This week, the Los Angeles Times has invited me to participate in a daily on-line debate (a regular feature they sponsor called “Dust-Up”) with V. John White, executive director of the Center for Energy Efficiency and Renewable Technologies.  Monday, we debated off-shore drilling.  Today, we debated the T. Boone Pickens’ energy plan.  Tomorrow, we’ll debate nuclear energy.  Thursday, the issue is the future of the automobile.  Friday, the topic is what America’s energy economy will and/or should look like in a generation.  While our exchanges won’t be in the newspaper’s print edition, I’ll take the on-line exposure.

So far, I don’t think John has laid a glove on me.  In the off-shore drilling discussion, John has a hard time differentiating between electricity markets and transportation markets.  To say that we should rely on wind, solar, or whatever — and not oil — is to say that we should rely on batteries to run our automotive fleet.  Well, that would be great, but until some pretty big-time breakthroughs occur in battery technology, that’s not going to happen.  Regarding T. Boone Pickens’ energy agenda, I’m still waiting for a concrete argument about why markets “fail” to produce all the investment dollars that this supposedly worthy industry needs.

Tomorrow’s debate will likely produce few sparks.  I’m against nuclear energy subsidies and don’t think the industry would survive without them.  Thursday and Friday, however, will be more interesting.  I don’t have the faintest idea what sort of personal automobiles will be on the market in, say, 2030, and even less idea what the energy economy of the next generation will look like.  I suspect, however, that John thinks it’s all rather obvious where energy markets and technologies are heading and that he has the perfect master plan to most efficiently accelerate all the big-time changes that history has in store for us.

Saying “I don’t know” to questions like these is never that good of an idea if you want to dazzle people with your wisdom and insight.  On the other hand, it’s hard to marshall the argument that “the oil age is over and the age of genetically modified gerbils on treadmills is coming” (or whatever) and then say that the government needs to do something to get us there.  Well, if its so inevitable, then why must government act at all?  We’ll find out if John can manage to resolve that tension in what will likely be his argument.

Neal McCluskey has some serious and valid complaints about the way the recent Education Next/Harvard PEPG survey asks about support for No Child Left Behind. But the survey also has some good questions about school choice and some great news about education tax credits.

I noted last year that their 2007 survey found 53 percent of current and former public school employees support education tax credits and only 25 percent oppose them.

This year, they report that a plurality, 46 percent of public school teachers, support education tax credits and just 41 percent oppose them. As for the general public, 54 percent support tax credits and only 28 percent oppose them.

More public school teachers support education tax credits than oppose them. That’s an amazing little fun-fact.

Pick a category – rich, poor, old, young, white, black, Hispanic, Democrat, Republican, or even public school employees – they all support education tax credits. And credits stand to save states billions of dollars.

Now that’s a winning issue for any politician.

Not long ago I heard Rush Limbaugh thundering that the venerable Associated Press had said that it would start putting opinion in its stories (referring to this story about the AP’s new Washington Bureau chief). Well, if that’s the case, I’m just glad that some of their stories reflect sensible opinion, like this dispatch today from Jeannine Aversa:

Two giant mortgage companies get into hot water over risky investments. The government steps in to throw them a lifeline should they need it.

Hundreds of thousands of Americans buy homes more expensive than they can afford. Congress approves a rescue package.

Troubles erupt at a Wall Street investment firm that made bad bets on mortgage investments. The Federal Reserve steps in and provides financial backing for the company’s takeover.

Meanwhile, tens of millions of people pay their mortgages on time, don’t max out their credit cards and put money into retirement funds. They may even save a little extra on the side.

In return, they get rates on their savings that don’t even keep up with inflation. They also are witnessing their nest eggs shrinking as the value of their homes plummets and the stock market tumbles.

Policymakers in Washington, D.C., seem more focused on rescuing those who behave badly by putting at risk taxpayers who’ve played by the rules and shunned the get-rich-quick schemes of Wall Street croupiers.

Here’s the story from today’s Washington Post.

Keep an eye out for Brian Doherty’s forthcoming book about this landmark case!

The UK Health Minister wants a big tax increase on the rich in order to boost morale and demonstrate that Labour Party officials “understand what it is like to cope with rising food, fuel, and utility bills.” But if punishing Britain’s most productive residents actually is a way to boost morale for the rest of population, why not build a big coliseum and feed them to lions instead? Wouldn’t that be an even bigger “morale booster”? Needless to say, Minister Lewis does not bother to justify any of his assertions. He claims, for instance, that politicians can demonstrate their “understanding” of the plight of ordinary Britons by seizing more money from the so-called rich. Are British voters really that stupid? After all, if Harry Reid and Nancy Pelosi raided the pockets of hedge fund managers or some other well-to-do group, I certainly wouldn’t think that they had a better understanding of what it is like for me to pay my mortgage and cough up tuition payments for three kids. Tax-news.com reports:

…UK Health Minister, Ivan Lewis caused controversy by suggesting that “morale boosting” tax increases for the country’s wealthy may be the way forward. Writing in the Sunday Times, Mr Lewis warned that as Labour’s popularity appears to be waning, it should take steps to protect the “mainstream majority” that make up its key supporters. “Our duty is to act decisively and make tax and spending decisions that show we understand what it is like to cope with rising food, fuel and utility bills,” Mr Lewis wrote, adding that: “If as a result of the current economic situation the only way to help hard-pressed middle-class families is to ask the higher earners to pay more, then serious consideration should be given to that.” Although the Health Minister did not specify the rate of increase that he thought would allow the government to provide “meaningful” assistance to middle class voters, reports in the UK media in the wake of the article have suggested that he would likely favour the suggestion put forward last month by former Parliamentary Under Secretary of State at the Department for Constitutional Affairs, and current Director of the New Local Government Network, Chris Leslie, which would see an extra ten pence in the pound imposed on earnings of more than GBP250,000.

In my last post I observed that U.S. public schools would save $100 billion annually if they returned to the staff/student ratio that existed in 1970, and that this would be more than enough to erase the budget crunches districts are facing due to higher fuel prices “unless we start busing kids to Mars.”

Well, I’m a tad embarassed to admit I was a little off. Assuming that one could actually drive to other planets, $100 billion would be more than enough to fuel a fleet of three school buses making round trips to Mars every day for the full school year. And the nation’s school districts would still have $13 billion in pocket change left over to cover their higher fuel bills here on Earth. (Numbers crunched below the fold). (more…)

Back in a 1979 interview with Roger Mudd, Democratic presidential contender Ted Kennedy flubbed what looked like a softball question: “Senator, why do you want to be president?” Kennedy’s sputtering answer did real damage to his campaign.

Senators Obama and McCain gave marginally more coherent answers than Kennedy when Rick Warren asked the same question at Saturday’s megachurch confab, but in an America with a saner perspective on the presidency, their answers would have been disqualifying as well.

Obama offered some touchy-feely Rawlsianism mixed with a call for bipartisanship:

You know, I remember what my mother used to tell me. I was talking to somebody a while back and I said the one time that she would get really angry with me is if she ever thought that I was being mean to somebody, or unfair to somebody. She said, imagine standing in their shoes. Imagine looking through their eyes. That basic idea of empathy, and that, I think, is what’s made America special is that notion, that everybody has got a shot. If we see somebody down and out, if we see a kid who can’t afford college, that we care for them, too.

And I want to be president because that’s the America I believe in and I feel like that American dream is slipping away. I think we are at a critical juncture. Economically, I think we are at a critical juncture. Internationally, we’ve got to make some big decisions not just for us for the next generation and we keep on putting it off. And unfortunately, our politics is broken and Washington is so broken, that we can’t bring together people of goodwill to solve these common problems. I think I have the ability to build bridges across partisan lines, racial, regional lines to get people to work on some common sense solutions to critical issues and I hope that I have the opportunity to do that.

Only the first sentence of McCain’s answer is particularly cogent, but it reflects what Matt Welch has described as McCain’s “exaltation of sacrifice over the private pursuit of happiness” :

I want to inspire a generation of Americans to serve a cause greater than their self-interest. I believe that America’s best days are ahead of us, but I also believe that we face enormous challenges, both national security and domestic, as we have found out in the last few days in the case of Georgia….

America wants hope. America wants optimism. America wants us to sit down together. I have a record of reaching across the aisle and working with the other party, and I want to do that, and I believe, as I said, that Americans feel it is time for us to put our country first.

And we may disagree on a specific issue… but I want every American to know that when I go to Gee’s Bend, Alabama, and meet the African-American women there who are so wonderful and lovely, an experience I’ll never forget, and when I go to places where I know they probably won’t vote for me, I know that my job is to tell them that I’ll be the president of every American and I’ll always put my country first.

In the original constitutional scheme, the president wasn’t supposed to be the Empath-in-Chief or a national life coach-cum-self-help guru, charged with getting us off our duffs and uniting us all behind a higher calling. He was there to faithfully execute the laws, defend the country from foreign attack, and check Congress with the veto power whenever it exceeded its constitutional bounds. The formless, boundless vision of presidential responsibility revealed in Obama and McCain’s answers shows us how dangerously far we’ve travelled from that modest, unromantic conception of the president’s role. I could recommend a book that might set them straight.

We’ve all been told that school districts around the country are feeling the pinch from higher fuel costs. What’s never mentioned is that districts are supposedly suffering budget crunches despite spending more than twice as much – in real, inflation-adjusted dollars – as they did in 1970.

