Ethics Forum)

The Volcker Rule: Short ≠ Simple

A recent post by my friend Steve Bainbridge reminds me that I’ve been meaning to weigh in on the most recent in a long line of controversies surrounding the Volcker rule, whose provisions are scheduled to be implemented on July 21, 2012. Almost no one believes that the federal agencies will have finalized the necessary rules prior to that time, which has generated a rush of accusations, panic, and grand standing. 

For example, Barney Frank has called on regulators to simplify and finalize the Volcker rule prior to Labor Day.  SEC commissioner Troy Paredes and former FDIC Chairman Sheila Bair have argued that the rule is so complicated that agencies should repropose it and start all over again.  And a bipartisan group of senators has offered a bill that would relieve financial firms from compliance with the Volcker rule until one year after regulators have finalized their rules.

I’m largely on board with Steve’s general analysis of the rule, but I want to push back against his contention that regulators have taken Congress’s simple ban and turned it into an unworkable monstrosity at the behest of relentless industry lobbying.  This charge has been taken up by a number of sources lately (see here and here), including by some self-serving members of Congress.

Let’s get one thing straight: Congress did not enact a simple rule – it enacted a short rule.  By definition, a rule that purports to ban proprietary trading while maintaining an active role for banks as financial market intermediaries, including as market makers, is not a simple rule. 

Yes, the Volcker rule is a complex muddle and the costs may not be worth the benefits – as I discuss in some detail here, the Volcker rule is perfectly laudable in concept but presents many implementation and enforcement challenges.  And, as I’ve documented at length, industry lobbying of agencies charged with Volcker implementation has been both persistent and extensive since the day Obama signed the legislation, if not before. 

But, both of these results were predictable, indeed virtually inevitable, given the original statute.  Moreover, this sort of blame shifting onto unelected officials is exactly what I’ve been predicting ever since Dodd-Frank passage.

Just because you’re short doesn’t mean you’re cute.  It doesn’t mean you’re simple either.

Update: Steve argues that I misinterpreted his original post:

(1) My reference to the "original Volcker rule" linked back to a post discussing Paul Volcker's original suggestion, not the version incorporated into Dodd-Frank. (2) I noted that "the process of turning the simple original proposal into law has turned into a classic example of legislative and regulatory sausage making." I thus had no intention of complimenting Congress for its work in Dodd-Frank. To the contrary, I intended to suggest that both Congress and the regulators were at fault. Indeed, I've agreed all along with Kim's observation that the regulatory mess was "predictable, indeed virtually inevitable, given the original statute."

My apologies to Steve for misunderstanding his original post, and for lumping him in with others who have made the "blame the regulators" argument.  I'm not so sure that Volcker’s original “I know it when I see it” approach to prop trading would have been all that workable in practice, either, but that’s a post for another day.  

 

Strikedown The Mandate, Re-elect Obama

I'm hearing a lot of pundits who think that Obama has much to fear from the Supreme Court's health care decision.  These folks say that if the law is upheld,  the right will be motivated to beat him.  And if the law is struck down, Obama will look bad because his signature initiative will have been demolished.  I have a different view.

As a supporter of the law, I hope that the Supreme Court doesn't do anything foolish.  But if the law is struck down, I think that will provide a substantial lift to the President.  Why?  It will strip the GOP of an important issue for the base.  We can see from the way that GOP candidates are talking in the primaries that they believe Republican voters care a lot about repealing the health care law.  It's hard to know how much attacks on Obamacare work to corral independents.  But a decision striking down the law is sure to suck some of the urgency out of the GOP base.   Some abortion rights supporters have been remarkably sanguine about showing up to vote against pro-life candidates simply because they perceive that the issue is being handled outside of the political process.  Elections don't matter.  Opponents of the health care law could easily go through a similar conversion.

At the same time, if the law is struck down, Democrats may be able to campaign around judicial appointments in a way we haven't seen in recent history.  Court followers know that the Rehnquist and Roberts courts have been very comfortable striking down statutes adopted by political majorities.  Yet Republicans continue to have some success portraying the Court as activist in support of liberal positions.  Few cases in memory have presented such a powerful opportunity to reverse the tide of public opinion on this very issue and,  replace the old sticky narrative with a new story about an activist conservative Court.   If this case has half the organizing power of Roe v. Wade, Republicans would be advised to fear any decision that strikes down the mandate. 

