politics


Cary Sherman did his job as chief executive of the Recording Industry Association of America and submitted a column for publication in the NYT opinion pages bemoaning the sudden demise of the House and Senate bills that would have greatly amped up copyright enforcement and facilitated pre-trial injunctions shutting down websites potentially subject to enforcement.

On the substance, the population thus far unburdened by IP law can still stand for some hearty and honest debate, a brief outline for which follows for a few paragraphs.  But this blog frequently turns attention to public discourse, civic participation, and the general level of earnest reasoning put into lawmaking.  Sherman’s column touches those themes, and I’ll look into that after this brief SOPA intermission.

The most interesting provisions for civic debate are (1) the definitions at sec. 103(a)(1) and the (2) the preliminary injunction provision at sec. 103(c)(5). (I’m using SOPA’s provisions).

Existing copyright law generally uses a litigation scheme of copyright owner against copyright violator. SOPA allowed enforcement against a new group: sites “dedicated to the theft of US property.” That notion seems uncontroversial, so it is the definition of that phrase, at sec. 103(a)(1), that deserves good discussion. Such a site, says the bill, is “primarily designed” to violate copyrights (seems reasonable), or has little purpose other than violating copyright (a little more hazy), or “marketed … for use in, offering goods or services in a manner that engages in, enables, or facilitates” violating copyrights (hmmm?).

That last prong of the definition–marketed for services that might enable copyright violation–is I think the bone of contention for most folks opposing the bill, as a great many social media sites allow people to post originial, derivitive, and copyrighted work without pre-screening.  Easily, a lawyer could argue that fits this definition of sites “dedicated to the theft of US property.” It seems to me alot of good debate is to be had, in any event, on (1) whether we want to allow enforcement against copyright infringement facilitators and (2) how to define such actors.

And what to do with them? That is another ripe topic for debate – such as whether courts should be able to allow a website to be shut down prior to the trial that determines whether the site fits whatever definition we settle upon for sites “dedicated” to IP theft.

My sense is that about 99% of the debate could be had over those two sections. The techies can cover the remaining 1% by providing points and counterpoints on the merits of enforcing against domain names rather than an IP address to obtain copyrighted data on a particular server.

But, back to Sherman. It is predictable that the RIAA head would present an argument in favor of more stringent IP enforcement. What I found more interesting was an argument he promised in the first sentence: “how the democratic process functions in the digital age.”

Parsing out the meta-arguments regarding civic participation and social policy from the his arguments attached to SOPA/PIPA, I got this:

Hyperbolic sloganeering hinders sound public policy-making, particularly when injected by corporations with an ability to reach and sway a large audience.

And here are some of what I glean as his preferred norms, with his specific arguments in quotes:

  • Civic choices should be based on reason rather than rhetoric (“We need reason, not rhetoric, in discussing how to achieve it.”);
  • Companies purporting to provide information without bias should not be allowed to present an opinion (When Wikipedia and Google purport to be neutral sources of information, but then exploit their stature to present information that is not only not neutral but affirmatively incomplete and misleading ….);
  • No one sector in american economy should be allowed to drown out another perspective (“Get enough of them to espouse Silicon Valley’s perspective, and tens of millions of Americans will get a one-sided view of whatever the issue may be, drowning out the other side.”);

and

  • It is problematic that people can so easily spread a civic meme without being experts on the underlying issue (Sure, anybody could click on a link or tweet in outrage — but how many knew what they were supporting or opposing?).

 

I couldn’t agree more with what I’ve interpreted to be the basic normative assumption in Sherman’s argument.  (And I’ll be interested if someone has a conflicting interpretation – just remember to strip out SOPA, et al).  Indeed, I would be forever grateful if the Sunday morning shows and cable news anchors began their analysis of political talking points with whether they were hyperbolic, reduced to slogans, or injected into the public conscience by unduly influential corporate spending or unfair (let’s call it) pulpit-advantage.  Indeed, the civic necessity of education is, in my mind, to cause citizens to enter knowingly and thoughtfully into policy decisions affecting them and their fellow citizens.

Each of the four specific points could be the subject of some interesting debate.  I can imagine good arguments all around.  Reason seems preferable; but rhetoric, sometimes, can reach through the reasoning of self-interest for certain common goods.

