Eric Posner Doesn't Get How to Fight Tyranny of the Majority

Eric Posner has a column today at Slate arguing that the recent filibuster reform for judicial nominees is a big problem, especially for fans of moderation. Basically he thinks the filibuster was good because it prevented tyranny of the majority. Now, he concedes that given how our government is constructed, requiring 60 votes in the Senate for ordinary legislation is probably unnecessary to prevent tyranny of the majority. For appointing life-tenured judges, however, he thinks that letting the Senate majority plus a President of the same party do whatever they damn well please is a really bad idea. I have a lot of problems with his argument (that he ignores the game-theoretic argument that the old filibuster rules were never a stable state and that, having conceded that Democrats had no choice given Republican intransigence, he then fails to lay the blame for all the problems he describes squarely on the Republicans' doorstep being two of the biggest), but what I want to talk about in this post is the way he misunderstands "tyranny of the majority," and especially how to fight it.

The McCann Signing was a Good One, but the Yankees are Not a Good Team

Yesterday the New York Yankees signed catcher Brian McCann, formerly of the Atlanta Braves for his entire career, to a five-year contract worth $85 million that includes a vesting option for a sixth year that would bring the total to roughly six figures. It's a pretty great signing for them, as detailed here, and also a really obvious one. McCann is a dead pull left-handed power hitter, a perfect fit for Yankee Stadium's absurdly shallow right field fence. Plus, he already has a reputation as the "fun police" or "fun cop," as he started I believe multiple brawls this past season over opposing team's apparent enjoyment of their own success, and the Yankees as we all know are ideologically opposed to fun. It also, most importantly from a baseball standpoint, resolves their extremely messy catching situation, which until they signed McCann consisted of employing career backup catcher Chris Stewart as their everyday catcher and several players not good enough to be a backup catcher as Stewart's backup. Now, presumably, they can just use McCann/Stewart and have a genuinely good catching duo.

A Modest Defense of Democratic Filibuster Hypocrisy

In 2005, Democrats filibustered a few George W. Bush judicial nominees, who they thought were particularly radical. For a while, at least. Then Majority Leader Bill Frist (yeah, remember that guy?) threatened to use the "nuclear option" to change the rules of the Senate while it was in session.* Democrats backed down. A bunch of moderate Senators crafted a deal in which Republicans agreed not to destroy the filibuster and Democrats agreed to stop filibustering. The nominees got confirmed, and hey, guess what? They're particularly radical. During the whole controversy, of course, lots of Democrats said a lot of stuff about how great the filibuster is, and lots of Republicans said lots of stuff about how terrible it is.

On November 21st, 2013, one day before the 50th anniversary of the Kennedy assassination and two days before the 50th anniversary of Doctor Who, the Democratic Senate majority used the "nuclear option" to prevent the minority from obstructing executive nominees or judicial nominees other than to the Supreme Court. This isn't the first time we've had tons of Democrats now saying stuff about how horrible the filibuster is and Republicans writing paeans to it, in a bit of entertaining "everyone's a hypocrite!" theater. There's these two pieces, for example, by Slate's Emma Roller, showing the flip-flops of both President Obama and Senate Minority Leader Mitch McConnell. Mostly I think it's true that everyone's a hypocrite on this, or more specifically that this is a prime example of my long-time theory that no one has any actual beliefs about procedure except as they relate to substance. Republicans, for instance, tend to favor a small federal government because most of what the feds do these days is somewhat progressive economic stuff, regulation and redistribution and all that, but when the feds are criminalizing marijuana, suddenly Democrats love federalism. Except, and I know this is easy to mock coming from a hard-core Democratic partisan, I honestly think the combination of the two Democratic positions, from 2005 and 2013, is a lot more defensible than the combination of the Republican positions, for mostly kind of happenstance reasons.