According to the Department of Education’s National Center for Education Statistics, districts spent an average of $5,247 per pupil in 1970 (in 2008 dollars). Today, the average is about $12,000. How is it possible that districts could have trouble covering higher gas prices when they have an extra $6,500 to spend per pupil? One reason is that the public school bureaucracy has been doing what bureaucracies do best: growing. Since 1970, total public school employment has nearly doubled to over 6.1 million people, while total enrollment has increased by less than 9 percent. It is to support this army of new public school employees that taxpayers are being asked for more and more funding each year. If the public schools were to return to the student/staff ratio they had in 1970, they would have an extra $100 billion per year with which to fill the tanks of the nation’s school buses. And unless we start busing kids to Mars, that should probably cover it.

Of course, taxpayers might be willing to foot this lavish bill if the smaller class sizes and larger bureaucracies of recent years had led to improved student outcomes. They haven’t. Students at the end of high school score no better in reading and math today than they did in 1970, according to the Long Term Trends tests administered as part of the National Assessment of Education Progress. In science, their scores today are lower.

At the “Civil Forum” at Saddleback Church in Orange County, California this weekend, Senator John McCain (R-AZ) repeated a favorite line of his about Osama bin Laden:

If I have to follow him to the gates of hell, I will get Osama bin Laden and bring him to justice. . . . No one should be allowed to take thousands of American, innocent American lives. Of course evil must be defeated . . . we are facing the transcendent challenge of the 21st century–radical Islamic extremists.

What a gift to the recruiting efforts of Al Qaeda! - to have an American presidential candidate declare himself a follower of Osama bin Laden. According to McCain, Bin Laden is so powerful that he poses a “transcendent” challenge to John McCain’s United States.

In his cogent, well-supported, and readable article, “What Terrorists Really Want,” Max Abrahms at UCLA argues that terrorists “are rational people who use terrorism primarily to develop strong affective ties with fellow terrorists.” Think of Al Qaeda as a gang that disaffected youth might join - something powerful to belong to that gives their lives meaning.

McCain’s “gates of hell” talk is leadership malpractice, and he should stop using it immediately. Calling the threat of terrorism “transcendent” is equal parts incoherent and false. Terrorism stands no chance of defeating the United States or the West unless we ourselves collapse the society. Speaking this way about terrorism thrills our terrorist enemies and draws recruits and support to them. Silence would be much better, presidential campaign or no.

I wrote here a year and a half ago about the sensible thinking of Bill Bishop, Director of the Idaho Bureau of Homeland Security. He understood that the our national ID law, the REAL ID Act, fails as a security tool. Something else about Bishop came back to me as I was recently reading Abrahms’ article: Bishop wouldn’t even speak the name of Timothy McVeigh, the Oklahoma City bomber. This is how he exhibited his loathing for a shameless terrorist killer, and it also happens to comport with sensible counter-terrorism.

Exalting terrorism - as John McCain does with his “gates of hell” talk - is precisely the wrong thing for a national leader to do. The country will be made more secure by deflating the world image of Osama bin Laden and making his movement less attractive. Our leaders must withdraw rhetorical power from terrorists by controlling their tongues.

This week, I sent the following letter to the editor of The Washington Post:

With fuel prices surging, commercial airlines have started charging passengers for once-gratis amenities (sodas, the first checked bag, pillows-n-blankets) and have increased fees for other amenities (alcoholic drinks, additional checked bags).  A recent editorial ["Pillows and Planes," August 13] describes these fees as “picking passengers’ pockets” and “idea[s] to separate you from your money.”

Are you kidding me?  Those amenities weigh down the plane.  The fees therefore distribute higher fuel costs to passengers who consume more fuel.  As important, they allow passengers to avoid getting their pockets picked by avoiding those amenities.  (Don’t want to pay for checked baggage?  Pack light.)  The only people those fees hurt are the free-riders whose amenities were being subsidized by everyone else.  The fees don’t allow pocket-picking; they put an end to it.

The next time I hear a temper-tantrum coming from the main cabin — or first class? — I’ll know it’s a Post editor who had to pay $14 for his vodka tonic and pillow.

Gannett announced this week that it will eliminate more than 1,000 positions among its 85 daily newspapers and 900 non-dailies. The reason for the layoffs has become all too familiar — declining readership and advertising sales, primarily because of lower-cost competition from the Internet.

I’m waiting for a member of Congress to issue the following news release:

WASHINGTON, Aug. 15—Rep. John Smith today announced his opposition to the loss of jobs at Gannett and other newspaper companies and demanded that Congress and the president rethink their commitment to “so-called free domestic trade.”

“The loss of thousands of decent, good-paying middle-class union jobs will be devastating to my district and to communities across America,” Rep. Smith announced. “Our misguided domestic trade policies have exposed vital industries to unfair competition. Our newspapers, record shops, and book stores must not be forced to compete against dumped services sold at predatory prices.”

Rep. Smith blamed growing use of the Internet since 1994 for stagnant real wages, a shrinking middle class, falling home prices, and rising levels of crime, alcoholism, and divorce in America’s newsrooms.