Bullet two is a bit of a mess.  Companies like Google can certainly provide neutral search results and still submit a message of its own.   (And a quick note on the substantive argument – Google and Wikipedia, insofar as their webpages sent a message, are not the infrastructure providers with the ability to speed up or slow down particular content that advocates of net neutrality wish to keep neutral).

Sectors interested in particular policy tend to be more tuned to bills affecting them than the general public that might eventually be affected by the policy.  Lots of good government groups try to rectify that problem, for bills and subsequent agency regulations.  My gut cheers Sherman’s call for broader participation; but the fourth bullet point tempers that enthusiasm.

Because we undoubtedly do want some expertise going into policy and regulatory decisions.  How to balance the desire for public input and accountability with the real need for technocratic competence?

A glance at the comments section under Sherman’s column offers little hope that folks want to thoughtfully confront these broader themes of “the democratic process functions in the digital age.”  Still, I’ll stay tuned.

 

 

Sometimes a politician’s talking point perfectly capture the underlying intent to deceive.  Actually, that happens a lot.  A bit more rarely, such a talking point also captures an interesting point about civics and popular perceptions.  It happened yesterday, when Sen. Kay Bailey Hutchison said that the FCC’s net neutrality rules are “a stunning reversal from a hands-off approach to the Internet that federal policymakers have taken for more than a decade.”

(1) In a nutshell, the net neutrality rules forbid internet providers from favoring some content providers over others.  So, for instance, Verizon can’t take a bunch of money from Disney and send along blazing fast ABC programming to your monitor while non-Verizon-paying video producers get throttled.  Rather, internet providers must blindly provide equal access to the highway without special lanes for the paying preferred.

(2) It’s been widely discussed lately that resistance to “control” is at the heart of both the Tea Party and Occupy Wall Street movements, the former concerned with government control and the latter concerned with corporate control.

(3) Hutchison asserts that prohibiting companies from making deals with each other (resulting in faster or slower websites for those of us downstream from the deal-making) is harmful government control.  It is doubtlessly correct that the FCC is exercising some control.  But her comment is in a contextually, and horribly incorrect tunnel of vision looking only at the sphere of companies making deals.

(4) The rules, pretty clearly, do much more to keep control from happening than to allow control.  Net neutrality is basically a mandatory Autobahn.

(5) Thus, Hutchison very ably demonstrated the problem of rhetoric in the dearth of context.  In this case, not many folks were fooled.

“Job creators” is GOP code for rich people, sometime specifically those making over $250,000.  One generally finds the phrase used in something like the following: the last thing we need to be doing is raising taxes on job creators; or, we shouldn’t threaten job creators with new regulations.

The non-codified meaning of a “job creator” is any person that creates a job.  Of course, jobs are not created by people they are created by demand.  People certainly make decisions regarding who to hire and how much to pay them.  But without a duty to perform, there is no job to be done.  Owners and hiring managers can have as money available to them as they want; they will not hire unless there is unmet demand.  The real creation, then, occurs when anything happens that creates the need for paid work.   Restaurant patrons, book buyers, students, litigants, and patients are job creators.

To be sure, people making over $250,000 create jobs because they, too, usually have to pay for goods and services.  But, then, so is everyone else a job creator.   The person making $0 is a job creator when he turns up in an emergency room and gets treated (there’s the job) by a physician that is then paid with tax money (there’re some more jobs – tax collectors, fund administrators, and hospital administrators).

In any event, I searched the news for some quotes to back up the first paragraph’s claim.  Turns out there’re quite a few folks out there irked with the “job creator” talking point.  Some just want to point out that lower tax rates for top income-earners doesn’t create jobs.  Fair enough on the economic point.

But, more to the accuracy of “job creators,”  Robert Friedman wrote a column in The Hill touting the job creation of new businesses:

“Tax cuts for job creators!” It is a rallying cry echoing these days from both ends of Pennsylvania Avenue. For Republicans in Congress it means never raising taxes on the wealthiest 2 percent of the population. The White House, meanwhile, is considering a general reduction in payroll taxes for all.

Both scenarios, however, miss the real job creators: new businesses under one year old and typically unincorporated, which have added an average of 3 million net new jobs a year to the American economy. That’s more than all other categories of business combined, according to recent studies by the National Bureau of Economic Research and the Ewing Marion Kauffman Foundation.