Is Obama a UNC Fan?

Or just a savvy politician?

Brad Smith, an undergraduate political science student at the University of North Carolina, entertains himself during tournament lulls:

Stated explicitly, the question I hope to answer here is: "Does Obama systematically favor teams from "swing states" when filling out his NCAA bracket?" . . . To test bias towards swing states I developed a very simple measure that I call the "pander score."  This score assigns a value to each state for a given year that is equal to the difference in Obama's bracket and the ESPN national aggregate bracket's predictions about the total number of wins that teams from a given state will achieve throughout the tournament.  By using ESPN's national bracket as a control group, this test compares Obama's predictions to the aggregated predictions of a large group, allowing me to identify in a quantifiable way to what degree Obama's predictions differ from that of the "average" individual.

As the results indicate, there is a positive relationship between a team's location in a swing state and the number of wins that Obama predicts that that team will achieve throughout the tournament.  Furthermore, this relationship is strongly statistically significant well beyond the 95% level of confidence.  Considering that the pander score measures the difference between Obama's predictions and the national average, this positive and strongly significant correlation provides strong support for the notion that Obama's bracket picks were influenced by his desire to appeal to swing state voters.

What fun.  Even more interesting would be to think about Obama’s preferences within the swing states.  For example, I suspect that a Duke pick (who it looks like the President had losing to Baylor) is unlikely to resonate with North Carolina voters nearly so much as his UNC or NC State picks.

The President's bracket is below.

HT: Kindred Winecoff

Dorothy Brown on "Cleaning Up the Tax Mess"

Watch Cleaning Up The Tax Mess on PBS. See more from Need to Know.

 

Dorothy Brown (Emory Law School) is featured in this segment of "Need to Know," a PBS show.  Here's the program description:

Our tax code has been described as a morass of different rates, deductions, loopholes, and subsides that is different depending on each individual taxpayer’s situation. Homeowners are treated differently than renters; high earners are paying lower rates, in some cases, than middle-class Americans. And, on top of that, the nation faced a $1.3 trillion deficit last year.

So, how do we make our tax code simpler and fairer? And how do we produce more revenue without stifling job creation? Need to Know’s Ray Suarez hosts a panel of tax experts who debate how to fix the tax mess.

The show's guests, along with Dorothy Brown, are former New York Governor Eliot Spitzer; Bruce Bartlett, advisor to presidents Reagan and George H.W. Bush; and Dan Mitchell of the Cat0 Institute. 

Democracy Without a First Amendment

One topic I've been asked about a lot lately is how Australian democracy runs smoothly without any clear express constitutional right to free speech.  There is a relatively restricted minor implied right to free speech in the constitution but nothing in writing and nothing like the rights that exist in countries with express rights (including the U.S., Canada, New Zealand, the U.K. etc).  With thanks to Eric Robinson for bringing this to my attention, Australia is now considering a new government funded regulatory body to oversee the media.  Story here. 

Australia has also been able to regulate things like violent video games and violent or sexually explicit movies much more effectively than countries with stronger constitutional speech protections.  So the question is whether in the age of globalized, converging media and entertainment outlets, how will domestic governments deal with the increased internationalization of information more generally, particularly when domestic governments have such different stances, and powers and reflect different cultural values about the media.

How to Tell if Someone is a "Slut" - For the Visual Learner

One thing that I brought with me from practice to the academy is a fondness for charts in helping me decode complex rules.  I'm especially loyal to charts that route tax compliance, like this one (details not that interesting to the general reader, but you get the idea):

 

But really, Tim Murphy's chart over at Mother Jones (here) is much, much better than any chart I've ever made:

Eureka!

Are Mainstream Obama Haters Racist? One Heartfelt Data Point

Law professors like to harp on the importance of professionalism.  They also emphasize the dangers of social media and email.  Unfortunately, Chief U.S. District Judge Richard Cebull of the District of Montana graduated before at least some of these warnings.  Or perhaps he was doing too many crossword puzzles in class.  

