Thursday, April 30, 2009

obama, chrysler, fiat (part iii)

I got a little closer to my new car when a deal was announced today, under which Chrysler will file for bankruptcy but FIAT will nonetheless commit to provide it with new technology and one or more new models in return for a stake in the company. For an outfit that sometimes gets laughed at, FIAT is pretty smart: the Italians got their stake without putting down a single dollar in cash.

Together with FIAT the deal demonstrates that Obama, whatever one thinks of his policies, is a lot smarter than his opponents give him credit for. As the NY Times reported, the increasing desperation of Chrysler, GM, etc. is bad news for their shareholders, but good news--albeit of a bittersweet type--for the automobile unions, which are currently acquiring a larger and larger financial interest in the (admittedly shrunken) companies. In other words, the Administration is using the auto crisis as an opportunity for a significant if forced experiment in worker ownership, a longtime goal of progressive politics in the U.S. and other countries. While the companies may fail, there is at least some chance they'll succeed, and become a model for similar arrangements in other sectors.

That's the good news. The bad news is that unions have a historical tendency to make advances in industries just as they start to decline, a history that FIAT knows something about. In his excellent history of postwar Italy, Paul Ginsborg notes how the Italian unions achieved unprecedented power following strikes at FIAT and other Turin-area employers in the 1970s, only to see FIAT (and indeed the entire Italian economy) hit hard times and gradually break the unions' power in the ensuing decades. In this case, of course, Chrysler would appear to have already bottomed out . . . but things can always get worse.

Well, if I can't get a FIAT, there's always a Toyota Prius, which at least sounds European. But the Times reported today that its workers are seeing hard times, as well. Does anyone have a used Volvo?

Tuesday, April 28, 2009

happy birthday israel

Tomorrow, actually tonight, is the 61st Israel Independence Day (Yom Ha'atzmaut) on the Jewish calendar. Being only eight years younger than the state, I can remember any number of more significant anniversaries, ranging from 15, when my mother walked me to some kind of office in Manhattan to get a shirt pin; to 30, when I was in Israel, and the Likud Party ran ads playing on the presence of the letter Lamed (30 in Hebrew) in both Shalom (Peace) and the party's name; to 50, when the peace process had not quite completely fallen apart, and there was rather more hope for an agreement than there is today. Perhaps, come to think of it, it is nice to have an odd-numbered anniversary for a change, which one can enjoy without undue thought or reflection.

There's a lot to complain about in Israel, and most Israelis--even (or perhaps especially) the Jewish ones--do so quite regularly. Yet it is easy to lose sight of what has been accomplished. The country's growth--there is almost ten times the population there was in 1948--has been more rapid than China, India, or virtually any country on the globe. A nation whose economy was the butt of jokes is among the five leading high-tech centers in the world. Even on the issue of peace with the Arabs there has been--if not sufficient material process--at least a recognition of the problem and the first steps to resolve it. When I lived in Israel in the 1970s, it was common to deny the existence of the Palestinians, and a man named Yitzhak Rabin said the only place to meet the PLO was on the battlefield. Now Rabin is remembered as a martyr to the cause of peace, and even a conservative Prime Minister argues not about the necessity for resolving the problem but the best means to accomplish it.

The next few years will witness a lot of controversy about Israel, and that is not entirely a bad thing. But the existence of the state appears secure, and its problems--how to balance a modern state with religious traditions and how to protect itself without negating the rights of others--are, in the end, merely more intense versions of the problems faced by all nations. For 61 years, that isn't bad. Happy Birthday.

Friday, April 24, 2009

the inquisition and the inquest--part one

President Obama's decision to release detailed information about Bush Administration interrogation policy (the so-called torture memos), while foregoing an investigation of the individuals and agencies involved, strikes me as a reasonable compromise. Nevertheless he is coming under increasing pressure to submit to an inquiry. Although this advice is well-intended, he should probably resist it, for the reasons stated below.

The argument for an inquisition into the inquisition (so to speak) is stated by Paul Krugman in today's N.Y. Times. Essentially Krugman argues that the U.S. needs to regains its moral balance and can only do so by completely and honestly confronting past abuses. This would be worth it, per Krugman, even if it diverted resources from other important goals, although he doubts that it would. There is also a suggestion, by Krugman and others, that a failure to confront the evil would allow it to happen again.

