Blog Envy

I saw the movie Julie and Julia, a melange of Julia Child's experience in getting her famous cookbook published and Julie Powell, a blogger from New York City who cooked her way through Julia Child's cookbook and blogged about it.

The movie is endearing and enjoyable, but, speaking from a blogger's perspective, can I just say, wait a minute? This Julie Powell committed herself to cooking the recipes in Julia Child's cookbook over the course of a year and blogged about how it was going? And she got famous doing that? How could anyone possibly be interested?

I must really be doing something wrong in my blog. I suppose I could have visited every historic site, park, and museum in the Washington, DC area and blogged about each of them. Or I could have requested a 15-minute interview with every member of Congress and blogged about that for 535 days. But why would anyone care? I mean, really, if you thought you were going to get famous by blogging your way through someone else's cookbook, I would have told you that the odds were about one in several million.

Well, she started early: her first entry is August 25, 2002. I don't think there were so many blogs back then. Now there are millions. And she persisted. And she had a good focus, instead of just looking at "the News, the World, and Life," the way I do. And it worked! Her blog was made into a book and then a movie, while I'm still waiting.

But my first taste of fame starts tomorrow! Faithful readers, next month's posts will appear here and on Concurring Opinions, a group blog hosted by my colleague Dan Solove. They've got thousands of readers, so I'll have a wider audience. Look out, competing bloggers.

Here Comes RoboCop

The Federal Trade Commission has instituted a ban on robocalls that takes effect on Tuesday.

I guess this is a good idea, but really, what's the big deal? Just put yourself on the Do Not Call list -- the greatest government program ever -- and you'll be free from all telemarketing calls, not just robocalls.

I suppose there might be people who don't mind telemarketing calls generally, but who hate robocalls. Maybe what we really need is a more flexible Do Not Call list, where users can choose more particularly what kind of calls they don't want to receive.

But boy, when it comes to telemarketing calls, I'm checking "all."

Fast Action

The staff of the late Senator Ted Kennedy must archive his materials and close his office within 60 days.

Wow. I certainly understand that the staff of a deceased legislator can't remain on the public payroll indefinitely, and that their only remaining task is to close up the office in an orderly fashion, but 60 days seems like an awfully short time for this case. Senator Kennedy's office presumably has 46 years' worth of records and materials that will need to be dealt with appropriately. The records will be of great value to historians and researchers and they should be archived with care and thoughtfulness, not hastily thrown into a bunch of boxes and put in a warehouse.

I suppose a fair amount of the records are probably archived already, but even so, to close up shop for any office that has been open for 46 years would be a considerable undertaking and I doubt that the staff could really do a proper job in 60 days -- even without considering that everyone's going to be in shock for at least a week or two and that they all need to find new jobs in the same time period.

Fortunately, a little research reveals that the Senate Committee on Rules and Administration has discretion to lengthen the closing period (page 3). Perhaps some extra time could be arranged to reflect the challenge of properly closing this unusual office.

Ravitch Redux

I previously expressed the view that a New York state statute appeared to give Governor David Patterson the authority he needed to appoint Richard Ravitch to the vacant post of Lieutenant Governor. Now an intermediate state court of appeals in New York has disagreed with me.

Fortunately, I was cautious enough in my previous posting to note that I was just parsing the one statutory provision upon which Governor Patterson was relying and to include the caveat that "to be confident, one would need to scour all of NY's constitution and laws to see if there are other provisions that bear on the issue." Often, the essence of being a legal expert is just having read the rulebook thoroughly, so that you know that even though Rule 5 says one thing, Rule 29-B says that something else shall happen in certain cases "notwithstanding Rule 5." There's no great brilliance involved; it's just a matter of being so thoroughly versed in the rules that you know about all the little notwithstandings and howevers.

In this case, having read the court of appeals' opinion, I think they got it right. What the court discovered (with the assistance of counsel, of course), is that there is another provision of New York law that has to be considered.