Judge Cebull forwarded the following email (the first part written by him): 

"Normally I don't send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.

"A little boy said to his mother; 'Mommy, how come I'm black and you're white?' His mother replied, 'Don't even go there Barack! From what I can remember about that party, you're lucky you don't bark!'"

The email was sent from his judicial account, according to the Great Falls Tribune.  The judge's response after being confronted with the email?

"The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan. I didn't send it as racist, although that's what it is. I sent it out because it's anti-Obama."

Imagine what the email would have said if we weren't  a post-racial society. 

 

Clarence Thomas For President In A Brokered Convention?

Professor Adam Winkler thinks it makes a lot of sense.  He certainly would present an interesting character for the GOP - an African-American Tea Party icon.  But I think that, notwithstanding the exciting possibilities that could come out of a brokered convention, the candidate that emerges would likely be a remarkable risk for the Republican party.  An overwhelming majority of apparently legitimate candidates can't ultimately  "hit major league pitching" (to quote Newt Gingrich.)  And even those who can often lack the charisma to light up a campaign.  (And then, of course,  there are people with anger management issues.)

We know nothing about how Thomas would hold up under the klieg lights but my guess is...not so well.  It sounds to me like this is more of a Democrat's  fantasy than one likely to advance the GOP agenda.  After all, it was first proposed by David Lat and Kash Hill.  And I'm pretty sure that, notwithstanding the political diversity among Lat's judicial hotties,  David and Kash have a preference in this election.  And I don't think it's a taste for righties.

SuperPACs

As SuperPACs infuse millions of dollars into the GOP primaries, critics have renewed their calls for meaningful campaign finance reform. The extent to which very wealthy individuals can influence elections is troubling. On the other hand, some observers see virtue in SuperPACS. They believe that campaign finance restrictions limit the amount of information reaching voters about candidates or tilt the playing field in favor of incumbents and establishment favorites. Without the backing of Sherman Adelson, Newt Gingrich would have faded faster, and without the backing of Forrest Freiss, Rick Santorum might not have revived his campaign in Colorado, Missouri and Minnesota. In this view, spending limits inhibit electoral competition.

As a former candidate and elected official, I have mixed feelings. When I first challenged an incumbent for a state legislative seat, I appreciated the absence of contribution limits in Indiana and the freedom to solicit contributions of $5,000 or $10,000 from family or friends. It’s much harder to raise the first $100,000 from donations of $100 or less than from donations of $1,000 or more.  After three terms in the Indiana House, I ran for Congress against another incumbent and struggled with the federal contribution limits.  I had to spend much more time dialing for dollars and much less time knocking on voters’ doors. So I’m sympathetic to the argument that contribution limits insulate incumbents from competition.

But there are additional considerations. Not all races involve incumbents. With open seats, the absence of contribution limits narrows the pool of potential candidates to those who can raise substantial war chests. Similarly, in primaries to identify challengers to incumbents, the absence of contribution limits makes for a smaller field of candidates. In addition, fundraising ability becomes a key requirement for aspiring candidates. While good candidates often are able to attract strong financial support, access to funds can reflect other considerations. Campaign contribution limits therefore can increase the likelihood that higher quality candidates are elected.

Two Presidents Are Better Than One

With the economy picking up steam, President Obama’s reelection prospects have brightened considerably. The unemployment rate is dropping, manufacturing activity is rebounding (with GM the top automaker again), and the stock market is rising. According to a Yahoo! forecast, the president will win in November with 303 electoral votes.

While this is good news for Obama, it reminds us how the public assigns too much credit or blame to the White House for the country’s well-being (or lack thereof).  As Supreme Court Justice Robert Jackson wrote in 1952, the president is the “focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.” When our political system isn’t working, the public assumes it can solve national problems by electing a new leader rather than making the structural changes that are needed.

Many observers point to Congress with its gerrymandered districts as the source of dysfunction in Washington, and public approval ratings suggest that voters agree. But as I argue in a forthcoming book (Two Presidents Are Better Than One, NYU Press 2013), we can trace the defects in our national government to the decision of the founding fathers to adopt a unitary rather than plural executive.