And Mary Sanchez at the Kansas City Star argued that real job creators are those in the middle class:

This middle class is a vast middle tier of those who work to live, and strive to work a little harder to get a little more in life. Middle class people may save, but they don’t accumulate enough wealth to live off. Almost every buck they get, they spend.

That point matters: Spending creates jobs. In our economy, middle class consumers are the real job creators. Depress their income, and you depress employment.

We’ll never get around to holding politicians truly accountable unless this fuzzy middle demographic — a massive one as a potential voting bloc — gets wise about where it came from in the first place, and how it foundered.

The great prosperity of the American middle class in the late 20th century didn’t just magically transpire. The important groundwork was laid by the federal government via investment. Consider what the creation of the federal highway system did for developers and builders who created our suburban communities and all of the businesses that followed. Or the impact of the GI Bill on so many people who returned to the workforce after World War II.

…Much today is made of the massive federal deficit. I have a way we can solve that: more jobs. More jobs mean more growth, more tax revenue. But America’s job creators — middle class consumers — are tapped out. Business owners can’t hire until they have consumers to sell to. That leaves the job of stimulating demand to the government. Time for government to lay the groundwork for our future by investing in our middle class.

These arguments suffer from the same error in the GOP talking point–identifying one segment of the economy as the real job creators.  Friedman’s new businesses are obviously the part of business that will create a bunch of jobs, being that they are new and in need of staff.  And, just a guess here–new business start, fail, start up again, and fail more often than old business; so more new businesses exist each year creating jobs that may or may not last.  But while businesses, whatever the newness, literally do the hiring, the jobs are not there without demand.

Ms. Sanchez gets to the point that demand within the economic system is the trigger to job creation.  But it is a disservice to clarity to begin the analysis of how to stimulate jobs with a favored segment of society already in mind.  The actions and decisions of rich people, middle income people, or low income people may have varying and more or less important roles in the sprouting up of a new job to be done; starting the discussion with one segment of income in mind, though, distorts one’s holistic economic thinking.  Demand often stems from folks in the middle class buying things.  But, as mentioned above, it also stems from rich and poor people getting sick, and the people at the end of the causal chain of demand might not do the paying.

 

I’m reminded today that being tone-deaf and being a Representative are, ultimately, mutually exclusive attributes.  I reckon Rep. Cantor isn’t actually representative of the desperate people of Joplin; but, I’ll think of them, and of my disdain for ideological blinders, while I vote against him in 2012.

At the end of a tort trial, the amount of money that a liable defendant must pay to the plaintiff does not arrive from thin air.  In many types of cases, in fact, an entirely distinct trial occurs to detemine the amount due – so that issue does not cloud the initial detemination of liability.

There are three general concepts we use to determine what the liable defendant ought to pay the plaintiff.  Some damages are pretty easy to quantify – with things like doctor bills, repair bill, and so forth we can pretty easily figure out the monetary hit that the plaintiff suffered.  Other things are not so easy to quantify.  If a “house” husband or wife is so severely wounded because of a battery tort that the person is permanently disabled, we have nothing with which to determine lost wages.  How should that person be compensated for having to spend, say, the rest of life in a wheelchair or subject to psychological trauma?  Centuries of common law have dealt with these damages using various names like “general,” “hedonic,” or “non-economic” damages.  It is in this category that we find things like damages for pain and suffering, diminished quality of life, and other hard-to-quantify problems.

General damages, being intangible, are tough to calculate.  My guess is that this is a part of damages with which a person feels the least sympathy until  he is a plaintiff saying, for instance, but for such and such defendant’s negligence, I would still be able to walk/work/whatever.  I don’t have a vested interest one way or the other on how these intangible damages are calculated; whether, for instance, juries award huge or pitiful quality of life compensations.  But, because non-economic, general damages tend to pop up in political discussions about lawyering, such damages are the subject of much of the illogical and intellectually dishonest one hears during “tort reform” discussions.

I have one request for those discussions: be consistent.  I get the need to have some legal and normative debates about how the law should deal with non-economic damages.  But that discussion shouldn’t change based on the type of defendant on trial.  Diminished quality of life should not result in one amount of damages because a mechanic’s actions crippled a plaintiff, but another thing because a doctor’s actions caused the crippling.

