|Man Without Qualities|
Friday, April 26, 2002
The New York Times says:
"Sweden has very strict gun control laws. Licenses are largely reserved for certified hunters or for target shooting by people who belong to clubs. Collectors or security guards also can be authorized."
``'The major problem now is that firearms are being smuggled into Sweden and that's something we're considering how to combat,'' said Anders Perklev, a spokesman for the Swedish Justice Ministry. ``The problem is that illegal firearms are more often found among criminals.'''
"In short, my correspondents are not entitled to their self-righteousness. They have not thought the matter through. And when the hopes of hundreds of millions are at stake, thinking things through is not just good intellectual practice. It is a moral duty." Then.
"In the United States, by contrast, the hard right has essentially been co-opted by the Republican Party — or maybe it's the other way around. In this country people with views that are, in their way, as extreme as Mr. Le Pen's are in a position to put those views into practice." Now
Doctor Manhattan is running a contest. Lots of competition for this one.
Thursday, April 25, 2002
John Rennie, editor in chief, Scientific American, writes what he calls “A Response to Lomborg's Rebuttal.” Bjørn Lomborg, author of the Skeptical Environmentalist had previously written a rebuttal to his book’s critics which Scientific American published and which Mr. Rennie addresses in his “Response.”
Mr. Rennie opens his tidy and ultimately rather simple Response – which is not without merit – with a snide and totally inappropriate H. L. Mencken's remark: "For every problem, there is a neat, simple solution, and it is always wrong." H.L. Menken was by choice the most acerbic, biting social gadfly thic country has seen, bar none, and it is remarkable that Mr. Rennie would himself choose deliberately to misappropriate Menken's scathing tone and quote onto the pages of what previously purported to be a publication of some scientific detachment. But that is between Mr. Rennie and his board of directors and their readers. Mr. Rennie has chosen to play in Menken's arena and he can take what he has invited to come. Continuing in his Menken tone, Mr. Rennie says that “[t]he story of The Skeptical Environmentalist is one of a political scientist who wades into the vastly complex, unsettled literature of environmental science, scrutinizes a fraction of what is to be found there, and emerges confident that the simple summary he has developed is a fair and accurate representation of the science—notwithstanding the warnings of experts in the disciplines he skims that he is mistaken.”
Now, according to the front page of his book, Mr. Lomborg is an Associate Professor of Statistics in the Department of Political Sciences at the University of Aarhus, Denmark who has published in international journals in the fields of game theory and computer simulation. Mr. Rennie’s authoritarian dismissal of Lomborg as “a political scientist who wades” therefore appears to be wilfully misleading or just hostile and ignorant. Perhaps Mr. Rennie knows something not revealed on Lomborg’s front page. But if he does, he doesn’t say what it is – and there is no lack of venom on these pages. In any event, Mr. Rennie's tone and apparent gross error as to Mr. Lomborg's qualifications convey anything but a sense if disinterested scientific inquiry.
Readers are invited to peruse the rest of Mr. Rennie’s opus on their own. At least they have the blessing of the Man Without Qualities. But Mr. Rennie seems to believe that once anointed “experts in the disciplines” (his choice, of course) have spoken, there is nothing for the layman – even an Assistant Professor of Statistics - to add to the matter, lest he be engaged in forbidden “wading.” That the “complex literature” in question is admitted to be “unsettled” doesn’t seem to hinder Mr. Rennie one bit, nor does the fact that Mr. Lomborg marshals his own experts - some unwillingly. So Mr. Rennie may not approve of laymen reading his Response – or, if they must read it, Mr. Rennie certainly couldn’t abide them thinking they thereby came to understand anything from it.
Such concerns of Mr. Rennie do not seem ill founded, at least with respect to his Response, since his arguments sometimes have a very strange texture indeed. For example, Mr. Rennie says:
“Lomborg takes exception to my chastising him for 'literally not seeing the forests for the trees.' He writes that ‘the longest data series actually tells us of very little change in the world forested area,’ but this is misleading. My comment springs from the fact that the data series may describe little change in the forested area, but the actual forests are subject to considerable clearing and replanting. Lomborg thus treats forests of new trees as ecologically equivalent to old-growth forests, which is clearly not true.”
