The Law of the Land

January 6th, 2016

The Kim Davis saga has exposed a shocking misunderstanding of how the American legal system works. Congressman Thomas Massie of the 4th District of Kentucky said, “When Kim Davis refused to issue marriage licenses, did she break a state law or a federal law? If you think it’s a federal law, who wrote it? If it’s a state law, who wrote it?” The implication is that courts, including the Supreme Court, don’t make laws. This is incorrect. The United States has a common law legal system in which judges frequently make laws.

Most people think a law is a legal text and a binding rule that is written by and voted on by a legislative body, and then signed into law by the governor or president. Federal and state statutes are these kinds of laws, and this is what Congressman Massie is talking about.

But this isn’t the only kind of law in this country. The United States inherited our common law legal system from England, and in this system judges make laws. In Kentucky much of our contract law, property law, and tort law, are laws made by judges. In this system a judge would deal with an issue of first impression and craft a decision based on logic and general principles of fairness. Subsequent judges faced with a similar issue would read that opinion and apply it or modify the ruling based on different facts. This is known as deference to precedent. Over the years a consistent set of laws developed. Some people argue that these are “rules” not “laws,” but if you sue someone over a car wreck in Kentucky the court will apply the common law of torts to resolve your case.

To clarify the point a bit, there are two types of legal systems in the world, civil law systems and common law systems. In civil law systems legislative bodies make laws and courts simply apply the law. There is little or no discretion for courts in those countries. Most of the world uses the civil law legal system. The countries that don’t apply the “Anglo-American” common law legal system. This system was derived in England beginning in the 16th Century, and was adopted in this country by our nation’s founders, many of whom were trained as lawyers in the common law system. In a common law legal system there are two sources of “positive” or controlling law. One is statutory law, or laws written by legislative bodies. The other is case law, which is made by judges.

In the 1960’s, in frustration over certain Supreme Court decisions, like banning prayer in public school or granting the right to an abortion, conservatives started to say that judges shouldn’t “legislate from the bench.” This ignores the fact that the Supreme Court has been doing this since almost the beginning of our nation. In 1803 in the case of Marbury v. Madison the Court said, “It is emphatically the province and duty of the Judicial Department [the judiciary] to say what the law is.” This means that Supreme Court rulings are the law of the land.

Conservative act like this began in the 1960’s, but the Supreme Court has always been making laws. In fact, throughout the 1800’s the Supreme Court issued rulings that created a very pro-business, free-market commercial legal system that skewed the law in favor of commercial interests and against consumers. In Fletcher v. Peck in 1810, the Court said that a state could not enact a law that interfered with a contract between two parties. This ruling had far reaching impact and allowed corporations to evade a wide variety of state laws. This allowed corporations to run rough-shod over the people until the Supreme Court changed course in the 1930’s. In Home Building & Loan Assoc. v. Blaisdell, in 1934, the Supreme Court said that a bank’s mortgage contract with a home owner was subject to state mortgage laws. “Public needs” require the “reservation of the reasonable exercise of the proactive power of the State [to be] read into all contracts.” Today it is the law of the land that private contracts are subject to states and local laws.

So when the Supreme Court ruled earlier this year in Obergefell v. Hodges, that state bans on same-sex marriage are unconstitutional because they violate the 14th Amendment right to equal protection, the ruling invalidated those state bans. The Court also said that marriage is a fundamental right which must be afforded to all couples, both opposite and same-sex. This ruling is the law of the land, even though no state or Federal legislature voted on it. This is how the American legal system works.

Why Is the Free Market So Foul?

December 12th, 2015

Conservatives love the free market it theory, but hate it in practice.

Conservatives love the free market. That goes without saying. They complain about any government involvement in the economy, any regulation of business, and suggest that excess regulation is stifling the economy. And more often than not they say that the “free market” is the best solution to any public policy problem. Senator Rand Paul said the best way to fix health care is to “try freedom for a while. We had it for a long time. That’s where you sell something and I agree to buy it because I like it. That is how we operate in most of rest of the marketplace other than health care. … We could try freedom [in health care]. I think it might work. It works everywhere else.”

Former Presidential Candidate and publisher of Forbes Magazine, Steve Forbes has gone so far as to say that the free market is a moral system. “Free markets create goods by inciting human ingenuity to overcome obstacles and do business. … Free markets in the real world are a moral system. Think about it. To succeed in a true free market you have to meet the needs and wants of other people. Even if you lust for money, you don’t get it unless you provide something that somebody else wants.”

The basic theory of free and unregulated markets is that people, through free choice, will choose those things that are best for them, and through the cumulative effect of all of these millions of free choices, society will benefit. Adam Smith, the father of modern economics, called this “the invisible hand.” In the Wealth of Nations, Smith said that each individual “intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. … By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it.”

