ProfessorBainbridge.com

The Housing Bubble and Freddie Mac and Fannie Mae

Freddie Mac and Fannie Mae are the quasi-governmental corporations that support the housing  market by securitizing mortgages. Both are highly leveraged with debt equity ratios of around 30:1. Both also benefit from an implicit government guarantee. Although the federal government technically is not obliged to bail them out if they fail, most investors believe that Congress would always bail Fannie Mae and Freddie Mac out. This has let them borrow at highly advantageous rates, which has allowed them to become far more heavily leveraged than a pure private corporation could achieve.

If there really is a housing bubble, both Freddie Mac and Fannie Mae presumably would take a major hit. Is there any alternative to a government bailout if they start down the tubes? I recently found an interesting article by law professor Richard Carnell has lots of good information on the risks we taxpayers are bearing because of Fannie Mae and Freddie Mac's borrowing habit and lousy corporate governance. He also proposes creating a mechanism for dealing with any potential insolvency on their part.

This is an issue that's been flying under everybody's radar screen, but is a key issue given the state of the housing market. Carnell's article is a good introduction to this important problem.

Glendon on Foreign Law

Harvard law professor Mary Ann Glendon is a tremendous scholar and intellectual. Her op-ed on the Supreme Court's use of foreign law in interpreting the US Constitution is a must read. Money quote:

The problem is not reference to foreign law: It is how foreign law is used by judges who usurp powers reserved under the Constitution to the people and their elected representatives, and whose desire to "learn" is limited to finding arguments in support of conclusions that have little constitutional warrant. The learning process of the foreign law enthusiasts, moreover, is selective. They have shown no disposition to explore why most democracies take a different view from theirs on exclusion of illegally obtained evidence, regulation of abortion or separation of church and state. With reason, Justice Scalia accuses them of "looking over the heads of the crowd and picking out their friends."

Alan Murray on CSR and Eco-Terror

Alan Murray is one of my favorite WSJ columnists, but I have to call him out on today's column on corporate social responsibility. Murray starts out okay:

The last time I wrote skeptically about corporate social responsibility, I received a curt email from my mother. "So," she wrote, "corporations shouldn't be socially responsible?"

Let me try again. The question isn't whether corporations have social responsibilities. The question is: Who gets to decide what those responsibilities are? Increasingly, clever activist groups, which have failed to achieve their goals through legitimate political means, are using the social-responsibility mantra to try to impose their will on companies. All too often, beleaguered companies are caving.

So far so good. I yield to no one in as a defender of the shareholder wealth maximization norm. I also agree with Murray's observation that CSR advocates are trying to pressure corporations to advance aspects of the activists' political agenda that they have been unable to acheive through the legislative process. Finally, I agree that spineless managers caving to CSR pressure is a problem.

But then Murray segues into a discussion of how fringe CSR groups who activities verge on eco-terrorism pressured the NYSE into refusing to list a company that does animal experiments. Obviously, I have no truck with these animal rights extremists, but Murray's flat statement that "The New York Stock Exchange is the latest example" of how companies cave to CSR advocates arguably could be read as tarring mainstream CSR activists with the eco-terrorist brush. A clear statement by Murray that he recognizes the difference would have been appropriate.

There is no slippery slope between conventional CSR and the sort of extremism Murray appropriately condemns. Hence, he could have condemned the latter without opening his column with a suggestion that he was talking about CSR in general.

Roberts Takes the Easy Way Out

I haven't seen the transcript yet, so the following is merely provisional, but I'm disappointed by how SCOTUS CJ nominee John Roberts reportedly handled one issue:

Judge Roberts testified, as he was pressed for his views on legalized abortion, that there is nothing in his Catholic faith that would prevent him from adhering to settled law on the bitterly divisive issue.

Senator Specter questioned him about the 1973 Supreme Court decision that upheld the right of a woman to choose abortion and the 1992 decision that reaffirmed it.

Mr. Specter wanted to know if Judge Roberts agreed with what Senator John F. Kennedy told a group of Protestant ministers in 1960: "I do not speak for the church on public matters, and the church does not speak for me."

"I agree with that, senator, yes," said Judge Roberts.