The problem with this argument is that it assumes a sort of idealized inquiry that is very unlikely to happen. If the goal is a kind of truth and reconciliation process, this has to a very large degree been accomplished by the release of the memos, although admittedly without the sort of contrition that accompanied the South African program (it's unclear whether this would be forthcoming, anyway). An ensuing inquiry is much more likely to turn into a highly partisan purge trial of Bush-era officials than a disinterested search for the truth. Some of the likely flavor of this inquiry is suggested by Krugman himself, who--after speaking loftily of the need to restore national conscience--refers to opponents of a probe as "people . . . who stand on the side of the torturers," adding helpfully that "[t]he president cannot lose their good will, because they never offered any."

A second problem is more practical. Supporters of an inquiry appear to assume that it will be a one-sided affair, in which the guilt of Bush, Cheney, and their advisors will be exposed and the country made better for it. But it is at least as likely the accused will counterattack, arguing (e.g.) that the interrogations saved American lives, and that the Obama Administration is effectively continuing or even escalating the existing war on terror. The spectre of studious legal scholars or lifetime CIA employees facing questioning by a bevy of self-interested lawyers or politicians--politicians who, among other things, are likely to know much less about the issues than the people they are questioning--might well produce more sympathy for the subjects of the investigation than its proponents. This is more or less what happened with the testimony of Oliver North in the 1980s, as brilliantly depicted by Sean Wilentz in his book on the Reagan era.

There is also the issue of action and reaction. Krugman and his ilk appear to assume that the liberal ascendancy will last forever. But that is highly unlikely. Much as Watergate eventually was repaid by the Clinton impeachment scandal, the effective criminalizing of policy differences is likely to provoke a similar reaction when and if Republicans are ascendant again. The present cycle of partisan, highly personal politics is thus likely to continue.

I don't think much of the Bush interrogation policies, and said so at the time. But interrogating the interrogators is unlikely to yield a positive benefit. What is needed is a substantive debate on the issue, a debate which the policitizing/personalizing of the problem will only detract from.

Thursday, April 23, 2009

the us news ratings (a special report)

I have at times taken a dismal view of law school ratings, US News in particular. However, I do not want it said they I lack enthusiasm for my own school. Therefore I wish to note with pride the following:

1. Rutgers-Camden is, according to the new survey, the leading law school in New Jersey. It is true Seton Hall is tied with us and comes below us only because "R" precedes "S" in the alphabet (Rutgers-Newark is a few paces back). But that is their own fault: there are plenty of saints with names beginning early in the alphabet; if they didn't choose one, are we really to blame?

2. Rutgers-Camden is, by my highly inexact calculation, one of the top five public law schools in the northeast, the others being Connecticut and the Pa. trio of Pitt, Temple, and Penn State, none of whom are far ahead of us. Maryland was a slave state and hence does not qualify. Cornell charges $40,000 a year and is thus disqualified even if it is a land-grant institution.

3. Rutgers-Camden has the only faculty member who teaches tax, ran for Congress, and can translate a sentence from Hebrew to Italian [although Temple has one who can translate from Mandarin Chinese.]

I welcome comments suggesting other measures by which we, or I, are in the top ten (five, one) in the nation.

fiat dappertutto (fiat everywhere)

The NY Times reports that FIAT, the Italian carmaker, may buy a controlling stake in Opel, the GM subsidiary based in Germany. The company is already in negotiations, with the blessing of the Obama Administration, to acquire a 20 percent share in Chrysler. I am still holding out until the first cinquecento (500) makes its way to an American auto dealer. Looks like I may not have to wait very long.

Saturday, April 18, 2009

and if you liked me so far . . .

At least one person must like my blog, because I've been invited to blog about Pennsylvania politics at a new site,, which is going online today. Even if you don't like me, take a look: the site promises to be at the forefront of political coverage in the Middle Atlantic region, and they'll be plenty of people who disagree with me. I'll (we'll) try to bring you the same irreverent but punchy commentary that characterizes this blog, with the difference that I'll be posting rather more often and with much more team support. My title, as befits a moderate in an increasingly partisan age: Purple in Pennsylvania.