Governor Patterson relied on the New York Public Officers Law, section 43 of which provides that "If a vacancy shall occur, otherwise than by expiration of term,with no provision of law for filling the same, if the office be elective, the governor shall appoint a person to execute the duties thereof until the vacancy shall be filled by an election." That seemed to apply, because a vacancy had occurred in the office of Lieutenant Governonr, other than by expiration of term, and there was no provision of law for filling the same. So it looked OK.

But, the court points out, first of all, strictly speaking, the statute does not provide that the Governor can appoint someone to fill the office, but only that he can appoint a person to execute the duties of the office until the office shall be filled by election. That might seem like a distinction without a difference, but -- and this is the crucial point -- the court also observed that the NY state constitution (article IV, section 6) provides that, in the case of a vacancy in the office of Lieutenant Governor, "the temporary president of the senate shall perform all the duties of lieutenant-governor during such vacancy."

Now we have a conflict. The court correctly points out that it could hardly be intended that the temporary president of the senate would "perform" the duties of the Lieutenant Governor but that the Governor would appoint someone else to "execute" the duties of the Lieutenant Governor. Thus, the general statutory provision that the Governor decides who gets to execute the duties of otherwise unprovided-for vacant positions conflicts with the specific provision in the NY constitution that the temporary president of the Senate peforms the duties of the office when the vacancy is specifically in the office of Lieutenant Governor.

Not only do more specific provisions usually control over more general ones, but here the more specific provision is constitutional and the more general one is only statutory. Thus, for two reasons, it seems right to say that the provision giving the duties to the temporary president of the NY Senate prevails over the provision allowing the Governor to name someone to execute the duties.

So I'm officially changing my view. I think the court got the case right.

Edward M. Kennedy

Senator Kennedy's request that the Massachusetts legislature change the laws regarding the replacement of Senators from that state turned out to be sadly prescient -- he died last night.

Kennedy's death marks the end of a truly distinguished legislative career. He was second in Senate seniority, having served nearly 47 years, and he had innumerable legislative accomplishments.

My own small remembrance of Senator Kennedy comes from my brief stint as a Legislative Fellow in a Senate office in 2007. Televisions on every desk were always tuned to the Senate floor, and I remember seeing Senator Kennedy speaking -- on health care, I believe -- late one afternoon. I was struck by how different he was from what one would expect from someone who had done the same job for 45 years. Of course, being a Senator is a great job -- at least, it's certainly very different from most jobs -- but still, after 45 years, one might expect that even Senators would find the excitement and interest of floor speeches and other legislative jostling to be somewhat dimmed and to be going through the motions with less than the ferocity they might previously have brought to their work. But not Kennedy. He spoke with passion and fervor, exhorting his colleagues about the importance of the issue for the country. He was fighting with all his might, even after 45 years, and I'm sure he would still be doing so after 50 if he had lived. What a special man.

Replacing Senators

Last week, Senator Ted Kennedy asked Massachusetts lawmakers to change the law governing U.S. Senate vacancies from that state. Currently, Massachusetts law provides that Senate vacancies can be filled only by special election, to be held no earlier than 145 days and no later than 160 days after the vacancy occurs. Kennedy, who is in poor health, is concerned that his death would therefore leave Massachusetts with only one Senator for at least five months -- and those months could contain crucial votes on health care reform, which is one of Kennedy's lifelong passions. So he suggests that the Massachusetts legislature change the law to permit the Governor to fill the vacancy until the special election can occur.

Today the New York Times weighs in against Kennedy's proposal. The Times observes that Senate seats should be filled democratically, not through patronage. Too many Senators, the Times correctly points out, are currently appointed, not elected, because of the departure of many Senators for administration posts (starting, of course, with the President and Vice President). The Times supports altering the Constitution to require that all Senate vacancies be filled by election rather than by appointment (currently, the Seventeenth Amendment leaves this choice up to each state) and opposes Kennedy's proposal.

The Times is wrong and Kennedy is right. The problem with the plethora of current appointed Senators is not the appointments per se, but the fact that so many of them were appointed to fill out the full remaining terms of the Senators who left. Because numerous Senators left for administration posts almost immediately after the 2008 election, their appointed replacements will serve for nearly two years before the voters get their say. That is bad. But it would also be bad to have Senate vacancies persist for months.