As those who followed my extended debate with David Giacalone know, I believe that Kennedy's famous Houston speech was a cop-out and inconsistent with clear Catholic teaching on the civic responsibilities of Catholics. This is not to say, of course, that a Catholic judge inevitably must vote to strike down Roe. As I have emphasized repeatedly, this issue presents complex moral and judicial ethical issues. I'm just disappointed (but not especially surprised, I guess, given the politicization of the confirmation process) that Roberts so blithely opted for the easy way out.

In related news, James Joyner takes Roberts to task for his statement that Roe is "settled law." here's what Roberts reportedly said:

The heart of the abortion ruling is "settled as a precedent of the court, entitled to respect under principles of stare decisis," the concept that long-established rulings should be given extra weight, Roberts said.

Here's James' take:

John Roberts may have considerably set back his prospects for getting confirmed as the next Chief Justice of the Supreme Court, telling the Senate that Roe vs. Wade is "settled law." ... The mere fact that the Supreme Court rules on something does not make it settled law. Abortion remains the single most controversial issue in American public policy, precisely because many view the Roe precedent as illegitimate. The right to abortion was created in 1973 as an extension of the right to privacy created in 1965. Neither have any but a tangential basis in the Constitution.

I take James' point, but I'm inclined to think that Roberts may have left himself some wiggle room. Obviously Roe is established as "a precedent of the court," and like any other precedent is "entitled to respect under principles of stare decisis," but that doesn't mean it is carved in stone. Stare decisis is subject to lots of exceptions. (If it were not so, the Court in Brown would have been stuck with the separate but equal rule of Plessey.) What Roberts said, in my view, would not prevent him from later writing an opinion that nods to stare decisis and then limits or even overturns Roe on grounds that one or more of established exceptions to the rule of stare decisis is present.

BTW, the Times also reports on the tenor of questioning by Senator Ted Kennedy:

Senator Kennedy seemed unconvinced, sometimes cutting off the judge's replies.

"Let him finish," Senator Specter, who heads the panel, told Mr. Kennedy more than once.

Wouldn't you just love to see somebody someday get a chance to subject Ted to that kind of questioning with respect to some of Ted's more infamous past exploits?

Cost-Plus No-Bid Contracts

As the Katrina recovery effort begins, critics are already hounding the administration's chosen approach:

... the current emergency has created a rush to skimp on competitive bidding processes designed to increase potential savings and enhance work quality. A handful of no-bid, “cost-plus” contracts similar to the ones handed out in Iraq have already been signed—with some of the same companies. This time the administration has begun to use the current emergency as an excuse to circumvent routine competitive-bidding processes, while virtually deflecting the hundreds of businesses that have been calling the Army Corps and FEMA to learn how they can get in on the action. We can expect new tales of wasted money and shoddy work. (Link)

What's understand is that it is the combination of no-bid, cost-plus contracts, and cronyism that is the proper target of criticism. Taken individually, they would be far lass objectionable.

No-bid contracts generally are to be disfavored, because they eliminate the cost-savings that can be generated when potential suppliers are forced to compete. Yet, they also are a perfectly appropriate way of slicing through government red tape during an emergency.

As for cost-plus contracts, they have a well-established economic justification, as I explained in a recent TCS column on the very subject of post-Katrina disaster relief:

Fixed price contracts, under which the contractor gets a set fee no matter what it costs the contractor to perform, provide particularly high-powered incentives for cost-saving because the contractor profits only to the extent it can hold costs below its fee. Although cost savings of this sort may be what we want in some contexts, the incentive fixed fee contracts provide for the contractor to shirk on quality likely will rule it out as an option in this context.

Cost-plus contracts reimburse the contractor for all expenses and provide a set fee on top thereof as the profit margin. These contracts provide low-powered incentives for cost reduction, but provide higher-powered incentives to produce high quality. Indeed, the economic literature on contracting finds that cost-plus contracts often yield "gold plated" services. Where complex tasks must be performed at a high level, with no margin for shirking or opportunism, cost-plus contracts therefore often are the way to go.

