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President Bush has received a lot of praise—mostly from his conservative defenders—for his proposal to expand America's space exploration program. I'm all for space exploration, but Radley Balko correctly calls a spade a spade:
President Bush: Vowing to throw billions of taxpayer dollars at a wasteful federal bureaucracy is not "bold." It does not make you a "visionary." In fact, it only solidifies your place among all the other mediocre presidents who freely spent tax dollars in an effort to make themselves look grand.
Unfortunately, President Bush will become more "bold" and "visionary" as the election approaches. This means he won't advance any substantive proposals to advance individual rights—they don't poll well.
::: posted by Skip Oliva
at 11:19 AM | link
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Capitalism and the Law: The Afghani Constitution
Cox and Forkum raise the bar with their take on the recently proposed Afghani Constitution. Here's yet another case where they get it exactly right.
::: posted by Nicholas Provenzo
at 10:55 AM | link
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Friday, January 09, 2004 :::
Capitalism and the Law: Have You Improperly Used Windows Messenger Service?
If you are a Windows user like me, you've probably received those annoying Windows "Messenger Service" pop-ups that come out of seemingly nowhere. These pop-ups use a part of Microsoft Windows that allows network administrators to interrupt users on their network so that they may send them messages, for example, that say that a server is about to be rebooted.
The trouble came when spammers realized they could use Windows Messenger Service to send pop-up ads to any Windows user connected to the Internet who hadn't set up their Windows firewall. Recipients of the messages have been perplexed by the pop-ups because the pop-ups are not connected to a web browser or to any other application. And adding insult to injury, the ads hawked software that promised to block the very Messenger Service pop-ups the spammers were sending; the spammers set up an extortion scam by hawking a cure to a problem that they alone created.
Now enter our saviors at the FTC. The FTC's sleuths tracked down the source of the Messenger Service spam, a company called D Squared Solutions and its officers Anish Dhingra and Jeffrey Davis. In the FTC's complaint, they charge a violation of the FTC Act, an act that punishes against "unfair" or "deceptive" commercial conduct. The FTC's complaint alleges, among other things, that D Squared "improperly used Windows Messenger Service."
Improperly? That's a curious choice of wording. It seemed D Squared used Messenger Service just fine--albeit in a way that made them an abject public nuisance.
I've always been troubled by the FTC Act's criminalization of "unfair" conduct. There are lots of things that are perceived to be "unfair," but are not initiations of force. And it's precisely the vague wording of the FTC Act that leads us to all the antitrust troubles we face today, where the everyday commercial acts of businessmen trading in the free market are turned into federal crimes.
And it's not as if a law that criminalizes conduct by the standard of "fairness" protects us from any real crime. Consider the following scenario. A man with a bullhorn walks through a quiet neighborhood using his bullhorn to pitch earplugs. If he were charged with a crime, it would not be the unfair commercial use of a bullhorn. He would be charged with disturbing the peace and being a public nuisance.
In this case, D Squared Solutions' sent uninvited messages to Windows users, and its spam was widespread enough to be an affront to the general public. Like the man with the bullhorn, D Squared Solutions can safely be charged with communicating in a manner that is a public nuisance. I hope they get the punishment they deserve.
But why should you care by what standard D Squared Solutions is convicted? The standard by which we judge a criminal or civil charge ought to clearly define the nature of the initiation of force that is held to be illegal. Laws that are explicit and fully reasoned punish wrongdoers and protect the innocent as they each deserve. Vague laws, on the other hand, offer no hope for compliance and are licenses for every kind of injustice and abuse of power. (And for evidence, one need only look so far as the enforcement of the FTC Act for evidence.)
UPDATE: James Taranto reports that a 13 year old student in Texas was suspended for three days for improperly using Windows Messenger Service to say "hey" to his peers on his school network. I hope for his sake the FTC doesn't set its sights on this act of "unfairness."
::: posted by Nicholas Provenzo
at 7:09 PM | link
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Antitrust News: Driving Down the Mountain
Yesterday the Justice Department filed their brief opposing my appeal in the Mountain Health Care case. You can access the PDF version of the brief the DOJ gave to me here. Since this case is now before the Fourth Circuit, I won't have anything more to say until the Court issues its opinion.
::: posted by Skip Oliva
at 1:52 PM | link
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Antitrust: Government Jobs Program
Richard Rahn of the Discovery Institute has a fabulous op-ed in today’s Washington Times discussing the true cause of most antitrust cases:
Both the Justice Department and the Federal Communications Commission employ many lawyers whose job is to prevent monopolies. But what happens when there are no monopolies to prevent? Being able bureaucrats, these antitrust lawyers know that, to keep their jobs, they need to find monopolies, whether real or not. The way they do this is by defining a market more and more narrowly until they find a monopoly.
I don’t have an exact figure on the number of antitrust lawyers at DOJ and FCC. (I know the FTC employs about 300 in its antitrust unit.) The DOJ Antitrust Division’s estimated 2004 budget is $141,898,000. Most of that funding—as well of that of the FTC—comes not from tax dollars, but from the filing fees companies must pay when they enter into mergers over a certain value.