But if Mr. Lomborg’s including new-growth with old-growth constitutes their “equivalence” which is “clearly not true,” then Mr. Rennie’s citing all of the old-growth area as a mass must treat all old-growth forests as “equivalent.” That is probably a lot more untrue than anything Mr. Lomborg is accused of by Mr. Rennie. For example, how likely is it that frozen-almost-all-the-time old-growth Siberian pine forests have equivalent environmental effects as old-growth tropical rain forests? Further, it is hard to find a place in rational scientific discourse for one scientist accusing another of "literally not seeing the forests for the trees" in the first place. As the magazine editor he is, Mr. Rennie should know that "literally" means "literally" - that is NOT FIGURATIVELY. Mr. Rennie's tone seems out of place, hostile and ultimately ignorant.
It is odd that Mr. Rennie picks up this particular hatchet. One might have thought that the entire point of a magazine like Scientific American was that intelligent laymen can understand enough of science to make reasoned judgments about it. But it now appears from Mr. Rennie that such activity would now be prohibited “wading.” It therefore seems that Scientific American must now just fold up shop. After all, if obtaining one’s opinions from reading scientific papers just exposes a layman to withering Menkenisms from the likes of Mr. Rennie, then just think of how awful it would be to be forced to admit that one had extracted one’s opinions from the pages of Scientific American! For that matter, by his own standards Mr. Rennie does not seem to have any authority or right to even write his “Response” – since the story of the Response appears to be one of a magazine editor "who wades into the vastly complex, unsettled literature of environmental science, scrutinizes a fraction of what is to be found there, and emerges confident that the simple summary he has developed is a fair and accurate representation of the science.” Previously, Mr. Rennie had hand picked various scientists to provide criticism of Mr. Lomborg's book, but apparently even those chosen scientists just didn't deliver the wattage Mr. Rennie requires. (Mr. Rennie "explains" that "Because of demands on their own time, most of the authors ... were unfortunately not available to write full responses to Lomborg's reply themselves." Since when does a scientist casitgate another and then refuse to respond to a rebuttal because of "demands on their own time?") Mr. Rennie's decision to write this Response himself has something of the quality of a fertility doctor who, frustrated with the husband's sperm count, just finally decides to take matters into his own hands. Or perhaps Mr. Rennie holds a tenured chair in all applicable sciences at some meta-University I haven't heard of yet? He must be quite a guy.
According to Sophismata, "the U.S is one of the cleanest producers of energy and Canadians live in the Great Brown North. More suprising, India is cleaner than most of Europe."
Are the worthy heirs of Albert Hadley and Sister Parish (nee, Dorothy B. Gilbert) as the creators of a new American decorative look for their time truly Russell Feingold and John McCain (nee, Republican)? Parish & Hadley is tough competition, and most interior decorators would not relish the challenge. But Messrs. Feingold and McCain have been making out as if they have what it takes. How substantial has their contribution been?
In a prior post the Man Without Qualities opined:
“[T]here is no particular reason for corporate majordomos to be gifted or not gifted in understanding major national Constitutional power shifts – it’s just not something that comes up that often or that critically in one’s growth from minordomo to majordomo. And passage of a campaign finance reform bill which effectively suppressed the ability of non-media private parties to use their accumulated wealth to lobby and influence voters would certainly constitute a major national Constitutional power shift.”
“Where would such legislation lead Big Media? It is hard to say, since prior laws supposedly passed as such “reform” have not had much of their putative intended effect. But I don’t think it would lead to the Big Media as we know it acquiring the kind of power its majordomos may hope for – and which the critics of campaign finance reform fear.”
“But it’s fairly obvious that a new Big Media would acquire exactly that kind of power, and that is something the current crop of majordomos may or may not understand. If campaign finance reform effectively suppressed the ability of non-media private parties to use their accumulated wealth to lobby and influence voters, then ownership and control of the Big Media companies would immediately become essential to every major economic interest group in the nation. For example, MicroSoft – which long disdained purchasing political influence in Washington but is now a major employer on Gucci Gulch – would really only have one option: it would HAVE TO acquire a Big Media company, or several of them. It would be completely immaterial whether such an acquisition was economically rational in the sense that the acquisition price square with the potential profits of the acquired company. MicroSoft would be protecting itself. And it would not be alone. Big Oil. The automotive industry. The Unions. All of them - by hypothesis - would suddenly have only one way to reach the voters: control of Constitutionally protected media. It would not be pretty.”