Finally, as for cronyism, there's no real justification for it, but it is important to remember that it is a bipartisan sport, as Michelle Malkin recently observed:

On Saturday, CNN.com had a piece [9/12 clarification carried by Reuters] titled "Firms with White House ties get Katrina contracts:"

Companies with ties to the Bush White House and the former head of FEMA are clinching some of the administration's first disaster relief and reconstruction contracts in the aftermath of Hurricane Katrina. ... One is Shaw Group Inc. and the other is Halliburton Co. subsidiary Kellogg Brown and Root. Vice President Dick Cheney is a former head of Halliburton.

The Baton Rouge-based Shaw Group, CNN tells us, is a major corporate client of Joe Allbaugh, President Bush's former campaign manager and a former head of the Federal Emergency Management Agency. Among its Katrina-related contracts are this one valued up to $100 million from FEMA; and this one also valued up to $100 million from the Army Corps of Engineers.

But in their zeal to embarrass the Bush administration, CNN overlooks one very fat and inconvenient fact--and embarrasses only itself.

The Shaw Group, a multi-billion-dollar conglomerate, is headed by Jim Bernhard, the current chairman of the Louisiana Democratic Party. Bernhard worked tirelessly for Democrat Louisiana Gov. Kathleen Blanco's runoff campaign and served as co-chair of her transition team. Another Shaw executive was Blanco's campaign manager. Bernhard is back-scratching chums with Blanco, whom he has lent/offered the Shaw Group's corporate jets to on numerous occasions.

So, why was none of this mentioned in CNN's Bush-profiteers-are-evil narrative?

My point is not that the Bushies should be exempt from criticism on this score; my point is only the criticism should be informed rather than reflexive.

Optimal Gadget Number

In today's WSJ($), Lee Gomes notes:

One of the great guessing games in Silicon Valley is to figure out how many electronic gadgets people ultimately are willing to carry around. One? Two? Four?

This got me to thinking: I normally carry three electronic gadgets on my person: An iPod, a Treo cell phone, and one of those keychain memory flash drives. But do people in Silicon Valley really wonder about the possibility of four gadgets? What would be the fourth? A PSP?

Anyway, Gomes continues:

... cellphones represent the final frontier of consumerism. You can use them to buy anything you want, from wherever you are, and have it right this very second. It is a shopping fix that will last a few hours or maybe even several days; until the sweaty-palm urge to buy something strikes again. ...

The way Apple has branded an essentially generic digital-storage device such as the iPod, and given it must-have status, is a marketing story for the ages. Chapter Two, though, is just now getting under way. Everyone has a cellphone. When the day comes that a phone also will hold endless gigabytes of music, will everyone also have a music player, too?

In deciding that question, branding will be important, of course. But a winner-take-all consumer device also must be able to give people their instant consuming fix, like ring tones do so very well. To paraphrase Baba Ram Dass, "Buy Here Now."

The lesson of the new Apple iPod Nano and the Apple/Motorola ROKR may well be that the day in fact is fast approaching when one gadget will be small enough to be carried on your person and do eveything we now need three or four to do. Personally, I'm looking forward to it.

The Bed Wetting Right? A.K.A. "So I'm a RINO. So Sue Me."

Tony Snow on the reaction to Hurricane Katrina:

Let's face it, the political left -- aided and abetted by Pat Buchanan and members of the bed-wetting right -- made utter fools of themselves.

At the risk of being accused of being a candidate for Depends, let's review some basic facts:

• The head of the National Guard has acknowledged that the deployment of his personnel to Iraq delayed the response to Katrina by at least a day
• Senior Bush administration personnel told the NYT that politics delayed their response
• Bush's choice to head FEMA has been relieved
• Conservative pundit/NRO Corner blogger Rod Dreher observes that "a raft of FEMA's top leaders have little or no emergency management experience, but are instead politically well connected to the GOP and the White House. This is a scandal, a real scandal. How is it possible that four years after 9/11, the president treats a federal agency vital to homeland security as a patronage prize?"

There's a big difference between incontinence and telling the truth about an administration that is, if I may resort to being crude, screwing the pooch. Only fanatical Bush defenders like Snow can't see the difference. It's time for real conservatives and RINOs to unite in holding this administration's feet to the fire. As I've said multiple times - see. e.g., Iraq and Katrina and What Might Have Been - Bush is pissing away the conservative moment with his incompetence and tone deafness.