It’s a simple and elegant theory, and lies at the heart of the conservative idea of economic freedom. And in broad strokes the theory works. We now live in a world of vast abundance. The shelves of stores groan with consumer products, and we have so much food that we waste a huge amount of it. So, in some regards, we have a free market, and it works wonderfully. But the reality of the modern American economy is that every product from apples to Zyrtec is regulated, every industry from apple orchards to zoos, and every company from Apple Computer to the Zurich Financial Group is regulated, in one manner or another. The level of regulation varies dramatically. Drugs, like Zyrtec, are much more highly regulated than apples, and financial services are more regulated than personal computers. The level of regulation depends on the likelihood and potential for harm to the consumer. Conservatives complain about all of these regulations. They say that the free market is self-regulating, and the American economy will flourish if we just cut back on all of this regulation.

So are there any products without regulation? Is there any market where pure consumer choice controls the production, distribution and availability of goods? And if so, how does it work?

Well, yes, actually there is one free and totally unregulated market in the United States: that unregulated market is what we call the “culture.”

The “culture” is made up of a many components, including books, magazines, movies, music, television, and fashion. The “culture” also includes our collective sense of ourselves as a people. The First Amendment prevents the regulation of the distribution of ideas, which means that the content of movies, music, television, books, and magazines is unregulated. That may seem obvious, but it wasn’t always the case. Up until the 1950’s content was regulated. The main control were postal regulations that forbid the mailing of “obscene” material, and obscene was very broadly defined. This prevented the distribution of pornography, but also prevented the dissemination of some great works of literature, including An American Tragedy by Theodore Dreiser and Ulysses by James Joyce. That changed in 1959 when the publishers of Lady Chatterley’s Lover challenged these postal regulations, and won. The post office could no longer control the content of the mails and publishing changed. And then in 1973, in the case of Miller v. California, the Supreme Court struck down most restrictions on pornography. Not long thereafter the pornographic film Deep Throat was distributed nation-wide, and the multi-billion dollar American porn industry was born. According to some estimates, pornographic material – particularly images of people engaged in a wide variety of sexual activity – accounts for nearly a third of all content on the internet.

Now, in a very broad sense, the American “culture” is the freest and most unregulated market in the country. The clothes we wear, the films and television programs we watch, the music we listen to, are all the product of our own desires. Our culture is the product of nothing but the desires of the consuming public. There is no government control or outside oversight. The only driving force is demand and the profit motive. There is a demand, and someone creates a supply.

And what do conservatives think of this, the only truly free market in the nation? What do conservatives think of the culture? They hate it. W. James Antle III, an editor at conservative magazine The American Spectator, summed it up neatly: “The culture is awash in the raw sewage of vulgarity and avarice.” The director of a conservative policy group in Kentucky wrote a recent editorial about proposed legislation dealing with transgender students, which he said was a product of our “culture’s flirtation with narcissism.” So they seem to hate our culture in general, but what about specific aspects of that culture.

What has our free market culture produced? It has clearly produced books of great literary merit, and movies and music of enormous artistic achievement. It has produced television programs that are thoughtful, insightful, and informative. And then there’s the stuff that people actually buy.

Take music. The free market provides us with every type of music from Appalachian bluegrass to Zydeco, and everything in between. Music stores are largely a thing of the past, but you can download just about anything from iTunes or Spotify, and buy CD’s of every type from Amazon.com. Opera? Check. Classical? Absolutely. Bluegrass? Yep. Contemporary Christian, Indy Rock, smooth jazz? You name it, it’s all there. But what’s at the top? Schlock, nonsense pop, and thuggish rap. So what is the aggregate result of millions of free choices in music? Is it Yo Yo Ma, Winston Marsalis, or Cecilia Bartoli? Nope, it’s Justin Bieber, Kanye West and Miley Cyrus.

And what do conservatives think of the state of American music? Not much. Recently former Arkansas Governor (and former Fox News Commentator) Mike Huckabee criticized President Obama and his wife for allowing their daughters to listen to Beyoncé. Huckabee called Beyoncé’s lyrics “obnoxious and toxic mental poison” and called her husband, the rapper and promoter Jay Z, a “pimp … who exploits his wife.” Beyoncé’s music is wildly popular, but according to Huckabee it’s “mental poison.”

What about clothes. Just about everything is available in stores from bikinis to burkas. (Sorry I couldn’t pull off an “a to z” analogy, but this works better.) And what do people wear? Men wear pants down near their crotch, or t-shirts and oversized saggy shorts that make them look like enormous toddlers. Suits (and belts) are widely available, but few wear them. And women were yoga pants so tight it leaves little to the imagination. The general state of American fashion is pretty dismal.

And conservatives don’t like it one bit. Just recently a Republican state legislator in Montana wanted to ban yoga pants. Last year conservative lawmakers in Florida tried to ban saggy pants. Recently Fox News commentator Geraldo Rivera said saggy pants were holding back young urban blacks and Latinos.