Rep. Smith rejected what he called “academic theories about competition, comparative advantage, technological progress, and productivity gains.” He also denounced supposed evidence that the Internet has brought benefits to millions of workers and consumers as “mere statistics.”

As Rep. Smith told cheering constituents at a recent debate, “Look, people don’t want cheaper news and information if they’re losing a job in the process. They would rather have the job and pay a little bit more for their news. And I think that’s something that all Americans could agree to.”

Rep. Smith demanded that the president and Congress embrace an immediate “time out” on all new technologies and web sites until domestic trade policies “can be made to work for all Americans.” He demanded more vigorous enforcement of domestic antidumping rules and an additional $1 billion in the FY2008 budget to expand Technology Adjustment Assistance (TAA) programs.

I just got a media inquiry from someone who was on a conference call with Obama economic advisors Jason Furman and Austan Goolsbee.  According to this source, they claimed that McCain’s health insurance tax credit “will surely prove a trojan horse tax increase on middle class familes” (my source’s words) because the amount of the tax credit would grow only at the rate of the Consumer Price Index (i.e., inflation).  That’s much slower than the growth rate for the value of the current tax exclusion for employer-sponsored health insurance, which grows at the much-faster rate of premium growth.  (BTW, it also grows with the rate of increase in marginal tax rates.  Ahem.)

Others have made this charge before.  I’m sorry to hear that Fursbee have picked it up.

Here’s what I wrote to our media friend:

Fursbee are correct, in the sense that providing a tax break that is standardized (i.e., a fixed credit versus an exclusion whose value varies with one’s premiums and marginal rate), and whose growth is limited (to CPI versus today’s unlimited exclusion), would tax currently untaxed activity. 

But they’re flat wrong in concluding that would be a net tax increase.  The ‘why’ requires some explanation. 

Employers provide health insurance principally because those benefits are excluded from income & payroll taxes, while individual-market coverage is not.  A recent survey of health economists found that 91 percent agree that workers pay for health benefits through reduced wages.  The average “employer contribution” to the average family policy is roughly $9k.  That means that if employers weren’t providing health benefits, the labor market would force them to return that $9k to workers.  We call the current exclusion a tax break, even though it denies workers the ability to control $9k of their compensation.  If government took $9k from workers and used it to provide workers with health insurance, then we would call that a tax.  Yet when government effectively takes that money from workers and gives it to employers, we rather curiously call it a tax “cut.” 

McCain’s tax credit would level the playing field between job-based and individual-market health insurance.  With no tax penalty encouraging workers to let their employer control that $9k, the labor market would gradually force employers to add that money to workers’ cash wages.  Letting workers own and control that money is nothing if not a tax cut.  And it would swamp the tax-increasing effect of limiting the tax credit’s value to CPI growth. 

Fursbee are being too cute by half.  And I don’t even like the McCain tax credit.

I might have added that McCain’s credit would encourage Americans to be much more economical about their health insurance, which could restrain premium growth.  (Any excess premium growth due to the exclusion is itself a tax.)  Or I might have noted that the McCain credit would be a pure tax cut to people without access to job-based coverage. 

Or I might have mentioned that Fursbee should know better.  They know that tax exclusion for employer-sponsored health insurance is horribly inefficient, that reform is crucial, and that any reform will be imperfect.  Assuming my source is correct, they are being selective about their facts, demagoguing a serious effort to fix this problem, and making it harder for anyone to do so.

Prior commitments prevented me from participating with Professor David Barron in the Cato / American Constitution Society forum on The Dirty Dozen, which I co-authored with William Mellor.  I’m especially gratified, therefore, to have this second opportunity, which I will use to document seven errors by Professor Barron in his blog postings here and here.  Of course, the best and most complete rebuttal is the book itself, available for the shamefully low price of $17.13 at Amazon.           

Barron #1:  “The crime of the Supreme Court since the 1930s, so says this book, has been its refusal to lock in the laissez faire constitutional philosophy that reigned supreme in the decades leading up to the New Deal.”

Facts:  Laissez faire is never mentioned in the book – not once.  Included among our 12 worst cases are those involving the non-delegation doctrine, campaign finance regulation, gun owners’ rights, civil liberties, civil asset forfeiture, and racial preferences – none of which has anything to do with laissez faire economics.  Yes, we also cover cases relating to property, contract, and other economic liberties; but to suggest that we view the Court’s major crime as not upholding laissez faire is to ignore most of our book. 

Barron #2:  “Number one on The Dirty Dozen’s hit list is Helvering v. Davis … because it upheld Social Security on a broad theory of federal spending and taxing power.”  Moreover, Helvering’s “interpretation of the General Welfare Clause is not inconsistent with original understanding because there was no clear understanding on that point during the Founding.  Madison had one view, Hamilton another.”