Update: Tony Snow sent along this email (and kindly authorized me to post it:

Professor,

Forgive my using your e-mail. For reasons most likely traceable to my technical idiocy, I was unable to post on your site.

Let me begin by buttering you up. I'm a big fan of your work, and especially enjoyed this week's piece on subsidiarity.

Now, to your hammering of me: I have discovered much to my chagrin that the "bed-wetting" right quip hit a raw nerve with a lot of people, most of whom were not intended targets. That would include you and my friend Michelle Malkin. The quip was aimed at the hair-on-fire, impeach-the-president caucus so ably manned by Pat Buchanan and Craig Roberts. No doubt I should have been more explicit: I hope this clears things up.

As for your claim that I'm a "fanatical Bush supporter:" That might come as a suprise to the White House or to others more familiar with my work over the years.

As for the merits of the argument. I don't know if you read my piece, but it mentions FEMA only in passing, as part of a long sentence: "I did mention FEMA, but only within this sentence: "There was talk of future tax cuts, spending hundreds of billions of dollars, firing Federal Emergency Management Agency Director Michael Brown, recalling all National Guard units from Iraq and revaming the federal government's plans for dealing with terrorist attacks." Although the sentence appears five paragraphs before the "bed-wetting" characterization, I suppose I can see how some readers might have made the connection.

Ironically, the piece did contain an intended dig at Michael Brown when I talked about "political yobbos" who seem more intent on pushing paper and holding press conference than delivering services to people in need -- but again, I should have been more explicit.

In any event, the central argument of the piece was that private citizens and companies have comported themselves far more nobly than America's political classes. I tried to knock down some of the sillier and more opportunistic claims -- that big oil is ripping people off by following the laws of supply and demand; that the federal response reveals profound and ugly racism within the Bush administration; and the like. I noted that opinions in these cases were far more abundant than facts, and I stick by that characterization.

The point was that many people over-responded to the crisis by dragging out tired grievances and trying once more to make them stick. In keeping with my fanatic pro-Bushism, I praised Al Gore for bringing people back from the Gulf Coast, without boasting and without trying to politicize the matter (that was two days before he made me look like a fool by doing both).

Frankly, I have remained quiet on FEMA because I've been trying to do my homework, so that when I do write about it, I might have something interesting and informed to say. I've been reading Michelle Malkin's work (and others) with interest, and now have a big, at file to consult. To put my position in perspective, I don't think I've written about FEMA for 10-15 years, and doubt I've ever written a kind word about the agency.

Listeners to my radio show know that I had Newt Gingrich on this week for the specific purpose of assailing the emergency-response bureaucracy, and that I advocated something far more radical than most bloggers have suggested, which is scrapping the apparatus entirely. I also supported Frank Keating's contention that Michael Brown has an integrity problem (particularly if the resume-padding allegations are true) and ought to go. In addition, I repeated on-air my reservations about the Department of Homeland Security (which I stated on-air and in print at the time of its inception). Here's the main complaint: Nothing ever got more efficient by becoming larger and more bureaucratic. I've always believed that it was utter idiocy to combine 110 federal agencies and offices, each of which has its own idiosyncratic culture, its bureaucratic ego, and a firm conviction that each of the other 109 partners has inferior ways of doing things.

As you can tell, your "fanatic Bush supporter" quip hit a nerve -- I have little use for party-line hacks of any variety -- just as my "bed-wetting Right" did with others. So let's make a deal: I'll be more precise with my ad hominems, if you'll do the same. Even though I enjoyed the invective, you shot at a target that doesn't exist, and trounced an argument I didn't make.

Again, keep up the great work. We really ought to get acquainted sometime.

Best,

Tony Snow

To which I replied:

I had read your piece in full before and I concede that the second half of the piece was directed at the private sector response. On that issue, I suspect we agree. See, e.g., my TCS column suggesting outsourcing disaster relief to the private sector.

http://www.techcentralstation.com/090805C.html

http://www.professorbainbridge.com/2005/09/outsourcing_dis_1.html

I just read the first half of the essay as an attempt to defend Bush by criticizing his critics. If I misread your intent, I'm sorry and will say so on the blog.

To which Tony replied:

Stephen,

Thanks for the nice and thoughtful note. I'd be happy for you to post my reply on your blog.