Friday, April 17, 2009

another "elite" law school

No sooner had I posted on "what's wrong with the law schools" than another elite institution has made its mark. The UC-Irvine School of Law, which opens its doors this year, has announced itself "the most selective law school in the nation" and been hailed as the next elite law school by a wide range of commentators. A trip to the law school's website reveals 15 "founding faculty" of whom I recognized the names of at most three, and one of them (Rachel Moran) mostly because I went to law school with her. The website further indicates that the school is unique because it combines "the best of traditional top-tier legal education with innovative thinking" [now there's a thought] and will provide "meaningful opportunities to work with real clients on real legal problems." Indeed the school is so attractive that entering students were willing to pay . . . nothing to attend it, the inaugural class receiving free tuition for all three years (UCLA costs $31, 000). I wish the new law school well, and I have no doubt it will eventually find its place in the "top tier" of the US News rankings, which at last count included 100 law schools. But if a new school can hire a dozen journeyman faculty, bribe people to attend it, and be hailed as an elite institution, what is left of the concept of excellence, and is there any point talking about it?

Wednesday, April 15, 2009

what's wrong with the law schools?

The ongoing recession has provided the impetus for a new round of handwringing regarding the future of American law schools. Many have suggested that the prevailing model, under which tenured faculty are paid substantial sums to teach a relatively small number of courses and write increasingly esoteric books and articles, is no longer sustainable. A recent article by Pierre Schlag suggested that this would be no great loss, as most contemporary scholarship was, in his view, not very good, anyway.

Being something of a curmudgeon, I have learned to be wary of arguments of this type, which use a real or purported crisis to argue for something the author probably wanted to do, anyway. Yet it is hard to deny that there is a problem. At my law school, tenured full professors are paid an average of $150,000-plus to teach three or four courses a year, a figure which is further reduced (the courses, not the money) by frequent leaves, sabbaticals, and so forth. To support this largesse, the school has resorted to a bewildering array of adjuncts, visiting professors, and similar arrangements while considerably slowing down the pace of tenure-track hiring: essentially the law school equivalent of a law firm making fewer partners and leveraging its associates more aggressively. While many of these additional people make very fine teachers and colleagues, most of them don't contribute to the school's scholarly profile, so that, in the longer run, there is a tendency toward stagnation or even decline in intellectual levels. People who work at the Dean's sufferance are also less likely to raise unpleasant questions, so that faculty governance inevitably suffers as well. In short, the whole model of an independent, tenured faculty is slowly withering away, a process which the economic downturn--whether as genuine cause or convenient excuse--is likely to accelerate further.

My law school has, at least, maintained a commitment to serious scholarship, both rhetorically and in terms of financial support. I am less certain of this in the broader law school world. Reading the TaxProf and other blogs, I am continually depressed to see how much time is being spent by legal scholars on marginal or entirely nonscholarly activities. For example a significant number of professors appear to be occupied in the business of ranking each others' productivity, either by purportedly "objective" methods like SSRN downloads--the moral equivalent of reviewing books without reading them--or simply by informal gossip, a staple of several of the more popular blogs. There likewise appears to be a widening gap between the scholarship produced at "name" schools, which is increasingly theoretical/interdisciplinary in nature and often far removed from practical consequences, and that at other law schools, which (at least in the tax field) looks pretty much the same as it always has. None of this is necessarily fatal: but it's difficult to see universities, especially those that are taxpayer-funded, agree to pay ever-increasing sums to subsidize a field so unsure of its methodology that it relies on popularity contests to determine its pecking order, or (what may be worse) relies on other disciplines to provide it with intellectual ballast. Here again, there is a sense of a model that is beginning to exhaust itself, but with no clear indication of what its successor will be.

What might replace the existing system is anybody's guess. One possibility would be to continue requiring that professors add some value beyond their teaching, but to be more flexible as to what that something could be. For example, some professors might continue to do traditional, law review scholarship, while others would be required to do clinical work, law reform projects, or simply teach more (or more original courses) instead. In effect, this is happening now, but by the ruse of "off the books" hiring rather than as a matter of deliberate strategy. It is doubtful that there is really a need for more than (say) a hundred new tax articles per year: why then do we keep producing them?

Another strategy--not mutually exclusive with the above--is to start getting more serious about the qualifications for a scholarly career. A colleague of mine recently suggested that one reason law schools hire so many economics, philosophy, and other Ph. D's is that so few Americans do the J.S.D. or other advanced law degrees: hiring committees thus face the choice of someone with a nonlaw training or no scholarly background, at all. In Europe advanced law degrees are effectively required for a legal teaching career. Whatever their other failings, they ensure that law professors--like those in other academic fields--have thought about their subject matter and methodology before they begin teaching. Foreign law schools have learned much from the U.S.: might we learn something from them?