Yes, Democrats Will Be In The Minority Some Day, That's Exactly Why Filibuster Reform *Now* Is So Brilliant

It finally happened. They reformed the filibuster in a big way. Now it only takes 51 votes to invoke cloture on an executive branch nominee or a nominee to a lower federal court (i.e., not the Supreme Court). This resembles yesterday's trade of Prince Fielder for Ian Kinsler in that it looks to be just the first move of the coming constitutional crisis, or really what I anticipate will be more like constitutional spring cleaning, sweeping out the various cobwebs that are making our government harder to run than it needs to be under the Constitution. Republicans are, predictably, upset, and they're trotting out some masterfully dumb concern trolling. No, I don't mean the thing where they say Democrats have made it impossible to get anything done, because now--unlike before!--the Republicans are angry. That's not exactly concern trolling, it's more like a kind of an attempt to justify their forthcoming chutzpah. "It's your fault that I'm going to stop anything from getting done!" What I'm talking about is the claim that Democrats will live to regret this because one day they'll be in the minority, and they're not gonna like what Republicans do with the power Democrats have just given the Senate minority. Like this tweet from some Republican spokesperson:

Sen. McConnell spokesman: "I'm looking forward to President Rubio stacking the courts."
— Kasie Hunt (@kasie) November 21, 2013

The thing is, though, this oh-so-charitable attempt by Republicans to show the Democrats that this rule change won't always be to our benefit only serves to highlight the critical importance of acting now. Because, you see, while it is probably true that at some point in the future, possibly multiple decades from now or maybe sooner, Republicans will control both the Senate and the Presidency, that day will look very different from this day in one key respect: there won't be a judicial vacancy crisis anymore. There probably won't be, anyway. You see, there are 93 vacancies on the federal bench right now, including 18 open seats on various Courts of Appeals. Since cloture still seems to give the minority the power to waste a day or so of Senate time, this would take a while, but in principle Obama now gets to appoint 93 new federal judges. That's well over one tenth of the federal bench. That's a huge windfall of potential new liberal judges, that Republicans won't be able to get rid of even if they take over in 2016. And once that windfall gets soaked up by somebody, since there's no judicial filibuster any more we'll probably start seeing vacancies get filled pretty much as they occur. This is, in other words, a one-time windfall. If Democrats take advantage of this opportunity, there's every reason to think Republicans will never get a similar one.

Now, that would be enough incentive if it were plausible that filibuster reform might never happen, that the Senate might just keep humming along letting the minority block nominees it didn't like. But that's not plausible. Over the past decade, Democrats and then especially Republicans realized that it's just plain irrational to keep letting the other side put its people on the bench if you have the power to stop them. But every time the minority commits to a stronger form of obstructionism, they only increase the majority's incentive to remove their ability to obstruct. That makes it inevitable, I think, that these rules will get changed, over a long enough time horizon. It's simply too hard these days for the minority to forgo use of a tool they've been legitimately given. So both parties can know that, if they aren't the ones to break the "In Case of Emergencies" glass box, that means it will be the other side. And that means they both know that not only does taking advantage of the judicial vacancy windfall mean the other side won't get to do so, not taking advantage of it pretty much guarantees that the other side will. Or, to put it another way: support some right-wing Republican is elected in 2016 and the Republicans take the Senate, even by a single vote. Who really thinks they wouldn't enact some kind of filibuster reform their very first day in office at least as drastic as what happened today? Of course they would; they know better than anyone how powerful a weapon the filibuster can be, and there's no way they'd let that weapon fall into Harry Reid's hands if they saw a chance to reshape the federal courts for a generation. So making this rules change now is in fact the only way to stop President Rubio from stacking the courts.

Except, y'know, winning Presidential elections for the foreseeable future. But we're working on that, too.

Replay, Challenges, and Making Important What You Can Measure

Harold Koh, my Procedure professor, spent much of today's class telling us all about how the legal system has been thrown into disarray by recent Supreme Court decisions on matters of civil procedure. This tied in with his broader critique of the way civil procedure has been developing over the 75 years since the Federal Rules of Civil Procedure were adopted, with the emphasis shifting to early disposition of cases rather than reaching just outcomes. He quoted some anonymous judge who had said, at a recent conference about the Federal Rules, that, well, we can't measure justice, but we can measure closure of cases, so that's what we focus on. Prof. Koh's point was that this is terrible, and that it reflects the human tendency of, "If you can't measure what's important, you make important what you can measure."

I was reminded of that when I read today's Fangraphs article about the incoming replay system in Major League Baseball. The main point of the article is that, while replay is (in the opinion of the author and most of the Fangraphs-reading community) an obvious and much-needed good thing, the way they're planning on implementing it is all kinds of dumb. That's entirely about this stupid managerial challenge system. I won't get into the details, in part because they haven't been finalized, but the idea is that managers will get a certain number of "challenges" in a game, each of which they can use to request video review of a certain play, and if they use too many challenges on which they lose, they don't get to make any more challenges. Oh, and the challenges will be differently distributed among the various innings. It's really stupid.