It's accurate to say I was defending the president from critics who used the hurricane as a way of promoting arguments that I considered despicable (playing the race card), hopelessly naive (price controls), or beside the point. So I will cop a plea on that count.

On the other hand, I couldn't agree more with your Tech Central Station column or with the latest post. To give you one tiny example of the disparity between private and public responses, the president at one point announced that the feds were going to send 400 generators to the Gulf Coast. At the same time, Home Depot was ready and capable of shipping 20,000. I also had Jindahl and Trent Lott on the radio, and both were seething at FEMA.

A friend of mine who has arranged a fair number of rescue missions decided to proceed despite the fact that government lawyers wanted to treat rescue operations as a typical federal activity. They wanted to vet applications, approve vendors, review contracts and even seek bids. He decided to save lives rather than await approval. He'll see what he can collect later. He's an old military guy, and is more wired for action than paperwork.

I'm all for privatizing the efforts, and I think that's happening anyway. The Red Cross right now is training an additional 20,000 volunteers. The real problem arises when local authorities refuse to permit outsiders to help. This is where the Blanco response is likely to come under its most withering fire. When you prevent the Red Cross and Salvation Army from providing food, shelter, bedding, clothing and medicine to victims, while also preventing people from leaving the Superdome (as the New Orleans police did), you have a fine mess. The governor wanted to deny people creature comforts so they would leave the Crescent City; the police forced many to stay.

The real key is to find local leaders unafraid to ask businesses and outside groups to help, and to have a sufficiently sophisticated response plan in place so the responders don't get in each other's way. Frank Keating, who had to deal with the Oklahoma City bombing and the most powerful tornado in American history, is especially good on this stuff.

As for the Bush legacy: Fred Barnes once described the first Bush administration as a group of people who never missed an opportunity to miss an opportunity. I think that applies to Team Bush in many ways -- with tax cuts and judicial picks serving as the notable exceptions.

The president took a pass on slenderizing government, which is something many of us feared when he promoted himself as a "compassionate conservative." That defensive label was his way of declaring pre-emptive surrender on the seminal issue of limited government -- a surrender made official by the president's refusal to veto a single bill of any description during his nearly six years in office. The administration now has to deal with the consequences of his non-federalism: Many Americans are beginning to grouse about the dysfunction of a Homeland Security department the president initially opposed, but accepted rather than taking on Congress or the press.

New Orleans gives the administration another chance to grapple with the issue. While I like the president's edict that department secretaries and agency heads ignore regulations that call for red tape, I'm not at all optimistic that he'll seize the larger opportunity to use this debacle as a way of explaining the idiocy of using depression-era theories to cope with modern challenges.

This would be a marvelous time to push in a serious way for school choice, dramatic regulatory reform (of the sort Congress tried and failed to enact a decade ago), even more thoroughgoing tort reform, privatization of everything from the Department of Commerce to many FEMA duties, and so on. You could invite readers to fill in the blanks. Once people grasp the dimension of governmental failure and private heroism in this matter, they might just get angry enough to demand change.

One final note: I read Henninger's piece as a call not just for privatizing some activities, but for militarizing others. Note his timidly suggesting that we revisit the posse comitatus act. The conventional wisdom is that the situation in Louisiana didn't stabilize until Gen. Russell Honore showed up, and that one of the real crimes was the governor's failure to permit the fairly impressive band of pre-positioned land and sea forces to get cracking right away. I'll have to mull over that one for a while...

Sorry to prattle on so long. Feel free to use whatever you consider appropriate. 

Best,

Tony

So there you have it. Who says the MSM and the blogosphere cant get along?

The Bed Wetting Right? A.K.A. "So I'm a RINO. So Sue Me."

Hugh Hewitt writes:

Finally, Professor of the Vines suggests that it was enviros who flooded New Orleans. And he hasn't been drinking. Well, he wasn't drinking when he wrote it. He might be drinking now given that it is his second blogoversary. I take a little pride in the launch of the well-oiled effort (and I do mean well- oiled), so congrats to Professor B., who I assume is also toasted Notre Dame, which unlike Professor B.'s employer's cross town rival, does actually play a real schedule.