What’s interesting is that while most premerger filings don’t result in antitrust action, the DOJ and FTC have increasingly targeted mergers that are not subject to prior review. The FTC has openly declared war on completed mergers in the technology industry, in one recent case undoing a merger three years after the fact.
But back to Rahn’s point. It shouldn’t be difficult for people to grasp the concept of bureaucratic entrenchment: Government antitrust lawyers act not to protect the public, but to protect their own jobs. Unlike the businesses subject to antitrust, government agencies are immune from competitive efficiencies. This means that in slow times, staffing at the DOJ, FTC, and FCC are not reduced to accommodate falling demand. Put another way, when traditional “product lines” dry up—i.e. Microsoft—the agencies develop new growth industries. They discover previously unknown antitrust violations in other industries, and prosecute accordingly.
Rahn notes, “There are too many in government who refuse to distinguish between product differentiation that expands consumer choice, which is desirable, and real monopolies.” Perhaps the best recent example of this is the FTC’s action to stop the Nestle-Dreyer’s merger, which the antitrust lawyers argued would reduce competition for “superpremium ice cream”. The FTC’s entire case rested on manipulating market definition to absurd levels. My colleague Donald Luskin lampooned the FTC’s thought process on the Nestle case back in 2003:
Imagine, if you will, an incredibly complex diagram covering a wall in the office of a Ph. D. at the FTC. The diagram is titled “The Market for Food,” and the hierarchical scheme branches from there to include every possible food group. Now erase everything that isn't under “The Market for Deserts,” and then erase everything that isn't below “The Market for Frozen Deserts,” and then erase everything that isn't beneath “The Market for Ice Cream.” Not much of the diagram remains (we're already down to something the size of a postage stamp). But now erase “The Market for Cheap-o Ice Cream,” “The Market for Regular Ice Cream,” and “The Market for Premium Ice Cream.” What you have left is about the size of Abraham Lincoln's nostril on a penny. This is “The Market for Superpremium Ice Cream.”
The greatest threat posed to producers is that when they develop a new product, the government will define that product as a separate market, even when the item competes in a larger existing market. This is how the antitrust regulators expand their power and justify their budgets. Keep that in mind next time you hear that some merger is challenged for “reducing consumer choice.”
::: posted by Skip Oliva
at 10:30 AM | link
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Sports: The Last Word
Tony Kornheiser of the Washington Post and ESPN says Pete Rose should be inducted into the Hall of Fame, but Rose's plaque should note his lifetime ban for gambling on baseball. Tony argues that the Baseball Hall of Fame is "not like winning the Nobel Peace Prize." That's an odd comparison. Yasir Arafat, a once and current terrorist, won the Nobel Peace Prize. The Nobel Committee rarely looks at personal integrity. The Baseball Hall of Fame, in contrast, cites integrity and sportsmanship as grounds for admitting players. If anything, baseball has higher standards than the Norwegians.
::: posted by Skip Oliva
at 10:13 AM | link
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Thursday, January 08, 2004 :::
Rights & Reason: Judicial vs. Popular Tyranny
Peter Parisi, a copy editor at the Washington Times, would fit in well with George Wallace and the segregationists of America’s recent past. I say this based not on extensive personal knowledge of Parisi, but rather on a single column he authored in today’s Times. It may seem unfair to judge a man based on one article, but when it’s article of such breathtaking intellectual and moral ineptitude, summary judgment is proper.
Like most of the Times’ editors, Parisi is obsessed with preventing gay marriage. In his column “Taming judicial activism,” he equates the opponents of gay marriage—conservatives like himself—with Paul Revere and the Boston patriots who incited the Revolution. Parisi notes the relatively minor cause of the Boston Tea Party—a three cents-per-pound tax on tea—and bemoans the lack of greater outrage towards an even greater modern injustice:
What is less clear is whether the Massachusetts citizenry will rise up against a latter-day judicial oligarchy — four members of the state's Supreme Judicial Court — that makes King George III look positively benign by comparison.
This refers to the SJC’s recent ruling that the Massachusetts constitution requires the state legislature to provide for gay marriage. I can’t say I share Parisi’s view that this is the equivalent of the late English monarch, principally because I’ve actually read the Declaration of Independence, including the parts that describe George’s tyrannical acts. Here’s just a short list:
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences.
The last time I checked, the Massachusetts SJC has not forcibly quartered troops (straight or gay) in anyone’s homes, nor denied the citizenry their due process rights. Parisi’s only counterargument is that the SJC forced the state to adopt a policy disfavored by many of its citizens. No doubt that’s true. But forced recognition of gay marriage does not violate the individual rights of any Massachusetts citizen. There is no “right” to impose one’s cultural views upon the citizenry at-large. Conservatives take the opposite view. They believe that in any conflict between individual rights and the majority culture, it is the culture that should prevail. This is why almost all conservatives, including Parisi, routinely ignore the Ninth Amendment, which expressly protects unenumerated individual rights.