(more…)

John McCain, in his WSJ op-ed today, says there are at least the “stirrings” of a consensus “about the way we should approach Russia and its neighbors.”  For evidence, he provides the following:

The leaders of Poland, Estonia, Lithuania, Ukraine and Latvia flew to Tbilisi to demonstrate their support for Georgia, and to condemn Russian aggression. The French president traveled to Moscow in an attempt to end the fighting. The British foreign minister hinted of a G-8 without Russia, and the British opposition leader explicitly called for Russia to be suspended from the grouping.

I’m dubious that there’s any reason to hope for such “unity” between the major powers in Europe and the United States, as opposed to between us and the Baltic states, Poland, or Ukraine, each of which has its own, perfectly understandable reasons for supporting robust U.S. interventionism.  The point regarding England and the G-8 is somewhat more plausible, but it’s easier to take this position if you expect strongly that it’s not going to result in any action because six of the eight G-8 countries are likely to oppose such a view, scuttling the initiative.

Here are a few data points that should further call into question the idea that there will be such unity:

• Italian foreign minister Franco Frattini argued earlier this week that “We cannot create an anti-Russia coalition in Europe, and on this point we are close to Putin’s position.  This war has pushed Georgia further away . . . from Europe.”
• An unnamed EU official tells US News and World Report’s Anna Mulrine that “I think the current conflict has moved us away from the MAP plan [for Georgia]. Moving forward wouldn’t be a great idea.  When you look at it, we feel validated.”  The official added that the conflict “makes you ask about Georgia’s motives for joining NATO.”  According to the official, NATO isn’t looking to fight wars with Russia, stating to Mulrine that ”this is an alliance of responsibility.”
• As mentioned below, the Sarkozy cease-fire deal is miles from the U.S. position, as is explained in more detail here.  So France is a question mark, at best.
• The German foreign ministry is calling for a “balanced approach,” and is noting that it has condemned the Russian affronts it has perceived, including “the presence of Russian troops in Georgia-proper.”  Distinguishing between Russian troops in South Ossetia or Abkhazia versus “Georgia-proper” seems to imply that the Germans are not necessarily in line with the U.S. on attempting to ensure that all additional Russian troops inserted into those regions leave and go home.
• President Bush announced yesterday that the U.S. humanitarian mission would be spearheaded by the U.S. military.  Although Defense Secretary Robert Gates is trying to cool down the rhetoric and make clear that he does not foresee the U.S. military using any force in Georgia, where are the European contributions?  It’s been a deafening silence thus far from the most important European capitals.  A European contribution would help show some unity on the matter–and invest Europeans more seriously in the mission.

In any event, McCain’s article is titled “We Are All Georgians.”  It’s tough to imagine anything even in that ballpark emerging from Paris or Berlin.  So let’s at least not kid ourselves about the prospect for serious burden-sharing.

It’s hard to care much about polls; they’re easily gamed, the questions are usually too narrow to give any real insight, and just because a majority thinks something doesn’t make it right. That said, a new poll from Education Next deserves a bit of comment.

First, I have to repeat a beef I had with last year’s Education Next survey: Why load the No Child Left Behind questions? While the pollsters attempted “survey experiments”—tinkering with question wording to see how it affected results—they just replaced “No Child Left Behind Act” with “federal legislation” in the experimental version of this question:

As you may know, the No Child Left Behind Act requires states to set standards in math and reading and to test students each year to determine whether schools are making adequate progress, and to intervene when they are not. This year, Congress is deciding whether to renew the No Child Left Behind Act. What do you think Congress should do?

The results are pretty damning for NCLB. When it’s identified by name, 50 percent of respondents think the law should either undergo “major changes” or not be renewed at all, versus 42 percent thinking the same way about semi-anonymous “federal legislation.” Worse, last year’s results were significantly more positive about the law; the percent of respondents with favorable views of NCLB has dropped by seven percentage points.

Of course, none of this gets to the public’s true opinion about the law because neither version of the question gets rid of the description of NCLB as, essentially, Clarence the angel in It’s A Wonderful Life, intervening to make all schools do well!

So how would the law have fared were people asked what they thought just of NCLB, not “NCLB: The Standardsmaker“? Since I registered this same complaint last year I haven’t seen any polls that have asked about NCLB straight-up. But suppose the same changes in NCLB support found by Education Next were applied to the Educational Testing Service poll I mentioned last year, a poll that asked about NCLB unadorned (slide 11 in the link). In 2007, ETS found that only 41 percent of respondents had a “very” or “somewhat favorable” attitude about the law. Drop 7 percentage points from that, and you’re down to a measly 34 percent.

And to think, some people think it’s “foolish” to even consider that NCLB should be scrapped!

Unfortunately, assuming the order of questions in their write-up is the same as was presented to respondents, the Education Next folks chose to ask about national standards right after greasing the skids with their encouraging description of NCLB. Not surprisingly, they found that large majorities favored having the feds establish standards and tests for the whole country.