Hugh is indeed to be credited (or blamed, I suppose, depending on your point of view) for having persuaded me to start blogging over dinner at a mutual friend's house (namely that of famed trademark lawyer to the blogosphere Howard Klein and his lovely wife). I'm proud to have Hugh as my blog father, grateful to be on his blogroll, and hoping he brings me back on the radio show one of these days. I'm ignoring the well-oiled comment, as a mere gratuitous remark, although I must admit that there may have been times one or two occasions in my career at the bar, if you'll pardon the pun, when one of Jeeve's famous "dynamite specials" might have been of some use:

I have had occasion, I fancy, to speak before now of these pick-me-ups of Jeeves's and their effect on a fellow who is hanging to life by a thread on the morning after. What they consist of, I couldn't tell you. He says some kind of sauce, the yolk of a raw egg and a dash of red pepper, but nothing will convince me that the thing doesn't go much deeper than that. Be that as it may, however, the results of swallowing one are amazing.

For perhaps the split part of a second nothing happens. It is as though all Nature waited breathless. Then, suddenly, it is as if the Last Trump had sounded and Judgment Day set in with unusual severity. Bonfires burst out all in parts of the frame. The abdomen becomes heavily charged with molten lava. A great wind seems to blow through the world, and the subject is aware of something resembling a steam hammer striking the back of the head. During this phase, the ears ring loudly, the eyeballs rotate and there is a tingling about the brow.

And then, just as you are feeling that you ought to ring up your lawyer and see that your affairs are in order before it is too late, the whole situation seems to clarify. The wind drops. The ears cease to ring. Birds twitter. Brass bands start playing. The sun comes up over the horizon with a jerk. And a moment later all you are conscious of is a great peace. {From Right Ho, Jeeves}

As for Notre Dame, I always root for them when they play USC, just as I root for anybody who plays the Condoms Trojans, not that it'll do much good this year. Over at Tradesports, the latest price on USC to repeat as National Champ was 39, which I'm afraid looks cheap. (Notre Dame's last was at 6, while UCLA's was a shameful 0.5, both of which strike me as pretty pricey.)

Amar on the Constitution

This week's issue of The Economist($) gives a generally positive review to Akhil Amar's "biography" of the US Constitution:

Akhil Reed Amar, a Yale law and political science professor, has written an original, thorough and opinionated guide to the goals and meaning intended by those who drafted and ratified the original 1787 document and its 27 amendments. ... Although Mr Amar is generally classified as a liberal, his analysis is even-handed. ... The indispensable starting point for construing the constitution has to be the document's original meaning. And the best available guide to what the draftsmen originally meant is contained in Mr Amar's excellent ?biography?.

I must confess to not having read it yet, but given this review, I'm going to do so ASAP.

Barnett on Rehnquist

Randy Barnett's thoughtful and provocative WSJ($) essay on the late SCOTUS CJ William Rehnquist's New Federalism is now available to non-subscribers on OpinionJournal.com. It's definitely one of those "go read the whole thing" pieces.

Ridge Buchignani Ranch Zinfandel (Sonoma County) 2000

A lovely Zinfandel (with a healthy dose of Carignane) that's at its peak. It probably would last a few more years, but it's at prime drinking age right now. A big nose of briars and earthy fruits. On the palate, it offers brambly fruit, mushrooms, and plums. Grade: A--

Iraq and Katrina

Remember when I said George Bush was pissing away the concervative moment by his mishandling of the Iraq war and its aftermath? I figured only the rabid Bush-haters on the left and paleo-right would make a connection between Iraq and Hurricane Katrina, so I decided to leave that meme to them. Until now.

The deployment of thousands of National Guard troops from Mississippi and Louisiana in Iraq when Hurricane Katrina struck hindered those states' initial storm response, military and civilian officials said Friday.

Lt. Gen. Steven Blum, chief of the National Guard Bureau, said that "arguably" a day or so of response time was lost due to the absence of the Mississippi National Guard's 155th Infantry Brigade and Louisiana's 256th Infantry Brigade, each with thousands of troops in Iraq. "Had that brigade been at home and not in Iraq, their expertise and capabilities could have been brought to bear," said Blum.