The above argument suggests that passage of a campaign finance reform bill which effectively suppressed the ability of non-media private parties to use their accumulated wealth to lobby and influence voters should make the stock of media companies much more valuable, and should make the news divisions within those companies the new jewels in the crown. The enhanced value of the media companies and their news divisions would not come from enhanced revenue – but rather from the ability of these entities to influence political developments that control the distribution of wealth throughout the economy.
Congress has recently passed – and the President has signed – the McCain-Feingold campaign finance reform bill. Is that bill a campaign finance reform bill which effectively suppressed the ability of non-media private parties to use their accumulated wealth to lobby and influence voters –and, if it does not accomplish such ends completely, does it move the system meaningfully in that direction? McCain-Feingold has some rather large holes, as ably described by several people, especially Mickey Kaus.
And there is some question about what the actual intent of that bill was, at least in the form it was enacted. As Mr. Kaus puts it:
“Do the defenders of McCain-Feingold simply want to restrict political ads financed by for profit corporations, as they tend to argue when it's time to file briefs in court. Or do they really want to limit the speech of individual citizens who may be rich, as their rhetoric about 'leveling playing fields' and 'curbing the influence of money' suggests?”
If McCain-Feingold meaningfully, if only partially, accomplished either of these alternative intents, it is reasonable to expect that a good portion of such displaced influence should be transferred to media companies and their news divisions. For example, if a non-network owning corporation with big political concerns (for example, Microsoft) had its influence reduced by McCain-Feingold, then it has a larger incentive to shore up its influence by seeking control or influence over such a network. Have Big Media companies benefited?
Big Media majordomos don't seem to think so - at least the ones at Disney/ABC, where current corporate policy towards the ABC news division seems to resemble current Chinese policies towards Tibet.
The stock market also seems to say “NO.” Comparing the S&P average with the stock prices of Viacom, Disney,GE, and News Corporation does not suggest that the market believes any of these companies has gained particular influence over the economy of the United States from passage of McCain-Feingold. Of course, these companies are conglomerates – and the contributions to the stock price from any single component (such as a network or news division) may be diluted. But even companies closer to being “pure plays” in news distribution – such as the New York Times and the Washington Post do not seem to have felt a particularly discernable bounce from McCain-Feingold. But the stock prices of those companies have to reflect entrenched family control - so the effect of any "control premium" may be muted. That is, the stock of family controlled public companies like the Times and the Post can't easily be bid up because a prospective buyer can't acquire the company in a hostile takeover. Of course, a buyer can still offer a high price in a consensual transaction, which is how the Los Angeles Times changed hands a few years back. Public shareholders might or might not share in an offer made to the family in such a consensual transaction. In sum, the evidence is not all in.
But what evidence exists seems more consistent with both Big Media itself and the market having concluded that McCain-Feingold is essentially showy window dressing. Which is bad news for Parish & Hadley.
McCain-Feingold will certainly affect what might be called the “personality” of the campaign finance system. Political operatives will have to work within or evade the structure of the act. So McCain-Feingold seems destined to be one of those federal statutes - such as the Securities Act of 1933 - that the affected people have to think about all the time, but which ultimately has little substantive effect. Sister Parish was famous for her belief that "personality mattered most when decorating home." Those who would say the same of a campaign finance system seem to have got that absolutely fabulous New American Look they’ve always wanted.
Wednesday, April 24, 2002
An astute reader sends word that accoding to Ha'aretz: "Egyptian Prime Minister Atef Ebeid hinted to a Persian Gulf newspaper Wednesday that his country would be ready to wage war on Israel if the Arab states were to send $100 billion to fund it."
Do I hear $101 billion from the United States to keep the peace?
$100 Billion! Going once! Going twice...!
Tuesday, April 23, 2002
Once upon a time, long ago, in a place far away, there was a very special boy named Luke. Luke was just two and eleven-twelfths years old. He had a bright face and bright little eyes. And when he smiled everyone knew he was a very special boy.
Luke still wore diapers. He lived with Mama, Papa and his big brother, Conor, in a big house with a yard and a garden.
“Boys are not expensive,” said Luke’s Papa one day, “but they ARE unusually priced!”
Papa held up one finger, “One boy: two cents!”
Conor said, “I cost two cents?”