I mentioned above that separate trials can be held for causation/liability and for damages, as those are distinct issues.  It may be people’s conflating of these issues that causes the logic-lapses in medical malpractice discussions.  Usually, when I make the above request, the response is a barrage of reasons that, in the medical context, it is uniquely difficult to know whether a doctor was to blame, and that people sue easily because they do not want to accept death, and so on.  The barrage is usually entirely true, but totally irrelevant to a discussion of damages.

Causation, in the medical context, is difficult to determine; which is why that part of a medical malpractice is treated entirely differently from other tort cases.  The manner in which we find doctors liable or not liable for injury is, like all of the common law of tort, an ever-valid debate.  But that debate ought be held in another room so as to make less cacophonous the other debate about non-economic damages.

Treating the issues separately, as they ought to be, might even make it a bit easier for the earnest folks debating malpractice insurance premiums and health care costs; the former, of course, contributing a whopping 2 percent to the latter.

Anyway, for an example of the either confusion or intellectual dishonesty I’m griping about above, see North Carolina Senate Bill 33.  The bill limits non-economic damages in certain emergency care situations to $250,000; which is fine, by my argument, if every other tort claim in the state had a non-economic limit of $250,000.

The story in the Times today on poorly managed foreclosure paperwork lays most blame for the mess on the lack, in quality and quantity, of manpower to handle the work.

The root of today’s problems goes back to the boom years, when home prices were soaring and banks pursued profit while paying less attention to the business of mortgage servicing, or collecting and processing monthly payments from homeowners.

When borrowers began to default in droves, banks found themselves in a never-ending game of catch-up, unable to devote enough manpower to modify, or ease the terms of, loans to millions of customers on the verge of losing their homes. Now banks are ill-equipped to deal the foreclosure process.

Some industry executives add that they’re committed to helping homeowners but concede they were slow to ramp up. “In hindsight, we were all slow to jump on the issue,” said Michael J. Heid, co-president of at Wells Fargo Home Mortgage. “When you think about what it costs to add 10,000 people, that is a substantial investment in time and money along with the computers, training and system changes involved.”

It occurred to me: there are many, many smart people looking for jobs.  Lots.  And lots of them are from the financial sector, or otherwise well qualified to jump into the work of handling mortgage and foreclosure paperwork.  Why aren’t banks hiring and training part of that multitude?

Don’t they have the resources?

I know several details muddy the waters, but there is ultimately one factor I can imagine that really blocks what seems like a win-win situation (banks being able to handle the foreclosure stampede, and people being able to have jobs).  That factor is the desire to protect the much higher ups’ incomes. It’s a shame.

There is one fact that I am assuming; and that, if proven wrong, this post is wrong.  If wealthy bankers do not reside in the 10% that took home 50% of the Nation’s pre-tax income in 2007, or the 1% that took home 23% – if, for instance, the post-2007 busted economy has so torn down the financial sector’s ability to pull in massive income for its board members – then I am wrong, and the resources are not there.  Otherwise, I maintain that it is a shame that a very few very rich people are ruining it for the job seekers and home buyers out there.

 