The rest of Parisi’s editorial is a laundry list of insults against the SJC: He calls them “robed rogues” and a “latter-day judicial oligarchy.” He goes on to suggest a solution to “judicial activism”—electing judges in states where they are currently appointed (as is the case in Massachusetts), and subjecting appointed federal judges to reappointment every ten years. Parisi is particularly enthusiastic about electing judges:
It’s no coincidence that states where judges are elected are less likely to experience judicial activism of the sort Massachusetts must now work to undo * * * The requirement that judges go before the voters periodically provides a much-needed restraint on the activist impulses of what was once regarded as the “least dangerous” branch of government.
This is a false premise. Many states elect judges that engage in anti-individual rights activism. The California Supreme Court—where judges are elected to 12-year terms—is one of the more notorious examples of this (just ask Nike). And at the trial court level, electing judges often leads to surrendering control of the courts to the trial bar, which largely fund judicial elections. This is why forum shopping is so successful in major tort cases; judges that fear re-election will cater to their primary financial backers. Parisi turns a blind eye to this reality, and in doing so, he ignores Justice Ruth Bader Ginsburg’s admonition about the proper role of a constitutional judiciary:
Whether state or federal, elected or appointed, judges perform a function fundamentally different from that of the people’s elected representatives. Legislative and executive officials act on behalf of the voters who placed them in office; “judge[s] represen[t] the Law.” Chisom v. Roemer, 501 U.S. 380, 411 (1991) (Scalia, J., dissenting). Unlike their counterparts in the political branches, judges are expected to refrain from catering to particular constituencies or committing themselves on controversial issues in advance of adversarial presentation. Their mission is to decide “individual cases and controversies” on individual records, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 266 (1995) (Stevens, J., dissenting), neutrally applying legal principles, and, when necessary, “stand[ing] up to what is generally supreme in a democracy: the popular will,” Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1180 (1989).
Justice Ginsburg spoke here in a case about judicial elections, a practice she strongly disfavors. But there is nothing radical or activist about her position. It was obviously the position of the Constitution’s Framers. Parisi alludes to the “least dangerous branch” characterization of the judiciary, but as with the Declaration, he drops context. The phrase originated with Alexander Hamilton in Federalist No. 78:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Hamilton viewed life tenure as essential to the judiciary’s function, since it would protect judges from political coercion. Parisi wants that coercion present, however, to make judges “consider the long-term consequences of their rulings—if not for their country (or state), at least for themselves. Needing to be renominated and reconfirmed is, after all, preferable to being thrown into Boston Harbor by an outraged citizenry.” This is yet another false premise. He’s saying judges need to consider long-term consequences by being placed in short-term fear for their own jobs. He’s also saying judges should yield good judgment to popular passions. This is precisely what Hamilton warned against:
That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.
Rights, Hamilton noted, must be protected by the Courts when the Executive and legislative branches fail to do so. This does not mean the courts cannot or shold not be held accountable for malfeasance; that’s why the Constitution provides for impeachment and amendment. But Parisi rejects the Constitution’s underlying philosophy. He views rights as dispensable in the face of majority disapproval. In this respect, he is an ideological heir to George Wallace and southern segregationists, who viewed constitutional rights as a trivial nuisance in the face of popular bigotry. And, yes, when you oppose gay marriage on the grounds cited by Parisi, you are a bigot, not a defender of American values.
::: posted by Skip Oliva
at 1:43 PM | link
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Wednesday, January 07, 2004 :::
Capitalism and the Law: Top Ten Outrageous Antitrust Cases of 2003
Skip chronicles them at Initium. My favorite on Skip's list: The Three Tenors' case. The market definition: Three Tenors' albums. The crime: reducing discounts on the Three Tenors albums. The injured consumer class: people who think it is a God-given constitutional right to pay less than $20 for old recordings of Three Tenors albums. Oh, the Humanity!
Then again, case #1 is the real outrage.
::: posted by Nicholas Provenzo
at 9:57 PM | link
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Rights & Reason: Gerrymandering Reality
Remember when Democrats in the Texas legislature fled to neighboring states to avoid voting on a Republican-backed congressional reapportionment plan? Yesterday a three-judge federal court rejected a Democratic challenge to the now-approved plan, turning away arguments that the Republicans engaged in racial discrimination. Ironically, the leading defender of minority voters is Rep. Martin Frost, a white Democrat whose district was effectively dissolved by the GOP. Frost remained on the warpath, however: “By judicial fiat, a three-judge federal panel has effectively repealed the Voting Rights Act and turned back the clock on nearly 40 years of progress for minority voters.”
Actually, minorities are just as free to vote today as they were before the Texas legislature’s shenanigans. The original objective of voting rights legislation was to end state practices that actually prevented minorities from voting—poll taxes, literacy tests, voter intimidation, etc. What happened was minority voters, as a bloc, decided to slavishly follow the Democratic party. This allows the Democrats to argue that any reapportionment that benefits Republicans, by definition, disadvantages minorities.