Here we encounter almost all of polling’s shortcomings. For one thing, it’s hard to pin down the effect of the question order, but it certainly seems reasonable to conclude that describing the federal roll as demanding high standards would lead people to conclude that the feds ought to set the standards. But what if the pollsters had described NCLB as a law “that requires states to set standards while safeguarding local control”—which President Bush would tell you it does—or something like that? And what if the national-standards issue were explored in some depth, with questions about how the standards would actually be set and what they would be? Suddenly, different thinking would probably kick in. Of course, even with all that it’s possible that a majority of Americans would still support federal standards. Which brings us to the polling problem that majority support doesn’t necessarily mean good policy….

On school choice, the poll offers mixed news: Vouchers keep on struggling, but tax credits seem to have a very bright future. Nationally, only about 40 percent of people support vouchers, versus 54 percent who support tax credits. This is not to say that vouchers are dead—there’s only 40 percent opposition to them as well, meaning you’ve got two evenly-matched armies and 20 percent unclaimed territory—but compared to tax credits, vouchers have a long slog ahead. And tax credits fare even better when opposition as well as support is considered; only 28 percent of respondents opposed tax credits.

Of course, wording could have a lot to do with these results as well (for instance, the term “voucher” never actually appears in a question, but the almost as emotionally freighted “government funds” does), and all the other caveats about polls still apply. Even with that, though, the tax credit news, if nothing else in this poll, has to be a little encouraging.

It was supposed to be just another federal drug prosecution.  The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade.  The defense attorney said the government agents entrapped his client.  And then the twelve citizen-jurors retired to deliberate the outcome of the case.

But then something unusual happened.  The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?” 

That’s a fair question.  It is a point that has been made in Cato’s publications ( go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas, among many others.  Federal District Court Judge William Young was startled.  He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law.  Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively.  When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.”  Once discovered, that juror was replaced with an alternate–over the objections of defense counsel.  Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations.  So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf).  I happen to know and respect Judge Young.  I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin.  I will briefly respond to his substantive arguments below.

1.  Court precedents say jurors have no right to nullify.  Well, yes, that is undeniable.   But that’s like someone saying in 1950 that court precedents tell us that  ”separate, but equal” is the law of the land–go read Plessy v. Ferguson. The real question is whether those court rulings are truly consistent with the Constitution.  I would also point out that even though many modern court rulings express hostility toward jury nullification, no court has yet dared try to reverse a not guilty verdict or attempt to punish any juror who cast a not guilty vote in a jury room where the result was deadlock (not an untoward outcome, by the way).  Judges do remove jurors from time to time, but there is no punishment.  At least not yet.

2.  Judge Young writes, “The impropriety of nullification emanates from the notion that ours is ‘a government of laws and not of men,’” and he attributes that proposition to our second president, John Adams, who also authored the Massachusetts Constitution.  The quote is accurate, but Young is mixing up legal principles and does not know Adams well enough.  Like so many of America’s early leaders, John Adams was a strong proponent of jury nullification.  Here’s Adams: “It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”  C.F. Adams, “The Works of John Adams,” 253-255 (1856)(emphasis added).

3.  Jury nullification undermines the rule of law.  This is simply another variation of objection #2 above.  There is a logical fallacy to this objection.  Jury nullification is assumed to be improper–so it undermines “the law.”  It is like saying a presidential pardon undermines the “rule of law.”  But if the president has the power to pardon, and he does, he can exercise it (though we may or may not like the result in particular cases).  This is the way in which to understand jury nullification.  The framers of the American Constitution considered it to be part and parcel of what a criminal jury trial was all about.  Some state constitutions, such as Indiana, Maryland and Oregon, explicitly provide that juries have the power to judge the law and the facts in criminal cases.  Judges are the ones that have undermined the “rule of law” by pretending those provisions mean the opposite of what they say.

Judge Young expressed alarm about the recent Time magazine article by David Simon and his The Wire colleagues that calls for jury nullification in drug cases.  But that article has revived a debate that we should all welcome.  For much more on this subject, go here, here, here, and here.

It’s a little old, but I wanted to highlight an excellent column by L. Gordon Crovitz, the Wall Street Journal publisher turned technology columnist, about the damage our broken patent system is doing to innovation:

Companies as diverse as Verizon, Google, Cisco and Hewlett-Packard recently formed the Allied Security Trust to buy patents they may want to use some day and that otherwise could end up in the hands of “patent trolls.” These firms buy up old patents not to produce anything, but instead to work the system to extract settlements. A similar group formed against trolls to protect the Linux open-source operating system. A Google executive explained that helping to buy up and license patents is the “legal equivalent of taking a long, deep, relaxing breath.” Companies can rest easier, and legitimate inventors get paid for their work.

These corporate trusts seem like odd ways to protect products, but the memory is still fresh of the BlackBerry device almost being forced to shut down. Parent company Research in Motion paid more than $600 million in 2006 to settle a case. But in this and many other cases, companies can’t be sure whether or not they are complying with patent law. For example, by one estimate there are more than 4,000 patents that must be reviewed and potentially licensed by firms selling products or services online. The legal abuses arising from uncertainty are legion. More than 100 companies are being sued for alleged patent infringement by using text messaging internationally.