Tuesday, April 14, 2009

israel, iran, obama: once more with feeling

The selection of Binyamin (Benjamin) Netanyahu as Israeli prime minister, together with the ascension of President Obama, have brought the issue of Iranian nukes once again to the fore. Roger Cohen, a columnist with the NY Times/International Herald Tribune, has argued for a policy of engagement with Iran even (especially?) if it means getting tough with Israel, which he suggests is long overdue. At least part of the Obama Administration appears to agree: The Times reported today that the Administration would drop at least some preconditions for talks with Iran on nuclear and other matters.

That talking is as a general rule better than violence--and that military options against Iran are less than appealing--seems hard to question. The problem is exactly what to talk about. Acquiring a nuclear capability on the one hand, and driving both Israel and the United States out of the Middle East on the other, are core elements of Iranian policy that are unlikely to change without a powerful intervening event. The notion that they can be nudged out of these positions by an incremental, "carrot and stick" approach finds little support in past Iranian behavior or in their recent statements. Cohen, for example, proposes a so-called "Malaysian solution" pursuant to which Iran would continue to deny the existence of Israel but would take no affirmative steps to destroy it. But this seems at best an interim solution: could an empowered and (sooner or later) nuclear Iran really be trusted to keep to this arrangement?

There is moreover a logical contradiction to Cohen's approach. At some points, he (and others) appear to be saying that their goal is to prevent Iranian acquisition of nuclear weapons without resort to force. But at other points, they appear to say that it really wouldn't be so terrible if Iran went nuclear: perhaps it would even be a good thing, restoring the "balance" with Israel and forcing a compromise peace. Although history has been unkind to them, the supporters of 1930s-era appeasement (engagement?) at least had a bottom line, going to war when Poland was invaded in summer 1939. By contrast today's engagers (appeasers?) appear to be creating a situation in which no conceivable set of events, however unpleasant, would convince them to change their minds.

My own view is that there are only two serious positions at this point: either (i) that Iran has a right to nuclear weapons and we shouldn't be terribly concerned if they get them, or (ii) that this has to be prevented at all costs and that all options, including military force, must be on the table in order to prevent it. If Cohen and his compatriots take the first view, they should say so openly and directly, and let the debate proceed from there. Pretending that there is a third way is in my view self-deluding, and delusions rarely produce good policy.

Saturday, April 11, 2009

harold koh

I graduated from Yale Law School in 1981, right about the time that one generation of greats (Black, Emerson, Gilmore) was at or near retirement and the following generation (Akhil Amar, Stephen Carter, etc.) had yet to arrive. The two most emotionally attractive teachers, Arthur Leff and Bob Cover, both died before their time. Perhaps for this reason, I have always been a rather indifferent almunus, contributing little or nothing financially and attending exactly one reunion in twenty-seven years: all that I remember is the professors were fifteen years older and Macarena was on the charts.

Still, it's exciting to see Yale people do well, and fun--in a slightly wicked way--to see them become topics of controversy, as they inevitably do. (Think Arlen Specter, Clarence Thomas, and anyone named "Bush" or "Clinton.") The latest exemplar is the soon-to-be outgoing Dean, Harold Koh, who has been appointed Legal Advisor to the State Department but come under fire, from Republicans and others, for allegedly favoring the substitution of foreign for U.S. law in American courts.

There are two parts to the criticism, one somewhat trivial, the other potentially more serious. The trivial part is that Koh had some nice things to say about Sharia/Islamic Law at some point in his career. This seems pretty clearly out of context, and not much different from what others (including myself) have said at times, and I think it can be pretty safely be dismissed.

The more serious allegation is that Koh, as a matter of legal philosophy, is something of a "globalist" as opposed to a "unilateralist:" more specifically, that he favors giving a role to foreign law in U.S. courts, at least where there is no contrary American precedent. There is indeed a serious debate on the use of foreign law in American courts--my colleague, Beth Stephens, is among the leading advocates--and (as always) there are serious arguments on both sides. For example, many scholars fear that reliance on foreign law will undermine the independence of the U.S. legal system and result in the subtle or not-so-subtle imposition of an essentially European, left-leaning view with respect to many issues (the death penalty, the use of military force, perhaps even social welfare policy) on which the two continents differ. There are also more practical concerns, such as the role of the International Criminal Court, and the fear that American officials may be hauled before foreign tribunals for alleged human rights violations.