This is why the courts and the Justice Department insist on a certain number of “majority-minority” districts in certain states, or what amounts to affirmative action for congressmen. The theory is that minority votes will only “count” if there’s a critical mass of them to affect the outcome of an election. There is no difference between this application of critical mass theory and the one propogated by the University of Michigan policies recently challenged (and partially upheld) by the Supreme Court. Maybe this explains why the Bush Justice Department went soft on Michigan—they realized it would force them to disavow much of contemporary voting rights law. The White House would prefer to compete for minority voters on the issues—or more accurately, by pandering to these votes—rather than incite them by decisively standing against affirmative action.
The objective truth, however, is that no amount of partisan gerrymandering can disenfranchise minority voters. Only the voters themselves can do this by reflexively backing one political party regardless of self-interest. In antitrust law, regulators discuss anticompetitive behavior by producers. In elections, it is the consumers that act anticompetitively by refusing to cross racial and party lines. When the Democrats know they don’t have to compete for minority votes, they’ll put their resources into keeping other constituencies within the fold.
Perhaps the best example of this is the District of Columbia, an overwhelmingly black Democratic jurisdiction. For decades D.C. residents have asked Congress to expand genuine voting rights—that is, for voting House and Senate members—to the District. Despite the long Democratic domination of Congress prior to 1994, there was never any action on this issue despite plenty of lip service from Democratic leaders. The party never acted because there was no consequence for not acting—D.C. residents won’t vote Republican—and because other factions demanded more immediate attention. For their part, Republicans won’t acting on D.C. voting rights because there’s nothing for them to gain; if they succeed, they would just hand the Democrats three more seats in Congress.
::: posted by Skip Oliva
at 6:49 PM | link
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The Courts: Happy Anniversary!
Thirty-two years ago today, William Rehnquist was sworn-in as an associate justice of the Supreme Court. Not only is the now-chief justice the longest serving member of the current Court, but Rehnquist is also the only one of his current brethren who never served as an appellate judge—or a judge of any kind—before his Supreme Court appointment. Rehnquist was an assistant attorney general in President Nixon's administration at the time of his nomination and appointment. Prior to that, he was a civil litigator in Arizona.
::: posted by Skip Oliva
at 9:22 AM | link
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Tuesday, January 06, 2004 :::
Antitrust & Sports: Judging Landis
With all the attention paid this week to Pete Rose’s sorry situation, let’s take a moment to congratulate Paul Molitor and Dennis Eckersley for their election today to the Baseball hall of Fame. Over at ESPN.com’s group blog, Chuck Hirshberg suggests tossing some folks out of the Hall, starting with baseball’s first commissioner, former federal judge Keensaw Mountain Landis:
It's hard to say which Landis harmed more -- America's National Pastime, or its Common Decency * * * For two decades, this succubus sat on the federal bench, torturing the poor and defenseless. Anyone who displeased him was sentenced to jail. He even sentenced a U. S. Congressman, Victor Berger, to 20 years in Leavenworth for speaking in opposition to America's involvement in World War I. The Supreme Court overruled Landis on that one, but he was used to being overruled and later complained that "the laws of this country should have permitted me to have Berger lined up against the wall and shot." You can see why he appealed to baseball owners.
Virtually every hateful outrage in baseball history can be ascribed, in some measure, to Landis' INTEGRITY AND LEADERSHIP. It started around 1915, when competition from the upstart Federal League threatened to undo the notorious "reserve clause," which bound each player to his team like an indentured servant. The clause was laughably illegal, an obvious violation of the Sherman Antitrust Act, but Landis took care of that. First, he arranged a backroom deal in which the Federals were paid off and the monopoly restored; then, in a breathtaking masterstroke, Landis almost certainly used his influence to obtain baseball's antitrust exemption from the Supreme Court. With competition gone and players stripped of all legal protection, he was soon able to suspend Babe Ruth for having the audacity to play ball in the offseason. All the sordid details can be found in a marvelous scholarly paper called "Larceny and Old Leather" by Prof. Eldon Ham of Chicago-Kent Law School. Ham also pronounces Landis "the game's chief racist," and notes that it is no coincidence that desegregation occurred only after Landis' death.
Now, I’ve defended baseball’s antitrust exemption many times, not for its virtue as a stand-alone policy, but as a demonstration that antitrust laws don’t accomplish their stated objectives. The “reserve clause” was a bad business model. It was not, however, an “obvious violation” of the Sherman Act. The Sherman Act bans “[e]very contract [or] combination . . . in restraint of trade”. Read literally, this bans every act of commerce in the United States. That’s why the Supreme Court has spent nearly a century saying that the Sherman Act only bans “unreasonable” restraints; what constitutes “unreasonable” can’t be objectively defined. When baseball was exempt from the antitrust laws by the Supreme Court, the antitrust laws were still in their developmental years, and it was hardly clear how far the laws should be applied.