But Papa just held up another finger and said, “Two boys: one cent! – but you have to love them both!”
Papa said that his boys were noisy boys, and silly as could be. He gave both boys a hug and Conor and Luke said they would think about what Papa said.
But Mama said Papa was the silliest of them all!
Luke really liked balls. Little balls. Big balls. Baseballs. Soccerballs. Even marbles, which are little glass balls.
Sometimes Luke would run across the room with his football in one arm and his hand held out square in front of him. He would fall on the rug and say “They tackled me!”
He had a special basketball, just big enough for his two-and-eleven-twelfths-years-old hands. And he had a special net, just high enough for two-and-eleven-twelfths-years-old legs to jump. When he made his shots he shouted “Basket!” or “Almost!” or “Way Wide!”
Luke liked the shiny silver glass gazing ball that sat in the quiet garden in his yard. On sunny days he liked to look into the gazing ball. It seemed like there was a whole little garden inside just like his, but where everything was brighter and smaller and somehow inside out. Luke could also see himself in the gazing ball, where he was like a giant in the little garden inside.
One sunny day, Luke was digging near the gazing ball while Papa planted an azalea nearby. Luke got so interested in digging and watching Papa that he forgot and bumped the gazing ball. It almost fell over. Suddenly, Luke heard a little girl’s voice that seemed to be calling to him. But when he looked around, there was only Papa and his shovel and his azalea. So Luke went back to digging.
Then he heard the little voice again. And this time he saw that it was coming from a girl standing in the bright little garden inside the gazing ball. The little girl was calling him. “Be careful!” Luke looked carefully into the ball at the little girl.
She was brightly dressed and had a sweet, concerned face. She was very small. She waved her arms back and forth and her voice sounded like a flower, singing. “Giant boy!” she called. “Be careful! Don’t break the gazing ball! Be careful!”
Luke remembered that Mama and Papa had told him that when Conor was very young he thought the gazing ball was a shiny balloon. Once Conor picked up the gazing ball and tried to toss it into the air. But it only fell and broke with a bang! Conor cried. Papa swept up the pieces and went to the garden store and bought this gazing ball they had now.
Luke didn’t want to break the gazing ball, so he said to the girl, “I’ll be careful!”
The little girl seemed relieved, and smiled at him. “Here, boy,” she said, pressing her hand against the surface of the gazing ball. As her hand came close from the inside it seemed to get bigger, the same way the reflection of Luke’s hand did when he put his hand close to the ball from the outside. The little girl held some beans, and pressed them against the inside of the ball.
In a moment little bumps formed on the outside of the ball where the beans touched it from inside. The bumps got bigger and bigger and suddenly, with a sound like pebbles falling into a pool of water, the beans popped out of the gazing ball and onto the ground where Luke had been digging. Then the bumps were gone and the gazing ball was smooth again. And the little girl was gone, too. Luke looked and looked, but she was gone.
So he picked up his beans and brought them to Papa. When Papa finished planting his azalea Luke and Papa planted the beans in a nice sunny corner of the garden. Papa put a sign up that said “Luke’s Beans” and they built a little fence out of string and willow sticks around the place where the beans were planted.
Then they went inside and had dinner with Mama and Conor. Later Papa read a story to Luke and tucked him into bed.
Overnight the beans grew and grew and grew. They grew into a giant beanstalk that reached up, up, up through the clouds to the sky! Luke was a really good climber. When he woke up in the morning he climbed the beanstalk. He climbed all morning, all the way up through the clouds, where he came to a magic castle. Standing just outside the castle door there was a giant – who staring right at him with a curious look.
“WHAT ARE YOU, … CREATURE FROM THE BEANSTALK?” boomed the giant. “ARE YOU …. A BEAN?”
“I’m a human bean,” Luke said, “a boy, to be exact!”
The giant made a note of what Luke said.
“ARE YOU … A GOOD BOY?” asked the giant in his giant voice, “OR ARE YOU … A BAD BOY?”
“I’m a good boy. I’m a very good boy.”
The giant made a note of this, too. Then he thought deeply for a minute.
“ARE YOU A QUIET BOY? … OR ARE YOU A NOISY BOY?”
Right away Luke said, “I’m a noisy boy! Papa says that I’m a noisy boy! Conor too!”
