Liberty Law Blog

A Progressive Mr. Smith Goes to Washington

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On Monday, The New York Times published “A New Way to Rein In Fat Cats,” an op-ed advocating an action so obviously foolish with such frivolous arguments that it is extraordinary that the paper of record thought it fit to print. Sadly, it may well be a harbinger of the direction of progressivism today.

In “Fat Cats,” Douglas Smith argues that the President should issue an executive order governing the ratio of compensation paid to the highest-paid executive relative to the lowest-paid employee in companies that contract with the federal government. According to Mr. Smith’s calculations, the ratio should not exceed the ratio of the President’s salary to the annual income of an employee earning the minimum wage.

Smith’s comparison of the President’s salary to those of highly paid executives is simply fatuous. Any President can enjoy an enormous income stream for years after holding the highest office of the land by virtue of having held that office. Look at Bill Clinton.  Moreover, the President’s current annual salary – $400,000 – does not count perquisites of the office, such as residence in the White House and the use of Air Force One. These benefits dwarf those of any company’s chief executive. Most importantly, the President enjoys enormous non-monetary benefits that are not available in other jobs—the chance to move the nation toward one’s political ideals for human welfare and earn a place in American history, to name just a few. Certainly I would be delighted to be President for a twentieth of the salary currently paid, and I am sure that is true of thousands, if not hundreds of thousands of other people.

His leading argument for his proposal is that “it is our money after all.” Continue Reading →

A Record Year for Exonerations

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I knew that there was a lot of stories on persons wrongfully convicted of crimes (as I said in this post). Now it is confirmed:

The number of exonerations in the United States of those wrongly convicted of a crime increased to a record 87 during 2013, and of that number, nearly one in five had initially pleaded guilty to charges filed against them, according to a report to be released on Tuesday as part of a project led by two university law schools.

The report, which I skimmed, is interesting. It discusses the causes of the exonerations:

For all exonerations, the most common causal factors that we have identified are: perjury or false accusation (56%); official misconduct (46%); and mistaken eyewitness identification (38%).

And this:

For homicide exonerations, the leading cause of false conviction is perjury or false accusations, mostly deliberate misidentifications. Homicide cases also include a high rate of official misconduct, and 75% of all false confessions in the database.

The great majority of sexual assault and robbery exonerations include mistaken eyewitness identifications, mostly by the victims. Many sexual assault cases also include bad forensic evidence.

All of this is fascinating. But one aspect of the article and report is worthy of mention: the article and report treat these cases as exonerations. But these cases do not necessarily involve convicted persons who were innocent. Rather, the report often includes cases where there was enough new evidence to vacate the conviction and the prosecutors decided not to have a new trial. Typically, this means that there was some mistake at the original trial, but it does not prove that the person is innocent. Still, if the defendant’s trial was seriously faulty, it is appropriate to vacate it and that may lead to release.

Posner’s Tyranny of Expertise

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Richard A. Posner has been called his generation’s “Tenth Justice,” a judge like Learned Hand or Henry Friendly whose prolific intellect and erudite jurisprudence rank him in quality and influence among members of the Supreme Court despite never having sat alongside them.[1] Readers of Posner’s new book, Reflections on Judging, may both concur in his ranking as tenth and be grateful that he stayed that way. Continue Reading →

The FDA and Multiple Sclerosis

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Sadly, there is more blood on the hands of the FDA. Its as if these people care only about their regulatory program rather than the lives and health of people. Of course, that couldn’t be – that would be unspeakable.

The Wall Street Journal has a piece on a drug that is capable of dramatically helping some people with multiple sclerosis. The drug has been approved in “30 countries, including Canada, Australia and all members of the European Union. But on Dec. 27, Food and Drug Administration reviewers at the division level (subject to a final decision by top officials) rejected an application to use the drug here to combat MS.” Sadly, the division level reviewers are rarely if ever overruled.

Why did the FDA lords refuse to approve the drug?