Senator Kennedy's proposal is not that the Massachusetts Governor be empowered to fill his seat until the 2010 elections, but only for the interim period -- 160 days at most -- before a special election could be held in accordance with state law. This reasonable compromise would assure the voters of a swift opportunity to choose their next Senator while also ensuring that they have a full complement of representation in the interim period.

The Times complains that the proposal would give the appointed replacement an unfair leg up in the special election. That's probably somewhat true, although the advantage of being a five-month incumbent wouldn't be as large as the advantage of a nearly two-year incumbency that many current appointed Senators will have. This small advantage seems a reasonable price to pay for the benefit of having proper Senate representation. (Kennedy suggests the Governor should appoint someone who promises not to run in the special election to avoid this problem.)

The Times also complains that Massachusetts created its special election law to prevent former Republican Governor Mitt Romney from having the power to replace John Kerry if he had won the presidency and that it would be unseemly to switch back now just because the current Governor, Deval Patrick, is a Democrat. Hey, that's just politics. Sometimes you to do the right thing for a crass reason.

Right to Bear Arms

Much brouhahaing lately about protestors bringing guns to anti-Obama or anti-Obama-policy events, including rallies near where the President is speaking.

I am put in mind of a 2001 episode in which the Secret Service detained a man for having a gun in a public park near where President Bush was jogging. It turns out the man had a permit for the gun and he was released.

But why was he detained at all? According to gun advocates -- including President Bush, who signed a law legalizing the carrying of concealed handguns as governor of Texas -- guns make us safer.

I guess there's a big difference between carrying guns near Republican Presidents and Democratic Presidents.

Economics Redux

I mentioned the other day that -- gasp! -- the free market does not perfectly regulate the salaries of executives at public companies, and I pointed out the error in a conservative pundit's analogy between executive salaries and baseball player salaries: the latter are determined by arm's-length negotiation; the former may be corrupted by market failure.

Today's piece by Adam Liptak in the NYT shows that Judge Posner agrees with me. Here's an excerpt from Posner's opinion (dissenting from denial of rehearing en banc) in a case challenging executive compensation:

"[E]xecutive compensation in large publicly traded firms often is excessive because of the feeble incentives of boards of directors to police compensation. . . . Directors are often CEOs of other companies and naturally think that CEOs should be well paid. And often they are picked by the CEO. Compensation consulting firms, which provide cover for generous compensation packages voted by boards of directors, have a conflict of interest because they are paid not only for their compensation advice but for other services to the firm--services for which they are hired by the officers whose compensation they advised on. Competition in product and capital markets can't be counted on to solve the problem because the same structure of incentives operates on all large corporations and similar entities."

Let's remember that Judge Posner is one of the leader's of the law-and-economics movement, and that, if anyone understands when the free market can be counted on to get something right without regulation and when it can't, it's him. Moreover, his dissenting opinion got five votes in the Seventh Circuit and the Supreme Court has just granted cert in the case.

Take that, Amity Shales.

Last Thoughts on the Birther Bill

As faithful readers know, I spend a fair amount of time thinking about and communicating with a group of odd people, namely, tax protestors. Some of them are crazy, some foolish, some gullible, some poorly educated, some not so bright, and some all of the above. But my experience with them gives me, perhaps, a little insight into the equally odd birthers.

Both groups share an ability to believe in bizarre, massive conspiracies. Many tax protestors think that thousands of government officials have, for decades, conspired to defraud the American people by lying to them about tax law. The number of people who would have to be in on this conspiracy makes the notion utterly fantastical, but that doesn't seem to bother the protestors. Similarly, birthers who believe that President Obama was not born in the United States are necessarily positing a pretty susbstantial coverup -- not as massive as the tax protestors' imagined conspiracy, perhaps, but there would still have to be quite a lot of people in on it.

The willingness to believe in the necessary conspiracy also seems to spring from deep-seated distrust of government. Tax protestors seem to feed off the notion that government is evil -- it's not uncommon to find that tax protestors also believe that the government was behind 9/11 or some similarly amazing theory. That makes them all the more willing to believe that it would lie about the obligation to pay income tax. Similarly, prominent Birther Philip Berg, who sued President Obama to demand release of his birth certificate, previously was plaintiff's counsel in a suit charging President Bush with responsibility for 9/11.