But it also, I think, heralds a new era for baseball managers, if it lasts anyway. It was pretty much a throw-away line in the article, but I found interesting the point that "a very obvious outcome [of the challenge system] is the advent of sites like ours beginning to track stats of the success rates of these calls." Yeah. It will be really effing easy to track managers' success rates on challenges. Really easy. And, the internet being a big ol' place, I can guarantee you that it won't take very long before someone has a sortable leaderboard of 2014 managerial challenges, where you can rank managers by total correct challenges or by success rate, or maybe by Successful Challenges Above Average or something. Moreover, this will be the only leaderboard on the entire internet (except for other sites' versions of the same thing) where you'll be able to sort the various MLB managers by some numerical criterion. Currently, we got nothin'. Evaluating managers is pretty much a guessing game at this point, which is why sabermetric types never ever get worked up about the Manager of the Year Award. They think the whole thing is stupid, and that there's no way you even could make it meaningful, or anything other than a proxy for "who was managing the team they did the best, or maybe that most exceeded our (probably irrational in the first place) expectations?"

So what's gonna happen when the only thing about managers we can measure is their skill at using replay challenges?

It's not hard to picture that this will very quickly become one hell of a proxy for overall managerial quality. It is obviously a terrible proxy. There's a ton of stuff that managers do other than make decisions about when to challenge a play. Currently, we call that stuff "managing." The best estimates are that right now, a really good manager can get a team maybe five additional wins over the course of a season, which is the equivalent of adding an All-Star-level player in place of a replacement-level one. No one really doubts that managers are important; indeed, sabermetric types, who love to hate on managers for making idiotic in-game decisions, are among the first to insist that managers are important. But we have almost no way to measure their importance, to really know who are those managers bringing their teams five more wins, and who are the ones preventing their talented roster from winning games. And next year we'll have something to measure, something whose impact will be easy to measure. Hell, I wouldn't be surprised if someone starts up a metric for how many net runs a manager has saved his team through use of challenges. Which means that, 365 days from now, there will be a leaderboard somewhere showing that such-and-such a manager saved his team X runs, while this other manager only saved Y runs.

People are gonna care about that, and they're going to care about it way more than they should because it will be the only thing they can measure with anything resembling that kind of precision. It would be like if the only part of a player's offensive contribution we knew how to measure with any kind of accuracy was their baserunning. It's absurd to say it, since that is in fact one of the tougher parts to quantify, but we'd probably end up saying things about how, well, hitting probably matters, but we're not really sure how much, so we're left with no choice really but to conclude that Jacoby Ellsbury (+11.4 BsR) and Eric Young, Jr. (+9.9 BsR) were their respective League's best players, while Paul Konerko (-8.4 BsR) and Allen Craig (-5.9 BsR) were the worst. Well, okay, the Ellsbury and Konerko parts aren't so far off, but you get the point: it would be absurd. And starting next year, MLB managers are going to produce precisely one set of objective, quantifiable data about their managerial skills, and it will be about a part of that skill-set that has never even existed before. Quite possibly, it won't be long before managers are seen as challenge strategists who happen to do all this other "managing" stuff.



(Of course, since NFL football currently has a challenge system, we don't entirely have to speculate blindly about the impact of this stuff. But, not being a football fan, I honestly just don't have the slightest clue how this stuff works in football. Do people keep track of coaches' success rates? The article suggests that coaches get help from people who were watching on TV, implying that the success rate is probably pretty high, so maybe there just isn't meaningful differentiation among the various coaches. Or maybe there's enough other stuff about coaching strategy and the like that we can measure so that this issue doesn't predominate. Or maybe I'm wrong, and people won't forget that there's more to a manager's life than challenges. Still, I think it's something to worry about, even if it hasn't been a problem in football.)

Since When Is Saving So Virtuous?