The giant made a note of all that, even the part about Conor being noisy too. Then he thought for a long, long time with his face all wrinkled up in giant thoughts. And this time he walked back and forth as he thought, rubbing his chin with his hand.
Then suddenly he pointed a giant finger at Luke. “HOW ABOUT SILLY? ARE YOU A SILLY BOY? … OR ARE YOU A SERIOUS BOY?”
“We’re both silly!” said Luke, “Conor and I are both as silly as can be! Papa says.”
So the giant carefully wrote down: Both … as… silly … as … can … be.
“AND ONE LAST THING,” the giant said slowly when he finished writing, “ARE YOU A BIG BOY …. OR ARE YOU A LITTLE BOY?”
“I’m a big boy!” Luke answered proudly. Mama had told him he was her big boy.
But the giant, who was very observant, noticed a suspicious bulge in the back of the boy’s trousers. And he didn’t write anything down.
Instead, he boomed, “DO YOU STILL WEAR …. DIAPERS?”
“Yes, I wear diapers.” Luke admitted.
“THEN YOU,” boomed the giant with a certain triumph that Luke didn’t like at all, “ARE A LITTLE BOY!”
“No! No!” Luke protested, “Mama says I’m a big boy!”
But the giant just turned and said slowly, “YOU … STILL … WEAR … DIAPERS. SO YOU … ARE A LITTLE BOY. … AND THAT’S ALL THERE IS TO IT. … AND THAT’S WHAT I’M PUTTING IN MY REPORT!”
So the giant walked away back into the castle and closed the door. And when he was good and ready the giant wrote up his report just the way that he said he would.
Luke climbed back down the beanstalk and cried to Mama that the giant had described him as a “little boy” in the giant’s report – which had been placed on permanent file.
But Mama said, “Luke, the problem is that if you still wear diapers you ARE a little boy - even if some people call you a big boy.”
“But I don’t want to be a little boy,” Luke cried, “I want to be a BIG boy!”
“If you want to be a big boy,” his mother said, “you will have to learn to go without diapers. It’s the only way.”
So Luke made up his mind, and that’s just what he did. He learned to go without diapers and became a big boy.
It turned out that the whole family was very happy that Luke hadn’t chopped down the beanstalk because later that summer the price of beans reached $12.50 a pound! Mama, Papa, Conor and Luke all picked as many beans as they could every day and sold them at the farmers market. Papa said it was better than having a goose that laid golden eggs.
And they all lived happily ever after.
It is Tuesday, and the combined wrath of the blogosphere is visited upon Paul Krugman’s current missive (“Bush = Le Pen”).
Kaus! Dreck! Sullivan! Taranto! Volokh! Galt!
The list is formidable. The criticisms biting and telling.
But something is missing. Something has been overlooked! There ARE signs of progress that should be encouraged:
MR. KRUGMAN DOES NOT INSINUATE THAT A CONSPIRACY INVOLVING CONSERVATIVE AMERICANS CAUSED LE PEN’S ELECTORAL SUCCESS!
Indeed, one can FEEL his internal struggle NOT to give in this time. The battle is close, but for once he is strong. WE ARE WITH YOU PAUL!
Of course it’s just embarrassing that he suggests that Jean-Marie Le Pen is really George Bush or Tom Delay or John Ashcroft or Martha Stewart or Julia Child (her husband was a CIA agent in Paris, you know!) or whoever it is Le Pen is really supposed to be. I can’t really figure out from the column exactly who Le Pen is really supposed to be on this side of the Atlantic. Perhaps Mr. Krugman is planning a promotional sweepstakes and we're all supposed to vote? Like Keynes.
Yes, there are troubling signs his journey is just beginning. For example, he asserts that “there are some important parallels between the earthquake in French politics and recent political events in the United States. Let me draw out those parallels…” But while it’s sadly true that his “parallels” do appear to rather wildly intersect – as if he’s practicing his political geometry on the surface of a sphere - the fact that Mr. Krugman is still one postulate short of a full set shouldn’t blind us to the progress he’s made!
And then there’s that troubling unexplicated line: “And then there's John Ashcroft.” Just what was going on there, Mr. Krugman? Look around you, all you see are sympathetic eyes. See, I’m sure everyone appreciates your having the Times replace that odd little photo of yourself which made you look so, well, “troubled,” with a slightly larger if still rather odd little photo.