TV? Two words summarize the state of American television. Sex Box. Have you heard of it? The title is pretty descriptive. A couple goes into a box, has sex, and comes out and talks about it with a panel of sex and relationship therapists who discuss the importance of sex in a relationship. So it’s educational. But one supposes the therapists could have the same discussion without the salacious aspect of showing the couple going into the box, and then waiting ten or fifteen minutes before they emerge in matching silk robes.

Conservatives are not amused. The president of “Concerned Women for America” and the director of the “Parents Television Council” took to Fox New to denounce it. “‘Sex Box’ should never see the light of day, or the night for that matter, on basic cable,” they said. “A live sex show is something that one might expect to find on a premium cable network. However, in an affront to all families, WEtv is bringing that content to basic cable and potentially exposing millions of children in the process.” This show, they said begs the question of how far the media will go to get ratings. … [the] immorality ends when the public, more specifically, the viewers say that they’ve had enough.”

So TV is a vast sewer. But we knew that already.

What about movies? Every year hundreds of well made, thoughtful and often moving movies are made in the English language. This year’s Oscars featured an interesting variety of artistic, historical, and even patriotic movies. But what dominated the box office? Hunger Games, Transformers, and the Lego Movie.

There’s no doubt that conservatives understand that the culture is driven by market forces. They embraced the movie American Sniper. For them the box office success of the movie was evidence that America was embracing their values. And when it didn’t win an Oscar they complained about liberal bias. Fox News commentator Sean Hannity tweeted during the Oscars: “AMERICAN Sniper snubbed by liberal hwood Predictable.”

Conservatives were less pleased when Fifty Shades of Grey moved into the top spot at the box office. Conservative commentator Brent Bozell said: “Here’s one obvious sign that we live in a profane world. ‘Fifty Shades of Grey,’ the ‘mommy-porn’ book turned into a movie, complete with its whips and chains and erotic punishment, debuted to far less controversy than “The Passion of the Christ” in 2004.”

Whether it’s hard core pornography, misogynistic rap music, moronic movies, a “liberal” media, or television shows disdainful of religion, tradition, morality and family values: all of these exist because of the demands of the American people. The culture is a perfect free market, and it’s a sewer.
Make no mistake; the free market didn’t debase the American culture. The free market simply gave the American consumer a cornucopia of entertainment options. We debased the culture on our own.

So the only truly free market in the country is “awash in the raw sewage of vulgarity” and proves that “we live in a profane world.” What does this say about free markets? What does this say about the idea that the collective action of millions of choices will produce a socially beneficial result? I would say that the culture is pretty clear proof that the idea of an invisible hand guiding individual choices to create a beneficial social outcome is fallacious, at best. The invisible hand, which is supposed to guide free exchange based on supply, demand, and the profit motive to produce socially beneficial outcomes, has slapped conservatives in the face.

So conservatives love the free market, in the abstract at least, but they hate the only truly free and unregulated market in the country.

Christ and Homosexuality

December 11th, 2015

I’ll admit homosexuality is an affront to Christianity if someone can show me where Christ condemns it. Some “Christians” claim that homosexuality is a sin and point to Leviticus in the Old Testament (Lev. 18:22, 20:13), and Romans (Rom 1:25-27) and Corinthians (1 Corr. 6:9-10) in the New Testament. But they never mention Christ or what he thought of homosexuality. The obvious reason is that Christ never mentioned or condemned it. There’s no doubt Jesus was familiar with homosexuality since it’s mentioned in the Old Testament and his contemporary Paul discussed it. But Jesus never mentioned it. Not once. Not even in passing.

Is there a way, based on the Gospels, to determine what Jesus might have thought about homosexuality? One way may be to look at how he dealt with issue of “sexual immorality,” which is often discussed along with homosexuality. In Paul’s condemnations, for example, homosexuality is mentioned with other types of sexual immorality, so the issues are closely related. So how did Jesus deal with these issues?

Christ addressed the issue twice in the Gospels. In Luke, Jesus is eating with a group of Pharisees and a woman comes and washes his feet. The woman is described as having lived a “sinful life” and one of the Pharisees asks Jesus if he knows what kind of woman she is. Jesus responded by saying that she has shown what kind of woman she is by the love she has shown by washing his feet. Because of this “her many sins have been forgiven.” (Luke 7:44-48).

The second story is one of the most famous in the Bible, from the Gospel of John. Jesus is teaching at the Temple in Jerusalem and a group of Pharisees come to him with a women “caught in adultery.” They say that “the Law [of Moses] commanded us to stone such women. Now what do you say?” Many Biblical scholars contend that this was a trick to get Jesus to explicitly contradict the teachings of the Law of Moses. But Jesus doesn’t, he makes an end run: “Let any one of you who is without sin,” he says, “be the first to throw a stone at her.” (John 8:3-11) No one does, and he forgives the woman and tells her to leave her life of sin.

In both situations Jesus noted that these women have sinned, but then ignored Old Testament rules on sexual morality, he also implicitly ridiculed those being judgmental and applying a strict interpretation of Biblical teaching.