When our most innovative companies are spending large sums to buy protection from the patent system, you know something has gone awry. Crovitz also highlights important new research suggesting that outside of the pharmaceutical and chemical industries, the patent system as a whole actually creates a net disincentive for innovation:
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A new report from the Tax Foundation notes that America’s corporate tax rate is now 50 percent higher than the average for other industrialized countries. Keep that fact in mind next time you hear a politician “blame the victim” by complaining about companies not paying enough tax or whining that businesses are moving jobs overseas:

…for the 17th consecutive year the average rate of corporate taxes in non-U.S. countries fell while the U.S. corporate tax rate stayed the same. As a result, the overall U.S. corporate tax rate is now 50 percent higher than the OECD average. …The U.S. continues to have the second-highest combined federal-state corporate tax rate among industrialized countries at 39.3 percent. Only Japan has a higher overall corporate tax rate at 39.5 percent. By contrast, the average corporate tax rate among OECD countries has fallen a full percentage point in the past year, from 27.6 percent to 26.6 percent. Ireland’s 12.5 percent corporate tax rate remains the lowest among OECD nations. The OECD data shows that nine of the 30 OECD member nations have lower corporate tax rates in 2008 than in 2007, including Canada, Germany, New Zealand, Spain, the United Kingdom, Italy, Switzerland, the Czech Republic and Iceland. Germany made the biggest change, cutting its corporate rate 8.7 percentage points from 38.9 percent to 30.18 percent. As a result, Germany fell from having the third-highest overall rate to seventh-highest. France now imposes the third-highest rate of 34.4 percent. Italy had the second-largest rate cut, lowering its rate 5.5 percentage points, from 33 percent to 27.5 percent. As a result, Italy dropped in the rankings from seventh-highest to fifteenth-highest. Canada, meanwhile, dropped from fourth- to fifth-highest after cutting its overall corporate rate from 36 percent to 33.5 percent.

It’s an open group, so just search for it and sign up.  I don’t know what took me so long.

While the wire services bounce back and forth between declaring that Russian forces are attempting to hold Gori or leaving Gori, President Bush has made a statement that promises to embed the United States more deeply in the conflict, and French President Sarkozy has brokered a cease-fire deal that gives the Russians much of what they want and will be hard to square with, for example, Senator McCain’s position.

First, the Sarko peace deal.  As described here, it offered six provisions:

1. the sides in the conflict should abstain from using force;
2. all military activities would be terminated;
3. all persons in the region should have free access to humanitarian aid;
4. Georgian forces would return to their positions of permanent location before the conflict started;
5. Russian forces are to withdraw at their previous position but would be allowed to take additional security measures until an international peacekeeping mechanism was set in place;
6. there was to be a start of the international discussion of the future status of Georgia’s breakaway provinces South Ossetia and Abkhazia.

However, Georgian President Saakashvili rejected the sixth provision, as discussions of “future status” implied ambiguity about the nature of the two provinces, and Russia accepted, removing reference to future status.

The interesting thing about this deal is that it gives Russia much of what it has been saying it wanted, and looks eerily similar to what happened in Kosovo.  In Kosovo, NATO won the war, established a deterrent military presence in Kosovo, and kicked the can of the hard questions down the road. 

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Watch out - the PLA Air Force is now sober.

Last Monday, the Los Angeles Times published an op-ed written by Indur Goklany and me about gasoline prices.  Yesterday, it ran in the Minneapolis Star Tribune Today, that same piece has been posted at the Christian Science Monitor and it will appear in their print edition tomorrow.  Our argument: Once you adjust gasoline prices in 1960 for both inflation and changes in per capita disposable income, you find that gasoline prices today are actually more affordable than they were back then.  Faithful Cato@Liberty readers might well recognize this argument given that it was first offered in a blog post here a few days back by Indur Goklany.

While the predictable grousing on the newspaper comment boards followed (hell hath no fury like a motorist who thinks he was told to stop whining about pump prices), some commenters raised a legitimate issue: Would the picture change if we used median per capita income rather than mean per capita income in our analysis?  Well, yes.  But not by that much.  Let’s walk through the numbers.

First some background.  Income data come from two very different sources.  Disposable income data are produced by the Bureau of Economic Analysis (BEA), an arm of the U.S. Department of Commerce, as part of its effort to estimate the gross domestic product (GDP).  Data on family and household income come from surveys conducted by the Census Bureau.

Disposable income per capita or mean disposable income is simply total disposable income divided by the population of the United States.  Median disposable income data, however, are not available because the GDP data do not come from household surveys.  Only surveys allow us to rank order all the households (or families) and find the number that divides the bottom 50 percent from the top 50 — the definition of the median.