Let us not forget that only a few days ago Mr. Krugman seemed largely to be chalking up the coup in Venezuela to Condoleezza Rice. I think it must have been Condi because nobody else in the Administration was actually named in that column, although she is only quoted as cautioning a restored President Chavez to “respect constitutional processes” – which Mr. Krugman said only made matters worse. I wonder if poor Condi realized how much trouble she was causing?
But that is in the past! Mr. Krugman is clearly making efforts to emerge from the dead past to the living present, to a new life. And if the progress he has made is not unalloyed, that does not make it unreal.
Monday, April 22, 2002
The California court that has reportedly ruled that undocumented workers may sue and collect for back pay based on the difference between minimum and actual wages has overlooked something: many undocumented workers receive much more than minimum wage. They will therefore not be immediately affected by the court's ruling.
Even undocumented workers who receive more than the minimum wage still probably receive less than the market rate wage they would have received if the workers were American citizens or legal aliens. The court will perhaps wish to complete and generalize it's holding and also hold that an undocumented worker receiving more than minimum wage may sue and collect for back pay based on the difference between prevailing market wage rates and actual wages paid.
That way, the court will ensure that the disincentive it is creating for employers not to hire undocumented workers will extend beyond minimum wage earners. As things stand under the current holding, the court's decision hurts only the prospects of minimum wage earners to find the work they so desperately want. Surely the court doesn't want to hurt just the most desperate workers. By generalizing its holding, the court will ensure that ALL undocumented workers are hit hard.
Gee, with friends like this California court, who knows where this will lead? Perhaps the same Princeton economists who justified the last increase in the federal minimum wage law will explain that forcing employers to pay more than $6.00 per hour will cause even more undocumented workers to be employed than if employers could get away with paying the $2.17 hourly rate that was at issue in the California case. And so on with market wages.
I can hardly wait!
Sunday, April 21, 2002
Al Gore's toxic emissions on the New York Times Op-Ed pages today do not trouble themselves with any modest thing. Mr. Gore fumes:
“Under the presidency of George W. Bush, the environmental and energy policies of our government are completely dominated by a group of current and former oil and chemical company executives who are trying to dismantle America's ability to force them to reduce the extremely dangerous levels of pollution in the earth's atmosphere.”
As often so, Mr. Gore’s perspective is so august that it is only in the cosmological that concepts are found which seem sufficiently capacious to address his concerns. It is well known that observing the Universal Background Radiation and other ancient lights allows one to look back in time to the formation of the Universe. The former vice president’s writings also seem to emanate from a political quadrant formed long ago, before even his 1992 book “Earth in the Balance.” Indeed his writing has the nostalgic quality of a 1970’s revival, expressing views perhaps unchanged since his herbal days. His Op-Ed views that pollution is attributable the acts of “sabotage” by ”current and former oil and chemical company executives” are downright Manichean: the Republican/Industry demons are doing this – he implies - we of the light must strike back!
In contrast to Mr. Gore’s Manichean evangelism, it is worth considering what is perhaps the major single source of air pollution in the United States today: cars owned by people of modest means.
A Reason Magazine article states something that is fairly well known: “Automobiles in general now account for as much as half of total air-pollution emissions in many U.S. cities. But these aggregate figures obscure a critical detail. Only a fraction of cars-- around 10 percent--account for more than half of all vehicle emissions of carbon monoxide and hydrocarbons.”
Who owns those cars in the critical 10 per cent and why does Mr. Gore not call for measures against the owners “to force them to reduce the extremely dangerous levels of pollution in the earth's atmosphere?”
Well, the city of Los Angeles evaluated car ownership and found that 32 percent of those driving gross polluters had family incomes of less than $10,000 per year. It’s not just old cars that are the “gross polluters,” though old cars are disproportionately represented in that group. And new cars typically are driven more than old ones. Pollution comes from both emissions and miles driven, so targeting old cars alone won't suffice.
But the biggest reason cars (even new cars owned by prosperous people) aren’t all effectively required to comply with strict air pollution standards all the time is politicians’ concern about the costs such compliance would impose on people of modest means. Simply put, the cost of bringing (and keeping) any car, but especially a grossly polluting car, into emissions compliance is pretty high. As Reason puts it: “The real test of Californians' commitment to cleaner air will come as more and more motorists--especially low-income motorists--find themselves shelling out hundreds of dollars to get repairs, sometimes for cars barely worth the cost of those repairs. Reestablishing repair cost limits and permanent waivers can overcome potential financial distress; such measures also weaken the potential effectiveness of the program.”