Jamelle Bouie, at The American Progress, posted a while back on a recent Report on the problems of judicial elections.  Bouie emphasized two problems: (1) raising money for elections, and the pressure to be reelected might affect decisions; and (2) because judicial elections are not high-profile, voters are unable to make sound, informed decisions.
First, electing judges runs counter to the American idea of an independent judiciary; elections requiring fundraising, and it’s extremely difficult for a judge to appear impartial if — as a candidate — he must appeal to special interests and outside groups for cash and support. Moreover, appearance aside, fundraising influences judicial decisions; donors can pressure judges to support certain rulings in the same way that they pressure legislators to support certain legislation. …
But even if you could insulate elected judges from campaign pressures, you would still have to deal with the fact that judicial elections just aren’t that important to most voters. To most voters, judicial elections — even high profile elections for state Supreme Court seats — are a blip on the display, at least compared to congressional and presidential elections. The problem with electing judges is similar to the problem with electing treasurers or the problem with electing dogcatchers; with so many elections, voters don’t have the time or knowledge to evaluate the candidates. As such, there are far fewer eyes watching the conduct of judicial candidates and few barriers to bad behavior; as the study details, campaign donors can donate huge sums of money without attracting much attention from voters or officials.
In the end, the study’s authors look approvingly at growing support for public financing in judicial races, but a better solution would be to just remove state judiciaries from direct involvement in elections. The idea of elected judges is nice and Jacksonian, but it’s incompatible with our ideas about judicial fairness and independence. Either we stop electing judges, or we just accept the fact that elected judges will look out for their constituents as much as they will apply the law.
First, some counterpoints on the details.  Regarding campaign money, it would certainly be a problem if a judge decided a case based on received or potential campaign contributions.  However, if campaign financing is transparent, a case turning on campaign contributions should be easily overturned and, come the next election, that should be an easy issue for the opposing judge to run on.  That may seem naive, but it is to point out that the risk of campaign contributions is not be a fundamental problem for elections.
Regarding voter knowledge, I don’t have any actual data on votor knowledge regarding judges, but my hunch is to agree that folks don’t research judge condidates nearly as much as they do the governors, state legislators, and federal candidates.  However, I also strongly doubt that the same amount of voters do not base their votes for governors and Presidents on the judges that that official might appoint.  At least with direct elections, the possibility exists that voters could research, and hold accountable, such judges directly.  On the one hand, most folks blindly hand the decision to an executive that will, no doubt, appoint with some partisan slant.  On the other hand, folks pull a lever for a judge based on the (D/R) next to the name or some other combination of factors resulting from the local electioneering.
More generally, I have long wrestled with the manner with which we place judges on the bench.  North Carolina attempts to avoid some of the campaign cash-related problems with public financing for judicial elections.  But, as the TAPPED post maintains, we should still ask whether it is better to have elected or appointed judges.
My gut reaction is usually to oppose judicial elections for the exact reasons pointed out by Ms. Bouie.  But, there are some rubs to the alternative of appopinted judges.
To be appointed, the appointee needs to, in one way or another, have some ideological or political relation to the appointer.  Sure, for high courts, a governor or President can pick from the legal all stars (though, of course there too, the appointer is looking for an idealogical fit).  But imagine a governor choosing trial and appealate judges in a state without judicial elections.  As my career fair judge suggested, that process is not occur in a pure judisprudential meritocracy.  It is polical just as surely as elections.
The prime benefit to appointed judges is that, once appointed, the judge is presumably more free to rule based on the facts and the relevant laws without outside pressures of reelection, if his character is inclined to do so.  I can think of two counterpoints to that: (1) A judge not facing reelection pressures can still decide cases based on factors other than facts and laws; it is, arguably, impossible to prevent a third factor, the judge’s ideological presumtions, from affecting the outcome. (2) There is nothing fundamentally making it impossible for voters to elect based on, and judges to run on, being good judges that rule based on facts, laws, and an intellectually honest judicial approach.  If it were thus, elections would offset any problems associated with overly-politicized appointments and unhinged, ideological judges.
I’m still undecided; the point here is to flesh out the drawbacks of appointments because, like I said, that is what my gut prefers.

Think on the following two causal scenarios:

(1) By chance, this accident occurred at a BP rig. However, the fact that a drill unleashed a methane patch is something that happens inevitably when drilling for oil. Better protection may , but not necessarily, prevented the explosion.

(2) This was BP’s fault. The company should could have avoided the methane, and a rig with proper equipment would not have exploded.

Of course, it matters a great deal to determine the truth of whether one of these, or something else, is the cause. However, perception matters a great deal when one remembers that so many of our environmental laws were passed reactively rather than prospectively.

Scenario 2 places the blame on BP and, I’d predict, result in legislation tightening the regulatory watch over oil wells. While seemingly an improvement, that policy reaction would give an aegis of safety and do nothing to nip the real problem in the bid.

Scenario 1, if perceived, would go much more against the offshore drilling that the Nation had, previously, been much more inclined to support. The policy reaction would tend toward long term progress in our enegy sources (ie, away from oil).

It will be interesting to watch which interest groups push the various blame-scenarios.