I happen to be watching an episode of Doctor Who set in Victorian England, which features a number of lines about "Victorian values," having already today read a Paul Krugman post that mentioned, in passing, the desire of some people for the economy to be a "morality play" where virtuous, hard-working, thrifty savers are rewarded and those who live beyond their means are punished, both at an individual and a national level. The confluence of the two has me thinking: who said saving money is so virtuous? Obviously there's the actual economic policy question. Under conditions of full employment, saving is good because it leads to investment, and investment drives the course of long-term growth, which is good. But when there's excess capacity in the economy, increased individual savings, which must take the form of decreased individual consumption, reduces overall national income, perhaps quite a lot, and can even end up reducing the amount of investment, all of which is bad.

But what is this sense, this pretty clearly deontological sense, in which people want, viscerally, to insist that saving is virtuous, and that therefore the second half of that policy analysis must be wrong? Maybe it's not so mystifying: after all, saving money means foregoing consumption, and consumption is a form of self-indulgence. Consumption is then un-virtuous for the same basic reason that sex is: it's fun. But here's the thing: you aren't deprived of any asset to have sex. Economic consumption, on the other hand, is a trade of money for something other than money, usually something which you just enjoy for a while and that then disappears into the sands of time. So when I decide to consume something, yes I'm indulging myself but I'm also losing money, and that money goes somewhere. It goes to someone other than me. If instead I decide to save, I just keep the money for myself. In the long run, then, individuals who save more appropriate more of the world's resources for themselves, or more to the point they appropriate a larger share of the power to command the world's resources for themselves, holding employment and income constant. What's so selfless or virtuous about that? It's like a dragon, hoarding gold in its cavern. Now, of course, it isn't like that at all, because you lend the money out to fund investments and the like, but that just takes us back out of the deontology into the policy considerations of my first paragraph.

If, therefore, we forget about secondary economic effects, it's not at all clear why we should think that saving money rather than spending it on consumption is virtuous. If you spend the money you earn, it doesn't stay locked up with you, but rather gets spread back out throughout the economy. Yes, the people who receive your money had to produce something for you to consume to get it, but assuming basic economic principles are right, it cost them less to produce the stuff than you paid them for it, so they come out ahead. Yes, you get to consume the stuff, but at the expense of your own long-term wealth. That sounds like generosity to me, not as much generosity as if you just gave the money away in exchange for nothing more than the satisfaction of improving someone else's life. But in a world of peasants and misers, every peasant would prefer that the misers spend some of their money buying stuff from the peasants. (Again, that's excluding the whole "investment makes everyone better in the long run" thing.) It requires, therefore, the invention of an economic ideology of considerable force in order to make those misers seem like the good guys, the people who morally deserve to be rewarded for their great virtue and self-sacrifice. They're not sacrificing short-term consumption for their own long-term wealth, they're sacrificing it for the long-term good of the whole society.

And in many ways that's true, except that (a) there's just a limit on how much money you can spend on consumption that will actually make your life meaningfully better, so when a rich person saves money they're not really sacrificing much, and (b) as soon as aggregate demand stops meeting aggregate supply, the whole thing falls apart and the virtuous economic effects of saving become vicious instead. The basic point, though, is that we most definitely shouldn't let any notion of "saving = virtue," separate from serious economic analysis about the practical effects of savings on the whole economy, infect our thinking, since that notion can only arise in the first place out of a serious though partial such analysis. Sometimes it is true that lower levels of individual consumption and higher levels of individual savings are a good thing, but this is in a sense the exception, not the rule Consumption is of immediate benefit for both the consumer and the producer. It is not, therefore, perverse for increased consumption and reduced savings to be a good thing; in a sense the opposite is the perverse condition, which only ever attains because of a particular mechanism within a particular economic state of affairs. We should be grateful for that perverse condition, since it has been responsible for much of modern prosperity, but this should not confuse us into forgetting that it is an artificial creation of the modern capitalist economy, not some inherent natural state of the world.