It may be the case that the pursuit of clean air is not important enough to impose the costs necessary to obtain it on people of modest means. But the environmental evangelism of Mr. Gore’s Op-Ed piece doesn’t seem to allow for such considerations – after all, Earth IS in the balance! And such economic “cost-benefit” analysis is exactly the kind of thing Mr. Gore and other environmental extremists criticize constantly. Mr. Gore likely refrains from urging such costs be imposed on members of this group quite simply because they are also members of his core constituency.
Mr. Gore is willing to press for measures that impose considerable costs on people of modest means so long as those costs are imposed indirectly through industry. For example, Mr. Gore has not shied from advocating that expensive pollution control devices be installed on cars by their manufacturers, and air pollution restrictions on factories have probably cost the country many jobs which otherwise would have paid modest salaries. But those costs come in such a way that people like Mr. Gore can deflect criticism towards the manufacturer (who actually charges the high price) or the employer (who is moving the jobs off shore). Mr. Gore hides behind these demons, just as he is doing in his Op-Ed piece. But when ordinary people have to actually write a check to pay directly for air pollution regulation compliance, it is harder for people like Mr. Gore who advocate those regulations to hide politically. That seems to be why Mr. Gore's Op-Ed piece does not include any demand that ordinary people of modest means be made to write those checks, lots of those checks, and keep their cars clean. And it doesn't matter if such people as a group are the worst source of air pollution.
Mr. Gore may be forgiven his measure of realpolitik. But the combination of such realpolitik with the sanctimony of today’s Op-Ed piece makes for a mighty distasteful effect.
Now the Man Without Qualities entertains a certain general skepticism of Mr. Gore’s environmental thinking. Indeed, it is the view here that one would have to forgive anybody undertaking simultaneous reads of “Earth in the Balance” and Bjorn Lomborg’s “The Skeptical Environmentalist” a certain nagging sensation that a man coming within a few Floridian votes of the Presidency, just perhaps, rather dangerously confabulates on environmental topics. (Sample Gore: We have assumed “there would always be a hole wide enough and deep enough to take care of all of our trash. But like so many other assumptions … this one too was wrong.” Sample Lomborg response: “All American waste of the entire twenty-first century will fit into a single landfill, using … less than half a percent [of Oklahoma].”)
The most troubling aspect of today Op-Ed emission from the Goreocosm is its adoption of the extreme, polarized tone and tenor of “Earth in the Balance” – which lays to rest any notion that the 1992 book was a product of untutored high spirits. Mr. Gore's eight years in the second highest office in the land appear to have matured his judgment not at all.
Max Power and Jane Galt have interesting posts on the Bono Act.
The Dead Hand of Sonny Bono
The “Sonny Bono Copyright Extension Act”, signed by Bill Clinton in 1998, extends the term of the copyright monopoly by 20 years. Previously the monopoly persisted until 50 years after an author died, and “works for hire” (Bugs Bunny, Mickey Mouse) created for a corporation were protected for 75 years. The Bono Act extended the term of both categories by twenty years. The Supreme Court has now agreed to hear a case challenging the Constitutionality of the Bono Act, which is creating a lot of fuss in some quarters.
The plaintiffs trying to overturn the Bono Act have a fairly straightforward argument: They point out that the “copyright clause” of the Constitution allows Congress to pass laws “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Then they argue that the Bono Act’s extension of the term of copyright protection to existing works isn’t authorized by this clause of the Constitution because the "progress of science and useful arts" is just not even arguably promoted by paying more to authors to create works that have already been created. With respect to future yet-uncreated works, the Bono Act isn’t Constitutionally authorized because the additional 20 years just doesn’t provide any significant amount of additional incentive to authors since the entire additional 20 years occurs so far in the future. Put another way, because of the time value of money, a dollar to be received more than 50 years in the furture is just not worth that much as an author's incentive today. As one plaintiff put it: “We actually went to the trouble of getting an amicus brief from … a professor of economics at Berkeley, and he made the calculations and found that it would only be a few cents difference in royalties between 50 years after an author died, which is how the law has been since 1978, and 70 years after the author died.”