Does this mean that Jesus was specifically rejecting Old Testament teachings regarding sexual immorality? The Pharisees at the Temple seemed to think he was. Why would they think that? Was it because he’d done it before? Are there other examples where Christ’s teachings contradict the Old Testament?

In the Sermon on the Mount, Jesus said he wouldn’t change a “jot or a tittle” of the Law of Moses, “so long as heaven and earth endures.” (Matt. 5:18). That’s a pretty clear endorsement of Old Testament teaching. But then he seems to reject the Law in a number of situations. Later in the Sermon on the Mount (Matt. 5:31-32) he rejects Old Testament teaching on divorce (Deut. 24:1), and harsh punishment. “You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ (Ex. 21:24.) But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also.” (Matt. 5:38). An “eye for an eye” is from the Law of Moses (Ex. 21:24), and here Jesus says to ignore it.

In other stories elsewhere in the Gospels, Christ rejected the rules on ritual cleaning before eating (the rule is in Lev. 15:11, and the rejection in Matt. 15:11), and on working on the Sabbath. Jesus said “The Sabbath was made for man, not man for the Sabbath” (Mark 2:27). The prohibition on working on the Sabbath isn’t just one of a laundry list of rules set out in Leviticus, it’s one of the Ten Commandment: “Remember the Sabbath day, to keep in holy. Six days you shall labor and do all your work, but the seventh day is the Sabbath of the Lord your God.” (Ex. 20:8-11).

So on at least six occasions Jesus ignored, contradicted, or rejected lessons from the Old Testament. In each case he rejected what could be considered a harsh, rigid, and often cruel rule, in favor of forgiveness and tolerance.

It’s notable that Jesus even takes issue with one of the Ten Commandments. Not only did he reject that commandment, he created a New Commandment. At the Last Supper Jesus said: “A new commandment I give you, that you love one another. As I have loved you, so you must love one another. By this everyone will know that you are my disciples, if you love one another.” (John 13:34-35.)

This “New Commandment” seems to offer some explanation of Christ’s approach to the Old Testament. In most of the cases noted above, Jesus has reinterpreted Old Testament teachings through the lens of his New Commandment. It is clear that He applied this lesson to the two women accused of adultery, so it hardly seems illogical that he would have applied it to questions regarding homosexuality.

Let’s be clear: Jesus never condemned homosexuality. In fact he never even mentions it. Let’s also be clear: when confronted with questions of sexual morality, Jesus ridiculed the accusers and forgave the accused.

Given that clear record, I find it impossible to believe that Jesus would agree with most modern Christians. In fact, I wouldn’t be surprised if he ridiculed them, as he did the Pharisees. He might even question their claims to be disciple, particularly when they so clearly are unable to “love one another.”

The Myopic Chords Of Memory

December 9th, 2015

We all have a tendency to believe that if something was there when we were a kid it has always been there. That creepy house down the street, the one we were scarred of when we were kids, undoubtedly scared our parents and grandparents in their day. It is an interesting trick of the mind, and an interesting trick of history.

But here’s the thing, some people know it. Some people know that if they put up a statue today, or adopt a slogan, future generations will assume that statue or slogan has always been there.

Here’s a good example. The words “In God We Trust” were first placed on American money in 1864, and adopted as the nation’s official motto in 1956. Despite this many politicians wrongfully claim that the motto dates back to the nation’s founding. For example Republican Presidential candidate Ben Carson has said that “’In God We Trust’ is in our founding documents, … its on our money,” therefore we are a Christian nation. Carson, and many other politicians, is able to get away with saying these because most people assume that since the phrase is on our money it has always been on our money. As noted it has not. In fact the first coin printed in the new nation, the “Fugio” penny had the motto “We Are One” on one side, and “Mind Your Business” on the other.

The Christian groups that pressed Lincoln to put “In God We Trust” on money know that future generations would assume that the phrase had always been there.

Many cities are currently debating the presence and placement of statues honoring confederate soldiers. For example there is a statue of the Confederate General, and notorious “Raider,” John Hunt Morgan in a prominent downtown square in Lexington. Many people suggest that Morgan was a notorious racists and advocate of slavery and the Confederacy and should not have a place of honor in the city. Others predictably argue that the statue is part of our history. This of course suggests that the statue has probably always been there. In fact it was erected in 1911.
Another common historical fallacy is that our fore-fathers were wise and even-handed. Many long for the “good old days” when our politicians were honest and honorable. Of course anyone who reads history knows that this is hokum. Politicians throughout history have been petty and self-serving. Our ancestors were no less venal than we are.

The Christian leaders that pressured Abraham Lincoln to put the phrase “In God We Trust” on money were trying to make a political point, and the same holds true for the Christian leaders who pressured Congress to make the phrase the national motto in the 1950’s. This is also true of those who placed Confederate statues across the South.