Finally, birthers, like tax protestors, are never satisfied. When you address a tax protestor's argument, they are never (or almost never) convinced that they have an obligation to pay taxes. Instead, they just switch to another, equally absurd argument, and to yet another argument when you address that one.

Birthers seem to exhibit a similar pattern. Whatever initial reason there might have been to inquire about the President's citizenship (his father was from Kenya), the inquiry should have been satisfied when Obama released his birth certificate during the presidential campaign. But birthers doubted the certificate's authenticity. So fact-checking organizations examined it extensively and determined that it is genuine.

No matter. Birthers still aren't satisfied, and my experience with tax protestors suggests that they never will be. They are demanding the alleged "vault copy" of the birth certificate, but if that is ever released, it still won't matter. They'll just find some other reason to maintain their doubts. It's not about the facts; it's about their distress that Obama won the election.

So Birther Bill or no Birther Bill, it won't make a difference. Birthers are entrenched in their position and are not susceptible to evidence.

More on the Birther Bill

In commenting yesterday that the Birther Bill is actually a good idea (and don't scoff until you've read my reasons), I neglected to mention that a still better idea would be to amend the Constitution to repeal the presidential eligibility requirements. If the people of the United States decide that we want a President who is foreign-born, or under 35, or who hasn't lived here for very long, that should be our choice. I suppose it makes sense that the President should be required to be an U.S. citizen, but really, even that hardly needs to be a constitutional requirement. A noncitizen candidate would face such enormous natural resistance that, if he or she somehow managed to win the election, it would be an indicator that the candidate was so truly extraordinary that the American people determined that he or she should be President, alienage notwithstanding. If that's what the American people want, why should their choice be denied?

Similarly, it would be very tough for someone under 35 to win the presidency, but if they have such amazing qualities that they make it there anyway, it's hard to see why the public choice should be restrained. And the prohibition against naturalized citizens is somewhat offensive -- it might have seemed appropriate 200 years ago but today it smacks of unfair discrimination. It's almost un-American!

So the best solution to the "birther" madness would be to repeal the presidential eligibility requirements altogether.

(By the way, an amusing thing about the woman in the red dress in the birther video is that she doesn't even understand what she's upset about. She screams out that President Obama is not a U.S. citizen, thus showing her lack of comprehension of the point, which is that even though he is a U.S. citizen, he would be ineligible to be President if he were not a natural born citizen.)

Birther Bill

Today's Doonesbury cartoon calls attention to H.R. 1503, the "Birther Bill," which would require a presidential candidate's campaign committee to file with the FEC "a copy of the candidate's birth certificate, together with such other documentation as may be necessary to establish that the candidate meets the qualifications for eligibility to the Office of President under section 5 of article II of the Constitution."

The "birther" movement, for those who may be reading this blog from Mars, is made up of people who believe that President Obama is not a natural-born citizen of the United States and therefore is ineligible to be President. Although this view has been thoroughly refuted, an astonishing 58 percent of Republicans either believe Obama was born abroad or are not sure about it. H.R. 1503 seems to be a direct outgrowth of the birther movement.

Now, let's start with the obvious: the birther movement is crazy and has a lot of crazy people in it. This can be seen in the now-famous video of a birther at a congressman's town-hall meeting. The Birther Bill almost surely springs from bad motivations and is correctly perceived as a vexatious political ploy.

But having said that, I do try, in this blog, to rise at least somewhat above partisanship and political ploys and to view things from a neutral public policy perspective. Looking at the matter in that way as best I can, I have to say that, if we could just view the Birther Bill in a neutral, detached way, separated from the utterly absurd political movement that has given rise to it (which is admittedly difficult to do), we would see that it is a good idea.