The primary reason FDA reviewers gave for rejecting Lemtrada was that the studies demonstrating the drug’s efficacy did not conform to the agency’s standard requirement of double-blind, placebo-controlled drug trials—where some patients, unbeknownst to themselves and their doctors, receive placebo treatments. There are excellent reasons for the standard approach, but only up to a point. Lemtrada and many established MS treatments have immediate side effects, such as nausea and headaches, that are well known to doctors and patients. A double-blind trial would not really be blind. Patients on a placebo would promptly discover that they were the “controls,” and many would decline to participate further—scrambling the statistical comparison with patients receiving real treatments.

The article continues:

For Lemtrada, the FDA reviewers announced that the trials were not “adequate and well-controlled.” They are now demanding another round of trials, with somewhat different procedures, that would take years and cost at least $100 million. Given the magnitude of the results of the already completed trials, the additional trials could add nothing to answering the regulatory question of whether Lemtrada is suitable for clinical use against MS.

If one of my family member needed this drug, I would be protesting. I would find out who the peope were who turned it down and I would protest in front of their house with dramatic images of the infirmity this disease causes. Let these doctors explain their actions to the children and their neighbors. Continue Reading →

‘Behind Metaphor, More Metaphor’

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Every intellectual likes to believe that he is struggling manfully against the hostile zeitgeist, or else what would be the need for intellectuals? His belief that he is not only in the minority but currently losing the battle against the opposing forces of obscurantism and wrongheadedness allows him the pleasures both of self-pity and self-congratulation. He likes to believe that he has suffered for his views (for can there be better evidence of holding the correct opinions than having suffered for them?), while at the same time making a comfortable living from them. Continue Reading →

The Internet–A Technology for Encompassing Interests and Liberty

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As a counterforce to government intrusions, technological advances have generally promoted liberty. Among the most powerful of these forces is the internet—the medium of this blog. In the book Technologies of Freedom, Ithiel de Sola Pool showed how the printing press was indispensable to the transformation from monarchy to democracy. The printing press was certainly essential to creating a constitutional, continental democracy in the United States, for, as de Tocqueville observed around that time, organization for the public good “cannot be conveniently and habitually done without a newspaper. Only a newspaper can put the same thought at the same time before thousands of readers.” In 1789 the printing press fostered the most widespread deliberation on fundamental law that the world had ever known.

The history of liberty has been in no small measure the struggle between diffuse and encompassing interests, on the one hand, and special interests, on the other.  Through their concentrated power, special interests seek to use the state to their benefit, while diffuse interests concern the ordinary citizen or taxpayer, or in William Graham Sumner’s arresting phrase, The Forgotten Man. When the printing press was invented, the most important special interests were  primarily the rulers themselves and the aristocrats who supported them. The printing press allowed the middle class to discover and organize around their common interests to sustain a democratic system that limited the exactions of the oligarchs.

Bu the struggle between diffuse and special interests does not disappear with the rise of democracy. Continue Reading →

Another Man Serving 20 Years Released – and a Possible Reform

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I hate to sound like a broken record, but these cases keep on coming.  Dewey Jones was convicted 20 years ago of murder.  But:

Defense attorneys have said there was never any physical evidence linking Jones to the slaying of 71-year-old Neal Rankin in 1993. The state’s star witness — a jailhouse snitch and career felon who claimed Jones confessed to him — died in a shootout with police.

After Thursday’s hearing, two rows of Jones’ supporters wiped tears and loudly applauded the ending.

“This is the kind of case that you dream about when you’re a law student: Freeing an innocent man,” VanHo said. “This is it. And we actually got to do it.”

Jones has always maintained his innocence, but few believed him until the Ohio Innocence Project took up his case and persuaded a judge to allow DNA testing on crime-scene evidence that police had collected but not examined with modern techniques.

The new DNA tests of crime-scene evidence found unknown samples of male blood on a piece of nylon rope used to tie Rankin’s wrists, a knife used to cut the rope and a section of fabric from the victim’s shirtsleeves.

In this case, the government was still resistant to allowing Jones to be permanently freed.

Institutional reforms that address these issues are difficult. For example, see this discussion between Will Baude and Ilya Somin.