And keep in mind, the old reserve clause no longer exists, not because of antitrust enforcement, but because the players finally unionized and stood up to the owners. Unions, it should be noted, are also exempt from the antitrust laws, yet you rarely hear anyone calling for that exemption to be repealed.
That said, Hirshberg’s overall criticism of Landis is on the mark. He was an autocratic racist who hurt the game far more than he helped it. Even Landis’ signature accomplishment—banning the Chicago “Black Sox” players for life for taking money to fix the 1919 World Series—was tainted:
By far the most scandalous aspect of the Black Sox scandal was not the fix, but the legal proceedings that followed it. Three players confessed and eight were indicted, but before the case went to trial, the grand jury records, complete with confessions, went a-missin'. They turned up four years later in the possession of one George Hudnall, who just happened to be [White Sox owner] Charles Comiskey's lawyer. Apparently, someone, or several someones, had decided that a public trial would be bad for the baseball business. So the players were acquitted; but Landis, in a final insult to American justice, banned them from baseball for life, as he put it, "regardless of the verdict of juries."
::: posted by Skip Oliva
at 4:58 PM | link
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Capitalism and the Law: Now that he's looted Visa, what's next?
It's no secret that here at CAC we think little of antitrust law and even less of the antitrust bar. Antitrust punishes businessmen for their success and most antitrust lawyers accept its faulty premise, even as they attempt to defend their clients. So when I first glimpsed the headline "Founding Member Resigns From Constantine & Partners" in a press release I received today, I wondered for a moment if Mitchell Shapiro, a prominent member of the antitrust bar suddenly found his conscience and realized the corruption in his chosen field.
In my dreams. It simply seems that now that since Mr. Shapiro is richer that God from his recent victory in the Visa Check/MasterMoney antitrust suit, he’s decided to pursue "new opportunities." Here’s the press release:
NEW YORK, Jan. 6 /PRNewswire/ -- Mitchell C. Shapiro, a member of Constantine & Partners, P.C. has resigned from the Firm effective January 2, 2004. Mitch was a founding member of Constantine & Partners in 1994 along with Eliot Spitzer, Bob Begleiter, Yang Chen, Jeff Shinder, Abby Milstein and Lloyd Constantine. Mitch played a major part in the Firm's role as lead counsel for U.S. Merchants in the landmark Visa Check/MasterMoney Antitrust Litigation, which concluded last month with the District Court's final approval of a settlement of more than $3 billion in compensatory relief and a historic injunction.
In the wake of that victory, Mitch has decided to pursue new opportunities. The Firm wishes Mitch continued success and appreciates all his work for the Firm and its clients.
How grand for him, but I for one, don’t wish Shapiro continued success. I wish him unmitigated failure, on the grounds that I find that a man who dedicates himself to organized looting to be a parasite in the first degree. The sooner the victims of antitrust victims reach the same conclusion, the sooner men like Shaprio and his ilk will be made irrelevant.
::: posted by Nicholas Provenzo
at 4:19 PM | link
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::: posted by Nicholas Provenzo
at 11:06 AM | link
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Sports: Pete Rose (and Bill James) Exposed
Pete Rose finally admitted he bet on baseball. Hey, how 'bout that?
Thomas Boswell, the Washington Post's chief baseball columnist, nicely explains the reasons why Rose's mea culpa should not gain him reentry into Major League Baseball, which banned him for life in 1989. Boswell describes the position of former MLB commissioner Fay Vincent, who was second-in-command when Rose was banned, on Rose:
"We were misguided [in 1989]. We thought he would be contrite. It just wasn't in him. I wish he were more contrite even now. John Dowd [who headed baseball's investigation] is owed a big apology," said Vincent, adding that Rose even hurt those who tried to defend him. Vincent cites one well-known baseball author who "wrote five pages about how there was 'not a shred of evidence' in the Dowd report" and another "who excoriated us for running roughshod over Pete's rights. Where are those people today?"
The "well-known baseball author" is Bill James. I don't know why Boswell doesn't name him. James has been a Rose apologist since the beginning, and his attacks on John Dowd are well documented. James has been working as a consultant to the Boston Red Sox, whose general manager is a disciple of James' statistical analysis methods. If I were Boston management, I would seriously consider severing all ties to James. For years James insisted Dowd had no evidence, despite the existence of Dowd's report, which presented substantial and credible evidence of Rose's gambling. James essentially argued that Dowd and Vincent were liars. Such an attack on the integrity of the former MLB administration in defense of a man who violated baseball's cardinal rule should not be tolerated in the face of Rose's admission.