The Bono Act’s supporters basically seem to say that the “copyright clause” allows Congress to determine what the appropriate “limited time” should be given to authors for their copyright monopoly. The copyright laws have always been construed that way, and the Courts should continue to defer to Congress – or risk being labeled as “activist.”
In any event, Congress also has a separate Constitutional power under the “commerce clause” that authorizes Congress to pass laws “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” If the “copyright clause” doesn’t authorize the Bono Act, then the Act could be justified under the “commerce clause” with respect to copyrighted works in “interstate commerce.” That’s essentially everything. In fact, the federal trademark laws are expressly legislated under the “commerce clause.” So the plaintiff’s “copyright clause” argument seems to be essentially a dead end – which, oddly, doesn’t settle the case. In fact, the plaintiffs will probably win – but not on the basis of this argument.
The problem with the “courts should defer to Congress” argument offered by the Bono Act supporters is that copyright laws implicate First Amendment rights. Simply put, the holder of a copyright can get a court to say to an infringer: “you can’t speak or write that way because it's copyrighted.” In fact, copyright infringement is now a criminal offense, and an infringer risks going to jail for five years or a $500,000 fine. Generally speaking, the First Amendment seriously restricts the government’s right to tell anybody “you can’t speak or write that way” – especially where the speaker or writer is charged with a criminal act. And the Federal courts do not – and probably will not in this case - defer to Congress when it comes to protecting First Amendment rights. The issues that the Court has agreed to hear are very broadly phrased, and one of them is whether the Copyright Act is "categorically immune" from First Amendment attack. So the Court definitely seems to be on the First Amendment track.
The Bono Act supporters argue that any copyright period raises the same First Amendment issue. If the Bono Act were overturned, then the copyright period would still last until 50 years after the author died. At any time in that period the copyright owner can get a court to tell an infringer: “you can’t speak or write that way.” So, the supporters’ argument goes, the Bono Act raises no new issue in this respect.
The Bono Act supporters are just wrong. The First Amendment and the copyright clause are just not inconsistent with each other in the way the supporters suggest, and the Court doesn't need to "defer" to Congress to effect a reconcilliation. Generally stated, the purpose of the First Amendment is to allow the free flow of information. That policy is exactly served by the copyright clause, since the author of information-bearing materials is given an incentive to create and publish them by the grant of the copyright monopoly. For example, newspapers can inform the public because the copyright monopoly makes publishing newspapers a viable and profitable business.
But as the life of the copyright monopoly gets longer, its marginal additional positive incentive effect on information dissemination diminishes. At some point the life of the copyright monopoly will get so long that the copyright is a net restriction on the creation and flow of information through the society. The First Amendment authorizes the Court to make it’s own calculation of when that point is reached – without any deference to Congress. If the Court finds that the new extended period created by the Bono Act is so long that net information flow is restricted, then the Bono Act violates central First Amendment policies and should be struck down. Moreover, if the Court finds that the old 50-year period does not create a net restriction on information flow, then the old period will not violate the First Amendment.
The above discussion is certainly not intended to be a complete Constitutional argument, and I do not mean to minimize the difficulty of the Court’s tasks. I have tried to outline general policies. To actually create coherent rules from these policy considerations will be no easy task. And you can't even say we pay the Justices the big bucks to do it - so at least give them a hand for trying.
Justice Louis Brandeis, especially, was fond of referring to the “marketplace of ideas” in connection with the First Amendment. In that sense, one might view the First Amendment as a kind of antitrust act, which protects the “marketplace of ideas” the way the Sherman Act protects the marketplace of the economy. The Court’s Sherman Act jurisprudence was essentially an incoherent, contradictory mess until it was more or less rationalized by (quasi-) acceptance of the principle that the Sherman Act stood for maximizing consumer economic welfare. Despite the frequent references to the “marketplace of ideas,” the Court has never articulated a definite quantity analogous to “consumer economic welfare” that the First Amendment is intended to maximize. One might imagine a model of the First Amendment that contemplates maximization of “potentially politically relevant information” or the like. In practice, such a project appears very hard.
But the current Bono Act case suggests that such a project can probably not be avoided any longer. The law of intellectual property forces the marketplaces of ideas and the economy to intersect violently. Deference to Congress in this area would be an abdication of the Court’s First Amendment responsibilities that would simply be intolerable.