Many of the statues of Confederate generals that are in town squares across the south were placed in the early 1900’s by the United Daughters of the Confederacy. Almost as soon as the guns fell silent after Robert E. Lee surrendered at Appomattox Courthouse, southern writers began to spread the myth of the “Lost Cause,” and the idea that the Civil War had not been about slavery. It was a wonderful and largely successful bit of revisionist history. Novels and plays were written celebrating the daring-do of dashing young cavaliers fighting to preserve the honor and way of life of the south. (If that sounds like something out of “Gone With The Wind” it’s because that novel was one of the last, but also one of the most successful, examples of this genre.)

The United Daughters of the Confederacy was one of the leading organizations spreading this nonsense. Their chosen medium was celebratory statuary honoring local confederate heroes. In 1911 the Daughters erected the statue of John Hunt Morgan in Lexington.

Morgan was a Confederate office and most famous for his “raid” into the Union states of Indiana and Ohio. Morgan’s Raiders bravely battled the young boys and old men of the Indiana and Ohio Home Guard, and raided city and county treasuries. Morgan’s main objective was to terrorize the citizens of the north. He was briefly successful, but was eventually caught. He escaped and returned to fight but was killed in battle in Tennessee in 1864. The best part, the raid was unsanctioned by the Confederacy and in direct violation of orders from Morgan’s commander, General Braxton Bragg. For this dubious record he is honored outside of the historic Old Courthouse in Lexington.

The statue remains because it is old and we assume that it was placed their for the noblest of reasons, and not to glorify a scoundrel fighting for a rightfully lost cause.

Technology Drives Wealth Up

November 18th, 2015

Throughout history technological changes have driven the distribution of wealth upward. What I mean by this is that new technologies often displace lower skilled workers and put more money in the hands of the owners of business, or what Marx called “the means of production.” Here are a couple of examples.

Once upon a time farms employed many dozens, if not hundreds, of people. Animals required care, fields had to be prepared, crops planted and tended, and then harvested. It typically took dozens of people to reap and gather a harvest on just a few acres of land. Until about 1870 a majority of Americans lived and worked on farms, and this was probably the norm across the world. But then farms began to use machinery, at first horse drawn threshers and reapers, but then mechanical tractors, and more and more things became automated. Agricultural employment decline inversely as automation increased. Today farms employ very few people. Most farmers operate huge complex combines that can till the fields and plant the crops in the spring, spread fertilizer and pesticides in the early summer, and harvest the crops in the fall. (I’m talking hear of the large agribusinesses that I grew up around in central Illinois.)

Once upon a time the farmer had to share part of the proceeds from the sale of crops with all the people who worked on the farm. But now the farmer gains all the income from farming and doesn’t have to share with “field hands.” This is not to say that farmers are getting rich, because they still have to pay for equipment, and farming is notoriously fickle and weather dependent. But my point is that money from farming is no longer shared among the farmer and many workers. It all stays in the farmer’s pocket. So the technological change has shifted the money generated from farming up.
Another more recent example – and one that I have personal experience with – involves lawyers and legal secretaries. When I began practicing law virtually every lawyer had a secretary. A lawyer would typically draft a document by hand on a legal pad and give it to the secretary to type. He would then review and revise the document and send it back for final editing. The law is very word and writing intensive, so secretaries were vital to the success of a law firm. Many large firms had more secretaries than lawyers. I worked at a large Seattle law firm where each attorney had a secretary, each section had a secretary, and there was both a day and night secretarial pool. I would estimate that there were just over twice as many secretaries as lawyers.

I began practicing law in the mid 1990’s, just as personal computers came into widespread use. All of my fellow law students used computers and did their own typing. When they got jobs they didn’t have the same need for a legal secretary as an older attorney. And so law firms began to trim secretarial staff. Now it’s common for one secretary to work for two or three attorneys, and they are now called a legal assistant since they no longer spend much time typing. According to one report I found, the legal secretary market has decline by about 10% per year since the mid-1990’s.
Now lawyers do all their own typing and don’t have legal secretaries. They have been replaced by Microsoft Word. And lawyers no longer have to share the money they get from a client with a legal secretary. Granted they have to buy a computer and software, but that’s a fraction of the cost of a legal secretary. So more of the money received from a case or a client goes to the lawyer than the staff. So the wealth accumulation shifts upward. According to studies, lawyer income has been increasing steadily since the late 1990’s.

My final example involved large scale industrial manufacturing, like making cars. There was a Jeep TV commercial from a few years back (I think it was shown during the Super Bowl) that began by showing jeeps being made during World War Two. The factory floor is covered with people, bolting and welding parts onto the vehicle on the assembly line. The ad then shows some scenes with jeeps over the years, then shows the exact same plant, outside of Toledo Ohio, where Jeeps are made today. There are a number of huge industrial robots, but not a single person in view. American automakers make roughly the same number of cars they did in 1950, but with a fraction of the workforce. There are fewer line workers, so more of the money received from each vehicle goes to people further up the line in the company. This is a trend that has played out across the manufacturing sector. Improved automation has been going on for years, but accelerated in the 1980’s with the increased use of industrial computers and robots, and the trend has only accelerated with improved computers and industrial machinery.