Median income estimates from Census data (the Current Population Survey or CPS) are available only for households and families.  Data regarding median household income are only available from 1967 to the present, so the only measure available to us for longer term analysis is median family income.  But BEA and CPS definitions of income differ.  In 2001 for example, BEA personal income totaled $8.678 trillion while CPS money income totaled $6.446 trillion.   The two income time series differ in important ways.  For example, BEA data include property income and adjustments for underreporting of proprietor’s income.  

With that out of the way, let’s get to the numbers.

(Leaded) Gasoline prices in 1960 averaged 31.1 cents per gallon.  Median family income in 1960 was $5,620.  In 2006 (the most recent year for which we have reliable data), median family income stood at $58,407.  If the price per gallon were the same percent of median family income in 2006 as in 1960, the 1960 price would translate into $3.23 in 2006.  Unfortunately, the (median family income) data aren’t yet available for calculations applying to 2007 or 2008.

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Opponents of immigration are now trying to hitch their wagon to worries about high oil prices and global warming.

An ad on page A12 of today’s Washington Post asks, “If foreign oil has us over a barrel now, what happens when our population increases by another 100 million?” The text of the ad tries to provide the answer: “With America’s population at a record 300 million today, [oil] supplies are again tight in spite of record high prices. And the U.S. Census Bureau projects that another 110 million people will be added to our population between 2000 and 2040.” So, if we want lower oil prices, we need to reduce America’s population growth and that means reducing immigration. Get it?

The ad is sponsored by five anti-immigration, anti-population-growth groups, including the Federation for American Immigration Reform (FAIR) and Californians for Population Stabilization.

The ad provides no evidence that rising global demand for oil has been driven primarily or even significantly by population growth in the United States. In fact, our total oil consumption has actually declined compared to last year, while demand continues to rise in developing countries. The two previous big spikes in global oil prices, in 1973 and 1979, occurred when the U.S. population was 80 to 90 million LOWER than it is today.

The future direction of oil prices will be determined by such factors as energy efficiency, economic growth in emerging economies, oil production, and development of alternative energy sources. Immigration rates to the United States won’t matter.

As though on cue, the Center for Immigration Studies released a report this morning with the headline, “Immigration to U.S. Increases Global Greenhouse-Gas Emissions.” The report argues that immigration “significantly increases world-wide CO2 emissions because it transfers population from lower-polluting parts of the world to the United States, which is a higher-polluting country.”

What the CIS study is really arguing is that rich people pollute more than poor people, so the world would be better off if more people remained poor. The same argument could be used to oppose economic development in places such as China and India that has lifted hundreds of millions of people out of poverty in the past two decades.

Through the dark lens of CIS, the world is a better place when poor people remain stuck in poor countries, and poor countries remain poor.

1. Obama praises George Kennan and realism here. George Kenann calls NATO expansion a “strategic blunder of potentially epic proportions” here, a position most realists share. Obama calls for NATO expansion to Georgia here, despite the fact that an alliance with Georgia offers little benefit to Americans but is likely to the drag the US into conflict with a nuclear armed state. Obama, if it wasn’t clear already, is no realist. That is a perhaps a result of running for President of a country that wants idealist presidents, but the fact remains.

2. John McCain, various neocons, and George Will argue that had NATO membership been offered to Georgia last spring, Russia would have been deterred from attacking it. Will writes:

Georgia, whose desire for NATO membership had U.S. support, is not in NATO because some prospective members of McCain’s league of democracies, e.g., Germany, thought that starting membership talks with Georgia would complicate the project of propitiating Russia…If Georgia were in NATO, would NATO now be at war with Russia? More likely, Russia would not be in Georgia. Only once in NATO’s 59 years has the territory of a member been invaded — the British Falklands, by Argentina, in 1982.

Will is confused. Even if George Bush had his way at the NATO conference last spring, Georgia would be on a path to membership in NATO, not in it. What Germany blocked was a Membership Action Plan for Georgia, which takes years, not months. McCain argues that the mere prospect of NATO membership would have deterred Russia from invading Georgian territory. But it is more likely that a Membership Action Plan would have proved an accelerant for this war, both by heightening the moral hazard that seemed to encourage Georgian President Saakasvili’s move into South Ossetia, and by inducing Russia to fight before Georgia had an official defense commitment from NATO.

3. Commentators of all stripes seem to assume that Russia’s move into Georgia was driven by its increasingly autocratic nature. (This is reminiscent of Kennan’s argument back in the X article that Communism made the Soviet Union prone to aggression, which he later regretted.) It is worth considering whether this is a misperception. A powerful body of political science argues that states’ foreign policy actions are driven mostly by their circumstance and interests, not their regime type or the personality of the leaders. Regime type and personality affect how states interpret their circumstances, but maybe not as much as we tend to think. The United States is not particularly tolerant of seemingly hostile states in its near abroad either, whether they are democracies or not.