The government – prosecutors and police – often resist these cases based on individual incentives and the reputation of the government. For that reason, I wonder whether there ought to be a special department established – loosely on the model of Internal Affairs divisions – that should consider these cases. They should have as their mission the fair treatment of the convicted and should not be answerable to the ordinary prosecutors and police officials.

Certainly, the same prosecutor who was involved in the case should never be involved in reviewing their own conduct.

Obama’s Left-Wing Foot

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My Left Foot is a touching film (and novel) about a poor young Irishman, Christy, with cerebral palsy; he can neither walk nor speak. But he has a shrewd mind and uses his left foot, the only limb he controls, to draw, paint, and thereby express his soul.

President Obama’s recent State of the Union Address also told a tale about overcoming disabilities. The disability metaphor extends through the entire speech and culminates at the end, when he introduces his special guest, a severely injured Afghan war veteran: Continue Reading →

Permanent War vs. Peace

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“America must move off a permanent war footing,” said Barack Obama in his fifth mockery of the State Of The Union address. He coupled these words with a commitment to “keep strengthening our defenses” at home – meaning enhancing the very “homeland security” measures that are the essence of that war footing. Then, confronting popular outrage against the most serious of those permanent war measures, namely the NSA’s collection of ordinary Americans’ electronic communications, Obama cunningly pledged only to enhance confidence in them, having made clear elsewhere that he would not alter their substance. Continue Reading →

As Detroit Goes…

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So the Motor City, through its emergency manager, has submitted to its numerous creditors a plan—still under wraps for now—to deal with its $18 billion debt. It’ll be interesting to learn what they propose to do about investors (screw ‘em, but how badly?); about pension costs; and about the city’s huge unfunded health costs. (Fearless prediction: a transfer of those costs to the feds, either through Medicaid or an ACA Exchange, will have to be part of any deal.) It will also be interesting to see just how the city proposes to pay its obligations going forward. That’s not just a numbers game; it’s about confidence. Not to be rude or anything but the city has proven to a certainty that it cannot govern itself. Who’s to say that once it emerges from Chapter 9, it won’t go back to fun and games?

In closely related news, State Budget Solutions has just issued its fourth annual report on state debts. Total debts clock in at an estimated $5.1 trillion, of which $3.9 trillion consists of unfunded pension obligations. (That number is based on market-value accounting; for reasons explained by Andrew G. Biggs here, that’s the right way to go about this.) Some states are in much worse shape than others; the report has the breakdown and the gory details.

The upside, in a manner of speaking, is that the eye-glazing numbers are becoming real and comprehensible. Here is AEI’s Mark J. Warshawsky in RealClearMarkets:

Two problems have become increasingly apparent and immediate: the legacy obligations promised to retirees and workers just about to retire, and the funding and nature of retirement benefits being accrued now and in the future by younger and future state and local government workers. The first problem is larger in size and concern because those retirees and long-service workers are legitimately worried that their retirement benefits promised by fiscally challenged sponsors and backed by severely underfunded plans are now highly uncertain and unsustainable and subject to arbitrary and chaotic cuts in the bankruptcy and political processes operating today. Moreover, many of these retirees, again owing to poor past choices by their representatives and employers, are not even covered by Social Security, and therefore extremely exposed to risks in retirement.

Loose translation: the wolf is at the door. You can fiddle with long-term plans and benefits for future employees all you want—the liquidity and solvency problems are here, now. What’s the answer?

One solution would be to offer these retirees and older workers a lump-sum payment representing a significant, but not necessarily full, share of the actuarial value of their promised benefits.

Yank this stuff off the states’ books and let the annuities be managed by outfits that know what they’re doing.

I’m not at all sure that this idea will fly, politically speaking. But then, what’s the alternative? What is being discussed, Warshawsky darkly notes, is a federal bailout either through Social Security or the Pension Benefit Guaranty Corporation—both of which, for what little it may be worth, also have solvency issues.

A year or so ago I would have said, “that can’t possibly happen.” I’d still bet against it, but I am no longer so confident.