::: posted by Skip Oliva
at 10:22 AM | link
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Capitalism & Law: Confirming First Principles
In an interview with Howard Bashman, Tenth Circuit Chief Judge Deanell Reece Tacha discusses her concerns about the decaying judicial confirmation process:
The tenor of that process concerns me for a very different reason than the effect that it has on the judge. I worry about how it affects the public. There is ample evidence that the public has very little understanding of the court system, the judicial process generally, and even of the way that we decide cases. When candidates for the judiciary are so publicly questioned about their personal views on various controversial issues of our day, I feel that the public is increasingly convinced that judges base their decisions on their personal views rather than case law, statutes, and relevant facts. In my view, the confirmation process is an excellent example of one of the places where the public could be educated appropriately about the role of an independent judiciary, the true meaning of a government of laws and not of people, and some of the basic tenets upon which this nation was founded. Regrettably, when the public is only exposed to such rancorous questioning about personal viewpoints, it reinforces the cynicism about whether the judicial process is fair for all people. I fully recognize and applaud the constitutional role that the Senate has in the confirmation process. I only wish that all three branches of government would spend some time taking the high ground of educating the public about some of the basic first principles upon which this nation was founded. Regrettably, I think the confirmation process as it stands today is counterproductive in that respect.
This is a stinging rebuke of Sen. Chuck Schumer and his ideological lynch mob, although Judge Tacha does not identify the Democrats expressly. When Schumer talks about opposing nominees not in the "mainstream," he is rejecting the "first principles upon which this nation was founded." Indeed, America was not founded by the mainstream, but by revolutionaries who tossed aside centuries of monarchy to create the world's first modern republic.
But more to Judge Tacha's point, the confirmation process has now become a battleground for a handful of interest groups, rather than a place to explain to the public how the courts work. And for all of the preening and posturing, there is virtually no discussion about genuine "ideology". The White House shares much of the blame for this with the Senate. Traditionally the White House—regardless of party—muzzles judicial candidates prior to their appearance before the Senate Judiciary Committee. This neuters potential judges in the face of organized interest group opposition. It also forces judges, when appearing before the committee, to act is if they have no ideology or deeply-held beliefs. Remember, the White House wants judges confirmed. They don't want to see a grand explication of ideology a la the courtroom scene in The Fountainhead.
Janice Rogers Brown, a nominee to the D.C. Circuit, is the most tragic recent example of these policies. In reviewing Justice Brown's opinions with the California Supreme Court and her outside writings, she reveals herself to be a true champion of property rights and other individual rights principles that most conservative jurists wouldn't touch with a ten-foot pole. This puts her outside Chuck Schumer's judicial mainstream, which long ago adopted "group rights" as their organizing principle. Yet when challenged before the Judiciary Committee—a group of mediocre lawyers who couldn't hold their own against an unshackled Janice Brown—the White House largely fell back on its political platitudes without mounting a serious ideological attack.
This of course reflects the White House's lack of commitment to first principles. As these confirmation battles continue to mount, I have started to reluctantly conclude that the White House values their embattled nominees as political weapons rather than ideological clashes. In other words, President Bush would rather have a distraught nominee like Janice Brown—an African-American woman—to parade around come election time than he would a Circuit Judge Janice Rogers Brown. I wonder if the senior White House staff actually bothered to look at Justice Brown's principles, as I did, or if they just saw a black woman they could parade around for the cameras.
::: posted by Skip Oliva
at 9:50 AM | link
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Random Stuff: Absorbency & Accountability
My man, Steve Czaban, offers this thoughtful critique of contemporary American advertising:
I don't know what kind of man-hating channel I stumbled on to see this commercial, but I swear it exists. Guy and girl are on a "romantic" little rowboat ride on a lake. Rowboat springs a leak in the hull. Guy panics. While guy isn't looking, girl whips out tampon (yes, TAMPON!) and stuffs into hole, stopping the leak. Sweet music plays. What the f***? I mean, really what the f*** is that?
I've seen this commercial. My reaction wasn't quite as virulent, though I did wonder about the meeting where the ad agency pitched this idea. It makes me long for the classic tampon ads where mother and daughter would discuss "freshness".
On a less uncomfortable note, Czaban also calls out the Washington Post for being asleep at the switch on Steve Spurrier's resignation from the Redskins:
In and around town, many people were very skeptical about Steve Spurrier's return, except for one person. The paper's Redskins BEAT WRITER Mark Maske. Maske kept writing, and insisting on local TV shows, that he believed Spurrier would be back. Ooops. Now, speculation has always been, that Maske is the Redskins' "house man" at the Post, and will write basically press releases based on what Dan Snyder wants in the paper. I don't know this for a fact but I know one thing: if you are considered a "great journalistic newspaper" and the beat man for the only team in town that matters is the only guy who gets whipsawed by Spurrier leaving, does that embarrass anybody? I mean, if you were an editor at the Post, and wanted your man to "get the story" then how would you react after the guy who's been with the team for the last three years ends up entirely wrong about the biggest story of the year?