Blum said that to replace those units' command and control equipment, he dispatched personnel from Guard division headquarters from Kansas and Minnesota shortly after the storm struck. ... "Iraq and other overseas commitments do not inhibit our ability to sustain this effort here at home," Blum said in an interview with three reporters who flew to Bay St. Louis with him Friday from Washington. ( Link)

Even if Iraq won't prevent us from sustaining the response to Katrina, for a senior military official with Blum's evident experience to admit that it delayed the response is a pretty stunning admission. It's probably going to give the criticism of the administration and the GOP real traction with people of good sense and good will ... as it should.

Law Profs' Left Knees Jerk

Tung Yin deconstructs the anti-SCOTUS nominee John Roberts letter circulating among law professors:

The weakness of the letter, as I see it, is that it fails the basic lesson of writing: "show, don't tell."  The letter tells us that Judge Roberts does not deserve to be on the Supreme Court because the letter writer does not like Roberts' views of the right to an abortion or of the scope of the Commerce Clause or other areas of con law.  What the letter does not do is show us that Roberts' views are intellectually flawed, deceptive, or otherwise objectionable on any basis other than outcome. ...

From the perspective of the goal of advocacy, I also have a hard time seeing how asserting by fiat that President Bush should appoint someone whose views are consistent with those of persons that Kerry would have appointed is likely to persuade the undecideds that Roberts should be kept off the Court.

I'm disappointed (but not especially surprised) that the usual suspects among my colleagues signed on. Sigh.

In my Opinion, Amy Sullivan Got it Wrong

In using Google to research the law governing statements of opinion, so as to make sure my post Who's Really to Blame for NOLA? was constitutionally protected opinion, I ran across a Washington Monthly column by Amy Sullivan, in which she opines:

In 1984, he and Evans were sued by a New York University professor after Novak penned a column arguing that the professor should not be made chair of the University of Maryland's political science department; the U.S. Court of Appeals decided that opinion columnists?as opposed to reporters?had First Amendment rights to use ?reckless hyperbole,? as none other than Robert Bork's concurring opinion put it.

I went to Westlaw and pulled up the opinion - Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984), cert. denied, 471 U.S. 1127 (1985) - and to my surprise the phrase "reckless hyperbole" appears nowhere in it. It's not in Bork's concurrence and it's not in either the majority or the dissent. Nowhere. Phrases like "reckless disregard for the truth" and "rhetorical hyperbole" do appear in the opinion, but mainly in quotations from or descriptions of the relevant legal standards.

Update: The closest thing I can find to a characterization of Novak's work using either of the words in question in the majority opinion is the following statement: "the charge of 'no status' in this context would plainly appear to the average reader to be 'rhetorical hyperbole' within the meaning of Greenbelt." (P.990) I copied Bork's concurrence, from which Sullivan claims to be quoting the words "reckless hyperbole," into Word and searched it first for the word "reckless." That word appears in the following context:

The United States has just been through an intense political campaign. In this highly charged atmosphere, many cruel and damaging things were said about various candidates for major political offices. Some of the statements made may well meet the law's standards for actual malice--reckless disregard for the truth of the matter asserted. Examples will no doubt spring to mind. Yet if the statement is of the sort that we recognize as rhetorical hyperbole, we would be astonished and highly disapproving if the defamed candidate brought an action for libel.

Note that the reference here is not to statements by Novak, but generically to statements made by pundits generally in a then-recent political campaign.

Then I searched it for the word hyperbole, which does appear several times and in some cases as a characterization of Novak's work. Bork used the phrase "rhetorical hyperbole," for example, in at least one place to characterize the Novak column, stating:

... the statement challenged in this lawsuit, in terms of the policies of the first amendment, is functionally more like an "opinion" than a "fact" and should not be actionable. It thus falls within the category the Supreme Court calls "rhetorical hyperbole." (P. 994)

Notice that Bork here is invoking that phrase because it is the relevant legal standard - under the Supreme Court precedents to which Bork refers, "rhetorical hyperbole" is not actionable. Later he explains that the Novak column is:

...the kind of hyperbole that must be accepted in the rough and tumble of political argument. (P.998)

And so on. Nowhere, however, did Bork use the more damning phrase quoted by Sullivan - "reckless hyperbole" - either to characterize Novak's work or for any other purpose. The phrase simply doesn't appear in his opinion.

So that you can check my work, I found the text of the opinion online here.