Good Job, BBWAA

Whaddaya know? All six of my picks to win the major end-of-year MLB awards won them. And these weren't predictive picks, mind you, these were on-the-merits picks. That would seem to imply that I think the Baseball Writers Association of America did a pretty good job in picking the winners. And I do, although I also think that it is a problem Mike Trout didn't win the AL MVP either of the last two years, given that he was unambiguously the best player in baseball in each of them. My personal feeling is that Cabrera deserved both of the awards, not because he was on a playoff team or had higher RBI totals or whatever, but because he (a) won the Triple Crown, and then (b) led Major League Baseball in batting average, on-base percentage, and slugging percentage all at once, and both of those feats are just kind of trump cards to me, or at least they put an extremely high burden on the case for any other contender. When someone is that offensively dominant, I'm gonna be inclined to give it to them, even though I would also be quite eager in another year to recognize the value of a gifted defensive shortstop or center fielder or catcher who can also hit pretty well. The situation the last two years in the A.L. has been a tough one, and I kind of hope that Trout does his thing again next year and Cabrera goes back to being just really good instead of ungodly, so that they can just give it to Trout already and the argument can stop. But overall I do think they got the awards pretty much right, which doesn't always happen, so good for them.

Nope, Sorry, Supreme Court Justices Aren't Staying on the Bench Longer

This is not the post I expected to write. I expected to write a post offering an alternate interpretation of the statistics in this Slate post advocating an attack on life tenure for federal judges. Basically, they present data showing that more Justices are staying on the Court at least 10, 20, and 30 years since 1900 than did so before that year. My argument was going to be that this wasn't necessarily because the Justices were living longer, but just that the Supreme Court has come to be seen as a more important institution, basically as constitutional law and individual-rights law have grown to their current prominence, and so fewer Justices were just leaving to go do something better. I was going to claim that you could see this in the massive increase of 10-year Justices, and the proportionally similar growth of 20-year ones, and the complete lack of an increase in 30-year Justices. But, as it happens, I'm not going to write that post. Because while I was writing that post I discovered that I couldn't generate their numbers for myself, by looking at the very-publicly-available and not-very-complicated data. In fact they don't state very explicitly how they're getting their numbers, and I can make one assumption that gets me numbers close to theirs, though not the very same numbers. But that's not really my point, I don't care much about whether someone writing a Slate post got slightly wrong how long the various Justices have been in office. No, my point is that my own look at the data suggests that their factual conclusion is just wrong: there has been no long-term trend toward longer terms in office among Supreme Court Justices, though there's some reason to think the current Court might be beginning to exhibit one. The data here is really tricky, but I'll go through it in some detail below the jump.

Unfortunately Lousy Arguments Against the Death Penalty, Courtesy of Larry Flynt

Larry Flynt, renowned purveyor of filth and smut to all the world (not that that's necessarily a bad thing), was apparently shot and paralyzed by neo-Nazi Joseph Franklin in 1978. The state of Missouri is planning on executing Mr. Franklin, and Mr. Flynt wishes they wouldn't. Good for him, and a good if perhaps not-very-representative example of how the pro-death penalty position is not at all the pro-victim position, inherently or empirically. He also seems to be in the "death is too easy" camp; that is, his desire to "spare" Franklin's life is about vengeance, since he sees spending decades rotting in jail as a worse punishment than just being terminated as gently as the state can manage (which isn't very gently, but still). And that's a fine position, though I don't think it can plausibly be very central to the abolitionist argument. But here's a quote from Flynt in the ACLU's statement regarding the case:

“I find it totally absurd that a government that forbids killing is allowed to use that same crime as punishment.”

This is an unfortunately terrible argument against the death penalty. Why? Because oh boy does it prove too much. Specifically, under this logic we shouldn't let the state imprison people ever, since private parties aren't allowed to go around imprisoning other people they don't like. (Unless they get a government contract and call themselves a private prison, but that's a whole different story.) As I argued here, power is central to the very concept of government; it is in the nature of governments that they have a different relationship to power, force, violence, and coercion than do private individuals. This is what we call the "monopoly on the legitimate use of force." So of course the state does things that it simultaneously forbids private persons to do, like telling other people what they can and cannot do under threat of imprisonment and violence if imprisonment is resisted. As such, therefore, the fact that the government forbids murder doesn't tell us that it mayn't also kill people. Now, as it happens, the claim is true, for various ethical, moral, political, and philosophical grounds. And the fact that death is so horrible is the motivating factor both for state opposition to murder and for private opposition to capital punishment. But we need at least a little bit of political theory to make it clear that, while states legitimately enjoy a monopoly on legitimate imprisonment, it shouldn't get to kill people any more than private individuals do.

What Would You Say Was the Cause of Death?