Like Czaban, I won't delve into whether the Post is Dan Snyder's towelboy. But Czabe's right on the merits. Maske mishandled the biggest story on his beat this year, and his editor almost certainly won't hold him accountable. You can say, hey, it's just sports. But it's still part of the news operation. Suppose the Post's Supreme Court beat writer reported the Court was about to rule one way on a case, and it turns out exactly the opposite. This should be a major embarassment for the Post. Still, I doubt the reporter would be punished. Professional journalism doesn't emphasize internal accountability. This is why nobody should be surprised when the New York Times continues to run amok.
::: posted by Skip Oliva
at 1:11 AM | link
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Rights & Reason: Stopping Child Labor Before it Starts
John Holzmann blogs on H.R. 4319, a nasty piece of legislation that effectively prohibits anyone under the age of 18 from holding gainful employment without government permission. The bill requires all minors seeking employment to obtain a government-issued permit from their local school district. No minor may work during school hours. This sounds logical until you realize that there are private- and home-educated students who don't follow the government school's schedule. Even so, these minors also require a permit from the government school.
Second, the bill bans minors from peddling goods or services door-to-door... unless they're peddling for a school or nonprofit organization. This means it would be illegal for teenagers to work for their parents' business if it involved door-to-door selling for any kind of payment. As Holzmann notes: "Notice, however, that, despite the 'dangers' this law is supposed to protect kids from, it permits use of children by public schools and other non-profit organizations to achieve their ends. Kids "simply" can't go ahead and engage in pecuniary pursuits for their own or their family's benefit."
Third, the bill laundry lists various items a minor can't use while employed, such as riding lawnmowers, ladders, and most importantly, deep fryers. This last item effectively prevents gainful employment at McDonald's. Which is largely the point. Like most labor legislation, this bill is being aggressively sponsored by the unions. It makes sense for them—the more restricted entry-level jobs are, the more room there is for union power to expand. Giving government schools—i.e. teacher unions—the power to control the employment of minors outside the system provides a powerful reminder to parents that the state is prepared to use force to quash individual freedoms.
::: posted by Skip Oliva
at 12:55 AM | link
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Monday, January 05, 2004 :::
Antitrust News: Viva Sasol!
Last month Sasol North America, a chemical manufacturer, asked the FTC to reopen and dismiss a consent order Sasol’s predecessor agreed to in 1991. That agreement required Sasol, then Vista Chemical, to actually create a new competitor. Vista was being acquired by a German manufacturer, and the FTC believed the combination would reduce competition in the market for “high performance alumina,” an industrial compound. The FTC forced Vista’s acquirer to license intellectual property and other “corporate know-how” to a firm called Discovery Aluminas. The FTC told Discovery to open a new alumina production plant in Louisiana, thereby restoring the competition lost by Vista’s acquisition.
Well, things didn’t turn out the way the FTC planned. Discovery did build a plant in Louisiana, but they never entered the market. The EPA and the Justice Department shut down the plant for violating environmental regulations. The plant has since been resold, but the resale effectively ended Sasol’s obligations under the 1991 FTC agreement.
But all was not lost. While Discovery was screwing up, three new firms, all Sasol customers, entered the alumina market on their own initiative. The high performance alumina market is now more competitive then ever, no thanks to the FTC’s Discovery plan. This may come as a shock to those people who believe antitrust is the bedrock of our economy, but as this case demonstrates, a market run by businessmen always outperforms a market run by antitrust lawyers. Hopefully the FTC is contrite enough in this case to grant Sasol’s petition and put an end to a totally useless case.
::: posted by Skip Oliva
at 4:43 PM | link
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Rights & Reason: Altruism for the Soul
Virginia Postrel reviewed Gregg Easterbrook’s new book, “The Progress Paradox: How Life Gets Better While People Feel Worse,” for the New York Post. Postrel was duly unimpressed:
The book's naive economics is even worse than its folk psychology. Easterbrook treats the economy as an automated machine aimed at "the manufacture and distribution of the maximum volume of goods and services."
In fact, the market is a complex feedback system that maximizes not volume but value, which is as likely to be intangible as physical. But intangible value, at least other people's intangible value, is greedy waste to Easterbrook.
Middle-class people, for instance, are snapping up Maytag's aesthetically appealing Duet washer-dryer, which costs $2,200, instead of buying an equally functional set for $1,000. The extra $1,200 is just "money-burning" and would be better spent on charity.
But consider this: A Duet will last at least 10 years, so the additional $1,200 amounts to $2.30 a week. That's less than half what Easterbrook spends on perishable flowers. Whose aesthetic pleasure is "money-burning"? Easterbrook is understandably sympathetic to the hardships faced by poor people amid plenty. But his solution to poverty is to wave a magic policy wand.
Every American and legal immigrant should have health insurance, he says. What system should we adopt? He doesn't tell us, nor does he address the myriad feedback effects and distortions that any such system entails. Is everyone entitled to knee-replacement surgery?
We should raise the minimum wage to "at least $10 an hour," he says. Doubling the minimum wage would make the "prosperous majority" happier, because they "could enjoy their positions with a clearer conscience."