In the United States real wages have been stagnant since the late 1970’s, while corporate profits have grown, reaching near record highs in the last decade. One is clearly a product of the other. Fewer workers mean higher income up the corporate ladder, and more profits for shareholders.
The common counter argument is that when one industry fades another takes its place. When, for example, cars replaced horses, far more jobs were created than were lost. People lost jobs working in stables, but new jobs were created in auto plants and auto repair shops. In fact there were probably far more new jobs dealing with cars then old jobs dealing with horses. But there are two things to consider. The first is that there is a time shift. A worker who loses a job in a stable doesn’t walk down to the auto assembly line the next day and take a new job. (A few might, but most won’t.) Second, and perhaps more important, many of the new jobs are at a different skill level than the old jobs, typically a higher skill level. A car mechanic is far more skilled than a stable boy. And not every stable boy can master the skills of an auto mechanic. So everyone who loses their jobs might not find a comparable new job.

Similarly, people argue that as computer programs replaced secretaries, clerks, and bookkeepers, new jobs were created for programmers. But a computer programmer is at a much different skill level than a secretary, book-keeper or clerk. And unlike the transition from horse to cars, only a few hundred computer programmers created software that eliminated millions of secretarial jobs. So even those legal secretaries with the skills to become programmers could not find new jobs in that field.

This trend raises a number of very interesting questions, which I will raise here, and hopefully answer later.

What happens if this trend continues? Will it mean the “end of work” for millions of people? And what to do with those people who are displaced by technology and can’t find new jobs?

What does this mean for income inequality? This trend continues to drive wealth up, further exacerbating income inequality. Is there a point where there needs to be structural changes to deal with this?

I hope to answer these and other question sin the near future. Stay tuned.

The Marbella Index

November 18th, 2015

One of the most common words used by the Republican presidential candidates during the recent debates was “freedom.” They all believe in “freedom.” They want to preserve and protect American’s “freedom.” Freedom, Freedom, FREEDOM!!!

OK, I get it. But they never really explain what that means. What are they talking about when they say freedom? Based on other things they talk about, I think they mean the ability to do whatever you want. You are free when you can do what you want.

If this is what it means to be free, who is free? Who in this world can do what they want?

To understand this kind of freedom I apply what I call the Marbella Index. For those who don’t know, Marbella is a resort on the Spanish Mediterranean coast. It is frequented by rich Russian plutocrats, and tourists from across Europe, though mostly Germans and Scandinavians. The beaches are frequented by overfed Swedes and Germans in tiny speedos sporting their national flag, their Teutonic paunches drooping over skin tight lycra.

In Russia, to be truly free, you have to be a former communist party member, or now the son of a former party member, who got a slightly nefarious deal on a company during the early years of the first Putin administration.

In the rest of Europe all you need is a job, and you have a pretty decent wage and lots of vacation time. France is even famous for its vacation time. There are plenty of beaches on the French Mediterranean, so you don’t see many in Spain. But Germans and Scandinavians flock to Marbella, as well as beaches and resorts around the Mediterranean, from Spain to Turkey across the northern coast, and from Morocco to Egypt on the southern coast (though Islamic extremist and political instability are making those resorts far less popular).

In fact, if you go to fancy resorts around the world the people you see most frequently are Europeans, along with plenty of Australians and a surprising number of New Zealanders. This makes sense around the Mediterranean since it is close to the rest of Europe. But it is surprisingly true throughout the Caribbean, the Pacific and the Indian Ocean, which are all far from Europe. There are plenty of American at Caribbean resorts, but you are just as likely to hear French or German as English. And you’re just as likely to hear that English with a British or Australian accent as an American accent.

I know people will argue that there are so many resorts in the United States that most Americans stay home, and that is certainly true. But Brits go to Bristol, and Germans ski in Bavaria. But the beaches of the world are full of middle class Europeans.

So based on the Marbella Index it’s the Europeans who are the freest people on earth.

The Extent of Our Control

November 1st, 2015

We are all dust motes, floating through the air, buffeted by forces far far beyond our control. But as human beings we don’t want to believe it. We want to believe that we have some degree of control over our lives and the world we live in.

I thought about this as I watched the most recent Republican Presidential debate. They were talking about the economy and about how their plans would revive the economy. I’ve listened to politicians most of my adult life talk about how their policies will impact the economy, and I’ve spend as much time watching and wondering at how little impact government policy has on the economy. In the last six years or so we have heard Republican politicians confidentially claim that the health care reform law known as Obamacare was going to stifle job creation and crater the economy. It flat out didn’t happen. And it didn’t happen because government policies like that have only marginal impact on the economy. They do have some impact, but it is never as much as most politicians say.