There's a scene in a certain episode of one of my favorite TV shows where one character asks another to say what he thinks the cause of death was for a bunch of apparent corpses. After the other character makes a few guesses, all wrong, the first character divulges that there was no cause of death, because they're not dead. I was reminded of this when I heard a European Tour announcer say, during the broadcast of the Turkish Open, that slow play is "killing the game, at all levels." Now, look, I know everyone seems to hate slow play with a fiery vengeance, but in order for that statement to be true it first needs to be true that the game is dying, or at least shows some sign of being done substantial injury. Is that true? I dunno. I'm not sure how you'd try to measure that. Maybe "number of golfers worldwide," though I don't know how good the data is there. Maybe the ratings for big tournaments? Maybe the number of applicants to the U.S. and British Opens, which I believe keep setting all-time highs each year? Nothing I've seen as an ardent fan and a player myself suggests that golf is losing the interest of the general public, and that's really just in the U.S., let alone Asian countries where the game is booming. People love to gripe about slow play, but I'd like to see some evidence that it has actually damaged the game, as opposed to just annoying people around the top echelon of the game and the subset of amateur players more likely to have business appointments forcing them to be in a hurry while on the course. It's not killing the game, in other words, because as best I can tell nothing is killing the game.

The Deserving 2013 MLB Award Winners

Yesterday I wrote a post giving my opinion on the 2013 Silver Slugger Awards. (Spoiler: J.J. Hardy should not have been in the conversation, let alone won his.) Today I'll do the same thing for the six main end-of-year MLB awards: the MVP, Cy Young, and Rookie of the Year Awards in each league, which have not yet been announced, though the identities of the top 3 vote-getters for each award have been made public in a totally lame attempt to build hype. As for Manager of the Year, well, there's no actual objective way to assess it, so who cares? Analysis below the fold.

The Deserving Silver Sluggers

It's baseball awards season again, which means it's time for some blog posts by this random baseball fan about who should've won various awards. Comeback Player of the Year doesn't really merit its own post, though. Rivera was obvious, and for the NL, well, I thought Marlon Byrd was a really good candidate but part of what he was coming back from was a PED suspension, so I can't really complain about the Liriano pick. (Fun fact, though, this was Liriano's second win!) No, this post is about the Silver Sluggers, which are being announced as I start typing but will be done getting announced by the time I'm done. So I'll say both who did win and who should've won. Note that the award doesn't distinguish between the different outfield positions, just giving three awards to "outfielders" generally, but I'll try to give one to a center fielder in each league unless that's just implausible. The stats I'll be referring to generally are the basic average/on-base/slugging line, home runs, doubles, triples for relevant players, runs scored and driven in, weighted on-base average (wOBA), weighted runs created (wRC), adjuted wRC (or wRC+), and batting runs above average. Those last few are Fangraphs creations that use linear weights to determine the offensive value of each plate appearance. I've never really worked with unadjusted wRC before, but it seems like it might be a decent way of measuring just pure aggregate production. We'll see!

The Left is More Moderate 'Cause We've Been Winning

Kevin Drum has a post today arguing that there's no great mystery why the Republican Party is so much more beholden to its radical wing than the Democrats are: there are a lot more radical right-wingers than radical left-wingers these days. I think that's basically true, but I have another thought: part of the reason why that's true is that the liberals have been winning. Most notably we've been winning the culture wars. Over the last half-century, American society has been remade in a wildly more progressive, individualistic, liberal direction. We're a long way from perfect application of the ideals of egalitarianism and individual liberty, but as a society we are pretty clearly trying, and committed to trying. And the government's been a big part of that. Sure, there have been a lot of Republican Presidents lately, but almost all of the big stuff they did that liberals dislike was about concentrating the economic resources of the extremely wealthy. That's not a trivial issue, but we're a long way from fighting over segregation or rampant sex discrimination. Notably, since post-Reagan Republicans have embraced deficits just for the hell of it, they're been able to pursue this pro-rich agenda without actually doing too much damage to the anti-poverty parts of the budget; programs have been cut a little at the margins, but the only time a central plank of the social insurance scheme was structurally altered was welfare reform and that, apparently, worked out a lot better than most liberals expected. The point is, someone who thirty or forty or fifty years ago felt the need to demand massive liberal changes both from the political process and from society at large would find that they've received a pretty large chunk of those demands, with more pretty clearly on the way in the near future (on gay rights, Obamacare actually taking effect, maybe immigration reform and some sort of executive action on climate change, etc.)