I'm sure some people will recoil in horror, but consider the following propositions:

* The Constitution of the United States should be enforced;

* The Constitution requires the President to be a natural born citizen, to be at least 35 years of age, and to have been a resident of the United States for 14 years;

* There is a strong argument that only Congress, and not the courts, can enforce these presidential eligibility requirements, and that it is Congress's duty to do so at the time it counts the votes of the presidential electors in each presidential election; and

* Congress should have a reliable means of obtaining the information that would allow it to fulfill its duty to enforce the presidential eligibility requirements.

Does anyone disagree?

The Birther Bill, which would apply to presidential elections starting in 2012, seems like a plot to try to embarrass President Obama when he runs for re-election. But imagine that the bill had been proposed 50 years ago, or were proposed 50 years from now, in a context separated from any controversy about any particular candidate. I would find it hard to argue that Congress should not have reliable information that would allow it to fulfill its duty to enforce the Constitution.

It is, of course, unlikely that anyone would try to evade the constitutional presidential eligibility requirements, because it is so likely that such evasion would be exposed. So the requirements of the Birther Bill would protect only against a pretty remote contingency.

But on the other hand, it's not as though the requirements would be very costly or burdensome. President Obama, for example, has already posted a copy of his birth certificate online. The bill only requires "a copy of the candidate's birth certificate" (not the alleged "vault copy" that birthers hysterically insist is being withheld), so all he would need to do would be to file a similar copy with the FEC, together with proof that he's lived in the US for 14 years. (Indeed, if anybody would have had a hard time complying, it would have been John McCain, who would have had to file proof that he was a "natural born citizen" even though he was born in the Panama Canal Zone.)

So even though one might argue that the bill is unnecessary because it protects against something that probably won't happen, the thing would be pretty important if it did happen, and the cost of compliance with the bill's protections would be small.

So if the bill were not the outgrowth of a crazy, political, anti-Obama movement, I would find it hard to oppose. The only thing that makes it a problem is the political context, which is that the bill is an attempt to embarrass President Obama.

But really, I don't see how President Obama would in fact be embarrassed or hindered by the bill's requirements. It wouldn't require him to do anything more than he's done publicly already. If he is re-elected in 2012, I strongly doubt that Congress would find itself unsatisfied with the birth certificate he's already released. And even if I'm somehow wrong about that (let's imagine that the new Congress elected in 2012 is controlled by the most unreasonable, hardest of hardline Republicans), any Congress that was inclined to make trouble over compliance with the Birther Bill could make the same trouble over compliance with the Constitution whether or not the Birther Bill had been passed. So it really wouldn't add anything to whatever potential problem exists.

Part of the purpose of blogging (and of academia) is to challenge conventional wisdom and to look at things in a true and fair light. The birther movement is crazy, and the Birther Bill springs from crazy origins, but that does not by itself prove that the bill is a bad idea. In fact, the bill would promote reliable enforcement of the Constitution of the United States.

More Conservative Pundit Economics

As I have previously observed, conservative pundits seem to think they can fob us off with columns that contain the most elementary errors in economic analysis. I don't know whether they are fools, or whether they assume that we are fools.

The latest absurd column is from Amity Shales ("senior fellow in economic history at the Council on Foreign Relations"). Shales argues against pending legislative proposals that would regulate corporate executive pay. She claims that corporate pay shouldn't be any more subject to regulation than the pay of baseball players. Baseball players can make piles of money -- sometimes even when their team is doing badly as a whole -- and no one seems to mind. So, Shales argues, no one should mind when a corporate executive makes a pile of money, even if the company as a whole is doing badly.

Oh, for heaven's sake. This is an absurd analogy. A baseball player's salary is set in an arms-length negotiation with the team's management, and the team has every incentive to pay the player as little as possible. Most baseball teams are closely held (i.e., owned by one person or a small group), and the owners therefore have direct, personal, substantial incentives to hold salaries down as much as possible. So when a player gets what seems like a ridiculous salary (to someone earning ordinary amounts), we know at least that that salary was set in a real negotiation.

Corporate executive pay is different. It is subject to the vast "agency problem" that exists when ownership and control are separated. Public corporations are owned by huge numbers of shareholders, each of whom typically has only a small interest in the overall corporation. If the CEO puts his hand in the cookie jar and pays himself $10 million more than he really deserves, each shareholder might lose only a dollar or two. So the owners don't have the right incentives. It's not worth kicking up a big fuss to save yourself a dollar.