A few days back, I put up a snarky post on NC-GOP Tom Fetzer’s seemingly endless fascination with the details of Democratic spending.  I get the fact that he wants the narrative in North Carolina to be, basically, that the donkeys are a scandalous bunch.  And Fetzer can take whatever political tack he wants.  To the extent, though, that picking fights on spending becomes more technicality than substance, the politics gets tiresome.  And it goes both ways – I groaned at reading this today in N&O’s Under the Dome blog:

N.C. Democratic Party Executive Director Andrew Whalen has filed a complaint with the State Board of Elections that accuses Republicans of failing to properly document an October golf fundraiser.

The complaint comes after a string of complaints filed against Democratic Gov. Bev Perdue by N.C. Republican Party Chairman Tom Fetzer. Whalen’s complaint states that in October, the party held a fundraiser at Riverwood Golf and Athletic Club in Clayton. The club is managed by former Republican gubernatorial candidate Fred Smith.

There is a point at which money issues become substantive.  If a hidden contributor ends up benefiting from otherwise inexplicable legislation, I’d be interested.  On the other hand, gotcha political tricks based on technicality screw ups are lame.  By hunch is that Fetzer’s been riding a train of the latter, and the Dems are trying hop aboard.

I finally got around to reading through the religion-of-the-founders article that’s been showing up in the top emailed NY Times section the past week or so. It’s good, but disjointed. The general outline is this: the Texas State Board of Education yields a lot of influence on national school policy – specifically, textbook publishers. Thus, Texas education policy is generally in the eye of whatever culture wars are going on in education curricula at a given time. Lately, and in focus for this article, has been the battle over the extent to which the Nation’s founders were Christian and, far less tangibly but nevertheless ultimately, the extent to which this is a Christian Nation. (That, by the way, the article has been up top in the emailed list for a while gives some heft to the notion that the issue is, indeed, culturally significant.)

That last bit is where the article purports to marinate, before returning us back to Texan education policy. And I was looking forward to some interesting historiography as the in-depth section kicked off with:

There is, however, one slightly awkward issue for hard-core secularists who would combat what they see as a Christian whitewashing of American history: the Christian activists have a certain amount of history on their side.

But the article didn’t give us too much more than a casual reader of American history already knows. The colonies were largely, and often officially, Christian. The folks that found themselves within the Continental Congresses were, for the most part, Christians. There were also several that manifested the Enlightenment detachment from Christian specificity, particularly the need to be saved via Jesus. The Declaration of Independence asserts that the Creator grants basic human rights. The Constitution does not mention that Creator. And all that comes back to this:

As Frances FitzGerald showed in her groundbreaking 1979 book “America Revised,” if there is one thing to be said about American-history textbooks through the ages it is that the narrative of the past is consistently reshaped by present-day forces. Maybe the most striking thing about current history textbooks is that they have lost a controlling narrative. America is no longer portrayed as one thing, one people, but rather a hodgepodge of issues and minorities, forces and struggles. If it were possible to cast the concerns of the Christian conservatives into secular terms, it might be said that they find this lack of a through line and purpose to be disturbing and dangerous. Many others do as well, of course. But the Christians have an answer.

Their answer is rather specific. Merely weaving important religious trends and events into the narrative of American history is not what the Christian bloc on the Texas board has pushed for in revising its guidelines. Many of the points that have been incorporated into the guidelines or that have been advanced by board members and their expert advisers slant toward portraying America as having a divinely preordained mission.

I didn’t feel like the conversations about religion, history, nor education were very much improved by the article; in sum, it seemed very much in the familiar pattern of some people say this and other say that. The article failed to ask the questions that lay hanging over the entire debate presented within it, namely: what would it mean to be a “Christian Nation” (what goal do these folks have in mind); is the Declaration of Independence a foundational document of the US government or does it, in a more limited way, simply shed light on statutory (and Constitution-atory) intent; and to what degree would the Texas School Board folks desire that schools proselytize?

The story prompts those questions; and to be fair, it is likely purposefully limited to politics. But these types of stories are worthwhile if can engage on the foundational issues and assumptions.

I would have enjoyed something a bit more searching; perhaps I still lean overly much to the type of treatment to these questions I found in Jacob Needleman’s The American Soul. Now, that’s a good read – but he had an entire book, so perhaps I’m being a bit unfair.

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