These are legitimate issues, but they ought to be taken in context. No one, at least no one in the legal mainstream, believes that the U.S. should surrender sovereignty to international bodies in the manner of the European Union, or (looking back historically) the way the American States did to the Federal Government after 1865. What is being talked about is the use of international norms as persuasive evidence in American courts, the way that (say) developments in more liberal States are sometimes found persuasive in other parts of the country, or the opinions of liberal (or conservative) commentators are used to influence decisions on uncertain issues. Once again, it is possible to take a positive or not-so-positive view of this development: but the hysteria seems to me somewhat exaggerated, and Koh's will in any event be only one of many Administration voices on the issue.

I wanted to add a personal note. A couple of years ago I sent an e-mail that was critical of the Law School's liberalism and suggested I might contribute even less money if it were not better balanced in the future. Koh called me--a small contributor with little if any influence--at home, and discussed the issue for an extended period. I don't remember if I sent any more money afterward. But he struck me as someone with an open mind and an interest in ideas, which is in the long run more important than his views on any particular issue. Even, or perhaps especially, at the State Department.

Monday, April 06, 2009

recession? what recession?

The NY Times reports today that neuroscientists are on the verge of a breakthrough treatment that could allow for selective memory loss. The article suggests that this treatment could be used, for example, to help people suffering from serious psychological trauma, dementia, and so forth.

So far, so good: but aren't there some ethical problems here? Supposing someone wants the drug so as to forget her former--or current--husband? Or what if a pharmacy were to receive, say, eighty million prescriptions to purge memory of the Holocaust, or three hundred million to pretend slavery didn't happen?

In Slaughterhouse Five, Kurt Vonnegut suggested that people would be happier if they could learn to focus on happier moments. I don't think he intended to be taken quite so literally.

Sunday, April 05, 2009

the gop alternative(s)

When I worked on Capitol Hill in the 1980s the House Republicans would always come up with a complete, fully budgeted alternative to the Majority (then Democratic) tax and budget bills. I could never decide whether this was ultimate devotion or ultimate folly: the Republican plan had no chance whatsoever of passage, but still they labored on, asking for revenue estimates into the wee hours of the morning. Then, in 1994, the GOP took over, and suddenly the time developing and scoring alternatives was no longer wasted.

I thought about this last week when Rep. Paul Ryan, ranking minority member of the House Budget Committee and a sort of guru for thoughtful Republicans, presented his party's alternative to President Obama's budget. As might be expected, the plan has received mixed reviews from the national media, both for its lack of detailed numbers and its, well, not entirely original flavor. ("If you expected a [serious] GOP alternative," remarked one OMB official, "then I have two words for you: April Fool's.")

The criticisms of Ryan's proposal are to some degree unfair. While much of it is GOP boilerplate (business tax cuts, social security reform, a freeze on nondefense spending), it also contains a lot of original and even courageous ideas, including an "optional" comprehensive tax reform with a two-rate (10 and 25 percent) system and increased personal exemptions (taxpayers would have the choice of paying under the old or new systems); the introduction of limited means testing in the Medicare and Social Security Systems; and a comprehensive energy plan (including further oil and gas exploration but also a new clean energy trust fund). Of course, it's easy to make these proposals when you know they won't pass. But Obama is also proposing things (itemized deduction cutbacks, a cap and trade emissions system) that won't pass in anything like their current form: sometimes the idea matters most.

The problem with the GOP proposal is that these details tend to get buried in the fine print, while the headlines emphasize tax and spending cuts and an overall in-your-face rejection of Obama's undoubtedly excessive, but ideologically coherent, spending plans. A further problem is that, by foregoing greater detail, the Republicans have fed the suspicion that they are more interested in embarassing Obama than creating a full-scale Shadow Government. Each of these problems is eminently fixable: authors like Ross Douthat and Reihan Salam have developed detailed conservative proposals on education, energy, health care, and almost everything else, and the GOP revenue estimates would likely be no less credible than the Democratic numbers. The problem is political rather than technical: coming in most cases from conservative districts, House Republicans are leery of anything which deviates from party orthodoxy or grants even a shred of legitimacy to Obama's approach. Ryan did his best to square this circle, but it's not clear he did so effectively.

The good news is it's still early and Democrats are, too say the least, overconfident. Two of the main news stories this week were an additional half a million job losses and the three dresses that Michelle Obama wore on one day in Europe. That kind of contradiction tends to catch up with you, and if the two party system can't find an answer for it, somebody else will.