Of course, CEO pay has to be approved by a company's board of directors, and the directors of most public companies have delegated this task to a compensation committee that is supposed to protect the shareholders' interests. Probably this works well at some companies and not so well at others.

The point here is not that the legislative proposals for regulating corporate pay are a good idea. Maybe they are and maybe they aren't. Maybe the market for executive pay works well enough, despite the important agency problem, that regulating it would do more harm than good. Maybe it doesn't and we need legal regulation. I don't know. (For a good CRS study on the question, see here.)

But what I do know is that comparing executive pay to baseball players' pay while ignoring the agency problem that attaches to the former is a cheap and irresponsible debating trick. It's not an appropriate analogy.

Sheesh. First conservative pundits think we don't know about externalities and now they think we don't know about agency costs. And they bill themselves as economic experts!

Iqbal's Children

It didn't take long for the lower courts to start realizing the far-reaching implications of the Supreme Court's decision in Ashcroft v. Iqbal. The case didn't grab a lot of public attention -- it's about rules of pleading, which hardly make headlines -- although Adam Liptak had a good piece about it in the Times a couple of weeks ago. Yet this case is going to reverberate throughout the federal system and cause real change in litigation.

As I previously explained, the Iqbal decision reverses the longstanding principle that a plaintiff in a federal civil case need only provide a general notice of what the case is about in the complaint. Now, under Iqbal, the plaintiff is obliged to plead sufficient facts to convince the trial judge that the plaintiff's claim is "plausible." This fuzzy standard gives considerable discretion to trial judges to throw out cases they don't like. It also means that we're going to back to the old days when no one really knew what had to be in the complaint. Prior to Iqbal, I felt pretty confident that I could tell you whether a complaint was sufficient or not. Now I have no idea. We could easily spend the next 10 or 20 years figuring it out, which will mean endless amounts of time wasted on pleading battles.

This recent decision from an Ohio district court seems like a fair representation of the likely future. The plaintiff took an anti-convulsant drug called Trileptal manufactured by Novartis and subsequently suffered multiple complications including "multi-organ hypersensitivity." She sued Novartis. In her complaint, she alleged that the defendant's product was defective in design and that it caused her injuries. Those allegations would have been plainly sufficient under the old standards. But the judge dismissed the claim on the ground that the plaintiff had not pleaded enough facts to make the claim plausible. Instead, the court said, the plaintiff had "done nothing more than provide a formulaic recitation of the elements of a claim under the statute."

Sheesh. Under the old rules, a formulaic recitation of the elements of a claim was often the best way to plead something. You made a defective drug, I took it, it injured me. What more should you have to say to start a case? Do you need to know exactly how the drug was defective? Do you need to know the exact causal mechanism of the injury? And how exactly are you supposed to get this information? You can't just politely ask the defendant to open up its factory. That's why we have discovery -- to allow parties to get information out of their opponents that wont' be given up voluntarily.

Under the new regime, it seems like you have to have a whole lot of information that you can't realistically be expected to have before you start your case. If I take a drug and my liver fails the next day, I should at least have some mechanism available to get at the information that would allow me to determine whether the two events are related. If I can't sue, I can't employ discovery, and the drug manufacturer isn't going to be opening up its files just for the asking, that's for sure.

It looks like Iqbal is going to have a big impact. I can't actually guarantee that it won't be a good impact on balance -- that's an empirical question, and it's theoretically possible that the benefits (fewer settlements coerced by unworthy litigation, for example) will outweigh the costs. But I doubt it. We need better litigation procedures, but locking the courthouse doors based on information asymmetries doesn't seem like a good place to start.

Excellent Bridge

The National Bridge Championships ended yesterday, and Law Prof on the Loose was there most every day. Our best finishes included 14th out of 73 in an open team event on Wednesday (my best finish ever in an open, multi-session, Regional or National event, I believe), and 6th out of 69 in the B division of a team event on Sunday.

For some highlights of my bridge-playing exploits over the last week, see here.