The reality is that government policies have surprisingly little impact on our day to day lives. There are certainly some cases where government policy does have a major impact. If you are gay you were denied the right to marry until the recent Supreme Court decision. Now you can marry. That is a significant impact on the lives and happiness of a great many people. But the other reality is that if you are not gay the Supreme Court ruling has no impact on your life.

The reality is that the world is a big complex place with lots and lots of moving parts. The government can have an impact in certain areas, but a great deal of those moving parts keep moving without, or perhaps even in spite of, government action. The economy is made up of millions of consumers buying things and millions (or perhaps only hundreds of thousands) of businesses making and selling things. Government rules can have an impact, but the reality is that things keep getting made and bought because people want things.

The American consumer economy is a vast chaotic place. Products come and go, fads come and go, tastes changes. The ideas of a few tech geeks can have a greater impact on our lives that the ideas of the world’s most powerful politicians.

When I began my legal career most attorneys had their own secretary, and large firms actually had secretarial pools of secretaries. Now they don’t. Most law firms have a few secretaries/legal assistants assigned to each section. I would hazard a guess that in the last twenty years the legal market has eliminated a couple of million legal secretaries. Why? Computers and word processing software. Most attorneys now do their own writing, on their own computers. They no longer draft a letter or memorandum by hand then have a secretary type it up, then review it, etc, until the final product is produced. Attorney’s now do it all themselves. Bill Gates and Paul Allen had a greater impact on the American workplace that every politician and every law since the popularization of the personal computer and word processing software.

Most of us realize, deep in the pit of our stomach, that we have almost no control over the world we live in. We are buffeted by eddies and currents, tides and winds. Apple unveils a new phone and our world changes yet again. It is a disquieting feeling. And, in my opinion it is getting worse. We all know that the industry in which we work can change overnight. Some computer geek in Silicon Valley can create a new program that will make our job obsolete. Secretaries have been replaced by computers, factory workers have been replaced by industrial robots. Amazon is talking about shipping packages by drone, which will eliminate the jobs of thousands, if not tens or hundreds of thousands, of delivery drivers. Welcome to the brave new word.

It’s a new world and we don’t like it one bit. We want to feel like we have some control over our lives. And the one place where we do have some control is over our government. We elect the people that run our government. Our votes control who is President and who is in Congress. So we, to some degree, do control the government.

But, here’s the thing, the government doesn’t really have as much control over things as we would like to think. If Amazon decides to ship by drone, no government policy will save those delivery jobs. Just like no government policy can save those factory jobs replaced by industrial robots, or those secretarial jobs replaced by Microsoft Word. Or, quite frankly, those retail jobs replaced by internet retailers like Amazon. But we don’t like that, so we lash out at the one place where we do have some control, which is the government. We are mad at government for not protecting us from a changing world. But the government can’t do anything, because the government did not cause those changes. And so our anger gets deeper and deeper.

NRA Calls Americans Most Murderous People on Earth

October 4th, 2015

The bumper sticker says “Guns Don’t Kill People, People Kill People.” This implies that if a gun is not available a person with murderous intent will find another way to kill.

It’s absolutely true that people kill with things other than guns. In 2013, for example, there were 16,121 murders in the U.S., 11,208 with guns. This leaves just under 5000 murders by other means. According to the FBI the most common method other than firearms, are a knife or blunt object, or other non-personal weapon which includes drowning, strangulation and throwing out of a window. CDC numbers on Homicides.

On average, over the last ten years or so, there are roughly 15,000 murders in the U.S. each year. Of those, roughly 10,000 are with guns, and 5,000 with other methods. I should note that guns kill roughly 30,000 people each year. The vast majority are suicides, at about 19,000 per year. Accidental gun deaths account from roughly 500 to 1000 per year. CDC data on Gun deaths.

The question is whether all those murders who use guns would switch to something else, something a bit messier, like a knife or a tire iron. It is certainly possible.

I will admit that some people want to kill and they succeed. I’ll admit that some of those people will kill with guns, and if a gun is not available, they will kill with another weapon. Murder, unfortunately, is part of human nature.

In general, if you take account of environmental factors, human nature is pretty uniform around the world. Humans are all the same species, and act in remarkably similar ways in every society on earth. And some of those people are killers. Statistically the murder rate should be fairly stable around the world, excepting certain environmental factors, like wars or other forms of social chaos. And, in fact, the countries with extremely high murder rates, like Honduras and El Salvador, are in the midst of economic and political chaos. UN Global Study on Homicide.

The murder rate in the U.S., therefore, should be roughly the same as the murder rate in other similar countries, like those in Europe, Canada, and Australia. But it isn’t. The United States has one of the highest murder rates among developed nations. According to data from the UN, the murder rate in the US is roughly 5.0 per 100,000 people. The average for developed countries is around 1.3 per 100,000. This makes the U.S. roughly 3.5 times more murderous. Data from the Worldbank   UN Data on homicides. Here’s an interesting chart from Slate.  Justice Department Statistics

Now consider the weapon used to kill in the U.S. Guns kill roughly 10,000 people per years, and other weapons kill about 5,000. If you factor out the gun killings in the U.S., the murder rate drops by two-thirds, and puts us at roughly the same murder rate in the rest of the developed world.