If, however, you were a conservative those same few decades ago, well, the intervening years have been a horror show. Particularly if you were a social conservative, you are now greeted with the spectacle of all these strange people running around acting like they're your equal. (Women, black people, Hispanics, gays, atheists, etc.) It's now just routine that everyone, not just weirdo free-love hippie types but nearly every ordinary American young adult, has a sex life that would've been considered scandalously promiscuous when you were born. People go around cursing all the time. You get the point: a certain vision of how American society should be structured, one held by a not-insignificant portion of the populace, has pretty much died over the past couple of generations. Which turns yesterday's conservative into today's apocalyptic reactionary, no longer merely making the Burkean argument that we should hesitate to make significant changes but forced to argue that changes which have already taken place are in fact destroying American society. That's a much more radical posture, and I think the frantic sense of doom has been really magnified by the fact that we've got a black President now. Nothing gets people riled up like identity politics, and for a long time now the ascendant American identity has been the liberal one.

I'm honestly not sure what explains the over-the-top hostility found these days among the one group within the Republican coalition that's been making out like bandits over this same time period, namely rich people and financiers. One way to look at it would be that they've transmuted the simple desire to have more money, rooted in nothing more than good old-fashioned rational self-interest a.k.a. greed, into a kind of identity politics, where anyone who doesn't just want to back a truck full of cash (and no small bills, please) up to the gates of their mansion is committing some unforgivable slight. That's a phenomenon in itself, but more broadly I think it's true that the liberal identity has been whupping the conservative identity's ass for generations and that this trend shows every sign of continuing. What more explanation do we need for the perceived radicalism gap?

When Legal Realism Gets Internalized

Back in the old days, common law judges had what we would now consider a naively romantic view of their jobs. They did not see themselves as making the law, but rather as using the principles of Reason to "discover" the law. The law, they thought, had external validity. It just existed, out there, somewhere, sort of as natural law was thought to. Some of them might even have said that the common law they applied was natural law, though others might have denied it. Then, starting a little more than a century ago in this country, came the legal realists, who basically demolished this idea. They pointed out, irrefutably so, that an awful lot of judicial decision-making was influenced by the personal characteristics of individual jurists, the politics, the identities, the ideologies, etc. That was the empirical claim. It got kind of wrapped up in a philosophical claim about what law is. To a legal realist the idea of the law's existing independently of the legal system was absurd. Put perhaps a bit too concisely, the law was seen as nothing more than a prediction about the behavior of judges.

This story, of the rise of legal realism and the corresponding fall, and then demise, of the classical view of law, kept occurring to me earlier tonight as I read the line of Supreme Court cases about federal common law. Here the story is as follows: in Swift v. Tyson (1842), Justice Joseph Story declared that, in a case which only gets into federal court because the parties to it are from different states, i.e. where the legal issues are not ones of federal but rather of state law, the federal courts were not bound to follow state common law. Part of the motivation may have been the desire to create a uniform national commercial law through the federal common law. In any event, this was the rule for very nearly a century, until the Court overturned Swift in Erie Railroad Co. v. Tompkins (1938). And I just couldn't shake the feeling that the difference between the two cases is the difference between classicism and realism. Moreover, though I'm not at all sure which of the two cases I think is better, it seems to me that Erie and its progeny showcase the potential dangers of letting the legal system internalize even the most valid insights of the legal realists.

How Far Could We Restrict Abortion?

As promised in my last post, I will now consider the following question: if I were put in total control of federal constitutional law, what is the most restrictive abortion statute I would consider upholding? There are basically three ways to answer this question: totally pro-life, totally pro-choice, or something in the middle. Or, to put it another way, you either need to say that a law prohibiting abortion from the moment of conception would be constitutional, that no law imposing anything more than good-faith time-place-and-manner-style regulations on medically-supervised abortion up to the minute, or perhaps second, before birth would be constitutional, or you need to find some convincing way to draw a line somewhere between the two. Obviously I don't adhere to the first position. I'm not at all sure, however, that I adhere to the second one, either. That requires me to draw some lines, and below the fold I will attempt to do so. First I'll sketch the outlines of what I think might be the most restrictive possible legitimate abortion law, and then I'll attempt to defend both why I think such a law might be constitutional and why I think violating any requirement I place upon the law would render it invalid.