In case Sullivan had simply misidentified the case from which she pulled the quote, I also searched the prior district court and circuit court opinions, as well as Rehnquist's dissent from the Supreme Court's denial of cert. It's not there in any of them. Finally, just to make darn sure I hadn't missed anything, I searched Westlaw's combined state and federal case databases for the phrase "reckless hyperbole," and found only a single 1968 California case, which didn't remotely have anything to do with Bob Novak.

This may seem like a trivial error, but consider two points. First, Sullivan seemingly wants to portray Novak in a negative light:

He is not without the charm that serves to temper his reputation as the ?Prince of Darkness.? (?I think he gave himself that nickname,? one of his colleagues later told me.) But it's a forced charm?I've read most of Novak's lines in previous profiles of the guy. I'm reminded of the description of Novak, sometimes attributed to Michael Kinsley, which a number of sources volunteered: ?Beneath the asshole is a very decent guy, and beneath the very decent guy is an asshole.?

In my opinion, the bogus phrase "reckless hyperbole" could be part of that effort, seeking to imply that Novak engages in the use of "reckless hyperbole," and perhaps even to imply that the Court thought so to. It's far punchier than the phrases Bork actually used. The actual words used would not have helped advance Sullivan's argument nearly as well.

Second, in a column that blasts Novak repeatedly for lapses and bad judgment, it's troubling to find a bogus quote.

In my humble opinion, Sullivan needs to tell us where that quote came from and why she used it.

Update: Alert reader Adam Schulman sent me the link to this 2004 blog post:

Amazingly, a Google search on "reckless hyperbole" bork returns only Sullivan's article.

Adam continues:

Not being much of a fan of Robert Novak, Mr. Smith appears not to have pursued the implications of his discovery--leaving that thankless task to you.

This suggested another line of inquiry. So I Googled the following: "reckless hyperbole" novak. It kicks up 48 hits, almost all reprinting Sullivan's article and/or using portions of her article to bash Novak. Googling "reckless hyperbole" bork turns up 38 hits, mostly of the same sort as the prior search. Is this how urban legends start?

Who's Really to Blame for NOLA?

Maybe the answer is environmentalists and their trial lawyers. The LA Times quasi- buried this story on page 10, but at least they reported it:

In the wake of Hurricane Betsy 40 years ago, Congress approved a massive hurricane barrier to protect New Orleans from storm surges that could inundate the city.

But the project, signed into law by President Johnson, was derailed in 1977 by an environmental lawsuit. Now the question is: Could that barrier have protected New Orleans from the damage wrought by Hurricane Katrina?

"If we had built the barriers, New Orleans would not be flooded," said Joseph Towers, the retired chief counsel for the Army Corps of Engineers New Orleans district.

Tower's view is endorsed by a former key senator, along with academic experts, who say a hurricane barrier is the only way to control the powerful storm surges that enter Lake Pontchartrain and threaten the city. Other experts are less sure, saying the barrier would have been no match for Katrina.

The group in question is called Save Our Wetlands. Their website brags:

While politicians talk, SOWL sues! SOWL has been involved in countless lawsuits involving Lake Ponchartrain on every subject....from the New Orleans Levee Board Airport Expansion Plan, Bucktown Marina Expansion Plan, New Orleans Mosquito Control Drainage schemes in wetlands of New Orleans East, Eden Isle Subdivision on the north shores of Lake Ponchartrain, Orlanda Subdivision, Corps of Engineers Hurricane Barrier Project, shell dredging in Lake Ponchartrain, Waterford Nuclear Plant...to the Marathon Oil Company canals in the wetlands of St. Charles and St. John the Baptist parishes. ... SOWL has always fought bitterly against the United States Army Corps of Engineers.

I wonder if they'll acknowledge any responsibility for what happened to New Orleans. (Not that I'll be holding my breath.) I also sort of wonder how the "blame Bush first, last, and always" crowd will defend these guys. There's plenty of blame to be shared out on a bipartisan basis, but after reading this story and checking out Save Our Wetlands website, in my opinion they deserve a good-sized chunk of it.

BTW, since they're such a litigious bunch, I better preemptively remind them that opinion is protected by the First Amendment! Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984), cert. denied, 471 U.S. 1127 (1985).