The multiplier is guns. The other possible explanations are that we are in the midst of a civil war or Third World levels of social chaos, or Americans are simply more violent than other human beings. We aren’t in a civil war, and according to the NRA the problem can’t be guns.

The only way for the bumper logic to work is if Americans are simply more murderous that any other people on earth. So the NRA is saying that Americans are the most murderous people on earth.

By the way, the common Republican talking point that the issue is mental health and not guns only works if Americans are three times crazier than anyone else on earth. Well, they may be right about that one.

Same-Sex Marriage, The Sixth Circuit, and the Supreme Court

April 28th, 2015

[Note: This was submitted to the Lexington Herald Leader, but not published.]

The Supreme Court will hear oral arguments in the cases dealing with state restrictions on same sex marriage on April 28, and will most likely issue a ruling by the end of the term in June. It’s widely assumed that they’ll rule that the bans on same-sex marriage are unconstitutional, and hold that people have a constitutional right to marry whoever they please.

Four U.S. Circuit Courts have found these bans unconstitutional. One, the Sixth Circuit which covers Kentucky, has upheld their constitutionality. Unfortunately the Herald-Leader seems to imply that there’s a chance the Supreme Court will side with the Sixth Circuit. That is highly unlikely.
The reason is that the Sixth Circuit ruled on a technicality and never addressed the substance of the issue. The Sixth Circuit relied on a 1972 Supreme Court case called Baker v. Nelson, which was a one sentence decision holding that the issue of same-sex marriage didn’t raise a federal question. Because of this scant precedent, the Sixth Circuit said it didn’t have the authority to address the issue. The problem is that Congress made same-sex marriage a federal issue when it enacted the Defense of Marriage Act (DOMA) in 1996, and the Supreme Court tacitly overturned Baker when it struck down DOMA in 2013.

The four other Federal Appeals Courts that struck down bans on same-sex marriage did so with lengthy rulings that addressed, and rejected, most of the arguments in support of the bans. Every court, including the four Circuit courts and dozens of District Courts, that has found the bans unconstitutional have applied the same reasoning. Such bans violate the Due Process clause of the Fifth Amendment, which states that “no person shall … be deprived of … liberty … without due process of law,” and the Equal Protection clause of the Fourteenth Amendment, which says that no State shall “deny to any person … equal protection of the laws.”

It’s a simple and compelling argument. If the state allows one group of people to marry, the equal protection clause says that they have to allow all groups to marry. However, the Due Process clause says that the government can deny rights to certain groups with “due process of law.” If the right involved is a fundamental right then the state must have a compelling reason and any restriction must be narrowly tailored to achieve the state’s compelling purpose.

Opponents of gay marriage say that states have a compelling interest in protecting families, children, and “traditional marriage.” The Fourth, Seventh, Ninth, and Tenth Circuits all considered these arguments and found them wanting.

The Seventh Circuit focused on the idea of “traditional marriage” and found that tradition was not a compelling justification for denying people their rights. The Ninth Circuit analyzed the argument that marriage is about procreation, and found this argument unpersuasive because, in part, many marriages don’t produce children, and many children are born outside of marriage. The Eleventh Circuit analyzed the question of child rearing and found no compelling difference between opposite-sex and same-sex parents. The Fourth Circuit compared the restrictions on same-sex marriage to the odious restrictions on interracial marriage that were struck down in the 1960’s. The same specious arguments were used then, and are equally invalid now. Each of these decisions relies on lengthy historical and legal analysis, and copious and detailed factual studies.

So as the Supreme Court takes up the issue of same-sex marriage it will ignore the Sixth Circuit’s ruling as irrelevant. The Court will then consider the substance of the underlying Due Process and Equal Protection issues, and will rely on the detailed and thoughtful analysis of the other four Circuit Courts. It seems likely that the Supreme Court will decide, as has every court that has honestly evaluated these issues, that there is no compelling justification for banning same-sex marriage.

Hayek In the Rear View Mirror

February 16th, 2015

Friedrich Hayek is one of the patron saints of modern libertarianism. He wrote a book in 1944, called The Road to Serfdom, that predicted that western societies were going to fall sway to totalitarianism. He said that any level of economic planning would not work and so would require greater and greater government control, until inevitably, the government would completely take over.

It is a theory that is profoundly wrong, as even the most casual observation of the events since World War Two show, but one that still drives a great deal of modern conservative politics. Both Rand Paul and Paul Ryan are fans of Hayek, and both have stated that any government involvement in the economy is doomed to fail.

I analyzed this topic from the book in some detail in a recent article in Alternet. My title was Hayek in the Rear View Mirror, but they changed it to: Big Economic Theory Underpinning Libertarian Economics Is Total Baloney. Their title is more to the point, but mine was more poetic.