Easterbrook’s theory, in essence, is that people only feel good when they’re altruistic, and selfishness is a necessary evil that produces necessary wealth while killing the human soul. Like most altruists, Easterbrook emphasizes intent over effect. He wants poor people to earn more money and have health care, and he’s indifferent to how that actually affects other participants, such as employers and doctors. In his view, those people should want to sacrifice their “greed” to make themselves feel better. But it’s just a tradeoff: Feel better now, pay for it later. When the minimum wage cripples your labor market, and socialized healthcare leads to a mass exodus of physicians, people will be less prosperous and less happy. At least then we won’t have a paradox.
::: posted by Skip Oliva
at 10:29 AM | link
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The Courts: Paying Judges
On New Year’s Day, Chief Justice William Rehnquist issued his 18th annual “Year-End Report on the Federal Judiciary”. The Chief has two major gripes: Judges aren’t paid enough, and mandatory sentencing laws are crimping judicial independence. Congress should pay attention to these criticisms, especially in light of the Senate Democrats’ insistence that only “mainstream” judges be confirmed to the bench. Both Democrats and Republicans fail to recognize over-politicization of the judiciary has actual consequences.
The Chief Justice has no qualms about seeking a judicial pay raise. In 2001, district court judges were paid $145,100, the same salary as members of Congress; appellate judges earned $153,900; and Supreme Court justices, $178,300 (the Chief Justice received $186,300, the same salary as the vice president and the speaker of the House). These figures may seem high to the casual observer, but several factors need to be accounted for. First, judges are paid substantially less than they would earn in the private sector. This is true of almost any government position, but it’s particularly troublesome with judges, since low salaries will tend to lessen the quality of applicants, especially in the lower courts. A junior partner at a major law firm can easily earn $250,000 annually, almost twice a district judge’s salary.
Second, judicial caseloads have increased far more than salaries. In fact, salaries have been losing value in recent years because they’re not automatically indexed to adjust for inflation. From 1993 thru 2001, the real pay of judges declined about 13% because Congress would not provide adequate adjustments. The reason for this failure is simple: Judicial salaries are tied to legislative and executive salaries. Congress won’t raise the courts’ pay without raising their own, and the latter is perceived as politically unpopular most years. Had Congress allowed just the annual cost-of-living adjustments in full, district court judges in 2001 would have earned $159,300 rather than $145,100. At the same time, judicial caseloads, which are not tied to inflation or congressional action, have increased substantially. In 1969, a court of appeals judge handled about 123 cases annually; by 2001, that figure had jumped to 363 cases per judge. And when the Senate refuses to confirm judges for political reasons (or really any reason), this only increases the caseload on the remaining judges.
Third, judicial salaries are uniform throughout the country, whether a judge lives and works in an expensive area like San Francisco or a cheaper one like Topeka, Kansas. Most executive agencies vary their pay to account for differences in cost of living. But this is not the practice with judges, and it only creates another disincentive for individuals in major markets to stay in the private sector rather than take a low-paying district court judgeship.
To add insult to injury, Congress won’t even provide adequate funding for the judiciary as a whole. The Chief Justice’s report takes Congress to task for this neglect:
The Fiscal Year 2004 budget process has been a difficult one, and the Judiciary's appropriation for the fiscal year that began on October 1 will not be enacted until sometime in January, 2004, at the earliest. The delay in enacting an appropriations bill has disrupted the Judiciary and forced it to operate at inadequate levels of funding under continuing resolutions.
We appreciate that, for Fiscal Year 2004, the omnibus appropriations bill currently pending includes $222 million for new courthouse construction and $248 million to repair existing courthouses. The Judiciary's funding for Fiscal Year 2004 included in the omnibus appropriations bill, however, is inadequate.
The continuing uncertainties and delays in the funding process have necessitated substantial effort on the part of judges and judiciary managers and staff to modify budget systems, develop contingency plans, cancel activities, and attempt to cut costs. Many courts may face hiring freezes, furloughs, or reductions in force. I hope that the Congress will soon pass a Fiscal Year 2004 appropriation for the Judiciary, and that in future years the Judiciary's budget is enacted prior to the beginning of the fiscal year.
It’s inexcusable that the judiciary wasn’t fully funded at the start of the fiscal year last October. Even though the omnibus bill has been held up for political reasons, both the military and Homeland Security were fully funded at the start of the fiscal year. The judiciary is just as essential. Unfortunately, the judiciary’s funds are tied into the same appropriations bill with the executive departments of state, commerce, and justice. The judiciary is not considered important enough by the appropriations committees to merit a separate appropriations bill, as is the case with the White House and congressional budgets.
I don’t know how much the Chief Justice wants salaries raised, but personally I would not object to a massive increase. Even if we paid every judge on the federal bench $500,000 annually—about what a senior partner at a successful firm can earn even in a bad year—the cost to the taxpayers would only be about $500 million. Consider what Congress spends money on, and then ask yourself if we can take a half-billion of that to pay our judges competitively.
::: posted by Skip Oliva
at 9:51 AM | link
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